Eskasoni First Nation notified that income earned from its fishery will be tax exempt

Eskasoni First Nation has received notice that income earned from its communal fishery will now be considered tax exempt. This is a reversal of an earlier decision from the Canada Revenue Agency that saw fishers taxed on income earned from the commercial fishery established after the 1999 Marshall decision. Donald Marshall, a Mi’kmaq who had been charged with fishing eels out of season, fishing without a licence, and fishing with an illegal net, successfully argued to the Supreme Court that treaties from the 1760s gave him a right to catch fish for sale and excused him of fisheries regulations. “The major change we’ve seen in the law over the past few years is that reserve-based businesses, or income derived from reserve-based businesses, will generally be considered to be tax-exempt even if the activity that gives rise to the income, in this case fishing, takes place off reserve,” said Max Faille, a lawyer for the Eskasoni. “What the courts are really saying is that First Nations can embark in a successful business based on reserve but they can still do business outside the boundaries of the reserve—do business with people off-reserve like other people can—and that it still deserves protections under the Indian Act.” He said the decision could have further impacts down the road.