The Supreme Court of Canada has denied leave to appeal the above decision (summarized in our 12 September 2012 Newsletter) following an intervening denial of leave to appeal from the Quebec Court of Appeal.  The Supreme Court of Canada summarized the issues sought to be raised on appeal as follows:

Civil procedure – Aboriginal law – Appeal from interlocutory judgment – Motion to amend pleadings – Rule of proportionality – Case management judge refusing to allow certain amendments to pleadings – Judge ruling that amendments would result in addition of entirely new cause of action unconnected to existing proceedings – Court of Appeal denying leave to appeal – Whether pursuit of justice required Court of Appeal to grant leave to appeal from interlocutory judgment? – Whether effect of Court of Appeal’s judgment is to elevate rule of proportionality to that of standard that supersedes or applies in addition to concept of pursuit of justice? – Whether concept of “Honour of the Crown” can be excluded from a claim of an Aboriginal right brought under s. 35 of Constitution Act, 1982 by the application of the rule of proportionality? – Code of civil procedure, R.S.Q., c. C-25, ss. 4.2 and 511.

The applicants are Mohawks who reside and carry on business within the Kahnawake Indian Reserve in Quebec. They each operate or have operated one or more retail sales outlets of gasoline and petroleum products. In 1994, following the enactment of the Goods and Services Tax (GST), they filed a motion for a declaratory judgment that s. 88 of the Indian Act, R.S.C. 1985, c. I‑5, Part IX of the Excise Tax Act, R.S.C. 1985, c. E‑15, Fuel Tax Act, R.S.Q., c. T‑1, An Act respecting the Québec Sales Tax, R.S.Q., c. T‑0.1 are unconstitutional or inapplicable to them as Aboriginal persons.

Between 2010 and 2012, the applicants twice amended their motion. By early 2012, their motion sought a declaration that the provincial fuel tax, the QST and the GST are illegal, contrary to the Indian Act and inapplicable to them as native persons. It also sought a declaration that the applicants are not required to comply with the administration and enforcement procedures under the applicable fiscal rules. A lengthy trial was scheduled to proceed in January 2013. However, in May 2012, the applicants sought to amend their motion once again, in part to reflect political and legal changes having taken place and, in part to allege breaches of the fiduciary duty of the Crown. More specifically, they sought to add allegations pertaining to decisions made by the federal and provincial Crowns to locate various infrastructure projects on or around the Kahnawake reserve without proper regard for the interests of the Mohawks. In all, the applicants sought to include 25 new allegations and requests for three new declarations. The Crown respondents opposed the amendments.

For the decision of the Quebec Court of Appeal denying leave see:

Kenneth J. Tyler, Partner
Vancouver Office
Direct Tel: 604-640-4185
Direct Fax: 604-622-5885

Other Author

Kenneth J. Tyler


Indigenous Law