Amos v. Canada
A-460-98
Strayer J.A.
17/5/99
4 pp.
Appeal from T.C.C. decision appellants' income from employment at pulp mill operated, in part on land leased from Nootka Band, by Avenor Inc. taxable-Appellants, members of Nootka Indian Band, claimed income tax exemption on basis income personal property of Indian situated on reserve as exempted by Indian Act, s. 87(1)(b) as applied through Income Tax Act, s. 81(1)(a)-Appeal allowed-In light of case law, income in question should be treated as located on reserve-By lease negotiated with Crown, company agreed to give preference in employment to Band members at mill-Of 39 acres of reserve, 28.8 leased to company, company owning 488 other acres of pulp mill-Appellants resided adjacent to leased property but did not work on leased reserve land-In applying recognized factors for determining situs of income, Trial Judge did not, as matter of law, give sufficient weight in circumstances to purpose of tax exemption under Indian Act, s. 87: to preserve entitlements of Indians to their reserve lands and to ensure that use of their property on their reserve lands not eroded by ability of governments to tax-Too arbitrary to deny benefits of s. 87 to those whom company assigned to one area of pulp mill's operation as opposed to those assigned to another contiguous area-Inference use of reserve land integral to operation of pulp mill-From point of view of Band members, surrender of reserve in part for procurement of access to employment that would flow from having pulp mill established on, and contiguous to, land-Employment directly related to realization by Band and members of entitlements to reserve land and, in accordance with purpose of tax exemption in s. 87, government should not be able through income taxation to erode income from such use, direct or indirect, of their land as found in this case-Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 81(1)(a)-Indian Act, R.S.C., 1985, c. I-5, s. 87(1)(b).