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Ontario Tax - Tobacco Tax. Adams v. Aamwjiwnaang First Nation
In Adams v. Aamwjiwnaang First Nation (Div Court, 2022) the Divisional Court held that making tobacco allotment decisions regarding an individual Indian band member attracts only minimal procedural fairness:[64] In Parker v. Okanagan Indian Band Council, 2010 FC 1218, 379 F.T.R. 26 (Eng.), the Federal Court held that in making allotment decisions that impact a band member’s legal rights and interests, only a limited degree of procedural fairness is required. The Federal Court reasoned that allotment decisions are policy decisions and, further, that the Indian Act does not prescribe any procedural requirements. In this case, the Regulation itself does not prescribe any specific procedural fairness requirements for the band council’s allocation of tobacco quota.
[65] In making decisions about the allocation of quota, Council must balance the interests of individuals against those of the community. Council enacted the Policy after consultation with its members to assist it in making decisions about the allocation of quota. The Policy also does not prescribe any specific steps or procedural fairness requirements.
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[69] Accordingly, we find that although there was some unfairness in the process followed in this case, that unfairness does not undermine the substantive reasonableness of the decision taken or lead us to conclude that the Respondent might have made a different decision if a fair process had been followed. Past annual allocation decisions cannot be undone in a practical sense. No purpose would be served by sending the issues back for decision by Council now, in all these circumstances: Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1 S.C.R., 202, at 228-29. . Adams v. Aamwjiwnaang First Nation
In Adams v. Aamwjiwnaang First Nation (Div Court, 2022) the Divisional Court heard two judicial reviews challenging cigarette allocations under a 'Indian reserves' regulation of the Tobacco Tax Act. These quotes are to get a flavour for the logic of the statute, but the entire case is useful for the purpose:[33] It is common ground that the Regulation was promulgated in response to the decision of this Court in Bomberry v. Ontario (Minister of Revenue) (1989), 1989 CanLII 4300 (ON SC), 70 O.R. (2d) 662 (Div. Ct.). In that case, Ontario implemented a quota system not unlike the system set out in the Regulation, but at that time without proper regulatory authority. This Court noted that, before the quota system, “[i]llicit sales of tax-free tobacco for resale to non-Indians off reserve created a very serious problem”: Ibid, at 666. As the Court found the system was unauthorized by either the Tobacco Tax Act or its regulations, Ontario subsequently promulgated the Regulation.
[34] In this context, the purposes of the Regulation, as set out in s. 2(1), are in part to prevent the illegal sale of unmarked cigarettes. Subsection 2(1) states that the purpose of the Regulation is:(a) To ensure that there is a sufficient quantity of unmarked cigarettes available for purchase on a reserve by adult members of a band for their own consumption; and
(b) To prevent the purchase of excess quantities of unmarked cigarettes that could be resold to non-Indians. [35] Under the Regulation, the Minister of Finance can enter into a “retail agreement” with the band council. The definition of “retail agreement” in s. 1 of the Regulation specifically provides that the band council is expected under such an agreement to monitor the sale of unmarked cigarettes and ensure that sales are not made to non-Indians.
[36] In other words, both the Regulation and the retail agreement are focused in part on preventing the illegal sale of unmarked cigarettes. Indeed, under the Regulation, a band council stands to lose a retail agreement in certain circumstances where a reserve retailer has sold unmarked cigarettes to non-Indians. Section 8 authorizes the Minister to investigate complaints to that effect. If the Minister concludes the retailer has sold to non-Indians, the Minister may advise the band council of that finding. If the band council does not promptly transfer the unpurchased portion of the allocation to another reserve retailer, the Minister may suspend or cancel the agreement. Therefore, the band council is expected to prevent the illegal sale of unmarked cigarettes and to be attentive to any conclusion that illegal sales have occurred.
[37] It is also important that the regulatory scheme specifically enlists the assistance of the band council in allocating unmarked cigarettes. The band council’s role in the scheme is first set out in the Tobacco Tax Act. That Act permits the Minister to engage the band council in administering the allocation of unmarked cigarettes. Section 13.5 authorizes the Minister to enter into arrangements or agreements with a band council as needed for the administration and enforcement of the Act, including a system for the sale of unmarked tobacco products to Indians.
[38] In choosing to engage with the band council, the legislature has enlisted the involvement of the governing body of the reserve community. Pursuant to s. 1(1) of the Tobacco Tax Act, a “council of the band” is as defined in the Indian Act. Under the Indian Act, the band council is elected or chosen to govern the community. For example, pursuant to s. 81 of the Indian Act, the band council is empowered to make by-laws on a range of topics affecting the community, such as to provide for the health of residents on the reserve and for the observance of law and order. Therefore, under the Tobacco Tax Act, the legislature has chosen to engage a governing body that has authority to regulate for the community’s wellbeing.
[39] Overall, then, the regulatory scheme enlists the assistance of the governing band council to administer an allocation system intended to prevent the illegal sale of unmarked cigarettes. We apply this context to the interpretation of the Regulation below.
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