Decision and Order
IN THE MATTER OF AN APPEAL PURSUANT TO S. 50 OF THE ASSESSMENT ACT
CONCERNING:
BLOCK F LAND LTD
BLOCK K LAND LTD
AND
Assessor Of Area #09 - Vancouver Sea To Sky Region
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Appeal Nos.: |
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Refer to as: |
Musqueam Indian Band, et al. v. Area 09 (2010 PAABBC 20091957) |
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Date of Decision: |
January 28, 2010 |
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Properties: |
09-39-631-00808.000, Pacific Spirit Park, University Endowment Lands |
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09-39-631-00820.000, Pacific Spirit Park, University Endowment Lands |
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Heard: |
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Appearances: |
Maria Morellato, Barrister and Solicitor, for the Appellants |
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Bruce Hallsor, Barrister and Solicitor, for the Respondent |
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Board Panel: |
Cheryl Vickers, Panel Chair |
INTRODUCTION AND ISSUE
[1] The principle issue in this appeal is whether properties held in trust by the Appellant companies for a tribe of Indians are exempt from taxation pursuant to section 15(1)(h) of the Taxation (Rural Area) Act. The Appellants say that the plain language of the legislation provides for the exemption in the circumstances and that the provision should be interpreted to allow the exemption. While disagreeing that the provision must be interpreted to allow for the exemption, the Assessor also submits that the Supreme Court’s decision in Westbank Indian Band Development Co. v. Assessor of Area #19 – Kelowna, [1991 B.C.J. 2501], holding that the legislative provision in issue does not apply to exempt lands that are outside of a reserve protected by section 87 of the Indian Act, is binding on the Assessor and the Board. Consequently, the Assessor submits the properties are not exempt from taxation. The Appellants in turn argue that the Board is not, for various reasons, bound by the Westbank decision. The issue becomes, therefore, whether Westbank is binding on the Board.
FACTS
[2] The properties that are the subject of this appeal (the “Properties”) are legally described as Block F, District Lot 140, Group 1, New Westminster Land District, PID 013-763-938 (“Block F”) and Block K, District Lot 140, Group 1, New Westminster Land District, PID 013-764-021 (”Block K”).
[3] The Properties formed part of the Reconciliation, Settlement and Benefits Agreement, dated for reference March 11, 2008 (the “Settlement Agreement”) between the Province of British Columbia and the Musqueam Indian Band (“Musqueam”). The Settlement Agreement provides, among other things, for the Properties to be transferred to Musqueam pursuant to a trust.
[4] Musqueam is a tribe of Indians.
[5] The Properties are held in trust for Musqueam who is the beneficial owner. Under the Settlement Agreement and enabling legislation, Block F was transferred to the Appellant, Block F Land Ltd., and Block K was transferred to the Appellant, Block K Land Ltd., both in trust for Musqueam under the terms of Trust Agreements executed April 9, 2008. The transfers were effective April 14, 2008.
[6] In particular, the Settlement Agreement provides that, to settle certain claims and as part of the reconciliation of the Province and Musqueam, certain lands (which include the Properties) were to be transferred by the Province to designated companies that were defined in the Settlement Agreement as companies controlled by Musqueam and include corporations acting as trustees for Musqueam as beneficiary. It is the practice and policy of the Land Title Office that it will not register Indian Bands as fee simple owners.
[7] Block F Land Ltd. and Block K Land Ltd. (the Companies) are wholly owned and controlled by Musqueam or its nominees. The Companies are persons for the purpose of British Columbia legislation.
[8] The Properties were unoccupied as of October 31, 2008 and remain unoccupied.
[9] The Properties are located within the area governed by the University Endowment Land Act, R.S.B.C. 1996, c. 496, which provides that assessment of such property for taxation purposes is governed by the Taxation (Rural Area) Act.
[10] Section 15(1)(h) of the Taxation (Rural Area) Act provides:
15(1) The following property is exempt from taxation:
(h) land and improvements vested in or held by Her Majesty or another person in trust for or for the use of a tribe or body of Indians, and either unoccupied, or occupied by a person in an official capacity or by the Indians.
SUBMISSIONS
[11] The Appellants’ submissions may be briefly summarized as follows. Section 15(1)(h) of the Taxation (Rural Area) Act is clear and unambiguous and permits the exemption. All of the constituent criteria of section 15(1)(h) are satisfied: the Properties are held in trust by a person, namely the Companies, for a tribe of Indians and are unoccupied. There is no ambiguity in the provision and no reason to deviate from its plain meaning. The Supreme Court of Canada has adopted and relied on the plain meaning approach to the interpretation of fiscal and taxation statutes. If there is any ambiguity, the Appellants argue it should be resolved in favour of Musqueam in reliance on the Supreme Court of Canada’s decision in R. v. Nowegijick, [1983] 1 S.C.R. 29.
[12] The Appellants submit, with respect, that the Court’s interpretation of section 15(1)(h) in the Westbank case is incorrect and that it is, in any event, not binding. Westbank was an oral decision given in chambers and the reported reasons are fragmentary. It is not clear what the court concluded with respect to the scope of section 15(1)(h) and the conclusions are obiter. Westbank is distinguishable because there is no reference in the decision to the lands in issue being held in trust. The Court adopted the contextual approach given to the section in a previous authority, Northwest Prince Rupert Assessor, Area No. 25 v. N & V Johnson Services Ltd. [1988] 4 C.N.L.R. 83, and assumed the legislative intent of the provision without explanation of the inconsistency of this assumed intent with the plain language of the legislation.
[13] The Appellants submit there are exemptions to the doctrine of stare decisis. The Board should not adhere to Westbank for a number of reasons: 1) the decision cannot stand in light of subsequent Supreme Court of Canada decisions, specifically Canada v. Anotosko, [1994] 2 S.C.R. 312, 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, and Canada Trustco Mortgage Co. v. Canada, [2005] 2 S.C.R. 601; 2) the decision is an unconsidered oral decision that was rendered without properly reflecting on the directions of the Supreme Court of Canada in Nowegijick; and 3) the decision does not reflect the values inherent in section 35 of the Constitution Act, 1982 in regards to the reconciliation of Aboriginal title and rights, nor does it reflect the social, political, and economic realities of contemporary British Columbia society. The reasoning in Westbank cannot stand without scrutiny and is contrary to authority interpreting a similar provision in another province (Keewatin Tribal Council Inc. v. Thompson (City), [1989] M.J. No. 295 (QL)).
[14] The Assessor’s submissions may be briefly summarized as follows. The Court’s decision in Westbank is binding on the Board. The case had similar facts, it considered the appropriate approach to statutory interpretation, distinguished the approach applied by the Supreme Court of Canada to taxing statutes, and provided a clear interpretation of section 15(1)(h). The Court was alive to the Supreme Court of Canada’s decision in Nowegijick and found it did not apply. There is no evidence the decision was unconsidered, the finding on section 15(1)(h) is not obiter, and there is no reason that the doctrine of stare decisis should not apply. The Court appropriately applied Northwest Prince Rupert.
[15] The Assessor further argues that a contextual approach to section 15(1)(h) clarifies its meaning and the legislature did not intend that any lands held in trust for Indians should be exempted from taxation but that it only intended it to apply to reserves.
ANALYSIS
Section 15(1)(h) of the Taxation (Rural Area) Act
[16] I agree with the Appellants that the plain language of section 15(1)(h) allows the exemption sought. The Properties are unoccupied and are held in trust by the Companies, who are legally “persons”, for the benefit of Musqueam, a tribe of Indians. All of the constituent elements of section 15(1)(h), on a plain reading of the words, are met.
[17] The Assessor argues that this interpretation deprives the words “Her Majesty” from any meaning and must have only intended to apply to reserve lands. I am inclined to agree with the Appellants, however, that the Assessor’s interpretation deprives the words “or another person” of any meaning. Assuming the legislation is within the constitutional authority of the province (which is not a matter over which I have jurisdiction to decide), and is in fact intended to apply to land outside of a reserve that may be held either by Her Majesty in some capacity other than as a reserve under the Indian Act or by another person in trust for a tribe of Indians, and simply provides another circumstance in a list of circumstances where properties otherwise subject to provincial jurisdiction are exempt from the payment of property taxes, all of the words of the provision can have meaning. Even using the modern approach to the interpretation of statues, requiring a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole, the ordinary meaning of the words play a dominant role when they are precise and unequivocal (Canada Trustco, supra). Without considering any constitutional arguments that may impact on the interpretation or vires of the section, but for the Supreme Court’s decision in Westbank, section 15(1)(h) allows for an interpretation that would exempt the Properties from taxation.
The Westbank decision
[18] While it is not entirely clear from the reported version of the decision, Westbank seems to have arisen in the context of an appeal by way of stated case from a decision dated January 25, 1991 of the Assessment Appeal Board (as it was then known). The Board found that land outside of a reserve owned by the Westbank Indian Band Development Company Limited and held in trust for present and future members of the Westbank Indian Band, was not exempt from taxation. The statutory provisions in issue were section 13(1)(h) of the Taxation (Rural Area) Act, which was the same as the present section 15(1)(h) of the Taxation (Rural Area) Act, and section 398 (e) and (f) of the then Municipal Act. The Court answered the question posed in favour of the Assessor and found that the sections did not provide an exemption for the lands of the Westbank Indian Band Development Company Limited.
[19] The Appellants in this appeal argue that the finding that the lands were not exempt was obiter. They argue the ratio of the Westbank decision was that the Assessor did not have standing. While the reported decision is fragmentary, making it difficult to follow and understand, I suspect the question of the Assessor’s standing was a preliminary issue relating to an issue of the validity of the legislation. It appears the Assessor raised an issue relating to the validity of the legislation and it is in the context of that issue that the determination of the Assessor’s standing was made. It is apparent from the reported version of the decision that the Attorney General was represented by counsel at the hearing, which is consistent with a constitutional question having been raised. My reading of the reported decision is that the Court finds as a preliminary matter that the Assessor does not have standing to speak to an issue of the validity of the legislation. The Court goes on, however, to deal with what is referred to as “the sole issue in the matter” and clearly does not deny standing to the Assessor on that issue as the Court hears from the Assessor’s counsel and awards costs to the Assessor. The issue before the Court was the same as the issue before the Board, namely whether the sections operated to exempt the lands owned by the Westbank Indian Band Development Company Limited from taxation. The Court’s decision on that question, that the sections did not exempt the lands from taxation, is the ratio of the case.
[20] The Appellants submit that the Court’s decision in Westbank on the application of the section of the Taxation (Rural Area) Act is incorrect. Whether I agree the decision is incorrect or not is of no import if I am bound to follow it. The Appellants argue that the doctrine of stare decisis does not apply in the circumstances and that the Board is not bound to follow Westbank.
[21] The Appellants submit that Canadian courts have found that departure from the doctrine of precedent is necessary in the following situations:
a) where the decision, though not expressly overruled, cannot stand with a decision of a higher court;
b) where the decision was given in advertence to some authority;
c) where the decision was an unconsidered one, given the circumstances where the exigencies of the trial required an immediate decision without opportunity to consult authority fully;
d) where the decision does not reflect values in our Constitution; or
e) where social, political or economic assumptions underlying the decision are no longer valid in contemporary society.
[22] The Appellants make compelling arguments that some or all of the circumstances identified above apply to the Westbank decision. I am inclined to agree, with respect, that the decision does not do a thorough analysis of the appropriate approach to statutory interpretation, nor does it consider whether Northwest Prince Rupert, supra is distinguishable. It is difficult to reconcile the Court’s interpretation with subsequent authority such as Canada Trustco, supra. While I may, with respect, disagree with the Court’s distinction of Nowegijick, I cannot say that the decision was given in advertence to that authority as it is referenced (although misspelled) in the reported version. While the transcript of the decision is fragmentary, I cannot say that the decision was not considered or authorities not fully consulted. Issues of whether the decision reflects the values of our Constitution are not for me to pass judgment on, as constitutional questions are outside of the jurisdiction of this Board. Likewise, while I am aware that the circumstances of this case arise in a different political and social climate with respect to the resolution of aboriginal land claims, and that the Companies come to own the Properties in trust for Musqueam as part of a settlement of certain claims, the limited jurisdiction of this Board makes it inappropriate for me to comment on whether the social, political and economic assumptions in the Westbank decision continue to be valid.
[23] The authorities relied on in support of the argument that I should not follow Westbank, (David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co., [2005] O.J. no. 2436 (C.A.), R. v. Beaudry, 2000 ABCA 243, and R. v. Lindsay, 2003 BCSC 1203), are all decisions of superior courts wrestling with whether to depart from a decision of their own court. All of these decisions affirm the principle that an inferior court is bound by the decision of a superior court, unless it can be distinguished. Even in the David Polowin decision where the Ontario Court of Appeal decides to overrule its own previous decision on the same issue following an analysis of the factors above, the Court reaffirms that the original motions judge properly considered himself bound to follow the existing authority although his reasons suggested he would have decided differently had he been free to do so. I have not been provided with any authority to suggest that even if I agree that some or all of the circumstances identified above exist, this Board is not bound to follow the Supreme Court’s decision in Westbank unless it can be distinguished.
[24] I am unable to find that the facts or issue in Westbank are distinguishable. The case interpreted the very same legislative provision in issue in this appeal. The land for which the exemption was claimed was, likewise, not part of a reserve. A corporation owned the land in trust for a band of Indians. Although the property in Westbank was used by members of the Band as opposed to being unoccupied, this difference in the facts is not one that would distinguish the application of section 15(1)(h) of the Taxation (Rural Area) Act.
CONCLUSION
[25] Despite misgivings about the Court’s decision in Westbank, I find I am bound by this decision of a superior court finding that the language now in section 15(1)(h) of the Taxation (Rural Area) Act does not operate to exempt from taxation lands owned by a corporation in trust for a tribe of Indians. The Properties are, therefore, not entitled to the exemption sought.
ORDER
[26] The Board confirms the decision of the 2009 Property Assessment Review Panel as follows:
Roll No. 09-39-631-00820.000 – 2009-09-00035
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Land: |
Class 1 - Residential |
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67,200,000 |
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Total Assessed Value: |
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$ |
67,200,000 |
Roll No. 09-39-631-00808.000 – 2009-09-00036
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Land: |
$ |
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Total Assessed Value: |
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$ |