Roberts v. R

In Aboriginal Rights/Defences, Fish Cases, Taxation on (Updated )

This case involved a status member of the Kitsumkalum First Nation who lived on a reserve near Port Essington approximately 70 miles from Prince Rupert, British Columbia. After being assessed income tax on fishing income earned while fishing outside his reserve, but in his traditional fishing territory the FN Fisher appealed his assessment to the Tax Court of Canada. In deciding whether or not to assess tax upon the income, the court applied a 9 part connecting factors test.

With respect to location of the fixed place of business, the Court found that the FN Fisher lived on a reserve and maintained a business office and stored equipment on the reserve.

With respect to business activities, nature of work and location where business decisions made, (the most important connecting factor) the Court found (1) the core of the business was catching fish aboard a commercial fishing vessel located in off reserve waters, (2) the catch was never taken to the reserve, but offloaded directly to fish plants located off reserve, (3) business decisions were made both on reserve while planning and off reserve while fishing.

With respect to place of payment, while some cheques were delivered to the reserve, most payments were made by the fish buyer directly crediting his account.

With respect to, the degree to which the business was integral to life on the reserve or in the commercial mainstream, it was argued by the FN Fisher that the fishing activity was integral to life on the reserve because it was done in his Nation’s traditional fishing territories. This argument was rejected because of (1) weak evidence of traditional use in the areas in question, and (2) existing jurisprudence such as Walkus v. R. [2003] 3 CTC 181 that gave a very narrow definition of the phrase "on a reserve".

Based upon the Court’s review of all the connecting factors, it upheld the Government’s assessment of tax payable.