Quick Link to Stated Case #403 (BCCA - Review of Refusal to grant Leave to Appeal Application) ASSESSOR OF AREA 05 - PORT ALBERNI TIN WIS RESORT LTD.

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1 The following version is for informational purposes only, for the official version see: for Stated Cases see also: for PAAB Decisions SC 403 AA05 Tin Wis Resort Ltd. Attorney General Quick Link to Stated Case #403 (BCCA - Leave to Appeal) Quick Link to Stated Case #403 (BCCA - Review of Refusal to grant Leave to Appeal Application) Quick Link to Stated Case #403 (SCC) ASSESSOR OF AREA 05 - PORT ALBERNI TIN WIS RESORT LTD. THE ATTORNEY GENERAL OF BRITISH COLUMBIA (Third Party) Supreme Court of British Columbia (A971063) Vancouver Registry Before the HONOURABLE MADAM JUSTICE SATANOVE John Savage for the Appellant Albert Peeling & Pat Hutchings for the Respondent Michael Frey for the Third Party Constitutional Law - Indian Reserves Indian Self-Government Enabling Act - Late Certificate Vancouver, November 13, 1997 The Court of Revision removed from the municipal assessment roll property located on an Indian Reserve where the Band had assumed assessment and taxation powers, but a certificate under the Indian Self-Government Enabling Act had not been obtained and therefore the property had appeared on both the Band roll and the municipal assessment roll. The Band argued that (1) there was no jurisdiction in the province to assess and tax land on reserves even where such lands were occupied by persons who were not Indians, and (2) the Indian Self-Government Enabling Act was unconstitutional or at best otiose. The Band argued that the Assessor had no jurisdiction to assess the properties. HELD: Appeal allowed.

2 1. The Assessor had jurisdiction to assess the subject properties; 2. The imposition of municipal property taxes on the non-indian occupiers of reserve lands is valid provincial legislation and does not relate to Indians or lands reserved for Indians as determined by the Court of Appeal in Sammartino A.G.B.C. (1971), 22 D.L.R. (3d) 194; 3. The Indian Self-Government Enabling Act is valid legislation as determined by the Court of Appeal in Tsawwassen Indian Band Corporation of Delta, August 6, 1997 (C.A /VI02883). Reasons for Judgment December 10, 1997 This was a Stated Case brought by the Assessment Appeal Board of British Columbia (the "Board") under Section 74(1) of the Assessment Act which allows the Board to seek the opinion of the Supreme Court on a question of law. The questions of law which the Board has asked this Court to answer are: 1. Did the Assessor of Port Alberni have the jurisdiction to assess the subject property in the circumstances herein in light of section 83 of the Indian Act and section 9.1(24) of the Constitution Act? 2. Did the Assessor of Port Alberni have the jurisdiction to assess the subject property on the 1995 assessment roll where the subject property is on a reserve where a Band has passed an assessment and taxation bylaw during the 1995 calendar year but where the Minister of Indian Affairs and Northern Development did not approve the bylaw until the 1996 Calendar Year and where no taxation certificate was issued under the Indian Self-Government Enabling Act until the 1996 Calendar Year? The subject property (the "Property") is part of the Tin Wis Indian Reserve No. 11. Situated upon it are ancillary buildings and structures used as a resort by Tin Wis Resort Ltd. ("Tin Wis") which holds a lease with the Federal Government pursuant to Section 53 of the Indian Act. All of the shareholders of Tin Wis are held by status Indians in trust for the Tla-o-qui-aht First Nations On January 1, 1994, the District of Tofino entered into a municipal services agreement with the Tla-o-qui-aht First Nations for a term of five years. On March 8, 1995, the Tla-o-qui-aht First Nations applied for a taxation certificate for 1995 under Part 2 of the Indian Self-Government Enabling Act ("ISGEA"). On April 12, 1995, the Minister of Aboriginal Affairs of British Columbia rejected the application. On August 9, 1995, the Tla-o-qui-aht First Nations passed the Tla-o-qui-aht First Nations Property Assessment and Taxation Bylaw (the "Bylaw"). On December 4, 1995, the Assessor issued an assessment ("the Assessment") showing the Property to be taxable by the District of Tofino for the 1995 Assessment Roll. On January 31, 1996, Tin Wis filed a notice of appeal of the Assessment. On February 12, 1996, the Minister of Indian Affairs and Northern Development approved the Bylaw.

3 On February 27, 1996, Tin Wis argued the appeal of the Assessment at the Court of Revision. The Court of Revision ordered, without written reasons, that the Property be removed from the 1995 Assessment Roll. On February 29, 1996, the Tla-o-qui-aht First Nations applied for a Taxation Certificate for 1996 under Part 2 of the ISGEA. The Taxation Certificate was issued on March 25, On April 23, 1996, the Assessor appealed the decision of the Court of Revision to the Board. The Board adjourned the hearing and suspended its proceedings pending the opinion of this Court on the questions of law set out in paragraph 2 above. On September 9, 1996, Tin Wis issued a Notice to the Attorney General of Canada and the Attorney General of British Columbia pursuant to the Constitutional Questions Act. At the hearing of this Stated Case the parties agreed to the facts set out above and further agreed, by way of Amended Agreed Statement of Facts, that: Assessment and taxation by the Assessor (on behalf of the District of Tofino) of the interest of non-indian occupiers of reserve lands potentially reduces the gross revenue (consisting of gross rent and the amount of tax of the non-indian interest by the First Nation) available to the Tla-oqui-aht First Nation from those reserve lands. This potential reduction in gross revenue may be eliminated under the Indian Self Government Enabling Act which provides a mechanism whereby, at the election of the Tla-o-qui-aht First Nation, the liability of the non-indian occupier to the District of Tofino is eliminated. It is obvious that the issue between the parties as to who has the jurisdiction to tax Tin Wis has arisen because Tin Wis was assessed and taxed by the Tla-o-qui-aht First Nations in 1995 under the Bylaw and has paid taxes pursuant to this assessment. Tin Wis has also been assessed and taxed by the District of Tofino, although it has not yet paid the taxes. Therefore, the underlying pragmatic issue in this case is whether Tin Wis is liable to taxation by both the District of Tofino and the Tla-o-qui-aht First Nations for 1995, or only by the letter. The answer to this depends in part on whether the ISGEA is valid legislation which again depends on whether the Province of British Columbia is entitled to levy property taxes on non-indian occupants of an Indian Reserve. The two stated questions before the Court are intertwined in that if the Province has the jurisdiction through the Assessor to assess the property under the Assessment Act, it should have the jurisdiction to control and regulate the withdrawal of its power of assessment under the ISGEA. This was the point made by the Court of Appeal in the recent decision of Tsawwassen Indian Band Corporation of Delta, August 6, 1997 (C.A /VI02883). Tin Wis does not disagree with the above proposition. However it submits that the appellate authorities which suggest that the taxing power of the Province in these circumstances is valid needs to be revisited in light of more recent case law. Tin Wis submits that the Court of Appeal merely referred to and relied on earlier of its own decisions without reconsidering them or being invited to reconsider them before rendering their decision in Tsawwassen Indian Band, supra. The Attorney General of British Columbia strongly disagrees. Counsel submits that the Court of Appeal did reconsider whether the provincial taxing power of non-indian occupiers of Indian reserve land was valid in the Tsawwassen Indian Band case and the Court of Appeal expressly confirmed and implicitly revalidated the constitutionality of the provincial taxing power. Therefore, a threshold decision which I must make is whether the Court of Appeal has already decided in Tsawwassen Indian Band the issues raised in both the questions stated in this case, or whether it is open to me to consider the arguments of counsel for Tin Wis that the issues can

4 and should be reconsidered in light of other Supreme Court of Canada authorities rendered since the time of the authorities upon which the Court of Appeal relied in Tsawwassen Indian Band. Counsel for Tin Wis submits that the decision of the Court of Appeal that the ISGEA was constitutionally valid in Tsawwassen Indian Band is obiter dictum because the issue was not properly before the Court. He says that no challenge to the correctness of the earlier decision of the Court of Appeal in Sammartino A.G.B.C. (1971), 22 D.L.R. (3d) 194 (B.C.C.A.) was made and that this was the reason the Court concluded that the ISGEA was valid. He cites paragraph 91 of that decision: It would make little sense for this court to conclude, as it did in the Sammartino decision, that the imposition of municipal property taxes on non-indian residents is valid and does not relate to Indians or lands reserved for Indians but, on the other hand, to hold that legislation which provides a mechanism for the withdrawal of that taxation power does relate to Indians or lands reserved for Indians. Clearly, if the provincial government has the power to enact legislation which imposes tax on non-indians who occupy reserve land, it must also have the authority to enact legislation which provides for the withdrawal of that burden. Counsel for Tin Wis submits that Sammartino was wrongly decided because: a) The Court did not distinguish between the two subject matters of s. 91(24) of the Constitution Act, that is, the Court referred only to Indians qua Indians and not land reserved for Indians; b) This confusion between Indians and land reserved for Indians revives the enclave theory; and c) The distinction drawn by Mr. Justice Bull in Sammartino between provincial taxation of an occupier of reserve land as opposed to taxation of reserve land has been rejected by the Supreme Court of Canada in Re Exported Natural Gas Tax, [1982] 1 S.C.R That case held that a legislator could not do by means of an in personam tax what it could not do by a tax in rem. Counsel for the Attorney General of British Columbia submits that the pronouncement of the validity of the ISGEA in Tsawwassen Indian Band, supra, is not obiter dictum, but was made necessary in light of the positions taken by the parties to the appeal. He says that the Court of Appeal did deal with the second head of s. 91(24), land reserved for Indians. Further he submits that Sammartino was correctly decided because the operation of the Assessment Act does not offend any principle of constitutional law and does not impact on the "Indianness" or "reserve nature" of the Property, or attempt to regulate the Property in any way. I do not agree with counsel for Tin Wis that the part of the decision in Tsawwassen Indian Band relating to the constitutionality of the ISGEA is obiter dictum. In order to characterize this part of the decision, one must appreciate the factual background that led up to the appeal. Tsawwassen Indian Band involved two appeals by two Indian Bands - Tsawwassen and Adams Lake. The Adams Lake Band's reserves were within the municipal boundaries of the District of Salmon Arm. In 1992 the Band gave notice under the ISGEA that they were intending to implement a land taxation system for real property on the reserve. Subsequently it passed a taxation bylaw and ultimately the Band replaced Salmon Arm as the sole taxation authority on the two reserves in Negotiations proceeded between the Band and Salmon Arm for the continued supply of services. No agreement was reached and Salmon Arm notified the lessees of the land and residents on the reserve that they were terminating services. The Band brought a mandatory injunction application before the Supreme Court and Saunders, J. held that there was

5 a common law duty to give reasonable notice of termination of municipal services in these circumstances, but there was no duty to provide the services indefinitely. The situation with respect to the Tsawwassen Indian Band was similar in that Delta refused to continue to negotiate a service agreement with the Band after the Band had issued a notice under the ISGEA, passed a taxation bylaw and become the sole taxing authority of occupiers of the reserve. The Band sought an injunction preventing the discontinuation of fire protection services and requiring Delta to approve the plan of B.C. Gas to construct a pipeline which could carry natural gas to the commercial project being developed on the reserve. Vickers, J. followed Saunders, J. in Adams Lake Indian Band District of Salmon Arm and ordered Delta to continue services for what he continued to be a reasonable time. The two Bands appealed the respective decisions of Saunders, J. and Vickers, J. and asked the Court of Appeal to issue a Declaration that municipal corporations owe a common law duty to supply essential services to non-native persons and property on reserve land even where those persons and property are subject to a Band taxation bylaw indefinitely. The Court of Appeal stated that in order to consider granting this relief, three issues had to be decided. The third issue was phrased as "Is the ISGEA constitutionally valid?" The Court of Appeal stated at paragraph 71 that because the Adams Lake Indian Band raised the constitutional issue and later abandoned it and the Tsawwassen Indian Band did not raise it in the first place, the Bands should not be allowed to raise it on appeal. Nonetheless, the Court of Appeal did allow them to raise it: However, despite this fact, we recognize that the matter was fully argued in this Court, no prejudice has been shown and we think it appropriate that we express our view. (emphasis added) I note that counsel of record for Adams Lake Indian Band was the same as counsel for Tin Wis on this Stated Case. So I am somewhat surprised to hear the submission that the Court of Appeal did not hear proper argument on the constitutional issue. The submissions presented by counsel for Adams Lake Indian Band were summarized by the Court of Appeal in paragraph 75: The Adams Lake Indian Band submits that the ISGEA is ultra vires because in pith and substance it is legislation which is in relation to Indians and land reserved for Indians, a matter within the exclusive jurisdiction of the federal government under s. 91(24) of the Constitution Act, Further, the Band submits that it is irrelevant that the Act is "enabling" or beneficial legislation because it is beyond the capacity of the Province to determine what is beneficial for Indians. (emphasis added) The submissions of the Attorney General of British Columbia are: The Attorney General for British Columbia, as intervener, takes no position on whether or not there is a common law duty but argues that, in any event, the ISGEA is intra vires the province. The Act is in pith and substance legislation which is designed to allow for the withdrawal of an otherwise valid provincial taxing authority in order to accommodate Indian taxation bylaws under s. 83 of the Indian Act. The primary subject matter of the Act is the obligation of non-native occupiers of Indian reserve lands to pay property taxes to provincial taxing authorities. (emphasis added) Thus it appears to me that the issue raised in this Court of the jurisdiction of the Province with respect to taxation of non-indian occupiers of land reserved for Indians was squarely before the Court of Appeal in Tsawwassen Indian Band, supra.

6 It was the unanimous decision of the Court of Appeal in Tsawwassen Indian Band that:... the ISGEA is in pith and substance legislation in relation to municipal governments and municipal taxation and thus is clearly within provincial legislative competence. It is not legislation in relation to Indians and does not touch upon their "Indianness". Further, it is not legislation in relation to the use of Indian lands. The Act as a whole is constitutionally valid legislation. In reaching its conclusion, the Court of Appeal considered the general rule that provincial laws passed pursuant to a provincial head of power applied to Indians and land reserved for Indians. Contrary to the assertion of counsel for Tin Wis, the Court of Appeal found this general rule was consistent with a rejection, not adoption, of the federal enclave approach. Then the Court of Appeal considered the exceptions to this general rule, most notably, if a Province were to single out Indians or Indian reserves for special treatment, or were to affect "an integral part of primary federal jurisdiction over Indians and lands reserved for Indians". The Court of Appeal then considered that under ss. 92(2), (8) and (9) of the Constitution Act, 1867 the Province had the power to enact legislation in respect to municipal governments and legislation which imposes direct taxation. Provincial taxing legislation which did not single out or regulate Indians or reserves was therefore constitutionally valid. The Court referred to the earlier decision of Sammartino, supra, which had decided just that. The Court of Appeal considered the problem of double taxation of non-indian persons on reserve land and concluded that the primary purpose of the ISGEA was to provide a mechanism to harmonize (Part 1), or eliminate (Part 2), the possibility of double taxation. The ISGEA imposed no obligations on the Indian Bands, but only on the provincial taxing authorities. It was only at this point, after deciding that the Province had the constitutional power to tax non- Indian residents of an Indian reserve and that the ISGEA was constitutionally valid legislation dealing with municipalities and direct taxation and not singling out, or regulating, or impacting on Indian or reserve lands, that the Court of Appeal made the comment at paragraph 91 which I have quoted on page 7 of my Reasons. In my view, paragraph 91 simply emphasized the logic behind the conclusion already reached by the Court of Appeal, after its due consideration, that the provincial taxing legislation was constitutional. I find that the decision of the Court of Appeal on the third issue in Tsawwassen Indian Band, supra, was part of the ratio decidendi of that case and that I am bound by it. In re Hansard Spruce Mills Ltd. (1954), 13 W.W.R. (N.S.) 285 B.C.S.C., Wilson, J. emphasized that the Court of Appeal has the right and the duty to override its previous decisions which are found to be wrong. But the discretionary duty of a trial judge is more limited. The exceptions to stare decisis which are set out in re Hansard and which were urged upon me by counsel for Tin Wis apply to whether a trial judge should follow a judgment emanating from the same level of court, not from the Court of Appeal. The Court of Appeal has settled the questions of law which are raised on this Stated Case and I am duty bound to follow both Sammartino, supra, and Tsawwassen Indian Band, supra, unless and until the Court of Appeal in a future decision tells me these cases are no longer good law. The other interesting submissions of counsel pertaining to the operation of s. 83 of the Indian Act, paramountcy and double taxation will have to await audience from a higher court. It follows then that the Assessor from Port Alberni had the jurisdiction to assess the Property as he did, notwithstanding the passage of the Bylaw in 1995, because the Taxation Certificate was not issued until 1996, after the Minister of Indian Affairs and Northern Development had approved the Bylaw.

7 Therefore, the answer to both the questions of law posed by the Board is "yes". SC 403 Cont. AA05 Tin Wis Resort Ltd. Attorney General Application for Leave to Appeal ASSESSOR OF AREA 05 - PORT ALBERNI TIN WIS RESORT LTD. THE ATTORNEY GENERAL OF BRITISH COLUMBIA (Third Party) British Columbia Court of Appeal (V03189) Victoria Registry Before the HONOURABLE MR. JUSTICE MACFARLANE (in chambers) J. Woodward for Tin Wis Resort Ltd. K. Thiessen-Wale for Assessor of Area 05 - Port Alberni M. Frey for The Attorney General of British Columbia Vancouver, May 21, 1998 Application for Leave to Appeal - Binding Decisions of the Court of Appeal - Limited Application The company sought leave to appeal on the basis that the case raised the general issue of importance of whether the Province had the jurisdiction to tax non-indian occupiers of reserve land. The owner alleged that the Indian Self-Government Enabling Act was also ultra vires the Province. In this case, a taxation certificate had been obtained in a subsequent year under Part 2 of the Indian Self-Government Enabling Act and thus, the case had relevance only for one assessment year. HELD: Application for Leave to Appeal refused. 1. The Indian Self-Government Enabling Act is constitutional as determined by the Court of Appeal in Tsawwassen Indian Band Corporation of Delta (1997) 149 D.L.R. (4th) 672; 2. The Province has jurisdiction to tax non-indian occupiers of reserve land as decided by this Court in Sammartino Attorney General of British Columbia (1972) 1 W.W.R. 24; 3. The case is of limited importance since it deals with one taxpayer for one taxation year. Reasons for Judgment May 27, 1998

8 This is an Application for Leave to Appeal the decision of Madam Justice Satanove pronounced 10 December 1997 answering in the affirmative the following questions of law posed in a Stated Case brought by the Assessment Appeal Board pursuant to s. 63(1) of the Assessment Act, R.S.B.C. 1996, c. 20: 1. Did the Assessor of Port Alberni have the jurisdiction to assess the subject property in the circumstances herein in light of section 83 of the Indian Act and section 9.1(24) of the Constitution Act? 2. Did the Assessor of Port Alberni have the jurisdiction to assess the subject property on the 1995 assessment roll where the subject property is on a reserve where a Band has passed an assessment and taxation bylaw during the 1995 calendar year but where the Minister of Indian Affairs and Northern Development did not approve the bylaw until the 1996 Calendar Year and where no taxation certificate was issued under the Indian Self-Government Enabling Act until the 1996 Calendar Year? The chambers judge held that the questions of law had been settled by this Court in Tsawwassen Indian Band Corporation of Delta (1997), 149 D.L.R. (4th) 672 and in Sammartino A.G.B.C., [1972] 1 W.W.R. 24. The pertinent facts are that the subject property is part of an Indian reserve leased to non-indians who operate a resort on the property. Pursuant to a municipal services agreement made 1 January 1994 the Tla-o-qui-aht First Nations, for whom the lands were reserved, became obliged to pay an annual amount for services to be supplied by the District of Tofino. On 8 March 1995 the First Nations applied for a taxation certificate for 1995 under Part 2 of the Indian Self-Government Enabling Act (ISGEA). The application was rejected as being out of time. If it had been accepted the effect would have been to exempt the property from provincial taxation. On 9 August 1995 the First Nations passed a property assessment and taxation by-law. It had the effect of giving the First Nations the power to levy taxes against the occupants of the land. The by-law was approved by the Minister of Indian Affairs and Northern Development in 1996 retroactive to On 4 December 1995 the Assessor issued the assessment in question. On 25 March 1996 a taxation certificate was issued to the First Nations for 1996 under Part 2 of the ISGEA. Thus, the question before this Court involves only the 1995 tax year, and one non- Indian occupant of the subject property. Beginning in 1996 the First Nations will be entitled to levy taxes on the subject property, and the provincial assessment on the non-indian occupier will be eliminated. That is the effect of the taxation certificate issued under Part 2 of the ISGEA. The Appellant says that the legal issue raised in this appeal is whether the non-indian occupier of the subject property is liable to taxation by both the District of Tofino and by the First Nations under their by-law. Counsel says the answer to this question depends in part on whether the Province of British Columbia is entitled to levy property taxes on non-indian occupants of an Indian reserve. He submits that the chambers judge erred in holding that the issue had been settled in the Tsawwassen Indian Band appeal.

9 The Appellant submits that the cases in this Province which have upheld provincial power to tax non-indian occupiers of reserve land are inconsistent with recent decisions of the Supreme Court of Canada and should be revisited. The Appellant submits that the appeal raises a division of powers question not properly addressed in the Tsawwassen Indian Band or Sammartino appeals. I am not persuaded that recent decisions of the Supreme Court of Canada have cast doubt on cases decided in this Court. It appears clear that in Tsawwassen Indian Band this Court did address the questions which arise in this case. It also confirmed the correctness of the reasoning in Sammartino. The Appellant submits that what was said by this Court in the Tsawwassen Indian Band appeal was obiter dicta, and that Sammartino does not stand as decisive authority because there was no broad discussion of the division of powers issue in that case. In my view it was necessary in the Tsawwassen Indian Band case for this Court to address the question whether the Province has power to levy tax on non-indian occupants of lands reserved for Indians in the face of a by-law passed by an Indian Band under the authority of federal law. I am not persuaded that what was said on the issue was obiter dicta In both the Tsawwassen Indian Band appeal and in the Sammartino case this Court held that the Province had that power. No authority to the contrary has been cited to me. The concern to avoid double taxation has been addressed in British Columbia by Part 2 of the Indian Self-Government Enabling Act, the effect of which is to suspend the power of the Province to tax when the band holds a taxation certificate under Part 2 of the ISGEA. In my view Justice Satanove was correct to hold the questions raised in this matter have already been decided by this Court in the Tsawwassen Indian Band and Sammartino appeals. I should add that in Sammartino it was argued that the lands in question were part of an Indian reserve under the Indian Act, and that s. 91(24) of the Constitution provided that the Parliament of Canada should have exclusive legislative authority over "Indians, and lands reserved for the Indians". The Court rejected the proposition that taxation by municipal authorities was an unwarranted invasion of the exclusive legislative jurisdiction of parliament to legislate with respect to "lands reserved for the Indians". Thus, Sammartino addressed the constitutional question which the Appellant seeks to raise on this appeal. In my opinion the proposed appeal is not now of general importance because the issues raised by it have been decided in the recent appeal to this Court in Tsawwassen Indian Band, which affirmed Sammartino. Moreover, the Supreme Court of Canada recently denied an Application for Leave to Appeal the Tsawwassen Indian Band decision. In those circumstances it is unlikely that this Court would depart from the reasoning which led to that conclusion. The appeal would be limited in its application because it involves only one taxpayer and only the 1995 tax year. The Appellant is protected by the provisions of the ISGEA for 1996, and subsequent years if it continues to hold the requisite taxing certificate. The appeal is of importance to the parties because it involves an amount of money. However, there is little chance of the Appellant recovering the amount paid in provincial taxes given the decision in Tsawwassen Indian Band and given the well settled line of authority upon which the decision in that case is based. I would refuse Leave to Appeal.

10 SC 403 Cont AA05 Tin Wis Resort Ltd. Attorney General Review of Refusal to Grant Leave to Appeal Application ASSESSOR OF AREA 05 - PORT ALBERNI TIN WIS RESORT LTD. THE ATTORNEY GENERAL OF BRITISH COLUMBIA (Third Party) British Columbia Court of Appeal (CA V03189) Victoria Registry Before the HONOURABLE MR. JUSTICE LAMBERT, the HONOURABLE MR. JUSTICE ESSON, and the HONOURABLE MR.JUSTICE BRAIDWOOD R. Janes for Tin Wis Resort Ltd. J. Savage for Assessor of Area 05 - Port Alberni M. Frey for The Attorney General of British Columbia Victoria, October 8, 1998 Application for Leave to Appeal - Court of Appeal Review of Refusal to Grant Leave - Indian Self Government Enabling Act - Constitutionality of Taxation of Occupiers of Reserve Land The proposed applicant corporation applied to the Court to vary the decision of McFarlane, J.A., who denied leave. The application was pursuant to section 9(6) of the Court of Appeal Act [RSBC 1996] chapter 77. The applicant argued that recent decisions of the Supreme Court of Canada, including Mitchell Peguis, and Re Inland Natural Gas, had cast in doubt previous decisions of the Court of Appeal on the constitutionality of the province taxing the occupiers of Crown Land reserved for Indians. The Court of Appeal had determined the issue in three previous decisions, City of Vancouver Chow Chee (1941), 57 B.C.R. 104 (B.C.C.A.), Sammartino Attorney General of British Columbia (1971), 22 DLR (3d) 194, and Tsawwassen Indian Band Corporation of Delta, August 6, 1997 (CA 22377/VI02883). Further, the applicant argued that the decision of the Court in Tsawwassen on the constitutionality of the Indian Self Government Enabling Act [RSBC 1996] Chapter 219 was obiter dicta and thus not binding on the Court. The Band had failed to obtain a certificate under the Indian Self Government Enabling Act for the taxation year in question. A certificate was obtained for subsequent years. The amount of taxes in issue was some $94,000. HELD: Application refused.

11 The Chambers Judge did not err. The application should be refused since: 1. There is a long line of cases, including three of this Court, on point and against the applicant. In these circumstances the appeal is bound to fail; 2. The appeal did not raise an issue of general importance; and 3. While the matter is of some importance to the applicant, by reasons of the provisions of the Indian Self Government Enabling Act, the issue will not arise for the applicant again. Reasons for Judgment (Oral) October 8, 1998 ESSON, J.A.: This is an application to review and vary the decision of a Chambers judge of this court refusing Leave to Appeal. The leave is required under the provisions of s. 63 of the Assessment Act. The Chambers judge provided quite extensive reasons for his conclusion that leave should be refused. He reviewed a long line of cases which would have to be overcome and overturned in order for the appeal to succeed, three of those being decisions of this court. He did not say expressly that the appeal was bound to fail but said that there was little chance of it succeeding. Given his analysis of the cases, I think that he was saying that there was so little chance of success that the appeal was virtually bound to fail. In my view, it has not been shown that his analysis of the cases was erroneous. He also gave reasons for concluding that the appeal did not raise an issue of general importance and I see no error in that conclusion. He recognized that there was some importance to the parties because an amount of $94,000 turns on it but it is an issue which arose in the 1995 assessment year and, by reason of statutory changes, will not arise again. In my view the Chambers judge applied the correct principles and reached the correct result. I would refuse the application. LAMBERT, J.A.: In my opinion the Tsawwassen case, which was referred to by the Chambers judge and by Madam Justice Satanove, who gave the judgment from which the appeal is sought, is, arguably, not binding either on Madam Justice Satanove or on this court in relation to the point sought to be argued. It is conceded that the Chow Chee case and the Sammartino case, both decisions of this court on their face cover the point in issue, but it is argued, in light of the decisions in the Supreme Court of Canada in Mitchell Peguis and the Natural Gas Export Gas case, that they are inconsistent with those decisions and ought no longer to be followed on the point of issue in this case. In my opinion those points raise a bona fide arguable issue which, if leave were granted, would not be bound to fail. Once the view is taken that the appeal is not bound to fail, one must move on to the other questions about the importance of the point involved to the parties themselves, to other people as a precedent, and the importance of the consequences of an adverse decision to the parties.

12 The amount at stake is $94,000 and if, with that much money at stake, the argument is one that is not bound to fail, in my opinion leave should have been granted by the Chambers judge. In addition to that, I think that the point involved, namely whether the Chow Chee and Sammartino cases can continue to stand in relation to First Nations taxation matters, is a matter of public importance in the law. For all of those reasons I would grant the application to review and I would grant Leave to Appeal. BRAIDWOOD, J.A.: I agree with Mr. Justice Esson. LAMBERT, J.A.: The application is refused. I dissent. SC 403 Cont AA05 Tin Wis Resort Ltd. Attorney General Before CHIEF JUSTICE LAMER, MADAM JUSTICE MCLACHLIN and MR.JUSTICE IACOBUCCI ASSESSOR OF AREA 05 - PORT ALBERNI TIN WIS RESORT LTD. Supreme Court of Canada (27015) J.E.D. Savage for Assessor of Area 05 - Port Alberni J. Woodward for Tin Wis Resort Ltd. The application for leave to appeal is dismissed with costs. May 13, 1999