http://decision.tcc-cci.gc.ca/site/tcc-cci/decisions/en/item/63090/index.do 
Sackaney et al. v. The Queen[1] (October 26, 2012) involved a motion by the Crown for an order striking each appellants’ Notice of Appeal and Notice of Constitutional Question.
In essence the appellants claimed that they were entitled to a blanket exemption from all forms of taxation:
[9] The appellants’ pleadings are somewhat rambling and do not contain a concise statement of the issues they are raising. However the essence of their arguments is that:
(i) they have an inherent aboriginal and treaty right to immunity from taxation which is protected by subsection 35(1) of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] and section 25 of the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982).
(ii) the application of paragraph 87(1)(b) of the Indian Act violates section 35.1 of the Constitution Act, 1982 because no constitutional conference was held prior to the “implementation of the Income Tax Act in 1985”. Furthermore, Canada has failed to carry out its fiduciary responsibility to aboriginals and its duty to consult with aboriginals and its obligation pursuant to to the United Nations Declaration on the Rights of Indigenous Peoples GA Res. 61/295 (Annex), UN GAOR, 61st Sess., Supp. No. 49, Vol. III, UN Doc. A/61/49 (2008) 15 by not calling a constitutional conference prior to the enactment and enforcement of paragraph 87(1)(b).
(iii) paragraph 87(1)(b) of the Indian Act, R.S.C., 1985, c. I-5 violates the Appellants’ equality rights guaranteed by section 15(1) of the Charter.
(iv) taxation of their off-reserve income violates their mobility rights guaranteed by section 6 of the Charter.
(v) the Court does not have jurisdiction to hear this matter and lacks judicial procedures required to recognize the inherent rights of aboriginals.
The court cited the test for striking pleadings:
[3] The test for striking pleadings was set out by the Supreme Court of Canada in Hunt v Carey Canada Inc., [1990] 2 SCR 959 in the following terms:
33 … Thus, the test in Canada … is …: assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action?
The court rejected the appellants’ claim to a blanket exemption from taxation:
[12] The appellants’ position amounts to a denial of the sovereignty of the Crown over aboriginal people in relation to taxation. The contrary view, that aboriginals are subject to the provisions of the Income Tax Act, flows from the fact of Canadian sovereignty over aboriginal peoples living in Canada. In Nowegijick v The Queen, [1983] 1 SCR 29, Dickson J. wrote at paragraph 24 that:
Indians are citizens and, in affairs of life not governed by treaties or the Indian Act, they are subject to all of the responsibilities, including payment of taxes, of other Canadian citizens.
…
[21] Even if the appellant had pled facts to show that tax immunity for aboriginals existed at some point prior to 1982, it is apparent that the those rights would have been extinguished when income tax was imposed in 1917 on “every person residing or ordinarily resident in Canada”: Income War Tax Act, 1917, S.C. 1917, c.28 subsection 4(1). In Mitchell, McLachlin C.J. explained that prior to 1982, aboriginal rights could be unilaterally abrogated by the Crown:
10… aboriginal interests and customary laws were presumed to survive the assertion of sovereignty, and were absorbed into the common law as rights, unless (1) they were incompatible with the Crown’s assertion of sovereignty, (2) they were surrendered voluntarily via the treaty process, or (3) the government extinguished them
[22] Finally, the appellant has not alleged any facts that would support a treaty right, as distinct from an inherent aboriginal right, to immunity from taxation.
Similarly the court rejected the appellants’ arguments based on an alleged failure to consult:
[24] Section 35.1 of the Constitution Act, 1982 sets out the commitment of the government of Canada to convene a constitutional conference with aboriginal representatives prior to amending Class 24 of section 91 of the Constitution Act, 1867, section 25 of the Charter or to Part II of the Constitution Act, 1982.
[25] Section 35.1 reads as follows:
35.1. The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the “Constitution Act, 1867”, to section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and
(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.
[26] Part 24 of section 91 of the Constitution Act, 1867 reads as follows:
It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
…
24. Indians, and Lands reserved for the Indians.
The appellants had failed to establish any nexus between section 35.1 of the Constitution Act, 1982 and their liability for taxation:
[33] I agree with the conclusions of Lax J. and find that they are applicable as well in this case. Neither the enactment nor the application of paragraph 87(1)(b) relate to land or treaty claims that are under negotiation, or to any discretionary control exercised by the Crown. I have already held, as well, that the appellant has not pled sufficient facts to support the existence of an inherent aboriginal or treaty right to tax immunity and the case law is clear that there is no general tax immunity for aboriginals in Canada. Therefore, in my view, the appellants’ claims concerning fiduciary duty and a duty to consult cannot succeed.
Similarly their claim based on the United Nations Declaration on the Rights of Indigenous Peoples was without foundation:
[35] The UNDRIP is an international instrument regarding the rights and treatment of indigenous peoples, adopted in 2007 by the United Nations. As pointed out by counsel for the respondent, it is not legally binding under international law and, although endorsed by Canada in 2010, it has not been ratified by Parliament. It does not give rise to any substantive rights in Canada. International instruments such as the UNDRIP may help inform the contextual approach to statutory interpretation, but no issue of statute interpretation has been raised in this case. The appellants argument relating to the UNDRIP also has no chance of success.
The claim based on mobility rights was rejected:
[42] Nor can I see any basis for holding that paragraph 87(1)(b) of the Indian Act restricts or interferes with a right to work in any province. That provision exempts property (including income) of an Indian from tax if that property is situated on a reserve. It is one of a number of provisions in the Indian Act designed to protect Indians in various ways from the erosion of their economic base, namely reserve lands and personal property there belonging to an Indian: Mitchell v Peguis Indian Band, [1990] 2 SCR 85. It does not deal with an Indian’s right to work or to earn income.
As was the claim based on section 15 of the Charter:
[46] The respondent’s counsel points out that a similar argument was made and rejected in Horn v Canada, [2007] FCJ No. 1356. The appeal of that decision was dismissed and leave to appeal to the Supreme Court of Canada was denied.
[47] In Horn, the appellant claimed that the application of paragraph 87(1)(b) of the Indian Act in accordance with guidelines prepared by the CRA amounted to discrimination and breached her rights under section 15(1) of the Charter. Phelan J. of the Federal Court found, however, that distinction drawn by paragraph 87(1)(b) of the Indian Act and the CRA guidelines is between property located on a reserve and property located elsewhere and that this was not an enumerated or analogous ground for the purpose of section 15(1). He said:
136 There is nothing immutable like race, religion or a characteristic which can only be changed at an unacceptable cost to personal liberty, involved in the distinctions as to situs of property. The distinction as to the situs of personal property on a reserve is not therefore an analogous ground.
139 None of the distinctions in the 1994 Guidelines are based on personal traits or circumstances or impact on the Plaintiffs’ human dignity. The location of one’s personal property is not per se the type of matter which could reasonably be said to impact human dignity. There is no evidence that either Horn or Williams have lessened, or been viewed as having lessened, their status as Indian qua Indian, nor viewed as less integral to the life of their reserve by virtue of not qualifying for the tax exemption.
[48] In my view, the appellants’ section 15(1) Charter argument cannot be distinguished from the position taken by the appellant in Horn. Since that position was rejected at all levels, I see no chance that the argument in this case could succeed.
The argument that the Tax Court was without jurisdiction was also rejected:
[50] To the extent that the appellants are challenging the Court’s jurisdiction over aboriginals, this raises the same sovereignty issue that I have dealt with earlier in these reasons, and as I have already concluded, this argument cannot succeed.
Finally the court dealt with what in fairness would have to be described as a grab bag of issues raised by the appellants:
[52] The appellants submit that allowing the motion to strike would be an abuse of authority because it would deny them the right to present their arguments in relation to their aboriginal rights. They also argue that if the motion is granted they would suffer great hardship.
[53] It is true that striking the appellants’ Notice of Appeal and Notice of Constitutional Question will prevent them from making their arguments relating to alleged violations of their rights and may result in hardship to them. However, if their arguments have no chance of success, the Court is bound to strike them in order to maintain the integrity of the Court’s process.
[54] The appellants also argued that the motion to strike amounts to prosecutorial discrimination. It is not entirely clear to me what the appellants meant by this. The appellants are not being prosecuted in these proceedings. They have filed an appeal from reassessments of income tax and the respondent is defending those reassessments. Furthermore, I find nothing in any of the material before me to suggest that in bringing this motion, the respondent’s counsel is discriminating against the appellants.
[55] The appellants also submit that the presentation of their case has been hampered by their inability to obtain proper legal advice. This is, of course, regrettable but it can have no bearing on the outcome of this application. The Supreme Court of Canada has held that in Canada there is no general constitutional right to counsel: British Columbia (Attorney General) v Christie, [2007] SCC 21.
Thus it came as no surprise that the Crown’s motion was successful and the Notices of Appeal and Notices of Constitutional Question were struck.
[1] 2013 TCC 303.