A day after the hearings of Baptiste v. R., the Tax Court of Canada heard three more appeals in Nahwegahbow v. R, dealing with similar facts – but mainly that their employer was Native Leasing Services (NLS). Since the court found against the interests of the aboriginal appellant in Baptiste, the writing was on the wall for Mrs. Nahwegahbow and her fellow appellants.
All three appellants lived in Toronto, worked in Toronto and provided services principally to off-reserve Aboriginal or Native people. I am of the view that, apart from the location of the employer, NLS, the connecting factors, i.e. the location of the work and the nature and circumstances of the employment, including any benefit to a reserve, point to an off-reserve location for the appellants’ employment income. The appellants’ work was not tied to a specific reserve and there is no basis for concluding that the taxation of the employment income they received from NLS would result in the erosion of their entitlement to property held as Indians qua Indians on a reserve (see Roe, supra, and Robinson, supra). As indicated in Desnomie v. The Queen, 2000 D.T.C. 6250 (FCA), at paragraph 10, the question of the erosion of the entitlement of an Indian qua Indian on a reserve has to be determined by reference to the person whose income is involved and not by reference to the different reserves that are benefiting directly or indirectly from the services of this person.
30 I therefore conclude that the employment income of all the appellants is not exempt from taxation pursuant to paragraph 81(1)(a) of the ITA and paragraph 87(1) (b) of the IA. All the appeals are dismissed.
Turtle Talk 