by Elizabeth Patterson, Courtesy of the Cape Breton Post

ESKASONI – It’s taken nearly five years but fishers from the Eskasoni First Nation have just learned that their income earned from the communal fishery will now be considered tax exempt.

The decision from the Canada Revenue Agency is a reversal of a prior policy that saw the fishers being taxed on the income they earned from the commercial communal fishery that had been established following the Marshall case.

It’s an important victory, says Eskasoni legal counsel Max Faille, signaling a move forward in the recognition of Aboriginal rights, and specifically commercial fishing rights.

“The major change we’ve seen in the law over the past few years is that reserve-based businesses, or income derived from reserve-based businesses, will generally be considered to be tax-exempt even if the activity that gives rise to the income, in this case fishing, takes place off reserve,” Faille said Saturday from Ottawa.

“What the courts are really saying is that First Nations can embark in a successful business based on-reserve but they can still do business outside the boundaries of the reserve – do business with people off-reserve like other people can – and that it still deserves protections under the Indian Act.”

Eskasoni Chief Leroy Denny said that while there were still many questions and concerns to be addressed over the issue, he is pleased with the decision.

“I feel happy especially for the fishermen and their families for trusting our legal team, for their patience, since this took more than five years,” Denny said Saturday night.

“We’re happy our fishermen are being reimbursed – we’re not sure who and how it will be done – we’re just waiting for the rest of the information.”

While the decision is an individual one, Faille believes it could have been influenced by two court cases from Manitoba that found commercial fisheries to be tax exempt, and that the Eskasoni decision could have further consequences down the road.

“How far and wide the decision applies, I guess that will be for (Canada Revenue Agency) to determine,” Faille said.

But for now, he said his clients are pleased with the turn of events.

“They’re obviously very relieved and very happy with this decision. They’ve been waiting patiently for this outcome and obviously it has had major implications for people who are hard working and who reasonably relied on the tax exemption that existed in the Indian Act to claim their income as tax exempt only to have CRA come and say no you have to pay taxes in relation to your entire income.

“Plus there were significant clawbacks in other programs and so forth so it created a position of real hardship for many families. To CRA’s credit, we didn’t have to go to court on this – it did take a long time, but at least we didn’t have to fight it out in court.”

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