The Canada Revenue Agency’s Implementation of First Nation-Canada Tax Administration Agreements: An Analysis of First Nation Sovereignty and Sui Generis Legal Status

Abstract

This thesis is anchored in a de-colonization theoretical and historical framework. It poses a narrow question in order to address a broader concern about First Nation sovereignty: Does the Canada Revenue Agency’s “same treatment” policy and practice towards First Nation tax filers and social benefit claimants comply with the Supreme Court of Canada’s sui generis common law principle, section 35 of the Canadian Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples? This question is used as an indicator of First Nation sovereignty. A conceptual framing of sovereignty based on territorial demarcation, self-determination, and self-government is set out. Three permutations, referred to as models, of the 1648 Westphalian modern state framework are used as sovereignty reference points. A distinction is made between “internal” and “external” sovereignty. This narration leads to an observation that Modern Treaty First Nations, at best, enjoy a model-one-plus sovereignty status (similar to a municipal government). To ground the theoretical discussion, field research was undertaken with the Nisga’a First Nation of northwestern British Columbia, a Modern Treaty First Nation; the result was inconclusive. A summary observation is that First Nations must approach surplus sharing and wealth redistribution as a fluid Indigenous-values-infused policy component of their broader sovereignty vision. To bring increased rigor to their formulations, they need statistically reliable and valid assessments of the fiscal framework that underpins current First Nation-Crown relations and, at a narrow level, the impact of the Canada Revenue Agency on their sovereignty and the rights of their citizens.