Des Roches v. Wasauksing First Nation

The Federal Court of Canada released a decision on November 25, 2014 in Des Roches v. Wasauksing First Nation, dismissing an application for judicial review of the Wasauksing First Nation’s decision to allocate tax exempt cigarettes to retailers allegedly not on reserve land. The applicant asked the Court for a declaration that Mystic Loon, a First Nation retailer, was not situated on reserve land and therefore it was unlawful for Wasauksing First Nation to allocate tax exempt cigarettes to that retailer.

At issue was whether the Court had the jurisdiction to contemplate this application for judicial review. The applicant argued Wasauksing First Nation made its decision to provide tax-exempt tobacco to Mystic Loon pursuant to its powers under the Indian Act and as a result the decision was within the Federal Court’s jurisdiction. The Court disagreed and noted that Wasauksing First Nation only decided what was or was not reserve land for the sole purpose of allocating tax-exempt cigarettes and, in doing so, the First Nation acted within its powers conferred by Ontario’s Tobacco Tax Act and the Tobacco Retailer Agreement. Having not been empowered by or under federal legislation, the Court determined that Wasauksing First Nation was not subject to the Federal Court’s jurisdiction.

The Court commented further that, even if it did have the authority to consider this application, it would be dismissed pursuant to the Federal Courts Act because the application was not made within 30 days from the date of the decision in question; the applicant did not seek to have an extension; and he did not establish grounds upon which the Court’s discretion to grant an extension would be appropriate.