A-567-85
Native Communications Society of B.C. (Appel-
lant)
v.
Minister of National Revenue (Respondent)
INDEXED AS: NATIVE COMMUNICATIONS SOCIETY OF B.C. v.
CANADA (M.N.R.) (F.CA.)
Court of Appeal, Heald, Mahoney and Stone
JJ.—Vancouver, May 27; Ottawa, June 12, 1986.
Charities — Appeal from Minister's refusal to register
appellant as charitable organization — Purposes including
development of radio and television productions relevant to
native people of British Columbia, training native people as
communication workers and delivering information on subjects
affecting native people — Appeal allowed — Purposes within
fourth division of charity, "trusts for other purposes beneficial
to the community, not falling under any of the preceding
heads" enunciated by Lord Macnaghten in Pemsel case —
Purposes within spirit and intendment of preamble to Statute
of Elizabeth — Case law on charity always evolving — Cases,
not dealing with activities directed toward aboriginal people,
not helpful — Analogy of Australian aborigines to classes
enumerated in preamble to Statute of Elizabeth in In re
Mathew applied — Income Tax Act, S.C. 1970-71-72, c. 63,
ss. 149.1(1)(b) (as enacted by S.C. 1976-77, c. 4, s. 60), 172(3)
— Statute of Elizabeth, 43 Eliz. 1, c. 4 — Indian Act, R.S.C.
1970, c. I-6 — Federal Court Rules, C.R.C., c. 663, R. 1312.
Income tax — Exemptions — Charities — Minister refus
ing charitable organization registration — Non-profit corpo
ration — Purposes to develop broadcasting and publishing of
interest to native people and to train them as communication
workers — Whether objects beyond being exclusively chari
table — Pemsel case judicially considered — Whether chari
table purpose within fourth head of Lord Macnaghten's clas
sification — Australian charity case concerning aborigines
applied — Registration could be revoked were appellant to
engage in political activities — Minister's decision set aside —
Income Tax Act, S.C. 1970-71-72, c. 63, ss. 149.1(1)(b) (as
enacted by S.C. 1976-77, c. 4, s. 60), 172(3).
Native Peoples — Taxation — Charitable organization
registration denied society incorporated to develop communi
cations programs for native people and to train them as
communication workers — Account to be taken of special
legal position of Canadian Indians — Constitution Act, 1982
recognizing existing aboriginal and treaty rights — State
playing large role in Indians' lives under domestic legislation
— Indians set apart for particular assistance and protection —
Appellant's broadcasting and publishing having educational
aspects — Instilling pride of ancestry — Usefulness of English
charity cases limited as not related to aboriginal people —
Australian case concerning residuary estate left for benefit of
aborigines applied — Appellant's purposes beneficial to Indian
community of British Columbia — Minister to reconsider
matter on basis appellant a "charitable organization" —
Income Tax Act, S.C. 1970-71-72, c. 63, s. 149.1(1)(b) (as
enacted by S.C. 1976-77, c. 4, s. 60) — Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 35 —
Indian Act, R.S.C. 1970, c. I-6.
This is an appeal from the Minister's refusal to register the
appellant as a charitable organization. The appellant is a
non-profit corporation whose purposes include developing radio
and television productions relevant to the native people of
British Columbia, training native people as communication
workers, and delivering information on issues affecting native
people. Registration was refused on the basis that the objects of
the corporation went beyond exclusively charitable ones. The
appellant seeks to bring itself within the fourth head of charity
enunciated by Lord Macnaghten in the Pemsel case, namely
"trusts for other purposes beneficial to the community, not
falling under any of the preceding heads".
Held, the appeal should be allowed.
In order to be regarded as a charitable purpose falling under
this head, the purpose must be beneficial to the community in a
way which the law regards as charitable by coming within the
"spirit and intendment" of the preamble to the Statute of
Elizabeth. The question whether a purpose may operate for the
public benefit is to be answered by the court on the basis of the
record before it, and in the exercise of its equitable jurisdiction
in matters of charity. It must also be remembered that "the law
of charity is a moving subject". The special legal position in
Canadian society occupied by the Indian people must be con
sidered. Aboriginal rights are constitutionally recognized and
the state plays a large role in the lives of the Indian people
under the Indian Act.
The use made by the appellant of the newspaper, radio and
television will provide an element of "education", in that a
number of the Indian people will obtain some training in their
use. Also, these media will be used for communicating in
matters which touch their lives as Indians. The appellant's
newspaper is used more than as a mere vehicle for conveying
news. It attempts to foster language and culture, promoting a
measure of cohesion among the Indian people of British
Columbia that might otherwise be missing.
This appeal cannot be disposed of on the basis of how courts
have characterized purposes in the past, particularly the Eng-
lish decisions, none of which dealt with activities directed
toward aboriginal people. No Canadian case has dealt with this
situation. The case of In re Mathew is helpful as the Australian
aborigines, who are protected and assisted by the state, occupy
a similar position to Canada's Indian people. Such a class was
held to be analogous to those enumerated in the preamble to
the Statute of Elizabeth.
The appellant's purposes are beneficial to the Indian commu
nity of British Columbia within the spirit and intendment of the
preamble to the Statute of Elizabeth and, therefore, they are
good charitable purposes. Although not exceptionally precise,
the purposes are restricted to objects that are "relevant" to
native people of B.C. All of the purposes were to be carried out
on an exclusively charitable basis, and on winding up, the
corporation's assets were to be transferred to a charitable
organization.
The presence of "political" in clause 2(d)(iii) of the state
ment of purposes does not authorize the appellant to engage in
political activities, but merely authorizes the delivery of infor
mation on a number of issues, including political ones. The
newspaper is expressly stated to be politically non-aligned. The
appellant's registration as a charitable organization could be
revoked if it were to engage in political activities.
CASES JUDICIALLY CONSIDERED
APPLIED:
Commissioners of Income Tax v. Pemsel, [1891] A.C.
531 (H.L.); McGovern v. Attorney-General, [1982] Ch.
321; National Anti-Vivisection Society v. Inland Reve
nue Commissioners, [1948] A.C. 31 (H.L.); In re Stra-
kosch, decd. Temperley v. Attorney-General, [1949] Ch.
529 (C.A.); Scottish Burial Reform and Cremation
Society Ltd. v. Glasgow Corpn., [1968] A.C. 138 (H.L.);
In re Mathew, deceased; The Trustees Executors &
Agency Co. Ltd. v. Mathew, [1951] V.L.R. 226 (Aust.
S.C.).
REFERRED TO:
Guaranty Trust Company of Canada v. Minister of
National Revenue, [1967] S.C.R. 133; Guerin et al. v.
The Queen et al., [ 1984] 2 S.C.R. 335.
COUNSEL:
David W. Mossop for appellant.
Wilfrid Lefebvre, Q.C. and Bonnie F. Moon
for respondent.
SOLICITORS:
Vancouver Community Legal Assistance
Society, Vancouver, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
STONE J.: The appellant has sought registration
as a "charitable organization" under the provisions
of the Income Tax Act, R.S.C. 1952, c. 148, as
amended by S.C. 1970-71-72, c. 63 and as further
amended. Its application for registration was
refused by the Minister of National Revenue and
it now brings this appeal from that decision pursu
ant to subsection 172(3) of the Act.
The appellant is a non-profit corporation incor
porated pursuant to the laws of British Columbia
in 1983. Its purposes as amended appear in clause
2 of its Certificate of Incorporation reading as
follows:
2. The purposes of the Society are:
(a) to organize and develop comprehensive non-profit com
munications programs, namely radio and television produc
tions that are of relevance to the native people of British
Columbia;
(b) to train native people as communication workers; and to
publish a non-profit newspaper on subjects relevant to the
native people of British Columbia;
(c) to procure and deliver information on subjects facing
native people of British Columbia;
(d) as subsidiary to the above dominant purposes and as a
means to carry out the said purposes
(i) to promote by communications, the image of native
people in the national scene and to create incentives
for development of mutual understanding,
(ii) to provide suitable quarters for the purposes of the
society,
(iii) to procure and deliver information on subjects relat
ing to the social, educational, political and economic
issues facing native people of British Columbia,
(iv) to co-operate with other persons,
(v) to communicate with and to broaden social inter
actions among other native groups from various parts
of the world;
(e) to do all of the above on an objective basis;
(f) to do all such other things which are conducive to the
attainment of the purposes stated above.
They are followed immediately by clauses 3 and 4
which read:
3. In the event of winding up or dissolution of the Society funds
and assets of the Society remaining after the satisfaction of its
debts and liabilities, shall be given or transferred to such
organization or organizations concerned with the social prob
lems or organizations promoting the same purposes of this
Society, as may be determined by the members of the Society
at the time of winding up or dissolution, and if effect cannot be
given to the aforesaid provisions, then such funds shall be given
or transferred to some other organizations, provided however
that such organization referred in this paragraph shall be a
charitable organization, a charitable corporation, or a chari
table trust recognized by the Department of National Revenue
of Canada as being qualified as such under the provisions of the
Income Tax Act of Canada from time to time in effect.
4. The above purposes of the Society shall be carried out
without purpose of gain for its members and any profits or
other accretions to the Society shall be used for promoting its
purposes and all of the above purposes shall be carried on on an
exclusively charitable basis.
Correspondence ensued between the appellant
and the Charitable and Non-Profit Organizations
Section of the Department of National Revenue,
Taxation. In November, 1983 registration was
refused on the basis that the objects of the appel
lant went beyond being exclusively charitable. The
appellant was invited to submit a further applica
tion to be accompanied by evidence "that the
objects of the corporation have been amended in
an appropriate manner." A fresh application was
in fact submitted in December, 1984 together with
an amended Certificate of Incorporation from
which I have already quoted. This fresh applica
tion was accompanied by a statement concerning
the activities and proposed activities of the appel
lant. It will assist if I set out here the contents of
that document in their entirety:
WHAT WE DO
A. Training
THE NCS IS COMMITTED to training native people in communi
cations technology. Training programs have been developed in
the Print Journalism field and 1984 will see the implementation
of a Training Program in broadcast communications, including
radio and television.
SPECIALIZED MEDIA WORKSHOPS are also an important part of
developing skills in the broadcast industry. Native people
throughout British Columbia will continue to have the opportu
nity to be introduced to new and existing technologies useful in
urban and remote communities.
B. Newspaper
IN SEPTEMBER 1983, the Society began publishing a monthly
newspaper called "Kahtou". Kahtou is knowledge. In Chinook,
this means "why, what, and how". To this, the editor adds
"who, where and when". In addition, to our own journalistic
staff, we welcome stories, news articles and information from
contributors around the province. Circulation has now reached
7,500 and the paper is now published biweekly. Distributed to
native organizations, Band Councils, individuals and many
non-native organizations, it is an effort to keep everyone up to
date about events and issues of interest to native people in
British Columbia.
C. Northern Native Broadcasting Access Program (NNBAP)
THE NCS IS ADDRESSING the special concerns of native people
in northern British Columbia. Preliminary research and plan
ning is underway for the purpose of establishing a radio and
television production centre controlled by native people in the
north.
D. Rural Communications Services
IMPROVING COMMUNICATIONS CANNOT be limited to a broad
cast or print information system. Many B.C. communities still
have limited or inadequate telephone and telecommunications
systems. The NCS is working to ensure that even the most
isolated communities have access to communications systems
that most British Columbian take for granted. Trail communi
cations for hunters, trappers, and fishermen is another area
that the NCS is working to improve.
As a subsidiary activity to the above and in order to carry out
the above:
(E) Liaison
LIAISON WITH various levels of government, the private sector,
and crown corporations, all involved in communications, is an
aspect of our work in promoting adequate services for native
people.
(F) Media
MEDIA REPRESENTATION of native people is often negative.
Another activity of NCS is to encourage realistic portrayals of
native people in both urban and rural settings.
A copy of the April 24, 1984 number of the
Kahtou newspaper referred to in the last-men
tioned document accompanied the fresh applica
tion. At page 2 it asserts that it is "politically
non-aligned" and at page 9 that it "is distributed
free of charge to aboriginal people throughout
B.C." I will have something more to say about this
publication presently. Notwithstanding the amend
ed objects and the additional material submitted,
the fresh application was denied by letter dated
April 4, 1985. At the request of the appellant the
decision was reconsidered but was confirmed by a
further letter dated June 10, 1985. These letters
deal at some length with some of the language
contained in the appellant's "purposes" and with a
number of judicial decisions as showing that those
purposes, in the opinion of the Minister, did not
qualify as "charitable". I wish here to set forth
only two passages from these fairly detailed letters.
In the first of them the following reasons were
given for refusing the application:
It is a basic tenet of charity law that, in order for a purpose to
be regarded as charitable, it must not be so vaguely or broadly
stated as to permit the pursuit of non-charitable objects or
activities. What is more, it must be clear from the organiza
tion's objectives that all of its resources must be and will be
devoted to charitable activities as is required by the provisions
of the Income Tax Act. The objects must not provide for
activities which are not charitable nor should they be so broad
that, although not specifically non-charitable, they would
empower the corporation to engage in non-charitable activities.
And in the letter of June 10 the following is stated:
We would, however, like to provide a more detailed explanation
of this decision. As you are aware, an applicant in order to
qualify for registration as a charitable organization must devote
all its resources to charitable activities carried on by the
organization itself. The Act does not define the term "chari-
table" and it is therefore necessary to refer to the principles of
common law governing charity.
Charitable purposes and activities have been categorized by the
courts as the relief of poverty, the advancement of religion, the
advancement of education and other purposes and activities
beneficial to the community as a whole in a way the law
regards as charitable. These, then, are the basic concepts to
which an organization's purposes and activities must relate in
order to be considered charitable.
You have stated that the dominant purpose of the organization
is charitable and that you have submitted evidence from other
jurisdictions to support this view. In brief, the primary purpose
of the Society is to organize and develop non-profit communi
cations programs of relevance to the native people of British
Columbia through the mediums of radio, television and news
paper production. A copy of one of the newspapers published
was enclosed with the applicant's submission. We have
reviewed the articles published in the newspaper and note that
it is indeed a vehicle to report community news of relevance to
native people. In this respect, we would advise that the
advancement of education, in common law, has been interpret
ed to mean the advancement of education for its own sake in
that the mind may be trained as opposed to the mere provision
of information which informs rather than teaches.
The "provisions of the Income Tax Act" referred
to in the letter of April 10, 1985 would appear to
be to those found in paragraph 149.1(1)(b) [as
enacted by S.C. 1976-77, c. 4, s. 60] of that statute
which defines the term "charitable organization"
as follows:
149.1 (1) In this section,
(b) "charitable organization" means an organization, wheth
er or not incorporated, all the resources of which are devoted
to charitable activities carried on by the organization itself
and no part of the income of which is payable to, or is
otherwise available for, the personal benefit of any proprie
tor, member, shareholder, trustee or settlor thereof;
The starting point for a discussion of what may
or may not constitute a good charitable purpose is
the decision of the House of Lords in the case of
Commissioners of Income Tax v. Pemsel, [1891]
A.C. 531 and, in particular, the legal meaning of
the word "charity" given by Lord Macnaghten, at
page 583 of the report:
How far then, it may be asked, does the popular meaning of the
word "charity" correspond with its legal meaning? "Charity"
in its legal sense comprises four principal divisions: trusts for
the relief of poverty; trusts for the advancement of education;
trusts for the advancement of religion; and trusts for other
purposes beneficial to the community, not falling under any of
the preceding heads.
That definition has been applied time after time in
this country and has been approved by the
Supreme Court of Canada (see Guaranty Trust
Company of Canada v. Minister of National
Revenue, [1967] S.C.R. 133, at page 141). A
purpose, to be a good "charitable" one, must
possess a charitable nature within "the spirit and
intendment" of the preamble to the Statute of
Elizabeth entitled "An Acte to redresse the Mis -
employment of Landes Goodes and Stockes of
Money heretofore given to Charitable Uses". That
statute was enacted in England in 1601 during the
reign of Elizabeth I as 43 Eliz. I, c. 4. Nowadays,
it is generally known to this branch of the law
simply as the "Statute of Elizabeth". It is unneces
sary to recite the whole of that preamble and
perhaps also undesirable to attempt its reproduc
tion in the original form and style. I prefer instead
to do as Slade J. did in McGovern v. Attorney-
General, [1982] Ch. 321, at page 332 where he put
the statute's list of charitable objects in modern
English as follows:
... the relief of aged, impotent, and poor people ... mainte
nance of sick and maimed soldiers and mariners, schools of
learning, free schools, and scholars in universities ... repair of
bridges, ports, havens, causeways, churches, seabanks and high-
ways ... education and preferment of orphans ... relief, stock
or maintenance for houses of correction ... marriages of poor
maids ... supportation, aid and help of young tradesmen,
handicraftsmen and persons decayed ... relief or redemption of
prisoners or captives, and for aid or ease of any poor inhabi
tants concerning payments of fifteens, setting out of soldiers
and other taxes.
The appellant seeks to bring its case within
three of the four heads found in Lord Macnaght-
en's classification, namely, "relief of poverty",
"advancement of education" and "trusts for other
purposes beneficial to the community, not falling
under any of the preceding heads." I would find
some difficulty in concluding that the appellant's
purposes fall under the first of these heads. The
record before us is not such as to support such a
claim even though it is notorious that the Indian
people, generally speaking, are not as advantaged
as many of their fellow citizens. The same general
problem presents itself with regard to the second
head. I say this notwithstanding that one of the
appellant's express purposes is "to train native
people as communication workers" and that an
incidental purpose for publishing the newspaper
and for the production of radio and television
programs is or will be to train Indian people in the
use of those means of communication. In view of
the conclusion I am about to reach on the applica
bility of the fourth head it will not be necessary to
express a final view on the point. It is this fourth
head that was presented first in order of argument
and with the greatest detail and emphasis.
A review of decided cases suggests that at least
the following propositions may be stated as neces
sary preliminaries to a determination whether a
particular purpose can be regarded as a charitable
one falling under the fourth head found in Lord
Macnaghten's classification:
(a) the purpose must be beneficial to the commu
nity in a way which the law regards as charitable
by coming within the "spirit and intendment" of
the preamble to the Statute of Elizabeth if not
within its letter. (National Anti-Vivisection Socie
ty v. Inland Revenue Commissioners, [1948] A.C.
31 (H.L.), at pages 63-64; In re Strakosch, decd.
Temperley v. Attorney-General, [1949] Ch. 529
(C.A.), at pages 537-538), and
(b) whether a purpose would or may operate for
the public benefit is to be answered by the court on
the basis of the record before it and in exercise of
its equitable jurisdiction in matters of charity
(National Anti-Vivisection Society v. Inland
Revenue Commissioners (supra), at pages 44-45,
63).
Can it be said that the purposes of the appellant
fall within "the spirit and intendment" of the
preamble to the Statute of Elizabeth and, there
fore, within the fourth head of Lord Macnaghten's
definition of the word "charity"? In answering this
question we must bear in mind what Lord Greene,
M.R. had to say in In re Strakosch (supra), at
page 537:
In Williams' Trustees v. Inland Revenue Commissioners
([1947] A.C. 447), the House of Lords has laid down very
clearly that in order to come within Lord Macnaghten's fourth
class, the gift must be not only for the benefit of the community
but beneficial in a way which the law regards as charitable. In
order to satisfy the latter it must be within the "spirit and
intendment" of the preamble to the Statute of Elizabeth. That
preamble set out what were then regarded as purposes which
should be treated as charitable in law. It is obvious that as time
passed and conditions changed common opinion as to what was
properly covered by the word charitable also changed. This has
been recognized by the courts as the most cursory examination
of the cases shows. [Emphasis added.]
More recently, in Scottish Burial Reform and
Cremation Society Ltd. v. Glasgow Corpn., [1968]
A.C. 138 (H.L.), Lord Wilberforce reminds us
that "the law of charity is a moving subject". I
refer more fully to his opinion on the point as
expressed at page 154 of the report:
On this subject, the law of England, though no doubt not
very satisfactory and in need of rationalisation, is tolerably
clear. The purposes in question, to be charitable, must be shown
to be for the benefit of the public, or the community, in a sense
or manner within the intendment of the preamble to the statute
43 Eliz. 1, c. 4. The latter requirement does not mean quite
what it says; for it is now accepted that what must be regarded
is not the wording of the preamble itself, but the effect of
decisions given by the courts as to its scope, decisions which
have endeavoured to keep the law as to charities moving
according as new social needs arise or old ones become obsolete
or satisfied. Lord Macnaghten's grouping of the heads of
recognised charity in Pemsel's case ([1891] A.C. 531, 583) is
one that has proved to be of value and there are many problems
which it solves. But three things may be said about it, which its
author would surely not have denied: first that, since it is a
classification of convenience, there may well be purposes which
do not fit neatly into one or other of the headings; secondly,
that the words used must not be given the force of a statute to
be construed; and thirdly, that the law of charity is a moving
subject which may well have evolved even since 1891. [Empha-
sis added.]
Nor should we ignore the advice of Lord Upjohn
as expressed in the same case. In deciding whether
the charity there in question fell within the spirit
and intendment of the preamble to the Statute of
Elizabeth, he said (at page 150):
This so-called fourth class is incapable of further definition and
can to-day hardly be regarded as more than a portmanteau to
receive those objects which enlightened opinion would regard as
qualifying for consideration under the second heading.
I do not think the case can be decided without
taking account of the special legal position in
Canadian society occupied by the Indian people. A
measure of protection for "existing aboriginal and
treaty rights of the aboriginal people of Canada" is
recognized in section 35 of the Constitution Act,
1982 [Schedule B, Canada Act 1982, 1982 c. 11
(U.K.)]. And, as we shall see, the state plays a
large role in the lives of the Indian people under
domestic legislation.
The people toward whom the purposes of the
appellant are directed are composed of members of
Indian bands widely scattered throughout the
Province of British Columbia. I have already noted
that the use of the newspaper, radio and television
has or will provide an element of "education" in
that a number of the Indian people have or will
obtain some degree of training in their use. In
addition radio, television and the newspaper is or
will be used for communicating in matters which
touch their lives as Indians. Counsel for the
respondent contends that the newspaper contains
only "news" which cannot be seen as "education-
al". I have difficulty in following this argument for
it seems to me that in the minds of its readers the
newspaper could well be regarded as educational
as well as informative. I need not decide the point.
It is apparent that the newspaper is used more
than as a mere vehicle for conveying news. An
examination of its pages shows that through them
its Indian readers are made aware of activities of a
cultural nature going on elsewhere in the wider
Indian community and of attempts being made to
foster language and culture as, for example,
through greater use of native languages and the
revival of ancient crafts, music and story telling.
All of this may well instill a degree of pride of
ancestry in the readers of Kahtou, deepen an
appreciation of Indian culture and language and
thereby promote a measure of cohesion among the
Indian people of British Columbia that might
otherwise be missing. The record indicates that
radio and television programs are being designed
along the same general lines.
In my judgment it would be a mistake to dispose
of this appeal on the basis of how this purpose or
that may or may not have been seen by the courts
in the decided cases as being charitable or not.
This is especially so of the English decisions relied
upon, none of which are concerned with activities
directed toward aboriginal people. If, as Lord Wil-
berforce says (and I agree), "the law of charity is
a moving subject", then our duty must be to see
whether in the circumstances disclosed by the
record before us the appellant's purposes at this
point in time fall within Lord Macnaghten's fourth
head of charities in Pemsel's case. We do not have
the guidance of a prior decision of a court of this
country dealing with a case quite like that of the
present one. On the other hand I am much assisted
by an Australian decision, In re Mathew,
deceased; The Trustees Executors & Agency Co.
Ltd. v. Mathew, [1951] V.L.R. 226 (Aust. S.C.).
It was there contended that a testamentary direc
tion that the residuary estate be used by a named
person "in his discretion for the benefit of the
Australian aborigines" was invalid. The argument
on the other side was that it fell within the fourth
head mentioned by Lord Macnaghten and the
Supreme Court of Victoria agreed. I think the
following passage from the judgment of O'Bryan
J. (at page 232) is particularly helpful:
Australian aborigines are notoriously in this community a class
which, generally speaking, is in need of protection and assist
ance. This has been recognised in various ways by the Legisla
ture. It is necessary only to refer to our Victorian Aborigines
Act of 1928. By that statute, a Board is set up for the
protection of Australian aborigines, and extensive powers are
given to the Governor in Council to make regulations for their
protection and assistance, including regulations for the distribu
tion and expenditure of moneys granted by Parliament for their
benefit (sec. 6(IV)) and for the care and education of their
children. Such a class, in my opinion, is analogous to those
mentioned in the statute as "the aged, impotent and poor
people; support aid and help of people decayed; education and
preferment of orphans." I must apply the words of this statute
to present-day Australian conditions. The words are to be
applied, not ejusdem generis, but by way of analogy. In my
opinion, so applying them, Australian aborigines comprise a
class of persons analogous to those which the statutory
preamble enumerates. That being so, the gift is not vitiated by
its general provision that the fund is "to be used by him at his
discretion for the benefit of .... "
Here in Canada, as well, the state is authorized
to play and does play a somewhat similar role in
protecting and assisting the Indian people. In fact
it has been held by the Supreme Court of Canada
that the Crown is under a fiduciary duty in dealing
with lands held for the benefit of Indians (Guerin
et al. v. The Queen et al., [1984] 2 S.C.R. 335). A
cursory examination of the Indian Act, R.S.C.
1970, c. I-6 as amended reveals the extent of state
involvement. I would note, for example, that it
may have a say in: establishing of bands and the
occupancy of reserve lands; the registration of
Indian people; the holding, management and ex
penditure of Indian moneys; the compulsory taking
or using, or the surrender of lands of a reserve;
descent of property, wills and the distribution of
property on intestacy; mental incompetency and
guardianship; trading with the Indians; enfran
chisement; schools. The statute is under the
administration of the Minister of Indian Affairs
and Northern Development who is also the super
intendent general of Indian Affairs. It provides for
a "superintendent" which is defined to include a
commissioner, regional supervisor, Indian superin
tendent, assistant Indian superintendent, etc. as
well as the superintendent for a particular band or
reserve. From this elaborate set of provisions it
may be seen that the state has assumed a special
responsibility for the welfare of the Indian people.
Unlike the vast majority of their fellow citizens
they are rather a people set apart for particular
assistance and protection in many aspects of their
lives. That circumstance, in my view, cannot be
safely disregarded in deciding whether the pur
poses of the appellant fall inside or outside the
fourth category of charities as classified by Lord
Macnaghten in Pemsel's case.
I have concluded that the appellant's purposes
are beneficial to the Indian community of British
Columbia within the spirit and intendment of the
preamble to the Statute of Elizabeth and, there
fore, they are good charitable purposes. It is true
that they are not drawn with exceptional precision
but l it is of the nature of corporate objects clauses
to be rather broadly phrased. Nevertheless, they
are restricted to matters that are "of relevance" or
are "relevant" or that are "facing native people of
B.C.". Though there is some broadness of lan
guage in clause 2(d), it is expressly made "subsidi-
ary to the above dominant purposes and as a
means to carry out the said purposes." The incor
porating document also requires that "all of the
above purposes shall be carried on on an exclusive
ly charitable basis". Not without some significance
too (though not in itself decisive) is that in the
event of the winding up or dissolution of the
appellant its remaining assets are to be given or
transferred over to "a charitable organization, a
charitable corporation, or a charitable trust" con
cerned with the social problems with which it is
concerned or that is promoting the same purposes
and is recognized by the Department of National
Revenue as being qualified as a charitable organi
zation, charitable corporation or charitable trust
under the Act.
Before leaving the matter I should comment on
one of the reservations of the respondent to treat
ing the appellant's purposes as charitable. It con
cerns the presence of the word "political" in clause
2(d)(iii) of the statement of purposes. I do not
share the respondent's concern. The record before
us does not contain even the slightest hint that the
appellant engages or intends to engage in political
activities. Clause 2(d)(iii) merely authorizes the
procurement and delivery of information on a
number of issues including political issues facing
the native people of British Columbia. It does not
authorize the appellant to engage in political
activities as such. The appellant's newspaper is
expressly stated to be "politically non-aligned" and
there is no evidence on the record showing that the
contrary is so. If the appellant were to engage in
political activities such as would disqualify it from
continued registration as a "charitable organiza-
tion", the respondent could revoke its registration
in the manner provided by the Act.
I would allow this appeal, set aside the decision
of the Minister of National Revenue herein and
refer the matter back to the Minister for reconsid
eration on the basis that the appellant is a "chari-
table organization" within the meaning of para
graph 149.1(1) (b) of the Income Tax Act. No
special reasons having been shown pursuant to
Rule 1312 [Federal Court Rules, C.R.C., c. 663],
I would not allow costs.
HEALD J.: I concur.
MAHONEY J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.