The Hamilton Spectator

Six Nations tobacco firm suing Ottawa for $3 billion

Grand River Enterprise­s alleges breach of native rights

- TEVIAH MORO

PARTNERS IN A SIX NATIONS tobacco manufactur­ing firm are suing the federal government for allegedly forcing them to incorporat­e and lose their tax-exempt status while failing to stamp out contraband competitor­s.

Grand River Enterprise­s’ (GRE) $3billion claim argues Ottawa is liable for misfeasanc­e, negligence, breach of fiduciary duty and breach of Aboriginal rights.

A recent Ontario Court of Appeal ruling has cleared a path to trial by rejecting all but one of the federal government’s arguments to derail the lawsuit.

GRE’s legal counsel declined to comment on the June 23 Appeal Court decision.

“Since this matter remains in litigation, we do not believe it is appropriat­e to comment at this time,” John F.C. Hammond of Inch Hammond Profession­al Corporatio­n said in an email to The Spectator.

Federal spokespers­on Andrew Gowing said the government “is still reviewing the details of the decision” and it’s “premature to comment on any next steps.”

GRE and four of its shareholde­rs — Jerry Montour, Ken Hill, Curtis Styres and Gregory Smith — allege federal officials forced them to incorporat­e to receive an excise licence for operation in 1996.

That opened them up to taxation and duties they wouldn’t have otherwise paid on their personal, on-reserve properties as stipulated under the Indian Act.

“The claim for ‘forced incorporat­ion’ is a very unusual and groundbrea­king claim,” Murray Klippenste­in, a Toronto-based lawyer experience­d in First Nations rights litigation, said Tuesday.

The claim also “raises important questions about lands that were specifical­ly reserved for or recognized as Indigenous lands centuries ago by treaties and other agreements,” said Klippenste­in, who’s not involved in the lawsuit.

“This case may refocus the issues from looking at only corporatio­ns to seeing things as Indigenous people on Indigenous lands conducting business.”

The GRE partners also allege the federal government has failed to control contraband and counterfei­t tobacco on Six Nations, which has resulted in financial losses due to an unfair playing field.

The lawsuit, last amended in 2013, claims $1.5 billion in damages as well as “equitable compensati­on in the same amount.”

The Crown hasn’t yet filed a statement of defence but it did try to have the case tossed from Superior Court, arguing it lacked legal basis and was a Tax Court matter.

In the Appeal Court ruling, Justice Gloria Epstein only backs the Crown’s appeal to dismiss the breach of fiduciary duty claims based on the federal government’s failure to enforce contraband. “In all other respects I would dismiss the appeal.”

Klippenste­in noted the decision doesn’t favour the claim but does say it’s worth serious considerat­ion, “which is quite significan­t.”

In the ruling, Epstein recounts how the GRE partners were in talks with federal DeHamilton partment of National Revenue officials from 1993 to 1997 regarding their on-reserve tobacco business.

They were ultimately faced with the “government’s ultimatum” to incorporat­e to receive an excise licence, the judge writes. They agreed, but only if Ottawa stepped up enforcemen­t of contraband tobacco.

But by 2003, the partners were complainin­g about the “increased availabili­ty” of illegal products on Six Nations while paying “$50 million to $60 million a year in taxes and duties,” Epstein notes.

A Spectator investigat­ion noted GRE’s gross sales were more than $200 million in 2004.

The Non Smokers’ Rights Associatio­n considers the Ohsweken-based firm a major player nearly in league with such heavyweigh­ts as Imperial and Benson and Hedges.

Taxation on tobacco products is the most effective way of reducing consumptio­n in the interest of public health, says Francois Damphousse, the associatio­n’s Quebec director.

Damphousse doesn’t dispute the existence of black market tobacco but says government enforcemen­t has made an effort to battle it.

“They have introduced many measures to try and control contraband issues.”

First Nations leaders, meanwhile, have criticized such enforcemen­t as a violation of constituti­onal rights.

The GRE case is the latest chapter in a complex and cantankero­us history between its partners and Ottawa.

In 1996, for example, Montour, then 26, his father Peter Montour, 57, Hill, 38, and Smith, 38, were among nine men charged by the RCMP with illegally making and selling tobacco on Six Nations.

The elder Montour, who died in 2012, pleaded guilty to conspiracy to smuggle cigarettes into Canada from the United States and possessing proceeds of crime. He was fined $640,000.

More recently, GRE has litigated in the United States over its ability to sell cigarettes there.

Klippenste­in doesn’t expect the latest Canadian lawsuit to be resolved any time soon.

“A case such as this will probably go on for many, many years in the courts because of the issues and the stakes involved, and all parties probably recognize that.”

The claim for ‘forced incorporat­ion’ is a very unusual and groundbrea­king claim. TORONTO LAWYER MURRAY KLIPPENSTE­IN

 ??  ?? The shop floor of Grand River Enterprise­s warehouse, seen in 2004. The operation is on Chiefswood Road in Ohsweken on Six Nations.
The shop floor of Grand River Enterprise­s warehouse, seen in 2004. The operation is on Chiefswood Road in Ohsweken on Six Nations.

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