Date: 20030416
Docket: T-1525-00
Citation : 2003 FCT 442
BETWEEN:
SHUBENACADIE INDIAN BAND,
on behalf of itself and its members and
ALEX MACDONALD, LEON ROBINSON, CHAD ROBINSON,
JOHN PAUL, PETER PAUL, VANDORA PAUL,
GENEVIEVE JOHNSON, HOLLY MACDONALD,
MARK LAWRENCE HOWE, ANDREW ROBINSON,
JASON MARR, DOUG MARR, IKE MARR, JOHN MARR,
EDWARD PETER-PAUL, BERNARD JOHNSON, CARL SACK,
AMY MALONEY, MARIE ROBINSON, GREGORY PAUL,
DAVID MACDONALD, DONALD JEANS, FRANK SMITH,
JOHN MARR (No. 2), WILLIAM J. NEVIN,
STEPHEN M. PETER-PAUL, BENJAMIN J. BRAKE,
GLENDON BROOKS and ELLEN ROBINSON
Plaintiffs
- and -
MINISTER OF FISHERIES AND OCEANS and
HER MAJESTY THE QUEEN
Defendants
- and -
ATTORNEY GENERAL OF NOVA SCOTIA,
ATTORNEY GENERAL OF NEW BRUNSWICK,
LFA DISTRICT 34 LOBSTER COMMITTEE,
ATLANTIC FISHING INDUSTRY ALLIANCE
Interveners
Docket: T-1250-01
BETWEEN:
SHUBENACADIE INDIAN BAND,
on behalf of itself and its members
Plaintiff
- and -
MINISTER OF FISHERIES AND OCEANS and
HER MAJESTY THE QUEEN
Defendants
- and -
ATTORNEY GENERAL OF NOVA SCOTIA,
ATTORNEY GENERAL OF NEW BRUNSWICK,
LFA DISTRICT 34 LOBSTER COMMITTEE,
ATLANTIC FISHING INDUSTRY ALLIANCE
Interveners
Docket: T-953-02
BETWEEN:
SHUBENACADIE INDIAN BAND,
on behalf of itself and its members
Plaintiff
- and -
MINISTER OF FISHERIES AND OCEANS and
HER MAJESTY THE QUEEN
Defendants
[1] The Confederacy of Mainland Mi'kmaq (CMM) and the Union of Nova Scotia Indians (UNSI) were previously respondents to these judicial review proceedings. However, after conversion of the proceedings from an application to an action and pursuant to a decision of the Court of Appeal dated December 17, 2002, they found themselves struck out as defendants, along with their statements of defence.
[2] CMM and UNSI now bring these motions in writing pursuant to Rule 369 of the Federal Court Rules, 1998 for leave to intervene in the matter between Shubenacadie Indian Band and the Minister of Fisheries and Ocean. They seek full rights to participate in these proceedings with respect to all questions relating to the existence, scope and extent of the aboriginal and treaty rights, but not with respect to any tort claims.
[3] CMM represents 6 bands in Mainland Nova Scotia, with 3 in the Annapolis Valley region near St. Mary's Bay. All of the 6 bands participate to some extent in the aboriginal fisheries. Four of the 6 have entered interim fishing agreements with the Department of Fisheries and Oceans.
[4] UNSI represents 7 bands, 2 in Mainland Nova Scotia and 5 in Cape Breton. It represents the Shubenacadie Band. All of its bands participate in the aboriginal fisheries to some extent. All but Shubenacadie have entered interim fishing agreements with the Department of Fisheries and Oceans. UNSI represents 80 percent of registered-status Mi'kmaq in Nova Scotia.
[5] While CMM and UNSI were involved in negotiating the interim fishing agreements, the plaintiffs took no part in this process and would have no knowledge of the substance of those agreements.
[6] Both proposed interveners are tribal councils and political organizations that provide technical, legal and advisory assistance to Mi'kmaq Bands. Their mandates include providing advice and assistance for band governance, enhancement of social and economic opportunities, legal and technical expertise in negotiating arrangements with the federal and provincial governments and implementation, protection and litigation of treaty and aboriginal rights.
[7] CMM and UNSI argue that any attempt by this Court to address the existence, applicability or implementation of constitutional rights in this case must, in the interest of justice, involve full input from all the treaty beneficiaries.
[8] The proposed interveners argue that, since the Treaties of 1760-61 have been put in issue in this case, and since the defendant denies that specific treaties were entered into and that the Treaties of 1760-61 are relevant, input from the beneficiaries of the treaties in question is crucial to a just determination of this case.
[9] The defendant Crown submits that neither request for intervention be allowed, but in the alternative, that only one and not both be allowed.
[10] The defendant states that, while it is satisfied that CMM and UNSI have demonstrated an interest in the outcome of these proceedings, it is not apparent how their participation will assist the Court. Specifically, it argues that CMM and UNSI have not demonstrated that they each bring a unique perspective to this case ; rather, their relevant positions are similar to that which the plaintiffs can be expected to address. As well, the defendant points out that CMM and UNSI's positions are the same. As such, granting intervener status to both would defeat the purpose of intervention.
[11] It further argues that an order granting the right to participate in discoveries of witnesses is exceptional, and that CMM and UNSI have not demonstrated any basis on which such an exceptional order should be granted.
[12] The plaintiffs generally support the motion for intervention.
[13] The test for leave to intervene was recently set out in Abbot v. Canada, [2003] 3 F.C. 482 as follows:
1. The applicant for intervention must have an interest in the outcome;
2. The rights of the applicant will be seriously affected by the outcome of the
litigation; and
3. The applicant, as Intervener, will bring a different perspective to the proceedings.
[14] The Crown concedes that the applicants have demonstrated an interest in the outcome of these proceedings. It argues, however, that the applicants have not demonstrated the third part of the test for intervention, namely, that they will bring a different perspective to the proceedings. I disagree. It is clear to me that, whatever the final outcome, the judgment herein will not be limited in its reach to the plaintiffs' band only. The other Mi'kmaq Bands in Nova Scotia speaking through the proposed interveners have vital interests which should also be heard from and taken into consideration. Those interests are not by any means necessarily identical to those of the plaintiffs. The fact that some of the bands represented by the interveners have entered into interim agreements with the federal government while the plaintiffs have not, may also give rise to differences of view. However, even without that factor, I think that the situation is similar to that which obtained in an earlier application presented on behalf of non-aboriginal fishers in the province, where I granted leave to intervene, with no objection from the Crown, to the LFA District 34 Lobster Committee. On that occasion I said:
... it would be wrong to limit those persons' intervention strictly to the narrow question of justification. It is my understanding that these are people whose lives and communities have literally, for generations, been built upon the fishery. And I think that simple justice requires that they should be granted a broad right of intervention on the same questions that I have defined for the Attorneys General, namely, all questions relating to the existence, scope and extent of the alleged aboriginal rights.
[15] I propose to grant the motions. I can see no reason for acceding to the Crown's request that I deny the right to more than one intervention. The proposed interveners are different and the bands they represent may have different interests. I will not, however, grant them any right to conduct discoveries nor to any costs on these motions.
ORDER
Leave is granted to the Confederacy of Mainland Mi'kmaq and the Union of Nova Scotia Indians to intervene herein on all questions relating to the existence, scope and extent of the aboriginal and treaty rights claimed by the plaintiffs.
Judge
Ottawa, Ontario
April 16, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1525-00
STYLE OF CAUSE: Shubenacadie Indian Band et al v. Minister of Fisheries and Oceans et al
MOTION IN WRITING PURSUANT TO RULE 369
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: April 16, 2003, 2003
WRITTEN SUBMISSIONS BY:
Mr. Eric A. Zscheile FOR PROPOSED INTERVER Confederacy of
Mainland Mi'kmak
Mr. Douglas E. Brown FOR PROPOSED INTERVENER Union of Nova
Scotia Indians
Mr. Bruce H. Wildsmith FOR PLAINTIFFS
Mr. Reinhold M. Endres
and Mrs. Angela J. Green FOR DEFENDANT CROWN
SOLICITORS ON THE RECORD:
Eric A. Zscheile
Truro, Nova Scotia FOR PROPOSED INTERVENER Confederacy of
Mainland Mi'kmaq
Douglas E. Brown
Halifax, Nova Scotia FOR PROPOSED INTERVENER Union of Nova
Scotia Indians
Bruce H. Wildsmith
Barss Corner, Nova Scotia FOR PLAINTIFFS
Mr. Morris Rosenberg
Deputy Attorney General of Canada FOR DEFENDANT CROWN