Tag Archives: intervenor

Interlake Reserves Tribal Council Inc et al v The Government of Manitoba, 2020 MBCA 126

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Motions made by the Manitoba Métis Federation and the Assembly of First Nations to intervene in an appeal were dismissed after the Court found that there was insufficient basis to grant the motions. Both parties failed to persuade the Court to find that their submission were useful and different from the immediate parties in a way that wouldn’t unnecessarily expand the appeal. The Manitoba Métis Federation also requested an expansion of time to file supporting documents, which was granted by the Court given its incidental nature.

Indigenous Law Centre – CaseWatch Blog

By way of background, the defendant, the Government of Manitoba, has appealed an order granting interlocutory injunctive relief preventing it from carrying out further work on a road in order to take action on a proposed flood management system in the Interlake region of Manitoba. This interlocutory injunction relief comes as a response to a motion by the plaintiffs, which consist of the Interlake Reserves Tribal council, as well as several First Nations within the area, who alleged that this development of the land would be an infringement on the exercise of their Indigenous and treaty rights. The defendant denies this infringement of rights. The hearing of this appeal is set for February 2021.

The Manitoba Métis Federation [“MMF”] and the Assembly of First Nations [“AFN”] seek to intervene in this appeal. As well, the MMF also requests an extension of time to file its supporting affidavit and memorandum of submissions on the intervention motion. The plaintiffs consent to the motions, while the defendant is opposed.

The Court dealt first with the MMF’s motion to extend time. The MMF filed its motion to intervene within 30 days after the defendant filed its notice of appeal. However, counsel for the MMF failed to file the supporting affidavit and memorandum of submissions at least four days before the initial hearing date and because of this, the motion to intervene was not done in a timely manner. In assessing whether or not an extension of time should be granted to the MMF, the Court considered that the delay is brief, and does not create prejudice to any party. As a result, the Court required that the extension of time to the MMF be granted.

The relevant case law states that an intervener should have either a direct interest in the outcome of the appeal or a special expertise or unique perspective relating to the subject matter (R v Morgentaler, [1993] 1 SCR 462). In applying this case law with the specifics of AFN’s motion to intervene, the Court found that much of the AFN’s submissions duplicated those of the plaintiffs or were not relevant to the issues before the Court. Given this, the Court was not persuaded that the AFN would provide submissions useful and different from those of the plaintiffs and dismissed the AFN’s intervention motion. Similarly, with regard to the MMF’s motion to intervene, the Court was not persuaded that the MMF’s submissions were useful or different from the immediate parties and would unnecessarily expand the appeal. Further, the Count also stated that the MMF did not have a direct interest in the outcome of the appeal, as language used by the MMF was overly vague and inconsistent in stating their direct interest in the outcome of the appeal. As a result, the Court also dismissed the MMF’s intervention motion.

Gitxaala Nation v Wolverine Terminals ULC et al, 2020 FC 382

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Motion dismissed. The Metlakatla First Nation and Lax Kw’alaams should not be joined as respondents or interveners in the Gitxaala Nation’s underlying application for judicial review.

Indigenous Law Centre
Indigenous CaseWatch Blog

Wolverine Terminals ULC, has proposed to construct and operate the Prince Rupert Marine Fuels Service Project [“Project”] in the Port of Prince Rupert. The Project is a floating refuelling station intended for refuelling vessels calling in the Port. It is located on federal lands and is subject to a review under the Canadian Environmental Assessment Act [“CEAA”]. Under the CEAA, the Prince Rupert Port Authority and Transport Canada [“Federal Authorities”] could not enable the Project to proceed unless a determination was made that the Project was not likely to cause significant adverse environmental effects. As part of its evaluation process, the Federal Authorities consulted the six First Nation communities with asserted rights and interests within the Project area regarding potential environmental effects that included the Gitxaala Nation [“Gitxaala”], Metlakatla First Nation, Lax Kw’alaams, Gitga’at First Nation, Kitsumkalum, and Kitselas.

In the underlying application for judicial review [“Application”], Gitxaala challenges the decision of the Federal Authorities that the Project will not cause significant adverse environmental effects pursuant to the CEAA, and that the Crown’s obligation to consult with respect to the Project has been fulfilled [“Decision”]. The Metlakatla First Nation and Lax Kw’alaams [“Moving First Nations”] have brought a motion for an order to allow them to be joined as party respondents in the Application. In the alternative, they seek an order to allow them to jointly intervene. This motion is dismissed.

If the Moving First Nations had a direct interest in quashing the Decision that was actually made, they could and should have asserted it by bringing their own application for judicial review on a timely basis. It would be an “impermissible end-run” for them to join the proceedings, in substance as co-applicants, well after the limitation period for applying has passed (Tsleil-Waututh Nation v Canada (AG), 2017 FCA 102).

The Court is not persuaded that the relief sought, if granted, will inevitably impose legal obligations on the Moving First Nations to re-engage in the consultation process. For example, if the Decision is set aside on the narrow basis that the Federal Authorities failed to adequately consult with Gitxaala, due to unique gaps or inadequacies in the specific consultation process undertaken with Gitxaala, it does not inevitably follow that the Federal Authorities will be required to also re-consult with the other five First Nation communities with asserted rights and interests within the Project area. Even if the relief sought by Gitxaala would require the Federal Authorities to re-engage with the Moving First Nations, the Court is not satisfied that the Moving First Nations would be directly affected by the relief sought in the Application.

The Moving First Nations argue that the relief sought will adversely and directly affect their legal rights by causing them to become legally obligated to participate in a more onerous statutory and consultative process, and incur additional time and expense to re-engage with the Federal Authorities. They rely on the legal principle of a reciprocal duty on First Nations to consult with the Crown in good faith and they cannot, by their conduct, place unnecessary obstacles in the way of the consultation process (Ahousaht First Nation v Canada (Fisheries and Oceans), [2008] 3 CNLR 67).

The reciprocal duty imposed on First Nations is significantly different in nature from the duty imposed on the Crown to consult with First Nations. The Crown’s duty to consult with First Nations gives rise to co-extensive right in First Nations to be consulted, and the breach of which is actionable in the Courts. The same cannot be said of the reciprocal duty on First Nations to engage in consultation with the Crown. Unlike the Crown’s duty to consult, the reciprocal duty imposed on First Nations is not an enforceable legal obligation.

The Moving First Nations have not satisfied the Court that their participation as respondents is necessary to determine the adequacy of Gitxaala’s consultation process, or demonstrated how this issue cannot be effectively and completely settled unless they are made respondents on the Application (Canada (Minister of Fisheries and Oceans) v Shubenacadie Indian Band, 2002 FCA 509).

As for being added as intervenors, acting under the guise of having a different perspective, an intervener cannot adduce fresh evidence or make submissions that are in reality fresh evidence (Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 151). A proposed intervener must rely on the same evidence in the record that others are relying upon and focus on how they can assist the Court’s determination of the existing proceedings. The Moving First Nations’ proposed position appears to be an expansion of the issues raised in the existing Application. If they intend to argue, in effect, that Gitxaala has no valid asserted claim to the potential existence of Aboriginal title or rights in the project area, the corollary to that argument would be that no duty to consult arose. Gitxaala does not challenge the Decision based on any such finding, but rather on the basis that the Federal Authorities failed to adequately consult with Gitxaala. While the Moving First Nations assert that their participation will assist, it is the Court’s view they have not discharged the burden of proof to demonstrate how it will assist (Forest Ethics Advocacy Association v Canada (National Energy Board), 2013 FCA 236).