Date: 19980424
Docket: T-2354-97
BETWEEN:
ALBERTA WILDERNESS ASSOCIATION,
CANADIAN NATURE FEDERATION,
CANADIAN PARKS AND WILDERNESS SOCIETY,
JASPER ENVIRONMENTAL ASSOCIATION, and
PEMBINA INSTITUTE FOR APPROPRIATE DEVELOPMENT,
Applicants,
- and -
MINISTER OF FISHERIES AND OCEANS, and
CARDINAL RIVER COALS LTD.,
Respondents,
- and -
BRIAN BIETZ, GORDON MILLER and
TOM BECK IN THEIR CAPACITY AS A REVIEW PANEL
ESTABLISHED UNDER THE CANADIAN ENVIRONMENTAL
ASSESSMENT ACT TO REVIEW THE CHEVIOT COAL PROJECT
and WAYNE ROAN ACTING ON HIS OWN BEHALF
and ON BEHALF OF ALL OTHER MEMBERS OF THE SMALLBOY CAMP,
Interveners.
REASONS FOR ORDER
JOHN A. HARGRAVE
PROTHONOTARY
[1] This matter, set for a judicial review hearing 29 and 30 April, 1998, with an extra day, 1 May, 1998, reserved in case additional time is required, involves review of a proposed open pit coal project, the Cheviot Mine, a development which would straddle the Cardinal River Divide in the Alberta foothills west of Edmonton near Cadumin. The Cardinal River Divide is the origin of water flowing into the Arctic, on the one hand and into Hudson Bay, on the other hand. It contains the headwaters of MacKenzie Creek, Little MacKenzie Creek and McLeod River, all of which flow into the Athabasca River, generally eastward and northward through lands occupied and used by some of the twenty-two First Nations, in the Province of Alberta, who are presently banded together as the Treaty 8 First Nations of Alberta, to whom I shall refer as the Treaty 8 First Nations.
[2] Treaty 8 First Nations, an Alberta corporation, as the umbrella group for various Alberta First Nations, wishes to be added as intervener, albeit at a rather late date. Indeed, at a date so late that, without special reasons, I would likely dismiss the application. Instead, given all of the circumstances, I decided, after hearing counsel, that the Treaty 8 First Nations had a sufficient interest and could bring a different perspective to bear which would assist the Court to the extent that the Treaty 8 First Nations ought to be added as an intervener. On this determination I placed the intervener and the initial parties on a strict time table so as not to disrupt the scheduled hearing. I indicated that these brief reasons would follow.
SOME BACKGROUND FACTS
[3] Cardinal River Coals Ltd. wishes to construct, develop, operate and eventually decommission an open pit coal mine and a coal processing plant, a review of which was conducted by the Review Panel for the Cheviot Coal Project. The Report of the Review Panel, dated 6 June, 1997 was released 17 June, 1997. The applicants initiated this judicial review proceeding 31 October, 1997 claiming, among other things, that there was not a proper environmental assessment under the Canadian Environmental Assessment Act, R.S.C. 1985, Ch. C-15.2 (the "CEAA").
[4] A number of entities, whom the Review Panel felt should be involved, were given notice of the hearing. Those entities included several aboriginal communities and organizations. No one thought to give notice to any of the downstream First Nations making up the Treaty 8 First Nations. Counsel for Cardinal River Coals Ltd. is of the opinion that those of the Treaty 8 First Nations group, who are downstream on the Athabasca system, are a thousand kilometres away and that any impact on water quality will be unnoticeable within a few kilometres from the Cheviot mine operation. Counsel for the Treaty 8 First Nations submits that her clients, through their traditional use of the land, are located very much nearer to the proposed Cheviot Mine operation.
[5] The history of river system diversion and pollution makes it clear that it is difficult to draw arbitrary lines, a few kilometres or a few hundred kilometres distant from a project that will have an impact on water quantity and quality, and say that beyond those arbitrary lines there need be no concern. The opposing parties to this present motion, Cardinal River Coals Ltd. and the Crown, filed no evidence on this point. However Mr. Jim Badger, at one time a Director of the Grand Council of Treaty Eight First Nations and Grand Chief of the Lesser Slave Lake Indian Regional Council, who did not learn of this present judicial review proceeding until several days before this application to intervene, does have views which appear to be informed views. Mr. Badger expresses concern no only as to the effect of the impact of water quality found by the Review Panel as a factor, but also as to the impact of the diversion and alteration of the courses of the headwaters of MacKenzie Creek and McLeod River, on lands and on wildlife, traditionally an important part of the culture and tradition of the downstream people of the Treaty 8 First Nations and on their hunting, gathering, cultural and spiritual life. He goes on to depose that "As Treaty 8 First Nations of Alberta were not advised of the proposed mine development or the Review Panel hearings, we were unable to have our concerns addressed by the Review Panel or to retain experts to advise us as to the environmental impacts of the proposed development on Treaty 8 lands." (concluding paragraph of Mr. Badger's 8 April, 1998 affidavit).
CONSIDERATION
Motion for Adjournment
[6] Before considering the merits of the motion to intervene I will deal with the oral motion of counsel for Cardinal River Coals Ltd. for an adjournment. Counsel's difficulty was that while he was served with the intervener's material in a timely manner he was, by reason of the Easter holiday season, unable to obtain instructions as to what course he should take. He now says his instructions are to cross-examine Mr. Badger on his affidavit material. Counsel for the intervener advises that she made known that Mr. Badger was available for cross-examination, but was not taken up on the offer and that Mr. Badger remains available, after this motion is heard, to be cross-examined if that will be of assistance. Counsel are divided on the matter, some wishing an adjournment and others wishing to get on with the present motion and determine it in a timely manner.
[7] Had there been more time between the setting down of the present motion and the judicial review hearing of 29 and 30 April, an adjournment for cross-examination might be reasonable. I would also be sympathetic to an adjournment had any of the Treaty 8 First Nations constituents been on the list of those notified of the Review Panel's hearing and thus would have no one to blame but themselves if this last minute motion for intervention were adjourned. However adjournment is always a discretionary matter. A party should not assume a motion will be adjourned because counsel is unable to obtain instructions within the time allowed between service and hearing of a motion. Indeed, unpreparedness is not a reason for an adjournment: see for example Jouzichin v. The Minister of Citizenship and Immigration, 9 December, 1994, unreported reasons of Madame Justice Reed in IMM-1686-94 at pages 1 and 2. There is another approach to why adjournments ought not to be allowed as freely today as may have been the case at one time. This is touched upon by Chief Justice Isaac in Sidhu v. Minister of National Revenue (1995) 176 N.R. 156 at 158 (F.C.A.), where he points out that gone are the days when courts might allow litigants the luxury of being at their beck and call, courts being public institutions for the resolution of disputes which costs substantial public money. Thus delay is a serious public concern.
[8] I would add yet another factor: senior counsel, charged with the conduct of an important case, ought to take the initiative and the responsibility for the small expense of cross-examination when counsel feels it is necessary. To plead a holiday, an inability to obtain instruction, on a relatively minor point, and unavailability of anyone to conduct a cross-examination on short notice, is not a good basis for an adjournment. I thus refuse the adjournment.
Status of Treaty 8 First Nations
[9] Preliminary to intervention is the issue of the status of the Treaty 8 First Nations. Counsel for Cardinal River Coals Ltd. points out that at the time of the Review Panel's hearings, apparently in 1996 and 1997, Treaty 8 First Nations did not exist as an incorporated entity. Counsel for Treaty 8 First Nations acknowledges that is so, Treaty 8 First Nations being an umbrella organization representing those who are in fact Treaty Eight First Nations: counsel offered to rephrase the motion to intervene so that half a dozen or so bands and tribal councils might be named as the interveners.
[10] Apparently the Treaty 8 First Nations entity began to take shape in 1990 as a Grand Council of those who claim the benefit of Treaty Eight of 1899. In 1993 the Grand Council discussed an umbrella organization and became known as the Alberta Group of Treaty Eight First Nations. The group was incorporated, as the present Treaty 8 First Nations of Alberta, in 1997. It is nothing more than a collective name for all of its members.
[11] At this point the proceedings do not need the addition of half a dozen Treaty Eight First Nation groups, none of whom received notice of the Review Panel proceedings and each of whom might gain standing as an intervener. I do not see why the separate Treaty Eight groups may not be represented by a cohesive umbrella organization to put forward a unified view at a saving in time and expense for all concerned. Certainly Treaty 8 First Nations existed several years before the Review Panel hearing, albeit under a different name and in a different form. While this is not a representative proceeding, in the usual sense, a representative proceeding should generally be treated not as a rigid matter of principle, but rather as a flexible tool of convenience in the administration of justice, for the concept of representation ought not to be applied strictly or rigorously, but rather in a permissive manner: see for example John v. Rees [1970] 1 Ch. 345 at 370. I would also touch on an earlier case, Taff Vale Railway v. Amalgamated Society of Railway Servants [1901] A.C. 426, where the House of Lords grappled with the then novel problem of whether a trade union, not being a corporation, might be sued and answered affirmatively. Lord Lindley pointed out that equity had developed a flexible approach. He referred obliquely to representative actions as a tool to prevent a failure of justice and then commented that the rules as to parties to a suit ought to be applied to the exigencies of contemporary life as required:
| "The principle on which the rule is based forbids its restriction to cases for which an exact precedent can be found in the reports. The principle is as applicable to new cases as to old, and ought to be applied to the exigencies of modern life as the occasion requires." (p. 443). |
To allow Treaty 8 First Nations to represent a number of Indian entities is sensible, will save time and will allow justice to be done. Moreover and here I draw an analogy from corporate law whereby a new company, once incorporated, may become entitled to the benefits of transactions entered into by its incorporating members before the company in fact exists, I do not see why Treaty 8 First Nations may not put forth the views of the entities who initiated its predecessor associations and who subsequently caused it to be incorporated for purposes such as the present. Neither counsel for the intervener nor counsel for Cardinal River Coals Ltd. was prepared with any authority, one way or the other. I thus decided that Treaty 8 First Nations had an appropriate standing to seek to be added as an intervener.
Intervention
[12] Rule 1611 of the Federal Court Rules allows for intervention in judicial review proceedings on appropriate terms. The Court may order an intervener joined in a judicial review proceeding where a party may have an interest in the outcome or where that party's rights will be directly affected by the outcome: see for example Edmonton Friends of the North Environmental Society v. Canada (Minister of Western Economic Diversification) (1990) 73 D.L.R. (4th) 653 at 660 - 661 (F.C.A.). I ought to consider whether the proposed intervener is directly affected by the outcome: see for example Rothmans, Benson & Hedges Inc. v. Canada (Attorney General) [1990] 1 F.C. 84 at 88 (T.D.), the criteria there set out by Mr. Justice Rouleau being affirmed by the Court of Appeal, reported [1990] 1 F.C. 90 at p. 92.
[13] Of course, whether an entity may have an interest in the outcome is not in itself grounds for allowing intervention: one must consider whether an intervener might be able to bring a different perspective which would assist the Court: see for example BBM Bureau of Measurement v. Director of Investigation (1982) 63 C.P.R. (2d) 63 (F.C.A.), a decision of Chief Justice Thurlow.
[14] Dealing first with the effect of the outcome on Treaty 8 First Nations, the evidence of the intervener, which is not contradicted, is that the mine development may well cause significant environmental impact on Treaty 8 lands, yet those Indian nations directly affected had no opportunity to participate in the initial review process. Those First Nations are said to pursue traditional activities including gathering plants for food and medicinal purposes, hunting, fishing and trapping as well as spiritually and culturally ceremonial activities. The proposed mining project may directly impact the members of Treaty 8 First Nations who, being downstream and out of mind, were not given any notice of the Review Panel proceedings for the Cheviot Mine development which the Review Panel found would not only alter water quality, but would divert streams.
[15] Under the CEAA there must be a study of the environmental effects of a project (see Section 16 of the CEAA) so that information may be obtained and made available to the public (Section 34 of the CEAA). This in my view places a positive obligation on a review panel to obtain appropriate information necessary for its assessment: this duty ought to extend to a reasonable determination of necessary and proper parties to be invited to hearings. That the duty extends to aboriginal persons is made clear by Section 2 of the CEAA which defines the environmental effects, into which the tribunal must inquire, to include changes a project may cause in the environment "on ... the current use of lands and resources for traditional purposes by aboriginal persons ...". Treaty 8 First Nations falls into that category set out in the CEAA, being aboriginal persons currently using lands for traditional purposes and that they may well be impacted by the Cheviot Coal Project.
[16] By way of example, Mr. Justice MacKay, in Union of Nova Scotia Indians et al. v. Canada (Attorney General) et al. (1997) 122 F.T.R. 81, points out that the effects of projects governed by the CEAA must be addressed and carefully assessed: see his consideration of fairness and aboriginal interests at page 96 and following. Indeed, as pointed out by Mr. Justice MacKay "... it is an error in law, in my view, to fail to address the aboriginal interest, and if it be affected, to assess that effect is warranted, in accord with the approach set out by the Supreme Court of Canada in R. Sparrow, [1990] 1 S.C.R. 1075, at 1111 - 1119; ..." (ibid, p. 99). This duty to address aboriginal interests has been commented upon by the Supreme Court of Canada in Delgamuukw v. British Columbia (1997) 153 D.L.R (4th) 193 at 265:
| "There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown's failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law: Guerin. The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue." (emphasis added). |
[17] This idea, of a duty, a fiduciary duty, was earlier commented upon by Mr. Justice MacKay in Union of Nova Scotia Indians (supra):
| "Failure to consider that duty and the responsibility it raises, where an aboriginal interest has been earlier recognized and maybe adversely affected by the project, in my view, constitutes a failure by those acting on behalf of the respondent Ministers to act with fairness towards the applicants in the environmental assessment process. Indeed, it is an error in law, in my view, to fail to address the aboriginal interest ..." (p. 99). |
[18] Finally, touching on the practices, customs and traditions integral to the culture of an aboriginal group, such aboriginal rights may exist independent of aboriginal title and may entitle an aboriginal person to continue the practice of those aboriginal rights for they arise not so much from title to land, but from prior occupation of land: see R. v. Van der Peet [1996] 2 S.C.R. 507 at 562, paragraph 74.
[19] On this line of reasoning I have concluded that Treaty 8 people, below the Cheviot Mine Development, in what broadly may be called the Athabasca River basin, have aboriginal rights which ought to be taken into account and that any impingement upon those rights, including in the areas of hunting, fishing, gathering flora and spiritual and cultural practices connected with the area, may well be directly affected by the outcome of this judicial review. The Treaty 8 First Nations have the requisite interest to be added as interveners.
[20] Turning to the second branch of the test I considered whether the Treaty 8 First Nations could bring to this judicial review proceeding a different and important perspective which might assist the Court. The Treaty Eight peoples, now represented by the Treaty 8 First Nations, were excluded from the hearing process when the Review Panel did not solicit and include them as participants who might reasonably be expected to suffer damage, environmentally, as a result of the proposed Cheviot Mine development. Treaty 8 First Nations would be the only party in a position to address the adequacy of the Review Panel hearing in that they, of all of the parties to the present action, were the only persons, and indeed a large group of persons, who were excluded from the process. This perspective would also include a consideration of the duties of the Review Panel when it came to determining necessary parties who ought to appear, or at least be invited to appear, before such a hearing. This is certainly a different perspective, one essential to a proper decision and thus of assistance to the Court.
Conclusion
[21] At the hearing of this motion on 15 April, 1998 I concluded that the peoples and bands making up the Treaty 8 First Nations would be directly affected by the Cheviot Coal Project and that they might assist the Court by bringing to it a different and important view point, a view point that would not otherwise be raised. Treaty 8 First Nations ought to be added, subject to some overweighing prejudice to the Applicants, Respondents and prior Interveners. Counsel for the Treaty 8 First Nations proposed a schedule which, when modified, allowed others to properly deal with their intervention.
[22] There remained the possibility of the present parties being prejudiced through an adjournment of the judicial review hearing set for 29 and 30 April. Counsel for Cardinal River Coals Ltd. was of the view there would be insufficient time for a proper review if Treaty 8 First Nations was included. Counsel for the Treaty 8 First Nations, who also acts for the intervener, the Smallboy Camp, advised she understood that 1 May, 1998 had also been set aside as an available day. I adjourned the motion briefly in order to determine if a third day was indeed available and was so advised by the Associate Chief Justice's office. That being the case I allowed the intervention on appropriate terms.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
24 April, 1998
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: April 15, 1998
COURT NO.: T-2354-97
STYLE OF CAUSE: ALBERTA WILDERNESS ASSOCIATION,
CANADIAN NATURE FEDERATION,
CANADIAN PARKS AND WILDERNESS SOCIETY,
JASPER ENVIRONMENTAL ASSOCIATION, and
PEMBINA INSTITUTE FOR APPROPRIATE DEVELOPMENT,
Applicants,
- and -
MINISTER OF FISHERIES AND OCEANS, and
CARDINAL RIVER COALS LTD.,
Respondents,
- and -
BRIAN BIETZ, GORDON MILLER and
TOM BECK IN THEIR CAPACITY AS A REVIEW PANEL
ESTABLISHED UNDER THE CANADIAN ENVIRONMENTAL
ASSESSMENT ACT TO REVIEW THE CHEVIOT COAL PROJECT
and WAYNE ROAN ACTING ON HIS OWN BEHALF
and ON BEHALF OF ALL OTHER MEMBERS OF THE SMALLBOY CAMP,
Interveners.
PLACE OF HEARING: Edmonton, AB
REASONS FOR ORDER OF
JOHN A. HARGRAVE, PROTHONOTARY
dated April 24, 1998
APPEARANCES:
Mr. Stewart Elgie for Applicants
Mr. Robert D. Heggie for Respondent Panel
| Ms. Julie Lloyd for the Smallboy Camp and |
| Treaty 8 First Nations of Alberta |
| Mr. Dennis Thomas for Cardinal River Coals Ltd. |
| Mr. Patrick Hodgkinson for the Minister |
SOLICITORS OF RECORD:
Mr. Stewart Elgie for Applicants
Mr. Robert D. Heggie for Respondent Panel
| Ms. Julie Lloyd for the Smallboy Camp and |
| Treaty 8 First Nations of Alberta |
| Mr. Dennis Thomas for Cardinal River Coals Ltd. |
| Mr. Patrick Hodgkinson for the Minister |