Date: 20010412
Docket: T-1525-00
Neutral Citation: 2001 FCT 329
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
AND JOHN MARR (No. 2)
and WILLIAM J. NEVIN, STEPHEN M. PETER-PAUL,
BENJAMIN J. BRAKE, GLENDON BROOKS, and
ELLEN ROBINSON
Plaintiffs
- and -
ATTORNEY GENERAL OF CANADA,
representing the Minister of Fisheries and Oceans (Canada)
UNION OF NOVA SCOTIA INDIANS, a body corporate, and
CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate
Defendants
- and -
ATTORNEY GENERAL OF NOVA SCOTIA,
ATTORNEY GENERAL OF NEW BRUNSWICK,
LFA DISTRICT 34 LOBSTER COMMITTEE,
ATLANTIC FISHING INDUSTRY ALLIANCE,
NATIVE COUNCIL OF NOVA SCOTIA
Interveners
REASONS FOR ORDER
(Delivered from the Bench at Halifax, Nova Scotia
on Wednesday, April 11, 2001)
HUGESSEN J.
[1] I have before me a number of motions for directions and/or for leave to intervene in this action. The motions were all heard together and are being dealt with by a single order and set of reasons, partly for reasons of convenience, but also because as I stated at the outset of the hearing, it is my view that the question of who should intervene and how many intervention should be permitted is always intimately linked to who else may have already intervened or may wish to intervene and who is or may be a party to the action.
[2] There are six proposed interveners. First, the Attorney General of Nova Scotia; second, the Attorney General of New Brunswick; third, the District 34 Lobster Committee which represents the present holders of fishing licenses in the affected area of St-Mary's Bay; four, the Atlantic Fishing Industry Association; five, a group of municipalities in the affected area of the south shore and south west Nova and six, the Native Council of Nova Scotia.
[3] First, dealing with the Attorneys General. Their right is statutory under the terms of section 57 of the Federal Court Act. Their intervention under that Act would, however, normally be limited exclusively to the constitutional question stated in the notice of constitutional question filed under section 57. However, in the circumstances of this case, I think it would be appropriate for me to expand that somewhat in the exercise of the authority which is given to the Court under Rule 110, so as to include generally any questions relating to the existence, scope and extent of the alleged aboriginal and treaty rights put in issue by the plaintiffs herein.
[4] The District 34 Lobster Committee, as I have already said, represents those persons presently holding lobster fishing licences in the affected area. Despite some earlier expression of judicial view to the contrary, it is my opinion that in this case, at any event, 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.
[5] The Atlantic Fishing Association was previously granted intervention rights by Mr. Justice Pelletier on the interlocutory injunction application. That grant was made jointly to the Association and to the District 34 Lobster Committee. The Association seeks now a separate right of intervention. They represent the Atlantic fishing industry generally and are not limited in their interest to the specific geographical area, which is put in issue by the plaintiffs here, and they are not limited in the persons they represent simply to fishers but to many others engaged in one way or another in the fishing industry. Accepting that the Association represents a different point of view from that of the District 34 Lobster Committee, I would grant them leave to intervene, but only with regard to the economic, cultural and social impacts of the recognition of the alleged aboriginal and treaty rights here in issue.
[6] The municipalities while they are undoubtedly interested in the outcome of this litigation do not, in my view, have an interest sufficiently different from that of other interveners, notably the Attorney General of Nova Scotia, the District 34 Lobster Committee and the Atlantic Fishing Association to justify their being granted a separate right of intervention and that will be denied.
[7] The Native Council of Nova Scotia seek to intervene on very limited grounds. They were also granted leave earlier by Mr. Justice Pelletier. The grounds on which they seek to intervene are the non-representation of non-status and off-reserve Indians by any other party in this action and the impact on such people of the Indian Act and of their dispersal from their traditional territory. I would grant them that right.
[8] Within 30 days of the filing of the statements of defence, all interveners are to file a statement of intervention setting out the conclusions of fact and law which they will seek to have drawn by the Court and all material facts on which they will rely to support those conclusions. Other parties may file replies to such statements of intervention within 30 days of their filing but shall not be obliged to and shall not be taken to have admitted any statements in those statements of intervention if they fail to do so.
[9] The rights of the interveners at discovery and at trial may be dealt with at a later date as may become necessary and by way of motion either to the case management judge or in due course to the trial judge.
[10] Pending a further order dealing with the rights of interveners, all interveners shall be entitled to copies of all pleadings, of all motions and at their own expense to copies of all documentary productions and transcripts of all examinations on discovery.
[11] There shall be no costs on these motions either for or against any intervener. The question of costs for or against interveners at subsequent stages will be dealt with as and when it may arise.
Judge
Ottawa, Ontario
April 12, 2001