Date: 20041206
Docket: T-66-86A and T-66-86B
Citation: 2004 FC 1705
Ottawa, Ontario, this 6th day of December, 2004
Present: The Honourable Justice James Russell
BETWEEN:
SAWRIDGE BAND
Respondent
and
HER MAJESTY THE QUEEN
Applicant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
and
TSUU T'INA FIRST NATION
Respondent
and
HER MAJESTY THE QUEEN
Applicant
and
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
NATIVE WOMEN'S ASSOCIATION OF CANADA
Interveners
REASONS FOR ORDER AND ORDER
THE ROLE OF THE INTERVENERS
The Motion
[1] The second motion before me on November 18 and 19, 2004 in Edmonton was brought by the Interveners seeking a determination by the Court of the extent to which they may conduct examinations of the witnesses of other parties and participate at trial.
[2] This is a significant source of friction between the Interveners and the Plaintiffs. The Interveners believe that their status and participation in this action have already been largely determined by previous orders of this Court, and all that remains is to decide the latitude they should have to examine witnesses at trial. The Plaintiffs, on the other hand, believe that the general status and the role of the Interveners remain matters for determination by the trial judge. In fact, the Plaintiffs go so far as to say that the Federal Court of Appeal has directed that the trial judge examine and make a decision concerning the participation of the Interveners at trial and, in so doing, "endorsed an approach which would narrow the role of the Interveners ... ." As is usual with this law suit, there appears to be little room or desire for mutual accommodation between the parties. The Interveners would like, to the extent of their several perspectives, to play an active role in assisting the Court at the trial on the full range of issues outlined in the pleadings, while the Plaintiffs feel the Interveners have a very limited role to play and, preferably, should have no right at all to cross-examine witnesses. The Plaintiffs have strongly expressed the view that the Interveners are out to create mischief and that they are deliberately trying to mislead the Court and thwart the legitimate rights and claims of the Plaintiffs. The Plaintiffs now call upon the Court to step in and protect their rights as parties to the action by side-lining the Interveners.
[3] There is one point, however, upon which both sides agree. The Native Women's Association of Canada was given status as an intervener by order of Mr. Justice Hugessen of May 26, 2000. This was much later than the other three interveners, who entered the fray by order of Mr. Justice McNair dated September 14, 1989. Notwithstanding this fact, the parties agree that the status and role of all Interveners should be the same, so that any order that the Court makes in consequence of this motion should apply equally to all four Interveners. I acknowledge and approve this consensual approach with what, after less than four months of active involvement in this action, can only be described as a sense of gratitude.
Background
[4] When he established the road-map in his March 26, 2004 Pre-Trial Order that was intended to help the parties find their way to trial, Mr. Justice Hugessen had the following to say about Intervener participation at trial:
14. The participation of interveners at the trial is the subject of orders previously given by McNair J. on September 14, 1989 and Hugessen J. on May 26, 2000.
[5] When we go back to the order of Mr. Justice McNair of September 14, 1989, the following paragraphs appear to address the situation:
3. That the applicants Native Council of Canada, Native Council of Canada (Alberta) and Non-Status Indian Association of Alberta be added as interveners in this action with the right to adduce evidence in support of their respective positions as to the issues involving band membership status or the right to band membership status;
4. That the interveners may be represented by counsel and may:
(a) call evidence at trial;
(b) call expert evidence at trial in accordance with the Federal Court Rules; and
(c) present oral and written argument at trial.
5. That the right of the interveners to cross-examine at trial the witnesses called by the other parties is left to be determined by the trial judge.
[6] The Plaintiffs did commence an appeal of Mr. Justice McNair's order, but the appeal was ultimately dismissed for want of prosecution.
[7] As the action has made its arduous way towards and through the first trial, through appeal, and then through case management towards the second trial, the role of the Interveners has been raised and addressed on several occasions.
[8] At a pre-trial conference conducted by Mr. Justice Allen in February, 1993, in anticipation of the first trial, deadlines were established for the Interveners to file formal Statements of Intervention and expert reports.
[9] At a further pre-trial conference conducted by Mr. Justice Muldoon in July, 1993, the Interveners were granted the right to receive notice of all interlocutory proceedings. Justice Muldoon also heard a motion brought by NCC(A) to conduct an examination for discovery of Mr. Walter Patrick Twinn, who was one of the plaintiffs at that time. Justice Muldoon granted leave for the discovery, which appears to have been conducted in accordance with the order of Justice McNair of September 14, 1989.
[10] More significantly, at the commencement of the first trial, on September 23, 1993, the Plaintiffs brought a motion to challenge the status of the Interveners and/or to clarify the role that the Interveners should play at the first trial. Some of the arguments raised by the Plaintiffs in that motion were raised again in the motion before me. Justice Muldoon dismissed the motion.
[11] Mr. Justice Muldoon took the position that the order of Mr. Justice McNair governed the role of the Interveners, but that order left the important matter of cross-examination at trial to be determined by the trial judge. Mr. Justice Muldoon granted the Interveners limited rights to cross-examine the witnesses of other parties.
[12] It is also worthy of note that, during the first trial, the Interveners participated in trial motions, presented opening statements, made closing arguments orally and in writing, and called expert and lay evidence.
[13] Once matters moved to the appeal stage, the three Interveners who had participated in the first trial (NCC, NCC(A) and NSIAA) brought a motion and were added as Interveners on the appeal. By order dated May 7, 1996, Isaac C.J. granted the Interveners the right to file a joint memorandum and make oral submissions that were not duplicative of submissions made by the appellants or the respondents.
[14] There have also been subsequent appeals in which participating Interveners have filed individual memoranda and made individual submissions.
[15] During the case management phase leading to the second trial, the Plaintiffs have made several attempts to have the Interveners excluded or significantly neutered. At the first case management meeting before Mr. Justice Hugessen on September 23, 1998, the Plaintiffs attempted to limit the role of the Interveners but were repulsed by the case management judge, who advised that any such challenge should be brought by motion. However, the Interveners continued to participate in the case management process for almost two years before the Plaintiffs brought a motion to eliminate them or to reduce the scope of their role. This was also the point at which the Native Women's Association of Canada brought a cross-motion to be added as another Intervener to the action.
[16] In his order of May 26, 2000, Mr. Justice Hugessen dismissed the Plaintiffs' motion challenging the role of the Interveners, and granted the motion of NWAC to be joined as an Intervener.
[17] During the course of dealing with the two motions in his reasons of May 26, 2000, Mr. Justice Hugessen said a number of things that I believe are highly pertinent to the motion before me:
...
5. That brings me to the motions. Dealing first with the plaintiffs' motion seeking to terminate or limit the rights of the interveners, without being unduly simplistic, I think it is proper to characterize that motion as asking me in some way to overrule the order that was made by Mr. Justice McNair. In my view, it is not appropriate that I should do so. That order which was in effect confirmed by the Court of Appeal is in place. It constitutes res judicata. While it is, I think, trite law that certain types of interlocutory procedural orders may be subject to review, I do not think that the order of Mr. Justice McNair is such an order. It is not purely procedural. Indeed, it seems to me that it is an order which grants status or standing to the interveners and as such goes far beyond a mere matter of procedure.
6. There is no doubt in my mind that by some combination of Rules 299 and 385, I would have, as case management judge, the power in some circumstances to vary Mr. Justice McNair's order. But I do not think that the circumstances exist in the present case. In particular, I do not think that there has been any substantive change in the factual situation such as would justify my interfering with the discretion which was then exercised by that learned judge. The only change which the plaintiffs suggest has taken place is, in fact, the amendment to the statement of claim. But that amendment, while it expands the basis upon which the plaintiffs seek their relief, does not in any substantial way change the relief itself and does not, in particular, change the impact which that relief may reasonably be expected to have upon the groups who in 1989 were claimed and who are still claimed to be represented by the interveners. That said, I do not think that the door is opened to review Mr. Justice McNair's decision.
7. Much of plaintiffs' argument on these motions was devoted to a litany of complaints about the conduct of the first trial judge and the manner in which he permitted the interveners to participate in the trial which he was presiding. Those complaints were included in the grounds urged by the plaintiffs before the Court of Appeal, but as I indicated, the Court of Appeal placed its decision on a very limited footing. Be that as it may, and whether or not the complaints that the plaintiffs seek to assert about the first trial judge's conduct are well founded, it is not my part to decide those questions. Indeed, it would be most improper for me to comment on the conduct by a brother judge of a trial before him. To the extent , however, that the Court of Appeal did look at the matter of the trial judge's "general conduct of the trial," and I quote those words from the reasons of the Court of Appeal, it appeared to find no fault with them.
8. I conclude accordingly that I have not been persuaded that there is any ground upon which I could properly interfere with the standing order which has already been made by Mr. Justice McNair and I propose accordingly to dismiss the plaintiffs' motions. I would add that it is my present view without having heard argument on the subject that the interveners, as a result of the filing of the amended statements of claim and the amended statements of defence, would have the right, without seeking leave, to file, if they see fit, amended statements of intervention. If counsel differ as to that preliminary view which I have expressed, that is a matter which, of course, may be spoken to and if there is, on the part of either counsel, a desire to conduct further discoveries, that also is a matter, I think, which may properly be spoken to at a future case management conference. The order of Mr. Justice McNair already envisages that the conduct of the interveners at the trial, at the second trial, as it was at the first, shall be subject to the orders and directions of the judge who will in due course be appointed to preside that trial.
...
10. I turn now to the second set of motions being the motions by NWAC for leave to intervene.
...
14. Briefly then, the case raises serious issues with regard to the rights of aboriginal women. I am satisfied on the evidence before me and notwithstanding counsel for plaintiffs' able submissions with respect to his cross-examination of the president of NWAC that NWAC is a most appropriate spokesperson for the interest of aboriginal women and that those interests are very much in play in these actions. I think that NWAC is in a position to bring a perspective to bear on the trial of these actions which will be of help to the Court and which will be different from the perspective which is already brought by the other interveners. I do not pretend for a moment that the other interveners did not honestly and sincerely attempt to represent the interests of aboriginal women in the first trial, but that trial is now history and the new trial which will be held will be a new start. I do think, however, that counsel for plaintiffs is simply wrong to assert as he does that the interest of aboriginal women which are different and, in my view, most seriously affected by Bill C-31 can be as adequately represented by men as by women. NWAC is an organization whose purpose is to represent the interest of aboriginal women and I think it can make a useful contribution to the trial of these cases.
15. Accordingly, NWAC will have leave to intervene and they can file a statement of intervention herein by June 30, 2000, its rights to conduct discoveries and to have discoveries of it conducted will be determined and may be spoken to at a future case management conference as will any other pre-trial matters affecting the participation of NWAC. To the extent that its rights at trial, and to participate at trial and to call witnesses and to cross-examine will not have already been determined by an order of the case management judge, those rights will be subject to the direction and control of the trial judge when the latter is named.
...
17. Having heard counsel for the present interveners and for the plaintiffs, it is my view on the question of costs, that this is a case where costs should be ordered payable forthwith and in any event of the cause by the plaintiffs. This is not the first time the plaintiffs have sought unsuccessfully to get rid of these interveners. In my view the motions were not properly brought, they should not have been brought, the order of Mr. Justice McNair was and is in place and I have given my reasons for dismissing the motions. Accordingly, the costs of the first motions made by the plaintiffs against the former or old interveners will be payable forthwith in any event of the cause, costs to be taxed including reasonable proper travelling expenses of counsel to attend the present hearing.
[18] The Plaintiffs went on to appeal Mr. Justice Hugessen's order of May 26, 2000. That appeal was dismissed with reasons delivered orally on November 7, 2001. The following paragraphs are of significance for the matters before me in this motion:
...
2. The original order granting intervener status to each of the Trial Interveners was issued by McNair J. on September 14, 1989, giving these interveners the right to adduce evidence and make submissions on the issues of band membership status or rights to status. That order was appealed to this Court, but remained dormant for almost seven years whereupon it was dismissed without an appeal hearing for want of prosecution.
3. The case management orders now under appeal are attacked on the basis that Hugessen J. is said to have erred by not properly limiting the scope of intervention as required by Rule 109(3) of the Federal Court Rules, 1998, thereby permitting unfair and wide intervention in an unregulated manner. The appellants submit either there should be no interveners, or, alternatively, there should be one intervener whose participation is limited to written submissions.
4. We can find no error on the part of the case management judge in his refusal to disturb the order of McNair J. granting status to the Trial Interveners. We agree with his finding that the matter is res judicata; namely, the same question has already been decided, the order of McNair J. was appealed and is a final order, and the parties are the same (see Diamond v. The Western Realty Co., [1924] S.C.R. 308 at 315; Angle v. Canada (Minister of National Revenue), [1975] 2 S.C.R. 248 at 254). We also agree that no new circumstances have been advanced by the appellants that would permit the order of McNair J. to be set aside or varied under Rule 399 so as to narrow its scope.
5. In our view, it is open to the appellants to apply to the case management judge under Rule 385 to narrow the statements of intervention of the Trial Interveners so as to ensure that the actual trial is not burdened with individual issues or causes of action that are collateral to the main issues.
6. As to the case management judge's order granting intervener status to NWAC, we can find no reversible error or misuse of his judicial discretion of any kind. While it is true that NWAC seeks to intervene in support of the Crown's position that Bill C-31 is constitutionally valid, Hugessen J. found that its submissions would offer a useful and different perspective than that of the Crown or the Trial Interveners.
[19] The Federal Court of Appeal was obviously alive to the Plaintiffs' concern that the Interveners should not be allowed to burden the proceedings with unrelated individual issues. However, the Court certainly did not rule that the Interveners were doing, or had done, any such thing, but pointed out that, if this was an issue of concern for the Plaintiffs, they could apply to the case management judge under Rule 385 to narrow the Statements of Intervention.
[20] Significantly, no such motion to narrow the Statements of Intervention as suggested by the Federal Court of Appeal was ever brought by the Plaintiffs. In view of the position they now take before the Court, their omitting to follow the suggestions of the Federal Court of Appeal does not assist their case.
[21] Against this background, Mr. Justice Hugessen made his Pre-Trial Order of March 26, 2004 indicating that the "participation of interveners at the trial is the subject of Orders previously given by McNair J. on September 14, 1989 and Hugessen J. on May 26, 2000."
[22] It was also against this background that, following a management conference meeting on October 27, 2004, I issued a direction on October 28, 2004, dealing with several issues including the following:
Bearing in mind that the participation of the interveners at the trial is already to some extent subject to orders previously made by McNair J. on September 14, 1989 and Hugessen J. on May 26, 2000 and March 26, 2004, the Interveners should, by motion, seek the Court's determination on any matter related to participation at the trial not already dealt with by previous orders and/or left for determination of the trial judge including, but not necessarily limited to, the right to cross-examine the witnesses of other parties at the trial.
Analysis
The Present Status of the Interveners
[23] It seems to me that the Federal Court of Appeal, in its oral judgment of November 7, 2001, made the following matters abundantly clear:
1. Mr. Justice Hugessen made no error when he refused to disturb the order of Mr. Justice McNair granting status to the interveners;
2. the status of the interveners is res judicata and the order of Mr. Justice McNair is a final order;
3. no new circumstances were advanced by the Plaintiffs that would permit the order of Mr. Justice McNair to be set aside or varied under Rule 399 so as to narrow its scope.
[24] The present motion to determine the role that the Interveners should play at trial was brought by the Interveners following my direction. The Plaintiffs argued strenuously, at the management conference that preceded that direction, that the onus was on the Interveners to bring such a motion. I agreed with them. The matter was not raised at the time, but I can now see why the Plaintiffs' counsel was so insistent that it be the Interveners who brought this motion. He has been warned before about repetitive challenges to the status and role of the Interveners and he has been told what the consequences will be. Here is Mr. Justice Hugessen in his Order of May 26, 2000, at paragraph 17, directly on point:
Having heard counsel for the present interveners and for the plaintiffs, it is my view on the question of costs, that this is a case where costs should be ordered payable forthwith and in any event of the cause by the plaintiffs. This is not the first time the plaintiffs have sought unsuccessfully to get rid of these interveners. In my view the motions were not properly brought, they should not have been brought, the order of Mr. Justice McNair was and is in place and I have given my reasons for dismissing the motions. Accordingly, the costs of the first motions made by the plaintiffs against the former or old interveners will be payable forthwith in any event of the cause, costs to be taxed including reasonable proper travelling expenses of counsel to attend the present hearing.
[25] The present motion is not a motion to vary the order of Mr. Justice McNair of September 14, 1989. No new circumstances have been placed before me in a Rule 399 motion by the Plaintiffs or anyone else to vary that order. The status of the Interveners remains res judicata. All that remains to be determined is the full extent of the role they should play at trial. That role has already been significantly determined by the order of Mr. Justice McNair, which is a final order and which has not been varied:
...
4. That the interveners may be represented by counsel and may:
(a) call evidence at trial;
(b) call expert evidence at trial in accordance with the Federal Court Rules; and
(c) present oral and written argument at trial.
5. That the right of the interveners to cross-examine at trial the witnesses called by the other parties is left to be determined by the trial judge.
...
[26] Hence, Mr. Justice Hugessen, in his case management orders, and the Federal Court of Appeal, have made it clear that, as trial judge, I need to decide what right the interveners should have "to cross-examine at trial the witnesses called by the other parties ... ."
[27] This is precisely the position taken by the Interveners in this motion. I agree with them. The Interveners are not making mischief and they are not deliberately misleading the Court, as the Plaintiffs allege. They are following in a responsible and honest manner the course of conduct that has been stipulated by this Court and endorsed by the Federal Court of Appeal.
[28] The Plaintiffs say that the Court of Appeal "addressed the role of the Interveners at the second trial [and] endorsed an approach which would narrow the role of the Interveners at trial to 'ensure that the actual trial is not burdened with individual issues or cause (sic) of actions that are collateral to the main issues' [emphasis by the Plaintiffs] ... [and] it also confirmed that participation of the Interveners at trial would be left to the discretion of the trial judge." What the Plaintiffs mean by this, as they explained at the hearing of this motion, is that the Federal Court of Appeal, concerned about excessive interference by the Interveners in the first trial, has directed me as trial judge to assess the role of the Interveners de novo and to limit it.
[29] The Federal Court of Appeal did no such thing. Mr. Justice Hugessen has already told the Plaintiffs in his order of March 26, 2000 that "to the extent, however, that the Court of Appeal did look at the matter of the trial judge's 'general conduct of the trial,' and I quote those words from the reasons of the Court of Appeal, it appeared to find no fault with them."
[30] The Plaintiffs say that the Interveners are misleading the Court. They are not.
[31] The remarks of the Federal Court of Appeal cited by the Plaintiffs to support their position are taken from that Court's oral judgement of November 7, 2001. They are cited out of context. The Federal Court of Appeal was merely pointing out that the Plaintiffs were at liberty to apply to the case management judge under Rule 385 to narrow the statements of intervention if they so wished. The Plaintiffs did not do this. The Federal Court of Appeal passed no comment to suggest that the statements of intervention should be narrowed.
[32] The Federal Court of Appeal also said, in the same judgement, that "in a complex case, subject to case management, it makes sense that pre-trial matters be left to the direction of the case management judge and that the participation of interveners at the trial be left to the direction of the trial judge." The Court did not say that the trial judge in this case should now re-visit the whole status of the Interveners and the full role they should play in the second trial. The comments were made in the context of the Court's consideration of whether Mr. Justice Hugessen's orders complied with Rule 109(3). The Plaintiffs said they did not. The Court said they did and that "it is clear that Hugessen J. was cognizant of and put his mind to the requirements of Rule 109(3)." Rule 109(3) does not require that a complete set of directions be given at the time the intervention application is granted, as the Plaintiffs had argued. There was nothing wrong with Mr. Justice Hugessen's orders because, in a general sense, they allowed pre-trial matters to be directed by the case management judge and participation at trial to be directed by the trial judge. These remarks were not specific directions, or an endorsement, or an "expression of concern" by the Federal Court of Appeal that the role of the Interveners at trial in this case was too broad and needed to be narrowed.
[33] However, the status of the Interveners and their role at the second trial were indeed addressed by the Federal Court of Appeal in the same judgement, but not in the manner alleged by the Plaintiffs. This occurs at paragraph 4 where the Court says that the status of the Interveners is res judicata and is dealt with in the order of McNair J. which is "a final order," and "no new circumstances have been advanced by the appellants [the Plaintiffs] that would permit the order of McNair J. to be set aside or varied under Rule 399 so as to narrow its scope."
[34] At the hearing of the present motion in Edmonton, the Plaintiffs took up a significant part of two days of Court time, and the time and effort of other counsel, to re-hash matters that are obviously res judicata and which they have tried to re-hash before. I allowed them to do this because counsel for the Plaintiffs advised the Court in no uncertain terms that the Interveners, in their presentation, were misleading the Court and that their purpose was mischief. These are extremely serious allegations on which I allowed argument. Naturally, when an officer of the Court tells me that opposing counsel are misleading the Court and creating mischief, I want to hear the details and I want to examine the situation thoroughly. I have now done that.
[35] I have, on several occasions, made it clear to counsel on both sides of this dispute that I expect them to ensure that this matter comes to trial in an efficient and timely manner and that they must conduct themselves with civility and desist from ad hominem attacks upon opposing counsel. On this occasion, that direction was not followed by counsel for the Plaintiffs. This matter is of extreme concern to me because, not only does it raise professional conduct issues, but it impacts negatively upon the administration of justice in this dispute. The progress of the dispute was impeded, and valuable Court time was wasted, in addressing matters that, on examination, are clearly res judicata. Because counsel for the Plaintiffs indicated strongly that the Interveners were misleading the Court and creating mischief, the Court was misled into hearing representations on matters that have already been argued ad nauseam before the Court, and upon which this Court and the Federal Court of Appeal have already ruled. This is a serious matter for the Court.
[36] Mr. Justice Muldoon and Mr. Justice Hugessen, in their involvement with this action, have both expressed their displeasure at the conduct of counsel. If I look back at the words of Mr. Justice Muldoon when he considered the challenge to the status of the Interveners that was mounted by the Plaintiffs at the beginning of the first trial, I am struck by the following:
I am going to say at the outset that this motion is dismissed. I am going to say that this motion borders on an abuse of the Court's time. And I say that because the order of Mr. Justice McNair is abundantly clear.
[37] I am not, of course, dealing with a motion by the Plaintiffs. I am dealing with a motion by the Interveners who wish to clarify their role at trial in accordance with previous orders of this Court, and which the Plaintiffs have tried to use as an opportunity to re-hash the whole position of the Interveners in a way that they have tried on previous occasions and failed.
[38] Also, I differ from Mr. Justice Muldoon in several respects. In the motion before me, not only is the order of Mr. Justice McNair "abundantly clear," but so is the order of the Federal Court of Appeal of November 7, 2001 abundantly clear that the status of the Interveners is res judicata and the order of Mr. Justice McNair is "a final order."
[39] In addition, the position that counsel for the Plaintiffs has taken in the motion before me does not "border[s] on an abuse of the Court's time," it actually is an abuse of the Court's time.
[40] Counsel for the Plaintiffs made much of his motion before Mr. Justice Muldoon at the first trial and he asked me not to make the same mistake that Mr. Justice Muldoon made by allowing the Interveners too much latitude. When I review the record, I am struck again by the following strong words of Mr. Justice Muldoon:
I am going to dismiss this motion. Costs will be determined at the end of the trial. And be prepared for argument because I intend to consider whether the costs ought to be payable personally by the solicitor of record in (sic) counsel in this abusive motion, which is absolutely contrary to the order of Mr. Justice McNair, absolutely contrary - the manner in which the parties have been proceeding which they have an expectation that they should proceed the interveners do - absolutely contrary to that. And along comes eleventh-hour counsel and says, Let's wipe all that out. You know, too late.
Now, what we should do, having said that, is get on with the trial.
[41] Once again, the situation before me differs significantly from the one that confronted Mr. Justice Muldoon when he was asked to disregard the order of Mr. Justice McNair, but not in a way that benefits the Plaintiffs. I am not confronted by "eleventh-hour counsel"; I am confronted by counsel who knows the history of this dispute very well, and who knows what has been said and ordered in relation to the Interveners by previous judges of this Court and the Federal Court of Appeal, and who actually made the motion to limit the role of the Interveners before Mr. Justice Muldoon.
[42] Also, I do not believe this is a situation where costs should be determined at the end of trial. Costs should be considered and ordered payable forthwith and in any event of the cause.
The Role of the Interveners at Trial
[43] The Interveners take the position that their rights of participation at trial have, to a certain extent, already been defined by the order of Mr. Justice McNair. I agree.
[44] When Mr. Justice McNair allowed NCC, NCCA and NSIA to be added as interveners in his order of September 14, 1989, he gave them "the right to adduce evidence in support of their respective positions as to the issues involving band membership status ..."
[45] He also gave them the right:
1. to call evidence at trial;
2. to call expert evidence at trial in accordance with the Federal Court Rules; and
3. to present oral and written argument at trial.
[46] What he specifically left to be determined by the trial judge was "the right of the intervenors (sic) to cross-examine at trial the witnesses called by the other parties ... ."
[47] Before I come to the matter of cross-examination, it seems to me that several issues require some clarification:
1. what kind of limitation (if any) does paragraph 3 of Mr. Justice McNair's order place upon the Interveners' rights to adduce evidence in support of their respective positions "as to the issues involving band membership status or the right to band membership status"?
2. what right do the Interveners have to participate in trial motions and interlocutory matters?
3. what right do the Interveners have to make individual opening statements?
[48] The Plaintiffs say that the "only issue which the Interveners were arguably granted status to address" was "can the Defendant meet the test of justification set out by the Supreme Court of Canada in the case of Sparrow." They also make the following written representations on this matter:
...
64. Fourth, the issues involving band membership status and the right to band membership status are not the issue that this case is all about. As the Court of Appeal indicated, they are at best issues that are "collateral" to the main issues. Put otherwise, issues which the Court of Appeal felt, also with the benefit of hindsight, the actual trial should not be burdened with. The main issues in this case are those raised in the lis, namely: (i.e. (I) do the Plaintiffs' have the section 35 rights asserted; (ii) if so, were they infringed by Bill C-31; (iii) if so, were they extinguished; (iv) if not, can the Crown meet the justification test set out by the Supreme Court of Canada in Sparrow). The Interveners were granted status to address why Bill C-31 was enacted, not these main issues. Why individuals were given membership rights. Put otherwise, to speak about why the Indian Act discriminated against certain individuals and why that discrimination was not in compliance with section 15 of the Charter. That has nothing to do with aboriginal or treaty rights recognized by section 35.
...
73. First, the Interveners have not been granted status to address aboriginal and treaty rights. McNair J. did not allow them to get into those issues. He restricted them to addressing issues concerned with band membership status. Accordingly, the Interveners were not entitled to put a position to the Court concerning aboriginal and treaty rights. Nor should they. Nor did the Plaintiffs anticipate that they would, particularly given their indication to the Court they had no intention of filing any oral history evidence.
...
80. The Plaintiffs also wish to make clear that they are not concerned with what the Interveners have to say about why Bill C-31 was made into law. They appreciate that there will be a full argument advanced concerning the application of section 15. What they are concerned about is duplication, costs, an unnecessarily adversarial trial process, and a trial process which will not focus on the issues raised in the lis. For example, why does the Court need to hear from each of four different intervener counsel on issues that have nothing to do with the interveners (i.e., what the aboriginal and treaty rights of the Plaintiffs' are; their oral histories; what agreed statement of facts the parties agreed to; how the parties intend to address read-ins; whether or not the aboriginal or treaty rights were infringed; whether or not those rights were extinguished; the choice of an interpreter; whether or not oral history evidence is expert evidence; why the Crown experts should be entitled to give expert evidence on the reliability or oral history evidence, what the parties agree to file in an agreed exhibit book; and the many interlocutory issues which will arise in a long trial between the parties). Why does an Intervener counsel have to cross-examine an elder about oral history when the Intervener was not granted status on that issue and when there will be a cross-examination by the Crown? Why should they be permitted to cross-examine representatives of the Tsuu T'ina and Sawridge First Nations about their financial circumstances when they have not been granted intervener status to address that issue and in any event, the issue is irrelevant? If the Crown believes it is relevant it can cross-examine. The point of course is this has nothing to do with sexual discrimination as that concept is known in law which they say occurred under section 12(1)(b). It has nothing to do with the legislative right of a person to claim membership.
[49] The Interveners are of the view that "issues involving band membership status or the right to membership status," referred to in the order of Mr. Justice McNair, is no real limitation at all, because this is what this trial is all about.
[50] At the hearing of this motion in Edmonton, counsel for the Plaintiffs argued very strongly that the Interveners were solely concerned with section 15 of the Charter and, because the Crown was equally capable of articulating the equality aspects of the case, there was no need for the Interveners to take an active role at the trial. I believe that this is merely an invitation to me to disregard previous decisions of this Court that confirm that the Interveners do have a useful role to play that is not coterminous with that of the Crown. What is more, I do not believe that the section 15 aspects of this dispute can be isolated in the way the Plaintiffs suggest. In this regard, counsel for NWAC drew my attention to the following words of L'Heureux-Dubé J. in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at paragraphs 54 and 67 that emphasize the need for a contextual approach to section 15:
54. I emphasize, however, that as I will discuss below, the contextual approach to s. 15 requires that the equality analysis of provisions relating to Aboriginal people must always proceed with consideration of and respect for Aboriginal heritage and distinctiveness, recognition of Aboriginal and treaty rights, and with emphasis on the importance for Aboriginal Canadians of their values and history.
...
67. When analysing a claim that involves possibly conflicting interests of minority groups, one must be especially sensitive to their realities and experiences, and to their values, history, and identity. This is inherent in the nature of a subjective-objective analysis, since a court is required to consider the perspective of someone possessed of similar characteristics to the claimant. Thus, in the case of equality rights affecting Aboriginal people and communities, the legislation in question must be evaluated with special attention to the rights of Aboriginal peoples, the protection of the Aboriginal and treaty rights guaranteed in the Constitution, the history of Aboriginal people in Canada, and with respect for and consideration of the cultural attachment and background of all Aboriginal women and men. It must also always be remembered that s. 15(1) provides for the "unremitting protection" of the right to equality, in whatever context the analysis takes place, whether there is one disadvantaged or minority group affected or more than one: see Andrews, supra, at p. 175; R. v. Turpin, [1989] 1 S.C.R. 1296, at p. 1326. In addition, it must be recalled that all the circumstances must always be evaluated from the perspective of a person with similar characteristics to the claimant, fully informed of the circumstances.
[51] At this point, I am not making a ruling on what might, or might not, be required to deal effectively with the range of issues before the Court in this action, but I am not prepared to side-line the Interveners in the way requested by the Plaintiffs. They bring a different perspective from that of the Crown on some matters that, in my view, will be of considerable assistance to the Court in dealing with the issues raised by this trial. Of course, I agree with the Plaintiffs that the Interveners are not parties and cannot be permitted the scope of parties at the trial. But this is another issue that the Plaintiffs have raised before this Court before, and for which they have received an answer. I rely again upon the assessment of Mr. Justice Hugessen in his reasons of May 26, 2000 at paragraph 12:
Where counsel for the proposed intervener and for the plaintiffs appear to differ is not in the law with respect to interventions but in the characterization of the reach and scope of the present actions. Counsel for plaintiffs seem to take the view that these actions are essentially private matters between the plaintiffs and the government in which the plaintiffs seek to assert their own personal rights flowing to them from aboriginal treaty rights or perhaps the Royal Proclamation of 1763 (and by characterizing them as personal rights I do not mean that they are not group rights as all aboriginal rights are) but a matter of interest essentially only to, and personal actions by, themselves. In my view and with great respect, that is an unrealistic attitude. It is a head in the sand attitude. I think the Court of Appeal in its decision to which I referred a moment ago in this very case, very neatly summed up the nature and scope of this action when it said of the trial judge that the action before him:
"....the dispute before him involved in reality conflicting claims among various segments of the Aboriginal community to control or to claim membership in Indian bands."
[52] In my view, it would not be appropriate at this time, or at any time, for the Court to accept the Plaintiffs' invitation to put its head in the sand and to order that the Interveners' role at the trial should be limited to section 15 of the Charter, the test of justification, or in any other way that would deprive the Court of their assistance in dealing with the contextual implications of the issues raised in the action. As the trial progresses, and the Court gains a fuller appreciation of the several perspectives brought to this action by the Interveners, it may be necessary to confine their role and their scope in some way. But that is a matter for fine-tuning at the trial.
[53] Previous orders of this Court, the history of participation by the Interveners, and my own assessment to date of what the Interveners bring to this action, suggest to me that the Interveners will be of significant assistance to the Court at trial. I believe that the Interveners should participate in trial motions, as they have done in pre-trial motions, to the extent of their several perspectives and avoiding duplication. Once again, this is a matter that can be modified as the trial proceeds should it become apparent that the Interveners are abusing their roles or attempting to widen or modify the lis in any way.
[54] The same applies to opening statements. I cannot see how the Interveners can assist the Court if, having been given the right to participate in oral and written argument, they do not have a right to make individual opening statements. Once again, however, those statements must avoid duplication and should confine themselves to the perspective that each Intervener has been authorized to represent and articulate.
Cross-Examination in Particular
[55] The Interveners propose that they should be permitted to cross-examine the Plaintiffs' witnesses. Generally speaking, one Intervener will be selected to do this on behalf of all four, unless the needs of a particular situation require something different, in which case they will seek leave of the Court to vary the procedure.
[56] The Interveners do not seek to cross-examine the Defendant's witnesses, except with leave of the parties or the Court upon special grounds, and believe that their several perspectives can be used adequately to assist the Court if they are allowed to put supplementary questions to Crown witnesses during examination-in-chief, prior to the Plaintiffs' cross-examination.
[57] The order of Mr. Justice McNair has already given the Interveners the right to "present oral and written argument at trial." Their respective roles have been confirmed in orders of this Court, notwithstanding repeated attempts by the Plaintiffs to eject them from the action. They have demonstrated in their appearances before me that they bring assistance to the Court and have been impeccable in avoiding duplication or taking up the Court's time unnecessarily.
[58] Apart from their allegation that the Interveners bring no real assistance to the Court, which has been addressed several times throughout the history of this action, the Plaintiffs' chief complaint is that if the Interveners are allowed to cross-examine the Plaintiffs' witnesses, this will unnecessarily lengthen the trial and give rise to additional cost.
[59] Having repeatedly confirmed the useful perspectives that the Interveners bring to this action, and having granted them the right to present oral and written argument at trial, I do not see why the Court should now dilute this advantage by denying the Interveners the right to cross-examine witnesses at trial, always providing, of course, that duplication is avoided and they confine themselves to testing the evidence of the Plaintiffs' witnesses from the perspectives they individually claim to bring to the assistance of the Court.
[60] Presumably, the Plaintiffs will be leading evidence to contradict the oral and written arguments that the Interveners have been permitted to present. It would be most unfair, then, if the Interveners could not cross-examine the Plaintiffs' witnesses on those matters related to their own positions. But what is more important, it would be of little assistance to the Court to prevent the Interveners from cross-examining the Plaintiffs' witnesses on such matters.
[61] For similar reasons, it seems important to me that the Interveners should be allowed to examine Crown witnesses to some extent. The position of the Interveners is not coterminous with the Crown on all issues to which this dispute gives rise. Where the Interveners are not adverse in interest to the Crown, non-repetitive, supplemental questions following examination-in-chief will assist the Court to understand a broader perspective and contextual matters that the Crown may have no interest in exploring. Where the Interveners are adverse to the Crown, they should be permitted to seek leave to cross-examine a Crown witness as and when necessary.
[62] The Court is most anxious to avoid duplication, any widening of the lis, issue poaching and unnecessary prolixity at trial, or indeed at any time. It is gratifying to know that these are also matters of concern to the Plaintiffs. But all this motion by the Interveners is intended to do is establish the general framework for their participation at trial. In granting such general rights of participation the Court does not intend to forget that the Interveners are not parties and that their purpose is to assist the Court by articulating perspectives that are not subsumed, or adequately addressed, by the Plaintiffs and the Crown.
[63] In any situation at trial the Interveners will have to show how they are assisting the Court, and what their intervention, whether by way of cross-examination or otherwise, can usefully add. In my view, the key to Intervener participation lies less in the general range of rights they are given (which should be broad enough to allow them to assist the Court as and when that may be appropriate) than it does in ensuring that those rights are exercised at trial in a manner that is commensurate with their limited status as Interveners, and that does not lengthen or broaden the proceeding beyond the issues defined in the pleadings.
[64] At paragraph 58 of his written submissions, counsel for the Plaintiffs produces the following emphatic statement:
That is not the Plaintiffs' position. They are not challenging any intervener's right to participate at trial. Nor do they argue that the organizations which they represent have no interest or concern in the issues (although the Plaintiffs do say that they do not have a direct interest because they are not directly affected). The question raised by the Plaintiffs is what the scope of their position should be, not whether they have an interest.
[65] One wonders how such a statement can be made by counsel who has repeatedly tried to eject the Interveners completely from this action and who, during oral argument in this motion, made it clear that, in his view, the Interveners brought nothing to the action that the Crown cannot deal with, and that the Interveners should have no right to cross-examine witnesses at the trial. This motion involved a fairly simple issue: given the scope already granted to the Interveners by a previous final order of this Court, and confirmed by the Federal Court of Appeal, and given the fact that the Plaintiffs have not sought to vary that order in any way that the law allows, what latitude should the Interveners have to cross-examine witnesses and otherwise participate at trial? It is perfectly legitimate for the Plaintiffs to argue strenuously that the trial must not be allowed to deviate from the issues that the parties have placed before the Court. It is also helpful for the Plaintiffs to emphasize that this is a re-trial, and that means we are in a somewhat different situation from the first trial in many significant ways:
Another factor also arises from the unusual position in which the Court is in. This is not only a re-trial. It is a re-trial where there are Orders applicable to the re-trial which allow the Interveners to rely on the evidence adduced in the first trial, require the Interveners to identify what evidence which was adduced that they intend to rely on (which they have done), and require the Interveners to provide will say statements confirming what further evidence they seek to adduce with one exception (which they have also done). The Court therefore knows what the existing record that the Interveners are relying on is, what further evidence they seek to adduce, and how the two compare. As the will say statements of the Interveners confirm, the evidence which the Interveners now seek to adduce is the same kind of evidence which they called in the first trial. It is evidence concerning issues involving the membership status or the right to band membership status of women which was granted pursuant to Bill C-31, which again is the only issue which Mr. Justice McNair found they should be entitled to address. In fact, other than relying on the first trial record and calling further expert evidence, that is the only kind of evidence which the Crown intends to call (see will say statement of Elizabeth Poitras). The only exception to all of this is the evidence which the NCCA intends to call through former Minister of Indian Affairs, David Crombie, which is a witness with the Plaintiffs intend to call in any event, and whatever expert evidence they are entitled to file.
[66] To a considerable extent, of course, similar issues arise in relation to all of the participants, at least once we have seen the full compliment of will say statements from all of the parties.
[67] Notwithstanding these strong points, the motion should not have been used by the Plaintiffs as an opportunity to try, yet again, to neuter the Interveners by re-hashing matters that are res judicata, or as an opportunity to cast aspersions on the sincerity of opposing counsel.
General Conduct Issues
[68] In the context of what promises to be a long and arduous trial, and because of the significant number of issues that still need to be dealt with before trial can begin, the Court would like to remind all counsel of the following points:
1. unwarranted personal, ad hominem attacks against opposing counsel must cease. They are interfering with the administration of justice;
2. motions and interlocutory matters must be dealt with in an efficient and timely manner. The restrictions contained in the Federal Court Rules, 1998 dealing with the form and volume of written materials must be complied with unless the Court rules otherwise;
3. if any motion is likely to exceed two hours in duration, it would be helpful if counsel could indicate the expected length of time on filing materials and indicate why more time is necessary;
4. prolixity in presentation is neither helpful or persuasive.
[69] The Court looks to counsel to ensure that the excesses and lapses evident in the present motion are not repeated.
ORDER
THIS COURT ORDERS THAT:
1. the Interveners are granted leave to cross-examine the Plaintiffs' witnesses through a single representative counsel as agreed to by the Interveners, as well as the right to seek leave of the Court to cross-examine the Plaintiffs' witnesses separately under appropriate circumstances and subject to whatever restrictions the Court may impose;
2. each Intervener is granted leave, following examination-in-chief by the Crown, and before cross-examination by the Plaintiffs, to examine Crown witnesses with supplementary questions;
3. any Intervener may seek leave of the Court in appropriate circumstances to cross-examine Crown witnesses subject to whatever restrictions the Court may impose;
4. the Court confirms that each Intervener may make oral and written opening statements;
5. the Court confirms that each Intervener may make submissions on motions and interlocutory matters during trial;
6. the above rights are granted subject to the general proviso that they must only be exercised by the Interveners in fulfilment of their limited intervention status and shall further be subject to whatever conditions the Court may impose at trial to prevent duplication and to ensure that each Intervener does not exceed the scope of their intervention status;
7. the Interveners shall have their costs of this motion payable forthwith and in any event of the cause, including reasonable travelling expenses of counsel to attend the hearing.
"James Russell"
JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-66-86 A & T-66-86 B
STYLE OF CAUSE: SAWRIGDGE BAND
Plaintiff
- and-
HER MAJESTY THE QUEEN
Defendant
-and-
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA, NATIVE WOMEN'S ASSOCIATION
OF CANADA
Interveners
-and-
TSUU T'INA FIRST NATION
Plaintiff
- and-
HER MAJESTY THE QUEEN
Defendant
-and-
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
NON-STATUS INDIAN ASSOCIATION OF ALBERTA, NATIVE WOMEN'S ASSOCIATION
OF CANADA
Interveners
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: NOVEMBER 18 AND 19, 2004
REASONS FOR [ORDER or JUDGMENT] : RUSSELL, J.
DATED: December 6, 2004
APPEARANCES:
Catherine Twinn FOR PLAINTIFF
Twinn Barristers and Solicitors
Slave Lake, Alberta
Philp P. Healey
Aird & Berlis LLP FOR PLAINTIFF
Kevin Kimmis / James Kindrake FOR DEFENDANT
Department of Justice
Edmonton
Mary Eberts FOR NATIVE WOMENS
Eberts Symes Street Pinto & Jull ASSOCIATION OF CANADA
Toronto, Ontario AND NATIVE COUNCIL OF
CANADA
P. Jon Faulds / Derek Cranna FOR NATIVE COUNCIL OF
Field LLP CANADA (ALBERTA)
Edmonton, Alberta
Michael J. Donaldson FOR NON STATUS INDIAN
Burnet, Duckworth & Paulmer LLP
Calgary, Alberta