Date: 20000531
Docket: T-66-86A
BETWEEN:
BERTHA L"HIRONDELLE suing on her own behalf
and on behalf of all other members of the Sawridge Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Interveners
AND
Docket: T-66-86B
BETWEEN:
BRUCE STARLIGHT suing on his own behalf and
on behalf of all other members of the Sarcee Band
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
NATIVE COUNCIL OF CANADA,
NATIVE COUNCIL OF CANADA (ALBERTA)
and NON-STATUS INDIAN ASSOCIATION OF ALBERTA
Interveners
REASONS FOR ORDER
(Delivered from the Bench, Toronto, Ontario
May 26, 2000)
HUGESSEN J.
[1] I have before me two motions in each of these two cases. The first motions, one in each case, in identical terms, are brought by plaintiffs and seek to terminate or restrict the participation of the interveners herein. The second motions, likewise in identical terms, are brought by the Native Women's Association of Canada (NWAC) and seek leave to intervene in each of the actions, each of the motions is opposed.
[2] A brief history of the matter is appropriate. The action which started off as a single action with three representative plaintiffs was launched in 1986. It is an attack upon the legislation known popularly as Bill C-31, the amendments to the Indian Act. In 1989, Mr. Justice McNair on a very full record consisting of materials, cross-examinations on affidavits and after a hearing of approximately a day gave an order giving leave to the present interveners to intervene in the action. The plaintiffs opposed that application and when it went against them, they appealed the order of Mr. Justice McNair to the Court of Appeal. That appeal was in due course dismissed for want of prosecution.
[3] The case went to trial, a very long trial was held in which the interveners participated, subject to the direction and control and in accordance with the orders of the trial judge. The trial judge's judgment on the merits was carried by the plaintiffs to the Court of Appeal which, without disposing of many of the grounds of appeal, allowed the appeal on the limited basis that the trial judge had demonstrated good grounds for a reasonable apprehension of bias and a new trial was ordered. No reference was made in the order of the Court of Appeal to the role which should be played by the interveners in the new trial.
[4] Shortly after the order for a new trial, I was appointed as case management judge and have acted as such since that time. It is perhaps relevant to note that since my appointment, I have made a number of orders, the effect of which has been to change the litigation in some respects. In particular, I note an order permitting the amendment of the statement of claim, an order striking out one of the representative plaintiffs and an order separating the other two representative plaintiffs, one from the other, so that where there was previously one action, there are now two.
[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 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 defense, 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.
[9] Before leaving those motions, I note that I believe the interveners have sought costs on these applications and that is a matter on which I would like to hear from counsel and I shall invite submissions after I conclude these reasons.
[10] I turn now to the second set of motions being the motions by NWAC for leave to intervene.
[11] Counsel appear to be in agreement as to the law and that that law is correctly set out in the judgments of both the Trial Division and the Court of Appeal in the case of Rothmans1. I would add as well that, in my view, while I think that case is still good law, I think it must be read in the light of the Federal Court Rules, 1998 which came into effect subsequent to that decision and I think Rule 109 throws some light upon the criteria which a Court should apply when determining whether or not an intervention is appropriate. That rule lays particular emphasis upon the contribution which a proposed intervener is in a position to make to the resolution of the issues of law or fact, the extent to which the intervention is going to help the Court in the resolution of those issues.
[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." 2 |
[13] Counsel for plaintiffs concedes, I think, that the actions involve in a very serious way issues of gender equality. I don't think that there can be any doubt as to that and what is more, I think that those issues raise not only questions relating to section 15 of the Charter but also as counsel for NWAC has ably submitted, questions relating to section 28 of the Charter and its impact on section 25 and questions relating to subsection 35(4) of the Constitution Act and its impact on the other subsections of that section.
[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.
[16] I, unless I am mistaken, do not think that the motions by NWAC raise any issue as to costs.
(LATER)
[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 traveling expenses of counsel to attend the present hearing.
"James K. Hugessen"
Judge
Ottawa, Ontario
May 31, 2000
[18]
__________________1 Rothmans, Benson & Hedges Inc. v. Attorney General of Canada,[1990] 1 F.C. 74 (Trial) Rothmans, Benson & Hedges Inc. v. Attorney General of Canada, [1990] 1 F.C. 90 (Appeal)
2 Sawridge Band v. Canada, [1997] 3 F.C. 580 (F.C.A.) at 590