Date: 20020823
Docket: A-35-02
Neutral citation: 2002 FCA 305
CORAM: STRAYER J.A.
BETWEEN:
SHEILA COPPS and MINISTER OF CANADIAN HERITAGE
Appellants
and
MIKISEW CREE FIRST NATION
Respondent
and
THE THEBACHA ROAD SOCIETY
Respondent
REASONS FOR ORDER
STRAYER J.A.
[1] I am not satisfied that the moving party, the Canadian Energy Pipeline Association ("CEPA") has demonstrated, as required by Rule 109(2)(b), that its participation
will assist the determination of a factual or legal issue related to the proceeding.
[2] The appeal as framed by the appellant concerns issues of aboriginal rights within a National Park, and the question of whether the granting of a permit to a private group to build and operate a winter road through the Park infringes any treaty rights of the respondent First Nation. The grounds of appeal are as follows.
1. The judge made an error of law in finding that the Mikisew Cree First Nation has treaty rights to hunt and trap within Wood Buffalo National Park.
2. In the alternative, if there are treaty rights to hunt and trap within Wood Buffalo National Park, the judge made an error of law in finding that the Minister's decision to approve the winter road within Wood Buffalo National Park constituted an infringement of treaty rights.
3. In the further alternative, if the winter road within Wood Buffalo National Park constitutes an infringement of treaty rights, the judge made an error of law in finding that the infringement of the treaty right was not justified.
[3] The moving party seeks leave to present argument on grounds 2 and 3. In part the moving party appears to want to argue the extent of consultation and review required by the Canadian Environment Assessment Act ("CEAA") when aboriginal rights may be affected. The moving party's grounds for intervening are mainly stated in their submissions as follows.
9. The decision that is the subject of this appeal has far-reaching implications for CEPA's Members because of its impact on the efficiency, predictability and fairness of the regulatory approval process in cases where aboriginal interests are potentially affected by a proposed project.
10. A large portion of Alberta is covered by Treaty No. 8, the interpretation of which formed an important part of the judgment under appeal herein. The manner in which the Motions Judge interpreted the provisions of Treaty No. 8 and the rights and obligations of the Crown thereunder will have implications for CEPA's Members whenever they seek approval in areas subject to Treaty No. 8.
11. In particular, the Motions Judge made certain findings regarding the adequacy of the consultation process that was followed by the Respondents in this case, including the adequacy of the consultation carried out under the aegis of CEAA. Also of interest to CEPA's Members is the Motions Judge's treatment of the issue of whether the Crown may rely on others in relation to the discharge of its duty to consult with aboriginal groups.
12. If leave to intervene is granted, CEPA will not take any position on the ultimate disposition of the appeal, nor will it seek to adduce any new evidence, apart from that filed in support of this application. Rather, CEPA wishes to assert the interests of private industry in maintaining an efficient, fair and predictable regulatory approval process.
* * * * * * * * * * * * * * * * * * * *
15. Having regard to these considerations, CEPA wishes to argue that:
(a) Treaty No. 8 rights are not absolute and must be read subject to their own internal limitations, which limitations the Motions Judge did not consider;
(b) the Crown's duty to consult with aboriginal people regarding aboriginal and treaty rights under subsection 35(1) of the Constitution Act, 1982 is co-extensive with the statutory requirements embodied in the CEAA process and that those requirements fulfill that duty; and
(c) the Crown may rely on others in relation to the discharge of its duty to consult with aboriginal groups.
[4] Applying the criteria for interventions set out in Canadian Union of Public Employees v. Canadian Airlines International Ltd. [2000] F.C.J. No. 220 (F.C.A.) I find that there is no adequate basis for allowing this intervention. The basic issues in the appeal involve the existence, extent and possible justification for infringement, of rights under Treaty 8 in a National Park. It appears to me that the issues are specific to the two parties to the appeal and to the proper scope of treaty rights.
[5] In terms of the criteria in the C.U.P.E. case (supra), the would-be interveners will not be directly affected by the outcome and there is no "related public interest question which naturally arises out of the existing lis between the parties" (see Benoit v. Canada [2000] F.C.J. No. 518 (F.C.A.) at para. 18) which will not be raised and dealt with by the present parties. The appeal should not be turned into a general debate on the method, sufficiency, and effect of consultation with aboriginal groups by private parties. With respect, I believe this Court can decide the real issues on their merits without the extra burden of time and expense that would be placed on the parties and the Court by such an intervention.
(s) "B.L. Strayer"
J.A.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-35-02
STYLE OF CAUSE: Sheila Copps and Minister of Canadian Heritage
v.
Mikisew Cree First Nation and The Thebacha Road Society
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER : Strayer, J.A.
DATED: August 23, 2002
APPEARANCES:
Mr. Robert Normey FOR THE MOVING PARTY
(Attorney General of Alberta)
Mr. Larry Hukulak FOR THE APPELLANTS
Mr. Stephen Zaluski FOR THE RESPONDENT
(Mikisew Cree First Nation)
SOLICITORS OF RECORD:
ALBERTA JUSTICE FOR THE MOVING PARTY
Edmonton, Alberta (Attorney General of Alberta)
Department of Justice FOR THE APPELLANTS
Edmonton, Alberta
RATH & COMPANY FOR THE RESPONDENT
Priddis, Alberta (Mikisew Cree First Nation)