Date: 20220225
Docket: A-254-21
Citation: 2022 FCA 36
Present: MONAGHAN J.A.
| BETWEEN:
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| THE MINISTER OF ENVIRONMENT AND CLIMATE CHANGE and THE ATTORNEY GENERAL OF CANADA
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| Appellants
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| and
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| ERMINESKIN CREE NATION and COALSPUR MINES (OPERATIONS) LTD.
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| Respondents
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Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on February 25, 2022.
| REASONS FOR ORDER BY:
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MONAGHAN J.A.
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Date: 20220225
Docket: A-254-21
Citation: 2022 FCA 36
Present: MONAGHAN J.A.
| BETWEEN:
|
| THE MINISTER OF ENVIRONMENT AND CLIMATE CHANGE and THE ATTORNEY GENERAL OF CANADA
|
| Appellants
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| and
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| ERMINESKIN CREE NATION and COALSPUR MINES (OPERATIONS) LTD.
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| Respondents
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REASONS FOR ORDER
MONAGHAN J.A.
[1] Wahgoshig First Nation, Innu Nation and Wabun Tribal Council (the proposed interveners) seek leave to intervene in this appeal of Ermineskin Cree Nation v. Canada (Environment and Climate Change) 2021 FC 758 (per Brown J.). The Federal Court allowed the judicial review application and set aside a decision of the Minister of Environment and Climate Change designating certain proposed mining-related physical activities under subsection 9(1) of the Impact Assessment Act, S.C. 2019, c. 28, s. 1. The two respondents in the appeal, Ermineskin Cree Nation [Ermineskin] and Coalspur Mines (Operations) Ltd. [Coalspur], are parties to an impact benefit agreement (IBA). They challenged the Minister’s decision. Ermineskin asserted that the Minister had a duty to consult Ermineskin and there was a lack of procedural fairness. Both Ermineskin and Coalspur argued the Minister’s decision was unreasonable. The Federal Court granted the judicial review finding the Minister had a duty to consult in the circumstances but breached that duty. The Minister has appealed that decision.
[2] The two respondents take no position on the motion to intervene. The appellant objects, asserting that the proposed interveners’ interest is purely jurisprudential and that the proposed interveners do not meet the legal test to intervene.
[3] For the reasons that follow, I have concluded that the motion to intervene should be dismissed.
[4] The governing principles for determining whether a motion for leave to intervene should be granted are derived from Rothmans, Benson & Hedges Inc. v. Canada (Attorney General), [1990] 1 F.C. 90, [1989] F.C.J. No. 707 [Rothmans], as affirmed by this Court in Sport Maska Inc. v. Bauer Hockey Corp., 2016 FCA 44, [2016] 4 F.C.R. 3 [Sport Maska]. Having said that, this Court also has said the Rothmans factors are not meant to be exhaustive and the Court has the flexibility in applying and weighing them, taking into account the particular context, including the particular facts and legal issues. This flexibility is inherent in the fifth Rothmans factor: “are the interests of justice better served by the intervention”
: Sport Maska, at paras. 38-43.
[5] The Rothmans factors alone do not determine whether interveners should be granted standing to participate in an appeal. The proposed interveners must also comply with the requirements of Rule 109 of the Federal Court Rules, SOR/98-106.
[6] Although the appellant has raised several grounds of appeal, the proposed interveners intend to confine their argument to one issue only:
whether the economic benefits and rights flowing from IBAs are so closely related to, add derive from, the Aboriginal and Treaty rights underlying the IBAs and the project impact on such rights that such IBAs address, that the duty to consult should apply to decisions affecting IBAs.
[7] The appellant argues that this issue is adequately covered by the respondents. I agree.
[8] Each of the respondents has filed and served its memorandum of fact and law. A review of those memoranda alongside the proposed interveners’ description of its intended submissions leave no doubt that the proposed interveners’ arguments do not differ from arguments advanced by the respondents in the appeal:
Economic rights and benefits provided by IBAs are so closely tied to Aboriginal and Treaty rights that a decision affecting an IBA should give rise to a duty to consult and accommodate (summary of proposed interveners submission para. 14, Ermineskin memorandum paras. 52 and 81-83, and Coalspur memorandum paras. 35, 40 and 45);
Reconciliation is one of the primary goals of the duty to consult and accommodate (summary of proposed interveners submission para. 15, Ermineskin memorandum para. 48, and Coalspur memorandum para. 44);
This duty contemplates the protection of economic interests (summary of proposed interveners submission para. 14, Ermineskin memorandum para. 15, and Coalspur memorandum para. 43);
IBAs are a crucial component of the process of reconciliation (summary of proposed interveners submission para. 18, Ermineskin memorandum paras. 48–49, and Coalspur memorandum para. 44);
IBAs play a critical role in securing Indigenous consent to projects, providing certainty for project proponents and avoiding litigation (summary of proposed interveners submission para. 18, Ermineskin memorandum paras. 49–50, and Coalspur memorandum para. 26); and
IBAs are an end-product of consultation with Indigenous people and contain negotiated benefits and compensation designed to mitigate the negative effects of development projects on Aboriginal and Treaty rights (summary of proposed interveners submission para. 18, Ermineskin memorandum paras. 79–80, and Coalspur memorandum paras. 18 and 36).
[9] Moreover, the proposed interveners’ summary of its proposed submissions cites the same jurisprudence and same secondary sources as the respondents cite in their memoranda of fact and law.
[10] The proposed interveners suggest their perspective on these submissions will be useful because they have collectively negotiated and signed many IBAs in different provinces and on lands covered by different treaties and because they represent some First Nations with historical treaties and others without. Yet they do not explain how this experience will assist the Court or distinguishes them from Ermineskin, which also has negotiated and signed several IBAs. Moreover, Coalspur’s memorandum of fact and law describes in some detail the purpose and prevalence of IBAs and the terms typically included in IBAs. To the extent relevant, the importance, purpose and content of IBAs appears to be adequately addressed by the respondents.
[11] The proposed interveners’ failure to demonstrate that their proposed arguments are not adequately addressed by the parties to the appeal is sufficient for me to conclude that leave to intervene should not be granted. Moreover, I am satisfied that this Court can hear and decide the case on the merits without the proposed interveners (Rothmans factor (6)).
[12] Finally, I am not satisfied that the interests of justice would be better served in this case by the intervention (Rothmans factor (5)). This Court has ordered this appeal be heard on an expedited basis as soon as possible after February 28, 2022. The appellant and respondents have already filed their memoranda of fact and law and joint book of authorities. Allowing the intervention at this late stage may delay the hearing of the appeal—the interveners will need some time to file their memorandum and the appellant has said if leave is granted it seeks time to respond to that memorandum. While in other circumstances a delay of a few weeks might be viewed as insignificant, the proposed interveners’ case for intervention in this appeal is weak. Here, the interests of justice are better served by avoiding any delay and proceeding to the hearing.
[13] The other Rothman factors are at best neutral to the proposed interveners and in the context of this appeal do not tip the balance in favour of granting leave to intervene.
[14] Accordingly, I would dismiss the motion for leave to intervene without costs.
"K.A. Siobhan Monaghan"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
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Docket:
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A-254-21
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| STYLE OF CAUSE:
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THE MINISTER OF ENVIRONMENT AND CLIMATE CHANGE AND THE ATTORNEY GENERAL OF CANADA v. ERMINESKIN CREE NATION AND COALSPUR MINES (OPERATIONS) LTD.
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MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
| REASONS FOR ORDER BY:
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MONAGHAN J.A.
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| DATED:
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February 25, 2022
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WRITTEN REPRESENTATIONS BY:
| Kerry Boyd
James Elford
Katherine Starks
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For The Appellants
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| Joseph C. McArthur
Rochelle Collette
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For The Respondent
ERMINESKIN CREE NATION
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| Martin Ignasiak
Sean Sutherland
Maeve O’Neill Sanger
Coleman Brinker
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For The Respondent
COALSPUR MINES (OPERATIONS) LTD.
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| Senwung Luk
Graeme Cook
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for the proposed interveners
Wahgoshig First Nation, Innu Nation, and Wabun Tribal Council
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SOLICITORS OF RECORD:
| A. François Daigle
Deputy Attorney General of Canada
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For
The Appellants
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| Blake, Cassels & Graydon LLP
Vancouver, British Columbia
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For The Respondent
ERMINESKIN CREE NATION
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| Osler, Hoskin & Harcourt LLP
Calgary, Alberta
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For The Respondent
COALSPUR MINES (OPERATIONS) LTD.
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| Olthuis Kleer Townshend LLP
Toronto, Ontario
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for the proposed interveners
Wahgoshig First Nation, Innu Nation, and Wabun Tribal Council
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