Date: 20021218
Docket: A-257-01
Neutral citation: 2002 FCA 512
CORAM: STRAYER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
representing the Minister of Fisheries and Oceans (Canada)
Appellant
(Defendant)
and
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,
JOHN MARR (No.2), WILLIAM J. NEVIN, STEPHEN M. PETER-PAUL, BENJAMIN J. BRAKE, GLENDON BROOKS and ELLEN ROBINSON
Respondents
(Plaintiffs)
and
UNION OF NOVA SCOTIA INDIANS, a body corporate,
CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate
Respondents
(Defendants)
and
ATTORNEY GENERAL OF NOVA SCOTIA, ATTORNEY
GENERAL OF NEW BRUNSWICK, LFA DISTRICT 34
LOBSTER COMMITTEE, ATLANTIC FISHING INDUSTRY
ALLIANCE
Interveners
- and -
NATIVE COUNCIL OF NOVA SCOTIA
Respondent
(Intervener)
Heard at Halifax, Nova Scotia, on December 17, 2002.
Judgment delivered from the Bench at Halifax, Nova Scotia,
on December 17, 2002.
REASONS FOR JUDGMENT BY: SEXTON, JA
Date: 20021218
Docket: A-257-01
Neutral citation: 2002 FCA 512
CORAM: STRAYER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA,
representing the Minster of Fisheries and Oceans (Canada)
Appellant
(Defendant)
and
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,
JOHN MARR (No. 2), WILLIAM J. NEVIN, STEPHEN M. PETER-PAUL,
BENJAMIN J. BRAKE, GLENDON BROOKS and ELLEN ROBINSON
Respondents
(Plaintiffs)
and
UNION OF NOVA SCOTIA INDIANS, a body corporate,
CONFEDERACY OF MAINLAND MI'KMAQ, a body corporate
Respondents
(Defendants)
and
ATTORNEY GENERAL OF NOVA SCOTIA, ATTORNEY
GENERAL OF NEW BRUNSWICK, FLA DISTRICT
34 LOBSTER COMMITTEE, ATLANTIC FISHING
INDUSTRY ALLIANCE
Interveners
and
NATIVE COUNCIL OF NOVA SCOTIA
Respondent
(Intervener)
REASONS FOR JUDGMENT
(Delivered from the Bench at Halifax, Nova Scotia on
December 17, 2002)
[1] We are of the view that this appeal must be allowed. The order of the motions Judge provides that the Native Council of Nova Scotia is granted leave to intervene on the issues of non-representation of non-status and off-reserve Indians and the impact on such people of the Indian Act and their dispersal from their traditional territories. Counsel were unable to explain how the pleadings raise any issue with respect to the Indian Act or the "impact on such people of their dispersal from their traditional territories" and we are unable to see that the pleadings raise these issues.
[2] Furthermore, Rule 109 provides that a person seeking to intervene in a proceeding must "describe how the proposed intervenor wishes to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding".
[3] The affidavit of Lorraine Cook filed in support of the intervenor fails completely to meet the requirements of Rule 109. There is no indication of what interest the Council has in the present litigation or how it could assist in the determination of any of the issues. Furthermore, the Native Council seem to represent some of the same people as the Shubenacadie Indian Band and no explanation has been given as to what further perspective the Native Council could add to this action, which would not already be provided.
[4] This appeal is allowed with costs and the order granting intervenor status to the Native Council of Nova Scotia is set aside without prejudice to the right of the Native Council to reapply on appropriate material.
[5] The cross-appeal is dismissed without costs.
"J. Edgar Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-257-01
APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED APRIL 11, 2001, TRIAL DIVISION FILE NO. T-1525-00
STYLE OF CAUSE: Attorney General of Canada v. Shubenacadie Indian Band
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: December 17, 2002
REASONS FOR JUDGMENT BY: SEXTON, J.A.
DATED: December 18, 2002
APPEARANCES:
REINHOLD ENDRES Q.C. FOR APPELLANT
ANGELA GREEN
BRUCE WILDSMITH Q.C. FOR RESPONDENTS
(SHUBENACADIE INDIAN BAND)
DOUGLAS BROWN FOR RESPONDENT
UNION OF NOVA SCOTIA INDIANS
ERIC ZSCHEILE FOR RESPONDENT
CONFEDERACY OF MAINLAND MI'MAQ
MICHAEL WOOD Q.C. FOR RESPONDENT
JENNIFER ROSS NATIVE COUNCIL OF NOVA SCOTIA
SOLICITORS OF RECORD:
DEPUTY ATTORNEY GENERAL OF CANADA
HALIFAX, NS FOR APPELLANT
BRUCE WILDSMITH, Q.C.
BARRS CORNER, NS FOR RESPONDENTS
(SHUBENACADIE INDIAN BAND)
DOUGLAS BROWN
HALIFAX, NS FOR RESPONDENT
UNION OF NOVA SCOTIA INDIANS
ERIC ZSCHEILE
TRURO, NS FOR RESPONDENT
CONFEDERACY OF MAINLAND MI'MAQ
BURCHELL GREEN HAYMAN PARISH FOR RESPONDENT
HALIFAX, NS NATIVE COUNCIL OF NOVA SCOTIA