Date: 20020823
Docket: A-35-02
Neutral citation: 2002 FCA 306
CORAM: STRAYER J.A.
BETWEEN:
SHEILA COPPS, MINISTER OF CANADIAN HERITAGE
Appellants
and
MIKISEW CREE FIRST NATION
Respondent
and
THE THEBACHA ROAD SOCIETY
Respondent
REASONS FOR ORDER
STRAYER J.A.
[1] The Attorney General of Alberta seeks to intervene in this appeal which involves the alleged infringement by the Government of Canada of the treaty rights of the Mikisew Cree First Nation ("MCFN") under Treaty 8. The alleged infringement arose out of the appellant Minister's authorization under the Canada National Parks Act and the National Parks General Regulations of the construction and operation of a winter road in the Wood Buffalo National Park.
[2] Treaty 8 was signed in 1899. This National Park was created in 1922. By virtue of the Constitutional Act, 1930 (U.K.) and its annexed Memorandum of Agreement, paragraphs 14-16, this Park is vested in the Government of Canada and subject to the exclusive legislative jurisdiction of the Parliament of Canada. Treaty 8 covers this area as well as much of northern Alberta. The MCFN has reserve lands both within and outside the Park.
[3] The appeal pending in this Court is from a decision of Hansen J. of the Trial Division in which she granted the MCFN's application for judicial review and set aside the Minister's decision to authorize the road. While the application invoked numerous grounds, both infringement of treaty rights and various statutory and administrative law grounds, the applications judge specifically disposed of it on the "constitutional grounds raised by the applicant" by which it is clear she meant the grounds of unjustified treaty infringement. The notice of appeal states three grounds of appeal confined to issues of the existence and infringement of treaty rights, 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.
[4] It appears that no notice of a constitutional question was served on any attorney general under section 57 of the Federal Court Act, nor did the Court or any party raise this issue.
[5] The Attorney General of Alberta now seeks to intervene under any or all of the following provisions:
(1) Section 57 of the Federal Court Act, on the grounds that the constitutional applicability of the federal Act and Regulations under which the Minister authorized the road was in question and notice should have been given to him.
(2) Rule 109(1)(b) of the Federal Court Rules on the grounds that his participation "will assist the determination of a factual or legal issue related to the proceeding".
(3) Rule 110(c) of the Federal Court Rules, on the grounds that a "question of general importance is raised in the proceeding"
[6] With respect to the issue of section 57 of the Federal Court Act, the fact is that no notice was given in the Trial Division nor has it been given here. There seems to be little doubt that a "constitutional issue" was involved, as the learned Trial Division judge stated, and it is clear that this issue concerns the scope of the protection of treaty rights afforded by subsection 35(1) of the Constitution Act, 1982. In particular one of the central issues was and remains whether, if treaty rights were extinguished, there was adequate consultation with the relevant first nation. But it could well be further argued in the Court of Appeal, or the Court may have to consider of its own motion, that this Court lacks jurisdiction to confirm a decision which may be characterised as a finding that the statutes and regulations, upon which the appellant Minister relied in exercising her discretion to authorize the road, cannot be constitutionally "applied" in this way without respecting the constitutional constraints said to be imposed by subsection 35(1) of the Constitution Act, 1982. (See, e.g. Eaton v. Brant Board of Education [1997] 1 S.C.R. 241 at para. 53). This remains a problem for the panel hearing this appeal and I would not presume to decide it on this interlocutory motion. At this juncture I can do nothing to assist the Attorney General in obtaining a notice from one of the parties under section 57 so as to enable him to intervene as of right.
[7] Nor am I inclined to allow the motion to intervene under Rule 109. By the standards normally applicable to non-governmental interveners (see, e.g. C.U.P.E. v. Canadian Airlines International Ltd. [2000] F.C.J. No. 220 (F.C.A.)) I am not satisfied that this applicant here is sufficiently directly affected by this proceeding which, strictly speaking, has only to do with the exercise by the federal government of its powers as well as its unique fiduciary duties in an area subject to exclusive federal jurisdiction. The interest of the Attorney General of Alberta could well be characterized a "jurisprudential" only. Nor am I satisfied that the matters really in issue in this litigation will not be adequately addressed by the federal Minister.
[8] However, I must assume that Rule 110 contemplates a special role for attorneys-general in addition to those contemplated under section 57 of the Federal Court Act and Rule 109. I believe here there is an issue of "general importance" on which the Attorney General of Alberta might well be of assistance to the Court, namely the difficult question of whether there is an issue within section 57 of which no notice has been given, and if so what are the powers and responsibilities of this Court in such circumstances. The other appropriate issues on which the provincial Attorney General could appropriately intervene would be those raised in grounds 2 and 3 of the Notice of Appeal. The first ground is very specific to the federal Park and its significance for treaty rights outside the park is tenuous. The other two issues, it appears to me, have closer parallels to the situation of the Province of Alberta in its exercise of governmental powers on Treaty 8 lands outside the Park and also have "general importance" even if they do not directly affect the provincial government.
[9] The leave is therefore given to intervene on these grounds. There will be no costs of the motion.
(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)