Martin v. Canada (Attorney General), 2002 FCT 1117

                                                                                                                                             Date: 20021028

                                                                 Docket: T-689-01

                                                  Neutral citation: 2002 FCT 1117

Between:

TIM MARTIN, EVERETT TROY MACLEOD,

HENRY L. DOREY, LAURIE A. DOREY JR.,

GRACE A. CONRAD, WILLIAM D. OGDEN,

DARRELL M. DOREY, BRIAN K. DOREY,

MARGARET P. DOW, JOAN A. BOUTILIER,

ANNA M. FARRELL, and VERNON E. O'TOOLE

on behalf of themselves and all

Mi'kmaq A.T.R.A. Passport Holders

                                                                         Plaintiffs

                                      - and -

THE ATTORNEY GENERAL OF CANADA,

THE MINISTER OF FISHERIES AND OCEANS,

THE MINISTER OF INDIAN AND NORTHERN AFFAIRS

and THE INTERLOCUTOR FOR METIS

AND NON-STATUS INDIANS

                                                                                                                                                      Defendants

                                                            REASONS FOR ORDER

KELEN J.:

[1]         This is a motion by the thirteen Mi'Kmaq Indian Bands of Nova Scotia: the Acadia, Afton, Annapolis Valley, Bear River, Chapel Island, Eskasoni, Gloosgap, Membertou, Millbrook, Pictou Landing, Shubenacadie, Wagmatcook, and Whycocomagh (Waycobah) Indian Bands (collectively referred to as "the applicants"), to participate in these proceedings. The applicants seek to be joined

as defendants to these proceedings under Rule 104(1)(b) of the Federal Court Rules, 1998, or in the alternative, to be added as interveners with full rights to participate under Rule 109.

FACTS

[2]         At issue in the underlying action are agreements between the defendants and the applicants dealing with the negotiation and implementation of aboriginal, treaty and land claim rights in Nova Scotia, specifically the 1999/2000 and 2000/2001 fishing agreements (the "Agreements").

[3]         The named plaintiffs are "off reserve" Indians, including both status Indians and non-status Indians, who hold Aboriginal and Treaty Right Access ("ATRA") passports which give them a right to harvest various aquatic species in the waters of Nova Scotia. They have brought the underlying action in their own right and as a representative proceeding on behalf of all Mi'kmaq ATRA passport holders. The plaintiffs originally chose to have their interests represented by the Native Council of Nova Scotia (the "NCNS"), an incorporated society representing the interests of off reserve Mi'kmaq in Novia Scotia. The NCNS was removed by this Court because it was not a proper representative party, see Native Council of Nova Scotia v. Canada, 2002 FCT 6.

[4]         In 1985, NCNS established a natural life management authority, known as the Netukulimkewe'l Commission (the "Commission"), which holds, on behalf of the NCNS, an Aboriginal Communal Fishing License issued under the authority of the Fisheries Act, R.S.C. 1985, c. F-14, and the Aboriginal Communal Fishing Licenses Regulations, SOR/93-332. The license recognizes the Commission as the administrative authority for ATRA passport holders. Beginning in 1992, the Commission was a party to the successive annual Working Agreements and Aboriginal Fishing Agreements with the Department of Fisheries and Oceans. But in January 2001, the NCNS was informed that the defendants did not intend to consult directly with it or the Commission in future negotiations for fishing agreements. Rather, if NCNS wished to make its views known, it would have to do so by approaching the applicants.

[5]         The plaintiffs claim their aboriginal rights to harvest certain aquatic species have been adversely affected by the defendants' decision not to consult with them in negotiating the Agreements. The plaintiffs seek a declaration that the defendants breached a duty to consult owed to them in making the Agreements, and orders of injunction and/or prohibition, certiorari and mandamus in relation to the Agreements, as well as other important agreements, i.e. the Beneficiaries Project Agreement and the agreement to negotiate and implement Aboriginal Treaty and Land Claims rights in Nova Scotia.

POSITION OF THE PARTIES

[6]         The applicants' interest in these proceedings stems from their involvement in the negotiating process for the Agreements. The applicants primary position is that they be joined as defendants to these proceedings pursuant to Rule 104(1)(b) on four grounds:

(i)          they are persons who ought to have been joined as parties;

• (ii)                  their presence is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined;
• (iii)                 a decision in favour of the plaintiffs would directly affect their legal rights; and

The applicants submit a decision that the defendants have a duty to consult with the plaintiffs will directly affect their right to be the sole representative of all persons of Mi'kmaq ancestry or heritage resident in Nova Scotia in negotiations with the defendants. The applicants have based their claim on the proposition that "unless off-reserve status Mi'kmaq are to have two governments, any decision in this case that they are to be consulted through the NCNS means they are not to be consulted through the Bands." Further, the applicants argue their relationship with the defendants will be directly affected should the Court quash the existing agreements.

[7]         In the event they are not added as defendants, the applicants seek to be made interveners under Rule 109 and be given a right to participate fully in these proceedings. The applicants' grounds are:

• (i)                    they have an interest in the outcome of the proceedings;
• (ii)                  they have rights which will be seriously affected by the outcome;

• (iii)                 they will bring a difference perspective to the proceedings;
• (iv)              their participation will assist the Court in reaching a just and proper determination on the merits.

The applicants wish to participate fully in these proceedings, including exercising the right to call evidence, to cross-examine witnesses, to participate in documentary and oral discoveries, to present oral and written argument and to file appeals.

[8]         The plaintiffs oppose the applicants' motion to be joined as defendants and take issue with the admissibility of the Affidavit of Daniel Christmas, submitted in support of the applicants' motion. They submit there is no justiciable issues between the plaintiffs and the applicants. Whether the defendants are the only proper representative for Mi'kmaq in Nova Scotia is not an issue they raised nor is it a proper defence to the claim. According to the plaintiffs, they will suffer prejudice if the applicants are added as parties because the action will be transformed from one dealing with

the limited issue of consultation over a narrow range of aboriginal rights into an action over "aboriginal government". With respect to the applicants' alternative position, the plaintiffs agree that the applicants should be added as interveners but under two conditions. First, that the applicants are represented by a single solicitor acting on behalf of two tribal councils, the Union of Nova Scotia Indians ("UNSI") and the Confederacy of the Mainland Micmacs ("CMM"). All of the applicants are members of one of the two tribal councils. Second, that the applicants are given a limited right to participate in the proceedings except with respect to equitable remedies which may directly affect them.

[9]         The defendants do not oppose the applicants' motion and agree that the applicants should be joined as defendants because their legal interests will be affected by the action.

ANALYSIS

(A)              Admissibility of the Affidavit of Daniel Christmas

[10]       The plaintiffs seek to have paragraphs 8, 12 and 14 of the Affidavit of Daniel Christmas struck in their entirety because they do no more than advance legal arguments and state conclusions of law. The plaintiffs also wish to have portions of paragraphs 9, 10 and 11 of the Affidavit struck. The plaintiffs submit that in these paragraphs, the deponent does not provide any support for the applicant's motion and distorts the plaintiffs' pleadings.

[11]       A witness is not permitted to make legal arguments in an Affidavit, see First Green Park Pty. Ltd. v. Canada (Attorney General) (1996), 70 C.P.R. (3d) 217, [1996] F.C.J. No. 1525 at para. 7 (T.D.). The Court finds that these paragraphs set forth the legal position of the applicants to explain the applicants' legal interest in this action. Accordingly, these paragraphs are proper, and will not be struck.

(B)              The Applicants' Request to be Joined as Defendants

[12]       It is a general proposition of law that a plaintiff should not be forced to sue defendants that it has not chosen to sue, see Havana House Cigar & Tobacco Merchants Ltd. v. Jane Doe, [1998] F.C.J. No. 411 (T.D.) (QL) at paragraph 5. However, Rule 104(1)(b) provides the Court with the authority to add a new party. Rule 104(1)(b) states:

Order for joinder or relief against joinder

104. (1) At any time, the Court may

[...]

(b) order that a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined be added as a party, but no person shall be added as a plaintiff or applicant without his or her consent, signified in writing or in such other manner as the Court may order.

Ordonnance de la Cour

104. (1) La Cour peut, à tout moment, ordonner :

[...]

b) que soit constituée comme partie à l'instance toute personne qui aurait dû l'être ou dont la présence devant la Cour est nécessaire pour assurer une instruction complète et le règlement des questions en litige dans l'instance; toutefois, nul ne peut être constitué codemandeur sans son consentement, lequel est notifié par écrit ou de telle autre manière que la Cour ordonne.

[13]       In determining what circumstances make a person's presence "necessary", this Court has been guided by Amon v. Raphael Tuck & Sons Ltd., [1956] 1 Q.B. 357, see Stevens v. Canada (Commissioner, Commission of Inquiry), [1998] 4 F.C. 125 at 137 (C.A.), Maurice v. Canada (Minister of Indian Affairs and Northern Development) (1999), 183 F.T.R. 9, [1999] F.C.J. No. 1962 at para. 14, and Native Council of Nova Scotia, supra. at paragraph 12. The meaning of "necessary" was set out in Amon at page 380:

[...] The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. [emphasis in original]

He then went on to state at page 381:

[...] It is not enough that the intervener should be commercially or indirectly interested in the answer to the question; he must be directly or legally interested in the answer. A person is legally interested in the answer only if he can say that it may lead to a result that will affect him legally - that is by curtailing his legal rights.

[14]       In Havana House Cigar, supra. at paragraph 4, Mr. Justice Rothstein held that a party could be added as a defendant if "its rights and its pocket-book" would be directly affected by an order against the defendant.

[15]       Whether the defendants owed the plaintiffs a duty to consult when negotiating the agreements cannot be settled without adding the applicants as defendants. The issue of consultation cannot be divorced from the larger issue of who has the authority to represent aboriginals in negotiations with the respondents. It is well-established that Indian bands possess the legal capacity to represent their members in negotiations with the Crown in respect of aboriginal rights, see R. v. Simon, [1985] 2 S.C.R. 387. If this Court recognizes that a duty to consult is owed to the plaintiffs, it will curtail the applicants' legal right to represent those plaintiffs who are status Indians. Moreover, the applicants' legal rights under the various agreements will be seriously affected if the plaintiff obtains the remedies sought in paragraph 47 of the Claim. Accordingly, the Court finds the applicants' presence is "necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined" and orders the applicants to be added as defendants to this action under Rule 104(1)(b).

(C)              Applicants' Request to Participate as Interveners

[16]       As an alternative position, the applicants seek to participate in these proceedings as interveners. Rule 109 allows the Court to grant leave to a non-party to intervene in a proceeding. I considered adding the applicants as interveners with limited rights. Rule 109 states:

Leave to intervene

109. (1) The Court may, on motion, grant leave to any person to intervene in a proceeding.

Contents of notice of motion

(2) Notice of a motion under subsection (1) shall

(a) set out the full name and address of the proposed intervener and of any solicitor acting for the proposed intervener; and

(b) describe how the proposed intervener wishes to participate in the proceeding and how that participation will assist the determination of a factual or legal issue related to the proceeding.

Directions

(3) In granting a motion under subsection (1), the Court shall give directions regarding

(a) the service of documents; and

(b) the role of the intervener, including costs, rights of appeal and any other matters relating to the procedure to be followed by the intervener.

Autorisation d'intervenir

109. (1) La Cour peut, sur requête, autoriser toute personne à intervenir dans une instance.

Avis de requête

(2) L'avis d'une requête présentée pour obtenir l'autorisation d'intervenir :

a) précise les nom et adresse de la personne qui désire intervenir et ceux de son avocat, le cas échéant;

b) explique de quelle manière la personne désire participer à l'instance et en quoi sa participation aidera à la prise d'une décision sur toute question de fait et de droit se rapportant à l'instance.

Directives de la Cour

(3) La Cour assortit l'autorisation d'intervenir de directives concernant :

a) la signification de documents;

b) le rôle de l'intervenant, notamment en ce qui concerne les dépens, les droits d'appel et toute autre question relative à la procédure à suivre.

[17]       This Court outlined what factors are relevant when considering an intervener application under the Federal Court Rules, C.R.C. 1978, c. 663 in Rothmans, Benson & Hedges Inc. v. Canada (Attorney General) (No. 1) (1989), [1990] 1 F.C. 74 (T.D.), aff. [1990] 1 F.C. 90 (C.A.):

1) Is the proposed intervener directly affected by the outcome?

2) Does there exist a justiciable issue and a veritable public interest?

3) Is there an apparent lack of any other reasonable or efficient means to submit the question of the Court?

4) Is the position of the proposed intervener adequately defended by one of the parties to the case?

5) Are the interests of justice better served by the intervention of the proposed third party?

6) Can the Court hear and decide the cause on its merits without the proposed intervener?

The Federal Court of Appeal has confirmed that these factors are still relevant when considering an intervener application under Rule 109 of the Federal Court Rules, 1998, see Canadian Union of Public Employees (Airline Division) v. Canadian Airlines International Ltd., [2000] F.C.J. No. 220 (QL) at paragraph 8, and Benoit v. Canada, 2001 FCA71 at paragraph 8.

[18]       None of the parties to the current proceedings object to the applicants' request to participate as interveners; however, there is an issue over the extent of the applicants' right to participate in the proceedings. Being allowed to participate as an intervener is not the same as being added as a party, although the two become blurred when a party seeks the full scope of intervention rights, see Pfizer Inc. v. Canada (1999), 170 F.T.R. 135. The relationship between the two was accurately summed up by Mr. Justice MacKay in Merck Frosst Canada Inc. v. Canada (Minister of National Health and Welfare) (1997), 126 F.T.R. 209, [1997] F.C.J. No. 155 (QL) at paragraph 12:

As I understand it, the essential difference in the standing of a party respondent when compared with that of an intervener is that the former is deemed to have an interest adverse to that of the applicant which is a legal interest to be directly affected by the decision of the tribunal or officer that is subject to review. Moreover, a party may exercise all the rights of a party in the proceedings, including the right to appeal the decision that is made when the matter is heard, while an intervener essentially has the right to participate within the limits the Court may impose and has no right to appeal except by leave of the Court.

[19]       The results of these proceedings could have a substantial impact upon the applicants. For this reason, the applicants are entitled to a full right to participate in these proceedings, including a right to appeal. The circumstances warrant adding the applicants as defendants, and not as interveners with limited rights to defend the action.

(D)              Conditions of Participation

[20]       Given the number of applicants involved, the Court orders that applicants speak with a single voice. To allow each applicant to be separately represented would prejudice the plaintiffs by increasing the length and complexity of these proceedings. The interests of the applicants are identical and will not be prejudiced if they are represented by as one party. At the hearing, the applicants accepted this condition as reasonable.

[21]       The applicants will be added to the style of cause as defendants, will have thirty (30) days to file a Defence, and the plaintiffs will have the right to reply in accordance with the Federal Court Rules, 1998.

[22]       The applicants cannot be allowed to delay the action or make it prohibitively expensive for the plaintiffs. Accordingly, the Court will order that the parties file a litigation plan within sixty (60) days with the view to the action proceeding with dispatch and economy. The litigation plan should set out a schedule for the exchange of documents for the dates and duration of examinations for discovery, and for the date of a joint application for time and place of trial. The Court is sensitive to the plaintiffs' fear that the joinder of the applicants as defendants may prejudice the economy and efficiency of the action. The Court will frown on any activities which appear to interfere with the timely and efficient progress of this action.

STATUS REVIEW

[23]       The Court issued a Notice of Status Review under Rule 380(1)(a)(ii) on July 18, 2002 as more than 360 days had lapsed since the filing of the statement of claim and no requisition for a pre-trial conference had been filed. The Notice required the plaintiffs to show cause by written representations. This Court stated in Baroud v. Canada (Minister of Citizenship and Immigration) (1998), 160 F.T.R. 91 that a status review raises the following issues:

(a)                  do the reasons why the case has not moved forward justify the delay? and

(b)                 what is the nature of the measures the party proposes to move the case forward?

[24]       The plaintiffs submit that the record shows that any delay in the matter has not been caused by a lack of activity on the part of the plaintiffs. The Court is satisfied that the delay in this matter is due to its complexity as demonstrated by the defendants' Motion to Strike and the applicants' Motion to be Added as a Party. With respect to moving the case forward, the plaintiffs have requested the Court to designate this case as a specially managed proceeding pursuant to Rule 382(c). Given the complex nature of this case, this Court accepts the plaintiff's request for the case to be continued as a specially managed proceeding under Rule 385.

DISPOSITION

[25]       For these reasons, the applicants will be joined as defendants subject to the conditions herein and the case will proceed as a specially managed proceeding under Rule 385.

                (Signed) Michael A. Kelen                                                                                                                   _________________________

                                                                                      JUDGE

OTTAWA, ONTARIO

October 28, 2002

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                T-689-01

STYLE OF CAUSE:              TIM MARTIN ET AL. v. THE ATTORNEY

GENERAL OF CANADA ET AL.

PLACE OF HEARING:         HALIFAX, NOVA SCOTIA

DATE OF HEARING:           OCTOBER 17, 2002

REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE KELEN

DATED:                                   OCTOBER 28, 2002

APPEARANCES:

KEN WINCH AND                                                         FOR PLAINTIFFS

MEAGHAN BEATON

JONATHAN TARLTON AND                                      FOR DEFENDANTS

ANGELA GREEN

BRUCE H. WILDSMITH                                                FOR PROPOSED DEFENDANTS

SOLICITORS OF RECORD:

BURCHELL GREEN HAYMAN PARISH,                  FOR PLAINTIFFS

HALIFAX, NOVA SCOTIA

MORRIS ROSENBERG,                                                FOR DEFENDANTS

DEPUTY ATTORNEY GENERAL OF CANADA

BRUCE H. WILDSMITH,                                               FOR PROPOSED

HALIFAX, NOVA SCOTIA                                        DEFENDANTS