Innu Nation v. (Minister of Human Resources Development), docket T-393-97

     T-393-97

B E T W E E N:

     INNU NATION, SEBASTIAN PENUNSI, and

     MATTHEW PENASHUE, ON THEIR OWN BEHALF AND ON

     BEHALF OF ALL MEMBERS ON THE INNU NATION

     Applicants

- and -

     THE MINISTER OF HUMAN RESOURCES DEVELOPMENT,

     THE MINISTER RESPONSIBLE FOR THE ATLANTIC CANADA

     OPPORTUNITIES AGENCY, ATLANTIC CANADA OPPORTUNITIES

     AGENCY and EAGLE RIVER DEVELOPMENT ASSOCIATION

     Respondents

     REASONS FOR ORDER

     On April 10, 1997, I heard in Toronto an application presented by The Queen in right of Newfoundland ("the Province") pursuant to which the Province sought leave to intervene in judicial review proceedings commenced by the applicants on March 7, 1997.

     At the end of the hearing, I advised the parties that the Province"s application would be dismissed. Accordingly, on April 11, 1997, I issued an order to that effect. These are the reasons which led me to make this order.

     The Province seeks leave to intervene in these judicial review proceedings as if it were named as a party in the originating notice of motion.

     The applicants in the main proceedings seek to set aside a decision or order, or decisions or orders (the "decision"), made by the Minister of Human Resources Development, the Atlantic Canada Opportunities Agency, or the Minister responsible for the Atlantic Canada Opportunities Agency, or any or all of them, authorizing the provision of funds or financial assistance as described in section 5(1)(b) of the Canadian Environmental Assessment Act (the "Act") for the construction and operation of the Ptarmigan Trail in Nitassinan, Labrador and purporting to determine or determining that the project is not likely to cause significant adverse environmental effects as defined in the Act.

     On March 10, 1997, Teitelbaum J. stayed the impugned decision until March 12, 1997, at 10:00 a.m.. On March 11, 1997, Teitelbaum J. stayed the impugned decision for 9 days. On March 20, 1997, Rothstein J. continued paragraph 3 of the Order of Teitelbaum J. dated March 10, 1997 and paragraphs 1, 2 and 6 of the Order dated March 11, 1997 until Friday, April 11, 1997.

     The Province has advanced five grounds in support of its application to intervene as a party respondent. The five grounds are the following:

(a)      The Ptarmigan Trail constitutes a development of Crown land in Labrador and, as such, the Province will be the owner of the Trail and its associated infrastructure (warming huts, etc.) once complete. The Applicants have made clear their intention to stop development of the Trail. The Province has a direct interest in the outcome of these proceedings as the owner of its natural resources, and has exclusive constitutional jurisdiction to deal with these resources.

(b)      The Ptarmigan Trail project is regulated by the Province through the issuance of a development permit by the Provincial Department of Government Services and Lands. In addition, the cutting of trees to make way for the Ptarmigan Trail is regulated through the issuance of a cutting permit by the Provincial Department of Forest Resources and Agrifoods. The Province"s exclusive constitutional jurisdiction to deal with its natural resources includes the right to issue permits and licenses. The efficacy of permits issued by the Province regulating development of the Ptarmigan Trail may be brought into question in the current proceeding.

(c)      The Province has a financial commitment to development of the Ptarmigan Trail through its funding of the Comprehensive Labrador Co-operation Agreement. The loss of funding from Human Resources Development Canada ("HRDC") will represent a 50 percent reduction in funding for phase 1 of the Ptarmigan Trail development, and possibly the loss of HRDC funding for the balance of the project. In all likelihood, the loss of HRDC funding will be fatal to the future development of the Ptarmigan Trail, resulting in a lost employment opportunities and provincial revenues from future use of the Trail. Further, monies thus far invested by the Province in the planning and development of the Ptarmigan Trail, through the Comprehensive Labrador Co-Operation Agreement, will have been wasted. The Province therefore has a direct financial interest in preserving HRDC funding for this project.

(d)      In the Originating Notice of Motion the Applicants seek mandamus requiring the Responsible Authorities to, as part of the environmental assessment, consider the impact of the Ptarmigan Trail on the "use of lands and resources for traditional purposes by aboriginal persons". In the Notice of Motion for interim relief the Applicants asserts that the Ptarmigan Trail "cuts across the traditional Aboriginal territory of the members of the Innu Nation, who exercise Aboriginal harvesting rights in the affected area", and that the Applicants will suffer irreparable harm through an infringement on "the exercise of their Aboriginal rights" and increased access to an area in which the Applicants allege a "constitutional priority right to harvest". Further, the material filed in support of the Motions characterizes, without proof, the Mealy Mountains as "Innu land", and an area in which the Applicants have an "aboriginal right to take food as that has been determined as a s. 35 constitutional right by the Supreme Court of Canada in the Sparrow and other cases".

The relief sought by both in the Originating Notice and Interim Notice of Motion presupposes the existence of aboriginal rights held by the Applicants in the Mealy Mountains region of Labrador (the area of the Ptarmigan Trail) and is predicated on this assumption. The Court is being asked to accept as a fact that the Applicants have constitutionally protected rights in this region of Labrador, and that the various federal and provincial environmental assessments are fatally deficit in failing to (in the mind of the Applicants) take these "rights" into account. The supposed triggering of the Federal Crown"s fiduciary obligation to consult with the Applicants is likewise predicated on the acceptance, without question, that they have aboriginal rights to the Mealy Mountains area.

There are no treaties covering the Innu in Labrador and whether or not the Innu can establish aboriginal rights in Labrador remains to be seen. (The Applicants have not sought to determine this issue in the current proceeding.) To the extent the issue of aboriginal rights has been raised in the Motions, and the relief sought is predicated on the assumed existence of such rights, the potential impact on property and civil rights within the Province and the Province"s ability to manage its natural resources (of which the Ptarmigan Trail is but one example) is obvious. It is essential that the Province have a full and complete opportunity to be heard on this issue as it may arise in the proceeding.

(e)      The Environmental Assessment Report prepared for HRDC by Dr. Stephen Barbour refers the reader to The Ptarmigan Trail: Environmental Preview Report, prepared as part of the Province"s Environmental Assessment by Northland Associates Ltd. in 1994 (the "EPR"). The Applicants made known their opposition to the Ptarmigan Trail in their submissions as part of the EPR. The Applicants assert that the EPR is flawed and to the extent the federal assessment relied on the EPR it must also be flawed. Issues raised on the Motion such as the alleged threat to the Mealy Mountains caribou herd go directly to the efficacy of the EPR. As such, the Applicants challenge [sic ] of the federal assessment is in reality a challenge of the Province"s EPR through the back door. In order to respond to these allegations and defend the EPR it is essential that the Province be a Party to these proceedings.

     In Re: Edmonton Friends of the North Environmental Society v. Canada (Minister of Western Economic Diversification) (1990), 73 D.L.R. (4th) 653, the Federal Court of Appeal briefly discussed this Court"s jurisdiction to allow parties to intervene in proceedings where their rights will be directly affected by the outcome of the dispute. At pages 660 and 661, Mr. Justice Stone stated:

The Courts have sometimes joined a party defendant even though no relief would be sought against him, Gurtner v. Circuit, [1968] 2 Q.B. 587 (C.A.), and have recognized also that the party joined would be enabled to resist the relief sought and be heard on the terms of any judgment: compare Amon v. Raphael Tuck & Sons Ltd., [1956] 1 Q.B. 357, at p. 383. Much will depend upon the circumstances of the particular case. This court has been willing to join a party in proceedings such as these simply because, as that party"s rights will be directly affected by the outcome of the dispute, he should be enabled to assert rights of appeal: Adidas (Canada) Ltd. v. Skoro Enterprises Ltd. (1971), 12 C.P.R. (2d) 67, [1971] F.C. 382 (C.A.); Friends of Oldman River Society v. Canada (Minister of Transport), [1990] 2 W.W.R. 150, [1990] 2 F.C. 18, 3 F.T.R. 108 (C.A.). The principle enunciated by this court in Adidas would appear to apply with even greater force where, as here, the s. 18 application is still pending in the Trial Division.

     In stating his reasons, Mr. Justice Stone referred to the English decision of Gurtner v. Circuit, [1968] 2 Q.B. 587 where Lord Denning, for the English Court of Appeal states at page 595:

The relevant rule is the new R.S.C., Ord. 15, r. 6(2) (b), which says that the court may order any person to be added as a party

"whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon."

That rule is in substantially the same terms as the old R.S.C., Ord. 16, r. 11, and nothing turns on the difference in wording. There were many cases decided on it. But I need not analyze them today. That was done by Devlin J. in Amon v. Raphael Tuck & Sons Ltd. He thought that the rule should be given a narrower construction, and his views were followed by John Stephenson J. in Fire Auto and Marine Insurance Ltd. v. Greene. I am afraid that I do not agree with them. I prefer to give a wide interpretation to the rule, as Lord Esher M.R. did in Byrne v. Brown. It seems to me that when two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in dispute to "be effectually and completely determined and adjudicated upon" between all those directly concerned in the outcome. [footnotes omitted]

     In Re: Starr and Township of Puslinch et al.(1976), 12 O.R. (2d) 40, the Divisional Court of the Ontario High Court of Justice, after reviewing both Canadian and English authorities on the right of a party to intervene in proceedings, stated the applicable principle as follows at page 46:

I can only conclude from these cases that there is no absolute rule that for a party to be added he must have a direct interest in the very issue to be determined. It is, I think, sufficient in the words of Lord Denning, supra, that the "determination of that dispute will directly affect a third person in his legal rights or in his pocket". I also believe that it is clear from the cases that even when the applicant satisfies that condition it is entirely discretionary in the Court whether he will be allowed to intervene or not, and the Court may always decline the application where it considers that the interest of the applicant is already adequately represented. [...]

     With these principles in mind, I am of the opinion that none of the grounds advanced by the Province, save for the fourth one, justify the granting of the Order sought by the Province.

     In my view, the Province did not demonstrate that the outcome of the dispute between the applicants and the respondents would directly affect its legal rights or its pocket. At paragraph 17 of their memorandum of argument on the Province"s motion to intervene, the applicants state that:

It is submitted that the legal issue to be resolved in the context of this motion for intervention is not the correct test in law, but rather its application to the instant facts. It is submitted that the Province is not directly affected in its legal rights or its pocket by the decisions or orders in issue, nor would it be in the event these are overturned. Rather, to the extent the Province is affected at all, the effects are clearly indirect given that this is in essence a private project the Province has simply allowed to proceed, and possibly indirectly through the terminated1 Comprehensive Labrador Co-operation Agreement to fund in part. All that the Province has done, if it properly can be done, can be done by the Province regardless of the grant or non-grant of federal funds.

     I agree entirely with the submission made by counsel for the applicants. This disposes of grounds number 1, 2, 3 and 5 advanced by the Province. I now turn to the fourth ground advanced by the Province which concerns the question of aboriginal rights.

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     At the hearing, counsel for the Innu Nation and the other applicants referred me to paragraph 12 of his memorandum of argument which reads as follows:

12. CEAA addresses explicitly the position of aboriginal peoples by it"s [sic ] inclusion, in the definition of "environmental effect" "any effect ... on health and socio-economic conditions on physical and cultural heritage, on the current use of lands and resources for traditional purposes by aboriginal persons, or ...". With respect to the matter of Aboriginal rights, the applicants have advised the respondents, by way of clarification of their notice of motion for interim and interlocutory relief, that:

[The applicants] do not rely on the existence of constitutionally protected Aboriginal rights, except to the extent that such rights are recognized by the Canadian Environmental Assessment Act, and except to the extent that as a matter of fact the respective land and jurisdictional rights of the Innu, Canada and Newfoundland are now the subject to comprehensive ongoing negotiations.

The applicants are prepared to place this letter in the record if so requested or required by the Court.

Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 2

Letter of L. Hoffer to respondents" counsels, 3 April 1997

     Counsel for the applicants then sought leave of the Court to file a letter dated April 3, 1997, sent by him to opposing counsel, including counsel for the Province. As no one opposed the filing of this letter, I allowed counsel to file it in the record. The letter reads as follows:

We have now reviewed the brief of Newfoundland in support of her motion to intervene in the above-noted matter. It appears to us that some clarification is in order with respect to the position of the Applicants concerning Aboriginal rights.

Newfoundland"s brief correctly notes that we do not seek to determine the issue of Aboriginal rights in this proceeding.

We write now specifically to clarify the grounds stated in the notice of motion for interim and interlocutory relief referred to in Newfoundland"s brief. We do not rely on the existence of constitutionally protected Aboriginal rights, except to the extent that such rights are recognized by the Canadian Environmental Assessment Act , and except to the extent that as a matter of fact the respective land and jurisdictional rights of the Innu, Canada and Newfoundland are now the subject of comprehensive ongoing negotiations.

We hope that this clarification will be of assistance to you in considering your positions on the intervention motion.

We will be advising the Court with respect to the position set out in this letter and are prepared to file a copy of this letter should the Court request or require us to do so.

     Counsel for the applicants submitted that his case had nothing to do with "constitutional" aboriginal rights and aboriginal territory except to the extent that the Canadian Environmental Assessment Act recognized these rights. Section 2 of the Act defines "environmental effect" as follows:

"environmental effect" means, in respect of a project,

(a) any change that the project may cause in the environment, including any effect of any such change on health and socio-economic conditions, on physical and cultural heritage, on the current use of lands and resources for traditional purposes by aboriginal persons, or on any structure, site or thing that is of historical, archaeological, paleontological or architectural significance, and

(b) any change to the project that may be caused by the environment,

whether any such change occurs within or outside Canada;

     As I understand counsel for the applicants, his clients" challenge of the impugned decision is, inter alia , based on sections 1, 4, 5, 11, 12, 14, 15, 16, 18, 20 and 55 of the Act. Section 20(1)(a) of the Act provides:

20. (1) The responsible authority shall take one of the following courses of action in respect of a project after taking into consideration the screening report and any comments filed pursuant to subsection 18(3):

(a) subject to subparagraph (c)(iii), where, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, the project is not likely to cause significant adverse environmental effects, the responsible authority may exercise any power or perform any duty or function that would permit the project to be carried out and shall ensure that any mitigation measures that the responsible authority considers appropriate are implemented;

     In his letter dated April 3, 1997, counsel for the applicants further indicated that his clients were relying on the fact that their land and jurisdictional rights were now the subject of comprehensive ongoing negotiations with Canada and the Province.

     At the hearing, I indicated to counsel that I was of the view that if the applicants" position was as stated in his letter of April 3, 1997, then the Province should not be allowed to intervene. The applicants will be relying on section 20(1)(a ) of the Act and hence on the definition of "environmental effect" in section 2 of the Act which refers to the "current use of lands and resources for traditional purposes by original persons, ...". The applicants are obviously entitled to rely on these provisions of the Act. To the extent that the applicants limit, insofar as the issue of aboriginal rights is concerned, their arguments and evidence to what the Act provides, I do not see any reason to allow the Province to intervene.

     Consequently, any reference in the main pleadings and in the pleadings relating to the obtention of an injunction, whether interim or interlocutory, and in the affidavits filed in support thereof, to the Innu Nation"s aboriginal rights and aboriginal territory, outside the scope of sections 2 and 20 of the Canadian Environmental Assessment Act , shall be struck from the aforesaid pleadings and affidavits. For clarity, the applicants shall be entitled to refer to and invoke, and thus lead evidence, concerning the "current use of lands and resources for traditional purposes by aboriginal persons" but shall not be so entitled in regard to "traditional aboriginal territory of the members of the Innu Nation who exercise aboriginal rights in the affected area" and in regard to their "constitutional priority rights to harvest". Thus, the debate between the applicants and the respondents shall be limited to those aboriginal rights, if any, which are referred to in the Act.

     As I indicated earlier, the applicants also wish to rely on the fact that there are presently ongoing negotiations with Canada and the Province concerning their land and jurisdictional rights. The applicants shall not be allowed to refer to nor lead evidence in regard to that issue. However, the fact that such negotiations are taking place shall be deemed to have been proven. That shall be the extent of the applicants" evidence on that issue.

     I wish to make it clear that had it not been for the applicants" revised position concerning their aboriginal rights, I would have allowed the Province to intervene as if it had been named as a party in the originating notice of motion. By reason thereof, the applicants shall, as of this date and until the main application is disposed of by this Court at first instance, serve copies of all pleadings, affidavits and other material upon which they rely, on the Department of Justice of Newfoundland to the attention of Mr. Don Burradge or to the attention of such person as Mr. Burradge may advise counsel for the applicants. Should the Province at any time prior to the hearing of the main proceedings be of the view that the pleadings, affidavits, and other material relied on by the applicants exceed the scope of my order, the Province shall be entitled to reapply for leave to intervene in these proceedings.

     For these reasons, I dismissed the Province"s motion to intervene.

     "MARC NADON"

     Judge

Ottawa, Ontario

April 16, 1997.

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¹ At the hearing, counsel for the Province filed documents which showed that the comprehensive Labrador Co-operation agreement had been extended and was therefore "not terminated".