Date:
20100420
Docket:
T-699-09
Citation: 2010 FC 430
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Toronto, Ontario, April 20, 2010
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
THE
HURON-WENDAT NATION OF WENDAKE
Applicant
and
THE CROWN IN RIGHT OF
CANADA,
herein by THE MINISTER OF INDIAN
AFFAIRS
AND NORTHERN DEVELOPMENT
Respondent
and
MASHTEUIATSH FIRST NATION
INNU FIRST NATION OF ESSIPIT
Interveners
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Huron-Wendat Nation of Wendake (applicant) is appealing, under subsection 51(1)
of the Federal Courts Rules, SOR/98-106 (Rules), an order dated
November 6, 2009, by Prothonotary Mireille Tabib that allowed the Mashteuiatsh
First Nation and the Innu First Nation of Essipit (interveners) to intervene in
this matter, granting leave to them to introduce evidence and to participate in
cross-examinations.
[2]
This
appeal is made in the context of a dispute concerning the Anglo-Huron Treaty
of 1760 (Treaty of 1760). The applicant states that the purpose of
the proceeding is to assert the procedural rights that exist under that treaty.
It maintains, namely, that the Crown had a duty to consult it and to obtain its
consent before entering into the Agreement-in-Principle of General Nature
between the First Nations of Mamuitun and Nutashkuan and the Government of Quebec
and the Government of Canada (Innu Agreement-in-Principle), because the territory
covered by that agreement includes part of its traditional territory covered by
the Treaty of 1760 (Nionwentsïo).
[3]
The
applicant states that the application for judicial review “does not require the
Court to make declarations as to Aboriginal rights and title of the
Applicant [or] to make determinations as to the existence of Aboriginal rights
or title of the Innu Nation in the territory in issue”. However, the remedies
sought by the applicant include declarations and orders that ensure its ability
“to actively exercise its treaty rights on its traditional territory of
Nionwentsïo”.
[4]
Moreover,
in the applicant’s submissions in support of this appeal, it suggests that the
application for judicial review be considered as consisting of two distinct
“phases”. The first phase consists in determining whether the Crown breached
its procedural duties to the applicant by signing the Innu
Agreement-in-Principle. Second, if that breach is established, there would have
to be negotiations or mediation supervised by the Court so that long-term
solutions can be developed to ensure that the Crown carries out its duties.
[5]
According
to the Crown, the remedies sought by the applicant conflict with its claim that
the proceeding is only to assert its procedural rights. Thus, and even though
the applicant states that it would like to avoid this, there is a disagreement
with respect to the scope of its application for judicial review and therefore
the nature of the evidence that must be adduced in the context therein. This
disagreement is the underlying issue in the debate concerning the scope of the
participation of the interveners in this matter.
[6]
While
seized of the motion to intervene, Prothonotary Tabib noted that the notice of
application for judicial review could be interpreted as a means for the
applicant to seek declarations with respect to its rights under the Treaty of
1760. However, following a day of debate, she was [translation] “satisfied that the purpose of the application . . .
[wa]s indeed limited to having recognized, declared and fulfilled the Crown’s procedural
duty to consult and accommodate the respondent before entering into a
treaty in a definitive manner with the moving parties if that treaty were likely
to affect the substantive rights that could arise from the Treaty of 1760”
[Emphasis in original.].
[7]
However,
according to the Prothonotary, [translation]
“the success of the application will require the preliminary assessment and appreciation,
by the Court, of ‘the strength of the case supporting the existence of the
right or title, and to the seriousness of the potentially adverse effect upon
the right or title claimed’ (Haida Nation v. British Columbia
(Minister of Forests), [2004] 3 SCR. 511, at paragraph 43)”. As
determined by the Supreme Court in R v Sioui, [1990] 1 S.C.R. 1025, the
rights that the Court will be asked to assess in a preliminary manner have a
certain territorial scope, and the Innu Agreement-in-Principle cannot have a
potential adverse affect on those rights if the territory that it concerns does
not overlap with the territory affected by those rights. Because the extent of
the respective territory of the applicant and interveners is at issue, even in
a preliminary and non-definitive manner, Prothonotary Tabib was
[translation]
satisfied that, in the
circumstances, the evidence that the [interveners] could submit in response to
the applicants’ evidence would provide a unique and valuable insight into the
nature and modalities of the Hurons-Wendats’ usage of the territory presumably
covered by the Treaty of 1760, more specifically, according to the perspective
and point of view of the Aboriginal groups represented by the moving parties,
who themselves are claiming Aboriginal title on part of the same territory.
[8]
The
Prothonotary therefore granted leave to the interveners to [translation] “clarify, contradict or
characterize the evidence as submitted by the applicant”, on condition that their
evidence be [translation] “proportionate” and not lead to
new issues not raised by the applicant. She also granted leave to the
interveners to [translation] “introduce reply evidence
with respect to the adverse affect that entering into a treaty with the Innu
would allegedly have on the rights claimed by the applicant”, in order to [translation] “counterbalance, if need
be, the unilateral evidence and point of view submitted by the applicant on
this point”. Moreover, the Prothonotary did not grant leave to the interveners
to appeal any eventual decision or to seek costs from the applicant.
[9]
Subsection
109(1) of the Rules states the following: “[t]he Court may, on motion, grant
leave to any person to intervene in a proceeding”. Thus, the granting of leave
to intervene is a discretionary order. It is well established that
[d]iscretionary orders of
prothonotaries ought not be disturbed on appeal to a judge unless: (a) the
questions raised in the motion are vital to the final issue of the case, or (b)
the orders are clearly wrong, in the sense that the exercise of discretion by
the prothonotary was based upon a wrong principle or upon a misapprehension of
the facts.
(Merck & Co, Inc v Apotex Inc, 2003 FCA 488,
[2004] 2 FCR 459 at paragraph 19)
[10]
The sole purpose of the order by Prothonotary Tabib and, consequently,
this appeal, is the scope and limits of the participation of the interveners in
this matter. As the applicant acknowledged at the hearing, this question is not
vital to the final issue of the case. The Court will therefore intervene only
if the order under appeal by the applicant is clearly wrong, that is, that it
is based upon a wrong principle [or] upon a misapprehension of the facts.
[11]
According
to the applicant, the Prothonotary misunderstood the nature of the dispute with
the Crown. It concerns only the Crown’s duty under the Treaty of 1760 to
consult it before entering into an agreement that concerns, in part, its
ancestral territory. Because its rights on some portions of the territory have
already been recognized, in particular by the Supreme Court in Sioui, above,
as well as by the Quebec Court of Appeal in Québec (Procureur général) c
Savard, [2003] 4 CNLR 340, 2002 CanLII 5494 (QC CA), no additional evidence
is necessary to support its right to be consulted. Thus, the evidence that the
Prothonotary granted leave to the interveners to adduce [translation] “is neither required nor
justified” to dispose of the application for judicial review.
[12]
The
Crown and interveners submit, on the contrary, that [translation] “evidence of the territorial scope of the
Treaty [of 1760] should be submitted” in this case so as to establish the
extent and strength of the applicant’s rights. Thus, the interveners’ participation
will be of use to the Court in determining the existence and scope of the duty
to consult the Crown may have to the applicant. The duty will depend on the
extent of the territory to which the Treaty of 1760 applies, which was not
determined by treaty or court decision.
[13]
Moreover,
the interveners are of the view that their participation in this case will
serve to advance the objectives of reconciliation and cooperation between the Aboriginal
peoples that were set out by the Supreme Court. It will also enable the Court
to understand the Innu point of view, which the parties are unable to present to
it. In fact, if the interveners were to be excluded from this case, the Crown
would not be able to meet its fiduciary duty towards them.
[14]
Finally,
the interveners point out that Chief Justice Lamer regretted, in Delgamuukw v
British Columbia, [1997] 3 S.C.R. 1010, 153
DLR (4th) 193, at paragraph 185, that “ many aboriginal nations
with territorial claims that overlap with those of the appellants did not
intervene in this appeal, and do not appear to have done so at trial”. The
situation in this case is similar, and the Court should grant leave for the
intervention in order to arrive at a fair and knowledgeable decision on it. I agree.
[15]
The
Prothonotary did not commit a flagrant error with respect to the principles or her
assessment of the facts. In fact, as noted by the interveners, she interpreted
the application for judicial review in the manner sought be the applicant, by
addressing only the Crown’s duty to consult it before taking steps that could
breach its rights under the Treaty of 1760.
[16]
As
she noted, “the scope of the duty [to consult] is proportionate to a
preliminary assessment of the strength of the case supporting the existence of
the right or title, and to the seriousness of the potentially adverse effect
upon the right or title claimed” (Haida Nation, above, at paragraph
39). In particular, that duty will only require the consent of the First Nation
“in cases of established rights, and then by no means in every case” (ibid., at paragraph 48; emphasis added).
[17]
In Mikisew Cree First Nation v Canada (Minister of Canadian
Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, Justice Binnie explained, on
behalf of the Supreme Court, that those principles remain relevant when the
rights for which a First Nation is seeking recognition arise from a treaty,
which was not the case in Haida Nation, above.
[18]
Counsel for the applicant tried to establish a distinction between
this case and Mikisew by pointing out that, in Mikisew, the
applicable treaty enabled the Crown to use territories that are part of the Mikisew
Nation territories. Consultation became necessary in that case. The Treaty of
1760 does not grant such a seemingly unilateral power to the Crown.
[19]
In my view, this distinction is not significant. It would be
surprising to state that the Crown has the duty to consult the applicant—and to
obtain its consent—before undertaking any action, regardless of whether or not
that action affects the applicant’s rights. Justice Binnie explained the
following in Mikisew, above, at paragraph 34:
In the case of a treaty the
Crown, as a party, will always have notice of its contents. The question in
each case will therefore be to determine the degree to which conduct
contemplated by the Crown would adversely affect those rights so as to trigger
the duty to consult.
To determine that
degree, the Court will need to have a preliminary idea of the territorial scope
of the applicant’s rights that it claims are affected by the Crown’s action.
[20]
The
evidence in support of the territorial scope of the rights that the applicant claims
are protected by the Treaty of 1760 and the adverse effects that a treaty entered
into by the Crown and the interveners would have on those rights are therefore
essential issues in this case. In that respect, I agree with the Crown that, in
the event that certain adverse effects alleged by the applicant are the result
of intervener actions, their point of view will be relevant to the study of
this issue by the Court. Thus, the Prothonotary’s decision is not based upon a
wrong principle.
[21]
Similarly,
her finding that the interveners may provide some unique and valuable insight
into these issues for the Court is not based upon a misapprehension of the
facts. To the contrary, because the reason for the application for judicial
review in this case is the claim by two First Nations of the same territory, it
is apparent in Chief Justice Lamer’s comments in Delgamuukw, above, that
the point of view of those two First Nations is important if not essential to
properly assessing, even preliminarily, the rights claimed by one of them.
[22]
Furthermore,
even though the Supreme Court, in Sioui, above, and the Quebec Court of
Appeal, in Savard, above, recognized established rights under the Treaty
of 1760, the Court, in determining the application for judicial review, must at
least come to its own finding with respect to the applicant’s rights and the
intensity of the Crown’s duty to consult it. In that respect, in Sioui, above, the Supreme Court did not exactly
define the rights established by the Treaty of 1760. Instead, the Court found
the following, at page 1071:
in view of the
absence of any express mention of the territorial scope of the treaty, it has to
be assumed that the parties . . . intended to reconcile the Hurons' need to
protect the exercise of their customs and the desire of the British conquerors
to expand. Protecting the exercise of the customs in all parts of the
territory frequented when it is not incompatible with its occupancy is in my
opinion the most reasonable way of reconciling the competing interests.
[23]
And,
as the Supreme Court explained in Haida Nation, above, at paragraph
44, even when there is, at first glance, solid evidence of an important right
for a First Nation and a risk of a serious breach of that right, “precise
requirements [may] vary with the circumstances”.
[24]
The
applicant’s other arguments also cannot be retained. Even if it is accepted
that the case can become more complex in the presence of interveners to the
extent that they could adduce evidence that would otherwise not be part of it,
this would help inform the Court about the essential issues of the case. In any
event, Prothonotary Tabib’s order aims to limit the complexity of the case by
restricting the intervention to the issues raised by the applicant. Because the
Prothonotary took this problem into account, I cannot find that her order is based
upon a misapprehension of the facts or upon a wrong principle. The purpose of
an intervention is to “assist the determination of a factual or legal issue
related to the proceeding” (Rules, paragraph 109(2)(b)). That
criterion is satisfied is this case.
[25]
In
short, the applicant did not show that the order by Prothonotary Tabib that is in
appeal is based upon a wrong principle or upon a misapprehension of the facts.
The appeal is therefore dismissed.
[26]
Lastly,
the Court would like to point out that it could not have awarded the remedy
sought by the applicant because it presupposes a severance of the proceeding or
amendments to the application for judicial review that were not granted by the
Court (and were not even the subject of a motion by the applicant). The sole
issue before the Court is an appeal of the order by Prothonotary Tabib that
granted leave to the interveners to intervene and imposed certain limits on such
intervention. Such an appeal cannot be means to indirectly alter the structure
of the same case.
JUDGMENT
THE COURT ORDERS that the
motion for appeal be dismissed.
“Danièle
Tremblay-Lamer”
Certified
true translation
Janine
Anderson, Translator
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