Date: 20090226
Docket: A-154-08
Citation: 2009 FCA 61
Present: RICHARD
C.J.
BETWEEN:
SAWRIDGE BAND
Appellant
(Plaintiff)
and
HER MAJESTY THE QUEEN
Respondent
(Defendant)
and
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN’S ASSOCIATION OF CANADA
Respondents
(Interveners)
AND
BETWEEN:
TSUU T’INA FIRST NATION
(formerly the Sarcee Indian Band)
Appellant
(Plaintiff)
and
HER MAJESTY THE QUEEN
Respondent
(Defendant)
and
CONGRESS OF ABORIGINAL PEOPLES,
NATIVE COUNCIL OF CANADA (ALBERTA),
NON-STATUS INDIAN ASSOCIATION OF ALBERTA
and NATIVE WOMEN’S ASSOCIATION OF CANADA
Respondents
(Interveners)
REASONS FOR ORDER
RICHARD C.J.
[1]
This is a
motion brought pursuant to Rule 369 of the Federal Courts Rules by the
following proposed interveners to intervene in this appeal:
Elder Pete Waskahat, P.O. Box 605, Frog Lake First Nation, Alberta
Elder Mike Beaver, P.O. Box 1186, Bigstone Cree Nation, Alberta
Elder Chief Reg Crow Shoe, Piikani Nation, Alberta
Assembly of Treaty Chiefs of Alberta as
represented by
-
Grand
Chief Wayne Moonias, P.O.
Box 130,
Hobbema, AB, T0C 1N0
-
Grand
Chief Charles Weaselhead, P.O.
Box 60, Standoff, AB, T0L 1V0
-
Grand
Chief Joseph Whitehead Jr., 18178-103 Ave., Santa Fe Plaza, Edmonton, AB, T55 1S7
[2]
The
grounds for the motion are:
The
Applicants have an interest in and are seriously affected by the outcome of
this proceeding;
The
Applicants intend to intervene for the purpose of assisting the Court in
understanding how the “Aboriginal perspective,” as defined by the Supreme Court
of Canada, is an essential component of a fair determination of issues in
Aboriginal litigation, and in particular the understanding of both the nature
and the role of Aboriginal lay witness testimony, including Elders’ evidence,
regarding oral traditions as a component of the “Aboriginal perspective.”
Furthermore,
the Applicants intend to intervene to demonstrate that there must be balancing
and appropriate application of the general rules of practice and procedure
which will most fairly and accurately accommodate and respect the introduction
of Aboriginal oral traditions, including oral history, at trial. The trial judgment,
in its final result, runs contrary to the Supreme Court of Canada’s call for
the reconciliation of Aboriginal and non-Aboriginal interests and aspirations.
The
Applicants intend to intervene to address a justiciable issue of public
interest;
The Applicant
Elders have special expertise with respect to the appropriate treatment of
Elder witnesses by the Court and during pre-trial disclosure and discovery, and
at trial;
The
Applicants are able to provide a different perspective on questions raised in this
appeal than the ones to be provided by the parties;
The
Applicants have no other reasonable or efficient recourse to address the issue
before the Court;
[3]
The Orders
sought are as follows:
ORDER that
the Assembly of Treaty Chiefs (Alberta), as represented by
Grand Chief Wayne Moonias, Grand Chief Charles Weaselhead and Grand Chief
Joseph Whitehead, and Elder Pete Waskahat, Elder Chief Reg Crow Shoe and Elder
Mike Beaver be added as Interveners in this proceeding.
ORDER that
the Applicants (Proposed Interveners) be allowed to present written submissions
in the form of a Memorandum of Fact and Law in accordance with Rule 70 of the Federal
Court Rules 1998 by March 20, 2009, and be allowed to present oral
submissions in support of this intervention during the hearing of the
proceeding scheduled to begin April 20, 2009 in Ottawa.
[4]
Two
appeals, one on the ultimate result of the trial and the other on the costs
award, have been consolidated.
[5]
The
proposed interveners have been aware of both the underlying action and the
within appeals for some time.
[6]
The
proposed interveners did not file their motion to intervene until January 23,
2009, some five months after these appeals were set down for hearing and over a
month after Her Majesty the Queen filed her memorandum on the merits.
[7]
Further,
the proposed interveners request that their memorandum in respect of their
intervention be served and filed on March 20, 2009, four weeks before this
Court is to hear oral argument in these appeals.
[8]
The
proposed interveners have provided no reasonable explanation as to why they did
not bring this application at an earlier date.
[9]
In
arriving at my decision to dismiss the motion to intervene brought by the
proposed interveners, I have considered the factors relevant to an application
for intervention in Canadian Union of Public Employees v. Canada Airlines
International Ltd., [2000] F.C.J. No. 220 (QL), paragraph 8 (C.A.).
[10]
The
actions underlying these appeals have a lengthy and complex procedural history
involving a trial, an appeal resulting in an Order for re-trial followed by
years of case management resulting in a dismissal of the plaintiffs’ actions by
Judgment dated March 7, 2008.
[11]
One of the
key factors to be considered on a motion to intervene is whether the position
of the proposed intervener will be adequately defended by one of the existing
parties.
[12]
The
proposed interveners assert that they will assist this Court in understanding
the role that the Aboriginal perspective plays in the fair determination of
Aboriginal litigation.
[13]
However,
the appellants are themselves Indian Bands.
[14]
During the
course of the trial, the appellants made written and oral submissions on how
lay evidence and oral history evidence is dealt with in the jurisprudence.
[15]
The
perspective that the proposed interveners wish to bring is duplicative of that
of the parties to the appeals.
[16]
As Noël
J.A. stated in Li v. Canada (Minister of Citizenship and
Immigration),
2004 FCA 267, at paragraph 7:
The …
perspective which the [intervener] proposes to bring to the attention of the
court is being canvassed by the parties to the litigation and the position
which the [interveners] proposes to advance … is adequately defended by the
appellant.
[17]
Accordingly,
the motion to intervene by the proposed interveners will be dismissed with
costs.
"J.
Richard"
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