Date: 20080613
Docket: T-225-08
Citation: 2008 FC 735
Ottawa, Ontario, June 13,
2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
BROKENHEAD OJIBWAY
NATION, LONG PLAIN FIRST NATION,
SWAN LAKE FIRST
NATION, FORT ALEXANDER FIRST NATION, also known as “SAGKEENG FIRST NATION”, ROSEAU
RIVER ANISHINABE FIRST NATION, PEGUIS FIRST NATION AND SANDY BAY
FIRST NATION, known collectively as the TREATY ONE FIRST NATIONS
Applicants
and
THE ATTORNEY
GENERAL OF CANADA,
THE NATIONAL
ENERGY BOARD
and
TRANSCANADA
KEYSTONE PIPELINE GP LTD.
Respondents
REASONS FOR ORDER AND ORDER
[1]
On this motion, the Canadian Association of Petroleum
Producers (CAPP) seeks to be joined in this proceeding as a respondent,
contrary to the wishes of the Applicants (collectively, the Treaty One First
Nations). CAPP is an industry association representing 150 companies which
explore for, develop and produce natural gas and crude oil in Canada and
it asserts that it “is adverse in interest” to the position taken by the Treaty
One First Nations in this proceeding. CAPP also asserts in argument that “any
factors relevant to the regulatory processes connected with the transportation
of Canadian produced crude oil and natural gas have a direct and material
impact on [it's] members”.
[2]
In the main proceeding, the Treaty One First Nations are
seeking declaratory relief against Canada
(represented by the Attorney General) in connection with the Governor in
Council’s approval of the TransCanada Keystone Pipeline project. That project
will impact territory in Manitoba which is claimed by the Treaty One First
Nations. In the result, they assert that they had the right to be consulted
and accommodated by the Crown before the Governor in Council authorized the
National Energy Board (NEB) to issue a Certificate of Public Convenience and
Necessity (Certificate) to TransCanada Keystone Pipeline GP Ltd. (TransCanada).
That Certificate was issued under section 52 of the National Energy Board
Act, RSC 1985, c. N-7 and it allowed construction on the project to
proceed.
[3]
In their Notice of Application, the Treaty One First
Nations allege that the Crown has failed to fulfill its duty to consult and
accommodate. They are seeking various declarations of rights and an Order
quashing the decision of the Governor in Council. The only relief claimed
against the NEB is a declaration to the effect that it had a legal duty to
ensure that the Crown met its duty to consult and accommodate before a
Certificate was issued to TransCanada. No allegation is made by the
Treaty One First Nations that the NEB
decision was otherwise procedurally or substantively deficient and no relief is
claimed directly against TransCanada. Nevertheless, TransCanada has an
interest in this proceeding because its economic interests could be directly
impacted by the outcome of this proceeding: see Canadian
Parks and Wilderness v. Canada
(Minister of the Environment), (1993) 69 F.T.R. 241, 23 Admin. L.R. (2d) 6 at
para. 17.
[4]
CAPP's motion is brought under Rules 303(1) and 104(1)(b) of the
Federal Courts Rules which respectfully
state:
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303. (1) Subject to subsection (2), an
applicant shall name as a respondent every person
(a) directly affected by the order sought in the
application, other than a tribunal in respect of which the application is
brought; or
(b) required to be named as a party under an Act of
Parliament pursuant to which the application is brought.
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303. (1) Sous
réserve du paragraphe (2), le demandeur désigne à titre de défendeur :
a) toute personne
directement touchée par l’ordonnance recherchée, autre que l’office fédéral
visé par la demande;
b) toute autre
personne qui doit être désignée à titre de partie aux termes de la loi
fédérale ou de ses textes d’application qui prévoient ou autorisent la
présentation de la demande.
|
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104. (1) At any time, the Court may
(a) order that a person who is not a
proper or necessary party shall cease to be a party; or
(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.
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104. (1) La Cour
peut, à tout moment, ordonner :
a) qu’une personne
constituée erronément comme partie ou une partie dont la présence n’est pas
nécessaire au règlement des questions en litige soit mise hors de cause;
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.
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[5]
CAPP relies principally on three authorities, Enniss v. Canada,
(1995) 104 F.T.R. 145, F.C.J.
1593, Tetzlaff v. Canada, [1992] 2 F.C. 215, 134 N.R. 57 and Canada
(Information Commissioner) v. Canadian Transportation Accident Investigation
and Safety Board, 2001 FCT 659, 2006 F.T.R. 202. It also relies on the
fact that it has been added as a respondent in several similar proceedings presently
before the Federal Court of Appeal (eg. see the Sweetgrass First Nation et
al. v. the National Energy Board et al., 08-A-30).
[6]
The decision by Justice Michael Ryer to add CAPP as a Respondent
in an appeal before the Court of Appeal, above, has no application to this
proceeding. According to the Order of Justice Ryer, the Court of Appeal is
dealing with appeals brought by various First Nations parties from decisions made
by the NEB. In those NEB proceedings, the First Nations parties and CAPP were
intervenors and it was clearly appropriate that CAPP be made a party to any
resulting appeals. That is a very different situation from the proceeding
before me. In this matter, the Treaty One First Nations were not parties to
the NEB proceeding and the NEB decision is not the subject
matter of this application. Here, it is the decision of the Governor in
Council that is in issue. I therefore do not consider the involvement of CAPP
in those other proceedings to have any relevance to its motion to be added as a
Respondent to this application.
[7]
The authorities cited by CAPP do not support the position
it asserts on this motion. In Enniss, above, Justice Marc Nadon
remarked at para. 6 that "generally... any party who was heard in the
proceedings before [a] federal board and who opposed the Applicant must be
named". In Tetzlaff, above, it was similarly stated by Justice
James Hugessen that a party before a Board should "usually
necessarily" be made a party to a resulting judicial review (para. 20).
This point would be potentially apt only if the decision being challenged by
the Treaty One First Nations in this proceeding were that of the NEB and
not the Governor in Council. Furthermore, the Treaty One First Nations were
not parties before the NEB and cannot be said to have been adverse to CAPP's
interests in that proceeding.
[8]
In Canada (Information Commissioner), above, Justice
Jean-Eudes Dubé dealt with a motion by Nav Canada to
be joined as a Respondent in an application by the Information Commissioner of
Canada against the Transportation Safety Board seeking access to audiotape
recordings involving Nav Canada employees. In allowing the joinder of
Nav Canada as a respondent, the Court noted the
value of its evidence and expertise to the proceeding and expressed a concern
that Nav Canada's interests might not be adequately looked after by the
Transportation Safety Board. The Court also listed with approval the following
five considerations that will usually be relevant in some measure to a contested
motion to join a party as a respondent to a proceeding such as this one (as
originally set out in Apotex v. Canada
(Attorney General) et al (1994) 79 F.T.R. 235, 56 C.P.R. (3d) 261):
a.
The status of the case. What is the procedural and
substantive development of the matter to date? How well have the issues being
defined?
b.
The impact of the decision. Who will be affected? Are the
issues of interest to the parties, to a broader group such as in industry or to
the public at large?
c.
The nature of the rights which the moving parties assert.
Are they direct or remote? Are they substantive, procedural, economic?
d.
The nature of the evidence the proposed parties or intervenors
are in a position to adduce and whether it will assist the Court in reaching
its decision.
e.
The ability of the existing parties to adduce all the
relevant evidence and their apparent enthusiasm for the task.
[9]
There is no question that we are at an early stage of this
litigation so that the joinder of CAPP would be unlikely to adversely affect the
process through substantial delay or thrown away costs.
[10]
On the strength of the evidence presented by CAPP it is
impossible to assess the financial impact of this litigation upon its members.
Presumably, the industry as a whole has some interest in achieving a degree of
regulatory clarity but I question whether CAPP can assert an interest as a
surrogate for some of its members whose economic interests might be affected by
the outcome of this proceeding. In that sense, CAPP's interests are only
indirect and less substantial than a party like TransCanada whose actual
economic interests are clearly at stake. Indeed, I question whether CAPP has
any direct interest in this proceeding and that, of course, is a prerequisite
to relief under Rule 303(1): see Reddy-Cheminor, Inc. v. Canada, 2001
FCT 1065, 212 F.T.R. 129 aff’d 2002 FCA 179, 291 F.T.R. 193.
[11]
In terms of the added value that CAPP claims that it can
bring to this litigation, the only evidence it has produced is the perfunctory
affidavit of its Vice President of Markets and Fiscal Policy who asserts only
that CAPP is adverse in interest to the Treaty One First Nations. No evidence
has been provided to indicate why or how CAPP's
involvement would enhance the process. It is probably implicit that the economic
interests of some of CAPP's members could be affected by the outcome of this
proceeding but no party is more likely to be adversely affected than
TransCanada. What CAPP can bring to this litigation that TransCanada and the
other Respondents cannot is left unanswered in the evidence presented. Vague
references in argument about potential differences between TransCanada and the
industry producers and the need to bring “important” evidence before the Court
are simply unconvincing. There is also nothing before me to indicate that
TransCanada or the Attorney General lack enthusiasm in the prosecution of their
respective defences to the claims asserted against their interests or that they
are likely to be indifferent to relevant issues and evidence. It bears
repeating here that the only substantive issue so far raised in the pleadings
concerns the Crown’s duty to consult and accommodate. The resolution of that
matter is unlikely to be further advanced by CAPP’s involvement. CAPP asserts
in argument that it will “bring an important and different perspective to the
litigation” but it does not say what that would be. In fact, CAPP’s
participation is more likely to result in the duplication of effort and the
repetition of argument without any corresponding benefit being realized.
[12]
To the extent that CAPP may have a limited interest in the
issue of regulatory certainty vis-à-vis the claimed duty to consult and
accommodate, it is difficult to understand why that interest could not be met
by being joined as an intervenor with appropriate participatory limitations.
That option has been extended by the Treaty One First Nations but surprisingly
CAPP has not sought such a status even as an alternative form of relief.
[13]
I am not satisfied on the evidence presented by CAPP that
it is entitled to be added as a party Respondent to this application. Its
motion is dismissed with costs payable forthwith to the Applicants in the
amount of $2,000.00 inclusive of disbursements.
ORDER
THIS COURT ORDERS that this motion is dismissed with costs payable
forthwith to the Applicants in the amount of $2,000.00 inclusive of
disbursements.
“ R. L. Barnes ”
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