PRACTICE |
Parties |
Standing |
Hwiltsum First Nation v. Canada (Minister of Fisheries and Oceans)
T-910-01
2001 FCT 936, Hargrave P.
22/8/01
9 pp.
Tsawwassen First Nation seeking status either as respondent or as intervener in proceedings involving right of applicants to Aboriginal licence for sockeye salmon food fishery--Determined to have interest sufficient to afford it status of intervener--At issue extent of participation, particularly as to filing of affidavit evidence--Thrust of such evidence would be oral history going to establish continuous control by Tsawwassen First Nation vis-à-vis other First Nations over portions of Lower Fraser River fishery in general--Test for admissibility of oral historical evidence whether both useful and reasonably reliable so as to promote truthfulness and fairness, bearing in mind application of principles should facilitate justice, not stand in its way: Mitchell v. M.N.R. (2001), 199 D.L.R. (4th) 385 (S.C.C.)--Tsawwassen First Nation putting forward affidavit evidence of elder, sworn July 26, 2001, purporting to establish that Canoe Pass occupied by Tsawwassen First Nation, who thoroughly utilized resources in area for "thousands of years" as "exclusive fishing grounds of Tsawwassen People" Applicants referring to "Tsawwassen First Nation Presentation of Treaty Negotiation Proposal" dated July 28, 2000 purporting to set out recollections of same elder, stating prior to 1962 or 1963 no Tsawwassen native food fishery--Clearly, at one time Aboriginal peoples, including forefathers of present Tsawwassen First Nation did have fishery on some parts of Fraser River--Proper perspective that since 1891 no exclusive control by Tsawwassen First Nation over Canoe Pass, no fishing by First Nations people near mouth of Fraser River since between 1914 and 1962--Counsel for Tsawwassen First Nation unable to satisfactorily reconcile present affidavit evidence with same elder's recollections year earlier--Oral historical evidence not only fails "reasonably reliable" test, but completely unreliable--As such, not useful--Any probative value overshadowed by potential prejudice to applicants--Absent broadening of mandate by Court, intervener takes record as exists--Crown, through Minister of Fisheries and Oceans, can make available sufficient, appropriate evidence to deal with current fishing practices, circumstance--More than enough evidentiary material put into record by parties, other intervener to enable Tsawwassen First Nation to take record as it finds it and then more than adequately protect its position by arguing from that record.