T-2080-88
David Paul, Chief of the Tsartlip Indian Band,
Louis Claxton, Chief of the Tsawout Indian Band,
Tom Harry, Chief of the Malahat Indian Band,
Ed Mitchell, Chief of the Pauquachin Band, David
Bill, Chief of the Tseycum Indian Band, each on
their own behalf and on behalf of each of the
members of their respective bands (Plaintiffs)
v.
Pacific Salmon Foundation, Her Majesty the
Queen in Right of Canada, the Minister of Fisher
ies and Oceans (Defendants)
INDEXED AS: TSARTLIP INDIAN BAND V. PACIFIC SALMON
FOUNDATION (T.D.)
Trial Division, Muldoon J.—Vancouver, June 5
and 21, 1989.
Practice — Parties — Intervention — Motion by unincorpo-
rated association to be added as party or intervener — Mem
bers of association engaged in commercial fishing — Indian
Bands seeking declaration of rights to harvest fishery —
Intervener status granted following trend where public interest
and constitutional issues raised — Intervention authorized by
analogy to RR. 1310 and 1717(2)(b) and by Court's inherent
jurisdiction to control own procedure — Standing as party
defendant refused as association could not be sued.
Federal Court jurisdiction — Trial Division — Motion by
unincorporated association to be added as party or intervener
in action for declaration as to Indian Bands' right to harvest
fishery — Intervener standing granted — Court having inher
ent jurisdiction under s. 101 Constitution Act, 1867 to control
own procedure — Standing as party defendant refused —
Court without jurisdiction to entertain claim between plaintiffs
and applicant even if lis between them.
This is a motion by Pacific Fishermen's Alliance (PFA) for
an order adding it as a party or intervener in an action for
declaratory and injunctive relief. PFA is an unincorporated
association whose members are engaged in commercial fishing
off the west coast. The plaintiffs claim that the issuance of a
licence to the Pacific Salmon Foundation to harvest the salmon
fishery would adversely affect their right to harvest that fishery
for their own needs and for commercial purposes and would be
inconsistent with their Treaty fishing rights.
Held, the applicant should be granted interverner status.
The Pacific Fishermen's Alliance cannot be added as a party
defendant. Whether it consents or not, PFA cannot be sued in
this Court. The Court has no jurisdiction to entertain such a
claim even if there were a genuine lis between the plaintiffs and
the applicant.
PFA should, however, be afforded standing as a party
intervenant, subject to specific conditions. It has a strong and
compelling interest in the outcome of the action: a declaration
of extensive, if not exclusive, rights to take salmon would, if
exercised, affect the livelihoods of its members. There is an
increasing judicial trend to afford interested parties standing to
intervene in litigation involving high public interest and consti
tutional matters.
Federal Court Rule 5 is the basis upon which the issue of the
Court's authority to permit intervention is to be determined.
Rule 5(a) provides that the practice and procedure of the Court
can be determined by analogy to other Rules. An apt analogy
could be found in Rules 1310 and 1716(2)(b). A further ground
was the Court's inherent jurisdiction, derived from section 101
of the Constitution Act, 1867, to control its own practice and
procedure. Section 101 was sufficient to give the Court jurisdic
tion to permit an intervention for the "better administration of
the laws of Canada".
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5], ss. 91(12),(24) 92, 96, 101.
Federal Court Rules, C.R.C., c. 663, RR. 5, 1010, 1310,
1716(2)(b).
Rules of Court, B.C. Reg. 310/76, R. 15(5)(a).
CASES JUDICIALLY CONSIDERED
APPLIED:
Aida Enterprises Ltd. V. R., [1978] 2 F.C. 106; (1977),
80 D.L.R. (3d) 551 (T.D.); Dene Nation v. The Queen,
[1983] 1 F.C. 146 (T.D.); Attorney General of Canada,
The v. The Canadian Pacific Railway Company and
Canadian National Railways, [1958] S.C.R. 285;
(1958), 12 D.L.R. (2d) 625; 76 C.R.T.C. 241; Can. Lab.
Congress v. Bhindi (1985), 61 B.C.L.R. 85 (C.A.); Fish
ing Vessel Owners' Assn. of B.C. v. A.G. Can. (1985), 1
C.P.C. (2d) 312; 57 N.R. 376 (F.C.A.); Canadian Red
Cross Society v. Simpsons Limited, [1983] 2 F.C. 372;
(1983), 70 C.P.R. (2d) 19 (T.D.).
CONSIDERED:
Tsartlip Indian Band et al. v. Pacific Salmon Foundation
et al. (1988), 24 F.T.R. 304 (F.C.T.D.); R. v. Sparrow
(1986), 36 D.L.R. (4th) 246; [1987] 2 W.W.R. 577; 9
B.C.L.R. (2d) 300; 32 C.C.C. (3d) 65 (C.A.); British
Columbia Packers Ltd. v. Canada Labour Relations
Board, [1974] 2 F.C. 913; (1974), 50 D.L.R. (3d) 602
(T.D.); affd [1976] 1 F.C. 375; (1975), 64 D.L.R. (3d)
522; 75 CLLC 14,307 (C.A.).
REFERRED TO:
British Columbia Packers Limited v. Canada Labour
Relations Board, [1973] F.C. 1194 (T.D.); B.C. Fed. of
Lab. v. B.C. (W.C.B.) (1988), 29 B.C.L.R. (2d) 325
(S.C.).
AUTHORS CITED
Oxford English Dictionary, vol. I, compact ed. Oxford:
Clarendon Press, 1971, "analogy".
Petit Larousse illustré. Montréal: Editions françaises,
1984, "analogie".
COUNSEL:
C. Harvey for proposed intervener.
Lewis F. Harvey for plaintiffs.
J. R. Haig for defendant Her Majesty the
Queen in Right of Canada.
SOLICITORS:
Russell & DuMoulin, Vancouver, for pro
posed intervener.
Davis & Company, Vancouver, for plaintiffs.
Deputy Attorney General of Canada for
defendant Her Majesty the Queen in Right of
Canada.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant, not a party hereto,
has brought this motion dated May 24, 1989, for
an order that the Pacific Fishermen's Alliance, on
behalf of the Pacific Gillnetters Association, the
Gulf Trollers Association, the Pacific Trollers
Association, the Prince Rupert Fishing Vessel
Owners Association, the Fishing Vessel Owners
Association of British Columbia, the Pacific Coast
Fishing Vessel Owners Guild, Northern Trollers
Association, the Prince Rupert Fishermen's Coop
erative Association, the Co-op of Fishermen's
Guild, the Underwater Harvesters' Association
and the Deep Sea Trawlers Association of B.C. be
added as a party or intervener in the present
action, pursuant to Rules 5, 1010 and 1716(2)(b)
[Federal Court Rules, C.R.C., c. 663].
The applicant, the Pacific Fishermen's Alliance
(hereinafter: PFA), is an unincorporated associa
tion composed of the organizations on whose
behalf it brings this motion some, most or all of
which are incorporated entities. They are all
engaged in commercial fishing off the west coast.
Some, but apparently few, of their members are
registered Indians who have additional racial in
terests in common with the plaintiffs. The motion
is supported by Lawrence Patrick Greene's affida
vits, sworn respectively on November 5, 1988, and
May 23, 1989.
In order to appreciate the flavour of the plain
tiffs' action, one can do no better than to resort to
their statement of claim which speaks for itself,
after all. Here are certain selected passages:
21. The Plaintiffs say that their right to harvest the Gold-
stream Fishery in or around Satellite Channel and Saanich
Inlet are rights which existed prior to the Treaties and were
reserved at the time of the Treaties and acknowledged by the
Treaties and are rights which have existed and continue to
exist. These rights include the right of members of the Bands to
harvest the Goldstream Fishery in or around Satellite Channel
for such purposes as they see fit including for their own food
needs and for commercial purposes.
22. The Minister of Fisheries and Oceans has unlawfully inter
fered with and thereby denied the Plaintiffs' right to harvest
the Goldstream Fishery in and around Satellite Channel during
the years 1984, 1985, 1986, 1987 and 1988. In addition, the
Minister of Fisheries and Oceans has failed to adequately
protect the rights of the Plaintiffs to their fisheries including,
inter alla, the Goldstream Fishery. As a result thereof, the
economic and cultural life of the Bands has and continues to
suffer damage and injury. Such damage and injury include,
inter alla, the loss of income and business opportunity which
have resulted in an unemployment rate among the Plaintiff
Bands of 85%. This has had a dramatic and adverse effect on
the social and cultural fabric of the Plaintiff Bands.
23. By the actions of the Minister of Fisheries and Oceans as
set out in paragraph 22 herein, Her Majesty and the Minister
are in breach of the fiduciary duty they owe to the Bands to
protect the Plaintiffs' rights to the Goldstream Fishery and
their duty not to prejudice or diminish the rights of the
Plaintiffs as acknowledged and affirmed by the Treaties. As a
result thereof, the Bands have suffered the injuries and dam
ages as set out in paragraph 22 herein.
24. The Minister of Fisheries and Oceans has, or is proposing
to issue a licence to the Pacific Salmon Foundation pursuant to
the Fisheries Act, allowing the Pacific Salmon Foundation to
harvest the Goldstream Fishery in or around the area of
Satellite Channel for the year 1988. This licence is purported to
be issued by the Minister to the exclusion of the members of
the Plaintiff Bands in violation of the rights of the Bands
acknowledged by the Treaties and in breach of the fiduciary
duty owed to the members of the Bands by the Minister.
25. As a result of the actions of the Minister as set out in
paragraphs 22 and 24 herein, the Plaintiffs have suffered and
will continue to suffer damages, including the loss of income
and business opportunity. In addition, the harvest of the Gold-
stream Fishery by the Pacific Salmon Foundation in the Satel
lite Channel area will cause irreparable harm to the Plaintiffs
inasmuch as the Plaintiffs will be prevented from carrying on
their fishery.
26. The Plaintiffs' rights as aforesaid are protected by sections
25, 35 and 52 of the Constitutional Act, 1982 and the Plaintiff
pleads and relies upon the provisions of the Constitution Act.
WHEREFORE THE PLAINTIFFS CLAIM AGAINST THE DEFEND
ANTS,
(a) A declaration that the Plaintiffs have the right to harvest
the Goldstream Fishery in and around the Satellite Channel
area.
(b) A declaration that the licence issued by the Minister of
Fisheries and Oceans to the Pacific Salmon Foundation is
null and void and of no force and effect to the extent that it is
inconsistent with the rights of the Plaintiffs to carry on their
fisheries.
(c) A declaration that the Minister of Fisheries and Oceans
does not have the lawful authority under the Fisheries Act to
act in any way which is inconsistent with the rights of the
Plaintiffs to carry on their fisheries as set out herein.
(d) An interlocutory injunction against Pacific Salmon
Foundation, its servants, employees and agents, from har
vesting the Goldstream Fishery for the year 1988.
(e) An interlocutory injunction against the Minister of Fish
eries, his officials, officers, agents or servants from interfer
ing with the exercise of the Plaintiffs' right to harvest the
Goldstream Fishery for the year 1988.
(f) A permanent injunction restraining the Minister of Fish
eries and Oceans and his officials, officers, agents or servants
from interfering with the exercise of the Plaintiffs right to
harvest the Goldstream Fishery.
(g) Damages.
(h) Interest.
(i) Costs.
(j) Such further and other relief as this Honourable Court
may deem necessary.
As counsel for the plaintiffs acknowledged at
the hearing of the motion the statement of claim is
a trifle ambiguous, in that the plaintiffs claim to
have their rights declared in full, but without
specifying what precisely is the extent of their
rights in full. That is because they hope to achieve
an extensive definition which would encompass not
only fishing for food, but also unlimited if not also
exclusive commercial fishing without needing the
Minister's permission or licence, if such be attain
able. The plaintiffs' counsel was utterly candid
about that in his oral submissions.
If the Minister did issue a licence to the Pacific
Salmon Foundation (hereinafter: the Foundation)
for 1988, as alleged in paragraph 24 of the state
ment of claim, it was agreed by counsel that the
Foundation did not exercise such licence in any
manner. Nor has the Foundation filed a statement
of defence, quite likely because the non-utilization
of any licence and because the time-limited allega
tions against the Foundation, along with any
demonstrable need for an injunction, are now
spent. Appropriate actions ought to be instituted in
order to rationalize the Foundation's place, if sub-
stantively any, in these proceedings. In any event
the Foundation will not, by its inaction, be permit
ted to obstruct or delay these proceedings.
The applicant's motion is resisted by the plain
tiffs, but not by the defendants. The applicant has
already been accorded the status of intervener, in
earlier proceedings in this action, when the plain
tiffs sought an interlocutory injunction against the
defendants. Mr. Justice Joyal, who adjudicated
that injunction application, accorded this applicant
that status and is alleged to have observed that
such intervention had been helpful to him. Joyal J.
dismissed that application without costs, in reasons
dated December 5, 1988 [Tsartlip Indian Band et
al. v. Pacific Salmon Foundation et al. (1988), 24
F.T.R. 304 (F.C.T.D.)]. No formal order to that
effect appears in the Court's file.
Mr. Justice Joyal's reasons for dismissing the
injunction application include two pertinent and
obviously correct passages [at pages 305-306]:
The issue to be debated at trial is whether or not, upon a
proper construction of the terms of the treaties, and I would
add, of the aboriginal rights entrenched therein, the plaintiffs
enjoy an unfettered, and perhaps even an exclusive, right to
harvest Chum salmon runs at Gold Stream River for their own
needs as well as for trading and commercial purposes.
From a reading of the plaintiffs' statement of claim, as well
as from a study of their affidavits in support of the motion
before me, their rights, they allege, raise constitutional issues of
some magnitude and which, I am sure, will provoke at trial
lengthy inquiry and very profound debate.
The Court, here, ratifies and adopts those
observations.
The plaintiffs' counsel most emphatically
opposes the adding of the PFA or any of its
member organizations in the role of defendant,
citing Alda Enterprises Ltd. v. R., [1978] 2 F.C.
106; (1977), 80 D.L.R. (3d) 551; (T.D.), at pages
110-111 (F.C.) and Dene Nation v. The Queen,
[1983] 1 F.C. 146 (T.D.), at page 148, both
decisions of the Trial Division of this Court. He
cited other jurisprudence to the same effect. Clear
ly, whether it consents or not, the PFA cannot be
sued by the plaintiffs herein in this Court, for the
Court would have no jurisdiction to entertain such
a claim even if there were a genuine lis between
them. Accordingly, the PFA's application to be
added as a defendant must be and is rejected.
Now, it is apparent that the declaration of
extensive fishing rights of the plaintiffs to harvest
the Goldstream fishery, even if only in or around
Satellite Channel, for such purposes as they see fit,
and whether or not such alleged rights be exclu
sive, would, if exercised, affect the legitimate
expectations and livelihoods of the PFA members,
and such licensed fishing rights as they currently
enjoy. The PFA members have a clear and direct
interest in the outcome of this litigation. It is
noteworthy that the Supreme Court of Canada
permitted their intervention on appeal from the
judgment of the British Columbia Court of Appeal
in the case of R. v. Sparrow (1986), 36 D.L.R.
(4th) 246; [1987] 2 W.W.R. 577; 9 B.C.L.R. (2d)
300; 32 C.C.C. (3d) 65 (C.A.), with similar issues
there involved as here. The Supreme Court's deci
sion has not yet been released.
The foregoing narrative relates to one of the
plaintiffs' arguments expressed in their counsel's
written submissions presented at the hearing of
this matter. He argues, alternatively, that if this
Court has jurisdiction to permit the PFA's inter
vention, its exercise is discretionary. The Court
considers that the PFA's undoubted interest is so
strong and compelling that if its intervention be
permissible, such discretion will be exercised in its
favour.
It is not only the PFA's crucial interest in the
outcome which is factor legitimate as it is, but also
the defendants' somewhat awkward posture in this
very kind of dispute. Counsel for the Crown and
Minister concedes that the applicant has "a sub
stantial and direct interest in these proceedings"
and adds that the Crown is, in effect, "in the
middle" between the Indians and the commercial
fishermen. He also suggests that the PFA's view of
the facts and law may not be just an echo of the
Crown's assertions. Further, he urged that the
PFA be accorded status to present evidence, for
the Crown may or may not be in a position to
gather and present it all. Indeed, in so far as the
Minister's view of the place and activities of the
Foundation is concerned, the PFA shares no
common ground, but argues in concert with the
plaintiffs. In any event, the Crown, being "in the
middle" as it were, has an apparent, and quite
possibly real, dilemma in approaching the federal
powers expressed in heads 12 (Fisheries) and 24
(Indians) of section 91 of the Constitution Act,
1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5]].
Much jurisprudence was cited on each side. The
increasing trend in favour of according interested
parties or groups standing to intervene in litigation
of high public interest and constitutional cases of
all kinds, including, of course, interpretations of
the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)], is revealed in the later jurisprudence. But,
as the applicant's counsel pointed out, as early at
least as 1958, the Supreme Court of Canada
showed a stated diffidence about making declara
tions of vires based on the division of legislative
powers, where the resolution of such public issues
could injuriously "affect private rights in the
absence of those claiming them". So wrote Mr.
Justice Rand for the majority of the Court, which
was unanimous in the result, in the constitutional
reference case of Attorney General of Canada,
The v. The Canadian Pacific Railway Company
and Canadian National Railways, [1958] S.C.R.
285; (1958), 12 D.L.R. (2d) 625; 76 C.R.T.C. 241
at page 294 (S.C.R.). Apparently there were not
enough interveners in that proceeding for, despite
the intervention of Imperial Oil Limited therein,
the majority were still reluctant to pronounce upon
the matter of federal legislation affecting convey
ances of title to real property in Manitoba without
hearing from those private persons whose rights
would be affected. Rand J. cited, at pages 294-295
(S.C.R.), even earlier decisions of the Judicial
Committee of the Privy Council and the Supreme
Court of Canada to support the diffidence which
he expressed for himself and his five concurring
colleagues.
What Courts do may be just as instructive as
what Courts pronounce. The case of British
Columbia Packers Ltd. v. Canada Labour Rela
tions Board, [1974] 2 F.C. 913; (1974), 50 D.L.R.
(3d) 602 (T.D.), adjudicated by Mr. Justice Addy
of this Court, revealed a failed attempt by the
C.L.R.B. to exert its jurisdiction over the crews of
fishing vessels, based on head 12 of section 91 of
the Constitution Act, 1867. The style of cause in
that case reveals the presence of the Native Broth
erhood of British Columbia, Fishing Vessel
Owners Association of British Columbia, Pacific
Trollers Association (the latter two being members
of the PFA, the applicant herein) and the Attor
neys General of British Columbia, Newfoundland
and Nova Scotia. Indeed, Addy J. is reported, at
pages 916-918 (F.C.), as expressing the following:
The first three interveners named in the style of cause were
authorized to take part in the proceedings as such by order of
my brother Walsh J., dated the 9th of September, 1974. The
last three-named interveners, namely, the Attorneys General
for British Columbia, Newfoundland and Nova Scotia were, by
the aforesaid order, authorized to intervene if they so desired.
... As it turned out, they did not in fact take any active part in
the proceedings before me but merely maintained their role as
observers.
The intervener, Native Brotherhood of British Columbia
(hereinafter referred to as "the Native Brotherhood") is an
association representing approximately one thousand native
Indians who form a good proportion of the crews of fishing
vessels involved in the application for certification of the
respondent Union. Some members of the Native Brotherhood
are reserve Indians, others are not and others are also enfran
chised Indians. There was no indication in the evidence of the
relative proportion of these three groups constituting the Native
Brotherhood or actually engaged in the fishing industry. It
appears that in the case of Indians, they sometimes form part of
the crew of a fishing vessel operated as a family enterprise and
at other times are merely members of the crews of other fishing
vessels with mixed crews. The Native Brotherhood, at the
hearing, opposed the application, adopted the arguments
advanced on behalf of the respondents and also advanced other
arguments based on the special status and rights of its members
as native Indians.
The other two interveners, namely, the Fishing Vessel
Owners Association of British Columbia and the Pacific Troll -
ers Association are associations representing independent boat
owners or members of crews having an ownership interest in
fishing vessels who, generally speaking, simply sell each catch
to the various fish processors without any special arrangement
with them as to an accounting or the sharing of profits or losses
of each catch. They are not involved in the applications for
certification made by the respondent Union before the respond
ent Board but are interested in the outcome of the proceedings,
having regard to the possibility of future action or legislation in
this area. They supported the application for prohibition and
adopted entirely the position taken and the grounds advanced
by the processors.
Although the report does not indicate it, it seems
very likely that the interventions were permitted
pursuant to Rule 1310, given the earlier abortive
origin of the proceedings under section 28, as
reported in [1973] F.C. 1194 (T.D.) [British
Columbia Packers Limited v. Canada Labour
Relations Board], or at least by analogy to that
Rule. The proceeding was not a trial per se, but
rather an application for prohibition, which was
granted. An appeal was dismissed by the Appeal
Division as reported in [1976] 1 F.C. 375; (1975),
64 D.L.R. (3d) 522; 75 CLLC 14,307 (C.A.).
The quest for authority to permit intervention is
often said to begin with consideration of Rule 5
which runs thus:
Rule 5. In any proceeding in the Court where any matter
arises not otherwise provided for by any provision in any Act of
the Parliament of Canada or by any general rule or order of the
Court (except this Rule), the practice and procedure shall be
determined by the Court (either on a preliminary motion for
directions, or after the event if no such motion has been made)
for the particular matter by analogy
(a) to the other provisions of these Rules, or
(b) to the practice and procedure in force for similar pro
ceedings in the courts of that province to which the subject
matter of the proceedings most particularly relates,
whichever is, in the opinion of the Court, most appropriate in
the circumstances.
"Analogy" is a key word in the Rule and it,
according to the so-called Compact Edition of the
Oxford English Dictionary, carries these pertinent
meanings:
Analogy .. .
2.... Due proportion; correspondence or adaptation of one
thing to another.
3. Equivalency or likeness of relations; `resemblance of
things with regard to some circumstances or effects' (J.)
4. more vaguely, Agreement between things, similarity.
In the Petit Larousse illustré of 1984, "analogie"
is defined pertinently thus:
[TRANSLATION] Relationship of similarity between two or
more things or persons: analogy of form, of taste. By analogy,
in accordance with the relationship of similarity existing be
tween things.
It is important to understand that what "by analo
gy" does not mean is choosing an identical rule,
for it necessarily implies some difference or merely
a similarity.
This action arises in British Columbia and, if
one were to apply Rule 5(b), one would have to
seek a rule of the Supreme Court of this province
relating to or permitting interventions. If reliance
can be placed, as no doubt it can, on a recent
decision of this province's Court of Appeal, that is,
Can. Lab. Congress v. Bhindi (1985), 61 B.C.L.R.
85 (C.A.), Supreme Court Rule 15(5)(a) [Rules
of Court, B.C. Reg. 310/76] is not apt for the
purpose of according standing to interveners. How
ever, as Anderson J.A. speaking for the majority
(at page 94) noted, the Supreme Court is not
limited by its rules in matters of practice and
procedure and when the rules are silent the Court
may invoke its inherent jurisdiction. Such was still
the correct proposition when on July 6, 1988, Mr.
Justice Legg of that Court, promulgated his rea
sons in B.C. Fed. of Lab. v. B.C. (W.C.B.) (1988),
29 B.C.L.R. (2d) 325 (S.C.).
There can be no doubt that the superior court of
record administering law, equity and admiralty
jurisdiction, created under the powerful aegis of
section 101 of the Constitution Act, 1867, which is
this Court, enjoys no less inherent jurisdiction to
the govern, control or regulate its proper practice
and procedure than the Supreme Court of British
Columbia which, au fond, is also a statutory supe
rior court. What the provincial superior courts are
held to have in terms of the plenitude of inherent
and common law jurisdiction as may be conferred
under head 14 of section 92 of the Constitution
Act, 1867, this Court has, in so far as Parliament
wills it, for this Court wields its jurisdiction, in the
words of section 101 "notwithstanding anything in
this Act" which of course means notwithstanding
anything in section 91, 92, 96 or whatever. If that
non obstante phrase was sufficient to terminate
appeals to the Judicial Committee of the Privy
Council against all objections, it is certainly suffi
cient to have secured this Court's jurisdiction to
control its own practice and procedure in order to
admit an intervener for the purpose, here, of the
"better administration of the laws of Canada".
When explored in the foregoing manner the
path from Rule 5(b) leads by direct analogy to
inherent jurisdiction to accord the applicant stand
ing as an intervener. Such indeed was the path
followed by Addy J., then adjudicating as an ex
officio judge of the Appeal Division, in Fishing
Vessel Owners' Assn. of B.C. v. A.G. Can. (1985),
1 C.P.C. (2d) 312; 57 N.R. 376 (F.C.A.).
Another basis upon which intervener's standing
may be accorded, resides in Rule 5(a). Much
analogizing has been made to Rule 1716(2)(b) and
it is probably a valid analogy even though it
provides for adding some person as a party. After
all, an intervener is a party intervenant, who does
not need to bear all the weight of the designations
"plaintiff" or "defendant". Of course the similari
ty is not precise or exact, but an analogy necessari
ly implies some difference. Rule 1010 would pro
vide a good vehicle in its analogous permission to
intervene, but that analogy was once rejected by
Mr. Justice Mahoney in Canadian Red Cross
Society v. Simpsons Limited, [1983] 2 F.C. 372;
(1983), 70 C.P.R. (2d) 19 (T.D.), apparently
because Rule 1010 is an admiralty rule predicated
on an action in rem.
In seeking a means for allowing intervention in
the Trial Division, one can surely find an apt
analogy in some rule for the Appeal Division, to
remain in accord with Rule 5(a). Part V of the
Rules, entitled "Rules of Federal Court of
Appeal" begin with Rule 1100. In Part V there is
Division C—Appeals from Tribunals or Authori
ties other than the Trial Division. Under Parties in
Division C is Rule 1310. It runs thus:
Rule 1310. (1) The Court may in its discretion, upon an
application before the hearing or during the course of a hear
ing, decide what persons shall be heard in the argument of an
appeal.
(2) No person who has filed a notice under Rule 1303 shall
be refused leave to be heard under paragraph (1) without being
given an opportunity to be heard on the question whether he
should be heard.
Now, here is an apt, analogous rule among "the
other provisions of these Rules" upon which the
Court, regulating its practice and procedure may,
if it seems proper, admit the applicants to interv-
ener status.
Accordingly,
— by analogy to the provisions of Rule 1310;
— by analogy to the provisions of Rule 1716(2)(b);
and
— by invoking the Court's inherent jurisdiction to
govern its own practice and procedure,
or any or all of the foregoing, the Court accords to
the applicant, subject to conditions which shall
hereinafter be recited, standing to be a party
intervenant, an intervener, or intervener's status.
Finally, the plaintiffs' counsel argues that this is
the plaintiffs' case and that they wish to pursue it
alone against the Crown; and, therefore, the deter
mination of their aboriginal rights, stemming from
their ancestors, ought not to have to bear the
applicant's extraneous intervention in the determi
nation proceedings. The argument carries an
attractive simplicity. However, the obvious
response is that neither the plaintiffs nor the Court
can ever return, and ought not blindly to pretend
to return to the era of the plaintiffs' ancestors, or
for that matter to the era of the applicant's mem
bers' ancestors. Then there was a relatively small
number of fisherfolk and a seemingly superabun
dant, if not forever unlimited, stock of fish. Since
that time the world, this country and the condi
tions of the fishery have all changed dramatically.
So far as anyone knows, and in the absence of
some presently unforeseen cataclysm, return to the
conditions of the womb of anyone's ancestors'
world is simply a fond, but impossible, delusion.
The plaintiffs live side by side with, and share
the fishery resource with, the applicant's members.
Just as they cannot ignore those members in the
physical world, so they cannot ignore the appli
cant's vital interest in the judicial determining of
their own rights with regard to the public interest
in the constitutional issues which they raise in
these proceedings. This idea was expressed by the
British Columbia Court of Appeal in its judgment
in R. v. Sparrow above cited. At page 272
(D.L.R.) the Court wrote:
The constitutional recognition of the right to fish cannot entail
restoring the relationship between Indians and salmon as it
existed 150 years ago. The world has changed. The right must
now exist in the context of a parliamentary system of govern
ment and a federal division of powers. It cannot be defined as if
the Musqueam Band had continued to be a self-governing
entity, or as if its members were not citizens of Canada and
residents of British Columbia. Any definition of the existing
right must take into account that it exists in the context of an
industrial society with all of its complexities and competing
interests.
That thought, at least, appears to be utterly realis
tic: the outcome of the case, however, is to be
revealed by the Supreme Court of Canada.
Counsel for the PFA says that it hopes to
present certain anthropological and historical evi
dence at the trial of this action, such as that
expressed in and with the affidavit of Barbara
Lane sworn on October 26, 1988 and filed herein.
While it seems to be just and convenient to have
the PFA's participation at trial, that participation
will be, after all, an intervention in the parties'
litigation. It ought to be reasonably constrained
and not unlimited. The conditions which will be
specified in the Court's order are sketched below.
The order's terms govern in any event.
In the first place, since the applicant is an
unincorporated association, it ought to allay one of
the apprehensions expressed by the plaintiffs'
counsel about its intervention driving up the costs
of the litigation. One of two possibilities must be
undertaken, therefore, by the applicant. Either (1)
it must post a bond for security for the plaintiffs'
and defendants' costs, to be maintained through
out the course of the litigation, in the clear exigible
amount of $8,500; or (2) each duly incorporated
member of the PFA must join in the intervention
in its own name, designating according to the
Rules of this Court its solicitors of record, presum
ably in every instance, the applicant's solicitors.
Once such corporate entities are firmly of record,
they may move to shorten the style of cause by
designating each and every corporate member,
altogether, as the Pacific Fishermen's Alliance,
without losing the corporate identity of each of the
corporate interveners. Their respective interests in
this litigation are, presumably, identical. Perhaps
no costs will be awarded against the PFA, but this
will leave it to the trial judge.
The PFA under whichever rubric shall be en
titled to file its pleadings not later than July 31,
1989, which shall be styled a "statement of PFA's
intervention". The applicant has leave to bring a
motion to shorten the style of cause any time
before or after filing its statement of intervention,
if it choose the second alternative, but the bond for
security for the parties' costs must be lodged prior
to the filing of its pleadings.
The intervener will not be entitled to make oral
or documentary discovery of the plaintiffs or the
defendants, but its solicitors shall be entitled to
notice of the parties' discoveries and shall have the
right to attend and to examine and to copy all
documents and transcripts.
The intervener shall be exigible to oral and
documentary discovery at the instance of the
plaintiffs and the defendants as if it were a party.
Accordingly the PFA shall make available an offi
cer of the organization or, at its option, a person
whom it expects to testify as an expert witness on
its behalf at trial. Needless to emphasize such
person must fully inform himself or herself on all
the relevant issues to be litigated in so far as the
PFA can be informed. That person's answers on
discovery shall, just like , counsel's undertakings,
bind the PFA in the action. The intervener shall be
subject to all obligations to which a party is sub
ject, at the ultimate pain of having its pleading
struck out with costs.
The intervener shall be entitled, at trial and on
all interlocutory motions, to be heard, if on such
motions the presiding judge so directs. At trial,
also, the intervener will be entitled to adduce
evidence, including expert evidence, just as the
parties may in all respects do so, and to present
oral or written arguments to the Court. Beyond the
above expressed conditions, the intervener shall be
subject to direction, control and paying costs, at
the trial judge's discretion and behest, as one
might expect. Prior to the opening of the trial the
intervener may seek the Court's directions in the
usual way by notice of motion, including participa
tion in the joint request to fix a place and date for
the trial itself. It would seem that the intervener
would not be entitled to launch any appeal, itself,
from the trial judgment but would be entitled to
participate in any appeal which may be com
menced. At such a stage of proceedings the PFA
would have to look to the Appeal Division for
further guidance and directions.
The costs of these proceedings shall be costs in
the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.