PRACTICE
Parties
Intervention
Attorney General of Alberta seeking to intervene in appeal involving alleged infringement by Government of Canada of treaty rights of Mikisew Cree First Nation (MCFN) under Treaty 8—Alleged infringement arising out of appellant Minister’s authorization under National Parks Act, National Parks General Regulations of construction, operation of winter road in Wood Buffalo National Park—Appeal pending in Federal Court of Appeal from Trial Division decision granting MCFN’s application for judicial review, setting aside Minister’s decision to authorize road—Applications Judge specifially disposed of matter on constitutional grounds raised by applicant (unjustified treaty infringement)—No notice of constitutional question served on any attorney general under Federal Court Act, s. 57—Motion allowed, leave to intervene granted—As to notice of constitutional question, although constitutional question involved, could be argued in Court of Appeal that Court lacking jurisdiction to confirm decision which may be characterized as finding that statutes, regulations upon which Minister relied in exercising her discretion to authorize road cannot be constitutionally “applied” in this way without respecting constitutional constraints imposed by Constitution Act, 1982, s. 35(1)—Problem for panel hearing appeal, should not be decided on interlocutory motion—Court cannot now assist Attorney General in obtaining notice from one of parties under s. 57 so as to enable him to intervene as of right—Nor should motion be allowed under Federal Court Rules, 1998, r. 109 as applicant not sufficiently directly affected by proceeding—Attorney General of Alberta’s interest could well be characterized as “jurisprudential” only—No reason to think matters really in issue herein will not be adequately addressed by federal Minister—However, Federal Court Rules, 1998, r. 110 contemplating special role for attorneys-general in addition to those contemplated under Federal Court Act, s. 57, r. 109—Here, issue of “general importance” on which Attorney General of Alberta might well be of assistance to Court, namely difficult question of whether issue within s. 57 of which no notice given, and if so what are powers, responsibilities of Court in such circumstances—Other issues on which provincial Attorney General could appropriately intervene (if there are treaty rights to hunt, trap within Park, whether judge made error of law in finding decision constituted infringement of treaty rights; if road infringing treaty rights, whether judge made error of law in finding infringement not justified) having close parallels to situation of Province of Alberta in exercise of its governmental powers on Treaty 8 outside Park, also having “general importance” even if not directly affecting provincial government—Federal Court Act, R.S.C., 1985, c. F-7, s. 57 (as am. by S.C. 1990, c. 8, s. 19)—Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35(1)—Federal Court Rules, 1998, SOR/98-106, rr. 109, 110.
Canada (Minister of Canadian Heritage) v. Mikisew Cree First Nation (A-35-02, 2002 FCA 306, Strayer J.A., order dated 23/8/02, 5 pp.)