Yale Indian Band v. Aitchelitz Indian Band
T-776-98
Hargrave P.
24/6/98
17 pp.
Motion by Fisheries Council of British Columbia to intervene in proceeding in which Yale Indian Band challenging right of Minister of Fisheries to issue Aboriginal communal salmon fishing licence, effect of which to allow Yale Band and 24 lower Fraser River Indian bands to fish Fraser River in area on either side of Yale, using traditional fishing methods-Yale Band looking upon area as within traditional territory, resulting in alleged infringement of Aboriginal title by both government, Lower Fraser Bands-Dispute not over public salmon resource, but private dispute in which Yale Band says it alone should be allowed to fish for its share of salmon allocated to overall Aboriginal fishery, in traditional territory-Fisheries Council representing cross-section of commercial fishing industry-Onus on potential intervener to show legitimate interest in outcome, that it can bring to proceeding relevant, different, new expertise other parties not having, allowing Court to fully, effectually adjudicate matter-As no issue as to either alteration of catch allocation to particular Aboriginal fishery, or to overall control by Minister of Aboriginal fishing on Fraser, Fisheries Council's interest not obvious-Historic, current rights, obligations of Yale Band versus those of Lower Fraser Bands at issue-Intervener requiring continued access to salmon fishery as common property-As such relying upon authority of Department of Fisheries and Oceans to properly manage salmon resource-Intervener submitting directly interested in existence of Aboriginal title to territory including river fishery-Believing number of issues of law arising out of proceeding including application of principles introduced by Supreme Court of Canada in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 and how impinging on river fishery; consent required of holder of Aboriginal fishing rights, presumably in context of management by Minister of Fisheries; existence, scope, consequences of Aboriginal food fishing right; scope allowed to Minister in issuing Aboriginal communal fishing licences; substantive, procedural reconciliation of law respecting Aboriginal rights with traditional case law governing judicial review of administrative action-R. 109 allowing Court discretion to give leave to intervene-Intervener must take proceeding as exists; may not litigate new issues-To import issues intervener believing pertinent would broaden proceeding far beyond that envisioned by parties, at far greater expense than envisioned by parties-Motion to intervene denied-Furthermore onus on intervener to convince Court proceedings would be enhanced by intervention-Canadian Council of Professional Engineers et al. v. Memorial University of Newfoundland (1997), 135 F.T.R. 211 (F.C.T.D.) setting out three conditions to be read conjunctively to determine whether proceedings enhanced by intervention-Unclear whether applicant must satisfy all criteria as Court has been willing to join party simply because rights directly affected as pointed out in Edmonton Friends of the North Environmental Society v. Canada (Minister of Western Economic Diversification), [1991] 1 F.C. 416 (C.A.)-Perhaps answer lies with concept of balancing competing interests i.e. balancing contribution interveners might make against disruption, increase in magnitude, complexity of case, length of proceedings increase in cost-As to interest in private dispute, Fisheries Council not able to bring any special expertise on history, legend, politics, moral obligations otherwise not available-Balance against Fisheries Council from point of view of being affected by outcome-Priority to fish, existence, scope, consequences of Aboriginal food fishery, Minister's authority to grant communal fishing licence not at issue-To impose viewpoint as to reconciliation of law respecting Aboriginal rights with traditional case law governing judicial review of administrative action, would complicate proceedings-Fisheries Council not bringing any new, useful point of view to proceedings-Federal Court Rules, 1998, SOR/98-106, r. 109.