Date: 20020925
Docket: T-994-01
Neutral citation: 2002 FCT 1001
BETWEEN:
THE FEDERATION OF SASKATCHEWAN INDIAN NATIONS, ON BEHALF OF THE FIRST NATIONS OF SASKATCHEWAN, AND ON BEHALF OF THE CREE, SAULTEAUX, DENE, AND NAKOTA INDIAN NATIONS OF SASKATCHEWAN, AND ON BEHALF OF THE CHIEFS OF THE FIRST NATIONS OF SASKATCHEWAN, AND ON BEHALF OF THE MEMBERS OF THE SAID FIRST NATIONS AND INDIAN NATIONS, CHIEF PERRY BELLEGARDE, REPRESENTING HIMSELF AND ALL MEMBERS OF THE SASKATCHEWAN FIRST NATIONS AND INDIAN BANDS AND THEIR MEMBERS, FIRST VICE-CHIEF GREGORY AHENAKEW, REPRESENTING HIMSELF AND ALL MEMBERS OF THE SASKATCHEWAN FIRST NATIONS AND INDIAN BANDS AND THEIR MEMBERS, CHIEF LOUIS JOSIE, REPRESENTING HIMSELF AND ALL OTHER MEMBERS OF THE HATCHET LAKE DENESULINE NATION, CHIEF BARRY AHENAKEW, REPRESENTING HIMSELF AND ALL OTHER MEMBERS OF THE AHTAHKAKOOP FIRST NATION, AND CHIEF CLIFFORD STARR, REPRESENTING HIMSELF AND ALL OTHER MEMBERS OF THE STAR BLANKET CREE NATION & CHIEF MARCEL HEAD REPRESENTING HIMSELF AND ALL OTHER MEMBERS OF THE SHOAL LAKE BAND OF THE CREE NATION & CHIEF EDDIE MARTIN REPRESENTING HIMSELF AND ALL OTHER MEMBERS OF THE FOND DU LAC DENESULINE NATION
Plaintiffs
- and -
THE ATTORNEY GENERAL OF CANADA
Defendants
[1] This is a motion by the defendant, the Attorney General of Canada, pursuant to Rule 369 of the Federal Court Rules, 1998, for an order that the plaintiff, The Federation of Saskatchewan Indian Nations (the "FSIN") cease to be a party to the action on the grounds that the FSIN is not a necessary party . The principal issue in the action is whether the Firearms Act, S.C. 1995, c. 39 and the regulations made under that Act, infringe the treaty rights of treaty Indians in Saskatchewan. The plaintiffs are seeking declaratory and injunctive relief against the Crown.
[2] The plaintiffs are the FSIN and individual treaty Indians from Saskatchewan, some of whom are Chiefs of Indian bands. According to the Amended Statement of Claim, the FSIN is a "voluntary unincorporated association of the Chiefs of Saskatchewan which represents the interests of the First Nations of Saskatchewan." The Attorney General alleges that the FSIN is a Saskatchewan corporation which acts as trustee of the Chiefs' Council of the FSIN. No evidence was produced to indicate that the FSIN is a corporation.
[3] The Federation of Saskatchewan Indians Inc., a Saskatchewan corporation, is apparently an offshoot of the FSIN. On March 22, 2002, the plaintiffs brought a motion to correct the name of the plaintiff Federation of Saskatchewan Indians, Inc. and replace it with "Federation of Saskatchewan Indian Nations" . This motion was unopposed by the Attorney General and was granted by me on May 23, 2002.
[4] I shall first address the question, strongly urged by the FSIN, of whether the Attorney General is estopped from bringing this motion because of his failure to oppose the March 22 motion. If there is no estoppel, I shall then examine whether the FSIN is a necessary and proper party to this action.
[5] According to the plaintiff, the March 22 motion and resulting order changed the plaintiff's name to the "Federation of Saskatchewan Indian Nations 'Treaty Entity'." The plaintiff submits that by consenting to the March 22 motion, the defendant "has necessarily agreed that the FSIN is a Treaty entity unto itself," and is thus estopped from objecting to the presence of the FSIN as a party.
[6] There are a number of answers to this submission, all of them peremptory. First, the March 22 motion involved the correction of a party's name and did not decide whether FSIN should be granted public interest standing. Second, the March 22 motion was unopposed by the Attorney General; it was not on consent as suggested by the plaintiff. Third, although the affidavit evidence produced in support of the March 22 motion describes the nature of the FSIN, neither that affidavit, the March 22 Notice of Motion nor the resulting order actually refer to the "Federation of Saskatchewan Indian Nations 'Treaty Entity'" (emphasis added). Finally, even if those words had been included as part of the name of the FSIN, they would simply have been there as part of the name and could not in themselves confer any status. A party's self description is simply that; it cannot determine the party's standing. The Crown is not estopped from bringing the motion.
[7] On the question of standing, the twin tests of interest and necessity were enunciated by the Supreme Court in Minister of Justice (Canada) v. Borowski, [1981] 2 S.C.R. 575 at 598:
... to establish status as a plaintiff in a suit seeking a declaration that legislation is invalid, if there is a serious issue as to its invalidity, a person need only to show that he is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable and effective manner in which the issue may be brought before the court.
[8] As to interest, a number of recent decisions have held that incorporated entities which represent aboriginal people cannot claim to have a direct interest in claims of treaty or aboriginal rights. As a result, standing cannot be granted to these organizations on the basis of a direct interest in the matter (Maurice v. Canada (Minister of Indian Affairs and Northern Development) (1999), 183 F.T.R. 9 (F.C.T.D.); Barlow . v. Canada (2000), 186 F.T.R. 194 at paras. 53-61 (F.C.T.D.); Native Council of Nova Scotia v. Canada (A. G.), 2002 F.C.T. 6.
[9] The plaintiffs in this action claim that the Firearms Act infringes the treaty right of the "individual members of the First Nations" to hunt, including the right to use firearms while hunting. These treaty rights belong to the members of the FSIN, not the FSIN itself (see e.g., Maurice, supra at para. 6; Native Council of Nova Scotia, supra at para. 13). In addition, there is no evidence that the FSIN has suffered any unique or special damage analogous to that suffered by the Congress of Aboriginal Peoples in Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2002 F.C.T. 295. As a result, the FSIN does not have a direct interest in this litigation and cannot be granted standing on that ground.
[10] Likewise, as to necessity, it is clear that theFSIN is not a necessary party because other individual plaintiffs can bring forward the same challenge, and have, in fact, done so. The plaintiff submits that the FSIN represents many individual Treaty Indians and Treaty First Nations who otherwise would not have a voice in this matter. In support of this submission, the plaintiff cites a reference before the Supreme Court of Canada in which the FSIN was granted leave to intervene on behalf of the First Nations people of Saskatchewan (Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783). But the test for allowing intervener standing for argument at the appellate level is necessarily different from that which is used at trial; trials must remain manageable and the parties must be able to define the issues and the evidence on which they will be decided. An appellate court on the other hand deals with a pre-established record that is not normally subject to change. And an appellate court, while benefiting from the different viewpoints expressed by interveners, is far better equipped to limit and control the length and nature of their interventions. Thus, the mere fact that the FSIN intervened in an earlier case is not sufficient to establish that it has standing to speak on behalf of the First Nations people in this action (see Barlow, supra, where the Union of New Brunswick Indians was not granted standing even though they had a lengthy history of litigation, including acting as an intervener before the Supreme Court of Canada).
[11] I conclude that the motion must be allowed and that an order should go as requested. I must say, however, that I find the point raised in the motion to be excessively technical and devoid of any real interest; whether or not the FSIN stays on as a party, it will no doubt continue to have an active interest in the action and to serve as a vehicle for support and mutual collaboration and contact between the remaining plaintiffs who will carry on as before. Accordingly, although the motion will be allowed, there will be no order as to costs.
ORDER
The motion is allowed and the FSIN is struck out as a plaintiff. No Order as to costs.
Judge
Ottawa, Ontario
September 25, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-994-01
STYLE OF CAUSE: The Federation of Saskatchewan Indian Nations Inc. et al
v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
Motion in writing disposed of pursuant to Rule 369
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE HUGESSEN
DATED: September 25, 2002
APPEARANCES:
Ms. Delia Opekokew FOR THE PLAINTIFFS
Mr. Mark Kindrachuk FOR THE DEFENDANT
SOLICITORS ON THE RECORD:
Opekokew & Winegarden
Saskatoon, Sask. FOR THE PLAINTIFFS
Mr. Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada