First Nations communities allowed to intervene in appeal raising Aboriginal issues: Ontario CA

Issues on Aboriginal title to submerged lands and public right of navigation relevant to case

First Nations communities allowed to intervene in appeal raising Aboriginal issues: Ontario CA

The proposed interveners in an action related to submerged lands could make useful contributions to resolving the appeal, with each being an Indigenous community with a close connection to a waterway, the Ontario Court of Appeal has ruled.

The underlying appeal in Chippewas of Nawash Unceded First Nation v. Canada (Attorney General), 2022 ONCA 755 raised novel issues about Aboriginal title to submerged lands and the public right of navigation. The four moving parties – the Council of the Haida Nation, Walpole Island First Nation, Heiltsuk Nation, and Songhees Nation and Esquimalt Nation – asked for intervener status.

Under r. 13.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the court, to decide whether to grant leave to intervene as a friend of the court, should generally consider the following: the nature of the case, the issues that arose, and the applicant’s likelihood of making a useful contribution to the appeal’s resolution without causing injustice to the immediate parties.

All parties agreed that the contents of the affidavits supporting the motions for intervention were relevant to provide context and background to the interveners’ interests. They all consented to grant intervener status to the four moving parties, to disallow interveners from raising any new issues, and to make the affidavits inadmissible relating to adjudicative facts that might arise on the appeal.

The Council of the Haida Nation asked for the admission of its affidavit, which aimed to show that it was possible to reconcile Aboriginal title to submerged land with the public right of navigation. The council sought to provide evidence of recent agreements evidencing that reconciliation.

All four get intervener status

The Court of Appeal granted intervener status to each of the four moving parties, who could prepare a draft order for review.

According to the appellate court, the order allowing interventions should provide that the interveners could not raise any issues that none of the parties raised at trial or on appeal or addressed in the trial judge’s reasons, that the affidavits’ sole use was to explain to the court’s panel the basis for the intervention, and that the affidavits were inadmissible in connection with issues of adjudicative fact that might arise on the appeal, without a further order of the panel.

Each intervener could make a 20-minute-long oral submission and could file a 20-page factum, the appellate court said. The factums responding to the interveners’ factum could be combined into a single factum and could be 25 pages at most.

The Court of Appeal accepted that the Council of the Haida Nation’s proposed fresh evidence would provide background and context that might be helpful to the panel hearing the matter.

However, the appellate court found that a single judge hearing a motion should not admit fresh evidence on the substance of the issues that the appeal raised and that admitting fresh evidence on the appeal’s substantive issues at this stage would be unfair to the parties as that evidence could not be effectively challenged and would undermine the appeal’s focus, namely whether the trial judge erred.

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