Peavine Metis Settlement v. Alberta (Energy), 2011 ABQB 472

Court of Queen ’ s Bench of Alberta Citation: Peavine Metis Settlement v. Alberta (Energy), 2011 ABQB 472 Date: 20110719 Docket: 0803 13295 Registry: Edmonton Between: Peavine Metis Settlement Plaintiffs - and - Her Majesty the Queen in Right of Alberta, as Represented by the Minister of Energy Defendant Corrected judgment: A corrigendum was issued on July 29, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.A.

Browne _______________________________________________________ [ 1 ] This is an application by Metis Settlements General Council (“MSGC”) to be granted Intervenor status in an application for judicial review by Peavine Metis Settlement seeking a declaration that the Minister of Energy (the “Minister”) had a duty to consult Peavine prior to posting petroleum and natural gas leases for public tender.

[2] Peavine consents to MSGC being granted Intervenor status. The Minister does not consent, but does not object. TheMinister, however, suggests that terms and conditions be attached to the intervenor status to avoid undue delay in the proceedings and toprevent unnecessary expansion of the issues in the judicial review. The Minister proposes that MSGC be permitted to participate by: 1. Providing documentary evidence of the history of the Metis Settlement (i.e. Peavine) in Alberta; 2. Filing legal arguments and making legal submissions regarding the applicability of the Powley test; and 3.

Filing legal arguments and making legal submissions on the duty to consult. [3] MSGC requests these additional conditions which are opposed by the Minister: 1. to participate in questioning; 2. to call evidence; and 3. to file written and oral submissions without restrictions. [4] MSGC is the umbrella organization, created by the Metis Settlements Act, RSA 2000, c. M-14, of all the Alberta MetisSettlements. It holds the land titles to the 8 Settlements. The MSGC is governed by 5 settlement councillors from each of the 8settlements plus 4 elected executive members.

The MSGC has, by virtue of the creating statute, the jurisdiction to make, amend or repealGeneral Council Policies in a number of specified areas, after consultation with the Minister (s. 222(1)). [5] The New Rules of Court provide at Rule 2.10: 2.10 On application, a Court may grant status to a person to intervene in an action subject to any terms and conditions and with therights and privileges specified by the Court. [6] Before this rule, common law principles applied with respect to the granting of Intervenor status.

A number of Alberta Courtof Appeal cases have considered this issue based on the common law and prior to the New Rule. [7] The granting of Intervenor status is discretionary and should be exercised sparingly. Courts should be cautious not to allowIntervenors to expand the lawsuit, delay proceedings or prejudice a party. (Telus Communications Inc. v. Telecommunications WorkersUnion, 2006 ABCA 297 (at para. 4), Morrow v. Zhang, 2008 ABCA 192 (at para. 4)). [8] Medhurst, J. articulated the common law test in Athabasca Tribal Council v.

Alberta (Minister of EnvironmentalProtection) (1998), 1998 ABQB 875 , 235 A.R. 387, 67 Alta. L.R. (3d) 232(ABQB) at para. 4 as follows: The test developed in the common law is essentially that a party should only be granted intervenor status if the party will be directlyaffected by the ultimate decision of the case and/or where the presence of the party is necessary for the Court to properly decide thematter.

[ 9 ] In R. v. Hirsekorn, 2011 ABQB 156 , an appeal from a Provincial Court decision, C.J. Wittmann allowed the Blood Tribe and Siksika Nation to intervene and quotes Chief Justice Fraser from Papaschase Indian Band v. Canada (Attorney General) , 2005 ABCA 320 (at para. 2 ): It may be fairly stated that, as a general principle, an intervention may be allowed where the proposed intervenor is specially affected by the decision facing the Court or the proposed intervenor has some special expertise or insight to bring to bear on the issues facing the court. [ 10 ] C.J.

Wittmann continued (at paras. 14 and 15): [14] Para. 5 of Papaschase is also instructive referring to a two-step approach to the determination of an Intervenor application where it is stated that the Court typically considers first the subject matter of the proceeding and second determines the proposed Intervenor’s interest in the subject matter. [15] Another principle articulated at para. 6 of Papaschase is that where cases involve constitutional issues or which have a “constitutional dimension”, courts are generally more lenient in granting Intervenor status.

Decision [ 11 ] MSGC has not asked to be a full party to the proceedings, nor have either of the parties to the application asked that MSGC be added as a party. [ 12 ] MSGC has an interest in the outcome of this application in its representation of all Alberta Metis Settlements. It has some valuable information and can provide valuable input. [ 13 ] In a judicial review, the application is based on the record of proceedings in the tribunal below (subject to only a few exceptions).

There is suggestion from all that MSGC may have valuable information regarding the history of Metis Settlements and their relationship with the Government. Some of this information may not be in the possession of Peavine, but is relevant to the issues of history and the duty to consult.

I am concerned, however, that allowing MSGC to file evidence would both open them to questioning and provide them with a corresponding right to question the parties. [ 14 ] Part of the struggle that I have had in making this decision relates to the conflict between the process chosen by the Plaintiff of judicial review and the evidence (which may or may not be part of the record) that may be required to properly argue the Powley test, the history of Peavine, and the requirements to establish a duty to consult. [ 15 ] Metis Settlements in Alberta have a documentary history, but that history would not be complete without the colour and culture of the oral history of the Metis people and their struggles.

It is conceivable, if not certain, that there might be more than one version of the history of Metis Settlements and Metis people in Alberta. Caution must therefore be exercised so that this judicial review is not widened to the point that a chambers Judge is asked to make any findings of fact on the history of the Metis in Alberta. This application must not be derailed by an expansion of a judicial review into a trial. [ 16 ] MSGC is granted Intervenor status subject to the following terms and conditions: 1.

MSGC may file a documentary affidavit on the history of Metis Settlements in Alberta and documents that may assist on the issue of the duty to consult. Specific references may be made to the history of Peavine, but not to the history of the other settlements. If the parties are concerned that the affidavit filed goes beyond these parameters, a further application can be made to determine the appropriateness of the affidavit;

2. MSGC may not call evidence; 3. MSGC may be present for questioning, but cannot participate; 4. MSGC may file legal arguments and make submissions in the following areas: a. The history of Metis Settlements (Peavine) in Alberta; b. The applicability of the Powley test to Peavine; c. If a duty to consult by the Government with Peavine exists and, if so, what does that duty to consult look like? d. Is there a duty on the Minister to consult with Peavine regarding the limited issues identified in the judicial review? e. If there is a duty to consult, what are the requirements of that duty?

Heard on the 18 th day of April, 2011. Dated at the City of Edmonton, Alberta this 19 th day of July, 2011. B.A. Browne J.C.Q.B.A. Appearances: Garry Appelt / Keltie L. Lambert Witten LLP for Metis Settlements General Council Stephanie Latimer / Thomas G. Rothwell Alberta Justice Aboriginal Law for the Defendant Lindsey Miller / Sandeep K. Dhir Field LLP for Peavine Metis Settlement

_______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice B.A. Browne _______________________________________________________ Lindsey Miller and Sandeep K. Dhir of Field LLP are added to the appearances for Peavine Metis Settlement and Garry Appelt and Keltie L. Lambert of Witten LLP for Metis Settlements General Council.