Potlotek First Nation v. Canada (Attorney General), 2021 NSSC 283

SUPREME COURT OF Nova Scotia Citation: Potlotek First Nation v. Canada (Attorney General), 2021 NSSC 283 Date: 20210924 Docket: Hfx No. 506010 Registry: Halifax Between: Chief Wilbert Marshall on his own behalf, and on behalf of the members of Potlotek First Nation Applicants v. The Attorney General of Canada Respondent v. Unified Fisheries Conservation Alliance Intervenor DECISION Judge: The Honourable Justice John A. Keith Heard: September 22, 2021, in Halifax, Nova Scotia, and September 24, 2021 for oral decision Counsel: Jason T.

Cooke and Ashley Hamp-Gonsalves, for the Applicants Jonathan Tarlton and Chandima Karunanayaka, for the Respondent Jeff Galway, for the Intervenor By the Court: [1] By Notice of Application in Court filed May 10, 2021, Chief Wilbert Marshall on his own behalf and on behalf of themembers of the Potlotek First Nation commenced a proceeding against the Attorney General of Canada. Potlotek First Nation is locatedin Richmond County, Cape Breton Island. It is one of 11 Indigenous member-communities whose Chiefs comprise and work collectivelyas part of the Assembly of Nova Scotia First Nations Chiefs (the “Assembly”).

The Assembly is the governance body for the Mi’kmawFirst Nation Communities in Nova Scotia. For ease of reference, I refer to the Applicants collectively as Potlotek. [2] Potlotek alleges that the Fisheries Act (Canada), RSC 1985 c. F – 14 (the “Fisheries Act”), and certain specified regulations(the “Regulations”) made under that statute constitute an unjustifiable infringement on its treaty right to fish for a moderate livelihood asconfirmed by the Supreme Court of Canada in R v Marshall, (SCC), [1999] 3 SCR 456 (“Marshall 1”) and R vMarshall, (SCC), [1999] 3 SCR 533 (“Marshall 2”).

[ 3 ] In this proceeding, Potlotek seeks declarations confirming: 1. The alleged infringement; 2.

That the Fisheries Act and Regulations are constitutionally inapplicable to Potlotek and of no force or effect, pursuant to section 35(1) and section 52 (2) of the Constitution Act , 1982 , to the extent they prohibit, or unduly restrict, the exercise of Potlotek’s treaty right. [ 4 ] Potlotek also seeks an injunction enjoining Fisheries and Oceans Canada (sometimes referred to as the Department of Fisheries and Oceans or “ DFO ”) from enforcing the provisions of the Fisheries Act and Regulations against Mi’kmaw harvesters, authorized by Potlotek First Nation, fishing in compliance with a Livelihood Fisheries Plan (the “ Potlotek Plan ”).

A copy of the current Potlotek Plan together with a copy of Potlotek’s corresponding “Policy and Protocol” were placed in evidence. [ 5 ] The Unified Fisheries Conservation of Alliance (“ UFCA ”) seeks to intervene in this proceeding pursuant to Civil Procedure Rule (“ CPR ”) 35.10(2) which states:

(2) A judge who is satisfied that the intervention will not unduly delay the proceeding, or cause other serious prejudice to a party, may grant the order in one of the following circumstances: a. the person has an interest in the subject of the proceeding; b. the person may be adversely affected by the outcome of the proceeding; c. the person ought to be bound by a finding on the determination of a question of law or fact in the proceedings; d. intervention by the person is in the public interest. [ 6 ] Potlotek opposes UFCA’s intervention. The Attorney General of Canada does not.

In brief written representations, the Attorney General of Canada said: Assuming the court agrees with the above description of the evidence provided by the UFCA and the appropriate application of the legal test for granting intervention it appears that the UFCA has satisfied the legal and evidentiary burdens to justify its request to intervene. For those reasons, Canada does not oppose the motion. THE LAW AROUND INTERVENTION AND CPR 35.10 GENERAL, PRELIMINARY COMMENTS [ 7 ] The discretion to allow intervention by a non-party in an existing proceeding emanates from the Court’s inherent jurisdiction.

In his seminal article, “The Inherent Jurisdiction of the Court”, (1970), 23 Current Legal Problems 23 , I.H. Jacobs defines inherent jurisdiction as: …that which enables it to fulfil itself as a court of law.

The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner. (pages 27 – 28) [ 8 ] This jurisdiction is largely procedural in nature in the sense that it recognizes a general authority to act as is necessary to ensure the Court functions in a manner that is fair, efficient and just. [1] [ 9 ] Having said that, the Court’s inherent jurisdiction is not some ubiquitous, amorphous concept that can be summoned at any time, for any purpose.

The following comments are germane: 1. The circumstances in which the Court will exercise its inherent jurisdiction cannot be reduced to a single, definitive list. However, there are specific issues in which the Court’s inherent jurisdiction is engaged. For the purposes of this proceeding, the discretion to allow a non-party to intervene in an existing proceeding is clearly an area triggering the Court’s inherent jurisdiction. For example, there is no specific statutory provision or procedural rule allowing interventions in the British Columbia Supreme Court.

The jurisdiction is located entirely in the exercise of the Court’s discretionary inherent jurisdiction although due regard is given to the decisions and factors applied at the appellate level. ( Gibralter Mines v Harvey , 2021 BCSC 927 at paragraph 9 ) [2] . 2. The Court’s discretionary and inherent jurisdiction to allow intervention is not exercised in a manner that is capricious or arbitrary. It is guided by the overarching demand for fair, efficient and just judicial proceedings. A similar spirit animates: a.

CPR 1.01 in which the purpose of Nova Scotia’s procedural rules is described as the “just, speedy and inexpensive determination of every proceeding”; and b. The Supreme Court of Canada’s call in Hryniak v Mauldin , 2014 SCC 7 “to create an environment promoting timely and affordable access to the civil justice system.” (paragraph 2) 3. The jurisprudence and applicable rules of civil procedure guide the Court’s discretion when exercising its inherent jurisdiction. Note that the procedural rules for intervening are different depending on the province.

These differences colour the significance and precedential value of the relevant jurisprudence. I revisit that issue below.

4. Requests for intervention generally engage two competing concerns. The first concern is prejudice. To what extent will the intervenor cause undue delay or some other form or prejudice that should preclude intervention? The focus, in other words, is on the harm (or prejudice) that might be caused by intervention. The second concern relates to benefits or advantages. To what extent does intervention benefit the adjudicative process in terms of, for example, offering a different, relevant perspective or defending an affected, legitimate interest?

The focus here, is on the benefits (or advantages) generated through intervention. However, it is important to note that the lens through which these competing concerns (potential prejudice versus potential advantages) are viewed is the adjudicative process. The substantive issues in dispute are not determined. So, these reasons summarize the issues which have been joined in the pleadings. That

summary should not be interpreted as determining any of the substantive legal issues which separate the parties. Nor should it be suggested that they imply any such determination. That is for another day. CPR 35.10(2) [ 10 ] On January 1, 2009, Nova Scotia’s current Civil Procedure Rules came into effect. In many respects, the organizational structure of the rules and the wording of certain rules are unique to Nova Scotia. CPR 35.10(2) governing intervention in proceedings before the Nova Scotia Supreme Court [3] is one such example.

That uniqueness suggests at least a degree of caution when turning to the jurisprudence in other jurisdictions regarding intervention. [ 11 ] CPR 35.10 is unique in at least four respects: 1. CPR 35.10(2) states that a judge “ shall be satisfied that the intervention will not unduly delay the proceeding or cause other serious prejudice to a party”. (emphasis added) By contrast, under Ontario’s Rule 13.02 the Court “ shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding”. (emphasis added) [4] .

Prior to January 1, 2009, Nova Scotia’s former CPR 8.01 also required the Court to “consider” the issue of delay and prejudice. The difference between an obligation to “consider” delay or prejudice versus being “satisfied” those risks do not exist may be an open question. The fact that the Nova Scotia CPR 35.10(2) specifically changed the language certainly suggests that a change in approach was intended. In any event, it is clear that in Nova Scotia, a judge must be satisfied that intervention will not unduly delay the proceeding or cause some other serious prejudice to a party.

Thus, undue delay or serious prejudice to a party is not weighed or balanced against whatever interests or advantages might be secured through intervention. There is no competing benefit that might, on balance, dominate the analysis and permit intervention if a judge is satisfied that intervention will unduly delay the proceeding or cause some other serious prejudice to a party. On this, the Court does not have the discretion to excuse or avoid the mandatory requirements in CPR 35.10 [5] ; 2.

The risk of “unduly delaying a proceeding” is subsumed within a broader concern to avoid “ other serious prejudice to a party”. (emphasis added) Note the use of the word “other”. Undue delay is an example of the sort of “serious prejudice to a party” that might preclude intervention. Moreover, Nova Scotia’s CPR 35.10 is unique in Canada in the sense that the prejudice it seeks to avoid is qualified by the word “serious”. That is not to say that other forms of prejudice identified in the jurisprudence of other jurisdictions might not equally qualify as “serious” in Nova Scotia.

I simply make the point that Nova Scotia’s CPR 35.10 expresses a particular sensitivity to the magnitude of the prejudice that might preclude intervention. 3. As to the evidentiary burden, in Reading v Johnson , 2011 NSSC 87 (“ Reading v Johnson ”), Bourgeois, J (as she then was) observed: In most circumstances, it would be the applicant who would carry the burden of satisfying the Court that granting the Order would not unduly delay the proceedings, whereas it is the applicant [or moving party] who is in the best position to be aware of how he or she intends to further advance its position, if successful.

In most circumstances, one would anticipate a respondent opposing the motion to carry the burden of showing serious prejudice, as they are in the best position to speak to the impact of granting the motion on the advancement of their case. Certainly, there may be circumstances where the burdens may reverse, given the multitude of contexts which may give rise to such motions.

Regardless of the burden, I do not view it as necessary that both factors are established, one may be sufficient to stop the motion in its tracks. (paragraph 9) I note that Justice Bourgeois’ comments on the evidentiary burden were not expressed as a definitive, immutable rule. In my view, respectfully, the person seeking intervention (in this case, the UFCA) bears the ultimate burden of proof and must satisfy the Court that intervention is appropriate.

More specifically, UFCA must show that intervention: (1) will not cause the sorts of prejudice identified in CPR 35.10 (i.e., unduly delay the proceeding or cause other serious prejudice to a party) and, (2) is justified by one of the four circumstances articulated in rules 35.10(2)(a) – (d). This is not to say that a responding party opposing intervention may not have an evidentiary burden. For example, a responding party might tender evidence on the issue of delay or serious prejudice sufficient to defeat the request to intervene.

Moreover, the Court may draw an inference based on the absence of evidence by that responding party in appropriate circumstances. However, the question is not whether a party opposing intervention affirmatively proves that allowing the intervention will unduly delay the proceeding or cause other serious prejudice to a party. On the contrary, it is for the person seeking intervention to prove that intervention will not cause the prohibited delay or prejudice; and 4. Finally, Nova Scotia’s CPR 35.10(2)(

d) is unique in Canada in that it identifies the “public interest” as a separate circumstance which, by itself, might permit intervention. CPR 35.10(2)(

d) was first introduced on January 1, 2009 when the current Rules came into force. It was not part of the prior CPR 8.01 governing intervention. Its inclusion in the current Civil Procedure Rules is noteworthy and, in my view, relates to whether the sort of “interest” under CPR 35.10(2)(

a) includes both a “direct” interest and a “genuine” interest. I return to this issue below when discussing the scope of CPR 35.10(2)(a). [ 12 ] Turning to the law surrounding the specific aspects of the test under CPR 35.10(2). [ 13 ] As to the first part of the test and as indicated, a judge “must be satisfied that intervention will not unduly delay the proceeding

or cause other serious prejudice to a party”. The meaning of this part of the test is not particularly controversial in this motion and islargely an assessment of the specific risk UFCA’s intervention might create. [14] As to the second part of the test, the specific, enumerated circumstances where intervention will be permitted are contained inCPR 35.10(2)(a) – (d). They are disjunctive. Any one of the four circumstances is sufficient to allow intervention. The law is somewhatmore nuanced. For the purposes of this decision, it is only necessary to discuss the following two circumstances: 1. CPR 35.10(2)(

a) and whether the person has an interest in the subject of the proceeding; and 2. CPR 35.10(2)(

d) and whether intervention by the person is in the public interest. [15] The parties agree that, in Nova Scotia, the meaning of the word “interest” for the purposes of CPR 35.10(2)(

a) is to beinterpreted liberally. That said, there are limits to what might serve as a qualifying “interest”. On the one hand, it is not necessary thatthe person’s “interest” be substantial as to constitute an actual claim which, in turn, might allow a person to be formally joined as a partyunder CPR 35.03. On the other hand, the required “interest” cannot be so inconsequential or ephemeral as to allow virtually anyone tointervene. Many people may have an “interest” in litigation or be “interested” in its precedential value, in the broadest sense of the word.

The passing interest of a curious bystander or the prurient interest of a busybody is clearly insufficient to qualify for intervention. [16] The “interest” which might permit intervention under CPR 35.10(2)(

a) must be “direct” (L & B Electric Ltd. v Selig, 2006NSCA 130, referred to herein as “L & B Electric”, paragraph 11). There is a disagreement as to the scope of a “direct” interest and, forexample, whether it includes the financial concerns raised by UFCA. [17] Potlotek describes UFCA’s concerns as both entirely financial and irrelevant because the issue is not the financial interest of aUFCA member but, rather, the treaty rights (and the “moderate livelihood”) of Potlotek.

And, again, Potlotek expresses grave concernthat UFCA’s intervention will distort the true nature of the legal issues as framed by the pleadings and allow UFCA to infect andpoliticize the process with its own issues. Meanwhile, Potlotek says, the actual issue (e.g., the scope and alleged infringement ofPotlotek’s treaty right) is diminished or, worse, ignored. [18] In L & B Electric, one shareholder of the Plaintiff company had been ousted from day-to-day operations. He sought reliefagainst two other shareholders who he claimed were responsible for his ouster and guilty of other misconduct.

He brought the claimunder the oppression provisions of the Third

Schedule to Nova Scotia’s Companies Act, RSNS, 1989, c. 81. That same shareholder alsosought to commence a derivative action in the company’s name against the two same shareholders. There were other persons not namedas parties but who were both shareholders and employees in the same company. They sought leave (and were granted) permission tointervene on the basis that they had a “direct” interest.

Writing for the Court, Bateman, J.A. concluded “The outcome of this litigationhas the potential to significantly impact the value of their shareholdings, their working conditions and possibly their future employment.”(at paragraph 11) Thus, in that case, the financial or economic interest of the proposed intervenors was relevant and sufficient to ground a“direct” interest in the litigation. That is not to say that any financial interest which might potentially be affected by the outcome oflitigation is transformed into a “direct” interest.

The connection between economic interests and intervention is not so categorical. [19] In my view, a “direct” interest for the purposes of Rule 35.10(2)(

a) is one which is identifiable and specific to the proposedintervenor – as opposed to, for example, a more diffuse “interest” which could be claimed generally by unnamed members of the public. Moreover, this identifiable and specific interest must be connected to and clearly engaged by the issues as framed in the pleadings. Thequalifying “interest” may be financial or economic in nature, assuming those criteria are met. [20] There is a suggestion that an “interest” under Rule 35.10(2)(

a) might also be “genuine”. Counsel referred to the statement inL&B Electric that “Absent a direct interest, intervenor status may be granted if the applicant has some genuine interest in the question tobe decided on appeal.…”(paragraph 12, emphasis added). [21] Unfortunately, counsel did not offer a clear definition of a “genuine” interest for the purposes of Rule 35.10(2)(

a) or explainhow it might differ from a “direct” interest. [22] In reviewing L & B Electric, I note that it was determined under the former CPR 8.01 for intervention – i.e., before CPR35.10(2)(

d) was enacted. More importantly, the concept of a “genuine interest” in L & B Electric was clearly considered in the contextof a “public interest”. At paragraph 12 of L & B Electric, Bateman, J.A. describes the nature of a “genuine” interest by quoting at lengthfrom the decision of Esson, J.A. in the British Columbia Court of Appeal’s decision MacMillan Bloedel Ltd. v Mullin (1985), (BC CA), 66 B.C.L.R. 207 (B.C.C.A.).

That description is dedicated to recognizing a “public” interest in intervention,particularly in the context of litigation involving the Canadian Charter of Rights and Freedoms. [23] In my view, this notion of “genuine” or “public” interest as being sufficient to justify intervention was subsequently capturedby CPR 35.10(2)(

d) which specifically references a “public interest”. Thus, only a “direct” interest falls within the scope of CPR35.10(2)(a), with a “genuine” (or public) interest being part of the CPR 35.10(2)(

d) analysis. [24] Potlotek refers to Canadian Council of Churches v Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 236 (“Canadian Council of Churches”), and proposes that intervention based on the “public interest” (CPR35.10(2)(a)) be determined by reference to the three-part test applicable to those persons seeking to commence public interest litigation,as an actual party. [25] Respectfully, in my view, the test under Rule 35.10(2)(

d) is not the same as that which determines whether a person should begranted standing to launch public interest litigation. Equating these two different forms of participation in litigation and compressingthem under a single test would, in my view, be wrong. Indeed, I note that having a “genuine” interest is only one of three factors theCourt will consider in the context of public interest litigation. (Canadian Council of Churches, paragraphs 37 and 39). By contrast andpresuming there is no undue delay or other disqualifying prejudice, the four circumstances listed between CPR 35.10(2)(a)-(

d) aredisjunctive. Thus, a “genuine” (or public) interest, by itself, is sufficient to qualify for intervenor status.

[ 26 ] In my view, the factors which are relevant to determining whether intervention by the person in question (UFCA, in this case) would be in the public interest include: 1. whether the proposed intervenor has demonstrated “a real and continuing interest” [6] in the issues as defined by the pleadings; and 2. whether the proposed intervenor is properly situated to bring a useful and different perspective that will help the Court perform its adjudicative function. [ 27 ] There may be other relevant factors. This is not intended to be an exhaustive list.

Moreover, I recognize that there may be some tangential overlap between these factors and the sorts of serious prejudice which may be alleged in the first component of the test for intervention. In particular, the issue of whether the intervenor will offer a useful and different perspective may go to the potential prejudice that the intervenor will collaborate (intentionally or otherwise) with an existing party and create an unfair advantage by sheer amplification and repetition.

Or, alternatively, the alleged public interest may distort or distend the issues raised by the parties to the point that the litigation becomes a vehicle by which the intervenor can simply pursue its own agenda – to the detriment of the claims actually joined in the pleadings by the parties themselves. [ 28 ] This potential for overlapping evidence is inevitable in a motion to intervene, having regard to the various components of the applicable test. However, it is important to bear in mind that while certain evidence may overlap, the purpose for which it is being tendered is different.

There is a difference between: 1. assessing the quality or nature of a perspective offered by a proposed intervenor to determine if the public interest is being advanced for the purposes of CPR 35.10(2)(d); and 2. assessing whether the perspective being offered creates a serious risk that the litigation process will be abused or highjacked. [ 29 ] Finally, there is residual discretion.

In Reading v Johnson , Bourgeois, J (as she then was) writes “Notwithstanding the above, it should not be overlooked that the court retains a discretion to dismiss a motion, even where an applicant successfully navigates the two- stage analysis”. (at paragraph 11) [ 30 ] All parties and the proposed intervenor agreed that the Court retains this residual discretion. However, the devil is in the details. In Reading v Johnson , Justice Bourgeois dismissed the request to intervene on the basis that none of the circumstances required for intervention were established.

As such, it was not necessary to delve further into how this residual discretion might be exercised. [ 31 ] Unfortunately, again, no counsel offered any authority or details as to how this residual discretion should be exercised. [ 32 ] In my view, it would be a rare and exceptional case where a person satisfies the test in CPR 35.10(2) but is denied intervenor status, nonetheless. Where the residual discretion is engaged, the underlying concerns will already have been canvassed in the first two parts of the analysis. The residual discretion is not an invitation to repeat those concerns.

In my view, the focus shifts to more fundamental concerns around the public’s confidence in the legitimacy of the judicial process. The residual discretion is engaged if the circumstances and concerns differ from those already addressed and are so severe as to damage the integrity of the process and the Court’s adjudicative role. The factors which might bear upon that analysis will change depending on the circumstances. APPLICATION OF LAW TO THE FACTS [ 33 ] As indicated, there are three basic aspects to the test for intervention under CRP 35.10(2).

First, whether intervention will unduly delay the proceeding or cause serious prejudice to a party. Second, whether the proposed intervenor satisfies one of the four criteria in CPR 35.10(2)(a) – (

d) although, as indicated, it will be sufficient in this motion to only consider CPR 35.10(2)(a) (direct interest) and CPR 35.10(2)(d) (public interest). Third, even if the proposed intervenor satisfied the test under CPR 35.10(2), whether the Court should engage its residual discretion and deny intervention. [ 34 ] Each element will be discussed separately below.

UNDUE DELAY OR SERIOUS PREJUDICE? [ 35 ] Potlotek argues that UFCA’s intervention will “significantly widen” the scope of the proceeding which, in turn, will undoubtedly delay the process. [ 36 ] Moreover, Potlotek notes that it commenced this proceeding as an application in court and that UFCA’s intervention will undermine the viability of that procedural choice because it threatens the parties’ ability to complete this process in 2 years as indicated under CPR 5.01(4). [ 37 ] Dealing first with the concern that UFCA’s intervention will upend the application in court process, the Attorney General of Canada’s Notice of Contest already disputes that an Application in Court is the appropriate procedural vehicle.

I make no comment except to say that if there is a threat to this particular process, UFCA did not create it. Moreover, conversion to an action is certainly not a guarantee. And counsel for Potlotek properly reserved his clients’ right to oppose any motion to convert this proceeding to an action regardless of whether intervention is permitted. [ 38 ] In any event, respectfully, an Application in Court is a procedural choice. It is not a right.

The Civil Procedure Rules together with the related jurisprudence contemplates the possibility that an application will be converted to an action and provide a mechanism for considering that request. [ 39 ] Ultimately, I agree that potential threats to the viability of an existing application in court process cannot, in and of itself, constitute disqualifying delay for the purposes of intervention. Were it otherwise the process of intervention would be automatically precluded in an application in court process. That was clearly not the intent of the Civil Procedure Rules .

[ 40 ] Intervention will always result in at least a degree of delay in that anything the proposed intervenors might do in the litigation would be added to whatever process might have unfolded if the proposed interveners did not participate at all. However, the test is not mere delay. The test is undue delay. [ 41 ] UFCA brought its motion to intervene while the proceedings are in their infancy. UFCA has undertaken to abide by all deadlines established under the CPR or otherwise set by the Court. There is no evidence to suggest that UFCA’s undertaking cannot be accepted or fulfilled.

Based on the evidence and the representations given I am satisfied that no such undue delay will occur. [ 42 ] Turning to Potlotek’s more substantive concern, there is no doubt that using intervention as a platform to pursue issues beyond those raised by the parties could result in the sort of serious prejudice that is prohibited under CPR 35.10(2).

It risks, as Potlotek says, UFCA widening the scope of the proceeding, distorting the issues, hijacking the process and/or politicizing the litigation for its own ends. [ 43 ] At pages 11 – 12 of the written submissions, Potlotek states: If UFCA’s motion is granted the court will be allowing the present client to expand far beyond its present issues. No longer with the claim be focused on infringed Treaty Rights.

Instead, it would sway towards a focus on the alleged threat a Moderate Livelihood Fishery poses to UFCA’s members and this supposed unfairness of Canada properly addressing the treaty rights they are obliged to respect by implementing the moderate livelihood fishery. [ 44 ] Not surprisingly, UFCA disagrees.

It states that the issue which it seeks to address (i.e., whether the exercise of a treaty right to fish in pursuit of a moderate livelihood is subject to regulation by the federal and provincial governments) falls squarely within the issues already raised in the pleadings. [ 45 ] It is important to emphasize a vital preliminary fact where the parties and the proposed intervenor agree. All accept and it is an undeniable fact that Potlotek has a treaty right for its members to fish either for or in pursuit of a moderate livelihood.

Moreover, all parties agree that this treaty right is entitled to constitutional recognition and protection.

Those facts lie at the core of this proceeding. [ 46 ] Unfortunately, more than 20 years after the Supreme Court of Canada released its decisions in Marshall 1 and Marshal 2 , there remain festering disputes over such questions as the scope of that treaty right; what a “moderate livelihood” means in concrete terms; whether the treaty right has ever been properly honoured or recognized; and how it might actually be implemented. [ 47 ] For the purposes of this motion, it is helpful to quickly summarize the issues raised by the parties (not UFCA) in the pleadings. The following

summary is not intended to be comprehensive. Rather, it is only meant to frame key issues that may potentially engage the proposed intervenor. [ 48 ] Potlotek’s Notice of Application filed May 10, 2021 includes the following allegations: 1. More than 20 years have passed since Marshall 1 and Marshall 2 were decided. In that time, there have been no substantive efforts to amend the Fisheries Act or Regulations to accommodate Potlotek’s treaty right within the regulatory framework – or properly prioritize that right.

For Potlotek, “Treaty Right” is defined as “the treaty right to fish for a moderate livelihood” (paragraph 1 of the Notice of Application); and “the promise of access to ‘necessaries’ through trade in fish and wildlife with non-indigenous people” (paragraph 6 of

Schedule “A” to the Notice of Application); and the right “to trade and access to the fish and wildlife resources necessary to provide [the indigenous beneficiaries] with something to trade for a moderate livelihood”. (paragraph 11 of

Schedule “A” to the Notice of Application”). “Moderate Livelihood” is only defined in terms of being limited to the required “‘necessaries’ [a term contained in the 1760 – 1761 Treaties] and not to be the open-ended accumulation of wealth” (paragraph 13 of

Schedule “A” to the Notice of Application); 2. Although Potlotek, and certain other First Nations in Nova Scotia, have received commercial licenses from Fisheries and Oceans Canada (sometimes referred to as the Department of Fisheries and Oceans or “ DFO ”), including under a program called the “Marshall Response Initiative”, these are not, and were not intended to be, an implementation of the Treaty Right (paragraph 21 of

Schedule “A” to the Notice of Application); 3. Potlotek’s Treaty Rights have been (and are being) infringed. There are many dimensions to the infringement. However, generally speaking, the infringement arises out of a licensing regime imposed by DFO upon Potlotek that effectively and improperly undermines Potlotek’s access to the fishery. By extension, that regime equally and necessarily deprives Potlotek of its treaty right to a “moderate livelihood”; 4.

In 2019, Potlotek authorized certain members of its community to begin exercising its Treaty Right in accordance with an appropriate, responsible plan (the Potlotek Plan, defined above). Potlotek says that its attempts to engage in the fishery has occurred in a limited manner and over an area that “includes” St. Peter’s Bay on Cape Breton Island, all of which, Potlotek says, is within the scope of Potlotek’s 1760-1761 Treaty Rights. The Potlotek Plan also incorporates such relevant factors as Potlotek’s community needs and conservation requirements and is subject to ongoing review; and 5.

Beginning in 2021, the federal government began to unilaterally and improperly restrict Potlotek’s attempts to exercise its treaty rights under the Potlotek Harvesters authorized under the Potlotek Plan. Potlotek says that in contravention of the Treaty Right, a number of harvesters authorized by Potlotek under the Potlotek Plan have been subject to enforcement (including seizure of fishing gear) and prosecution by DFO. [ 49 ] By Notice of Contest filed July 16, 2021, the Respondent Attorney General of Canada denied Potlotek’s allegations and opposed the relief being sought.

That Notice of Contest includes the following allegations: 1. The Attorney General of Canada acknowledges Potlotek’s treaty right which it defines as a right “for [Potlotek] members to fish in pursuit of a moderate livelihood” (paragraph 10 of the Notice of Contest). The Attorney General of Canada does not further define what

a “moderate livelihood” means, from its perspective. Instead, and similar to Potlotek, it observes that the terms have not been decided beyond indicating that “it is the modern equivalent of ‘necessaries’ (which is the language used in the Treaties)” (paragraph 39 of the Notice of Contest).

The Attorney General of Canada also notes that that “there has been little judicial guidance on how to measure a ‘moderate livelihood’ as an economic concept” or how that quantitative measurement might affect the nature and scope of the treaty right to pursue a moderate livelihood (paragraph 39 of the Notice of Contest) and it “seeks judicial guidance to reconcile the parties’ different understandings….” (paragraph 36 of the Notice of Contest); 2. The Attorney General of Canada disagrees with the statement or implication that the treaty right has been infringed.

Indeed, the Attorney General of Canada complains that it is not possible to find a prima facie infringement of that treaty right without particulars as to the nature and scope of the treaty right, which has never been clarified. Moreover, the Attorney General of Canada offers various particulars as to the efforts which it says were taken to honour the Marshall decisions and specifically alleges that the Marshall Response Initiative and other agreements were “intended” to implement the treaty rights confirmed in Marshall 1 and Marshall 2 .

Ultimately, the Attorney General of Canada “respectfully disagrees that the opportunity to justify an alleged infringement now presents itself. Better particulars are required in terms of what particular aspects of the [federal government’s] regulatory scheme are infringing, how, and to what extent.” (paragraph 48 of the Notice of Contest); 3. The Attorney General of Canada alleges that the “nature”, “content” and “scope” of the treaty right has yet to be judicially determined.

As such, questions linger around such things as the breadth of the parties’ underlying rights and obligations; and whether an infringement of treaty rights has, in fact, occurred. Moreover, the Attorney General of Canada says, the required analysis will be expansive, highly contextual and involves such things as: a. The “historical record including oral history, and the political and economic context” (paragraph 22 of the Notice of Contest); b. The meaning of “moderate livelihood” as an “economic concept” (paragraph 39 of the Notice of Contest), as indicated; c.

The extent to which the fishery has been/is shared with non-indigenous groups and the realities associated with integrating that shared resource between the affected participants to achieve the important goals of resource management and conservation (paragraphs 26 and 54 of the Notice of Contest); 4.

On the issue of regulation and management, the Attorney General of Canada takes the position that “The most practical approach is to integrate all stakeholders in a single process with conservation at the forefront, but always with the required flexibility and discretion to account for varying circumstances and respect for rights” (paragraph 54 of the Notice of Contest). The Attorney General of Canada asserts the right to “within its proper limit, regulate the treaty right to fish in accordance with Marshall ” (paragraph 25 of the Notice of Contest).

It further alleges that the “ Fisheries Act has been amended since Marshall to better enable or support rights implementation” (paragraph 51 of the Notice of Contest); that it has attempted to increase Potlotek’s ability to participate in the management of the fishery through various initiatives (paragraph 55 of the Notice of Contest); and that it has undertaken regulation of the fisheries as it relates to Potlotek in good faith. (paragraph 61 of the Notice of Contest); and 5.

Finally, and in the alternative, the Attorney General of Canada states that any proven infringement (which is not conceded) is justified in the circumstances and at law (paragraph 58 of the Notice of Contest). [ 50 ] In the face of these allegations, the UFCA insists that it will “take a limited role in the proceedings that is appropriate to an intervenor” (paragraph 25 of written submissions filed August 20, 2021) and that it will neither raise new issues nor expand the scope of the litigation. [ 51 ] Potlotek challenges UFCA’s promise and points to paragraph 30 of UFCA’s written submissions filed August 20, 2021 where UFCA says that it has interest in ensuring that the regulatory regime “is applied fairly and to all participants in the fishery”. (emphasis added) UFCA also states that applying a single regulatory regime “consistently will ensure a level playing field for all participants in the commercial fishery and conserve the fishery resource”. (emphasis added) [ 52 ] Potlotek argues that invoking notions of “fairness” and a “level playing field” are coded attempts to politicize the process; distract attention from the real issues; and diminish the constitutional protection afforded its treaty rights.

Potlotek points out that while its treaty right to access the fishery enjoy constitutional protection, the same cannot be said for non-Indigenous commercial fishers. In other words, Potlotek argues that UFCA’s attempts to compare and equate its right to participate in the fishery with Potlotek’s treaty right is wrong at law and distorts (or mischaracterizes) the issues. [ 53 ] I am satisfied that the UFCA’s intervention will not visit a serious prejudice upon any party to this proceeding. My reasons include: 1.

UFCA’s intervention will not be allowed to serve as an echo chamber or bullhorn through which one the Attorney General of Canada’s position is unfairly repeated or magnified to the detriment of Potlotek. I note that there is a distinction to be made between the priorities and function of UFCA and the federal government. The UFCA membership is engaged in a commercial enterprise primarily with a view to accessing, protecting and monetizing the fishery resource.

The Attorney General of Canada’s focus is different and wider, involves broader policy concerns and focusses on more things such as enforcement and resource management. The experiences, priorities and perspectives of UFCA are sufficiently different from those of the Attorney General of Canada (and DFO) as to avoid unfair duplication or repetition. Moreover, should there be any signs of such abuse, the Court maintains oversight to ensure procedural fairness; and 2. It is an inescapable fact that the fishery resource is finite and will be shared between Indigenous groups such as Potlotek and non- indigenous groups.

This reality is reinforced in Potlotek’s written submissions which confirm that it is “not seeking ownership of commercial licenses held by UFCA members, nor [is Potlotek] seeking to change the legislation or licensure conditions applicable to UFCA members” (page 18). That concession related to the question of whether UFCA could claim a valid economic interest in the proceeding. However, it also affirms the facts that the non-indigenous commercial fishery will remain in place; indigenous fishers and non-indigenous fishers will interact on the water; and sharing of the fishery resource is inevitable.

This does not mean that the rights

which entitle a person access to this resource are the same or equal. Potlotek’s treaty rights enjoy constitutional protection. That fact isworthy of recognition and respect. Whatever rights UFCA members have to access the fishery arise primarily as a matter of license orprivilege – not the constitution. They are not the same or equal, and any notion of “fairness” must recognize that distinction. I amcertainly satisfied that the distinction will be properly recognized without giving rise to a disqualifying, serious prejudice.

CPR 35.10(2)(a) – INTEREST OF THE PARTIES [54] I am satisfied that the UFCA has a direct interest in this proceeding. [55] As indicated, Potlotek is not asking to revoke or change the licences of non-indigenous fishers. The fishery resource will beshared between indigenous and non-indigenous persons. [56] UFCA represents non-indigenous stakeholders who operate in the fishing industry and will be affected by how the fisheryresource is shared.

They also have a practical and legal interest (and a different perspective) in how this single resource might be safelyand responsibly managed, in real life. [57] The Potlotek Plan similarly recognizes that non-indigenous fishers may have a role in the ongoing management of this singlefishery resource.

Paragraph 6.17 of Potlotek’s Policy and Protocol for implementing its fishery plan states that, in order to fulfill theirmandate, the Potlotek Chief and Council may, among other things, establish a livelihood fisheries management committee and that theCouncil “may at their discretion invite among other entities commercial fishers’ associations to participate on this managementcommittee.” [58] During oral argument, counsel for Potlotek observed that this provision properly reflected practical concerns around safety,conservation, shared interests, and relations with DFO.

In my view, this also illuminates the interest which UFCA members might havein terms of sharing this resource. [59] Similarly, the pleadings (and particularly the Notice of Contest filed by the Attorney General of Canada) legitimately raiseissues which directly engage the interests of the UFCA. Those issues include how the fishery has been/is/will be shared with non-indigenous groups and the practical realities associated with sharing that single resource in a safe and responsible manner.

There willalso be questions around how a moderate livelihood will be defined and pursued by the indigenous persons entitled to that treaty right.That may, in turn, impact non-indigenous fishers. Again, Potlotek’s treaty rights do not and cannot vanish or lose their potency under theweight of these non-indigenous concerns. Moreover, the rights of UFCA members are not elevated. However, the law does not requirethat an intervenor’s interest be equal to that of the parties.

For the purposes of CPR 35.10(2)(a), it is sufficient if the issues, as framed bythe pleadings, reveal a direct interest legitimately connected to the dispute between the parties. [60] Finally, UFCA’s interest is also revealed in the following comments by the Supreme Court of Canada in Marshall 2: 41… In Gladstone, supra (cited at paragraph 57 of the September 17, 1999 majority judgement), the Chief Justice commented on thedifferences between the native food fishery and a native commercial fishery, and stated at paragraph 75 as follows: ‘Although by no means making a definitive statement on the issue, I would suggest that with regards to the distribution of the fisheriesresource after conservation goals have been met, objectives such as the pursuit of economic and regional fairness, and the recognition ofthe historical reliance upon, and participation in, the fishery by non-aboriginal groups, are the type of objectives which (at least in theright circumstances) satisfy this standard.

In the right circumstances, such objectives are in the interests of all Canadians and, moreimportantly, the reconciliation of aboriginal societies with the rest of Canadian society may well depend on their successful attainment.’[Emphasis in original] This observation applies with particular force to a treaty right. The aboriginal right at issue in Gladstone, supra, was by definitionexercised exclusively by aboriginal people prior to contact with Europeans. As stated, no such exclusivity ever attached to the treaty rightat issue in this case.

Although we note the acknowledgement of the appellant Marshall that “non-aboriginal/regional/communitydependencies … may be taken into account in devising regulatory schemes”, and the statements in Gladstone, supra, which support thisview, the court again emphasizes that the specifics of any particular regulatory regime were not and are not before us for decision. 42 In the case of any treaty right which may be exercised on a commercial scale, the natives constitute only one group of participants,and regard for the interests of the non-natives, as stated in Gladstone, supra, may be shown in the right circumstances to be entirelylegitimate.

Proportionality is an important factor.” (At paragraphs 41 - 42, emphasis in original) [61] This case involves commercial (not food) fisheries. The comments in Marshall 2 enhance UFCA’s claim to a direct interest forthe purpose of intervention under CPR 35.10(2)(a). CPR 35.10(2)(d) – PUBLIC INTEREST [62] Generally speaking, the threshold for granting intervener status in a constitutional or public policy case, is lower than it is for aprivate interest case (Jones v Tsige (2011), (ON CA), 106 O.R. (3d) 721 (C.A.)).

There is no dispute that the issuesraised in this case engage questions of public policy. [63] Moreover, in constitutional cases such as these, it is important for the Court to have a diversity of views which reflect thepotentially wide-ranging impact of its decision (Ontario (Attorney General) v Dieleman (1993), (ON SC), 16 O.R.(3d) 32 (Gen. Div.)) Among other things, the Court lacks the resource and authority to embark on its own investigations or solicitinformation in the same way the legislature might when assessing matters of public policy.

When attempting to craft just and informeddecisions, the Court is limited to the information and perspectives brought by the litigants. I refer to the decisions in Marshall 1,Marshall 2 and Ahousaht Indian Band v Canada (Attorney General), 2012 BCCA 330. Each involved significant issues regarding

access to fisheries by indigenous groups and each properly attracted intervention by parties with interests similar to that of the UFCA here. [ 64 ] The UFCA represents a broad cross-section of persons engaged in the multi-species fishing industry in the same area where Potlotek enjoys a treaty right to pursue a moderate livelihood through fishing. It has a real, continuing and legitimate interest in the proceeding. [ 65 ] Moreover, in my view, the issues are clearly of public importance and the UFCA offers a different perspective that would not otherwise be before the Court.

It also merits emphasizing that there are no other intervenors proposed. To the extent the Court will have the benefit of persons who actively fish the same resource as part of their livelihood, it would be through this organization. [ 66 ] Finally, I note that if persons represented by a group such as UFCA who are so closely connected to and engaged with the same singular resource are not heard, confidence in the judicial process may suffer.

While this issue is not determinative, it does underscore the fact that these persons have an interest in the process and, through intervention, this process will become a venue through which their particular and relevant perspective can be heard. RESIDUAL DISCRETION [ 67 ] As to the Court’s residual discretion to dismiss the motion, the test confirmed above is onerous. There is no evidence before me, and I do not have any concerns, that the public’s confidence in the legitimacy of the judicial process will be undermined or damaged if UFCA is granted leave to intervene.

On the contrary and as indicated, I would have concerns regarding public confidence in the circumstances if intervention were disallowed. The concerns expressed by Potlotek have been addressed above and are not so severe as to damage the integrity of the Court’s adjudicative role if a person who otherwise satisfies the test under CPR 35.10(2) were allowed to participate. [ 68 ] UFCA’s motion to intervene is allowed with costs, if any, to be determined. Keith, J.