Case: Métis Nation of Alberta Association v Alberta (Indigenous Relations), (CanLII)
Keywords: interventions; Indigenous relations; scope of participation
Alberta’s Minister of Indigenous Relations terminates negotiations with the Métis Nation of Alberta Association regarding the development of a “Non-Settlement Métis Consultation Policy”. The Métis Nation of Alberta Association seeks judicial review of the decision. The Court of Queen’s Bench (Ho J.) concludes the decision of the Minister to terminate negotiations is amenable to judicial review and that the Minister is entitled to terminate the negotiations (para. 2; Métis Nation of Alberta Association v Alberta (Indigenous Relations), 2022 ABQB 6). Métis Nation of Alberta Association appeals to the Court of Appeal and the Minister of Indigenous Relations files a cross appeal (para. 2).
Applications to intervene are brought by Fort McKay Métis Nation Association and jointly by Cadotte Lake Métis Nation Association and Willow Lake Métis Nation Association (para. 4). The Appellant says the test for intervention has not been met by the latter group (para. 4). The Court of Appeal (Slatter J.A.) grants both applications to intervene, with conditions (paras. 9-10, 15).
The Court of Appeal provided a useful summary of principles governing the scope of interventions. The Court noted that permission to intervene is only granted on the condition that intervenors “may not raise issues unless they are inextricably linked to an issue the parties have already put before the Court” (para. 7; Alberta (Minister of Justice) v Métis Settlements Appeal Tribunal, 2005 ABCA 143 and Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69). Applying this approach, the Court carefully parsed out the scope of the proposed intervenors’ participation in the appeal (paras. 8-10).
The Court of Appeal also offered “[a] few observations” about the record which are important for all counsel to consider. First, the Court pointed out that, pursuant to Rule 14.27, where a party files Extracts of Key Evidence on an appeal, there is an expectation that they will exclude any evidence, exhibits, and other materials “unlikely to be needed”. The Court of Appeal stated its expectations directly:
[i]n appeals of judicial review decisions, it is inappropriate to automatically file the entire Certified Record that was filed in the trial court under R. 3.19, as it would be a rare circumstance that the entire Certified Record is needed to resolve the appeal (para. 11).
Further, the Court of Appeal emphasized the importance of a “proper index separately listing each document” (para. 11). The Court also placed the responsibility to “reflect carefully on which
portions of the trial record are actually needed” on appellants, while stating that respondents and intervenors should only file additional materials “when necessary” (para. 12).
The Court of Appeal described the “duty of parties to only file necessary evidence” as extending to applications to intervene (para. 13). For intervenors, the Court of Appeal provided a summary of key principles at para. 14:
Interventions are to be confined to the record and issues before the trial court (Lameman v Canada (Attorney General), 2006 ABCA 43 at para. 5).
- Interventions that rely on fresh evidence are presumptively impermissible (A.C. and J.F. v Alberta, 2020 ABCA 309 at para 11).
- Additional evidence cannot be referred to on appeal unless an application for fresh evidence is made (R. 14.45; Palmer v The Queen, 1979 CanLII 8 (SCC),  1 SCR 759, and Barendregt v Grebliunas, 2022 SCC 22).
- The ability of any party to supplement the Certified Record is limited on appeals from a judicial review application.
- Applications to admit fresh evidence are typically heard by the panel that hears the appeal (McDonald v Brookfield Asset Management Inc, 2016 ABCA 419 at paras. 6-8).
Counsel for the Appellant: Zachary Davis and Riley Weyman (Pape Salter Teillet LLP, Toronto)
Counsel for the Respondent: Angela Edgington (Department of Justice and Solicitor General, Edmonton)
Counsel for the Applicant Fort McKay Métis Nation Association: Aaron Rogers (Inter Pipeline Ltd., Calgary)
Counsel for the Applicants Cadotte Lake Métis Nation Association and Willow Lake Métis Nation Association: Jason Harman (JFK Law Corporation, Vancouver)