[1] The Métis Nation of Alberta (the “MNA”) through its legal and administrative arm of the Métis Nation of Alberta Association (the “MNAA”) has brought a motion in writing for an Order pursuant to Rules 104(1)(b) and rule 303(1) of the Federal Courts Rules, SOR/98-106 (the “Rules”) joining it as a respondent party to this judicial review proceeding. In the alternative, the MNA seeks an Order pursuant to Rule 109 of the Rules granting it leave to intervene in this proceeding and to make submissions: a) in the Métis Nation of Ontario’s (the “MNO”) motion to strike this proceeding which is to be heard on August 8 and 9, 2023; b) in the Applicants’ motion for injunctive relief; c) on the merits of the proceeding itself; and, d) in all other interlocutory steps in this proceeding.

[2] The Applicants oppose the MNA’s motion to be joined as a party, but consent to the MNA being granted leave to intervene, although on the terms and conditions it suggests and that are difference from those sought by the MNA. The Respondent MNO makes no argument in connection with the MNA motion other than to affirm that the MNA is a necessary party to this proceeding and should be added as a respondent. The Attorney General of Canada (the “AGC”) takes no position on the MNA’s motion.

[3] For the reasons that follow this motion is dismissed.

[4] The Applicants have commenced an application for judicial review in which they seek, among others:

[5] In short, the Applicants contest the Agreement, seek to stop its implementation, and seek declarations relating to the Minister’s failure to discharge his duty to consult meaningfully with them with respect to the Agreement and its terms for the reasons alleged in their application for judicial review.

[6] The Applicants are all are signatories of Treaty 9 except for the Beaverhouse First Nation, and all are members of the Wabun Tribunal Council. The Applicants allege that the Agreement and the Ministerial Decision to enter into the Agreement are unreasonable and incorrect for various reasons.

[7] The Applicants plead that they have traditionally used, and continue to use, their traditional territory, which they define collectively as an irregular area stretching from Timiskaming in the East, Lake Superior in the West, North of Hearst and Kapuskasing in the North and slightly North of the North shore of Lake Huron in the South. Members of the First Nations have lived and relied on the lands, waters and resources in their territory since time immemorial. This territory and the ability to self-govern within it is one of the issues in this proceeding.

[8] In 2017, the Crown and the Province of Ontario recognized six historic Métis communities, including the Abitibi-Inland Historic Métis Community (the “AIHMC”). The AIHMC territory is alleged to lie almost entirely within the Applicants’ traditional territory. The Applicants commissioned a report that they provided to the Minister that demonstrated that none of the six historic Métis communities recognized in 2017, including the AIHMC, met the test laid out by the Supreme Court of Canada in R. v. Powley, 2003 SCC 43 (CanLII), [2003] 2 SCR 207, to be recognized as Métis communities. The conclusion suggested from the Applicants’ report is that the MNO, and the communities that are comprised in it, are not in fact or in law proper Métis communities.

[9] In 2019, Canada signed a Métis Government Recognition and Self-Government Agreement (the “2019 Agreement”) with the MNO without consulting the Applicants. The 2019 Agreement set out a path to recognize the MNO as a Métis government with jurisdiction over core governance matters and territories as identified and described in the 2019 Agreement. Aside from the absence of consultation with them, the Applicants plead that the Crown’s recognition and inclusion of the AIHMC as a community governed by the 2019 Agreement is contrary to the Applicants’ s. 35 Constitution Act, 1982, rights (“Section 35 Rights”) because the Agreement gives the AIHMC and MNO rights to and governance over the Applicants’ pleaded and described traditional territory inappropriately.

[10] The Agreement follows and builds on the 2019 Agreement is alleged to irreparably harm the Applicants’ rights, at least, by:

[11] The MNA submits that it is a distinct Indigenous people that developed in west central North America and has developed its own group identity, language (Michif), culture, way of life, and forms of self-governance throughout the inter-related communities and territory of the Métis Nation homeland in Alberta.

[12] The MNA and the MNAA has entered into a number of agreements with Canada to pursue a resolution of the rights, claims, and interests of the Métis Nation within Alberta. One such agreement is the Métis Government Recognition and Self-Government Agreement, dated June 27, 2019, which set out a series of requirements to be met before the MNA would be recognized as a Métis government in federal legislation.

[13] On February 24, 2023, the MNA and Canada signed the Métis Nation within Alberta Government Recognition and Self-Government Implementation Agreement (“2023 MNA Agreement”). Chapter 11 of the 2023 MNA Agreement reaffirmed Canada’s commitment to introduce recognition legislation into Parliament as soon as possible to anchor its nation-to-nation, government-to-government relationship with the Métis Nation of Alberta.

[14] The MNA submits that it and the MNO have been on parallel tracks in their respective self-determination and self-management pursuits with the practical result that there is considerable overlap between the process and substance of their respective engagement with Canada to secure self-government.

[15] The MNA submits that the 2023 MNA Agreement and the Agreement include many identical or similar provisions and that both agreements fundamentally seek to achieve the same objective - self-government through treaty relationships - using the same processes. These processes have lead to the introduction of Bill C-53, An Act respecting the recognition of certain Métis governments in Alberta, Ontario and Saskatchewan, to give effect to treaties with those governments and to make consequential amendments to other Acts, on or about June 21, 2023.

[16] The MNA submits that, among other things, if passed, Bill C-53 would recognize the MNA as an “Indigenous governing body that is authorized to act on behalf of the Métis collectivity…and that the Métis collectivity holds the right to self-determination, including the inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982.” The MNA also submits that if passed, Bill C-53 would also provide the MNA with jurisdiction to enter into a treaty with Canada with respect to Métis citizens in Alberta. These same provisions would apply to the MNO with respect to its representation of the Métis citizens within Ontario.

[17] Two further applications for judicial review have been brought with respect to the 2023 MNA Agreement. The MNAA is a respondent in both of those proceedings and has served motions to strike in both. They are:

[18] The law applicable on a motion for an Order to join a party to an existing proceeding is captured by the text of Rule 104(1)(b) of the Rules as well as by the jurisprudence that has interpreted it. The parties to this motion do not seriously dispute the law that should be applied. Their dispute lies in whether the MNA has met the legal test to be joined as a respondent in this proceeding.

[19] Rule 104(1)(b) of the Rules reads as follows:

[20] In Canada (Fisheries and Oceans) v. Shubenacadie Indian Band, 2002 FCA 509 (CanLII), 299 N.R. 241 at para. 8 (“Shubenacadie”), the Federal Court of Appeal considered the circumstances in which a person may be joined as a “necessary party” in a proceeding that had been commenced as a judicial review proceeding but converted into an action. The question was asked after the proceeding had been converted into an action. The Federal Court of Appeal approved of the following passage from Amon v. Raphael Tuck & Sons, [1956] 1 Q.B. 357 (“Amon”) as to when a person should be considered a “necessary party” to an action within the meaning of Rule 104(1)(b):

[21] Based on these authorities, in Laboratoires Servier v. Apotex Inc., 2007 FC 1210 (CanLII), at para. 17 (“Laboratoires Servier”), the Court identified the following principles that apply in addition to that set out in Amon and Shubenacadie when determining whether a person is a necessary party to an action within the meaning of Rule 104(1)(b):

[22] The matter before the court in Shubenacadie did not engage the test applicable to adding a respondent party in an application for judicial review. It follows then that the principles set out in Shubenacadie and Laboratoires Servier might be relevant but are not necessarily determinative of whether a proposed respondent should be added as a respondent in a judicial review proceeding pursuant to Rule 104(1)(b).

[23] The addition of a responding party in a judicial review proceeding was considered in Forest Ethics Advocacy Association v. Canada (National Energy Board), 2013 FCA 236 (CanLII) (“Forest Ethics”). In Forest Ethics, the Federal Court of Appeal considered Rules 104(1)(b), 109(1) and (2), and Rule 303(1) on a motion to add private parties as respondents in a judicial review proceeding that named the National Energy Board and the AGC as respondents. The Federal Court of Appeal explained that determining who should be named as a respondent in a judicial review proceeding requires the consideration of Rule 303(1)(a) because it sets out that every person that is “directly affected” by the decision sought to be reviewed should be named as a respondent. The Federal Court of Appeal went on to explain, at paras. 18 to 21, that:

[24] It follows from these authorities that determining whether the MNA should be considered a necessary party in this proceeding within the meaning of Rule 104(1)(b) will turn on a proper understanding of the relief sought by the Applicants, whether it will affect the MNA’s rights, impose legal obligations upon it, or prejudicially affect it in some direct way.

[25] In the event that the MNA is not added as a respondent party, then it seeks leave to intervene in the proceeding generally and on the motions brought and to be brought within it. Rule 109 is the operative Rule on questions of leave to intervene before this Court. The Rule reads as follows:

[26] The jurisprudence and test applicable on a motion pursuant to Rule 109 was recently summarized by the Federal Court of Appeal in Le-Vel Brands, LLC v. Canada (Attorney General), 2023 FCA 66 (CanLII) (“Le-Vel”) as follows:

[27] The MNA pleads that any court decision that makes a determination on the substance of the 2023 MNA Agreement, or on the process that led to MNA 2023 Agreement, or impedes the enactment or implementation of Bill C-53, will affect the legal rights of the Métis Nation within Alberta more generally. This would necessarily include its in right the T-589-23 and T-611-23 proceedings.

[28] This is so because the 2023 MNA Agreement and the Agreement are substantively almost identical. Both agreements were concluded after analogous processes with the federal government and seek to obtain the objectives with the same group of distinct Aboriginal people (the Métis Nation) whose traditional and historical territory is not constrained by provincial boundaries. Considering the substantive similarities between the agreements, the MNA argues that the MNO and the MNA will fulfill the same role for the Métis Nation within their respective jurisdictions – to act as the representative government authorized and mandated to negotiate and ratify a self-government treaty, and to advance and address the rights, interests and claims of the Métis Nation within each province, and that a determination in this proceeding will necessarily affect the other proceedings.

[29] As a result, the MNA is concerned that any adverse finding or decision as against the substance or process relating to the Agreement will affect the MNA and the 2023 MNA Self-Government Agreement in equal measure. It therefore concludes that these considerations make is a necessary respondent party in this proceeding.

[30] The Applicants consent to the MNA being granted leave to intervene in this proceeding on specific terms and conditions. They object, however, to the MNA’s motion to be added as a respondent party.

[31] The Applicants argue that the MNA has not established that it should have been named as a respondent in the first place as contemplated by Rule 104(1)(b) because, as considered by the Federal Court of Appeal in Forest Ethics, at paragraph 18, the MNA could not itself have brought an application for judicial review of the Agreement or of the Ministerial Decision that led to the Agreement with the MNO.

[32] It also argues that the MNA has not demonstrated that it would be prejudicially affected in some direct way by the relief sought in this proceeding. Rather, the Applicants say, the MNA has attempted to show that it should be named as a respondent by speculating about the potential impacts it could face if the order sought by the Applicants is granted.

[33] The Applicants also argue that MNA has not demonstrated that its presence before the Court is necessary to effectively and completely resolve any question in the application. The Applicants note that MNA’s argument that the relief sought in this proceeding implicates its legal rights and interests, and, that the possible wide-ranging impacts of the Applicants’ arguments may delay the recognition of its rights, are arguments advanced without evidence such that the Court cannot assess their full scope and breadth.

[34] Finally, relying on Shubenacadie, the Applicants argue that the MNA’s position that it has an interest in the outcome of this proceeding or has relevant evidence to provide on some of the questions involved is not sufficient to make the MNA a necessary party within the meaning of Rule 104(1)(b). The Applicants submit that even if the Court accepts the MNA’s argument that it could be adversely affected by the outcome of this proceeding that does not mean its presence is necessary to resolve any of the issues before the Court, nor does it make it a necessary party.

[35] As noted in the Forest Ethics decision, the test applicable to the MNA’s motion to be joined as a respondent party in an application for judicial review is whether the relief sought in the Applicants’ application for judicial review will affect the MNA’s legal rights, impose legal obligations upon it, or prejudicially affect it in some direct way.

[36] The materials before me provide no sufficiently compelling basis for the Court to conclude that the Applicants should have named the MNA as a respondent party in the first place. Although there is broad commonality and a significant similarity in the substantive terms of the MNA 2023 Agreement and the Agreement, that does not lead me to conclude that the MNA is involved in or directly concerned with the challenges to the Agreement as framed by the Applicants, the determination of who within Ontario may be directly and detrimentally affected by the Agreement’s terms through its implementation in light of the Applicants’ asserted Treaty 9 and Section 35 Rights, or more generally whether the Agreement is contrary to the Applicants’ asserted Treaty 9 and Section 35 Rights.

[37] Indeed, although it is ancillary to the Forest Ethics test, as noted by the Federal Court of Appeal in Shubenacadie and its endorsement of the meaning of “necessary” set out in Amon, such overlap and similarity is insufficient for a person to be added as a party. The full citation from Amon set out in Stevens v Canada (Commissioner of Inquiry), 1998 CanLII 9074 (FCA), [1998] 4 FC 125, [1998] FCJ No 793 (QL) (FCA), itself cited with approval in Apotex Inc v. Canada (Health), 2016 FC 776 (CanLII) at para. 62, addresses the point more directly:

[38] That the MNA may be affected by a judicial determination of the Applicants’ claims in connection with the Agreement and its common terms and process as compared with the 2023 MNA Agreement is not sufficient to make the MNA a necessary party within the accepted meaning of “necessary” as found in Rule 104(1)(b).

[39] Applying the governing Forest Ethics test demonstrates that the MNA does not meet the threshold to be joined as a respondent in the Applicants’ judicial review proceeding pursuant to Rule 104(1)(b) in light of Rule 303(1)(a).

[40] Although the MNA argues generally and leads relatively general evidence as to how its legal rights may be affected by a decision on the merits of this proceeding, its distilled argument is that it should be made a party because of the possible precedential value of the underlying decision on the judicial review, and of its potential impact on its litigation with separate parties in its own proceedings.

[41] The MNA argues that the “possible wide-ranging impact of the Applicants’ arguments is demonstrated by the possibility that they will derail or delay the recognition of Métis rights in Alberta. Without evidence on these implications, the Court will not be in a position to assess the full scope and breadth of the potential impact of the Applicants’ requested order”. This argument and its explicit component of conjecture lacks the specificity required, in my view, to establish that the relief sought by the Applicants in this proceeding will affect the MNA’s legal rights in a manner that requires that the MNA should be joined as a respondent party.

[42] Similarly, the MNA’s evidence and argument do not demonstrate that legal obligations would be imposed upon it as a result of a decision in this proceeding, or that such a decision would prejudicially affect it in some direct way when considered in light of the specific relief sought by the Applicants driven by their specific circumstances as members of the Wabun Tribunal Council, asserted Treaty 9 rights and Section 35 Rights,. Generalities and conjecture are not sufficient.

[43] The MNA’s motion to be added as a respondent party is therefore dismissed.

[44] The Court is not bound to give effect to an agreement between the parties as to whether a proposed intervener should be granted leave to intervene in a proceeding. Regardless of consent or of an absence of opposition, the Court must be persuaded that a proposed intervener meets the test to be granted leave to intervene failing which leave should be denied.

[45] The first part of the test for leave to intervene is the usefulness test. The Court must determine whether the proposed intervener will make different and useful submissions, insights, and perspectives that will further the Court's determination of the legal issues raised by the parties to the proceeding, and not new issues. To determine usefulness, four questions need to be asked: 1) what issues have the parties raised?; 2) what does the proposed intervener intend to submit concerning those issues?; 3) are the proposed intervener's submissions doomed to fail?; and 4) will the proposed intervener's arguable submissions assist the determination of the actual, real issues in the proceeding?

[46] The MNA argues that its submissions on the merits will be different from those of the Respondents and will be useful because its insights and perspectives are informed from its unique history and struggle for self-determination. It argues that its submissions regarding the relationship between the Crown and the Métis Nation – and in particular the duties owed by the Crown to all Métis people, and not just those in Ontario - will further the Court's determination of the legal issues raised by the parties to the proceeding.

[47] The MNA’s intended submissions in this regard are not articulated in any greater detail in their materials. The MNA’s described intended submissions do not establish how they would not be duplicative of what the MNO will submit other than to make submissions on perspectives arising from the MNA’s experiences in Alberta and that are otherwise broader than the issues raised by the Applicants despite that they may intersect at various points.

[48] Although this Court has no doubt that the MNA’s perspective and arguments will be useful and necessary in the MNA’s proceedings, it is not persuaded that the intended submissions as described in the materials filed will be substantially different from those of the Respondents with respect to the issues raised in this proceeding. Duplication or near duplication of submissions is not a reason to grant leave to intervene, but is rather a reason to refuse to grant leave to intervene (Le-Vel, at para. 22). To the extent that the MNA intends to make submissions informed by its experience in Alberta or for Métis citizens at large, then these are issues that are not raised by the Applicants in this proceeding and constitute new issues. The MNA has not met the first element of the test for leave to be granted to intervene in this proceeding.

[49] The MNA argues that it has a genuine interest in this proceeding and that the Court can be assured that it has the necessary knowledge, skills and resources and will dedicate them to the matter before the Court. The Court has no doubt that it does given the seriousness of the MNA’s motion. The MNA has met the second element of the test for leave to be granted to intervene in this proceeding.

[50] The MNA argues that it is consistent with the interests of justice that it be permitted to intervene because it would be fundamentally unfair for the Court to adjudicate on issues that may impact the right of the Métis Nation within Alberta to govern itself without input and argument from the MNA. This argument is substantially similar to the precedential value argument made by the MNA in its request to be joined as a respondent party in this proceeding. The MNA is involved in its own proceedings and will have the right and opportunity to make its submissions more particularly and precisely tailored to the issues, grounds and evidence advanced in those two (2) separate proceedings. Nothing in this decision precludes the MNA from making submissions on its right to govern itself in the proper context and forum. This proceeding just happens to not be that proper context or forum. The MNA has not persuaded me that its proposed intervention is in consonant with the interests of justice in the circumstances of the current proceeding.

[51] It follows that the MNA’s motion for leave to intervene in this proceeding is dismissed.