Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al., (2008) 425 A.R. 1 (CA)

• Judge: Berger, Ritter and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 21, 2008
• Citations: (2008), 425 A.R. 1 (CA);2008 ABCA 83

Peavine Métis Settlement v. Alta. (2008), 425 A.R. 1 (CA);

      418 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MR.008

Peavine Métis Settlement (not a party to the application/not a party to the appeal) v. Barbara Cunningham, John Kenneth Cunningham, Lawrent (Lawrence) Cunningham, Ralph Cunningham, Lynn Noskey, Gordon Cunningham, Roger Cunningham and Ray Stuart (respondents/appellants) and Her Majesty the Queen in Right of Alberta (The Minister of Aboriginal Affairs and Northern Development) and the Registrar, Métis Settlements Land Registry (respondents/respondents) and Elizabeth Métis Settlement (applicant/proposed intervenor)

(0703-0275-AC; 2008 ABCA 83)

Indexed As: Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.

Alberta Court of Appeal

Berger, Ritter and Watson, JJ.A.

February 21, 2008.

Summary:

The plaintiffs were members of the Peavine Métis Settlement who were removed from its membership list under s. 90 of the Métis Settlements Act (MSA). They sought a declaration that ss. 75 and 90(1)(a) of the MSA were inconsistent with s. 2(d), 7 or 15 of the Charter. The applicant, Elizabeth Métis Settlement, intervened on the issue of whether ss. 75 and 90(1)(a) were shielded from scrutiny by s. 25 of the Charter.

The Alberta Court of Queen's Bench, in a decision reported at 424 A.R. 271, denied the motion. The plaintiffs appealed. The applicant sought leave to intervene on the appeal.

The Alberta Court of Appeal, per Watson, J.A., allowed the application.

Practice - Topic 685

Parties - Adding or substituting parties - Intervenors - On appeal - The plaintiffs were members of the Peavine Métis Settlement who were removed from its membership list under s. 90 of the Métis Settlements Act (MSA) - Section 90 provided that a Métis settlement member who voluntarily registered as an "Indian" under the Indian Act was to be removed from the Métis settlement membership list on request by the settlement council - Shelly, J., denied the plaintiffs' motion for a declaration that ss. 75 and 90(1)(a) of the MSA were inconsistent with s. 2(d), 7 or 15 of the Charter - The applicant, Elizabeth Métis Settlement, was an intervenor before Shelley, J., on the issue of whether ss. 75 and 90(1)(a) were shielded from scrutiny by s. 25 of the Charter - Shelley, J., did not find it necessary to address the s. 25 issue - The plaintiffs appealed - The applicant sought leave to intervene on the appeal on the s. 25 issue - The Crown opposed the application on the basis that there was no foundational record in the court below and that it would significantly enlarge the appeal's scope - The Alberta Court of Appeal, per Watson, J.A., allowed the application - The applicant did not propose to introduce any more evidence on appeal than was before Shelley, J., or to raise arguments that had not been raised before - The possibility that the appeal panel would choose not to deal with the arguments did not, of itself, invalidate the applicant's ability to intervene in order to press forward with arguments it had previously been allowed to raise.

Cases Noticed:

Alberta (Minister of Justice) v. Métis Settlements Appeal Tribunal et al., [2004] A.R. Uned. 449; 2004 ABCA 418, refd to. [para. 2].

Elizabeth Metis Settlement v. Metis Settlements Appeal Tribunal - see Alberta (Minister of Justice) v. Metis Settlements Appeal Tribunal et al.

Alberta (Minister of Justice) et al. v. Métis Settlements Appeal Tribunal et al. (2005), 367 A.R. 34; 346 W.A.C. 34; 2005 ABCA 143, refd to. [para. 2].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201, refd to. [para. 3].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al. (1996), 199 N.R. 1 (F.C.A.), refd to. [para. 5].

Batchewana Indian Band v. Canada (Minister of Indian and Northern Affairs) - see Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al.

R. v. Morgentaler, [1993] 1 S.C.R. 462; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 5].

Canada (Attorney General) v. Aluminum Co. of Canada Ltd. (1987), 15 C.P.C.(2d) 289 (B.C.C.A.), refd to. [para. 5].

Lameman et al. v. Canada (Attorney General) et al. (2006), 380 A.R. 306; 363 W.A.C. 306; 2006 ABCA 43, refd to. [para. 5].

Johnston et al. v. Director of Vital Statistics (Alta.) et al. (2008), 422 A.R. 187; 415 W.A.C. 187; 2008 ABCA 2, refd to. [para. 5].

Counsel:

J.L. Taylor, for the respondents/appellants;

D.N. Kamal, for the respondents/respondents;

T.R. Owen, for the applicant/proposed intervener.

This application was heard on February 21, 2008, by Watson, J.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment orally on the same date and filed it in writing on March 3, 2008.