Intervention is a strategic way to bring Indigenous perspectives to legal challenges without Nations having to shoulder the entire financial burden of bringing a case through the justice system. The lower costs of bringing actions – coupled with the influence that intervenors can have on case outcomes – makes this a strategic way forward for RAVEN’s partners who are asserting their rights through the courts.
Are you a representative of a Nation or Indigenous organization seeking support for an intervention? Click here to apply for RAVEN's Intervenor fund.
Leave to Intervene: a six-factor test
The test for leave to intervene in the Federal Court and the Federal Court of Appeal involves: proving that the intervenor will be directly affected by the outcome of the case; that the issue at stake is in the public interest; and, that there is no other way for the intervenor to bring their evidence and perspective to the court.
The six-factor test also involves proving that the intervenor has unique insight not already being provided by another party, and that the case evaluation will be strengthened by the intervenor — essentially, a test of the necessity for this particular intervention.
The Federal Court of Appeal summarizes this test as follows: “the salient question is whether the intervenor will bring further, different and valuable insights and perspectives that will assist the Court in determining the matter.”
For example, in Squamish Nation v. British Columbia — the legal action backed by the RAVEN Pull Together community — a number of industry associations applied to intervene. They were denied leave, due to lack of direct legal interest in the challenge, which hinged upon the claim that the province failed in its duty to consult First Nations when approving projects that have a direct impact on Indigenous communities. The dismissal noted that, while they had a potential economic interest in the Trans Mountain pipeline and tankers project’s completion, their legal rights and obligations would not be affected by the outcome of the appeal. Further, the court found the proposed intervenors did not have a distinctive perspective justifying granting intervenor status, and the issues they sought to advance would expand the scope of the appeal in a way that would be unfair to the appellant.
RAVEN is honoured to be able to offer the Intervenor Fund so First Nations that meet the six-part test can be supported when they step up to protect the interests of their communities, lands and waters.
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RAVEN is supporting West Moberly First Nation (Peace region, British Columbia), who are intervening in the Attorney General of Ontario, et al. v. Mike Restoule case pushing for augmentation of treaty annuities.
Haida intervened in the case of Saugeen Ojibway Nation as the issue of submerged lands is key to their upcoming Title challenge. The Title case, currently in case management until 2026, relies on ‘no bad precedents’ being set regarding submerged lands.
Thanks to this appeal, and to intervenors in the Saugeen Ojibway Nation challenge, Canada has reversed its position and now agrees that aboriginal title to lands beneath navigable waters is cognizable at law.
The Ts’kw’aylaxw First Nation (TFN) has deep experience in dealing with the adverse impacts of mining activities on its lands. The promise by the Province that it will properly consult the TFN on governmental decisions has been breached numerous times. The TFN is in litigation against the Province for failing to properly regulate mining activities on our lands.
This intervention is assisting the relevance of reconciliation through the DRIPA legislation here in BC, because of this it is also helping our Gitxaala and Heiltsuk campaigns. It may also have impacts on Attawapiskat, Neskantaga, and Grassy Narrows due to its relevance in the ON courts.
The Nuxalk Nation is a coastal First Nation and its Traditional Territory also includes the Great Bear Rain Forest. It has a well documented system of Nuxalk Indigenous Laws that defines the jurisdiction to control the use and access to its Traditional Territory. These factors will allow Nuxalk Nation to bring a unique perspective to this JR.
The Mineral Tenure Act and subsequent action under the Mines Act have severely impacted Nak’azdli’s ability to exercise its Aboriginal rights and title. Therefore, Nak’azdli Whut’en are intervening in Gitxaala’s challenge, as a precedent-setting decision in this case will directly benefit the Nation.
Gitanyow is exercising its own jurisdiction to protect sockeye spawn in the Meziadin watershed in the face of provincial inaction, because of mineral claims.