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.
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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