IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: Cowichan Tribes v. Canada (Attorney General), 2016 BCSC 1660 Date: Docket: Registry: Victoria Cowichan Tribes, Squtxulenuhw, also known as William C. Seymour Sr., Stz uminus First Nation, Thὀlmen, also known as John Elliott, Penelakut Tribe, Suliisuluq, also known as Earl Jack, Halalt First Nation and Sulsimutstun, also known as James Thomas, on their own behalf, and on behalf of all other descendants of the Cowichan Nation And: Plaintiffs The Attorney General of Canada, Her Majesty the Queen in right of the Province of British Columbia, and The City of Richmond, and Musqueam Indian Band Defendants Before: The Honourable Madam Justice J. A. Power Reasons for Judgment (In Chambers) Counsel for the Applicant Tsawwassen First Nation: Counsel for the Plaintiff Cowichan Tribes: Counsel for the Defendant Attorney General of Canada: F. A. Sheppard S. A. Morgan and D. M. Robbins J. A. Rosenthal

2 Cowichan Tribes v. Canada (Attorney General) Page 2 Counsel for the Defendant Province of British Columbia: Counsel for the Defendant Musqueam Indian Band: G. R. Thompson and M. C. Akey S. R. Mussell Place and Date of Hearing: Place and Date of Judgment: Victoria, B.C. April 7, 2016 Victoria, B.C. September 8, 2016 [1] Tsawwassen First Nation ( TFN ) makes application to be added as a defendant to this action. [2] Cowichan Tribes ( Cowichan ) and others bring a representative action for declarations relating to aboriginal title of lands in what is now the City of Richmond, including at Tl uqtinus and the south shore of Lulu Island, and relating to aboriginal fishing rights in the south arm of the lower Fraser River. As of November 2015, the defendants included Canada, British Columbia, and the City of Richmond. [3] The plaintiffs consented in November 2015 to deem notice letters to third parties as constituting formal notices of claim. These third parties included the Musqueam Indian Band ( Musqueam ), the Vancouver Fraser Port Authority (the VFPA ), and TFN. In January 2016, the plaintiffs consented to the addition of the VFPA and Musqueam as defendants to the action. [4] Only the plaintiffs oppose TFN s application for similar joinder as defendants. The other parties, including the newly added defendants, either consent to TFN s application for joinder (Musqueam) or take no position (Canada, British Columbia, the City of Richmond, VFPA). Legal framework [5] Civil rule 6-2(7) governs the addition of parties by order. The relevant portions of the rule read as follows:

3 Cowichan Tribes v. Canada (Attorney General) Page 3 Rule 6-2(7) (7) At any stage of a proceeding, the court, on application by any person, may, subject to subrules (9) and (10), (b) (c) order that a person be added or substituted as a party if (i) (ii) that person ought to have been joined as a party, or that person's participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated on, and order that a person be added as a party if there may exist, between the person and any party to the proceeding, a question or issue relating to or connected with (i) (ii) any relief claimed in the proceeding, or the subject matter of the proceeding that, in the opinion of the court, it would be just and convenient to determine as between the person and that party. [am. B.C. Reg. 119/2010, Sch. A, ss. 12 and 13.] [6] The applicant TFN and the respondent Cowichan agree on the common law regarding Rule 6-2(7)(b) and (c). [7] The receipt of a third party notice of litigation does not join the recipient as of right to the action as a party: Kitimat (District) v. British Columbia (Minister of Energy and Mines), 2006 BCCA 562 at paras. 20 and 22. [8] In Lawrence Construction v. Fong, 2001 BCSC 813, the court summarized Rule 6-2(7) s two options of (b) and (c) - formerly subrules (ii) and (iii) - in this way at paras : [19] For the rule to apply an issue must exist between the person to be added and the party applying to add that person, relating to a matter at issue in the existing proceeding. Only if the conditions of either sub-rule (ii) or (iii) are met does the court have jurisdiction to exercise its discretion. [20] There is no requirement that both sub-rules apply: Dayco Developments Ltd. v. Norman Lewis Co. Ltd. (1982), 33 B.C.L.R. 273 (C.A.). However, in either case the party to be added must have a direct interest in or be directly affected by the precise outcome of the existing proceeding: see Canadian Labour Congress v. Bhindi (1985), 61 B.C.L.R. 85 (C.A.) and B.C. Fed. of Labour v. B.C. (W.C.B.) (1988), 29 B.C.L.R. (2d) 325 (S.C.).

4 Cowichan Tribes v. Canada (Attorney General) Page 4 [21] It is also not necessary to demonstrate that the plaintiff would be able to prove the allegations to any other degree beyond showing that there may exist such a question or such an issue: MacMillan Bloedel v. Binstead (1981), 58 B.C.L.R. 173 (C.A.). The plaintiff need only show that there is a possible cause of action: Harrington v. Pappachristos (1992), 75 B.C.L.R. (2d) 121 (S.C.). [9] Overall, the following principles emerge from the case law: discretion to add a party under 6-2(7)(b) only exists if one of the conditions in subsections (i) and (ii) is established (Alexis at para. 15); subrule 6-2(7)(b) and its own two further branches should be given a narrow approach or be read narrowly ; it is concerned with remedying a defect in the proceedings : Lawrence Construction at para. 24; Alexis v. Duncan, 2015 BCCA 135 at para. 15; subrule 6-2(7)(b)(i) encompasses situations in which joining the person may be more than mere convenience but less than a necessity : Lawrence Construction at para. 24, cited also in Kitimat at para. 29; subrule 6-2(7)(b)(ii) applies where the question to be adjudicated cannot be determined without the addition of the party: Lawrence Construction at para. 25; subrule 6-2(7)(c) requires a degree of interrelationship between the applicant and an existing party, and allows joinder for convenience so as to counter the narrow interpretation of subrule (b): Lawrence Construction at para. 29; Alexis at para. 16; and the exercise of discretion to add a party under subrule 6-2(7)(c) requires both the fulfilment of the condition of a question or issue between a party and the applicant and the presiding judge s own determination of justness and convenience in the circumstances. [10] Contemplating the predecessor to subrule (b)(ii), the court in Kitimat, at para. 30, referred to Morishita v. Corporation of the Township of Richmond (1990),

5 Cowichan Tribes v. Canada (Attorney General) Page 5 44 B.C.L.R. (2d) 390 at 393 (C.A.), where it defined a necessary party as a person whose direct interests might be affected by the granting of the relief sought. The court in Kitimat considered it difficult to see how a binding order can be made in the terms sought in the petition, limiting the instruments held by Alcan, without its participation (para. 32). Because Alcan s direct interests might be affected by the granting of the relief sought according to the terms of the petition, it was a necessary party for a full determination of the issues, including at the appellate level, and was thus one who ought to have been joined as a party. [11] The fact that the applicant has relevant evidence does not suffice to fulfill subrule 6-2(7)(b)(ii) because the applicant could simply serve as a witness: Lawrence Construction at para. 27. [12] In Kitimat, at para. 24, the court also reviewed the two branches of subrule 6-2(7)(c) ( relief in further subrule 6-2(7)(c)(i) or subject matter in further subrule 6-2(7)(c)(ii)). The court traced these two branches as coming respectively from common law (where an applicant s interests would be directly affected by the outcome or object of the litigation) and equity (where an applicant had a material interest in the subject of the litigation). The court in Kitimat rephrased relief and subject matter as an interest in the object or an interest in the subject of the litigation (para. 35). [13] With respect to subrule 6-2(7)(c), joinder requires preliminarily a question or issue relating to or connected with any relief claimed in the proceeding, or the subject matter of the proceeding. The court needs to decide: whether there may exist between the appropriate parties a question which can be answered or an issue which can be decided by a court of law or by a judge exercising jurisdiction in a judicial capacity and to see, through whatever means, and not necessarily affidavits, that the question or issue is a real one in the sense that it is not entirely frivolous and would result in courts wasting judicial time. (MacMillan Bloedel v. Binstead (1981), 58 B.C.L.R. 173 (C.A.), [1981] B.C.J at para. 12 ( Binstead ), cited also in B.C. Fisheries Survival Coalition v. Canada, [1999] B.C.J. No. 660 (S.C.).)

6 Cowichan Tribes v. Canada (Attorney General) Page 6 [14] The exercise of discretion under subrule 6-2(7)(c) next turns to a consideration of justice and convenience. These include whether joinder would complicate the litigation or introduce new issues. Persons may be permitted to promote their own views as intervenors, whose role is different from the role of a party in British Columbia courts : Kitimat at para. 46. [15] In addition, the court may consider whether plaintiffs who oppose joinder have a legitimate interest in limiting the bounds of the litigation : Canadian Independent Medical Clinics Association v. British Columbia (Medical Services Commission), 2010 BCSC 927 at para. 44. [16] Joinder can prevent re-litigation of the same issue at a later date. Alternately, joinder can protect a non-party from the obstacle of res judicata in future. In West Moberly First Nations v. British Columbia, 2007 BCSC 1324 ( West Moberly 2007 ), the court decided on notice to non-party Treaty 8 signatories and adherents to an action about the western boundary of Treaty 8. The court allowed notice and thereby the possibility of joinder in part to prevent the injustice of res judicata at a later date (para. 23) or conversely to prevent re-litigation (para. 26). [17] In West Moberly First Nations v. British Columbia, 2006 BCSC 228 at paras and paras ( West Moberly 2006 ), the court allowed Kaska Dena Council s application for joinder as a defendant under the predecessor to subrule 6-2(7)(c). The court did so because Kaska Dena Council s own treaty negotiation prospects related to the Treaty 8 area in dispute and thereby raised a question or issue between Kaska Dena Council and the plaintiffs as to both the relief sought and the subject matter of the larger action. [18] In West Moberly 2007, the court at para. 63 denied notice to Treaty 11 signatories because the boundaries of that treaty would not be altered by the outcome regarding the Treaty 8 boundary in dispute in the action.

7 Cowichan Tribes v. Canada (Attorney General) Page 7 The parties positions TFN [19] TFN is a treaty nation with rights under the Tsawwassen First Nation Final Agreement ( TFA ). Companion instruments are the Tsawwassen First Nation Final Agreement Act, S.B.C. 2007, c. 39, and the Tsawwassen First Nation Final Agreement Act, S.C. 2008, c. 32. [20] In summary, the applicant TFN argues that its interests under the TFA are directly affected by both the Cowichan title and fishing rights claim. TFN argues that it therefore has a direct interest under rule 6-2(7)(b)(ii) and a more than sufficient interest under subrule 6-2(7)(c)(i). [21] TFN and Cowichan rely on differing case law in determining direct interest in an action. [22] TFN points to the decision in West Moberly First Nations v. McLeod Lake Indian Band, 2014 BCCA 283 ( West Moberly 2014 ), affirming Johnston J. s decision to grant intervenor status to three non-treaty-8 nations in West Moberly First Nations v. British Columbia, 2013 BCSC 2059 ( West Moberly 2013 ). The British Columbia Court of Appeal at para. 25 affirmed Johnston J. s use of the more liberal test of direct interest which holds that the applicant must show simply that the declaration sought may directly impose a prejudicial legal obligation on them or affect their legal rights. In that same decision, the British Columbia Court of Appeal also endorsed an earlier decision by Edwards J. to allow joinder of the Kaska Dena Council in West Moberly [23] TFN stresses that the TFA as a treaty equally recognizes aboriginal rights under the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 35, and that those treaty rights are not frozen but continue in a living, long-term document. The TFA has review provisions which allow for changes to TFN s treaty rights. It allows for expansion or compromise of existing treaty rights, for example by a change in land-holding status over lands on which the TFA

8 Cowichan Tribes v. Canada (Attorney General) Page 8 currently gives TFN broad consultative and certain harvesting rights and/or rights of access. [24] TFN points out that Cowichan s aboriginal title claim to the Lands of Tl uqtinus falls within the TFA s Tsawwassen Traditional Territory (identified in TFN s statement of intent for the treaty-making process), Tsawwassen Wildlife Harvest Area, and Tsawwassen Migratory Bird Area. TFN adds that the Cowichan aboriginal title claim appears to include open river and/or riverbed on the south arm of the Fraser River. [25] TFN adds that the Cowichan aboriginal fishing rights claim overlaps with the TFA s Tsawwassen Fishing Area. [26] TFN argues that it would also be directly affected by a positive outcome in Cowichan s action for an aboriginal right to fish in the south arm of the lower Fraser River. A declaration of a Cowichan right to fish could curtail TFN s own allocation of fish by the arrival of a new rights-holder for a finite resource: West Moberly 2014 at paras [27] TFN argues that it need not show that it will get less fish if Cowichan succeeds in its claim. It argues that the introduction of a competing aboriginal rights claimant alone will complicate the consultation process in which TFN engages over the same claimed area, and this is a prejudicial legal effect under subrule 6-2(7)(c). [28] Finally, TFN argues that if it is not allowed joinder as defendant, then in future TFN could face adverse effects from the Cowichan litigation on TFN s treaty rights, while also facing a res judicata argument in any proceeding TFN might bring on the same. [29] TFN says that possible later proceedings or measures - to which the plaintiffs point as alternative ways to resolve any conflicting interests between themselves and TFN - would be inherently ineffective for TFN if it were faced with reasons for judgment in the current action that compromise TFN s treaty rights. In oral submissions counsel argued that the best argument for TFN would be Cowichan

9 Cowichan Tribes v. Canada (Attorney General) Page 9 doesn t have those rights, but TFN cannot make that argument in future if it is not allowed to oppose Cowichan s claim in the current action. Cowichan [30] In summary, the respondent Cowichan argues that TFN has no direct interests in the claim under either subrule 6-2(7)(b) or (c), at least in part due to the treaty-based nature of TFN s rights. Cowichan says that any interest asserted by TFN under (c) is speculative. Cowichan argues that because its own claim is relatively narrow for the goal of efficiency, joinder in this instance would be inconvenient and unjust to the plaintiffs. [31] Cowichan points to what it says is a lack of interaction between its claim and TFN s direct interests. [32] For example, Cowichan says that its claim has no overlap with the TFA s more narrowly defined Tsawwassen Lands or Other Tsawwassen Lands. [33] At one point in argument, counsel conceded that if any aspect of its claimed fishing rights area did in fact overlap with water and this were solely to ground a decision for joinder, then Cowichan would consider amending its claim. [34] Where TFN relies on the decision in West Moberly 2014 (where the BCCA affirmed Johnston J. s use of the more liberal test for direct interest and endorsed Edwards J. s decision to join the Kaska Dena to the West Moberly action), Cowichan points by contrast to Groberman J. s use of a more stringent view of direct interest in Ahousaht Indian Band v. Canada, 2012 BCCA 330. There Groberman J. denied appellant intervenor status because the applicants own legal interests were not directly in issue in the action. [35] Cowichan argues in addition that its claim does not seek to undermine the TFA, unlike in B.C. Fisheries Survival Coalition, where the applicants sought a declaration regarding the Nisga a final agreement. Therefore that case law is inapplicable.

10 Cowichan Tribes v. Canada (Attorney General) Page 10 [36] Cowichan also makes several arguments that essentially question the strength of TFN s treaty-based rights. [37] For example, Cowichan argues that the TFN, by negotiating a treaty, has allowed its aboriginal rights - which could have been litigated - instead to be modified in the TFA. Cowichan says that TFN has chosen a political over a legal approach to its rights. [38] Cowichan points to the TFA, cl. 48, as showing that TFN has agreed pre-emptively to cede its treaty rights to other aboriginal groups litigated rights under s. 35. The clause reads as follows: 48. If a superior court of a province, the Federal Court of Canada or the Supreme Court of Canada finally determines that any aboriginal people, other than Tsawwassen First Nation, have rights under section 35 of the Constitution Act, 1982 that are adversely affected by a provision of this Agreement: a. the provision will operate and have effect to the extent that it does not adversely affect those rights; and b. if the provision cannot operate and have effect in a way that it does not adversely affect those rights, the Parties will make best efforts to amend this Agreement to remedy or replace the provision. [39] Cowichan also argues that TFN s arguments based on its asserted Tsawwassen Territory as defined in the TFA are weak because TFN s territory was defined for its statement of intent in the treaty process and was not the product of the research and evidence that would have gone into a litigated aboriginal right. Cowichan speculates that TFN chose the treaty-making process because TFN could not substantiate a claim to the area. [40] Cowichan argues as well that TFN s rights are not common-law aboriginal rights but identified in the treaty by site and, for example, cannot be exercised on lands held in fee simple. [41] Cowichan argues overall that TFN s treaty-based rights do not found an overlapping title claim. Cowichan describes TFN s asserted traditional territory as an

11 Cowichan Tribes v. Canada (Attorney General) Page 11 area that is used as a form of modern geographic limit to various interests set out in the agreement. Conversely, Musqueam has an overlapping title claim and therefore Cowichan did not oppose its joinder. Cowichan says that in the absence of an overlapping title claim, cases cited by the applicants with regard to overlapping claims (Delgamuukw v. British Columbia, [1997] 3 SCR 1010 at para. 185; and R. v. Marshall; R. v. Bernard, 2005 SCC 42 at para. 144), are not relevant. [42] Cowichan says that the possible diminishment of TFN s fishery allocation is speculative, as are all of TFN s described possible adverse outcomes from Cowichan s litigation, and TFN has no direct interest in Cowichan s claim regarding rights infringement. [43] Regarding res judicata, Cowichan says that if TFN is faced with any outcome in Cowichan s action that is adverse to TFN s interests, it should use judicial review, an action against Crown for infringement of treaty rights, or arbitration under the TFA. [44] Cowichan also argues that it would not be just or convenient for TFN to be joined as defendant. Cowichan asserts that it has drafted a narrow claim to make its litigation lean and efficient, and joinder of TFN would add complexity and expense to the process. The fact that TFN received a notice from Cowichan is not itself evidence for its joinder. Analysis [45] Cowichan s Further Amended Notice of Civil Claim identifies the lands claimed at Part 1, para. 14: At the time the Crown asserted sovereignty in 1846 the Cowichan exclusively occupied land at the south shore of Lulu Island on the south (i.e. main) arm of the lower Fraser River, in particular the approximately 1846 acres of land shown on the map attached as Schedule A to this Notice of Civil Claim and the surrounding land to the extent such surrounding land includes any portion of the Federal Tl uqtinus Lands as defined herein (the Lands of Tl uqtinus, as shown for general reference on Schedule B to this Notice of Civil Claim). The Cowichan physically occupied the Lands of Tl uqtinus by way of a Cowichan village (the Village Lands ) and customary Cowichan cultivation and/or regular use of a larger area of exploited land circumscribing the village

12 Cowichan Tribes v. Canada (Attorney General) Page 12 (the Exploited Lands ). The Cowichan had the intention and capacity to retain exclusive control over the Lands of Tl uqtinus (and did so). [46] In Part 2, para. 1(a), the plaintiffs seek declarations that they have aboriginal title to: (i) the Lands of Tl uqtinus, (ii) in the alternative, the Village Lands at Tl uqtinus, or (iii) in the further alternative, any portion of the Lands of Tl uqtinus, within the meaning of s. 35(1) of Constitution Act, [47] The plaintiffs describe their claimed aboriginal right to fish at Part 1, para. 32: The Cowichan had a practice, tradition or custom of fishing the south (i.e. main) arm of the lower Fraser River for food prior to, at and continuing after first European contact in the early 1790s. This Cowichan practice, tradition or custom was integral to the distinctive culture of the Cowichan. It continues to be integral to the distinctive culture of the members of the Cowichan tribes, Stz uminus, Penelakut and Halalt. [48] In Part 2, para. 2, the plaintiffs seek declarations that: (a) (b) The descendants of the Cowichan Nation, including the Cowichan tribes, Stz uminus, Penelakut and Halalt, have an aboriginal right to fish the south (i.e. main) arm of the Fraser River for food purposes, within the meaning of s. 35(1) of Constitution Act, 1982, and Canada s general prohibition against fishing without a licence pursuant to s. 26(1) of the Pacific Fishery Regulations, SOR/93-54, coupled with Canada s failure to authorize the Cowichan Tribes, Stz uminus, Penelakut and Halalt to fish the south arm of the Fraser River for food purposes under the authority of a licence issued under the Aboriginal Communal Fishing Licences Regulations, SOR/93-332, constitutes an infringement of the aboriginal right set out in paragraph 2(a) directly above. [49] The plaintiffs attach maps at Schedules A and B of their claim, and also supply an historic chart, an historic chart detail, an historic map, and an historic map detail as exhibits attached to their Chambers affidavit evidence. [50] The TFN provides relevant maps and charts drawn from the Appendix to the TFA, including Appendix A, Appendix J-1, Appendix K-1, and Appendix L-1.

13 Cowichan Tribes v. Canada (Attorney General) Page 13 [51] These maps and charts all show an overlay of the Tsawwassen Territory with the geography of the Cowichan claim. [52] Generally, the TFA secures broad consultative rights for the TFN over the Tsawwassen Territory, as well as some harvesting rights, with certain restrictions as to location within the area. [53] Specifically, the lands and fishing area claimed by Cowichan share some of the area identified by the TFA as the Tsawwassen Territory (Appendix A), as well as more specifically aspects of the TFN s Intertidal Bivalve Fishing Area (Appendix J-1), the Tsawwassen Wildlife Harvest Area (Appendix K-1), and the Tsawwassen Migratory Bird Harvest Area (Appendix L-1). [54] Cowichan argues that the category of territory on which a treaty such as the TFA relies falls well short of a litigated claim s evidentiary standards. [55] This argument is met indirectly by the court s statement in Binstead that the allegation of a question between the applicant and an existing party need not be proven. This is not a summary trial. TFN s rights within that defined treaty territory, while largely consultative and arrived at by a wholly different method from litigation, are yet s. 35 rights to be accorded recognition. [56] On the pleadings, I find that adversity exists that puts TFN into a position of direct interest in the outcome of the Cowichan litigation. [57] As previously mentioned, I find that that proposed interpretation of the TFA, cl. 48, itself puts TFN in direct engagement with Cowichan s claims. I do not at this stage make any pronouncement on the meaning of TFA, cl. 48. However, I agree with TFN that one (as yet unproven) interpretation that cl. 48 pre-emptively cedes TFN s treaty rights to adverse future judicially determined rights of other aboriginal collectives in fact provides grounds for allowing TFN s joinder. [58] TFN s position is similar to that of Kaska Dena Council in West Moberly 2006 at paras and 26. The Kaska Dena were still negotiating their treaty.

14 Cowichan Tribes v. Canada (Attorney General) Page 14 Edwards J. allowed joinder of the Kaska Dena based on his finding that they had a direct adverse interest to the plaintiffs with respect to the judicially determined western boundary of Treaty 8. [59] TFN s treaty is already negotiated. However the TFA remains a living document with potential for change contingent on, among other things, the litigation outcome of aboriginal collective third parties, as in this action. Decision [60] Having considered the arguments and the circumstances before me, I am persuaded that I should allow the addition of TFN as defendant to the larger action. [61] I do so under both subrule 6-2(7)(ii) and 6-2(7)(c)(i). [62] With respect to subrule 6-2(7)(b)(ii), I find that TFN meets the definition of a necessary party in so far as TFN s direct interests would be affected by the granting of the relief sought in the terms of the plaintiffs pleadings in the action. Cowichan s pleadings ask that the precise outcome in this action include areas that engage directly with TFN s legal rights under the TFA. [63] Cowichan s defined areas for its requested declarations are seen in the maps it attaches to its NOCC and to its submitted chart. Again, these areas overlap with the Tsawwassen Territory defined by the TFA. [64] TFN s treaty rights flow from an agreement that is a living document. TFN s rights can fluctuate with the land-holding status of the areas underpinning TFN s rights under the TFA and with the introduction of an extra aboriginal party into fishing negotiations over a fishing area that TFN has established by treaty. [65] The presence of the TFA, cl. 48, gives further direct engagement with the precise outcome in the Cowichan action.

15 Cowichan Tribes v. Canada (Attorney General) Page 15 [66] In addition, if a final order adverse to TFN were made in the Cowichan action, TFN as a non-party would have to rely on the current defendants to appeal the ruling. [67] Again, this is similar to the facts before Edwards J. in West Moberly 2006, and recalls the direct interest found by Johnston J. in West Moberly [68] These facts differ from Ahousaht where Groberman J.A. dismissed a Chambers application by two non-aboriginal commercial fishing groups. [69] If I am wrong and TFN does not meet the test under subrule 6-2(7)(b)(ii) as a necessary party, then I still find there to be a question or issue between TFN and the plaintiffs in the Cowichan action under subrule 6-2(7)(c) based on the same observations of the facts grounding my decision under subrule 6-2(7)(b)(ii) above. Because counsel for both TFN and Cowichan focused their arguments on the relief in the action, I make my order under subrule 6-2(7)(c)(i) which specifies that the question or issue is tied to the relief claimed in the larger proceeding. [70] The facts grounding Cowichan s own description of TFN s treaty-based territory as a form of modern geographic limit to various interests set out in the TFA are enough to show engagement between TFN s treaty rights (whether based on land or water) and the outcome of Cowichan s litigation claims in its own claimed overlapping areas for aboriginal title and aboriginal fishing rights. [71] This is especially so in light of the TFA, cl. 48, discussed above. That most of TFN s treaty rights are described by TFN as consultative does not make them any less legal rights. [72] The court has stressed in many judgments, including Delgamuukw and Marshall/Bernard, the importance of justice among competing aboriginal rights. I take this principle to be generally relevant even where the conflicting interest arises between a litigating nation and a treating nation.

16 Cowichan Tribes v. Canada (Attorney General) Page 16 [73] This principle as well as the fact that this area of law is still in its infancy factor into my weighing of the just and convenient portion of subrule 6-2(7)(c) in favour of joinder. [74] I find that TFN s joinder would not raise any new issues. Cowichan presents its claims as being narrowly focused. While purportedly narrow, Cowichan s claims have capacity to go deep into not only the named parties but neighbouring TFN s treaty interests as well. In theory TFN has other methods to resolve its adverse position should Cowichan s claims succeed. But this does not mean that it may not use joinder. [75] Finally, TFN would face res judicata arguments if it were not joined and then had to turn to those other methods. Without res judicata, the court would face repetitive litigation. Conclusion [76] In the result, I allow TFN s application to join as a defendant in the action. J. A. Power, J. The Honourable Madam Justice J. A. Power