[1]            Prowse J.A.:      This is an application by the Halfway River First Nation (“Halfway River”) for leave to intervene in the appellant’s appeal from the order of Cohen J. made January 27, 2004.

[2]            The appeal in this matter was set for hearing on an expedited basis, and the dates set aside for that hearing are May 10 and 11, 2004, approximately two weeks from now.

[3]            Halfway River seeks to raise a new and different legal issue that has not been raised by the appellants in the appeal.  Halfway River submits that this new legal argument turns on Treaty 8, and the impact of Treaty 8 on the preparation of cumulative effects studies, and the timing of those studies, vis-a-vis third parties being able to explore on territories upon which a particular aboriginal group has a claim.  Halfway River says this issue could effect other aboriginal groups, including them.  In other words, Halfway River says that it is potentially affected by this decision in such a way that it should be permitted to raise this new issue on appeal and have it resolved on appeal. 

[4]            Halfway River also submits that the issue they propose to raise and argue on appeal is directly related to at least a couple of the other major issues raised by the appellants.

[5]            I do not have an opportunity, given the timing of this application, to go into detail with respect to the background of this matter, or to review the detailed submissions of the parties.   These submissions are contained, in any event, in the written submissions filed on behalf of Halfway River and the respondent, Vintage.  I also, of course, had the benefit of significant oral submissions on behalf of the British Columbia Oil and Gas Commission.  I will, therefore, simply cut through to what I see to be the heart of this issue, without in any way detracting from the further arguments that were made before me. 

[6]            In the result, I am not satisfied that this is an appropriate case to grant intervenor status.  The respondents say that this is a fact-based case and it appears that is so.  The respondents say that at least two of the parties, the appellants and Vintage Petroleum, made a conscious decision not to raise this very issue before Cohen J.  They made that decision after some consideration, and with the view, as I understand it, to avoiding this matter being referred to the trial list.  They made a decision not to add this issue in order to avoid the very broad public interest aspect of the case before the court because they were satisfied that the issues between them could be resolved on the basis of the facts as they were put before Cohen J.  

[7]            In my view, it would amount to the intervenor taking the case away from the parties should intervenor status be granted on an issue which the parties chose not to pursue.  I am also not persuaded that either this proposed intervenor, or any other group, would not be able to raise this specific issue in appropriate circumstances in another case.  In other words, I do not see that any decision that arises from this appeal would preclude this argument from being raised in proper circumstances in the future. 

[8]            I am also satisfied that permitting intervention at this late date would be unfair to the respondents, given the fact that the appeal was expedited and is set to be heard fairly shortly.  The respondents say, and I accept, that it is not an issue which can be addressed quickly or without significant preparation.  They say it is a matter of essential fairness that the burden of meeting this argument not be imposed on them in addition to the burden of meeting the arguments of the appellants.  I agree with their submission in that regard.

[9]            I am also concerned that if Halfway River is permitted to add this issue to this appeal, the effect of it may well be to trigger a public interest aspect to this appeal that it may not otherwise have.  If that were so, there would be other potential parties who could be affected by the issue who would not have an opportunity to participate in it because it had not been directly raised by the parties in the first instance. 

[10]        In my view, this issue is not an issue which should be argued in this court in the first instance.  In coming to that conclusion, I note that counsel for the respondents has suggested that further evidence may be necessary in order to place the issue in context.  They say they would need to investigate that question in order to fairly respond to the issue on appeal. 

[11]        In the result, and based on the arguments I have heard, and relying in particular on the submissions which have been put forward on behalf of the respondents, I am not satisfied that the appropriate tests for intervenor status have been met.  I would therefore, dismiss the application.

“The Honourable Madam Justice Prowse”

Corrections: May 5, 2004

Names for counsel for Vintage Petroleum Canada and for the intervenor for the Attorney General of British Columbia have been corrected.  The date of the judgment was changed to the correct date.