Abitibi-Consolidated Inc., a pulp and paper company, sought to intervene in an action brought by the provincial government to have the defendants remove cabins that were located in the Bay du Nord Wilderness Reserve.
The defendants argued that as Mi'kmaq they had Aboriginal rights and treaty rights, including hunting rights, fishing rights, trapping rights, and usufructuary rights (meaning rights to use and enjoy the land without altering it), which allowed them to build and use the cabins. Abitibi held rights to a portion of the area over which the defendants asserted their rights (though notably they had agreed with the government not to cut timber in that area). The basis for Abitibi’s claim to a right to intervene was that if the defendants were successful at trial it would negatively affect Abitibi's rights in the timber in the territory subject to the defendants’ Aboriginal and treaty rights claim. Abitibi also claimed to have considerable expertise in the area of Aboriginal and treaty rights after being involved in much litigation in that area elsewhere in Canada.
The Court first noted that the issues present in this case would be relevant in any other case raised by Abitibi regarding the company's rights in the context of the lands subject to these proceedings. This was enough to satisfy the requirement that Abitibi have an interest in the subject matter before the Court. From there, the Court ultimately allowed Abitibi to intervene for the following reasons: first, the issues raised were constitutional and public law issues, and, in such circumstances, Canada's courts have recognized that a less rigid approach should be adopted in determining who can intervene; second, Abitibi’s background in litigation involving Aboriginal and treaty rights suggested that the company could provide a unique perspective on the issues raised.
Importantly, the Court attached several conditions to Abitibi's leave to intervene. Abitibi was restricted to the filing of a written brief and oral argument on the issues of the existence of Aboriginal and treaty rights. The Court also held that if Abitibi wished to bring evidence, the evidence would have to be brought by the government. If the government refused, Abitibi would have to file an application to have the evidence admitted. The Court also held that Abitibi also could not be awarded costs, but that costs could potentially be awarded against it.