"Pressing Needs": SCC Clarifies Advance Costs For Indigenous Governments In Public Interest Litigation

• Published date: 31 March 2022
• Subject Matter: Government, Public Sector, Indigenous Peoples
• Law Firm: Cassels
• Author: Ms Grace Wu and Arend J.A. Hoekstra

On March 18, 2022, the Supreme Court of Canada (SCC) released its unanimous decision in Anderson v. Alberta, which considers and expands Indigenous governments' ability to obtain interim funding from the other party (in this case, the Crown) during public interest litigation (advance costs).¹

The SCC's decision improves Indigenous governments' access to justice and signals the SCC's willingness to adapt and evolve Canadian law, and the exercise of the Court's discretionary powers, in a manner that furthers reconciliation. The decision is relevant for Crown and Indigenous governments who are, or who may be, involved in public interest litigation.

BACKGROUND

Beaver Lake Cree Nation (Beaver Lake) is a Treaty 6 First Nation. It is an "impoverished community" whose living conditions are marred by issues of food insecurity, inadequate housing, inadequate infrastructure, insufficient resources for education and health programs, poor water access and quality, and unemployment.²

In 2008, Beaver Lake sued the Crown for improperly allowing its traditional lands to be taken up for industrial and resource development, and for compromising its ability to pursue its traditional practices.³

In 2018, Beaver Lake brought an application for advance costs ' i.e., an award where the Crown funds a portion of the First Nation's litigation expenses. Beaver Lake submitted that the anticipated litigation expenses of $5 million are "well beyond its reach," as it needed to direct its existing financial resources towards the community's other priorities. Leading up to the application, Beaver Lake had already spent approximately $3 million on legal fees, paid from its own funds and from third-party fundraising. A costly 120-day trial for the underlying claim is scheduled to begin in two years.⁴

At the original hearing, the case management judge awarded Beaver Lake advance costs, with each of Beaver Lake, Canada, and Alberta being required to contribute $300,000 annually to the credit of the First Nation's legal fees until the litigation's resolution. She found that, although Beaver Lake had more than $3 million in unrestricted funds, the First Nation was "impecunious" (having little or no money) on the basis that it required its existing funds to address the community's other priorities.⁵

On appeal, the Alberta Court of Appeal set aside the case management judge's award of advance costs. It found that it was an error to conclude that Beaver Lake was "impecunious" when the First Nation...