B.C. Court Of Appeal Rolls Back Aboriginal Groups' Multi-Million Dollar Award For Court Costs

Costs orders in Aboriginal and constitutional litigation have been a challenging issue for the courts. For instance, plaintiff groups often assert that they are entitled to greater costs awards than ordinary litigants given the public importance of their claims. In the case of Aboriginal groups, their asserted claims for rights and title more often than not anchor the basis for seeking extraordinary orders regarding costs. The British Columbia Court of Appeal's recent decision in Ahousaht Indian Band and Nation v. Canada1 however set aside a trial judge's multi-million dollar costs order arising out of the Ahousaht Indian Band's successful aboriginal rights claim for a commercial fishery. The result is a dramatic 90% reduction in the Ahousaht's entitlement to court costs from $3.145 million to close to $350,000.2

By way of background, the Ahousaht Indian Band along with several other aboriginal groups advanced claims for an aboriginal right to fish and to sell fish, and for aboriginal title to their fishing territories extending out 100 miles from the west coast of Vancouver Island. After a multi-year trial, the Plaintiffs were successful in establishing that they did have aboriginal rights to fish commercially, but only nine miles out instead of the 100 miles sought. The additional claim for aboriginal title was dismissed. The findings were substantially upheld on appeal.

Normally in civil claims, the successful party is entitled to payment of costs and expenses on the Supreme Court Tariff. An award of costs under the Supreme Court Tariff is intended to compensate a party for some, but not all, of the legal fees and expenses incurred in the successful prosecution or defence of a claim. Full indemnity is not a principle reflected in the Supreme Court Tariff. In the Ahousaht case, the Plaintiff aboriginal groups, nonetheless, sought an order for special costs assessed against the Government of Canada for the amount equivalent to the legal fees they incurred in prosecuting the action, or alternatively an order for increased costs in excess of the regular Tariff. The plaintiffs in this case estimated their legal fees for the trial, excluding expenses, to be $3,700,000 and that an award of ordinary costs on the Supreme Court Tariff would only be about $270,160.

In advancing their position, the Plaintiffs argued that an order of special costs was appropriate in constitutional cases involving matters of significant public interest where the...