Top Court Provides Guidance On Advance Costs Awards For Indigenous Rights Litigation

• Published date: 06 April 2022
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: MLT Aikins LLP
• Author: Mr Drew Lafond, Meaghan Conroy and Jianna Rieder

First Nations - not the Courts or the Crown - are best positioned to determine the pressing needs of their communities, according to a recent Supreme Court of Canada decision that offers hope to First Nations fighting to enforce their Treaty rights in court.

On March 18, 2022, the Supreme Court of Canada released its decision in Anderson v Alberta, 2022 SCC 6. This decision has important implications for First Nations seeking advance costs from the Crown to fund public interest litigation, including litigation to enforce Treaty rights.

Background

In 2008, Beaver Lake Cree Nation filed a claim alleging the federal and provincial Crown had infringed its Treaty rights by improperly allowing so much land to be taken up for industrial and resource development. A decade into the legal fight, and after spending over $3 million in legal fees, Beaver Lake Cree Nation said that it could no longer afford to pursue litigation. At that point, the trial was scheduled to begin in January 2024.

In order to be able to proceed with its Treaty infringement claim, Beaver Lake Cree Nation filed an application for advance costs in the amount of $5 million. The purpose of an order for advance costs is to provide the recipient with the funds necessary to help finance the litigation. Previously, the Supreme Court of Canada had set out a three-part test for a First Nation to meet before a court can consider making an order for advance costs:

1. the First Nation must "genuinely" be unable to pay for the litigation (the "impecuniosity requirement");
2. the claim must be meritorious on its face; and,
3. the claim must raise issues that are of public importance and novel.

For Beaver Lake Cree Nation, the only factor that at issue was whether it had satisfied the "impecuniosity requirement." The Nation said it was genuinely unable to pay for the litigation: it could not fund both its legitimate and pressing community infrastructure and social needs while also continuing to pursue its legal claim. The case management judge agreed, but her decision was overturned by the Alberta Court of Appeal.

The Alberta Court of Appeal said that if a First Nation has access to financial resources that could be used to fund litigation, but has instead chosen to spend their financial resources on other legitimate and pressing community needs beyond the basic necessities of life, then the First Nation cannot succeed in an application for advance costs. This decision was appealed to the Supreme Court of Canada...