First Nation suing Alberta and Ottawa could qualify to have legal fees paid in advance, top court rules

An Alberta First Nation suing the provincial and federal governments over treaty rights may qualify to have some of its legal costs paid in advance by both levels of government, the Supreme Court of Canada ruled Friday.

Beaver Lake Cree Nation could have some of its legal costs paid for but will need to better approve its inability to pay for ongoing litigation despite having some funds of its own, the country’s top court ruled.

The case has been sent back to Alberta Court of Queen’s Bench for a new hearing where the First Nation’s finances can be put under further scrutiny.

Friday’s ruling is the latest development in a 14-year fight over treaty rights and industrial development — a complex case with wider ramifications for other First Nations struggling to afford lengthy legal battles.

Beaver Lake Cree Nation, near Lac La Biche in northeastern Alberta, says the environmental damage caused by industrial development on its traditional territory violate members’ rights under Treaty Six.

The First Nation filed a lawsuit in 2008 against Alberta and Ottawa, alleging that so much development had been permitted on the nation’s land that it infringed on members’ rights to pursue traditional activities.

As part of its legal fight, the First Nation wants $5 million in advance costs from the Alberta and federal governments. The nation says it has spent roughly $3 million already but needs the extra money to cover costs as the case winds its way to trial, scheduled for January 2024.

‘Solid ground to stand on’

In a unanimous ruling Friday, the top court determined the federal and provincial governments could be compelled to cover part of Beaver Lake Cree’s fees.

The court ruled that the First Nation may qualify for advance costs despite having funds of its own, but would need to present more evidence in Alberta Court of Queen’s Bench.

“Though the decision wasn’t a full win for the Beaver Lake Cree First Nation, we are taking it as a victory,” said Crystal Lameman, a government relations adviser and treaty co-ordinator with Beaver Lake Cree Nation.

“This decision gives us solid ground to stand on when we go back to the lower court to argue for advance costs.”

The $5 million the nation is asking for is just enough to keep the case alive, Lameman said.

“If we were able to resource the case in the way it needs to be resourced, we would be way beyond that number,” she said. “We have so much more work to do to prepare for trial and we just don’t have the financial resources to do so. And we are continually met with appeal after appeal.”

Advance costs rarely awarded

While advance costs are a last resort and rarely awarded, a party with funds of its own could still qualify if it satisfies the legal test for “impecuniosity,” the Supreme Court judgment said.

The First Nation must show that the cost of litigation, paired with other “pressing needs,” would leave its finances too drained to continue with the case, the court said.

“Pressing needs are not defined by the bare necessities of life,” the judges said in their ruling. “Rather, and in keeping with the imperative of reconciliation, they ought to be understood from the perspective of that First Nation government.”

In its lawsuit, the band counted more than 19,000 development permits issued for the area, mostly for energy development, covering 90 per cent of its land.

It alleges it has never been properly consulted on the developments or compensated for the damage they have caused.

In April 2018, the First Nation sought to force both levels of government to pay all trial expenses in advance.

In September 2019, Alberta’s Court of Queen’s Bench awarded a rare advance costs order, directing Alberta and Canada to each pay $300,000 per year toward Beaver Lake’s legal fees until the case was concluded at trial.

In her decision, Queen’s Bench Justice Beverley Browne wrote it would be “manifestly unjust” to force Beaver Lake to choose between spending money on litigation or pressing community needs such as housing and social assistance.

Last June, the First Nation was hit with a setback when the Alberta Court of Appeal overturned the lower court’s ruling.

Based on fresh evidence introduced by the federal government, the Court of Appeal found that Beaver Lake had access, or potential access, to at least $3 million in unrestricted funds it could use to continue funding the litigation.

In January 2021, the Supreme Court said it would review that decision and clarify when First Nations might qualify for advance costs.

Our nation has dedicated our scarce resources to the case because we felt like we had no choice.-Crystal Lameman

The treaty rights case is thought to be the first to challenge the cumulative environmental, social and cultural impacts of industrial development, with the First Nation contending that the people have been deprived of their traditional territory.

The nation is confident that it will be awarded advance costs and hopes the judgment encourages government officials to negotiate, Lameman said.

“Our nation has dedicated our scarce resources to the case because we felt like we had no choice,” she said.

“We would rather work with the Crown directly to arrive at a mutual understanding of how to properly implement these treaty promises and protect our culture and our way of life but those discussions have not occurred.”

The provincial and federal governments have yet to respond to requests for comment on the ruling.