SCC grants leave to appeal to impoverished First Nation seeking advanced costs

The Supreme Court of Canada has granted the leave application of Germaine Anderson, chief of Beaver Lake Cree Nation, to appeal the Alberta Court of Appeal’s decision to reverse a partial advanced costs award in favour of the First Nation.

“Beaver Lake Cree Nation welcomes the opportunity to advance its arguments with the top Court - that Beaver Lake’s hard fought constitutionally protected rights are only meaningful if it can access the courts,” Beaver Lake Cree said in a news release.

Beaver Lake Cree Nation argues that a First Nation government should not be expected to exhaust all its available funds and leave its members destitute for a singular cause, and that a court should consider the reasonable choices that a First Nation government should make to ensure that its community endures when determining whether the First Nation can afford to litigate a constitutional rights case.

In 2008, Beaver Lake Cree Nation filed a novel and complex Treaty infringement claim against the Alberta and federal governments that sought numerous declarations of rights, injunctions and damages for the cumulative impacts of resource developments permitted on their traditional territory. The First Nation contended that these cumulative effects threatened and caused damage to the way of life of its members, in breach of Treaty 6.

After a decade, the Beaver Lake Cree Nation said that it could no longer afford the litigation so it filed an application for advanced costs of $5 million to enable it to continue litigating. The First Nation claimed that it had spent legal fees of around $3 million, with about half paid using its own funds, and continued to pay legal fees of $300,000 annually.

In 2019, the Alberta Court of Queen’s Bench awarded Beaver Lake Cree partial advanced costs and ordered the Alberta and federal governments to annually pay $300,000 each for the First Nation’s legal fees until the trial is concluded or the litigation is resolved. The court recognized that Beaver Lake Cree was financially impoverished and that the case was meritorious and of important public interest.

In Anderson v Alberta (Attorney General), 2020 ABCA 238, the Alberta Court of Appeal set aside the partial advanced costs order, finding that the award was unreasonable, that Beaver Lake Cree did not satisfy the impecuniosity branch of the test for advanced costs and that the First Nation could potentially access millions of dollars to continue financing its litigation.

Beaver Lake Cree Nation’s leave to appeal to the Supreme Court of Canada contended that the appellate court had used the wrong test and that courts have been divided on what affordability means. It asked the Supreme Court to clarify how the test for advanced costs will apply to a First Nation government charged with managing poverty.

“After 12 years of supporting this Nation through every legal hurdle, this is an important milestone,” said Susan Smitten, executive director of RAVEN (Respecting Aboriginal Values and Environmental Needs), which raises funds to provide Beaver Lake Cree with access to justice.

Crystal Lameman, government relations advisor/treaty coordinator of Beaver Lake Cree Nation, said that the First Nation received half of the $3 million in costs from donors who understood the importance of this case, which raises difficult, complex and broad issues.

“Knowing that this case rests on environmental justice, health and protection, they continue to support Beaver Lake’s efforts to enforce its Treaty rights, which ultimately protects the environment now and for the generations to come,” said Lameman in the news release.