‘An impossible choice’: Beaver Lake Cree Nation looks to Supreme Court in advanced legal cost case

Beaver Lake Cree Nation is asking the Supreme Court of Canada to hear a case it says has far-reaching implications for other First Nations struggling to pay for lengthy court cases against the government.

The small First Nation in northeast Alberta has been locked in a legal battle with the provincial and federal governments for the past 12 years, arguing that the impact of widespread industrial development on its traditional territory is in violation of treaty rights. 

Beaver Lake alleges the cumulative impact of industrial activities such as the oilsands and forestry, from dwindling caribou herds to polluted waters, has infringed upon its members’ connection to the land, including protected rights to fishing and hunting. 

The First Nation has successfully argued it’s running out of money to pay for the legal battle. Last September, the Court of Queen’s bench granted a rare advanced cost order, compelling the government of Canada and Alberta to pay up to $300,000 a year toward Beaver Lake’s legal fees in order to ensure the First Nation could bring its case to trial. 

In her September 2019 decision, Justice Beverly Browne wrote it would be “manifestly unjust” to force Beaver Lake to choose between spending money on pressing community needs such as housing and social assistance or the cost of litigation.

But that decision was overturned in June by the Alberta Court of Appeals. It prompted the First Nation to seek leave to the Supreme Court earlier this month, arguing Alberta’s highest court was too restrictive in its decision. If it stands, Beaver Lake fears a First Nation would only qualify for advanced costs once it has exhausted all available funds, regardless of community need. 

“The Court of Appeal decision faces us with an impossible choice,” Chief Germaine Anderson said in a statement earlier this month, announcing the decision to seek leave to the Supreme Court. 

“Do we choose to provide clean water to our members, or do we fulfill our obligation to take care of our lands and waters so that they provide food, medicine and spiritual sustenance for present and future generations of Beaver Lake Cree?” 

The First Nation has spent over $3 million in legal fees since its initial claim was filed in 2008, with those costs expected to increase as the case works its way toward a 120-day trial slated for early 2024, according to court documents. The case would be the first to consider the cumulative impact of industrial activity on treaty rights in Canada. 

In its decision, the appeal panel wrote the First Nation had at least $6 million to fund litigation with “significant further cash flow expected between now and the trial.” The court found Beaver Lake had not sufficiently proven that litigation would be “genuinely unaffordable” without advanced costs, one of the key benchmarks set out by the Supreme Court in 2003. 

“The test is not met if the applicant has funds, but chooses or prefers to spend the funds on other priorities, regardless of how reasonable those other priorities may be,” the panel wrote in its decision. 

Crystal Lameman, the First Nation’s government relations advisor, says the criteria of what qualifies as genuinely unaffordable would make it impossible for most First Nations to obtain an advance cost order under the appeals court decision. 

“We’re asking the Supreme Court to consider this decision through the lens of reconciliation and with regard to the reality of our First Nations leadership who are charged with managing the poverty of their communities,” she said in a statement. 

The Supreme Court receives around 600 applications for leave every year and only hears roughly 80 cases, according to its website.

David Wright, an assistant professor in the University of Calgary’s faculty of law, says the Supreme Court could use the case as an opportunity to more clearly define what qualifies as genuinely unaffordable, also known as the impecunity test, when it comes to advanced cost orders. 

“They may see this as an opportunity to provide clarity on that part of the test in general, but also specifically in relation to the important and sensitive context of Crown-Indigenous relations and legal affairs,” said Wright, an expert in Aboriginal law and resource law 

If the Supreme Court denies leave, it means the Court of Appeals decision will stand as the law of the land in Alberta. In explaining its decision, the panel said the court must only compel the use of public funds, such as in advanced cost orders, in extraordinary circumstances and as a last resort. 

“It will force Indigenous communities like Beaver Lake Cree Nation to engage in very difficult decisions around trade-offs between spending scarce fiscal and human resources on the pressing needs of the community versus spending those funds on the broader existential project of clarifying and proving rights and title,” Wright said. 

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