By Leslie MacKinnon
In a 9-0 decision, the Supreme Court of Canada has turned down a bid by an Indigenous group for advance funds to finance an ongoing claim against the governments of Alberta and Canada.
The decision could have implications for Indigenous groups across the country.
The Beaver Lake Cree Nation hasn't lost entirely, however. The top court has sent the case back for a new trial to determine how badly the group needs the money.
The case before the top court on Friday was about the Beaver Lake Cree — a community of 1,200 near Lac La Biche, about 200 km northeast of Edmonton — and its quest for government funding to continue financing a 14-year-old civil claim of damage to its traditional land caused by industrial development, including that of the oilsands.
The Indigenous group argued it was so short available funds, it would have to drop the case if it doesn't get $2 million in advance.
Complex litigation is expensive, particularly for a years-old case that's scheduled to end with an expensive 120-day trial in 2024. But advance costs are very rarely handed out by courts. In fact, costs are usually awarded only after the case has concluded.
The top court has traditionally been reluctant to create a court-managed funding program. Therefore, in 2003, it established a test for the granting of advance costs. The test says the case must be meritorious and have public importance. Only one part of the test applied to the Beaver Lake Cree: whether it truly could no longer afford the annual $300,000 in legal fees it's been paying since 2008.
At the first stage of the claim for advance costs, a trial judge found that Beaver Lake is an impoverished community and shouldn't have to spend all its available funds on legal fees. Justice Beverley Browne ordered both the Alberta and federal governments to each pay $300,000 per year to cover the band's court costs until the case was finished.
The Alberta Court of Appeal reversed this finding, partly because new evidence was introduced showing the band had received a lump-sum settlement of $2.9 million from another claim.
For different reasons, the top court reversed. Its judgment, co-written by Justices Andromache Karakatsanis and Russell Brown, said the trial judge had erred in assessing what it called Beaver Lake's “impecuniosity.”
The Beaver Lake Cree's lawyer, Karey Brooks, told the top-court hearing in November that affidavits from reserve members “heartbreakingly” describe the poverty of Beaver Lake: overcrowded houses with mould and exposed wires, water that must be brought in by truck, an overflowing sewage lagoon, and a mental-health crisis that's resulted in several suicides.
Even so, Beaver Lake did have access to assets and funds totalling $3 million that was earmarked for “pressing needs” in the community.
Taking into account the reserve's poverty, Karakatsanis and Brown wrote that “pressing needs” are more than just the bare necessities of life. “In keeping with the imperative of reconciliation, they ought to be understood from the perspective of that (particular) First Nation government,” they wrote. This is where the top court began to redefine the test for advance costs.
But the test for impecuniosity remains a tough one. Four things must be determined, said the top court: What exactly are the "pressing needs?" How much money is needed to fix them? How much money does the requester have? And what will the litigation cost?
The onus, as on any applicant, is on the Beaver Lake Cree to answer all four questions before a new trial judge. It must also prove that it's tried to find money from alternative sources, such as fundraising and loans.
The top court's judgment might seem like a loss for the Beaver Lake Cree.
But Karakatsanis and Brown said they recognized the time and money the band has spent on this 14-year-long case. They made the rare gesture of awarding solicitor-client costs — which are significantly larger than ordinary costs — to Beaver Lake, so the band isn't out-of-pocket for the advanced-costs case before the top court, as well for both courts below.
The judgment notes that solicitor-client costs are only awarded in cases that involve truly exceptional matters of public interest.

Beaver Lake Cree gets new trial in bid for advance court costs

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