Advanced Costs allows the Beaver Lake to continue their challenge of the taking up clause in Treaty 6: Anderson v Alberta (Attorney General), 2019 ABQB 746

On September 30th, 2019, the Alberta Court of Queen’s Bench awarded advanced costs to Beaver Lake Cree Nation (“Beaver Lake”).

Beaver Lake is a Treaty 6 signatory. While purportedly protecting harvesting rights, Treaty 6, like other numbered treaties, contains a clause allowing the Crown to “take up” lands for various purposes. The taking up clause has resulted in an ever-diminishing land base for Beaver Lake and, in 2008, it filed a claim against Alberta and Canada, challenging the cumulative effects of the taking up of land in Beaver Lake traditional territory and the resulting damage on the way of life of Beaver Lake members.

These are rare awards. Only two Indigenous groups have successfully argued for advanced costs before: the Okanagan Indian Band, and the Xeni Gwet’in First Nation.

In finding for Beaver Lake, Madam Justice Browne rejected Alberta’s and Canada’s assertions that First Nations should deplete all of their substantial assets before they can be awarded advanced costs. This is a significant ruling for First Nation communities.

The Decision

Justice Browne found that Beaver Lake Cree Nation was “an impoverished community with substantial deficits in housing and infrastructure and with high levels of unemployment and social assistance…all pressing needs which demand solutions” (para. 30). This finding was crucial in the Courts decision to award advanced costs.

The test for advanced costs, as set out in British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 (“Okanagan Indian Band”) requires claimants to show: (1) that the litigation would be unable to proceed if the order were not made, (2) that the claim be prima facie meritorious, and (3), the issues raised transcend the individual interests of the particular litigant and are of public importance. The Court has discretion to deny advanced costs, even if these criteria is met.

On the first part of the test, Alberta and Canada argued that Beaver Lake must deplete its assets before being awarded advanced costs. However, the Court reviewed Beaver Lake’s financial situation and concluded that despite Beaver Lake having some assets that could fund the litigation, it was not appropriate to require that they deplete these assets given the pressing economic and infrastructure needs of the community.

Justice Browne ruled that “it would be manifestly unfair to either compel Beaver Lake to abandon its claim or to force it into destitution in order to bring the claim forward”. The Court held that Beaver Lake met all the criteria for advanced costs, and Justice Browne exercised her discretion in favour of the award.

Implications

The litigation of aboriginal or treaty rights is particularly costly because it involves extensive documentary and oral evidence, expert evidence and numerous pre-trial motions. Many First Nations experience poverty and a lack of adequate housing and infrastructure in their communities. This economic reality places many communities in a difficult situation where addressing past and present injustices requires sacrificing precious resources.

Justice Browne confirmed that the criteria for advanced costs is a high bar and appropriate “only as a last resort”. Her decision carefully reviewed the difficult situation of Beaver Lake and weighs the need to fund litigation against other pressing concerns. Justice Browne concluded that she was “unwilling to force Beaver Lake leadership to choose between pursuing this litigation and attempting to provide for the basic necessities of life that most citizens take for granted”.

The decision in Anderson v Alberta confirms that First Nations do not need to deplete their assets before they can be awarded advanced costs. This is an important finding.

In our view, the Crown’s position on this issue, had it been accepted by the Court, risked leaving First Nations worse off after an aboriginal or treaty rights case and would be contrary to ongoing attempts at reconciliation.