Please join us in congratulating Beaver Lake Cree Nation on their recent win for Indigenous access to justice at the Supreme Court of Canada! Beaver Lake secured a landmark victory from the Supreme Court of Canada about Indigenous access to justice when the SCC allowed Beaver Lake’s appeal of the lower Court’s order for advanced costs.
Cumulative Impacts: what this case is about
Beaver Lake filed a lawsuit against the Alberta and federal governments in 2008 arguing that the cumulative impacts of industrial development (like oil and gas) within their territory amounted to a breach of Treaty 6.
In order to cover the costs of bringing the Treaty rights litigation to trial (scheduled for January 2024), Beaver Lake asked for “advance costs” from the Alberta and federal governments. While Beaver Lake won an Advanced Costs order from the Alberta Court of Queen’s Bench requiring Canada and Alberta each to contribute $300,000 annually until the trial was over, this decision was reversed by the Court of Appeal. Beaver Lake then appealed to the Supreme Court of Canada.
The SCC’s Decision
The Supreme Court of Canada refined the law of advanced costs in public interest cases and recognized the “truly exceptional” public interest nature of this case. Beaver Lake could qualify for advance costs if it cannot pay its legal fees, but the Court said that it must go back to the Alberta Court of Queen’s Bench for a new hearing using the new legal test.
The Supreme Court of Canada ruling is a huge win for access to justice. The Court recognized that a First Nation government could have access to resources that meet or exceed litigation costs but if it needs those resources to meet its pressing needs, it will still qualify for advance costs. The Court also recognized Indigenous self-determination by saying that pressing needs must be understood from the perspective of the particular First Nation government, considering the broader context within which a First Nation government makes decisions. The Court confirmed that pressing needs include meeting basic needs – “including adequate housing, a safe water supply, and basic health and education services” – but that pressing needs may also include projects that promote Indigenous identity, physical health, outdoor activities, traditional cultural practices, or any other project that “may not appear to a court to address a pressing need on their face”.
To learn more, please check out the press release here, or enjoy some great media coverage:
CBC News, First Nation suing Alberta and Ottawa could qualify to have legal fees paid in advance, top court rules
Toronto Star, Supreme Court ruling huge win for Beaver Lake Cree Nation, says lawyer
Turtle Island News, Beaver Lake Cree Nation to prove anew it needs funding for suit against feds, Alberta
 Anderson v Alberta, 2022 SCC 6, at para 44.