Overview
On August 30, 2024, the Court of King’s Bench of Alberta (the “Court”) released its decision awarding advance costs in the amount of $1.5 million a year to Beaver Lake Cree Nation, represented by Karey Brooks and Aria Laskin of JFK Law LLP. This decision is greatly important both to Beaver Lake’s litigation and to the development of the law on advance costs.
Background
In 2008, Beaver Lake commenced a claim alleging that Alberta and Canada have authorized land uses without due regard for Beaver Lake’s way of life or for the conditions necessary for the continued meaningful exercise of Beaver Lake’s Treaty 6 rights, including maintaining their way of life.[1]
After spending more than $3 million over 10 years on the case, Beaver Lake – an impoverished community – came to the difficult decision that it could not afford to pay for the litigation, and filed an application seeking advance costs.[2] Advance costs are an extraordinary remedy that are only provided when a case has merit, is unique and publicly important, and cannot be funded by the plaintiff.
In 2019, the Court awarded Beaver Lake advance costs; however, the Alberta Court of Appeal set aside the order on appeal.[3] The case went to the Supreme Court of Canada, which agreed with Beaver Lake that First Nation governments do not need to fully bankrupt their communities or choose between litigation and meeting basic needs to qualify for advance costs.
With that direction, the Supreme Court sent the application back to the Court for re-consideration to determine whether Beaver Lake lacked the funds needed to qualify for advance costs.[4] Prior to the hearing, Beaver Lake and Canada entered into a settlement agreement to provide Beaver Lake with $2.6 million in advance costs.
Reconsideration Decision
In granting Beaver Lake’s application, the Court accepted that Beaver Lake is an “an impoverished community with substantial deficits in housing and high levels of unemployment and social assistance,”[5] and, that from the perspective of the First Nation, there are also other urgent and unmet pressing needs regarding governance and administration, income assistance and food security, mental health, and preservation and restoration of culture and land. The Court accepted that “Beaver Lake is spending its financial resources in the short term on immediate emergency needs as they arise but is also spending its resources on the necessary work of prioritizing and tackling the overwhelming pressing needs facing the Nation.”[6]
After finding that the Nation needed to dedicate its limited resources to those needs, the Court granted the Nation’s request for advance costs. It ordered that Alberta pay $1.5 million a year towards the litigation, and that Beaver Lake contribute $150,000 a year.
The Court concluded its decision with a cautionary note on the evidence required for meeting the test for impecuniosity. The Court observed that in this redetermination application included extensive, contested evidence, including cross-examinations and multiple applications. However, the Court made it clear that “a primary purpose of an advance costs application is access to justice and while it requires clear and sufficient evidence, it is not an inquiry into how a Nation is managing its finances or a bottomless rabbit hole of financial analyses.”[7]
What does this case mean for other litigants?
For Beaver Lake, the decision on this application means that the Nation’s critically important Treaty 6 litigation can finally move towards trial with the urgency that it needs. For other Nations, the Court’s decision provides concrete guidance for other First Nations both regarding the substance of the law on advance costs and the application process.
With respect to substance, the Court’s decision emphasizes the importance of recognizing the autonomy and responsibilities of Indigenous governments, including what constitutes “pressing needs,” the role of First Nation governments in identifying and responding to their communities’ pressing needs, and the availability of advance costs to Nations who have some available funds but need to dedicate those funds to their pressing needs.
Equally importantly, the Court signaled that advance costs applications – a tool for access to justice – cannot be unduly onerous and prohibitive, and that while sufficient evidence needs to be filed, the focus must remain on access to justice. That direction is important for other First Nations facing aggressive Crown defendants trying to engage in the type of intrusive inquiries that the Court has now confirmed are not needed or permitted.
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[1] Anderson v Alberta, 2024 ABKB 524 at para 6 [Anderson ABKB].
[2] Ibid at para 7.
[3] Anderson v Alberta (Attorney General), 2020 ABCA 238.
[4] Anderson v Alberta, 2022 SCC 6 [Anderson SCC].
[5] Anderson ABKB at para 66.
[6] Ibid at paras 70, 104.
[7] Ibid at para 127 [emphasis added].