It’s not everyday that a First Nation experiences a win in court, especially at the Supreme Court of Canada. Recently Beaver Lake Cree Nation (“BLCN”) received one of these rare wins![1]
It is simply an understatement to label this case as complex. It has been in and out of the courtroom no less than 10 times since BLCN filed their Statement of Claim in 2008. The recent decision of the Supreme Court of Canada demonstrates a significant milestone for all First Nations seeking a label that most of us would fight to avoid: impecunious.
BLCN’s story: how did we get here?
BLCN began their lawsuit against the Provincial and Federal Crowns (“Crowns”) for the cumulative effects of improperly allowing the nation’s lands to be “taken up” (also known as expropriation) for industrial and resource development.[2] Their claim has undergone several edits throughout its time with the case management judge (at the Court of Queen’s Bench), and in 2019 BLCN brought an application in the Alberta Court of Queen’s Bench requesting advanced costs.
BLCN stated that due to their financial restrictions, they could not afford the litigation without receiving advanced costs from the federal and provincial governments due to the enormity of the expected costs - an estimated $5 million at the low end.[3] The length of the scheduled trial - 120 days (trial set to begin in January 2024) [4] and the sheer amount of evidence to be adduced at trial drive the costs of the litigation.
I am 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.[7]
Despite the Crown’s arguments, the case management judge found in favor of BLCN’s request and granted them advanced funds stating that the court 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.”[8]
This is something that so many people fail to remember: Indigenous peoples are disproportionately struggling to sustain basic necessities due to financial disparities when compared to non-Indigenous peoples.[9]
In response to BLCN’s request for advanced costs, the federal and provincial Crowns appealed to the Alberta Court of Appeal stating that the Court of Queen’s Bench justice erred in their ruling, and argued that BLCN had funds available to them that could fund their litigation.[5] In fact, the Crowns argued that BLCN ought to reroute funds from necessary projects like housing and infrastructure despite the financially impoverished circumstance of their community.[6] The logic from the federal and provincial Crowns suggests that the state is above the rule of law: that government actors can deprive First Nations of equitable resourcing, and then deny them access to justice on that basis.
Alberta’s Court of Appeal Disappoints Indigenous Peoples - Again
When the provincial and federal Crowns appealed the case management decision to the Court of Appeal, the decision made by the case management judge was overturned.[10] In their reasons the Court of Appeal stated that there was “insufficient evidence to support a finding of impecuniosity” and that the case management judge “erred in principle to conclude that BLCN was impecunious when it had financial resources but chose to spend them on other priorities.”[11] The BLCN appealed this decision to the Supreme Court of Canada. That Court concluded that the Court of Queen’s Bench was unable to properly assess whether BLCN could qualify for advanced funding because there was insufficient evidence before the court.[12]
The Supreme Court provided guidance now and articulated a test for impecuniosity (extreme poverty) that takes into account the First Nation perspective and reconciliation and recognizes that there may be some circumstances (in which) a First Nation government has some resources but it must allocate those resources to its pressing needs, which the Supreme Court defines broadly.[13]
Beaver Lake Cree Nation - back to the Court of Queen’s Bench - Again
While the decision at the Supreme Court of Canada is considered a “huge win” for Indigenous nations across Turtle Island, it is not a whole victory: it means that BLCN must return to the Court of Queen’s Bench for yet another hearing on whether they will qualify for advanced funding.[14] However, this time, the court must take into account the First Nation perspective and the principles of reconciliation while remembering that First Nations have pressing needs for their very limited resources.[15]
It’s strange when you stop to think about it: for BLCN it was a “huge win” to be recognized as impecunious; impoverished; poor. However, for First Nations communities, this is a “watershed moment”.[16] In fact, “many could use this new framework to access advance costs” which will assist many of the most vulnerable, marginalized people in society when accessing the justice system by removing financial barriers that often prevent them from fighting to ensure their interests are advanced in the legal system.[17]
If anything, Anderson v Alberta 2022 sends a clear message: First Nations communities have a right to be heard, they have a right to access justice, and they have a right to be here.
Until next time,
Team ReconciliACTION YEG
[1] See Anderson v. Alberta, 2022 SCC 6.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] See Anderson v Alberta, 2019 ABQB 746.
[6] Ibid at para 30.
[7] Ibid at para 66.
[8] Ibid.
[9] See generally Prosper Canada Centre for Financial Literacy, “Financial Literacy and Aboriginal Peoples” (November 2015), online (pdf): Prosper Canada <https://www.prospercanada.org/getattachment/f988e655-6033-40b1-8445-cd539bfdcf09/Financial-Literacy-and-Aboriginal-Peoples.aspx>.
[10] See Anderson v Alberta, 2020 ABCA 238.
[11] Supra note 1 at para 14.
[12] Supreme Court of Canada, “Case in Brief: Anderson v Alberta” (March 18, 2022) online: Supreme Court of Canada <https://www.scc-csc.ca/case-dossier/cb/2022/39323-eng.aspx#:~:text=Beaver%20Lake%20then%20appealed%20to%20the%20Supreme%20Court,cannot%20afford%20to%20pay%20its%20legal%20fees%20nonetheless>.
[13]Shari Narine, “Supreme Court Ruling Huge Win for Beaver Lake Cree Nation says lawyer” (March 18, 2022), online: Toronto Star <https://www.thestar.com/news/canada/2022/03/18/supreme-court-ruling-huge-win-for-beaver-lake-cree-nation-says-lawyer.html?rf>.
[14] Ibid.
[15] Ibid.
[16] Aidan Macnab, “SCC ruling on First Nations case could provide framework for funding public-interest suits: lawyer”, (March 18, 2022), online:Canadian Lawyer <https://www.canadianlawyermag.com/practice-areas/litigation/scc-ruling-on-first-nations-case-could-provide-framework-for-funding-public-interest-suits-lawyer/365058>.
[17] Ibid.
Image from: Beaver Lake Cree Nation Archives - APTN News