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Judge makes ‘extraordinary’ advance costs order in land rights case

Thursday, October 10, 2019 @ 3:59 PM | By Ian Burns

An Alberta Court of Queen’s Bench judge has ordered the federal government and Alberta’s government to pay advance legal costs in a land rights case, saying the First Nation involved would be forced to end its litigation if she did not.

Beaver Lake First Nation is pursuing a statement of claim against the federal government and the government of Alberta, arguing the “taking up” of land on their traditional territory has damaged their way of life and is in violation of Treaty 6, an agreement signed by the Crown and a number of First Nations in the 1870s. It has been pursuing the action since 2008 and has spent approximately $3 million in legal fees.

Justice B. A. Browne held the “extraordinary” advance costs remedy was justified because she felt it would be “manifestly unjust to either compel Beaver Lake to abandon its claim or to force it into destitution in order to bring the claim forward” (Anderson v. Alberta (Attorney General) 2019 ABQB 746).

“It is undeniable that Beaver Lake is an impoverished community with substantial deficits in housing and infrastructure and with high levels of unemployment and social assistance; these are all pressing needs which demand solutions,” she wrote in the Sept. 30 judgment. “The case before me is sufficiently extraordinary that I should exercise my discretion to grant the application.”

In British Columbia (Minister of Forests) v. Okanagan Indian Band 2003 SCC 71, the Supreme Court ruled a court may award interim costs when a party demonstrates impecuniosity, a meritorious case and issues of public importance. It further refined the test in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue) 2007 SCC 2, which said Okanagan applies only to those few situations where a court would be participating in an injustice — against the litigant personally and against the public generally — if it did not order advance costs to allow the litigant to proceed.

Justice Browne wrote the required elements of the previous tests had been met.

“Beaver Lake leadership has until now had the challenge of managing poverty. Recently, this First Nation is beginning to have some financial reserves,” she said. “The philosophy of the leadership and of the people of Beaver Lake must adopt to the new reality. They can now begin to address some of the deficits that characterize their community.”

Justice Browne ruled Beaver Lake should continue to provide $300,000 a year to the lawsuit, with the federal and Alberta governments each contributing an equal share until litigation is resolved. Both Canada and Alberta resisted the claim for advance costs, arguing Beaver Lake had funds available that could be allocated to legal fees.

Karey Brooks, JFK Law

Karey Brooks of JFK Law, who represented Beaver Lake First Nation, said so many developments have been established on Beaver Lake’s traditional territory they “can no longer meaningfully exercise their way of life.”

“Beaver Lake would be unable to continue with the litigation if it were not for the order. It would have brought their ability to enforce their treaty rights to an end,” she said. “They haven’t felt like government has been prepared to have meaningful negotiations or discussions with them, and so they really saw going to court as a last resort. And if that was taken away from them it would have been just egregious.”

Brooks said Justice Brown applied previously established tests on costs, and added the Crown has significant resources and an obligation to respect treaty rights. She noted the Supreme Court in Grassy Narrows First Nation v. Ontario (Natural Resources) 2014 SCC 48 also awarded advance costs in a treaty rights case.

“When the Crown takes the position as they do here that we don’t agree with the way that Beaver Lake is characterizing their rights, then we need the courts to tell the parties who has got the appropriate interpretation of what these rights mean,” she said. “Otherwise the Crown’s interpretation will prevail because they refuse to deal with a nation on a nation’s understanding of what the rights mean.”

Tim Kenny, spokesperson for the federal Department of Crown-Indigenous Relations and Northern Affairs, said in an e-mail the department has received the decision and is reviewing it.

“As this matter is before the court, it would be inappropriate to comment further,” he said.