Alberta's highest court has overturned an order that would have required the provincial and federal governments to each pay advance legal costs of $300,000 per year to a First Nation fighting for control of its traditional lands.
For more than a decade, Beaver Lake Cree Nation has been embroiled in a court battle with the province and the federal government over what it argues are the cumulative effects of industrial development, mainly oil and gas wells, on its traditional land and way of life.
In a September 2019 decision, Court of Queen's Bench Justice Beverly Browne made a rare ruling in favour of advance costs, ordering Alberta and Canada to each contribute $300,000 per year to Beaver Lake's legal bills – an amount matching the sum the First Nation itself is expected to continue contributing annually. The governments were ordered to continue to pay until the trial ends or the litigation is otherwise resolved.
"In my view, 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," Browne wrote.
But in a June 15 ruling, the Alberta Court of Appeal set aside the costs order, ruling that Browne had based it on an error in law in applying the legal tests to the facts.
The appeal court panel found that Beaver Lake Cree Nation has "at least $6 to $7 million presently available" to fund litigation, "with significant further cash flow expected between now and the trial."
'The award was unreasonable'
The appeal court judges also noted that the First Nation has not applied for loans to fund the litigation, even though it has assets that could possibly be used as collateral.
"Given the resources available to the respondents, the award was unreasonable," the appeal court panel said in its judgment. "The appeals are allowed and the order is set aside."
The appeal court judges further noted that the original order required the First Nation to contribute at least $300,000 per year toward the litigation, alongside the similar contributions from the Alberta and federal governments.
"That implicitly finds that Beaver Lake Cree Nation is able to afford $300,000 per year of expenditure from its own resources," the appeal court judges said. "The contributions of the two governments should therefore have been limited to some contribution to reasonable expenses over that threshold, to a suitable maximum."
In addition, the appeal court judges noted that a $2.97-million settlement on a resolved claim, received by the First Nation in December 2019, "is itself sufficient to preclude the award."
The First Nation, about 200 kilometres northeast of Edmonton, has an on-reserve population of about 400 people.
'That is not reconciliation'
The appeal court's reversal means Beaver Lake Cree Nation will have to make difficult decisions, said Crystal Lameman, government relations adviser and treaty co-ordinator.
She said it is disheartening to contrast the federal government's public pledges of support for Indigenous communities with the federal Crown's courtroom arguments about the realities of her community's poverty.
"That is not honourable, and that is not reconciliation, and that is the truth about what is happening in that courtroom," she said in an interview this week.
The litigation deals with the cumulative effects of development in the Beaver Lake traditional territory and the damage done to the way of life of the Beaver Lake Cree Nation.
In the appeal, Canada and Alberta did not challenge the merit of the claim or the public interest of the case — two of the three necessary criteria for an advanced cost award to be considered. But the governments argued Beaver Lake Cree Nation failed to meet the third test of truly having little or no money.
Despite Beaver Lake's arguments that the funds the First Nation does have access to are required to serve other pressing needs in the community and that they remain impoverished, the appeal court judges found that awarding costs would be unreasonable given the sum of Beaver Lake's assets.
"The test is not met if the applicant has funds, but chooses or prefers to spend the funds on other priorities, regardless of how reasonable those other priorities may be," the decision reads.
The appeal court said the First Nation has $2.1 million available in its own heritage trust, with a further $1.5 million available over the next few years.
Nation weighing its options
It also has $2.1 million in an oil and gas trust, plus annual income from producing oil wells. It has other funds available, including $1.4 million in unrestricted funds from Intergovernmental Affairs and Industrial Relations.
The ruling says Beaver Lake would prefer to spend the $2.97 million it received in the resolved claim last December to fund "debt payment, housing and infrastructure construction and possibly distributions to community members."
Lameman said Beaver Lake Cree Nation is weighing its options, and will decide whether or not to ask for leave to appeal to the Supreme Court of Canada.
"When we manage our poverty, our hands are slapped. We're left in the position of having to choose," she said.