The Supreme Court of Canada is set to hear an application brought by Beaver Lake Cree Nation in a case with implications for First Nations struggling to afford lengthy treaty rights litigation.
Beaver Lake Cree Nation has been locked in a legal battle with Alberta and Canada since 2008. The First Nation says the cumulative impacts, from dwindling caribou herds to polluted waters, of the oil sands and other industrial development on its traditional territory in northeast Alberta violates Treaty Six.
More than a decade and $3 million in legal fees later, the First Nation says it is running out of money to bring the case to trial, which is scheduled for 2024.
The First Nation was hit with a setback last June when the Alberta Court of Appeal denied its application for advanced costs, which would have compelled the provincial and federal governments to help pay for Beaver Lake Cree Nation's legal bill.
But the Supreme Court said Thursday it would review the decision, setting up a ruling that could clarify when a First Nation is entitled to advanced costs.
"It gives the Beaver Lake Cree the opportunity to be that nation to help set that test for future advanced costs applications for other First Nations," said Crystal Lameman, government relations advisor and treaty coordinator with Beaver Lake Cree Nation.
Alberta's Court of Queen's Bench delivered a rare advance cost order in September 2019, splitting the First Nation's estimated $900,000 annual legal fees. Canada, Alberta and Beaver Lake would each pay $300,000 as the case inched its way toward a 120-day trial in January 2024.
But the order was set aside by Alberta's highest court last June with the three-judge panel ruling Beaver Lake Cree had not met what is called the impecunity test. To be eligible for advanced costs, an applicant must demonstrate it "genuinely cannot afford" to pay for litigation, one part of a three-pronged test set out by the Supreme Court in 2003.
In granting the application, the trial judge found it would be "manifestly unjust" to force Beaver Lake to choose between paying for legal fees or pressing community needs such as housing and social assistance. In setting aside that decision, the appeals court ruled otherwise.
"An applicant that has funds but prefers to spend them on other priorities is not impecunious," the judgment read.
Beaver Lake Cree Nation says that reading of the test is too narrow, only making it possible for a First Nations to receive advanced costs when it's exhausted all its money, regardless of the community's needs.
"The Beaver Lake Cree's access to justice would be denied because the nation literally cannot carry the financial burden of this case anymore, plain and simple," Lameman said. "What it ended up being was a drop in the bucket for Canada and Alberta. But for the nation, $300,000 a year was literally what we could afford."
RAVEN Trust, an Indigenous rights group, has helped fundraise about half of Beaver Lake's legal fees to date.
"What it ended up being was a drop in the bucket for Canada and Alberta. But for the nation, $300,000 a year was literally what we could afford." - Crystal Lameman, treaty coordinator with Beaver Lake Cree Nation.
The treaty rights case is thought to be the first to challenge the cumulative environmental, social and cultural impacts of industrial development, with the First Nation arguing that the people have been deprived of their connection to the lands and waters of their traditional territory.
About 95 per cent of Beaver Lake's 38,000 square kilometres of traditional territory has been impacted by development, mainly from oil and gas wells, Lameman said.
The government's legal actions, she says, are at odds with its public calls for reconciliation.
"It's kind of mind-blowing when you put it in that context of Canada's messages about recognizing First Nations conditions in poverty and the systemic issues that they have to face in a pandemic, but at the same time that very government is taking Beaver Lake to court on whether or not the nation is actually impoverished," she said.
The Supreme Court receives around 600 applications for leave every year and only hears about 80 cases. Lameman expects the advance cost case to go before the judges by the end of the year.