LAC-LA BICHE, AB: Beaver Lake First Nations – The Supreme Court of Canada granted leave to appeal the decision of the Alberta Court of Appeal overturning Beaver Lake Cree Nations’ partial advanced cost award. After ten years of litigation, including 5 years where Alberta and Canada unsuccessfully tried to strike its claim, the Beaver Lake Cree could no longer afford the litigation. Recognizing it was undisputed that the Beaver Lake Cree are financially impoverished and that its publicly important, meritorious case deserved to be heard, in 2019, the Alberta Court of Queen’s Bench granted the Beaver Lake Cree a partial advanced cost order that would allow it to continue its case to trial. However, in 2020, during the pandemic, Alberta and Canada successfully appealed the decision.

For over ten years, the Beaver Lake Cree Nation has endeavoured, at a cost of $3 million. Half of the funds were from generous donors who understand the importance of these matters being heard by the courts. Knowing that this case rests on environmental justice, health and protection, they continue to support Beaver Lake’s efforts to enforce its Treaty rights, which ultimately protects the environment now and for the generations to come.

It argued the Alberta Court of Appeal applied the wrong test in determining whether or not the Beaver Lake Cree could genuinely afford the litigation, and that courts are divided on whether affordability means the Nation must exhaust all funds potentially available, including by liquidating assets, or whether other priorities the Nation has for the funds must be considered. The Beaver Lake Cree argued clarity from the Supreme Court was required on how the test for advanced costs applies to a First Nation government charged with managing poverty. In considering whether a First Nation can afford to litigate a meritorious and publicly important constitutional rights case, the court must consider that it is not open to a First Nation government to exhaust all the Nation’s available funds in favour of a singular cause. Rather, affordability requires consideration of the reasonable choices a First Nation government is required to make to ensure its community endures, and its members are not left destitute. The Nation will argue the partial advanced costs award should be restored so a decision on its novel Treaty Rights case can be rendered.