The Supreme Court of Canada in Ottawa, on June 17, 2021.Justin Tang/The Canadian Press
The Supreme Court of Canada has made it easier for First Nations to obtain court-ordered subsidies to help pay the costs of their legal challenges against government.
The court ruled Friday that even when a First Nations governing body has millions of dollars seemingly available, judges may still define it as needy and deem the funding of its legal challenges a necessity.
The key principle established by the court is that Indigenous governments have the right to determine their own spending priorities, in recognition of mutual respect and reconciliation. Indigenous governments seeking such funding may first, however, have to file documents in court detailing their spending plans for pressing needs.
The 9-0 ruling came in a case brought by Beaver Lake Cree Nation, a community of 450 residents, against Alberta. The case started in 2008, and will not reach trial until 2024; Beaver Lake estimates its legal costs will amount to $5-million. It accuses the province of violating its treaty rights by allowing its lands to be used for resource and industrial development, compromising its traditional way of life.
Beaver Lake, in northeastern Alberta, has not won funding yet; the Supreme Court sent the question of advance costs back to a lower court to reconsider, and required more detailed evidence. Even so, Karey Brooks, a lawyer for Beaver Lake, applauded the ruling and said the community is confident it can highlight its needs in enough detail, to prove it is “impecunious.”
“Obviously, it wasn’t a full win for Beaver Lake but I think it was a huge victory nonetheless,” she said in an interview. “The court’s articulation of the test for impecuniosity properly takes into account the First Nations perspective and reconciliation.”
Kent McNeil, a legal scholar not involved with the case, said Indigenous peoples have three choices when faced with a dispute: negotiate, go to court or take direct action such as road blockades. “There’s still a lot of litigation going on. If anything, it’s increasing,” he said.
Currently a Fulbright scholar at Yale, the professor emeritus at Osgoode Hall Law School said he sees the ruling as generally positive, especially in its deference to First Nations governments, but said groups applying for money will still need to meet strict conditions.
Judges have inherent authority to make advance orders for costs, to protect access to justice in public-interest cases. Nearly two decades ago, the Supreme Court set down broad parameters for doing so: The group must be needy and the case must have merit and be of public importance.
In the Beaver Lake case, a lower-court judge found that the First Nation was needy, though at the time it had 19 active oil wells and $3.5-million in available funds. The judge ordered the Alberta and federal governments to pay $300,000 a year each toward the community’s legal costs, with the community contributing $300,000 of its own.
The province and Ottawa appealed, saying the community could afford the litigation. The Alberta Court of Appeal ruled 3-0 that Beaver Lake did not have a genuine need for the subsidies because of its assets and revenue.
The Supreme Court said the judge who ordered the advance costs got it wrong because Beaver Lake did not provide enough evidence of its spending plans. But it also said the Alberta Court of Appeal was wrong because it did not look at spending priorities from the vantage point of the Beaver Lake governing body.
“Reconciliation requires a court to consider the pressing needs of a First Nation government applicant from its perspective as a government that sets its own priorities and is best situated to identify its needs,” Justice Russell Brown of Alberta and Justice Andromache Karakatsanis of Ontario wrote for the court.
Some priorities, such as building a skating rink or promoting the culture of a First Nation, may not appear to a court to address a pressing need, the Supreme Court said. But to the First Nations government involved, it may be pressing because it promotes its Indigenous identity or aids youth in crisis.
The court added that judges may take “judicial notice” of background factors, such as a history of displacement and social problems, as it seeks to understand a First Nation’s financial situation and priorities.
The Supreme Court said the awarding of advance costs should be “rare and exceptional,” and that courts should generally be wary about telling governments how to spend public money.
Olga Michailides, a spokeswoman for Alberta’s Indigenous Relations department, said the province is pleased the Supreme Court referred the matter back for a rehearing and provided clarification of the legal test. The federal government did not respond Friday afternoon to a request for comment.
Drew Lafond, president of the Indigenous Bar Association, which intervened in the case, said in his view the Alberta appeal court was “far off base,” and that the Supreme Court ruling will have only a limited effect on new cases.
Senwung Luk, a lawyer who represented the Chiefs of Ontario, which intervened, expressed disappointment with the ruling. (He said he was speaking for himself, not for the Chiefs of Ontario.)
“Right off the bat, there should be a presumption that First Nations need money to go ahead and pursue these pieces of litigation. If there is a very well-resourced First Nation out there, it should be up to the Crown to prove that.”
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.