The Price of Protecting Rights

Advance costs at the Supreme Court

The Price of Protecting Rights

First Nations are routinely called upon to make difficult decisions about how they should spend limited financial resources. In many cases, these decisions relate to urgent community issues such as access to housing and clean drinking water that most non-Indigenous Canadians take for granted.

At the same time, First Nations are faced with the task of protecting their rights and lands, often in the face of significant pressure from governments and companies seeking to develop Indigenous lands and resources.

In the absence of adequate funding, First Nations are left in the untenable situation of having to choose between addressing the immediate needs of their communities and engaging in costly, time-consuming litigation to ensure the long-term survival of their rights and culture.

Almost twenty years ago, the Supreme Court of Canada sought to address this specific issue when it created the test for advance costs in British Columbia v. Okanagan Indian Band. The test requires governments to pay First Nations’ legal costs in exceptional situations where the case is meritorious and of national importance and cannot proceed without funding. Since its inception, the Okanagan test has proved instrumental in enabling Indigenous groups to advance claims to protect and advance their rights, including the landmark Tsilhqot’in Nation v. British Columbia and Grassy Narrows First Nation v. Ontario decisions.

This fall, the Supreme Court will again address the requirements for advance costs in Beaver Lake Cree Nation’s treaty infringement case. In Beaver Lake Cree Nation v. Alberta, the Court will determine whether the original approach to advance costs still applies, or if the narrower approach endorsed by the Alberta Court of Appeal — which would require First Nations to devote all available funds, including resources needed to support their communities, to the litigation before qualifying for advance costs — is correct.

The appeal will provide important insight into the extent to which Indigenous peoples can rely on Canadian courts as a vehicle to pursue reconciliation. It will also have significant implications for both Indigenous and non-Indigenous people.

Courts have been clear that the reconciliation of the rights and interests of Indigenous peoples is both the fundamental objective of section 35 of the Constitution Act, 1982 and an issue of paramount importance to society as a whole. It is in the public interest — not just of those of the affected First Nation — that Indigenous groups have access to advance costs based on the criteria established in Okanagan in order to ensure that such issues are heard and addressed by the courts. By contrast, the lower court’s approach would undermine this objective by precluding First Nations from seeking recourse to the courts on issues of fundamental public importance.

Upholding the original approach to advance costs could also, paradoxically, lead to a decrease in litigation overall. Confirmation that federal and provincial governments must provide funding to support First Nations’ publicly important section 35 claims in accordance with the criteria established in Okanagan would provide an incentive for the Crown to actively resolve such claims through negotiation, rather than avoiding its obligations through lengthy legal proceedings.

The Beaver Lake appeal presents an opportunity for the Supreme Court to reaffirm the original purpose of advance costs orders — to ensure the prohibitive costs of litigation do not present an insurmountable barrier for Indigenous peoples seeking to protect their rights and lands. A decision rejecting the lower court’s narrow approach would also provide a clear signal that First Nations should not be forced to choose between providing for the day-to-day needs of their members and seeking redress for the longstanding injustices of colonization.