Appeal court reverses rare advance cost award to Alberta First Nation

The province’s highest court has overturned an order that would have required the provincial and federal governments to pay advance legal costs to an Alberta 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 over what it argues are the cumulative effects of industrial development, mainly oil and gas wells, on its traditional land and way of life.

The First Nation, about 200 kilometres northeast of Edmonton, has an on-reserve population of about 400 people. 

The appeal court’s reversal means Beaver Lake Cree Nation will have to make difficult decisions, said Crystal Lameman, government relations advisor and treaty co-ordinator.

Lameman 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.

In a 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 ruling this month, a panel of Court of Appeal of Alberta judges set aside the costs order, ruling that Brown had based it on “an error in law.”

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.

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.

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