We are coming to you today with a variety of important and exciting legal case updates for Beaver Lake Cree Nation, Treaty No. 6. As you likely read in our email to you this week, the Beaver Lake Cree Nation has received a decision from the Alberta Court of the King’s Bench regarding their Advanced Costs Motion.
Since the Beaver Lake Cree filed their Treaty infringement case in 2008, they have spent millions of dollars attempting to move this case forward. In 2018, they filed an application for an Advanced Costs Order, which would require Alberta and Canada to pay a portion of the costs of their Treaty case. The “Advanced” means legal costs paid in advance, no matter who the successful party is after trial, because the party bringing the claim cannot otherwise afford to do so. In making their application, the Beaver Lake Cree Nation had to show the court they met three criteria:
- Their case was likely to be successful when the claim is taken at face value;
- That having the case move forward is in the public interest and is a novel case and;
- The party bringing the application cannot afford the litigation and would be required to abandon the case without the costs being ordered.
During the first application in 2019, Alberta and Canada, during the hearing in 2019, did not argue the first criteria. All parties have admitted from the beginning that the Beaver Lake Cree Nation’s case has merit. If successful, the case will usher in a new wave of First Nations-led governance to protect Treaty 6 territory from tar sands expansion and other industrial developments. In this way, the case is also publically important.
The Beaver Lake Cree Nation was successful at the first instance with the case management judge ordering each party pay $300,000 toward litigation costs each year. However, Alberta and Canada appealed to the Alberta Court of Appeal, and the Court of Appeal set aside the Order. The Beaver Lake Cree appealed to the Supreme Court of Canada (SCC). The SCC ruled in favour of the Beaver Lake Cree Nation, and established a new test to determine whether an applicant “can afford” litigation. It held that, because so much time had passed from the original application hearing, updated evidence was required and the matter needed to be decided based on its new test. The case was remitted back to the trial court, who made the decision that was received on August 30, 2024.
The court held that Alberta is to pay $1.5 million per year to the Beaver Lake Cree Nation for their litigation costs, and the court ordered that this will continue until the litigation is settled or until the trial is complete. Canada had settled its portion of costs before the hearing for $2.6 million. The Beaver Lake Cree Nation is required to pay $150,000 per year towards the litigation as well. If the costs of the litigation extend beyond the money ordered in a given year, it will be up to the Beaver Lake Cree to pay the additional costs.
The funds the Beaver Lake Cree will receive from Alberta and Canada have been hard fought. The application for costs took six years to be adjudicated. We applaud the Beaver Lake Cree’s incredible efforts to increase access to justice for them and all First Nations in Canada as the ACO sets a vital precedent for future cases.
What else has been going on?
Traditional Land Use Study Documents
August was a busy month for the Beaver Lake Cree Nation’s legal team. Earlier this year, in April, a judge found that documents relating to Traditional Land Use Studies, which are research with individual and registered citizen members from the Beaver Lake Cree Nation that show the traditional uses of specific areas affected by industry, can rightly be considered privileged and not be required to turn over to Alberta and Canada.
However, the Defendants filed an appeal of this decision, seeking to have the documents turned over as part of discovery. After 16 years of legal work, the Beaver Lake Cree Nation is trying to move their case through the courts as fast as possible; the Defendants appeal would slow the case down significantly. The Beaver Lake Cree are folding their cards as a result. In the words of the lawyer for the Beaver Lake Cree Nation in a letter to the court from August 15, 2024:
“The Defendants’ appeal of the TLUS Order is another example of conduct that will continue to delay this protracted litigation and add significant cost. In these circumstances, the Defendants’ conduct has left the Beaver Lake Cree with no choice but to limit pre-trial expenditures. Beaver Lake Cree’s focus is on bringing this case to trial as soon as possible so that the Court can determine the merits of the real issue: whether the Defendants have infringed the Beaver Lake Cree’s constitutionally protected Treaty rights.”
The Beaver Lake Cree Nation was required to turn over the documents they wished to protect in order to limit further expenses in preparation for trial.
Scope of Pleadings
Another pre-trial decision was released on August 22, 2024. This decision was in response to applications from Canada and Alberta seeking guidance from the court on the scope of the Beaver Lake Cree Nation’s pleadings. The Crowns argued that any authorizations from the Crown regarding industrial land use and Treaty impacts since 2008 (the year the claim was filed) should not be included in the litigation.
In coming to a decision, the court reviewed the many court hearings and decisions that have been made in respect to this case since it was filed in 2008. The court found that, as intended by the Beaver Lake Cree, the claims regarding land use and Treaty impacts made in their Statement of Claim are for past and future damages arising from those actions already taken by the Crown up to the time of trial.
This decision is important as Alberta and Canada were trying to get off the hook for actions taken since this litigation was filed in 2008. Had Alberta and Canada been successful in limiting the claim to actions and authorizations given before 2008, they would have been able to continue to act without accountability and continue to cause cumulative harm to Treaty No. 6 territory as long as they could delay the litigation.
