A landmark Supreme Court victory for Beaver Lake Cree Nation

After months of nail-biting, Beaver Lake Cree Nation won a unanimous Supreme Court Decision that will echo down the years as a landmark ruling on Indigenous access to justice. In a 9-0 decision, the Supreme Court of Canada allowed Beaver Lake Cree’s appeal of the Alberta Court’s decision to set aside an order for advanced costs.

Beaver Lake Cree Nation’s “Defend the Treaties” constitutional challenge, filed in 2008, argues that the cumulative impacts of industry in their territory amount to breach of Treaty. In 2019 Beaver Lake Cree Nation won an Advance Costs order that would have divided trial costs equally among the BLCN, Canada and Alberta.That decision was overturned by Alberta’s appeal court, leaving the Nation struggling to find ways to pay for its groundbreaking Defend the Treaties case. 

While the SCC ruling requires Beaver Lake Cree Nation to go back to the trial judge for a deep dive into BLCN’s financial situation and how it meets the fine-print criteria set out by the court , their appeal is a huge win for access to justice.  On March 18, 2022 the court recognized that respecting Indigenous self-determination — to take care of pressing community needs first, before spending on court costs — must come first  in an era of reconciliation. 

This is a big win for the Nation. In Chief Germaine Anderson’s own words:

““This decision gives us solid ground to stand on when we go back to the lower court to argue for advance costs. As always, my Council and I are hopeful that the Crown defendants will negotiate a resolution to costs. To date, the Crown has refused to negotiate any costs for the litigation, or the issues raised in the Nation’s underlying litigation.”

It is also a big win for RAVEN. 

“What a huge day!  It’s not every day we watch the needle move to advance the law in favour of Indigenous rights,” says our wonderful RAVEN Executive Director Susan Smitten. “We’re really proud to be part of this, and humbled by the never-flagging determination of BLCN’s leadership.”

The judgement advances Indigenous rights significantly.  It says it is not up to the government or the Court to say what is a priority for a Nation when it comes to spending its limited resources. Here’s how the SCC worded it: 

“A First Nation government that has access to resources that could fund litigation may meet the impecuniosity requirement if it demonstrates that it requires such resources to meet its pressing needs. Pressing needs are not defined by the bare necessities of life. Rather, and in keeping with the imperative of reconciliation, they ought to be understood from the perspective of the First Nation government.”

 First Nations should never have to decide between providing basic necessities and going to court to protect fundamental constitutional rights.  This judgement advances the law in providing access to justice for Indigenous groups seeking to uphold their section 35 rights in the face of government-sanctioned industrial land and resource extraction. 

This decision is an honouring of the fact that the Nation is a leader: not only in pushing back against the toxic and dangerous tar sands, but also in advancing the rights of Indigenous Peoples, everywhere, to access justice. We raise our hands high to Chief Germaine and the community for standing strong. And we raise our hands to you for standing alongside. 

Beaver Lake Cree Nation won today. Still, the road ahead will be arduous: Beaver Lake plans to go back to the lower court to prove the Nation meets the SCC criteria, at the same time as they finalize crucial preparations for the main trial next year. Become a monthly donor to see this case all the way through trial.

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