VIDEO: Inside the rarified world of Advance Costs
Well that was powerful.
On the Wednesday following Beaver Lake Cree Nation’s Supreme Court hearing, we heard about the significance of Advance Cost Orders in Aboriginal title and Treaty rights cases. Karey Brooks, lead counsel for Beaver Lake Cree Nation, gave us a deeper look at the events leading up to last week’s Supreme Court Hearing, as well as the potential this case has to impact future Advance Cost Orders for First Nations across Canada. Lawyer David Robbins offered context and a look back at the Tsilhqot’in Nations successful Advance Cost Order that led to its groundbreaking Title case victory in 2014.
So what exactly is an Advance Cost Order? Well, to paint the full picture, Karey looked back to the start of Beaver Lake Cree Nation’s case against Alberta and Canada. At the time, the Crown believed that a Treaty rights case taking on the massive industrialization of northern Alberta would be so huge and unmanageable that the Nation would never make it to litigation. After years of push-back from Beaver Lake Cree Nation, in 2014 the court ruled that the Nation is entitled to access to justice, regardless of the scope of the Crown’s wrongdoing.
As anyone who has been a part of RAVEN’s efforts to support this case knows, the cost of litigation is immense. Beaver Lake Cree Nation is looking at a $5 million dollar price tag to carry their full case through a multi-year trial.
The question is, how can any First Nations government afford these costs while facing ongoing impacts of colonialism, such as poverty, unemployment and under-funding for basic needs like education, health-care and clean drinking water? With an Advance Cost Order, the court can order that the defendants (in this case the government) pay the cost of the litigation in advance of the trial’s resolution. But an Advance Cost Order is rare and the criteria for who can apply for one is narrow.
In 2003, the Okanagan Indian Band set a new precedent when the court granted them an Advance Cost Order in a claim against the Nation by the BC Minister of Forests. David Robbins told us that the Nation was able to draw a comparison to the way family law deals with marriages in which it is common for two people to have unequal assets. In cases like this, the party with lesser resources can apply for an Advance Cost Order to be able to make it to trial. When looking at claims around Aboriginal Title, the same can be assumed: First Nations governments are operating at a fraction of the budget the provincial or federal government is operating at, and are often outspent by a factor of 100 to 1.
Okanagan Indian Band was successful in its application for an Advance Cost Order, setting a precedent in which the Supreme Court set out a three-part test. For a First Nation to apply for Advance Cost the case itself has to be:
- Publicly important
- The applicant (or the First Nation) has to be impecunious, i.e. too impoverished to afford litigation.
Because the courts have already clearly found that the Defend the Treaties case meets criteria one and two, Beaver Lake Cree Nation’s appeal at the Supreme Court last week was really testing the third question: what does it mean for a First Nations Government to be impecunious? To answer this question, the Nation is asking that the courts be realistic about the burdens First Nations Governments are faced with. If a Nation has to exhaust all its resources on litigation, it cannot sufficiently support the basic needs of its community. A Nation should not have to choose between caring for its citizens and having its rights upheld, especially when — as is the case with Beaver Lake Cree Nation — their very existence and Constitutionally protected Treaty rights are under threat from rapacious industry.
By looking at First Nations whose Advance Cost Orders have been successful, Karey and David were able to give us a better understanding of how the Beaver Lake Cree Nation may be opening up possibilities for other First Nations in claims for Aboriginal Title.
We’re so grateful to Karey and David for sharing their expertise, and for everyone who donated, fundraised, and sent messages of support.
As we wait for the judgement from the Supreme Court, we can rest knowing we’ve done everything in our power to stand with a Nation whose stance against oil sands expansion is a beacon of hope.