By Eric Epp
Recently, in Anderson v Alberta, the Supreme Court refined the test for impecuniosity when determining whether to award advance costs in litigation pursued in the public interest. This is to be given special consideration when it involves First Nations claims in order to pursue reconciliation. The new test allows for impecuniosity to be met even if a First Nation has available funds to support litigation costs but chooses to spend those on pressing community needs.
Previously, in the 2003 Supreme Court of Canada case British Columbia (Minister of Forests) v. Okanagan Indian Band (Okanagan), the Court ruled that advance costs may be awarded in narrow circumstances. The test allowed for advance costs to be ordered if an applicant can prove (1) they genuinely cannot pay for the litigation; (2) the claim is prima facie meritorious; and (3) the issue goes beyond the individual, is of public importance, and remains unresolved.[1] These fees are then paid in advance of the decision regardless of winning or losing.
In Anderson, Beaver Lake First Nation had spent twelve years in litigation due to damages to oil and gas industrial developments on its land. After years of fighting to get its case heard in court (a trial has now been set for 2024) and racking up $3,000,000 in legal fees, it applied for advance costs to be awarded pursuant to the test first considered in Okanagan. The case management judge had ruled in Beaver Lake’s favour, but this decision was overturned at the Alberta Court of Appeal due to Beaver Lake having $3 million in unrestricted funds in its possession which meant it prima facie did not satisfy the legal test for impecuniosity.[2]
In a unanimous decision, the Supreme Court ruled that the Court of Appeal had a too narrow view of the impecuniosity test, especially in light of recent jurisprudence emphasizing reconciliation between the interests, claims, and ambitions of Aboriginal and non-Aboriginal peoples.[3] It is therefore essential to the public interest that litigation is able to play out. The revised impecuniosity test will consider the broad context of a First Nation and analyze the pressing needs from the perspective of the First Nation government. If commitments to fund these pressing needs leave them unable to fund public interest litigation, the threshold for impecuniosity will have been met.[4]
This test would quite clearly be easily met if the choice is between the basics of life and litigation, but importantly, pressing needs are not strictly related to funding the basics of life. The Court explicitly held that pressing needs are to be given a contextual analysis, giving examples such as building a skating rink or promoting First Nations culture that could be a pressing need in a situation.[5] These are types of proactive measures that could combat critically important problems such as loss of culture and the suicide epidemic plaguing some First Nations, which is clearly a pressing need.[6] Holdings such as this are crucial in fostering a judiciary that will focus on developing substantive access to justice, particularly for Indigenous communities.
It would be hard to overstate the importance of this ruling for bringing justice to Indigenous claims. Enforcing Indigenous rights and land claims through the courts is a time consuming and complicated process that often drags on for years. Given the obvious funding imbalance between First Nation groups and the federal government, simply running out of money to enforce a claim is often a live issue. For example, the seminal decision in Tsilhqot’in Nation only came to be after an award for advance costs allowed the First Nation to continue litigation that had gone stagnant.[7]
In Anderson,the Court affirmed that access to justice has an important nexus with s. 35 litigation, but certainly placed limits on how far advance cost orders could be stretched. The Court rejected both a default presumption of impecuniosity in the case of First Nation groups and rejected the threshold of “reasonableness” or “unduly onerous”.[8] Both were rejected by way of a desire to keep this method of access to advance costs as a move of last resort. By prescribing a narrow test for funding public interest litigation against the Crown, the Court seems to have brought a fine balance between acknowledging the need to advance access to justice, especially in an Indigenous context, and not overstepping the constitutional framework separating the judiciary from the legislature that decides how to allocate public funds.[9] The Court is quite cognizant that advance costs cannot become a parallel system of legal aid.
Ultimately, this decision is a resounding win for common sense decision making from the Supreme Court. Although the scope of cases it may be applicable to is narrow, it would be contrary to reconciliatory principles to require First Nations to ignore the many aspects of governance in order to fund litigation. Hopefully this will prevent other First Nations from coming out of litigation with hollow victories.
[1] British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at para 40.
[2] Anderson v. Alberta, 2022 SCC 6 at para 14, [Anderson].
[3] Ibid at para 25.
[4] Ibid at para 38.
[5] Ibid at para 44.
[6] Statistics Canada, Suicide among First Nations people, Metis, and Inuit (2011-2016): Findings from the 2011 Canadian Census Health and Environment Cohort (CanCHEC), by Mohan B. Kumar & Michael Tjepkema, Catalogue no. 99-011-X2019001 (Ottawa: Statistics Canada, 28 June 2019) <https://www150.statcan.gc.ca/n1/en/pub/99-011-x/99-011-x2019001-eng.pdf?st=TpY3Z60E> [https://perma.cc/FB2N-7YME] at 7-8.
[7] Kate Gunn & Bruce McIvor, Footing the Bill: The Supreme Court Weights in on the Costs of Indigenous Litigation in Canada” (15 April 2021), online: First Peoples Law <https://www.firstpeopleslaw.com/public-education/blog/footing-the-bill> [https://perma.cc/22FU-DVM6].
[8] Anderson, supra note 2 at paras 35 – 37.
[9] Ibid at para 22.
The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.