Case Brief: Anderson v. Alberta, 2022 SCC 6
By Christopher Devlin and Lorenzo Rose
On March 18, 2022, the Supreme Court of Canada released its decision in Anderson v. Alberta, 2022 SCC 6. At issue in this case was whether Canada and Alberta should be required to partially pay Beaver Lake Cree Nation’s legal fees to bring a claim based on their Treaty no. 6 rights.
What this case is about
Beaver Lake Cree Nation (referred to as “Beaver Lake”) is a First Nation band and Treaty No. 6 signatory. In the underlying claim, which was first filed in 2008, it alleges that the Crown infringed Treaty No. 6 by allowing the cumulative effect of industrial development in Treaty 8 territory to interfere with Beaver Lake’s member’s ability to maintain their traditional way of life.
In 2019, the Alberta Court of Queen’s Bench ordered that Canada and Alberta each contribute $300,000 per year to Beaver Lake’s legal fees to assist Beaver Lake to bring the claim.[1] This type of order is known as an “advance costs” award. The Alberta Court of Appeal overturned the advance costs award on appeal.[2] Beaver Lake appealed that decision to the Supreme Court of Canada.
The law of advance costs
An advance costs award requires the defendant(s) to pay a portion of the plaintiff’s legal fees so that the plaintiff can properly prosecute their case against the defendant(s). Advance costs are rarely awarded, as they violate the usual principles that parties are to pay their own legal fees and that costs are only awarded to the successful party. To receive an advance costs award, the plaintiff must meet three criteria:
- The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial — in short, the litigation would be unable to proceed if the order were not made.
- The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it would be contrary to the interests of justice for the opportunity to pursue the case to be forfeited simply because the litigant lacks financial means.
- The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.[3]
If these three criteria are met, the judge may exercise their discretion to make an advance costs order.
The first criterion of this test is often referred to as the impecuniosity requirement. For Indigenous governments bringing litigation related to Aboriginal or Treaty rights, this is often the most difficult part of the test to meet. Most Indigenous governments have at least some access to funds but are not be able to use all of those funds for litigation because they have other responsibilities to meet. Despite this, the Alberta Court of Appeal held in this case that the impecuniosity requirement “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.”[4]
What the Supreme Court decided
The Supreme Court overturned the Alberta Court of Appeal decision and returned the matter to the Court of Queens Bench for a new hearing. The Supreme Court held that the impecuniously requirement is met when the applicant “cannot meet its pressing needs while also funding the litigation.” The Court then established a new four-part process to determine if an applicant meets this criteria: “(1) identify the applicant’s pressing needs; (2) determine what resources are required to meet those needs; (3) assess the applicant’s resources (both assets and income); and (4) identify the estimated cost of funding the litigation.”[5]
The Court also considered what type of expenses could qualify as a “pressing need” of an Indigenous government. The Court held that “pressing needs” will in every case include “the basic necessities of life, including adequate housing, a safe water supply, and basic health and education services,” and may also include “[s]pending to improve standards of living” as well as the Indigenous government’s own priorities, as indicated by past spending.[6] That said, the Court also held that if a responding party challenges whether financial resources are being spent to address “pressing needs”, the applicant may be required to justify the challenged expenditures.
Why this case is important
In this decision, the Supreme Court rejected the Alberta Court of Appeal’s strict application of the impecuniosity requirement to Indigenous governments and confirmed that Indigenous governments can qualify for advance costs while still providing services to their communities. In doing so, this decision recognizes Indigenous governments as governments, with legitimate responsibilities and priorities that should not be pitted against the equally legitimate need to assert Aboriginal rights.
This decision expands the availability of advance costs awards to Indigenous governments who have revenue or assets that could theoretically be used to fund litigation, but which are required for other ‘pressing need’ priorities. In doing so the Supreme Court has increased the ability of Indigenous nations to access the court system to defend their constitutionally-protected Aboriginal or Treaty rights.
[1] Anderson v Alberta (Attorney General), 2019 ABQB 746.
[2] Anderson v Alberta (Attorney General), 2020 ABCA 238 (“Anderson Appeal”).
[3] British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 at 40.
[4] Anderson v Alberta (Attorney General), 2020 ABCA 238 at para 26.
[5] Anderson v. Alberta, 2022 SCC 6 at paras 40-41.
[6] Anderson v. Alberta, 2022 SCC 6 at paras 43-44.