Advance Costs and Indigenous Rights at the Supreme Court

Last week we had the privilege of representing the Treaty 8 First Nations of Alberta in their intervention in the Beaver Lake advance costs appeal at the Supreme Court of Canada.  

As we outlined in our earlier post, Beaver Lake will clarify when and under what circumstances courts will require federal and provincial governments to provide funding to First Nations for litigation to protect and enforce their rights under section 35 of the Constitution Act, 1982.

Below is a summary of the points raised in our submissions at the Supreme Court. The full hearing can be viewed here. 


Submissions of the Treaty 8 First Nations of Alberta  

First Nations should not have to demonstrate exceptional financial hardship to qualify for advance costs for their publicly important section 35 litigation.  

  • Advance costs orders benefit the public as a whole. They ensure that in exceptional cases, an applicant’s financial status will not prevent the court from determining an issue of national importance. 
  • Advance costs are particularly important in the context of section 35 litigation, where the public has a recognized, vested interest in advancing the process of reconciliation.
  • The fact that a First Nation chooses to allocate its limited funds to address the needs of its community – including for cultural survival and to fund basic services that most other Canadians take for granted – should not be used as a basis to disqualify the First Nation from advance costs for litigation to protect its section 35 rights.  
  • If this approach was adopted, cases which raise issues of significant public importance would not proceed simply because the First Nation is unable to demonstrate an exceptional level of poverty.  
  • The result would be that issues which go to the heart of section 35 and the objective of reconciliation would not be heard.
  • This is not and should not be part of the test for advance costs.
  • Instead, the Court should reaffirm the importance of advance costs for the determination of section 35 claims, and reject an approach which would require First Nations to choose between protecting their rights and meeting the needs of their communities.

Advance costs should support the resolution of section 35 claims through both negotiation and litigation. 

  • Advance costs orders play a critical role in the resolution of section 35 claims by enabling First Nations to obtain guidance from the courts prior to and during negotiations regarding the interpretation of their section 35 rights, and to enforce their rights when and if negotiations fail.
  • Courts have been clear that negotiation is the preferred means of resolving section 35 claims. 
  • However, negotiated resolutions can only be achieved when both First Nations and the Crown have the opportunity to seek recourse to the courts to clarify and enforce their positions.
  • This is because, as this Court recently recognized in R. v. Desautel, it is the duty of the courts to provide the “authoritative interpretation” of section 35. 
  • Ultimately, reconciliation is achieved through good faith negotiations guided and reinforced by decisions of the courts. 
  • Requiring a First Nation to exhaust all available funds in order to qualify for advance costs would unnecessarily hinder First Nations from obtaining guidance from the courts.
  • It would also impair the courts’ ability to provide input on the nature and scope of Indigenous peoples’ rights and the Crown’s obligations under section 35.
  • The financial means branch of the Okanagan test should be applied in a way that preserves First Nations’ ability to seek guidance from the courts on the interpretation of their section 35 rights, and in turn, supports the process of reconciliation through negotiated agreements between First Nations and the Crown.