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ARTICLE · 02 APRIL 2021

Supreme Court Of Canada To Revisit Advanced Costs For First Nations

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In January 2021, the Supreme Court of Canada granted leave to Beaver Lake Cree Nation to appeal the Alberta Court of Appeal's decision to reverse a partial advanced costs award.

CanadaLitigation, Mediation & Arbitration
Sonia Eggerman
Sonia Eggerman
Jianna Rieder
Jianna Rieder
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In January 2021, the Supreme Court of Canada granted leave to Beaver Lake Cree Nation to appeal the Alberta Court of Appeal's decision to reverse a partial advanced costs award. This appeal is expected to clarify the test for advanced costs for First Nations litigation against the Crown.

The Supreme Court last extensively considered this issue almost two decades ago, in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71. There, the Court set out a three-part test that a First Nation must meet before it qualifies for advanced costs:

  1. the First Nation must “genuinely” be unable to pay for the litigation;
  2. the claim must have prima faciemerit; and,
  3. the case must raise issues that are of public importance and novel (the “Okanagan  test”).

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