A judge in Edmonton has granted Alberta and the federal government permission to appeal an order forcing them to pay Beaver Lake Cree Nation hundreds of thousands of dollars annually to cover legal expenses tied to a lawsuit that started more than a decade ago and is still years away from going to trial.
In 2008, Beaver Lake Cree Nation sued the federal government and the province of Alberta for taking up land in its traditional territory for industrial development and harming its members’ way of life. The cumulative effects of development such as oil sands and forestry, the band argued, thwarted its members’ ability to hunt, fish and trap.
A decade of appeals, amendments and other legal jostling has followed. Beaver Lake won the right to have its case heard, but in 2017 said it was short on cash and needed money to proceed. Last fall, a judge ruled that Canada and Alberta must each pay Beaver Lake $300,000 a year in advance costs until the case wraps up.
Beaver Lake’s lawsuit is significant because, if the small band prevails, governments may have to rewrite the way they evaluate industrial permits for projects such as oil sand mines. But if Beaver Lake cannot afford to pursue its case, the legal merits of measuring cumulative effects against treaty rights in Alberta will remain untested. The fight over whether Alberta and Canada must pay Beaver Lake costs in advance is a side issue in the cumulative effects battle.
Interim cost payments are to be awarded only in rare and exceptional circumstances, according to a precedent set in British Columbia. The applicant must be impoverished and have exhausted all other funding possibilities, and the case must be in the public interest. Both the judge who ordered Alberta and Ottawa to pay Beaver Lake interim costs and the judge who granted the governments the right to appeal relied on this precedent.
Justice Thomas Wakeling of the Alberta Court of Appeal, in a decision released this week, ordered that the appeal process be fast-tracked given the overall battle has been going on for 12 years. The $300,000 payments, which matches what Beaver Lake pays annually to fund the case, could be “extremely onerous” for the public purse, Justice Wakeling said in his written decision.
“Canadians have a legitimate interest in ensuring that reasonable measures are in place to control the expenditure of public resources at the direction of the unelected branch of government,” he wrote. “The magnitude of the annual and potential cumulative amounts of this advance-costs award is obvious.”
Beaver Lake’s lawyer did not return messages seeking comment. Alberta’s lawyer did not return messages. The federal justice department did not reply to a message. The provincial justice ministry didn’t provide an answer when asked whether it would proceed with an appeal. A representative from Beaver Lake did not return a message.
Beaver Lake has told the courts it has spent roughly $3-million by making $25,000 monthly installments on the cumulative effects case. The band’s lawyer, according to legal documents, estimates future legal costs will reach $5-million, equal to the amount Beaver Lake sought when fighting for interim costs. Justice Wakeling said estimates tend to be “far below” actual costs.
The cumulative-effects lawsuit is years away from trial; indeed, lawyers are still producing documents necessary for the case to proceed. The lawyer representing the federal government told Justice Wakeling it could take another 12 years before the case is tried. Alberta’s representative told the judge a trial could be years away, according to Justice Wakeling’s ruling. Beaver Lake’s lawyer estimated it would be two years.
“Given the extremely slow pace at which this action has proceeded to date and the absence of a complex case litigation plan, it is extremely unlikely this trial will start in 2022,” Justice Wakeling said.