AMC to make submissions at the Supreme Court of Canada regarding availability of advance costs for First Nations inherent and constitutional rights cases

November 3, 2021

Treaty One Territory, Manitoba


Treaty One Territory, Manitoba – The Assembly of Manitoba Chiefs (AMC) will appear before the Supreme Court of Canada (SCC) on November 4, 2021, as an intervenor in Germaine Anderson on her own behalf and on behalf of all other Beaver Lake Cree Nation beneficiaries of Treaty No. 6 and Beaver Lake Cree Nation v. Her Majesty the Queen in Right of the Province of Alberta and Attorney General of Canada. The SCC granted the AMC leave to intervene on June 14, 2021, and will be represented by Carly Fox of Fox Fraser LLP. 

Beaver Lake Cree Nation (BLCN) sought advance costs from the court to allow it to continue its action to protect its Treaty 6 rights from unjustified infringement. BLCN’s underlying claim asserts that the cumulative effects of forestry, mining, oil and gas development, agriculture and other development have so profoundly impacted the Nation’s lands and resources that its members can no longer meaningfully maintain their way of life.   

The hearing at the Supreme Court of Canada is an appeal of the Alberta Court of Appeal’s decision to deny BLCN advance costs, overturning the case management judge’s decision, on the basis that the test for advance costs will not be met where there are funds available for the litigation, regardless of a First Nation’s other reasonable spending priorities. BLCN argues that it should not be required to reduce itself to destitution to vindicate its constitutionally protected rights, particularly because it also must meet its governance responsibilities to its Nation, including funding critical infrastructure repairs and replacements, such as the sewer system and water treatment lagoon.” 

AMC Grand Chief Arlen Dumas stated, “This case has the potential to impact many First Nations claims to uphold their inherent and Treaty rights. The AMC will be making submissions that First Nations are unlike any other litigants in that they are in a unique Nation-to-Nation relationship with the federal and provincial Crowns and suffer from the detrimental impacts of over a century of colonization, leading to systemic inequalities that persist today. First Nations often face the impossible choice of whether to spend limited funds on asserting or defending their rights before the Canadian system or addressing the immediate, and often dire, needs of their citizens arising from the intergenerational impacts of colonization.” 

“Canada has unlawfully used its Treaty relationships with First Nations to achieve untold wealth, while First Nations have unjustly grown poor on their own lands. As a result, the federal and provincial Crowns rely on infinite resources to fight First Nations rights litigation, a luxury that is largely unavailable to First Nations. The AMC will make submissions that this disparity needs to be addressed through a contextual approach to the advance costs test,” Grand Chief Dumas concluded. 

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