Supreme Court of Canada –  3 S.C.R. 371
In this case, the Court considers the financing of Aboriginal law cases, often very expensive. It recognizes that there are situations where it is in the public interest that the government finances the trial.
What conditions must be fulfilled for the courts to exercise their inherent jurisdiction to award interim costs when dealing in Aboriginal law?
Trial judges can award interim costs to Aboriginal peoples when the case is one of public interest, following some conditions (6 judges against 3).
Between: the Crown of British Columbia, as represented by the Minister of Forests
And: Chief Dan Wilson, in his personal capacity and as representative of the Okanagan Indian Band, and all other persons engaged in the cutting, damaging or destroying of Crown Timber at Timber Sale Licence A57614
And: Chief Ronnie Jules, in his personal capacity and as representative of the Adams Lake Indian Band, Chief Stuart Lee, in his personal capacity and as representative of the Spallumcheen Indian Band, Chief Arthur Manuel, in his personal capacity and as representative of the Neskonlith Indian Band, and David Anthony Nordquist, in his personal capacity and as representative of the Adams Lake Indian Band, the Spallumcheen Indian Band and the Neskonlith Indian Band, and all other persons engaged in the cutting, damaging or destroying of Crown Timber at Timber Sale Licence A38029, Block 2
Interveners: Canada, Ontario, Quebec, New Brunswick, British Columbia, Alberta, the Songhees Indian Band, the T’Sou-ke First Nation, the Nanoose First Nation and the Beecher Bay Indian Band (collectively the “Te’mexw Nations”), and Chief Roger William, on his own behalf and on behalf of all other members of the Xeni Gwet’in First Nations government and on behalf of all other members of the Tsilhqot’in Nation
In 1999, the Okanagan Indian Band, the Songhees Indian Band, the T’Sou-ke First Nation, the Nanoose First Nation and the Beecher Bay Indian Band (hereafter the “Te’mexw Nations”) of British Columbia began logging activities on Crown lands without the authorizations pursuant to the Forest Practices Code of British Columbia Act. The harvested timber would have been used to build housing on their reserve, in accordance with an Aboriginal title held by the Te’mexw Nations. The Minister of Forests served the Te’mexw Nations with stop-work orders under the Forest Practices Code of British Columbia Act, and commenced proceedings to enforce the orders.
The Minister asked the Supreme Court of British Columbia to institute the proceeding against the Te’mexw Nations in a trial instead of a summary manner. Since the Te’mexw Nations did not have sufficient funds to prove their claim of Aboriginal title in court, they asked the Court to award them their interim costs (legal fees and disbursements) in advance.
The Te’mexw Nations: The Forest Practices Code of British Columbia Act violates their Aboriginal title on the Crown lands in question. The Supreme Court of British Columbia has the jurisdiction to award them interim costs since they hold a general right of access to justice (implicit in the Charter of Rights and Freedoms and the primacy of the rule of law), their Aboriginal rights are protected under sect. 35 (1) of the Constitution Act, 1982 and they have equality rights under sect. 15 of the Charter.
The Crown: It has no obligation under sect. 35 (1) of the Constitution Act, 1982 to fund First Nations’ assertion of rights and these circumstances did not require the granting of interim costs by the Court.
British Columbia Supreme Court (2000): The case should be sent to trial. The Minister does not have to disburse funds to the bands in advance of the trial.
The British Columbia Court of Appeal (2001): The Te’mexw Nations’ appeal was allowed. The claim of a constitutional right to funding based on the primacy of the rule of law and sect. 35 of the Constitution Act, 1982, is rejected. However, the trial judge had a discretionary power to order interim costs in exceptional circumstances, such as the ones present at trial: the Te’mexw Nations faced severe social problems (unemployment, lack of on-reserve housing and education, budgetary deficit for daily activities) which needed to be addressed before funding costly litigation.
McLachlin, Gonthier, Binnie, Arbour, LeBel, Deschamps
The Court of Appeal’s decision is upheld.
Canadian jurisprudence has recognized the discretionary power of the courts with regard to interim costs. Issues such as access to justice as well as deep inequalities between the parties are important considerations. Another important factor in this case was the public interest. This litigation transcended the interests of the individual case of these bands and had the potential to affect Aboriginal and non-Aboriginal people in Canada.
The criteria for the awarding of interim costs are (1) the party seeking them must be in a genuinely precarious situation leading it to be unable to afford litigation, (2) there is a prima facie (at first sight) existence of its claim, (3) litigation is the last viable option and (4) the issues at trial are of public interest and have not been resolved previously in Canadian courts.
Okanagan is considered to have given much needed help to public interest litigation since the Court expanded the notion of advance cost awards as a way to promote access-to-justice for those lacking sufficient funds to bring issues of fundamental public importance to trial (Bhabha, 2007: 148) The Okanagan test must not be seen as a Court-imposed parallel system of legal aid. It is merely a means of combating injustice against a party and the public in general if interim costs should not have been advanced (Ibid: 151).
Okanagan has been constructed rather strictly: similar orders have been given by courts, but the majority have been reversed on appeal since the public interest group has often failed to prove its financial precarity and special circumstances (Tollefson, 2006: 40). There is still no evidence that funding applications based on Okanagan will overwhelm the judicial system and overly stretch government resources ( Tollefson, 2006: 48).
Test Case Funding Program
Since 1965, the Canadian government has funded test cases that raised significant Aboriginal legal issues. This was made official by INAC in 1983 under the Test Case Funding Program (TCFP hereafter). This program was seen as a way to create judicial precedents that could help INAC in its mission regarding Aboriginal peoples: respecting its legal, statutory and constitutional responsibilities and developing new public policies as a way to avoid litigation and seek out-of-court settlements instead (INAC, 2009: 6). The program has provided much needed financial resources to Aboriginal people seeking access to the courts. According to Aboriginal Affaires, as of 2009, funding under the TCFP had been used in 170 cases, 50 of which were decided in the Supreme Court. The short-term objective of the TCFP is to resolve and clarify the funded case, but in the long term, the federal government sees the TCFP as one of the main contributors to the reconciliation between Aboriginal peoples and the rest of Canadian society (Ibid: 7).
In order to receive funding, applicants must contact either the INAC regional office or its headquarters and communicate some of the case details, such as the legal issue, an estimate of the litigation costs and a provisional schedule. A legal opinion is then asked of Justice Canada as to whether the case at hand could establish a precedent in Aboriginal law. If the Ministry feels that the case could establish a precedent, various branches of the INAC give their insights on the potential effects of the case and make recommendations to the TCFP manager. The Deputy Minister reviews the various briefing notes before he submits the question to the Minister, who has the final say. A contribution agreement is then drafted by the TCFP, the recipient and its legal representation which is managed and renewed, if the need arises, annually (Ibid: 9-10). The program has been renewed until 2014, but its budget has decreased to $750,000 annually (from 1 million). Lawyers are accorded a 150$ an hour rate.
Bhabha Faisal. 2007. Institutionalizing Access-to-Justice: Judicial, Legislative and Grassroots Dimensions, in Queen’s Law Journal 33 (Fall): 139-178.
Gourlay David. 2005. Access or Excess: Interim Costs in Okanagan, in University of Toronto Faculty of Law Review 63 (Winter): 111-143.
Indian and Northern Affairs Canada. 2009. Evaluation of the Test Case Funding Program. Ottawa: Government of Canada. On-line. http://www.ainc-inac.gc.ca/ai/arp/aev/pubs/ev/tcf/tcf-eng.pdf. Consulted December 1, 2009.
Tollefson Chris. 2006. Costs and the Public Interest Litigant: Okanagan Indian Band and Beyond, in Canadian Journal of Administrative Law & Practice 83 (2): 473-514.