Top Court Provides Guidance on Advance Costs Awards for Indigenous Rights Litigation

First Nations – not the Courts or the Crown – are best positioned to determine the pressing needs of their communities, according to a recent Supreme Court of Canada decision that offers hope to First Nations fighting to enforce their Treaty rights in court.

On March 18, 2022, the Supreme Court of Canada released its decision in Anderson v Alberta, 2022 SCC 6. This decision has important implications for First Nations seeking advance costs from the Crown to fund public interest litigation, including litigation to enforce Treaty rights.


In 2008, Beaver Lake Cree Nation filed a claim alleging the federal and provincial Crown had infringed its Treaty rights by improperly allowing so much land to be taken up for industrial and resource development. A decade into the legal fight, and after spending over $3 million in legal fees, Beaver Lake Cree Nation said that it could no longer afford to pursue litigation. At that point, the trial was scheduled to begin in January 2024.

In order to be able to proceed with its Treaty infringement claim, Beaver Lake Cree Nation filed an application for advance costs in the amount of $5 million. The purpose of an order for advance costs is to provide the recipient with the funds necessary to help finance the litigation. Previously, the Supreme Court of Canada had set out a three-part test for a First Nation to meet before a court can consider making an order for advance costs:

  1. the First Nation must “genuinely” be unable to pay for the litigation (the “impecuniosity requirement”);
  2. the claim must be meritorious on its face; and,
  3. the claim must raise issues that are of public importance and novel.

For Beaver Lake Cree Nation, the only factor that at issue was whether it had satisfied the “impecuniosity requirement.” The Nation said it was genuinely unable to pay for the litigation: it could not fund both its legitimate and pressing community infrastructure and social needs while also continuing to pursue its legal claim. The case management judge agreed, but her decision was overturned by the Alberta Court of Appeal.

The Alberta Court of Appeal said that if a First Nation has access to financial resources that could be used to fund litigation, but has instead chosen to spend their financial resources on other legitimate and pressing community needs beyond the basic necessities of life, then the First Nation cannot succeed in an application for advance costs. This decision was appealed to the Supreme Court of Canada. The only issue before the Supreme Court of Canada was whether the Crown could be directed to contribute to the costs of Treaty rights litigation when the First Nation has access to financial resources, but has claimed that it must devote those resources to other pressing First Nation priorities.

“Pressing Needs”: Incorporating First Nation Perspective and Reconciliation

The Court unanimously held that a First Nation could meet the impecuniosity branch of the advance costs test even if it has access to financial resources that could fund litigation, as long as it can show that such resources are already devoted to meeting its “pressing needs.” The burden, however, is on the First Nation to show that it genuinely cannot afford to fund its litigation because of its pressing needs, and to demonstrate that those resources are in fact being dedicated to those pressing needs.

The Court set out four factors to guide the analysis on whether a First Nation with available funds genuinely requires advance costs due to its other pressing needs. The reviewing court must be able to: (1) identify the applicant First Nation’s pressing needs; (2) determine what resources are required to meet those needs; (3) assess the applicant First Nation’s financial resources; and (4) identify the estimated costs of funding the litigation.

The Supreme Court explained that “pressing needs” are not limited to the bare necessities of life: rather, this qualification is to be understood from the perspective of the First Nation government and the imperative of reconciliation. This approach requires courts to consider the pressing needs of the First Nation from the First Nation’s perspective as a government that sets its own priorities, and as the decision-maker best situated to identify the First Nation’s needs and allocation of resources.

To demonstrate the pressing needs of a First Nation, regard could be had to what the First Nation has prioritized in the past, records of Crown consultation, negotiations for funding, band council resolutions, and records of internal budgeting meetings. Some pressing needs will be obvious, like expenditures on basic necessities of life such as adequate housing, safe water supply, and basic health care and education services. However, some will be less obvious, such as expenditures to improve standards of living or promote cultural survival. To this end, the Supreme Court noted that certain expenditures on their face may not appear to be a pressing need, but may be considered one when considered in light of the Indigenous government’s goals and community needs:

Certain prioritized expenditures, such as allocating funds to construct a skating rink or to promote the First Nation’s culture, may not appear to a court to address a pressing need on their face. And yet, a community may adduce evidence of how it has prioritized this project because it promotes its Indigenous identity or, for example, an urgent problem of youth in crisis has led it to promote physical health, outdoor activities or traditional cultural practices.

(Anderson v Alberta at para 44)

The Court emphasized that advance costs are a matter of last resort, and applicants must demonstrate that they have made sufficient efforts to obtain funding from alternate sources prior to making an application.

In the case before it, the Court concluded that there was insufficient evidence to determine the costs of Beaver Lake Cree Nation’s pressing needs, and whether the Nation had made sufficient efforts to obtain funding from alternate sources. The matter was sent back to be determined by the Court of Queen’s Bench of Alberta based on a fuller evidentiary record.

The Court said that because this case was “a truly exceptional matter of public interest” it ordered Alberta and Canada to pay the First Nation’s full legal costs to litigate the issue of advance costs.

Significance of the Decision

It has been said that rights are only as good as the ability to legally enforce them. Pursuing litigation to prove or enforce Treaty and Aboriginal rights is costly and routinely takes years or sometimes even decades to resolve. The resource imbalance between the Crown and Indigenous claimants is immense.

This decision builds on recent cases from the Supreme Court of Canada which are heavily informed by the imperatives of access to justice and reconciliation. The hope is the conclusions in this case will limit instances where First Nations are put in the impossible position of having to choose between addressing pressing needs in their community and litigation to enforce the promises made by the Crown in Treaty.

Critically, the decision highlights the need to look at the question of “pressing needs” from the perspective of the Indigenous government. As has long been obvious in relation to non-Indigenous governments, the Court confirmed a First Nation government is best situated to identify needs and priorities of its own community.

The case arguably represents a rejection of a paternalistic approach in which the Courts determine what is best for Indigenous communities or what their priorities ought to be, and a recognition that Indigenous governments are best placed to recognize the pressing needs of their communities.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.