By: Daniel Veilleux & Cynthia Westaway
The petitioners, Coastal First Nations – Great Bear Initiative Society (“CFN”) and Gitga’at First Nation, were successfully awarded special costs from the Province of British Columbia and Northern Gateway Pipelines in the amount of $230,000.
Background
This case is a follow-up to the petitioner’s court challenge concerning the role of the Province in the environmental review process for the Northern Gateway Pipeline.[1]
The Test for Public Interest Special Costs
The Carter v Canada (Attorney General) test for determining whether a litigant is eligible for public interest special costs is threefold.[2] First, the case must involve a matter of public interest that is “truly exceptional” and of “significant and widespread societal impact”.[3] Second, the matter cannot be one of personal, proprietary or pecuniary interest to the litigants.[4] Third, the litigants must not be able to effectively pursue the litigation with private funding.[5]
1) Did This Case Concern “Truly Exceptional” and “Significant and Widespread” Public Matters?
The British Columbia Supreme Court (“Court”) noted that the threshold for meeting this test is high, but that the issues in this case did not fall short of meeting this test.
The Court recognized that this case was the first review of the agreement between the Province and the Federal Government where the Province abdicated decision-making powers. This agreement not only affected the Northern Gateway Pipeline, but also similar projects that would fall within the scope of the agreement in the future.[6] As a result, constitutional division of powers and interpretation doctrines were engaged to determine how the agreement affected Federal-Provincial environmental jurisdiction.[7]
Moreover, this case raised issues concerning the Crown’s duty to consult First Nations where both Federal and Provincial jurisdictions were engaged. This issue went beyond British Columbia and would impact First Nations across Canada.[8]
2) Did This Case Concern Personal, Proprietary or Pecuniary Interest to the Petitioners?
The Court quickly dismissed Northern Gateway’s argument that this case only concerned personal matters to the petitioners by stating that this position was not an accurate statement of the facts nor was it consistent with the Court’s previous ruling on the duty to consult.[9]
The Court recognized that the petitioners represented most of the Northern Central Coastal First Nations, and that the issue concerning the duty to consult was “not a private matter interest only to the Gitga’at nor only to BC First Nations”.[10] Further, the fact that the Gitga’at had Aboriginal rights at stake in the case was not a bar to receiving public interest special costs. The issues raised in this case could transcend the petitioner’s interests and have implications outside of the Province of British Columbia.
3) Could the Petitioner’s Pursue the Litigation with Private Funding?
Neither the CFN nor Gitga’at had sufficient funds to finance the litigation, and the petitioner’s legal counsel agreed to cap their fees and disbursements at $230,000. The petitioners were able to find charitable donors to finance approximately $175,000 of the litigation, although the fees and disbursements at trial were $341,384.35.[11] As such, the petitioners sought full indemnity costs for actual fees and disbursements.
The Court held that the combination of the petitioner’s arrangement to receive capped legal services and to receive charitable donations allowed them to move forward with the litigation, and would not preclude the petitioners from receiving special costs.[12]
However, Northern Gateway contended that if special costs were awarded, that they should be excluded from such an award since private litigants should not get caught in the crossfire of disputes between claimants and public authorities.[13] The Court, once again, quickly dismissed Northern Gateway’s argument by reminding them that they sought to be added as a respondent in order to challenge the constitutionality of the Environmental Assessment Act as it related to the proposed pipeline. This was despite the fact that neither the petitioners nor the Province wished to litigate that issue.[14]
In the end, both the Province and Northern Gateway were jointly liable for the petitioner’s costs in the amount of $230,000.
Why This Case Matters
This case confirms the availability of public interest special costs for First Nations who enforce the Crown’s constitutional obligation to consult on matters of shared Federal-Provincial jurisdiction. Moreover, resource development companies that involve themselves in litigation where First Nations are enforcing their constitutional rights against the Crown may also be liable for special costs.
[1] Coastal First Nations v British Columbia (Environment), 2016 BCSC 34.
[2] Carter v Canada (Attorney General), 2015 SCC 5, [2015] 1 SCR 331.
[3] Coastal First Nations v British Columbia (Environment), 2016 BCSC 804 at para 4.
[4] Ibid.
[5] Ibid.
[6] Ibid at para 16.
[7] Ibid at para 18.
[8] Ibid.
[9] Ibid at para 21.
[10] Ibid at para 22.
[11] Ibid at para 27.
[12] Ibid at para 33.
[13] Ibid at para 34.
[14] Ibid at para 38.