Pictou Landing First Nation will receive no funding from the Government of Nova Scotia for their lawsuit to have Boat Harbour cleaned up and the wastewater facility shut down.
The decision was handed down by Justice James Chipman after hearing evidence and arguments from plaintiff PLFN and defendants that included the attorney general of Nova Scotia, Northern Pulp, Neenah Paper and Kimberley-Clark.
PLFN were seeking payment of costs in advance of trial.
The plaintiff argued that precedent for payment existed in the Okanagan Test, which states that “the party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial – in short, the litigation would be unable to proceed if the order were not made.”
Using the Okanagan Test, set out in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003, the plaintiff must prove that advance costs are a last resort after all other possible funding options have been explored and exhausted.
Evidence came from PLFN Chief Andrea Paul, who stated that a survey of the band members indicated they are living in a very difficult socio-economic situation. She also noted that despite band assets, such as fishing licences and the gas bar/convenience store, PLFN’s net liabilities stood at $3.8 million.
Chief Paul also noted in her affidavit that there are a number of financial challenges to PLFN, including housing shortages, existing housing requiring over $4.5 million in upgrades, infrastructure needs including the requirement for a band administration building, recreation facility, fire station and sidewalks.
The defence argued that since money from the $29 million Boat Harbour Trust Fund has been used to pay for PLFN’s lawyer, it wasn’t clear that the trust couldn’t have been accessed to fund the entirety of the lawsuit.
The Boat Harbour Trust Fund was established in 1993 as compensation for the wrongs Canada committed in allowing the Boat Harbour treatment facility to be established in the first place.
The defence also argued that the approximately 900 acres of woodland that PLFN owns has not been harvested or sold, nor had the option of a mortgage loan on the security of the Band’s $1.6 million in private real property holdings been explored.
“I find PLFN did not exercise the kind of due diligence to demonstrate it is impossible to proceed without an award of advance costs,” noted Justice Chipman in his decision. “In all of the circumstances, PLFN have not satisfied me that they have met the first requirement of the Okanagan test.… I dismiss the motion for advance costs in its entirety.”
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