Pictou Landing First Nation v Nova Scotia (Attorney General), 2014 NSSC 61 (CanLII)

This decision was heard in the Nova Scotia Supreme Court.

Pictou Landing First Nation (“PLFN”) is a Mi’kmaw community. In this case, PLFN brought a motion seeking costs in advance of trial from the province, which was represented by the Nova Scotia Attorney General. A court can order a party to pay costs, which means that the party must cover a determined amount of the other party’s legal fees. Usually, the court will order the losing party of a case to pay the winning party’s costs. However, if a court orders a party to pay costs in advance of trial, this means that the party must pay for a determined amount of the other party’s legal fees before the trial. PLFN argued that it should receive costs in advance of the trial by drawing on a number of sources. PLFN based its arguments on the honour of the Crown, its possession of treaty rights as affirmed in the Constitution Act, 1982, the Royal Proclamation of 1763, and the Okanagan test for allowing advanced costs described in British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 (CanLII).

PLFN’s Motion was opposed by the Northern Pulp Nova Scotia Corporation, which argued that if PLFN was given the funds it would use them to fund actions against Northern Pulp. 

The Court decided that it would not award advance costs. It held that PLFN failed the first part of the Okanagan test, which states that the party requesting advance costs must be unable to afford litigation without them and must lack any other realistic option for bringing the issues raised to trial. The Court held that this was not the case for the PLFN.

This decision was later followed by Pictou Landing First Nation v Nova Scotia (Aboriginal Affairs), 2018 NSSC 306(CanLII), and Nova Scotia (Aboriginal Affairs) v Northern Pulp Nova Scotia Corporation, 2019 NSCA 12 (CanLII).

View the Decision on CanLII: https://www.canlii.org/en/ns/nssc/doc/2014/2014nssc61/2014nssc61.html

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