There’s no legal sunshine for the unsuccessful aboriginal petitioners (Sinixt Nation Society, Representative Body of the Sinixt Nation) who were not only deemed to have no standing back in February, but now the B.C Supreme Court has also awarded costs to both the Crown and Sunshine Logging Ltd. Here’s the decision. It provides an interesting analysis of costs in the context of what constitutes public interest actions.
14 With respect to the exercise of a discretion, the petitioners say that this litigation was undertaken in the public interest and the petitioners had no personal interest in the outcome. They are said to have been motivated by environment and constitutional concerns. They say that the case involved difficult historical, geographic and ethnographic questions. The issues were novel. The Crown and Sunshine are said to have a superior capacity to bear the costs of this litigation. The ligation was not vexatious or abusive and, last, the honour of the Crown should cause it to act in a fashion that will not impede access to justice or the assertion of aboriginal rights, by seeking costs. In support of the latter proposition, they rely, by analogy, upon cases where aboriginal people have sought funding for litigation and they refer in particular to Xeni Gwet’in First Nations v. British Columbia,  4 C.N.L.R. 306 and British Columbia (Minister of Forests) v. Jules, 2001 BCCA 647.
15 In the Xeni Gwet’in First Nations case the Court of Appeal at para. 98 stated:
This Court […] recognized that, even absent a specific fiduciary expectation of funding in a given case between an Aboriginal party and the Crown, the honour of the Crown is still an important constitutional principle that informs the exercise of the inherent jurisdiction to award interim costs.
16 In support of their argument that costs ought not to be awarded against unsuccessful litigants engaged in public interest litigation, the petitioners refer to Guide Outfitters Assoc. v. British Columbia (Information and Privacy Commissioner), 2005 BCCA 368, where the court in considering costs in public interest litigation identified the following factors for consideration:
a) whether the proceeding involves issues, the importance of which extends beyond the immediate interests of the parties;
b) whether the petitioners have a personal, proprietary or pecuniary interest in the outcome;
c) whether the issues have been previously determined by a court;
d) whether the defendant has a clearly superior capacity to bear the costs of the proceeding; and
e) whether the plaintiff has engaged in vexatious, frivolous or abusive conduct.
17 In response to these submissions, the Crown says that the honour of the Crown is not engaged in cases where the litigants do not have status to advance an aboriginal claim and are not entitled to rights. They note that in Guide Outfitters Assoc. v. British Columbia (Information and Privacy Commissioner), the court, after referring to the factors identified by the petitioner noted at para. 8:
Although I consider these factors as useful ones to guide the Court in the exercise of its discretion as to costs, the overarching question is still whether the normal rule is unsuitable on the facts of this case.
18 I find that there is no basis for apportioning costs between defendants and I accept the logic of the court in Husby to the effect that there is no basis for depriving Sunshine of costs arising from its involuntary involvement in a constitutional issue arising out of the exercise of its contractual rights. Sunshine is entitled to its costs.
19 I do not accept the Crown’s position that the honour of the Crown was not engaged in this litigation. The petitioners through their conduct over the years have demonstrated a bona fide interest in advancing the claims of the Sinixt people. In my view, the honour of the Crown gives rise to an obligation to ensure that no measures are taken that will impede efforts on the part of aboriginal people to assert their rights before those rights are determined. In this case, however, no obstacle has been placed in the path of the petitioners prior to the determination of their claim. Now that it has been determined that these petitioners do not have standing to advance the claim they assert, it cannot, in my view, be said that the honour of the Crown precludes a claim for costs.
20 While there may be a public interest in the issues raised in this litigation, the petitioners sought to advance their own interests. Success in preventing the logging they sought to enjoin might, coincidently, have served an environmental end and might have been welcomed by some members of the public other than individuals claiming an interest through their association with the Sinixt. The petitioners, however, did not purport to act on behalf of non-native land owners or anyone who could not claim an ancestral association with the Sinixt.
21 This is not a case where the litigation is principally in the public interest. Further, in my view, it cannot be said to be in the public interest or an appropriate exercise of this court’s discretion to refuse to award costs to a party who successfully establishes that litigants without standing have commenced a civil action and sought an injunction. For that reason, I find that the Crown in also entitled to its costs and order accordingly.