Commissioner of the NWT v. Paul

The litigation in which this application was made stems from trespass proceedings commenced by the Commissioner of the Northwest Territories ("NWT") against the defendant, Mr. Clem Paul, in order to compel Mr. Paul to remove a cabin he built without permission on land controlled and administered by the Commissioner just outside Yellowknife. Mr. Paul has brought a defence to these proceedings based on the assertion that he has treaty rights to the land as a member of the "Treaty 11 Métis" and is therefore not trespassing. The Commissioner and Canada take the position that Mr. Paul is precluded from asserting Treaty 11 rights to the land in question through the operation of a modern land claim settlement legislation covering the area. Although orders for advance costs have been successfully obtained in some Aboriginal rights cases such as British Columbia (Minister of Forests) v. Okanagan Indian Band, the Court rejected Mr. Paul's application in large part due to his inability to provide evidence that his litigation would have a significant impact on more than just himself since he either refused or was unable to identify any other members of the group he characterized as "Treaty 11 Métis". As a result, the Court found the only clear negative impact that would result if the matter was unable to proceed due to funding was the impact on Mr. Paul's ability "to build a cabin where he wishes". As a result the Court found that this case did not fall among the "rare and exceptional cases" where justice demands that the questions raised be litigated and advance costs must be ordered for this purpose.