Litigation is messy-no one knows this better than Indigenous communities and individuals who have spent countless decades and dollars trying to prove the rights and title they've held since time immemorial. And while "[c]ourts are a necessary pillar in the process of reconciliation",1 reconciliation is almost always better achieved by what doesn't happen in the courts. Too often, civil cases move through the courts at a glacial pace. In matters involving Indigenous rights, time can seem to stand still.
But things are starting to change. In 2019, the former Attorney General of Canada, Jody Wilson-Raybould, released 20 litigation guidelines intended to promote resolution and settlement, and narrow or avoid potential litigation involving Indigenous peoples-more on this here. Yesterday, British Columbia announced its own "Directives on Civil Litigation involving Indigenous Peoples" (the "Directives"). The Directives mark an exciting step towards a new approach to litigation in British Columbia that engages the principles of the United Nations Declaration on the Right of Indigenous Peoples ("UNDRIP"), prioritizes reconciliation, and upholds Aboriginal rights.
What is the Goal?
The Province's stated objectives are to ensure Crown proceedings:
- support the ongoing work of reconciliation;
- fundamentally contribute to transformed and respectful government-to-government relations;
- contribute to meeting the Province's legal and constitutional obligations; and
- minimize costs, complexity, and length of proceedings.2
The Directives promote these objectives by providing that, among other things, the Province will seek, where possible, to avoid litigation and prioritize settlements with Indigenous peoples in all civil proceedings involving their Aboriginal rights. The Directives apply to decisions, approaches, pleadings, and strategies made throughout the litigation process, and must be followed by all legal counsel working on behalf of the Attorney General of British Columbia.
What is the Impact?
The Directives alter the legal landscape of civil litigation between British Columbia and Indigenous peoples in three key ways.
1. They promote the perspective of Indigenous peoples in the legal sphere, a place where Indigenous peoples have historically been largely disregarded.
The Directives elevate the role of UNDRIP and British Columbia's Declaration on the Rights of Indigenous Peoples Act ("DRIPA") in the specific context of civil litigation, which levels the ground on which litigation begins. The foremost directive-Directive #1-requires the Ministry of the Attorney General and its staff to understand and apply DRIPA and the Draft Principles that Guide the Province of British Columbia's Relationship with Indigenous Peoples to ongoing and future litigation. Perhaps its placement at the outset signals the paramount requirement to incorporate and apply UNDRIP to executive, legislative, and judicial action. This is in keeping with the mandate of DRIPA, which creates a binding legal requirement on the Province to make all British Columbia laws consistent with UNDRIP.
The Directives also find space for Indigenous legal orders. Directive #3, for example, requires British Columbia to be "open to alternative resolution processes inclusive of or based on Indigenous approaches, values, and principles, including engaging Indigenous specialists and Indigenous legal orders". Directive #17 similarly affirms the role of oral history evidence.
2. They expressly devalue the role of litigation in the advancement of reconciliation.
It is widely accepted on all sides that litigation-and protracted litigation, at that-frequently severs government-to-government relationships and harms the process of trust-building. Litigation is inherently adversarial. Crown treatment of Indigenous Peoples as adversaries directly conflicts with the honour of the Crown and the fiduciary relationship. As the Supreme Court of Canada noted, "[t]rue reconciliation is rarely, if ever, achieved in courtrooms."3 The Directives encourage the "vigorous" pursuit of negotiated settlements and alternative resolutions, as well as the abandonment of weak legal positions. Further, the Directives state that, whenever litigation is necessary, the Crown's position against Indigenous peoples must "seek to advance reconciliation by upholding the honor of the Crown and applying the Declaration Act and Draft Principles".4 This latter point seems to signal that, in practice, advocating for reconciliation is no longer the sole responsibility of the Indigenous parties to the litigation.
3. The Directives emphasize the role and importance of language.
Numerous directives -such as #8, #9, and #10-point to the need for clarity in legal terminology, respectful engagement, and, ultimately, communication as a critical vehicle for reconciliation. After all, the legal system is a system of words. Historically and currently, much harm has been endured by Indigenous peoples through words uttered and written in the courts; now, it is time for language to play a role in healing.
What's in Store?
The long-awaited Directives recognize that prolonged litigation-whether conducted reasonably or not-serves no one; accordingly, the Directives are a welcome step towards concrete practices that apply the honour of the Crown, the constitutional imperative of reconciliation, and the realization of UNDRIP in the British Columbia court system.
Though their impact remains to be seen, the Directives offer a cautious hope that respecting, resolving, and reconciling our differences will lead to new pathways forward for Indigenous peoples, and ultimately, all British Columbians. It is an absolute certainty that current and future Indigenous litigants will raise the Directives as a sword and shield in the ongoing transformation away from rights denial and towards true rights affirmation.
We're honoured to have supported our client, BC Assembly of First Nations, with this important initiative.
Footnotes
1. Yahey v British Columbia, 2020 BCSC 278 at para 42.
2. Province of British Columbia, "Directives on Civil Litigation involving Indigenous Peoples", online: https://news.gov.bc.ca/files/CivilLitigationDirectives.pdf at pages 5-6.
3. Clyde River (Hamlet) v Petroleum Geo-Services Inc, 2017 SCC 40 at para. 24.
4. The Directives at page 11.
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