The 20 requirements contained in the province’s new directives on civil litigation involving Indigenous peoples are aimed at ensuring B.C. government lawyers take an approach to litigation that upholds the honour of the Crown and Crown obligations to Indigenous peoples, while seeking negotiated resolutions that uphold Indigenous human rights and Aboriginal rights. The directives say counsel should vigorously pursue all alternative forms of resolution throughout the litigation process, limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence, and that “oral history evidence is a matter of weight, not admissibility.”
“The province respects the right of Indigenous peoples to choose a preferred forum to resolve legal issues, including the courts,” the directives read. “In some instances, matters may require legal clarification or definition, or litigation may be unavoidable. When matters do result in litigation, these new directives instruct counsel to engage honourably and to assist the court constructively, expeditiously and effectively.”
The government also said that a “large and liberal” approach should be taken regarding proper rights holders, and the province will not object to the ability of the Indigenous peoples to advance that litigation through their self-determined representative body after confirming the authority of that entity to represent the rights holder.
B.C. Attorney General David Eby said the province is “working to build a better future than our past by advancing true and lasting reconciliation throughout all aspects of government.”
“It is important to preserve and respect the right of First Nations to advance rights and title through the court system when they choose to do so, while simultaneously recognizing that litigation is designed as an inherently adversarial process that can drive us further apart rather than advance reconciliation,” he said. “My hope for these directives is that they will support government lawyers in minimizing the adversarial divisions of court processes while upholding the rights of Indigenous peoples and promoting equitable resolutions outside of the court system.”
The directives are a part of the province’s work to implement the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which requires British Columbia to take all measures necessary to align provincial laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
Mary Ellen Turpel-Lafond, a professor at the University of British Columbia school of law and former B.C. Representative for Children and Youth, said the province has taken a “serious and historic step to end adversarial denials of the rights of Indigenous peoples in courts, tribunals and all civil proceedings involving Indigenous peoples.”
“The litigation directives will bring necessary shifts in the mindset and approach of lawyers acting on behalf of the Attorney General of British Columbia. We know in the past, endless procedural and technical motions and a blanket denial of rights poisoned relationships,” she said. “The province’s commitment to shift from previous adversarial and denial of rights approaches will bring greater opportunity for mediation, negotiation and settlement of matters.”
Merle Alexander, principal of the Indigenous law group at Miller Titerle & Co., said he was “cautiously optimistic” about the adoption of the directives, but added that a lot depends on the “good faith” approach that is taken to implement them. He noted they are not enshrined in statute and thus not legally binding.
Merle Alexander, Miller Titerle & Co.
The usual approach to litigation with Indigenous peoples is “almost the complete antithesis of reconciliation,” said Alexander.
“The courts force Indigenous peoples to prove almost everything including their existence, because Crown counsel all over the country attack whether they exist as a people and whether or not they are part of a specific nation — and if you are part of a nation, whether or not you have the right you are claiming,” he said. “The burden is so extraordinarily heavily to prove your existence, yet here we are in front of you.”
British Columbia also recently unveiled an action plan to implement the Declaration on the Rights of Indigenous Peoples Act. More information can be found here.
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