The battle over the interpretation and implementation of section 35 rights guaranteed by the Constitution Act, 1982 (“Constitution”) has played out primarily in Canadian courts, with Indigenous communities and individuals expending tremendous amounts time and resources trying to prove inherent rights.  In issuing the Directive on Civil Litigation Involving Indigenous Peoples (“Directive”) on January 11, 2019, the federal government has finally conceded that forcing Indigenous communities to pursue acknowledgement of their inherent rights through adversarial litigation with the Crown is unnecessary and antithetical to reconciliation. One hopes that the Directive represents a Canada that is willing to shift gears and adopt an approach to Indigenous-Crown relations that has been absent in the 35 + years since section 35 was first entrenched in the Constitution in 1982.

The Guidelines

The Directive, which was issued and announced by the Honourable Jody Wilson-Raybould, former Justice Minister and Attorney General of Canada, contains 20 litigation guidelines (“Guidelines”) intended to “advance an approach to litigation that promotes resolution and settlement, and seeks opportunities to narrow or avoid potential litigation” involving Indigenous peoples. The Directive is one mechanism through which the federal government is implementing the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples, released by the federal Government on July 14, 2017 to “further the full promise of section 35 of the Constitution Act, 1982 through the recognition and implementation of Indigenous rights”.

The Directive’s four stated objectives are:

1. advancing reconciliation;
2. recognizing rights;
3. upholding the honour of the Crown; and
4. respecting and advancing Indigenous self-determination and self-governance.

The Guidelines range from highly-technical instructions regarding pleadings (e.g. Litigation Guidelines #12 and #13, which state that counsel for the federal government should make admissions of fact in their pleadings, and must not broadly deny Indigenous parties’ statements) to bigger picture instructions regarding reconciliation generally (e.g. Litigation Guideline #2, which states that the federal government’s litigation strategy must reflect a whole-of-government approach, which begins with a consideration of how litigation will affect the relationship between Indigenous peoples and government departments and agencies).

While better late than never, the Guidelines are also indicative of the intensely adversarial political strategy employed by the Crown in litigation involving Indigenous peoples leading up to this point.  For instance, Crown counsel shouldn’t need to be directed to make honest admissions and to avoid broadly denying an Indigenous party’s pleadings – every lawyer in Canada (whether Crown counsel or not) owes a duty to the Court, first and foremost, to assist in the administration of justice, a fundamental obligation that necessitates candour and fairness.

Rights and Title Litigation

In the forward to the Directive, Wilson-Raybould acknowledged that the Courts have had to take the lead in interpreting and developing section 35(1) of the Constitution due to the federal government’s failure to elucidate its purpose and effect in Canadian society. Deprived of meaningful dialogue and productive negotiation with the Crown, the adversarial system has often been all that remains for Indigenous peoples to realize the constitutional protection afforded to their inherent rights: “litigation became a central forum to resolve major issues in the Crown-Indigenous relationship as opposed to a forum of last resort focused on specific areas or issues in dispute”.

Recognizing the federal government’s complicity in this outcome, the Directive acknowledges that “the Government of Canada has often insisted on a court declaration or an agreement before recognizing rights”, despite the fact that rights are inherent and do not need a court declaration to be recognized, and accordingly indicates that, going forward, “[a]dversarial litigation cannot and should not be a central forum for achieving reconciliation”. Rather, Litigation Guidelines #3, #4, and #5 instruct Crown counsel to engage with internal departments to seek to avoid litigation; vigorously pursue all appropriate forms of resolution throughout the litigation process; and whenever possible, recognize Aboriginal rights and title, respectively.

Guideline #5 states that government officials have to start “approaching issues in a way that does not begin and end with a denial of Aboriginal rights”. Of course, this sounds like it will be an enormous time-saver in rights and title litigation; however, the Guideline goes on to state that, “[i]n addition to recognizing rights, counsel must ensure that their submissions and positions do not have the direct or collateral effect of undermining or restraining those rights, including Indigenous peoples’ right to self-determination”. Again, on this surface, this Guideline sounds like a significant advancement in Indigenous-Crown relations, but it may be difficult for Crown to achieve in practice. If, during Aboriginal rights litigation, the Crown acknowledged a Nation’s inherent rights at the outset, the process whereby the right is proven in Court would be bypassed.  The next step, however, would be defining the scope of the right – as Delgamuukw told us, Aboriginal rights fall along a spectrum.  It is difficult to foresee how the Crown will approach this aspect of the Guideline given that litigation often arises because the Crown’s approach is to argue for the most limited possible scope of the right – clearly a direct or collateral effect of undermining or restraining those rights.  This guideline may force the Crown to rethink the approach it has taken in rights and title disputes for decades; or it may prove to be wholly unworkable.

Timelines

The Directive goes on to state that “[w]here litigation is unavoidable…Canada’s approach to litigation should be constructive, expeditious, and effective in assisting the court to provide direction” – a lofty goal given the decades-long Aboriginal rights and title litigation of the past and present, and perhaps not one that will always advance reconciliation either.  There’s no doubt that the members of the Tsilhqot’in Nation would have preferred a shorter litigation timeline than the 24 years it took to receive a final declaration of their Aboriginal title.  The same goes for the Nuu-chah-nulth Nations of the West Coast of Vancouver Island who are headed back to the Court of Appeal in their 16^th year of litigation since filing their original Notice of Civil Claim seeking a declaration of their inherent right to fish commercially – a case that has already gone back and forth from the BC Supreme Court to the BC Court of Appeal to the Supreme Court of Canada several times.  But if the Trans Mountain Expansion Project reconsideration hearing before the National Energy Board, with its mandated timelines unilaterally set by the federal government, has taught us anything, it’s that federal expediency doesn’t always equal efficacy.

Going Forward

It remains to be seen what the Directive will mean for ongoing cases like Ahousaht Indian Band and Nation v. Canada, in which Canada’s approach since 2003 has been anything but “constructive, expeditious and effective” or how rigorously it will be followed by the new Justice Minister and Attorney General of Canada, David Lametti.  Admittedly, it’s hard to be optimistic given the federal government’s reconciliation track record.  Canada’s other promises to implement the United Nations Declaration on the Rights of Indigenous Peoples and to modernize the National Energy Board regulatory process to give greater weight to Aboriginal traditional knowledge have provided cold comfort to those already engaged in litigation with the Crown who have not seen these promises incorporated as their cases move forward.

Hopefully, it will not take over 35 years of Aboriginal rights and title litigation to find out.