Former Attorney General of Canada Leaves Legacy of a New Approach to Dispute Resolution with Indigenous Peoples
Christopher Devlin and Caitlin Stockwell, Articled Student
January 18, 2019
On January 11, 2019, the former Attorney General of Canada, the Honourable Jody Wilson-Raybould issued a new Directive to guide the Government of Canada’s legal approaches and positions in civil litigation involving Aboriginal and treaty rights. The Directive emphasizes expeditious and collaborative conflict resolution, and has significant implications for both existing and future dispute settlements between Canada and Indigenous peoples. However, three days later, Wilson-Raybould was shuffled out of the Attorney General cabinet position. The question now is whether this cabinet shuffle will affect the implementation of the Directive within the Department of Justice.
Pursuant to her mandate letter from the Prime Minister in 2015, the former Attorney General of Canada was tasked with reviewing the Government of Canada’s conduct in litigation involving Indigenous peoples. She measured Canada’s litigation strategy against Canada’s commitments to Indigenous peoples, the
Charter of Rights and Freedoms, and Canadian values – including the recently published
Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples (“
Principles”). These
Principles lay the foundation for Canada’s renewed relationship with Indigenous peoples, built upon the recognition and implementation of Indigenous rights and guided by the UN Declaration on the Rights of Indigenous Peoples.
The
Directive on Civil Litigation Involving Indigenous Peoples (“Directive”) outlines an approach to guide the decisions of the Attorney General of Canada, as well as guidelines for every Crown litigator engaged in civil litigation regarding section 35 of the
Constitution Act. The Directive provides guidelines intended to direct counsel on how the
Principles must be applied, including:
- Discussion at the beginning of each file to identify the possible effects of litigation on the relationship with Indigenous peoples.
- Review of Canada’s existing legal positions to ensure that they are consistent with the new Directive and Principles.
- Expedient resolution of the issues as a primary goal, using the court process as a last resort.
- Recognition of Aboriginal rights, including Aboriginal title, and no blanket denial of Aboriginal rights.
- Admissions of facts and law relevant to establishing Aboriginal rights and title, wherever possible.
- Respect for the use and admissibility of oral history evidence.
The Directive has important implications for Indigenous peoples engaged in dispute settlement with Canada – not only at the stage of litigation, but in all conflict resolution forums. The Directive identifies litigation as a forum of last resort and advances an approach to conflict resolution that promotes resolution and settlement, consistent with a renewal of the Crown-Indigenous relationship.
Recognizing that Indigenous peoples are entitled to choose their preferred legal forums, the Directive provides specific direction to Crown actors in the context of litigation. Crown litigators must approach civil litigation in a manner that assists the court to constructively and expeditiously reach a just resolution of the issue. The Directive attempts to minimize the adversarial nature of litigation, when it does occur, by instructing counsel to include Indigenous perspectives and identify points of agreement.
Wilson-Raybould was removed as Attorney General of Canada in a controversial Cabinet reshuffling on January 14, 2019. What is unknown as this point is whether her successor will also champion the Directive and change not only the instructions of Crown litigators, but the very culture of the Department of Justice. A renewal of Canada’s justice system is integral to transforming Canada’s relationship with Indigenous peoples.
Devlin Gailus Watson would be pleased to assist your Indigenous community in reviewing how the Directive’s specific guidance and principles may impact upon your existing or evolving legal issues with the Government of Canada, and how expedient conflict resolution may be pursued in a manner that meets your community needs.
Read the full text of the Directive here:
https://www.canada.ca/en/department-justice/news/2019/01/attorney-general-of-canada-issues-directive-on-civil-litigation-involving-indigenous-peoples.html
Featured image: Transformation mask by Clayton Pidcock
