BC’s Civil Litigation Directives: Defences, Double Standards, and Displacement
By Kajia Eidse-Rempel
Overview
On April 21, 2022, British Columbia’s Attorney General released the Province’s ‘Directives on Civil Litigation involving Indigenous Peoples.’ The directives are part of the Province’s action plan under the Declaration on the Rights of Indigenous Peoples Act (DRIPA) and its commitment to developing a new approach to litigation. Going forward, all provincial lawyers must follow the Directives in civil litigation, including quasi-judicial proceedings, involving Indigenous peoples.
The 20 Directives address topics ranging from language and communication to simplifying, expediting and narrowing the scope of litigation to reviewing litigation files upon conclusion “to determine what lessons can be learned.” According to the Province, the core objectives of the Directives are to prioritize and promote resolution, innovation and negotiated settlement, and to reduce the potential for litigation.
Canada’s former Attorney General, Jody Wilson-Raybould, issued a very similar (in fact, practically word-for-word identical in many respects) Directive to guide federal legal approaches to civil litigation involving Indigenous peoples back in January 2019.[1] She was shuffled out of cabinet three days later.
This article reviews three main themes of the Directives that stand out: changes to provincial litigation defence strategies; overlaps and jurisdictional disputes; and limitations periods.
A New Approach to Defending Litigation?
The Directives and accompanying news release begin by acknowledging many of the reprehensible practices that have characterized the Province’s approach to litigation to-date and poisoned its relationships with Indigenous peoples. These practices include: the blanket denial of rights; costly and protracted litigation peppered by endless procedural motions; creating a jurisdictional wasteland wherein each level of government denies responsibility; and advancing legal arguments that rely on untenable colonial doctrines.
The Directives include the following instructions to provincial lawyers regarding litigation strategies:
- In active litigation files, review pleadings, legal positions and litigation strategies to ensure they are consistent with DRIPA (Directive #1).
- At the beginning of a new file, actively discuss how the litigation could affect current and future relationships between the Province, the parties and Indigenous peoples generally (Directive #2).
- Work internally within government on a coordinated approach aimed at resolving issues without litigation (Directive #3) and “vigorously” pursue all alternative resolution processes, including engaging Indigenous specialists and Indigenous legal orders (Directive #4).
- Advise client departments against taking denial of rights positions or advancing weak arguments intended to add unnecessary complexity (Directive #6).
- Controversial legal positions require pre-approval from the Attorney General (Directive #6).
- Avoid unnecessary procedural motions, seek agreement on non-contentious matters, and take “all appropriate measures” to narrow the scope of litigation and minimize costs and financial burdens on Indigenous parties (Directive #7).
- Explicitly state what is or is not in issue and be clear where admissions of fact are being made (Directive #11). If an admission is made that is supported by evidence that the Indigenous party does not already possess, bring it to the attention of the Indigenous party (Directive #12).
- Review any denials made at the outset of litigation and withdraw them “if and when it becomes clear that such denials are inconsistent with the evidence” (Directive #13).
These Directives are steps in the right direction. However, if Canada’s nearly identical commitments are any guidance of what’s to come, it didn’t prevent Canada’s lawyers from fighting tooth and nail to avoid compensating Indigenous children impacted by discrimination in health care services, or from putting forward definitions of “Indian status” that were found to perpetuate, not remedy, injustice.[2]
A Double Standard for Overlaps and Disputes
The Province continues to benefit from a colonial system that has frozen Indigenous land interests at an arbitrary point in time and now pits Indigenous nations against one another and exploits divisions across and within Indigenous communities.
The Directives disappointingly perpetuate the Province’s position that the onus is on Indigenous nations to “resolve any disputes internally” regarding overlapping or competing interests (Directive #5). While affirming Indigenous sovereignty is essential to a respectful relationship, the Province must not shirk its responsibility for creating, prolonging and benefitting from many of these disputes.
The Directives do helpfully state that provincial lawyers must avoid taking positions that could undermine resolution of disputes between Indigenous nations. However, no further guidance is given to help provincial lawyers navigate situations where conflicting interests do exist. Canada’s Directive, by contrast, expressly directs federal lawyers to explore overlaps and conflicts between Indigenous groups and facilitate such discussions. It is dishonourable for the Province to wash its hands of the devastating and ongoing effects of colonial divide and conquer tactics.
The Directives also contain an uninspiring and lukewarm commitment with respect to addressing the Provincial abdication of responsibility that often occurs in jurisdictional disputes between various levels of government. The commitment is to “attempt to address the substance of the litigation as it relates to the areas of provincial responsibility” (Directive #17). “Where possible and appropriate,” the Province “may” have its own internal discussions with other levels of government to resolve jurisdictional disputes.
There is a clear double standard between the Province’s Directives for disputes between levels of government and those related to overlaps and conflicts between and within Indigenous groups. The Directives fall far short of the demands of reconciliation and honourable dealing on these issues.
Limiting (Some) Limitations Defences
The extent to which provincial statutory limitations laws affects Aboriginal rights and title claims under section 35(1) of the Constitution Act, 1982, is an unsettled area of law.[3] The Supreme Court of Canada has held that statutes of limitations do not prevent courts from issuing declarations on the constitutionality of government conduct.[4] However, whether or not the six-year ultimate limitations period under British Columbia’s Limitation Act, S.B.C. 2012, c. 13, bars claims for compensation for such claims has not yet been addressed by the courts.[5]
The Directives acknowledge that Indigenous peoples are not statute-barred from seeking court declarations that government has breached its constitutional obligations. Indigenous peoples just can’t necessarily obtain compensation for those breaches. The Directives leave open that “limitations legislation may apply to Indigenous claims in which consequential relief is being sought.” This has evidently been left to future litigation and the courts to determine. Not exactly an honourable position, but not surprising.
Prior to pleading statute of limitations defences and equitable defences like laches (unreasonable delay), provincial lawyers must obtain approval from the Attorney General (Directive #14). Furthermore, defences of surrender and abandonment will only be raised, with approval of the Attorney General, “in exceptional circumstances and only where there is a principled basis and compelling evidence to support the defence”.
The Directives affirm that arguments based upon the unilateral extinguishment of Aboriginal rights are inconsistent with the honour of the Crown. They will not be advanced except where counsel “believes that Aboriginal rights have been extinguished with the lawful consent and surrender of an Indigenous group” and approval of the Attorney General has been given.
Development or Displacement?
While the Directives are an encouraging development in some respects, they fall far short of the mark in key areas by perpetuating double standards and exploiting grey areas of the law. It remains to be seen whether real change occurs in the courtroom and at negotiation tables.
Some Indigenous groups involved in ongoing litigation have already been advised that the Directives won’t result in actual amendments to the Province’s position. The Nuchatlaht Nation issued a press release expressing betrayal after the Province refused, following the Directives, to revise its legal arguments that Nuchatlaht Nation abandoned its territory, is too small to hold Aboriginal title, and that any title claim it may have was “displaced” (the Province’s latest euphemism for extinguishment).[6]
At the very least, the Directives, like DRIPA and the Province’s corresponding action plan, provide another tool for advocates of Indigenous rights to refer to when provincial actions fall well short of provincial commitments and discourse. They provide another tool for lawyers and staff within the provincial system who want to do the right thing to insist upon more justifiable legal strategies going forward.
DGW Law would be pleased to assist your Indigenous community in reviewing how the Directives may impact upon your existing or evolving legal issues with the Government of British Columbia.
Read the full directives here: https://news.gov.bc.ca/files/CivilLitigationDirectives.pdf
Read BC’s press release here: https://news.gov.bc.ca/releases/2022AG0065-000611
[1] Read our review of the federal Directive here: https://www.dgwlaw.ca/a-new-approach-to-dispute-resolution-with-indigenous-peoples/.
[2] Read our case brief on Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada, 2021 FC 969 here: https://www.dgwlaw.ca/case-brief-canada-attorney-general-v-first-nations-child-and-family-caring-society-of-canada-2021-fc-969/.
[3] The Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, opened the door for provincial laws to infringe upon Aboriginal rights and title. For further analysis of this issue, read John W. Gailus, The Withering of Section 91(24): Is there a “Core of Indianness” Anymore? available here: http://www.dgwlaw.ca/web/wp-content/uploads/2016/10/15-04-30-Conference-Paper-Withering-of-Section-9124-v5.pdf.
[4] Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, para. 144 (“Manitoba Métis Federation Inc”).
[5] Nevertheless, the Supreme Court of Canada has said that the exemption for certain types of Aboriginal rights claims found in many provincial limitations statutes, including British Columbia’s, “is evidence that legislatures are alive to the issues” and that the introduction of ultimate limitation periods was not intended to apply to these claims: Manitoba Métis Federation Inc, para. 251.
[6] Nuchatlaht First Nation Press Release, “Nuchatlaht Nation Feels Betrayed by B.C. Government Hypocrisy”, 22 April 2022, available online: https://www.nuchatlaht.com/ (accessed 4 May 2022).