Litigation directives uphold Indigenous rights

To better protect the rights of Indigenous Peoples and as a step toward implementation of the Declaration on the Rights of Indigenous Peoples Act (Declaration Act), the Province, in collaboration with Indigenous Peoples, has developed a new approach to litigation.

“For some of our peoples, their entire life was spent fighting colonialism, denial of our rights, and other such hostile approaches by governments in British Columbia and Canada,” said Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs. “It brings me a great sense of satisfaction to see this moment when the attorney general has issued directives that call for the recognition of Indigenous rights, and the end or curtailing of needless and adversarial fights. There is a real opportunity now to resolve matters, working collaboratively, and to remove the enormous burden borne by many Indigenous leaders in British Columbia who had to fight tooth and nail to get recognition, sometimes in decades-long matters. Change was needed, and this will set a new and welcome course. It will not be instant, or easy, but it is change and it is most welcome and appreciated.”

Regional Chief Terry Teegee, B.C. Assembly of First Nations, said: “The litigation directives are a step in implementing measures to meet the objectives of the United Nations Declaration on the Rights of Indigenous Peoples in B.C. The government of British Columbia has fought Indigenous Peoples all the way to the Supreme Court of Canada on many occasions, seeking to deny our rights, and has lost. We think of our leaders like the late Frank Calder and others who stood up for our rights and title and ensured that the proper legal recognition was achieved. The attorney general of British Columbia is doing the right thing to push to change the legal culture of fighting and denying rights. It may not change the system overnight, but this is a welcome and overdue step.”

Core objectives of the directives are to prioritize and promote resolution, innovation and negotiated settlement, and to reduce the potential for litigation.

“The United Nations Declaration on the Rights of Indigenous Peoples requires Crown governments to create new approaches to resolving disputes, and a default to adversarial court fights is no longer appropriate,” said Chief Lydia Hwitsum of the First Nations Summit Political Executive. “The attorney general has made a positive step in creating the litigation directives. We welcome this and believe other changes will follow, including more focus on specialized and appropriate dispute-resolution processes, timely resolution of issues, and other legal steps to ensure that upholding First Nations self-determination, title and rights is a core aspect of the laws of British Columbia. In issuing the litigation directives, the attorney general is demonstrating needed leadership to system change in British Columbia, which will contribute to improved Indigenous-Crown relations and our shared agenda for change.”

The Province respects the right of Indigenous Peoples to choose a preferred forum to resolve legal issues, including the courts. 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.

“British Columbia 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,” said Mary Ellen Turpel-Lafond (Aki-Kwe), professor of law, Peter Allard School of Law, University of British Columbia. “The litigation directives released today 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. 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. Now educators and leaders in the profession must ensure that lawyers receive further training and skills in resolution of these disputes, especially involving Indigenous legal approaches that are beneficial and part of the solution.”

David Eby, Attorney General, said: “We’re 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. 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 Act, which provides the framework for the Province to, in consultation with Indigenous Peoples, take all measures necessary to align provincial laws and undertake an action plan to meet the objectives of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration).

“There are times when our own laws, systems and processes can hobble us in doing what we know is right,” said Murray Rankin, Minister of Indigenous Relations and Reconciliation. “That is why we developed the Declaration Act legislation in the first place: to ensure the human rights of Indigenous Peoples are advanced proactively and tangibly, saving valuable time and resources often spent on litigation. Often, the uncertainty created by litigation can frustrate reconciliation, erode investor confidence, and thwart us working together to achieve a better British Columbia. The directives help eliminate or reduce our time in court even further, so we can work more honourably with Indigenous Peoples to achieve a more inclusive province for us all.”

The Province is committed to advancing reconciliation, guided by the UN Declaration and B.C.’s Declaration Act, and with meaningful consultation and co-operation with Indigenous Peoples. The Declaration Act affirms the application of the UN Declaration to the laws of British Columbia and provides a path forward for decisions affecting Indigenous Peoples to be made in partnership with the Province.

Quick Facts:

• B.C. became the first jurisdiction in Canada to implement the UN Declaration through legislation when it passed the Declaration Act on Nov. 28, 2019.
• In March 2022, the Province released the five-year Declaration Act Action Plan, which includes 89 actions every ministry in government will take to create a better province for Indigenous Peoples.

Learn More:

To find out more about the directives on civil litigation involving Indigenous Peoples, visit: https://news.gov.bc.ca/files/CivilLitigationDirectives.pdf

To find out more about the Declaration Act and its action plan, visit: https://declaration.gov.bc.ca/