January 11, 2019
Directive on Civil Litigation
This Directive promotes our Government’s commitment to reconciliation by establishing guidelines that every litigator must follow in the approaches, positions, and decisions taken on behalf of the Attorney General of Canada in the context of civil litigation regarding section 35 of the Constitution Act, 1982 and Crown obligations towards Indigenous peoples.
When section 35 was included in the Constitution Act, 1982, it was agreed further political work needed to be done regarding its implementation. Attempts to advance understandings and implementation of section 35 occurred over the course of four constitutional conferences in the 1980s, and through two attempts at constitutional amendment. The lack of success in this work contributed to the courts assuming a leading role in defining section 35.
This Directive pursues the following objectives: (1) advancing reconciliation, (2) recognizing rights, (3) upholding the honour of the Crown, and (4) respecting and advancing Indigenous self-determination and self-governance. These objectives, and the guidelines for litigation counsel they promote, are interrelated.
#5: Recognizing Aboriginal rights advances reconciliation.
As specified in Litigation Guideline #12, this Guideline requires counsel to recognize Aboriginal rights, including Aboriginal title. In this period of transition – as a new recognition and implementation of rights framework is being developed and implemented – rights must be recognized where they can be recognized.
The effect of recognition will often be avoiding or substantially narrowing litigation. Where Aboriginal title and rights are proposed to be denied, counsel must seek direction on the proposed position from the Assistant Deputy Attorney General.
In 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.
#12: To narrow the scope of litigation, admissions ought to be made, where possible.
In pleadings, facts that are known to support the statements in the Indigenous party’s pleading and that may advance reconciliation should be explicitly stated and not just admitted where appropriate. For example, instead of only listing those paragraphs with such facts in a generic statement of admission, counsel should affirmatively plead those facts:
In response to paragraph x of the statement of claim, since at least the date of contact, the plaintiffs and their ancestors have lived at various sites in the vicinity of the identified area.
Counsel should make admissions of fact and identify areas of agreement on the law relevant to establishing Aboriginal rights and title or other issues in the litigation wherever possible. Such admissions narrow the issues in dispute, and signal Canada’s respect for and recognition of Aboriginal rights, as required by principle 2.
For example, where the scope, but not the existence, of Aboriginal title or rights is at issue, Canada will not simply deny the title or rights. This may include litigation where the existence of Aboriginal title or rights is not disputed, but the area is unknown or may overlap with the territory of other Indigenous groups that are not parties to the litigation. In such cases, counsel should make meaningful admissions relevant to the establishment of title and recognition of rights, while requiring the Indigenous party to prove the scope of title and rights.
#13: Denials must be reviewed throughout the litigation process.
Canada’s pleadings must not consist simply of a broad denial of the Indigenous party’s statements in its pleadings, demanding proof of each and every statement. As indicated in Litigation Guideline #12, this is particularly so for statements of Aboriginal title or Aboriginal rights, where the existence of the title or rights may not be in doubt, and only the scope of the title or rights is in issue.
Denials made at early stages of litigation, when the facts may be unknown and when it would be imprudent to admit too much, must be withdrawn if and when it becomes clear that such denials are inconsistent with the available evidence. Counsel should consider whether reconciliation and efficiency may be served by seeking additional time to file a pleading. This may allow for information to be gathered to make certain admissions that would otherwise be denied at this stage.
#14: Limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence.
Extinguishment, surrender, abandonment
The Principles discourage certain long-standing federal positions, including relying on defences such as extinguishment, surrender, and abandonment.
Generally, these defences should be pleaded, only where there is a principled basis and evidence to support the defence. Such defences must not be pleaded simply in the hope that through discoveries or investigation some basis for the defence may be found.
When determining whether such circumstances exist, counsel must consider whether the defence would be consistent with the honour of the Crown. Reconciliation is generally inhibited by pleading these defences.
When considering pleading these defences, counsel must seek approval from the Assistant Deputy Attorney General.
Limitations and laches
In cases where litigation is long delayed, equitable defences such as laches and acquiescence are preferable to limitation defences. However, these defences should also be pleaded only where there is a principled basis and evidence to support the defenceFootnote 21 and where the Assistant Deputy Attorney General’s approval has been obtained.