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.
The Principles require a decisive break with the status quo. Specifically, principle 1 calls on the Government of Canada to ensure its relationships with Indigenous peoples are based on the recognition and implementation of the right to self-determination, including the inherent right of self-government. Principle 2 recognizes that reconciliation requires “hard work, changes in perspectives and actions, and compromise and good faith, by all.”
The Principles require the Government of Canada and its officials to change the way they do business. In litigation, this means, above all, approaching issues in a way that does not begin and end with a denial of Aboriginal rights.
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.
#15: A large and liberal approach should be taken to the question of who is the proper rights holder.
Canada respects the right of Indigenous peoples and nations to define themselves and counsel’s pleadings and other submissions must respect the proper rights-bearing collective. Where rights and title have been asserted on behalf of larger Indigenous entities – nations or linguistic groups, for example – and there are no conflicting interests, Canada in the proper case, or where supported by the available evidence, will not object to the entitlement of those groups to bring the litigation. This approach is consistent with principle 1, which affirms the Government of Canada’s renewed nation-to-nation approach. In Aboriginal rights and title cases, Canada will not usually plead that smaller Indigenous entities – clans or extended family groups, for example – are the proper holders of Aboriginal rights and title.
#17: Oral history evidence should be a matter of weight, not admissibility.
Counsel should treat oral history evidence as a matter of weight, not admissibility. Similarly, counsel must take a respectful and cautious approach when testing oral history evidence through cross-examination. To ensure appropriate treatment of this evidence, counsel should consider developing an oral history protocol with opposing counsel.