Directives on Civil Litigation involving Indigenous Peoples
Ministry of BC Attorney-General: 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.
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.
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.”
“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).
Click on the following ink to see full details on the 20 Directives: