Province of British Columbia Issues New Litigation Directives for Civil Matters with Indigenous Peoples

City of Vancouver

By Melanee Bryniawsky

On April 21, 2022 the Attorney General of British Columbia gave twenty directives to Provincial crown counsel in the Directives on Civil Litigation Involving Indigenous Peoples (the “Directives”). The Directives build off of the framework for the rights recognized and affirmed under section 35 of the Constitution Act (1982) (“Section 35 Rights”) in British Columbia, the Tsilqot’in decision (i.e. Tsilhqot’in v. B.C., 2014 SCC 44), the United Nations Declaration on the Rights of Indigenous Peoples, and the Truth and Reconciliation Commission’s Calls to Action. All counsel are bound by the Directives in the approaches, positions, and decisions taken on behalf of the Attorney General of British Columbia in civil litigation, including quasi-judicial proceedings involving Indigenous Peoples and their Section 35 Rights.

The Directives support the Province of British Columbia’s objective of transforming its relationship with Indigenous people by recognizing that reconciliation is rarely, if ever, achieved in court rooms. They confirm an approach to litigation that prioritizes and promotes resolution, innovation and negotiated settlement, and seeks to narrow or avoid potential litigation. The Directives acknowledge that the work of reconciliation is better suited to political, economic and social processes that involve negotiating, building understanding, and finding new ways of existing and working together, than to a courtroom.

The Directives seek to ensure that government lawyers fulfill the obligations of the Province of British Columbia. Crown Counsel, as representatives of the Province of British Columbia, have legal, fiduciary and constitutional obligations in relation to Indigenous People and their rights. Further, they must uphold the honour of the Crown in all the Province’s dealings with Indigenous people. This requires minimizing the cost and complexity of litigation, and acting with honour, integrity, good faith, and fairness in all work that relates to indigenous people.

A theme in the Directives is increased coordination, consistency, and oversight for all government lawyers in their dealings with Indigenous Peoples. The Directives require solicitors and litigators to understand the Crown’s obligations and ensure their decisions and communications are consistent with them. This includes choices regarding the substance of legal positions taken, as well as how those positions are expressed. When in doubt, counsel ought to seek approval from the Attorney General or guidance from the Ministry of Indigenous Relations and Reconciliation. A complete list of Directives is reproduced below:

1 Counsel must understand and apply the Declarations on the Rights of Indigenous Peoples Act, SBC 2019 c. 44 Act and Draft Principles that Guide the Province of British Columbia’s Relationship with Indigenous Peoples.
2 Litigation strategy must reflect a whole-government approach.
3 Early and continuous engagement with legal services counsel, clients and the Ministry of Indigenous Relations and Reconciliation is necessary as a priority to avoid litigation.
4 Counsel should vigorously pursue all alternative forms of resolution throughout the litigation process.
5 Legal obligation to uphold Aboriginal rights, treaty rights, and Indigenous human rights.
6 Positions must be thoroughly vetted, and counsel must not advise clients to pursue weak legal positions.
7 Counsel must seek to simplify and expedite the litigation as much as possible
8 All communication and submissions must be regarded as an important tool for pursuing reconciliation.
9 Counsel must use respectful and clear language.
10 Legal terminology regarding Indigenous Peoples must be consistent with the Constitution Act (1982), and the United Nations Declaration on the Rights of Indigenous Peoples and be distinctions-based.
11 Overviews should be used to concisely state the Province of British Columbia’s analysis and narrow the issues.
12 To narrow the scope of litigation, admissions ought to be made, whenever possible.
13 Denials must be reviewed throughout the litigation process.
14 Limitations and equitable defenses should be pleaded only where there is a principled basis and evidence to support the defence.
15 A large and liberal approach should be taken regarding proper rights holders.
16 Counsel should seek to ensure that the litigation focuses as much as possible on the substance of a matter rather than which order of government is responsible.
17 Oral history evidence is a matter of weight, not admissibility.
18 Appeals should be limited to important questions of principle.
19 Intervention should be used to pursue important questions of principle.
20 Litigation files should be reviewed upon conclusion to determine what lessons can be learned about the application of these Directives and whether further changes in approach are needed.