We call upon the federal, provincial, and territorial governments to review and amend their respective statutes of limitations to ensure that they conform to the principle that governments and other entities cannot rely on limitation defences to defend legal actions of historical abuse brought by Aboriginal people.
Indigenous Watchdog Status Update
|Current Status||Dec. 31, 2020||NOT STARTED|
|Previous Status||Nov. 9, 2020||NOT STARTED|
Why “Not Started”?
The federal, provincial and territory governments have not initiated any legislative actions to review and amend their respective statutes of limitations. On Jan. 11, 2019 The Minister of Justice and Attorney-General of Canada issued the Directive on Civil Litigation Involving Indigenous Peoples including Litigation Guideline 14 that addresses limitations and equitable defenses. There have been no commitments from the provinces or territories either.
Directive on Civil Litigation Involving Indigenous Peoples including Litigation Guideline
Litigation Guideline #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 defence and where the Assistant Deputy Attorney General’s approval has been obtained.
Official Federal Government Response: Sept. 5, 2019
On January 11, 2019, the Minister of Justice and Attorney General of Canada issued the Directive on Civil Litigation Involving Indigenous Peoples. The directive guides the Government of Canada’s legal approaches, positions and decisions taken in civil litigation involving Aboriginal and treaty rights and the Crown’s obligation towards Indigenous peoples. Litigation Guideline 14 states that limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence.
For example, the Government of Canada makes admissions of fact and admissions relevant to the establishment of Aboriginal rights and title where possible. This results in fewer issues in dispute and signals our respect for, and recognition of, Aboriginal and treaty rights.
Further, in several cases, the decision was made not to appeal or seek judicial review. This acknowledges the Government of Canada’s responsibility to redress past wrongs. The Attorney General’s 2016 Litigation Year in Review includes specific examples of where we took this approach.