We call upon the Government of Canada, as an obligation of its fiduciary responsibility, to develop a policy of transparency by publishing legal opinions it develops and upon which it acts or intends to act, in regard to the scope and extent of Aboriginal and Treaty rights.
Indigenous Watchdog Status Update
|Current Status||Dec. 31, 2020||NOT STARTED|
|Previous Status||Nov. 9, 2020||NOT STARTED|
Why “Not Started”?
The “Directive on Civil Litigation Guidelines Involving Indigenous Peoples” issued on January 11, 2019, by the Minister of Justice and Attorney General of Canada does not explicitly address “publishing legal opinions.” They do speak in a broader context of open communication to support reconciliation versus litigation.
As of the June 15, 2020 update, the government is still reviewing existing policies and processes. This review of laws and policies will be guided by “Principles respecting the Government of Canada’s Relationship with Indigenous peoples“. These Principles are rooted in section 35, guided by the UN Declaration, and informed by the Report of the Royal Commission on Aboriginal Peoples (RCAP) and the Truth and Reconciliation Commission (TRC)’s Calls to Action. In addition, they reflect a commitment to good faith, the rule of law, democracy, equality, non-discrimination, and respect for human rights. They will guide the work required to fulfill the Government’s commitment to renewed nation-to-nation, government-to-government, and Inuit-Crown relationships.
Directive on Civil Litigation Involving Indigenous Peoples
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.
Although the following Litigation Guidelines do not explicitly address “publishing legal opinions” they do speak in a the broader context of open communication to support reconciliation versus litigation:
#3: Early and continuous engagement with legal services counsel and client departments is necessary to seek to avoid litigation.
Litigation is by its nature an adversarial process, and cannot be the primary forum for broad reconciliation and the renewal of the Crown-Indigenous relationship. One of the goals of reconciliation in legal matters is to make conflict and litigation the exception, by promoting respectful and meaningful dialogue outside of the courts. To achieve this, counsel must engage with client departments and agencies as soon as they become aware of a conflict that may result in litigation. Working with the client and other departmental counsel, counsel must develop a coordinated approach with the aim of achieving a resolution that avoids litigation.
Indigenous groups are entitled to choose their preferred forum to resolve their legal issues; sometimes litigation will be unavoidable. But the relationship between Indigenous peoples and the Crown can be adversely affected by how we conduct this litigation. The conduct of litigation must respect this relationship by pursuing reconciliation and focusing the litigation on those specific issues that cannot be resolved through other forums.
# 4 Counsel should vigorously pursue all appropriate forms of resolution throughout the litigation process
Counsel’s primary goal must be to resolve the issues, using the court process as a last resort and in the narrowest way possible. This is consistent with a counsel’s ongoing obligation to consider means of avoiding or resolving litigation throughout a file’s lifespan. Counsel must engage in these efforts early and often, ensuring that all reasonable avenues for narrowing the issues and settling the dispute are explored. A focus on effective resolution does not require abandoning valid legal positions. Rather, it involves advancing legal positions in a way that ensures the issues are addressed in a principled way that equally considers the implications for the law, government operations, and Canada’s relationship with Indigenous peoples.
#8: All communication and submissions must be regarded as an important tool for pursuing reconciliation.
Written and oral submissions, including pleadings, are a form of communication between the parties, between the Attorney General and Indigenous peoples generally, between the Attorney General and the courts, and between the Attorney General and the public. Canada’s submissions and pleadings must seek to advance reconciliation by applying the Principles.
#11: Overviews must be used to concisely state Canada’s position and narrow the issues.
An overview of Canada’s position, whether in pleadings or in factums, is an important communicative tool. The overview must be used to plainly explain Canada’s position, what is in issue and what is not in issue. As prescribed by the supporting commentary for principle 2, acknowledging wrongs where appropriate and focusing on what is common between the parties may help facilitate reconciliation and narrow the issues.
# 12: To narrow the scope of litigation, admissions ought to be made, where possible.
Statements of fact must reflect a careful approach to admissions. Where historical harms were done, in the appropriate case, the narrative should acknowledge those harms and reflect an awareness that things would be done differently today. Where such acknowledgements are made, counsel must seek approval from the client and, where appropriate, the Assistant Deputy Attorney General.
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.
Principles respecting the Government of Canada’s relationship with Indigenous peoples
The Government will fulfil its commitment to implementing the UN Declaration through the review of laws and policies, as well as other collaborative initiatives and actions. This approach aligns with the UN Declaration itself, which contemplates that it may be implemented by States through various measures.
This review of laws and policies will be guided by Principles respecting the Government of Canada’s Relationship with Indigenous peoples. These Principles are rooted in section 35, guided by the UN Declaration, and informed by the Report of the Royal Commission on Aboriginal Peoples (RCAP) and the Truth and Reconciliation Commission (TRC)’s Calls to Action. In addition, they reflect a commitment to good faith, the rule of law, democracy, equality, non-discrimination, and respect for human rights. They will guide the work required to fulfill the Government’s commitment to renewed nation-to-nation, government-to-government, and Inuit-Crown relationships.
The Government of Canada recognizes that:
- All relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government.
- Reconciliation is a fundamental purpose of section 35 of the Constitution Act, 1982.
- The honour of the Crown guides the conduct of the Crown in all of its dealings with Indigenous peoples.
- Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government.
- Treaties, agreements, and other constructive arrangements between Indigenous peoples and the Crown have been and are intended to be acts of reconciliation based on mutual recognition and respect.
- Meaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights on their lands, territories, and resources.
- Respecting and implementing rights is essential and that any infringement of section 35 rights must by law meet a high threshold of justification which includes Indigenous perspectives and satisfies the Crown’s fiduciary obligations.
- Reconciliation and self-government require a renewed fiscal relationship, developed in collaboration with Indigenous nations, that promotes a mutually supportive climate for economic partnership and resource development.
- Reconciliation is an ongoing process that occurs in the context of evolving Indigenous-Crown relationships.
- A distinctions-based approach is needed to ensure that the unique rights, interests and circumstances of the First Nations, the Métis Nation and Inuit are acknowledged, affirmed, and implemented.
Official Federal Government Response: Sept. 5, 2019
The Government of Canada is committed to renewing the relationship with Indigenous peoples, based on the recognition of rights, respect, cooperation and partnership.
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’s legal approaches, positions and decisions taken in civil litigation involving Aboriginal and treaty rights and the Crown’s obligation towards Indigenous peoples.
The Government of Canada is currently reviewing existing policies and practices on legal opinions including through the lens of broader open government initiatives. Through this review, further options will be developed to address Call to Action 51.