We call upon the Government of Canada, provincial and territorial governments, and the courts to adopt the following legal principles:

  1. Aboriginal title claims are accepted once the Aboriginal claimant has established occupation over a particular territory at a particular point in time.
  2. Once Aboriginal title has been established, the burden of proving any limitation on any rights arising from the existence of that title shifts to the party asserting such a limitation.

Indigenous Watchdog Status Update

Current StatusAug. 17, 2020NOT STARTED
Previous StatusJune 15, 2020NOT STARTED

Why “Not Started”?

The “Directive on Civil Litigation Involving Indigenous Peoples” released on Jan. 11, 2019 provides guidance on the Government of Canada’s “litigation strategy” but does not directly address the issues in Call to Action 52 i-ii specific to Aboriginal title.  Very little movement by the provinces and territories on advancing this C2A.

Directive on Civil Litigation

This Directive promotes our Government’s commitment to reconciliation by establishing guidelines that every litigator must follow in the approaches, positions, and decisions taken on behalf of the Attorney General of Canada in the context of civil litigation regarding section 35 of the Constitution Act, 1982 and Crown obligations towards Indigenous peoples.

When section 35 was included in the Constitution Act, 1982, it was agreed further political work needed to be done regarding its implementation. Attempts to advance understandings and implementation of section 35 occurred over the course of four constitutional conferences in the 1980s, and through two attempts at constitutional amendment. The lack of success in this work contributed to the courts assuming a leading role in defining section 35.

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.

Litigation Guidelines

#5: Recognizing Aboriginal rights advances reconciliation.

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.

The effect of recognition will often be avoiding or substantially narrowing litigation. Where Aboriginal title and rights are proposed to be denied, counsel must seek direction on the proposed position from the Assistant Deputy Attorney General.

In addition to recognizing rights, counsel must ensure that their submissions and positions do not have the direct or collateral effect of undermining or restraining those rights, including Indigenous peoples’ right to self-determination.

#12: To narrow the scope of litigation, admissions ought to be made, where possible.

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. For example, instead of only listing those paragraphs with such facts in a generic statement of admission, counsel should affirmatively plead those facts:

In response to paragraph x of the statement of claim, since at least the date of contact, the plaintiffs and their ancestors have lived at various sites in the vicinity of the identified area.

Counsel should make admissions of fact and identify areas of agreement on the law relevant to establishing Aboriginal rights and title or other issues in the litigation wherever possible. Such admissions narrow the issues in dispute, and signal Canada’s respect for and recognition of Aboriginal rights, as required by principle 2.

For example, where the scope, but not the existence, of Aboriginal title or rights is at issue, Canada will not simply deny the title or rights. This may include litigation where the existence of Aboriginal title or rights is not disputed, but the area is unknown or may overlap with the territory of other Indigenous groups that are not parties to the litigation. In such cases, counsel should make meaningful admissions relevant to the establishment of title and recognition of rights, while requiring the Indigenous party to prove the scope of title and rights.

#13: Denials must be reviewed throughout the litigation process.

Canada’s pleadings must not consist simply of a broad denial of the Indigenous party’s statements in its pleadings, demanding proof of each and every statement. As indicated in Litigation Guideline #12, this is particularly so for statements of Aboriginal title or Aboriginal rights, where the existence of the title or rights may not be in doubt, and only the scope of the title or rights is in issue.

Denials made at early stages of litigation, when the facts may be unknown and when it would be imprudent to admit too much, must be withdrawn if and when it becomes clear that such denials are inconsistent with the available evidence. Counsel should consider whether reconciliation and efficiency may be served by seeking additional time to file a pleading. This may allow for information to be gathered to make certain admissions that would otherwise be denied at this stage.

#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 defenceFootnote 21 and where the Assistant Deputy Attorney General’s approval has been obtained.

The Top Ten Uncertainties of Aboriginal Title after Tsilhqot’in

Fraser Institute – Dwight Newman, 2017

In 2014, the Supreme Court of Canada rendered a historic decision on Aboriginal title in the Tsilhqot’in Nation case. For the first time, a Canadian court made a declaration that an Indigenous community owned specifically defined lands in Aboriginal title. Amid all the commentary about the case, there has not been enough attention to date, though, to the legal uncertainties that remain after the decision—and that have even been perpetuated and expanded by the Court’s decision.

Legal uncertainties are often most harmful to the most vulnerable and marginalized within society. The legal uncertainties after the Tsilhqot’in Nation decision include uncertainties for Indigenous communities themselves on how they are per- mitted to use their own land. By not reaching more certainty, the decision may well have caused harm to fledgling Indigenous economies.

Legal uncertainty is of course also highly damaging to investment that would build economic prosperity for all, Indigenous and non-Indigenous British Columbians alike. The present paper tries to assess some of the key legal uncertainties left after the Tsilhqot’in Nation decision. Using a risk analysis, it considers the degree of uncer- tainty left on a number of points in the law and the impact of uncertainty on that point for investment in British Columbia.

The key uncertainties are these:

  • Restraints imposed on Indigenous communities’ use of their own lands through cultural assumptions by the courts;
  • the potential effects of the United Nations Declaration on the Rights of Indigenous Peoples on Canada’s approach to Aboriginal title;
  • remedies applying if a project is commenced on land later subject to Aboriginal title;
  • ownership of subsurface rights on Aboriginal title lands;
  • requirements of the Aboriginal title test;
  • land claims to land previously occupied;
  • scope of justified limits on Aboriginal title;
  • restrictions of Indigenous communities’ use of their own lands through court-imposed rules about future generations’ potential use of the land;
  • impact of Aboriginal title on fee simple (privately owned) land;
  • impact on sovereignty.

https://www.fraserinstitute.org/sites/default/files/top-ten-uncertainties-of-aboriginal-title-after-tsilhqotin.pdf

“Canada’s Prove it approach to Aboriginal Title:

“To uphold the rule of law, the constitutional recognition of Aboriginal title and governance must be meaningfully applied in Crown decision-making”.

Policy Options Politique. Eugene King, Gavin Smith. Feb. 1, 2019

The world watched in early January as an armed RCMP force entered Wet’suwet’en territory and arrested 14 people. The RCMP was enforcing an interim injunction obtained by Coastal GasLink Pipeline Ltd. (a subsidiary of TransCanada Pipelines) to prevent interference with work on its planned natural gas pipeline crossing Wet’suwet’en territory.

On January 6, just prior to the raid, the RCMP released a statement to the media. Part of the original text said:

For the land in question, where the Unist’ot’en camp is currently located near Houston, BC, it is our understanding that there has been no declaration of Aboriginal title in the Courts of Canada. In 1997, the Supreme Court of Canada issued an important decision, Delgamuukw v. British Columbia, that considered Aboriginal titles to Gitxsan and Wet’suwet’en traditional territories. The Supreme Court of Canada decided that a new trial was required to determine whether Aboriginal title had been established for these lands, and to hear from other Indigenous nations which have a stake in the territory claimed. The new trial has never been held, meaning that Aboriginal title to this land, and which Indigenous nation holds it, has not been determined.

The RCMP subsequently called this portion of its media statement “inappropriate” and removed it. Nonetheless, the RCMP’s statement is reflective of a commonly held view that the Indigenous decision-making authority inherent in Aboriginal title, and in an Indigenous nation’s own laws and governance, does not apply until it has been determined in court or recognized by the Crown in an agreement.

This view effectively puts the burden of proof on Indigenous nations to “prove” to state institutions that their pre-existing title and governance exist in order for that title to apply — a view sometimes referred to as the “prove it” approach. This is in stark contrast to the recognition approach, which starts by acknowledging Indigenous rights and title.

More than two decades after the Delgamuukw decision affirmed Aboriginal title, the Crown’s continued pattern of making decisions in the absence of Indigenous consent — without resolving the underlying title and governance issues — undermines the constitutional foundations that are meant to define Canada. Ultimately, this is about much more than a pipeline.

Why is Aboriginal title (still) not being applied on the ground?

There are several factors that have allowed the Crown to continue making decisions that avoid the implications of Aboriginal title and Indigenous governance on the ground over the two decades since the Delgamuukw decision was made. They include the following:

Aboriginal title cases are long and expensive. The millions of dollars (and many years or decades) required to take an Aboriginal title case to trial, and likely through appeals, is prohibitive for many Indigenous nations. For example, the Delgamuukw case was filed in 1984, started trial in 1987 and received its final appeal decision in 1997 (when a new trial was ordered).

The Crown has generally not concluded agreements to recognize Indigenous title and governance. The Supreme Court of Canada has stated that the Crown has a legal duty to “negotiate in good faith” to reach agreements to reconcile assertions of Crown sovereignty with Aboriginal title and rights. However, there has been a widespread and protracted failure by the Canadian state to honourably reach agreements with Indigenous nations regarding exercise of their title and governance.

When it comes to development proposals and other projects, the courts have held the Crown to a standard of consultation, but not consent. Canada’s constitutional law requires that, until Aboriginal title and related rights are “proven” in court or resolved by agreement with the Crown, the Crown has a duty to consult and, in some cases, accommodate Indigenous nations regarding decisions that may impact their title and rights. While this obligation has required the Crown to engage in more dialogue with Indigenous nations, so far it has also continued to permit the Crown to make decisions over their objections.

Official Federal Government Response: Sept. 5, 2019

The Government of Canada has moved to an approach to Indigenous relations that is grounded in the recognition of rights. This means not forcing First Nations, Inuit and Métis rights-holders to use the courts to see those rights implemented.

On January 11, 2019, the Minister of Justice and Attorney General of Canada issued the Directive on Civil Litigation Involving Indigenous Peoples. The directive will guide 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 directive is part of the Minister of Justice and Attorney General of Canada’s work to review the Government of Canada’s litigation strategy. This is to ensure the federal government’s legal positions are consistent with its commitments, the Charter of Rights and Freedoms and Canadian values.

Consistent with the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples, the directive emphasizes the importance of resolving conflicts expeditiously and collaboratively, reducing the use of litigation and the courts.