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:
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.
https://www.justice.gc.ca/eng/csj-sjc/ijr-dja/dclip-dlcpa/litigation-litiges.html