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A Summary of the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples

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This document provides a summary of the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples (the Directive).

The Directive was written by Jody Wilson-Raybould, the former Attorney General of Canada, in response to her mandate letter from Prime Minister Justin Trudeau. It outlines a series of litigation guidelines instructing Crown counsel as to how the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples (the Principles) must be applied in civil litigation involving Indigenous peoples.

The former Attorney General articulates that the guidelines are intended to reflect a significant shift in Crown-Indigenous relations. In particular, the Directive recognizes the limited ability of litigation to achieve the sort of reconciliation and renewal required in Crown-Indigenous relationships. The former Attorney General recognized that Indigenous peoples are entitled to select their own forum to resolve legal issues while also reiterating that where litigation is important, the guidelines should direct the Government’s positions and strategies.

The former Attorney General went on to outline that the Directive applies to section 35 of the Constitution Act, 1982, which entrenches Aboriginal and Treaty rights, as well as other Crown obligations towards Indigenous peoples. It is intended to animate the advice provided by departments and Cabinet towards the goal of reconciliation with Indigenous peoples, which is the fundamental purpose of section 35 of the Constitution. Importantly, the Directive indicates that the honour of the Crown is reflected not just in the substance of positions taken by the Crown in litigation, but also in how those positions are expressed. This broader goal is grounded in four main 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.

The Litigation Guidelines are as follows:

Litigation Guideline #1 – Counsel must understand the Principles and apply them throughout a file’s lifespan.

Counsel must seek to understand and apply Indigenous perspectives, recognizing the diversity of Indigenous perspectives and the rights underlying these varied relationships.

Litigation Guideline #2 – Litigation strategy must reflect a whole-of-government approach.

Principle 3 requires the Government to act with honour, integrity, good faith and fairness in all dealings with Indigenous peoples. To this end, counsel must endeavour to engage in discussions between Indigenous peoples and the departments and agencies about the way in which litigation might affect their relationship. This guideline calls for litigation strategies that are firmly rooted in the policies of the Crown and advocates awareness of government-wide implications of judicial decisions or settlements. This will necessitate broad consultation from government actors.

Litigation Guideline #3 – Early and continuous engagement with legal services counsel and client departments is necessary to seek to avoid litigation.

In order for conflict and litigation to become the exception and not the rule, counsel must engage with client departments and agencies as soon as they become aware of a conflict that may result in litigation, and endeavour to develop coordinated approaches that aim to resolve disputes without litigation.

Litigation Guideline #4: Counsel should vigorously pursue all appropriate forms of resolution throughout the litigation process.

The primary goal of counsel must be to resolve issues, using the court process as a forum of last resort. Forms of resolution such as alternative dispute resolution processes (such as negotiations and mediations) must be considered including the invocation of Indigenous legal traditions or other traditional Indigenous approaches. Consideration must also be given to creative solutions with other department counsel and other government departments or agencies.

Litigation Guideline #5: Recognizing Aboriginal rights advances reconciliation.

This guideline recognizes that the Principles necessitate a change in the interpretation and governing of Aboriginal rights. It specifically points to Principles 1 and 2, which call on the Government of Canada to ensure its dealing with Indigenous peoples are based on the recognition and implementation of the right to self-determination and state that reconciliation requires hard work, changes in perspectives and action, compromise, and good faith. It also specifically points to the need to recognize Aboriginal rights, including Aboriginal title, wherever these can be recognized. Litigation counsel is advised to avoid taking positions or adding parties to litigation that undermine the ability of Indigenous groups to resolve disputes amongst themselves.

Litigation Guideline #6: Positions must be thoroughly vetted, and counsel should not advise client departments and agencies to pursue weak legal positions.

Counsel should resolve differences of opinion on available arguments and the strength of legal positions through discussion. Where discussion fails, consultation and approval must be done in an appropriate manner.

Litigation Guideline #7: Counsel must seek to simplify and expedite the litigation as much as possible.

Counsel must ensure that litigation is dealt with promptly and consider resource imbalances between parties.

Litigation Guideline #8: All communication and submissions must be regarded as an important tool for pursuing reconciliation.

This guideline emphasizes the role of written and oral submissions as an instrument of communication between the parties, the Attorney General, Indigenous peoples, the judicial system and the public. In these pleadings, efforts must be made to advance reconciliation through the application of the Principles.

Litigation Guideline #9: Counsel must use respectful and clear language in their written work.

The Attorney General is expected to be a model litigant, upholding the expectation and maintaining high standards of civility and advocacy in their communication with the courts, Indigenous peoples or their counsel.

Litigation Guideline #10: Legal terminology must be consistent with constitutional and statutory language.

Counsel should abide by the specific terms used in the Constitution, by Parliament, and by the legislatures relating to Indigenous peoples, including the term Aboriginal as defined by section 35 of the Constitution Act, 1982, the term “Indian” as it appears in subsection 91(24) of the Constitution Act, 1867, and the term First Nation in reference to the First Nations Land Management Act, S.C.

Litigation Guideline #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, outlining what is and what is not an issue.

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

Admissions of facts that support claims of historical harm should be acknowledged, with approval from the client and 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. 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.

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

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.

Litigation Guideline #14: Limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence.

Long-standing federal positions such as extinguishment, surrender and abandonment are discouraged by the Principles. These defences should only be pleaded where there is a principled basis and evidence to support to the defence. Moreover, where litigation has been long delayed, defences such as laches and acquiescence are preferable to limitation defences.

Litigation Guideline #15: A large and liberal approach should be taken to the question of who is the proper rights holder.

This guideline speaks to the right of Indigenous peoples and nations to define for themselves who the rights-bearing collective is. Canada should not object to the entitlement of a group to bring litigation when rights are asserted on behalf of larger entities where no conflicting interests exist.

Litigation Guideline #16: Where litigation involves Federal and Provincial jurisdiction, counsel should seek to ensure that the litigation focuses as much as possible on the substance of the complaint.

Litigation Guideline #17: Oral history evidence should be a matter of weight, not admissibility.

Litigation Guideline #18: Decisions on judicial reviews and appeals should be subject to full consultation within government and be limited to important questions.

Litigation Guideline #19: Intervention should be used to pursue important questions of principle.

This guideline indicates that intervention requires consideration of whether the Attorney General’s intervention can assist the course through the provision of legal or constitutional perspective not addressed by the parties to the dispute.

Litigation Guideline #20: All files must be reviewed to determine what lessons can be learned about how the Principles can best be applied in litigation.

The final guideline suggests a review process that will enable counsel and the client department to learn from each litigation case by reflecting on how similar litigation cases can be avoided in the future.

For more information on the Principles see: Principles respecting the Government of Canada’s relationship with Indigenous Peoples.

For more information on the Directive see: The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples.

Editor’s Note: Professor Larry Chartrand of the University of Ottawa and former Director of the Wiyasiwewin Mikiwahp Native Law Centre, contributed his thoughts and expertise that assisted the improvement of the Directive.

CCAS v GH and TV, 2017 ONSC 742

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Wiyasiwewin Mikiwahp Native Law Centre Case Watch

A mere claim that someone is “Native” is not enough for a court to consider that an Aboriginal child will be at a “disadvantage” when weighing legislative factors in child protection matters. There needs to be more evidence of what is important to the family, the child, and the Aboriginal community the child is said to be a member of.

The Catholic Children’s Aid Society of Hamilton (the Society) sought an order for Crown wardship with no access regarding the child EDV, born […], 2015, who was apprehended at birth. The mother, GH, and the father, TV, were known to the Society since 2012 regarding protection issues with the couple’s older children. After the Society commenced a protection application regarding EDV on May 5, 2015, it decided to pursue a summary judgment motion in relation to that application in February 2016. It is then that the Respondent father, TV, argued that EDV is a Métis child, and that as such, he should be treated in the same manner as children who fall within the definitions of “Indian”, “Native person” and “Native child” under Ontario’s former Child and Family Services Act (CFSA) [the CFSA has since been replaced by the Child, Youth and Family Services Act (CYFSA) as of April 30, 2018]. All parties conceded that Métis children did not fall within the scope of those definitions as they stood at the time of the hearing, and that EDV therefore did not have “Indian” or “Native” status within the meaning of the CFSA.

TV alleged that the definitions of Indigenous identity in the CFSA violated s 15(1) of the Charter of Rights and Freedoms on the basis that they did not extend to Métis children. He sought an order pursuant to section 52(1) of the Constitution Act, 1982 declaring these invalid and a remedy pursuant to section 24(1) of the Charter directing that EDV be treated as if he were an “Indian”, “Native person” or “Native child” for the purposes of these child protection proceedings. The Society did not take a formal position on the CFSA’s identity definitions, and it stated that it had in all material respects treated EDV as if he were “Indian” or “Native”. As well, the CFSA identified the cultural background and ethnicity of all children as an important factor in child protection proceedings, which was apparent from numerous provisions in the Act.

After considering many factors, including Gladue principles, the Court concluded it should not deal with abstract questions, especially in the context of a constitutional question. Absent a more complete record, the s 15 claim could not succeed. This may not have been the result if there were a fuller evidentiary record, but the issue in this case was too theoretical. When considering Gladue principles in sentencing matters, they do not on their own justify a different sentence for Aboriginal offenders, but provide the necessary context for understanding and evaluating the case-specific information presented by counsel. It is difficult to apply the context referred to in R v Gladue and R v Ipeelee to the disposition stage of a child protection hearing. The child protection court is directed to order in the best interests of a child. Taking judicial notice of the historical reasons that may have contributed to an Aboriginal parent’s current circumstances is less likely to be helpful to the child protection judge faced with the decision of whether to return a young child to the parent than it may be to a sentencing judge grappling with whether to order a custodial sentence and, if so, its duration.

As for the issue of EDV’s “Native” status, it was noted that the Métis Ontario coordinator of their Healthy Babies Healthy Children Program contacted the Catholic Children’s Aid Society in 2012. The representative told them that TV had self-reported that he was a member of the Métis Eastern Woodlands of Nova Scotia, and as a result of that self-report, she was working with this family. However, no one pursued the issue until 2016 when the matter came up for summary judgment before Justice Chappel, where the parties consented to a finding that the child was Métis. There were extensive efforts to serve and seek out the involvement of the Eastern Woodlands Métis of Nova Scotia. However, the response was that they were not going to participate, they did not have any placement options, and that they were supporting the plan of the Catholic Children’s Aid Society to have the child EDV adopted. Justice Chappel ordered that the child EDV be considered “Native” for the purposes of this and any other child protection application.

The Society made every effort to see if other Métis communities would participate in the litigation or provide the family with a placement option. No one came forward. TV never followed up on any suggestions given for obtaining assistance for his many issues. He did not describe his family background at all, or give any testimony about his Aboriginal background or any connections that he had or has in a Métis community other than his relatively brief contact with the Métis Ontario Healthy Babies Healthy Children Program. The Court stated that it had compassion toward and recognition of the importance of “Native” heritage and families but this special status does not equate to a blanket exemption from legislation carefully crafted to protect vulnerable and often damaged children. The paramount purpose of the CFSA is to promote the best interests, protection, and well-being of children. Where a person is directed in the Act to make an order or determination in the best interest of a child and the child is an “Indian” or “Native person”, the person shall take into consideration the importance, in recognition of the uniqueness of “Indian” and “Native” culture, heritage and traditions, presevering the child’s cultural identity.

In SB and BRM v Children’s Aid Society of Algoma and Mississauga First Nation, the Court addressed an appeal from an order for Crown wardship without access to the parents. The position of the Band was that access should continue so as to maintain the child’s connection to her Aboriginal community and to avoid the long-term consequences of cultural dislocation and estrangement from her roots, including from her siblings who resided on the reserve. However, there must be evidence of the nature of the involvement of the child’s family in the “Native” community which is lacking in this case. The mere claim that someone is “Native” does not allow the Court to consider the relevant factors within the legislative scheme, without some evidence of what is important to the family, the child, and the Aboriginal community the child is said to be a member of.

The Court decided that it was in the best interest of EDV to be made a Crown ward with no access, the Society was directed to make every effort to ensure that any foster parent and/or adoptive placement was willing to educate the child on his Aboriginal heritage and culture, to expose the child to this culture on an age-appropriate basis and provide the child with knowledge of any governmental benefits available to the child as a result of his “Native” status.

National Aboriginal Day Celebrations

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 BY CHRISTINA GRAY

Photo Credit: Lynda Gray, Ts'msyen Author of First Nations 101.

Photo Credit: Lynda Gray, Ts’msyen author of First Nations 101.

This June 21st, 2016 is significant as it marks 20 years since National Aboriginal Day was instituted as a national holiday in Canada. This is the one day specifically for Aboriginal people (and non-Aboriginal) across Canada to come together and celebrate, share meals, stories, music, and partake in cultural activities ranging from salmon feasts, canoeing to listening to throat singing.

Aside from being National Aboriginal Day, June 21st is also the summer solstice. It’s the longest day of the year and the shortest night of the year. This year we were fortunate enough to see the Strawberry Moon where the moon shone bright pink. It’s naturally a day to spend time in the warmth of the sunshine and celebrate the earth’s rotation in bringing us a renewed wealth of life.

People from all walks of life on June 21st come together to recognize our diverse cultures. In cities it can often feel stifling or invisible to be an Aboriginal person with distinct legal traditions, culture, history, and a distinct past. One that includes a lot of cultural and legal strengths, but that is often fraught with continued difficulties.

This last year the Truth and Reconciliation Commission formally closed in Ottawa with the release of their Final Report and Calls to Action. The closing of the TRC ended their 5-year mandate as part of the “truth telling and reconciliation process” in response to the Indian Residential School legacy.

At the TRC closing there was a lot of good energy shared between people. There was a walk for reconciliation, workshops, musical performances, art exhibits, and informal drumming and dancing that happened in the streets and hotel foyers. That energy will never be forgotten and neither will the residential schools’ dark legacy. This day is part of recognizing the truth-telling that happened through the TRC.

On my way home, I had a conversation with my mom about the good energy that I felt from attending the closing ceremonies. I left Ottawa with a renewed sense of who I am as an Aboriginal person living in a big city. I had time to reflect and find strength from being with survivors and allies. Attending the TRC was truly an internal and external reconciliation with Canada’s residential school legacy.

On June 22nd, there will another opportunity to build relationships, reconcile, and celebrate who we are as Aboriginal people in Canada. Over 300 school children, Aboriginal people, and community members will be doing just that at the Walk for Reconciliation at Saskatoon’s Victoria Park at 10am. This walk is to commemorate the one year that has passed since the TRC’s closing and for people to “rock your roots”. Let’s continue that good energy that was felt at the TRC’s closing and be proud of our distinct heritage, be it Mayan from Oaxaca, Dene, or Cree!

About the Author: Christina Gray is legally trained and works in Publications at the University of Saskatchewan’s College of Law, Native Law Centre of Canada. A first people of the Ts’msyen of Lax Kw’alaams, Dene from Lutsel K’e, and Red River Metis.