B.C. to prioritize negotiation over litigation for Indigenous rights

David Eby, B.C. attorney general and minister responsible for housing, speaks during a social housing funding announcement in the Downtown Eastside of Vancouver, on Wednesday, July 28, 2021. THE CANADIAN PRESS/Darryl Dyck

The British Columbia government says it has developed “a new approach to litigation” as part of its process to implement its 2019 legislation adopting the United Nations Declaration on the Rights of Indigenous Peoples.

The Attorney General's Ministry says in a news release the goals of a series of 20 directives for the Crown are prioritizing resolution and negotiated settlement and reducing the potential for legal action over Indigenous rights and title.

Attorney General David Eby says it's important to respect that First Nations may choose to go through the courts, while at the same time recognizing litigation is an adversarial process that can drive the two sides further apart rather than advance reconciliation.

The ministry says the first directive for Crown counsel in civil litigation is that they must understand and apply the principles of B.C.'s 2019 law that requires the province to align its laws with the United Nations declaration on Indigenous rights.

For ongoing litigation that began before the passage of the Declaration Act, the directive says counsel must review their pleadings, legal positions and litigation strategy to ensure that they are consistent with the act.

It says counsel must work with the Indigenous Relations Ministry and “take steps to resolve any inconsistencies, including amending pleadings.”

In circumstances where it appears impossible to resolve an inconsistency, the directive says counsel must consult with the attorney general.

Another directive says counsel should “vigorously pursue” alternative forms of resolution throughout litigation, and their main goal is to use the courts as a last resort, “in the narrowest and most constructive way possible.”

Terry Teegee, regional chief of the B.C. Assembly of First Nations, says the province is “doing the right thing to push to change the legal culture of fighting and denying (Indigenous) rights.”

The directives “may not change the system overnight,” but they're a welcome and overdue step, he says in a statement released by the province.

Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, also applauded the changes.

“There is a real opportunity now to resolve matters, working collaboratively, and to remove the enormous burden borne by many Indigenous leaders in British Columbia who had to fight tooth and nail to get recognition, sometimes in decades-long matters,” he says in a statement.

Mary Ellen Turpel-Lafond, a retired judge and law professor at the University of B.C., says that in the past, relationships were “poisoned” by “endless procedural and technical motions and a blanket denial of rights.”

The litigation directives will bring “necessary shifts in the mindset and approach of lawyers” acting on the province's behalf, her statement says.

This report by The Canadian Press was first published April 21, 2022.