British Columbia Supreme Court’s Reconciliation Working Group

Via email: ReconciliationFeedback@bccourts.ca

The Law Courts
800 Smithe St.
Vancouver, BC V6Z 2E1
Dear Chief Justice Skolrood:

Re: CBA National Aboriginal Law Section feedback to the British Columbia Supreme Court’s Reconciliation Working Group (RWG)

The National Aboriginal Law Section of the Canadian Bar Association (CBA Section) thanks you for the opportunity to offer feedback on the Supreme Court of British Columbia’s role in advancing reconciliation. We commend the establishment of the Reconciliation Working Group (RWG) and the Court’s proactive commitment to engaging with Indigenous peoples, organizations, and the broader public on this important issue.

The CBA is a national association of over 40,000 lawyers, law students, notaries and academics, and our mandate includes seeking improvement in the law and the administration of justice.

Reflections for the RWG from the CBA National Aboriginal Law Section

This CBA Section submission stems from a working group of Indigenous and non-Indigenous executive officers and members-at-large who practice Aboriginal law or law which engages Indigenous individuals and collectives. The ideas gathered below reflect diverse learning in this specific legal field and are not intended to form an entire, cohesive narrative, although they all arise from roughly common practice experience in British Columbia and other provinces and territories.

1. What role does the Court have when it comes to reconciliation with Indigenous people?

1. To state the obvious, the British Columbia Supreme Court (the Court) is the forum to which all parties turn to have their rights declared and defended, including the rights of Indigenous people, whether s. 35 rights or other rights under statute and common law as individuals.
2. There is a history of court decisions that dispossessed Indigenous peoples. While contemporary judges work within updated constitutional frameworks, it is still necessary to rebuild credibility with Indigenous communities.  In that regard, the Court should practice transparency as much as possible in whatever it undertakes through its RWG.

2. How can our Court’s processes become more welcoming or more tailored for Indigenous litigants?

1. The Court decides litigated disputes through the lens of the accrued body of constitutional law, the common law and statute. Some legal tests do engage a balance of convenience; others do not. Where the law does not require such balancing, the Court should decide the issues without giving policy-driven factors such as financial implications for any party an outsized role in its judgment.

2. The Court should make more room for and develop procedure for receiving Indigenous laws. We acknowledge the current operation of Indigenous laws at times in modern statute, through treaty and through longstanding common-law integration of Indigenous custom in family matters¹.

   Where Indigenous litigants desire this, (and not all will do so), the Court could allow opportunities to draw on or reflect Indigenous legal orders in its decision-making process (beyond the use of such orders as evidence of occupation in a s. 35 Aboriginal title claim). This could be achieved by a multi-pronged approach. Some ideas include:

   • Case planning: a joint case plan in complex cases could demand that the parties come to consensus on how relevant Indigenous legal orders could be integrated into the litigation process. The Court would have to consider its own role in the proposed integration.

   • Experts or advisors:

     1. For individual instances of complex litigations, the Court and the litigants could be well served by a panel of experts specific to that litigation and selected by consensus to opine for the Court, occupying a role more akin to an amicus than to an expert put forth by a party.

     2. More generally, the Court might consider developing and periodically renewing practice guidelines like the Federal Court’s Practice Guidelines for Aboriginal Law Proceedings. A statutory court might have more obvious license to establish such guidelines but a s. 96 court benefits from great discretionary freedom with respect to its own processes. Development of any such guidelines should be a transparent process in which all stakeholders can have faith. Similarly, any standing committee which might grow from the process of developing such guidelines should retain transparency so that it can inform the Court’s processes in an ongoing way with its expertise without obscuring the background sources of the Court’s policy decisions.

3. Finally, the Court might consider that it might not, in fact, be the best forum for deciding large-scale disputes such as Aboriginal title and rights.

   • The first reflection in response to this suggestion is quantitative and encourages moderating existing processes to mitigate harm:

     1. A recent case which saw approximately 490 days of evidence alone reportedly cost each defendant Indigenous nation $20M over the course of 11 years and will cost more to appeal. Not only is this not a reconciliatory process but it also causes harm to parties who had little choice but to join or see their rights litigated outside of their control.

     2. The Court must find efficiencies in its evidentiary processes to stave off some of the immense cost to Indigenous parties who did not initiate the litigation and to moderate the lateral violence that litigation can inflict among Indigenous nations.

     3. The Court’s remedies are blunt instruments at best. In so far as the Court’s declaratory powers are called upon by litigants, they are best directed at signalling to both other branches of government (executive and legislative) that they are required to take centre stage as the Court removes itself from the spotlight.

   • The second reflection in response to this suggestion is more qualitative or categorical, as well as openly aspirational at points (c) and (d). (We note that the RWG asked for feedback without restricting its scope.) Perhaps the Court – with respect to its blunt-instrument effect in s. 35 litigation -- could cooperate in its own replacement, over time, by a finer tool:

     1. The Court might consider assisting in the redirection of Aboriginal title disputes to a more specialized forum. Land rights and land administration are extremely complex and decisions on them both can affect many people, including Indigenous people, who are without a voice before the Court. (See 2(c)(i) above for why this harms Indigenous as well as other litigants.)

     2. The Court could first refine its decision-making in this category of case with a specialized judicial division, much as the Ontario Superior Court has a Commercial List. British Columbia is the site of over 200 Indigenous collectives, densely populated urban areas and many industrial projects -- such specialization would not be wasted.

     3. If Indigenous leadership in conjunction with federal and provincial Crown were ever to explore the establishment of a specialized tribunal to hear such matters, the Court should engage with such a process. Unlike the Specific Claims Tribunal, a specialized tribunal in British Columbia ideally would hear claims involving Crown, industry, municipalities or other actors. Specialist appointees and streamlined statutory procedures could lead to shorter hearings and more targeted and nuanced decisions than what the Court by its nature currently can provide.

     4. With the establishment of such a (currently hypothetical) specialized body, the Court could then shrink its presence in this factually and legally complex decision-making while those matters instead would ideally often go to the specialized tribunal, possibly with appointment crossover from the prior-established judicial division. The Specific Claims Tribunal provides an administrative example of such appointments.

3. How can the Court deepen its commitment to learning about Indigenous peoples and Indigenous laws?

1. See the points above regarding an amicus-style set of experts and a possible standing committee to provide expertise.
2. The Court might consider more accessible remote hearing opportunities and consider, where practicable, sitting in communities affected by litigation to hear from elders more directly and in their own context. Indigenous laws frequently exist in the context of ceremony and sitting in community could expose the Court to the laws’ true contexts.
3. Finally, for all three questions and any of the comments above, the CBA NALS strongly encourages the Court to engage in ongoing discussion with the Indigenous Bar Association, the Aboriginal Lawyers Forum, the Union of BC Indian Chiefs, the Assembly of First Nations and the many academic resources available to it. The CBA NALS defers to those entities.

The CBA Section believes that reconciliation requires both bold changes and practical steps.
By committing to transparency, receiving and possibly working with Indigenous legal orders, improving access and efficiency through various means and working in partnership with Indigenous leadership, the Court can strengthen its role as a fair and credible forum for all.

Your sincerely,

(original letter signed by Julie Terrien for Monique W. Dull)

Monique W. Dull
Past Chair, Aboriginal Law Section