The Attorney General of Canada (“AG”) issued a directive on civil litigation involving Indigenous peoples. The directive is part of the AG’s review of the government’s litigation strategy. The directive applies to all litigation involving Indigenous peoples but primarily to section 35 (section discussed in document below) legal challenges. The directive advances reconciliation through twenty guidelines which:
Advance litigation approaches that promote resolution and settlement;
Seek opportunities to narrow or avoid potential litigation; and,
Advance litigation approaches that are constructive, expeditious and effective in assisting the court to provide direction (the “Objectives”).
The known: The directive offers some transparency into how the government may frame litigation approaches and offers some flexibility especially when litigation approaches may promote the Objectives.
The unknown: Only time will tell with respect to how government counsel applies the directive as some of the guidelines should have been innate to litigation processes (for example, promoting resolution and settlement) prior to the release of the directive.
In this document (below), I outline:
The overview of the directive;
The application of the directive;
The themes and objectives of the directive;
The Constitution Act, 1985, namely section 35 regarding Aboriginal rights and consultation;
The Principles Respecting the Government of Canada’s Relationship with Indigenous People (“Principles”); and
The Litigation Guidelines.
I provide a word version for easier editing for your own use and a PDF version of this same document.
Disclaimer: This discussion document is meant to be a resource to help understand the recently released directive by the Attorney General of Canada on civil litigation involving Indigenous peoples. It is intended to provide a summary. The resource does not provide legal advice and should not be interpreted as such. Only your own lawyer can provide you legal advice to your specific situation. The directive should be read in its entirety.