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OTTAWA — It was a curious remark, seemingly unrelated to the scandal that had brought the Clerk of the Privy Council before the justice committee of the House of Commons to testify for a second time.
Towards the end of his opening statement on SNC-Lavalin, Michael Wernick suggested the committee might want to look into an obscure directive on civil litigation involving Indigenous peoples, a set of guidelines that government lawyers must follow in cases such as Aboriginal title claims. Jody Wilson-Raybould had issued the directive in January — her last major act before being shuffled out of her role as justice minister and attorney general, and seven weeks before she would publicly accuse Prime Minister Justin Trudeau and senior officials in his office of waging a campaign of political interference to pressure her into negotiating a deal that would allow Quebec engineering giant SNC-Lavalin to avoid criminal prosecution.
“This directive to all Government of Canada litigators could mark a profound change in Canada’s legal landscape,” Wernick said. “However, it could be repealed or gutted at the stroke of a pen and all that work turned to ashes, so I think now that all political parties need to be clear with Canadians on the future of that directive.”
As the SNC-Lavalin scandal stretched on, the directive popped up again. On April 2 the committee released text messages exchanged between Wilson-Raybould and Trudeau’s former principal secretary, Gerald Butts. In a message from December, Wilson-Raybould told Butts she planned to announce the directive at an event the following day. “Even all the DOJ lawyers (incl conservative ones) are good with it,” she wrote. “Be assured I have answered and addressed all concerns/questions raised by Ministers etc over last 6-8 mos which are reflected in directive and some concerns raised by peeps at PMO today.” She added that her department’s lawyers had already “been under this direction for some 18 Mos now.”
This directive was intended to reform the way the government conducts itself in court cases involving Indigenous peoples, in part by promoting negotiation over litigation. “Moving forward with recognition and reconciliation means we cannot continue to rely on adversarial court proceedings to lead the way,” she said in a statement on Jan. 11, when the document was published.
But the story of Wilson-Raybould’s final achievement as justice minister is more complicated than her text message to Butts suggests. While the principles that inform the Directive on Civil Litigation Involving Indigenous Peoples have been applauded by many lawyers working in Aboriginal law, the directive has not been universally embraced within the justice department — even leading to concerns that the Liberals’ desire to advance reconciliation with Indigenous peoples has impeded Crown lawyers trying to defend the government in court.
Last summer, a person with considerable experience in Aboriginal law at the justice department drafted a memo that circulated widely within the department, detailing a long list of concerns about the ministry’s approach to Indigenous litigation under Wilson-Raybould. Crown lawyers were being overruled on cases they were litigating, the memo claimed, being told not to use certain defences, and being given confusing instructions from the minister’s office and senior department officials in an attempt to appear less adversarial toward Indigenous plaintiffs.
The National Post has obtained copies of the memo from multiple sources and confirmed its authenticity. A long-time litigator with knowledge of justice department affairs has confirmed its author was not alone in their concerns.
“Everyone would be happy to see disputes between the Crown and First Nations that are currently in litigation be settled by negotiation instead. That would seem consistent with a constructive approach to reconciliation. Generally, however, that is not happening, and DOJ’s path to reconciliation might instead be characterized as instructing its lawyers to ‘litigate badly,’” the memo reads. “This approach decreases the likelihood of Canada mounting a successful defense to litigation or even ensuring that necessary legal issues are fully canvassed in court; while this might seem like a ‘back door’ approach to amiable settlement with Indigenous plaintiffs, such an approach might be argued to be inconsistent with democratic values and the public trust. It certainly seems to be inconsistent with upholding the rule of law, which is generally recognized as the fundamental responsibility of an Attorney General.”
The memo, dated July 2018, also describes an environment of increasingly “pervasive and intrusive” micro-management of litigators’ files, in which Wilson-Raybould’s personal views were given a great deal of weight.
Wilson-Raybould did not respond to the Post’s multiple requests for comment. No one from the Prime Minister’s Office spoke to the Post for this story.
In courtrooms across the country, legal battles have been playing out for years between Indigenous peoples and the federal government. In some cases, Indigenous plaintiffs are seeking title to land they claim is rightfully theirs. In others, they’re demanding the government right historical wrongs, including the harm inflicted on Indigenous children in residential schools. The government has long been accused of taking an obstructionist approach in its defence against such cases, demanding that Indigenous groups prove their inherent rights and throwing a laundry list of counter-arguments at every claim.
From one perspective, this is the necessary process by which complicated legal issues must be resolved. “We should be welcoming a full and vigorous legal debate,” said Thomas Isaac, a Vancouver-based lawyer practising Aboriginal law. By another, it’s needlessly adversarial. This is the “death-by-procedure strategy that occurs when Indigenous claimants come forth,” said Darcy Lindberg, an assistant professor of law at the University of Alberta.
The directive signals a new approach. It sets out 20 principles, including that lawyers should “vigorously pursue” all forms of resolution with Indigenous groups and use the court process as a last resort. It instructs lawyers to recognize Aboriginal rights and title where possible, instead of fighting Indigenous claims with a wholesale denial of rights. It states that litigation should be expedited, that the Crown should not appeal every decision, and that certain defences, including the claim that Aboriginal title has been extinguished, can only be used with the permission of the assistant deputy attorney general.
Unlike with criminal prosecutions, which are conducted by the Public Prosecution Service of Canada and in which the attorney general would only intervene in exceptional circumstances, it is the attorney general’s role to direct civil litigation. As the client in civil cases, the government has to instruct its lawyers how to proceed. Andrew Flavelle Martin, an assistant professor of law at the University of British Columbia, said it’s perfectly legitimate for successive governments to change how cases are conducted based on their political convictions. “The short answer is, in civil litigation, it’s the role of the attorney general to make those decisions,” he said.
While the memo acknowledges this, it suggests Wilson-Raybould and her political staff were too intimately involved in individual files, even calling it “political interference.” It also accuses senior civil servants in the justice department of being unwilling to “speak truth to power” to the former attorney general. “As uncomfortable as it might be to give a Minister advice she doesn’t want to hear, giving such advice is a responsibility of the civil service and of the legal profession,” the memo states, concluding that this environment had “created dilemmas and reduced morale” among department employees.
The memo cites several cases where litigators received instructions they disagreed with. In one example, the memo claims, lawyers recommended the government appeal two unfavourable court decisions, only to have their recommendation reversed without their knowledge before it went to the minister, who decided against an appeal.
The memo also says lawyers have been told “not to use legal terminology that might cause offence,” including the term “abuse of process,” and “not to make arguments or lead evidence that might be considered controversial.”
A senior Department of Justice official — who would speak to the Post only on background — did not address the memo directly but characterized concerns raised by government lawyers as the kind of growing pains that accompany any change from the status quo. “I think the biggest challenge we’ve faced is helping competent litigators through the change that’s being asked of them and assuring them that this is not some political or public policy or (communications) initiative,” the official said.
He said it’s normal for lawyers to be given instructions on their cases from further up the chain. “There’s no individual actor within Justice … who gets to decide for the whole of government what the legal view is or what the position is.”
Kris Statnyk, a Vancouver-based lawyer practising Aboriginal law, said the directive maintains the Crown’s discretion to argue whatever defence it needs to, but will hopefully help to narrow the focus of court cases to the central questions at play. “It’s certainly not expected to be radically transforming the landscape of how litigation is conducted,” he said. “If anything, it could help make the process more accessible, fair and efficient.”
However, a source with knowledge of justice department affairs — who spoke to the Post only on condition they not be named out of concern over professional repercussions — said that while the directive’s objectives are laudable, in practice it poses problems. The government has struggled to make headway on resolving longstanding issues like Aboriginal title claims outside of the courtroom, the source said. “To instead say … ‘We’re still going to go to court, but we’re going to try to tip the scales by saying that the defences that Canada could advance or the ways it could articulate its case will be constrained’ … that was I think a concern.” This was especially troublesome before the directive was formally issued and its principles were being applied without public knowledge, the source added.
This source said the Liberal government’s election in 2015 and Wilson-Raybould’s appointment as attorney general were well-received in the department, as there was a feeling the Liberals might make progress on reducing Aboriginal litigation.
Instead, the source said, legal battles have continued, but with lawyers sometimes being overruled against their better judgement. “With this litigation strategy, I just see it coming back to bite people in the future, and to make this relationship between First Nations people and the rest of Canada worse rather than better.”
Many experts in Aboriginal law have hailed the directive as a step in the right direction. “It’s not a handcuff of the Crown’s position by any means. It’s more curtailing these kind of practices that have put Indigenous communities at a disadvantage,” Lindberg said. “I don’t see it impeding the Crown’s ability to give a full defence of Canada’s positions on any of these issues.”
The directive has already had an impact on certain cases. Last week, the federal government filed an amended defence in a class-action lawsuit seeking restitution for day students of residential schools. The government’s original defence, filed in 2015, denied that Canada “intended to eradicate Aboriginal languages, culture, identity, or spiritual practices.”
The new defence is very different, and includes a section titled “Acknowledging wrongs of our residential schools,” which states that federal government officials sought to assimilate Indigenous peoples. “This included egregiously removing and isolating Indigenous children from their families and communities, and discouraging or inhibiting them from using their respective Indigenous languages, customs or traditions,” it reads. It also says that Canada wants to reach a negotiated settlement with the day students instead of fighting the lawsuit in court.
Crown-Indigenous Relations Minister Carolyn Bennett told the CBC last month that the original defence “does not reflect our government’s values.”
The directive also seems to have played a role in a B.C. Aboriginal title case, in which the Cowichan Tribes are seeking title to land within the City of Richmond. The government filed an amended defence in that case last November, which no longer includes the argument that any Aboriginal rights to the land that once existed have since been abandoned or extinguished.
But Isaac said the Cowichan Tribes case raises a complicated question about Aboriginal title claims to private property that has yet to be resolved in court. He believes it was a mistake for the government to shy away from the extinguishment defence. “I think they feel that it’s not sensitive enough,” he said. “I have a very different view. I think it furthers reconciliation by having an honest dialogue about outstanding legal issues.”
Isaac said he’s unsure how helpful the directive will be in practice. “The implication is that somehow litigation is always bad. I disagree with that. We know that there are grey areas in matters of law,” he said. “There is a role for litigation in reconciliation.”
For many of those who support the directive, a chief concern is that its success depends on whether future ministers choose to implement it. Wilson-Raybould’s successor, Attorney General David Lametti, has spoken highly of the document, saying in a speech last month that it “speaks to our government’s commitment to fundamentally transform its relationship with Indigenous peoples.”
But the source with knowledge of the justice department told the Post Wilson-Raybould’s last act would benefit from more scrutiny than it’s received to date. “I will just say my wish is that people take a closer look at the directive and just think it through,” the source said. “And if at the end of the day, people are fine with the directive, then that’s fine. I’m just concerned that as things stand at the moment, that that’s not happening.”
Copyright Postmedia Network Inc., 2019