POLITICS
04/04/2019 09:39 EDT | Updated 04/05/2019 09:42 EDT

Jody Wilson-Raybould's Directive On Civil Litigation Heralded As Historic Shift For Indigenous Rights

Michael Wernick called it a “profound change in Canada's legal landscape.”

Patrick Doyle/CP
Jody Wilson-Raybould appears at the Senate legal and constitutional affairs committee on June 20, 2018.

OTTAWA — Jody Wilson-Raybould's text messages with Gerald Butts focused on the release of a historic directive on civil litigation involving Indigenous peoples, not just SNC-Lavalin, according to evidence submitted to the Commons justice committee.

The former principal secretary tabled texts between him and the former attorney general as evidence to the committee as part of its study of the SNC-Lavalin affair and allegations of political interference. Butts told the committee earlier that the directive was "the biggest contentious issue" between him and Wilson-Raybould around mid-December 2018.

Wilson-Raybould texted Butts on Nov. 28 to give him a heads-up that she intended to release a directive for civil litigation involving Indigenous peoples "at a big gathering in BC" the next day — formalizing a major government-wide policy shift to ditch adversarial litigation in favour of reconciliation.

"Even all the DOJ lawyers ([including] conservative ones) are good with it," she wrote, adding that release of the directive "ticks off yet another mandate letter commitment."

'Biggest contentious issue'

At that point, the civil litigation directive had been under the review of ministers for up to eight months. Wilson-Raybould did not unveil it at the B.C. cabinet and First Nations leaders' gathering she attended the next day because it was held back by the PMO for further review.

Two weeks later, she texted Butts: "Honestly not clear as to what result was at Cabinet – hear pm wants changes but I am confident have addressed all concerns. This is a big deal to me as you know. Thx."

One of Wilson-Raybould's last moves as attorney general was the publication of the directive for civil litigation involving Indigenous peoples. It was announced without fanfare on Jan. 11, four days after she learned from the prime minister and former principal secretary Gerald Butts that she would be moved out of justice.

Wilson-Raybould was sworn in as veterans affairs minister on Jan. 14.

Reuters
Jody Wilson-Raybould watches Prime Minister Justin Trudeau arrive at Rideau Hall for a cabinet swearing-in ceremony in Ottawa on Jan. 14, 2019.

Outgoing Privy Council clerk Michael Wernick brought up the directive in the opening remarks to his second appearance before the Commons justice committee. He called it a "profound change in Canada's legal landscape" and urged the committee to study it.

"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," he said.

Neither Butts nor Wernick elaborated on their remarks about the directive during their testimony, and no members sitting in on the justice committee's February and March public meetings asked for more information. The focus remained on SNC-Lavalin and allegations of political interference.

Watch: Wilson-Raybould, Jane Philpott have no regrets over SNC-Lavalin

The directive consists of 20 guidelines for civil litigators to respect in all cases involving Indigenous peoples. Litigation is usually an adversarial process, which complicates reconciliation when the cases involve Indigenous people.

It instructs the government to adopt a rights-recognition-based litigation strategy and has been heralded by some Indigenous leaders as a revolutionary shift because it's in writing.

"We are now in a significant period of transition in Crown-Indigenous relations," wrote Wilson-Raybould in the forward prefacing the directive.

Directive includes 'obvious' and 'very significant' guidelines: law professor

Indigenous Canadian lawyer and University of British Columbia law professor Mary Ellen Turpel-Lafond called it a tool that has been "desperately needed." She explained that sometimes when a case goes into litigation, there's "non-stop adversarialism, and everything's contested" including Indigenous peoples' rights.

"If you go through the history of arguments filed in the trial courts in Aboriginal rights cases, there are positions that were taken that would deny that First Nations people even exist at times," she said. "When you deny the very existence of people and their rights, it's not a very honourable position for a country, a rights-respecting country to take."

The directive's goals are to advance reconciliation, recognize Indigenous rights, uphold the honour of the Crown, and respect self-determination and self-governance.

Among the 20 guidelines, counsel is instructed to "simplify and expedite the litigation as much as possible," to use "use respectful and clear language in their written work," and to turn to litigation only as a last resort.

"It sounds like a pretty obvious thing, but it's actually very significant," Turpel-Lafond said. Some litigators have been known to goad Indigenous parties in the past with flippant comments to prove that they have rights.

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Another guideline instructs litigators to accept oral history as evidence. "It doesn't mean it can't be tested, but it's to be treated respectfully," she said.

National Post founder Conrad Black wrote an op-ed about the directive in March. He called it as "a policy of outright surrender on the government and the 98.5 per cent majority of Canadians" (in reference to non-Indigenous people).

Turpel-Lafond said Black is entitled to his opinion, but the notion that the litigation directive will incur significant costs for the Canadian government "is just not the case."

She said people who work outside of law probably aren't aware of how costly the government of Canada's continued litigation against Indigenous peoples is.

"They've lost 40 cases in the Supreme Court," she said. "They spent a lot of money fighting those cases and lost."

Turpel-Lafond referred to her firm's work on the Tsilhqot'in case, which spanned 20 years before a 2014 unanimous Supreme Court of Canada decision confirmed Aboriginal title to 1,700 square kilometres of land in British Columbia. The former Saskatchewan judge said the money the government spent over two decades could have gone to other worthy programs if the litigation process had been reformed earlier.

Wilson-Raybould told chiefs about directive in 2017

The directive had been in the works for some time. Wilson-Raybould, a former Assembly of First Nations regional chief, told the AFN general assembly in Regina in July 2017 that she was working on overhauling the government's civil litigation strategy.

"Colonialism cannot be stemmed and ultimately overcome without recognition and implementation of the inherent rights of Indigenous peoples," she said in her keynote address. "I have taken steps to change the way Canada participates in litigation with Indigenous peoples."

The litigation strategy builds off of a set of 10 princples to guide future laws and policies to advance reconciliation.

Kukpi7 Judy Wilson, secretary-treasurer of the Union of B.C. Indian Chiefs, was in the audience that day. She said it's "essential" for the government to change its litigation practices with Indigenous peoples.

Justin Tang/CP
Judy Wilson, Chief of Neskonlith Indian Band and Executive Member of the Union of B.C. Indian Chiefs speaks during a press conference on the impact of Bill C-58 on Indigenous communities, in the foyer of the House of Commons on Dec. 4, 2017.

"But, like many Crown policies and practices, it needs to be enforced," she told HuffPost Canada, in phone interview from B.C.'s Shuswap Lake. Wilson said she's glad the directive is out but is worried about its continuity under new Justice Minister and Attorney General David Lametti.

"And we had more confidence when we knew the attorney general was Indigenous.... She understood the issues and how to drive the change," she said.

Lametti's office told HuffPost that the directive issued by Wilson-Raybould is a "step forward" in basing Crown-Indigenous relationships on the recognition of rights of Indigenous people.

"The principles it outlines have been applied to litigation involving the Government of Canada for nearly two years now, and Minister Lametti is fully committed to continuing this approach," spokeswoman Célia Canon wrote in a statement.

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The directive is reversible. It is a policy manual that the public can use to keep litigators accountable for their actions. Training programs for civil litigators are currently underway.

A department of justice source told HuffPost Canada that some of the guidelines were in development for years before Wilson-Raybould's appointment. The source spoke to HuffPost Canada on the condition of anonymity because they were not authorized to speak publicly on the matter.

But the source was supportive and championed the idea of a formal written directive for 1,000 government litigators.

Former Conservative justice ministers Peter MacKay and Rob Nicolson declined an interview for this story. In a statement, Conservative justice critic Lisa Raitt said her government believes "litigation should be a forum of last resort.

"Conservatives have always believed that it is better to resolve issues of Indigenous rights through good faith negotiations than through litigation."

Adrian Wyld/CP
A hoop dancer performs as then-Indigenous Affairs minister Carolyn Bennett, Jody Wilson-Raybould, Prime Minister Justin Trudeau and AFN National Chief Perry Bellegarde take their places on stage at the Assembly of First Nations Special Chiefs Assembly in Gatineau, on Dec. 8, 2015.

Her office did not respond when asked whether the Tories are committed to keeping Wilson-Raybould's directive in place when they return to power.

During her 2017 AFN address in Regina, Wilson-Raybould suggested that it was a personal mission of hers to change the government's approach to civil litigation involving Indigenous peoples.

Saskatchewan Chakastaypasin Cree First Nation leader Sol Sanderson is confident the guidelines outlined in Wilson-Raybould's last directive "lie in the face of all those colonial policies" of the past. He points to former prime minister Pierre Elliott Trudeau's 1969 White Paper which called for the end of the Indian Act, and the "Buffalo Jump of the 1980s," a leaked government strategy that pressed First Nations to sign over rights for block funding.

The previous Conservative government may have been working on progressive internal litigation strategies, but there was "no acknowledgement of inherent rights at all" in previous documents, he said.

The directive addresses colonial policies "that have been around for 150 years," Sanderson said, in a "major way."

When he talks to politicians, he said, he reminds them that Indigenous issues cross all party lines. "I don't care which party forms the government. Our issues are going to be front and centre with them."

The new attorney general has expressed his intention to implement the directive on civil litigation involving Indigenous peoples, to which Sanderson responded with a blunt, "Yeah, you better be."