How the BC Supreme Court can advance reconciliation

In a nutshell

The National Aboriginal Law Section of the CBA offers feedback on the Supreme Court of British Columbia’s role in advancing reconciliation. The section commends 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 section offers some key reflections for the Court. 

Key reflections 

The 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. Suggestions to the Court on the RWG include:

• Role of the BC Supreme Court in reconciliation: The Court is the forum to which all parties turn to have their rights declared and defended. 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. 
   
• Welcoming Indigenous litigants: The Court should make more room for and develop procedures to draw on or reflect Indigenous legal orders in its decision-making process and refine its “blunt instrument” approach in s.35 litigation. This could be achieved by a multi-pronged approach including (but not limited to):
   
  • A joint case plan in complex cases: This could demand that the parties come to consensus on how relevant Indigenous legal orders could be integrated into the litigation process. 
  • Experts or advisors: 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. 
  • Stepping out of the spotlight: The Court could consider that it might not be the best forum for deciding large-scale disputes such as Aboriginal title and rights and could cooperate in its own replacement by refining its “blunt instrument” approach, such as assisting in the redirection of Aboriginal title disputes to a more specialized forum.
  • Considering costs: 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.  
     
• Commitment to learning about Indigenous peoples and Indigenous laws: The Court might consider more accessible remote hearing opportunities, consider sitting in communities affected by litigation to hear from elders more directly and in their own context, and engage in partnership with Indigenous leadership such as the Indigenous Bar Association, the Aboriginal Lawyers Forum, the Union of BC Indian Chiefs, and the Assembly of First Nations. 

Why this matters

Reconciliation requires both bold changes and practical steps. By committing to transparency, receiving and possibly working with Indigenous legal orders, and 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.

Read the full submission.