Will B.C.’s DRIPA Action Plan put an end to government’s scorched-earth tactics in the courtroom? A tabletop exercise
B.C. has committed to shift away from patterns of litigation with Indigenous Peoples. What does this mean, and what would change on the ground?
Since RAVEN’s founding in 2009 we have witnessed an explosion of Indigenous courtroom victories: on Aboriginal title (Tsilhqot’in) and Treaty rights (Blueberry), as well as a flurry of judicial reviews leading to the cancellation of pipelines (Enbridge, Petronas) and mines (New Prosperity) on Indigenous territories.
Each of these victories represents not just a win for Indigenous rights and the integrity of Indigenous lands, but is a miracle of endurance and spirit. When Indigenous Nations go to court, they face a battery of well-funded government lawyers operating from a well-thumbed colonial playbook: deny each and every claim; get the case thrown out if possible; clog the process with a blizzard of procedural motions; reach deep into the public purse to outspend the Nations; and repeat until the case dies from attrition.
But with the implementation of the Declaration on the Rights of Indigenous Peoples Act (DRIPA) B.C. has purportedly turned over a new leaf. On April 21, 2022 B.C. Attorney-General David Eby issued a set of 20 Directives on civil litigation involving Indigenous Peoples, which legal counsel representing the B.C. government must follow. The Directives require Crown counsel to work diligently to resolve issues as much as possible through negotiations, and use court process only as a last resort. Counsel must also avoid unnecessary motions and delays that would impose a heavy cost burden on Indigenous communities.
The Directives echo – and, at times, replicate to the letter – a directive issued in 2019 by then Canada Attorney-General Jody Wilson-Raybould. Three years later, Canada doesn’t appear to have made much progress with implementing them. Whether B.C. will do better remains to be seen.
So is this the death knell of the scorched-earth litigation tactics that have served the colonial agenda so well? What would really change on the ground if B.C. implements the Directive? Let’s do a tabletop exercise and find out! We’ll use RAVEN’s Gitxaała campaign as an example.
The Gitxaała legal action case seeks the cancellation of mineral permits on Lax k’naga dzol (Banks Island). Gitxaała says the way mineral rights are granted on Indigenous territories – automatically, with only a click of a mouse and a small fee, without consultation or notification of Indigenous communities – contravenes DRIPA and is contrary to the honour of the Crown.
This case would be a perfect opportunity to showcase the implementation of Directive #1 (“apply DRIPA”), Directive #4 (“prioritize negotiation over litigation”) and Directive #12 (“make admissions wherever possible”). As well, Directive #7 (“avoid unnecessary motions and delays”) and Directive 13 (“do not use broad denials”) are also relevant. So how did B.C. do?
Let’s start with the good news on Directive #7. Gitxaała filed their action in October 2021, and B.C. submitted its Response in March 2022 and didn’t file any procedural motions. So far, so good: B.C. acted in a straightforward and expeditious manner.
On the application of DRIPA (Directive #4), B.C. seems to be deeply conflicted. Its Response to Gitxaała starts out by extolling DRIPA as a framework for reconciliation, and acknowledges the requirement, in article 3, for the government to take all measures necessary to ensure the laws of British Columbia are consistent with the UN Declaration. But in the next breath it argues that DRIPA doesn’t really give the UN Declaration any independent force or require the province to amend other legislation. That’s a head scratcher: which is it?
We get it: the government would much prefer to follow the way of the tortoise with its DRIPA Action Plan, with many stops along the way to “reconcile” the perspectives of multiple Indigenous Nations (not to mention industry stakeholders), than see the Mineral Tenure Act be struck down by the judge for noncompliance with DRIPA or section 35 of the Constitution, which could trigger a domino effect on other legislation.
But there is an easy way out here that doesn’t create any unfavourable (from the government’s point of view) precedents: sit down and negotiate. This is precisely what Directive #1 tells Crown counsel to do. And B.C. has already bitten the bullet when it comes to the Mineral Tenure Act: the 2022 DRIPA Action Plan commits the province to amend and modernize it. What’s more, minor changes to the operation of the Mineral Registry (to include notification of Indigenous Nations) are on track to come into force in the fall of 2022, much sooner than any judgment could possibly be handed down. So why not work with Gitxaała to narrow the gap?
This also goes to Directive #12 (“make admissions”). The only admission B.C. makes in its Response to Gitxaała is this one: “The Province admits that it has knowledge of the potential existence of the Aboriginal rights of Gitxaała Nation, including asserted Aboriginal rights in relation to Banks Island.” While this certainly shows some progress compared to past litigation in which the province denied the very existence of Aboriginal title and/or rights, in the post-Tsilhqot’in world accepting the “potential existence of Aboriginal rights” doesn’t earn you any plaudits: it is the lowest possible denominator.
Which brings us to Directive #13 (“avoid broad denials”). B.C. spills much ink on denying Gitxaała’s concerns about the impact of “free miners” (mineral rights holders) conducting mineral exploration on the land without the Nation’s consent. Under the Mineral Tenure Act, free miners are allowed to conduct aerial surveys and excavate small-scale pits and trenches without a special permit. Gitxaała points out that even such “transitory activities” can disturb wildlife, interfere with hunting and harvesting, and disrupt cultural activities. For Crown counsel to dismiss these concerns, and equate disturbance from mineral exploration with hiking or boating, courts the absurd.
In her comment on the Directives former Justice Mary Ellen Turpel-Lafond summarized the Crown’s past practice as follows: “We know in the past, endless procedural and technical motions and a blanket denial of rights poisoned relationships.” The positions taken by Crown counsel in the Gitxaała case show how entrenched this mindset is, and how hard it will be to turn around. Here at RAVEN, we always take our lead from the Nations, and once again we follow the determination of Gitxaała with our own to raise the funds needed to see this one right through to the bitter end.