The Lawyers Weekly - January 20, 2012

Civil actions to recognize Aboriginal rights must respect the ordinary rules of civil litigation and pleading, including clearly identifying what rights and relief are being claimed, the Supreme Court says.

Justice Ian Binnie’s recent ruling sets out a four-step approach that trial judges should follow in determining Aboriginal rights claims under s. 35(1) of the Constitution Act 1982 in the context of a civil declaratory action (as compared with Aboriginal rights claims made in the context of claimants defending themselves in regulatory or criminal proceedings).

The 7-0 decision upholds the judgment of the British Columbia courts that the factual and expert evidence from a 126-day trial did not establish that the members of the Lax Kw’alaams Band have a constitutionally protected Aboriginal right to commercially harvest and sell all species of fish in the waters off their ancestral lands along the north-west B.C. coastline. Nor do they have a more limited commercial right: Lax Kw’alaams Indian Band v. A.G. Canada.

The Supreme Court’s judgment sends out an important procedural message about civil declaratory actions to recognize Aboriginal rights.

Justice Binnie said trial judges
should start out by characterizing
the claimed Aboriginal right based
on the claimants’ pleadings, and
not by first conducting a free-ran-
ging inquiry into pre-contact
Aboriginal customs and practices.
Then, “if necessary, in light of the
evidence [at trial], refine the char-
acterization of the right claimed on
terms that are fair to all parties.”
He explained that “quite apart
from being inconsistent with the
jurisprudence that calls for ‘char-
acterization of the claim’ as a first
step, the ‘commission of inquiry’
approach is not suitable in civil
litigation, even in civil litigation
conducted under rules gener-
ously interpreted in Aboriginal

The trial of an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam the seas interminably with no set destination and no end in sight.

“

Justice Ian Binnie

cases to facilitate the resolution
in the public interest of the
underlying controversies.”
Matthew Kirchner, who repre-
sented the Lax Kw’alaams along
with John Rich and Lisa Glowacki
of North Vancouver’s Ratcliff &
Co., said the court has indicated
that “Aboriginal plaintiffs need to
set out with some precision
exactly what declaration they are
claiming, and it’s not good enough
to frame it broadly and ask the
court, based on the evidence, to
frame the final declaration in
whatever more narrow terms it
might find based on the evidence.”
Kirchner suggested the ruling,
therefore, “raises the question
whether it’s less risky then to
bring these cases by way of
defences to regulatory prosecu-
tions, than by way of civil claim.”
He advised Aboriginal law
practitioners, in light of Lax, and
the British Columbia Court of
Appeal’s recent decision in
another commercial fishing rights
decision, Ahousaht Indian Band
and Nation v. Canada, 2011 BCCA
237, “to think of every possible
angle on the right you’re claiming,
and as many variants that could
conceivably be considered by a
court in characterizing the right,
and plead every single one of them
as alternatives.”
That approach might be cum-
bersome and complicated, Kirch-
ner acknowledged. But “I think
that’s the only safe way that you
can protect yourself in pleading
these cases,” he explained. “And
then be prepared to amend the
pleadings, frequently if necessary,
as the trial is progressing, and as
the evidence is taking shape” with
the aim of ensuring that “you’ve
built the case up in a way that the
Crown isn’t in a position to claim
prejudice for a potential amend-
ment during the trial.”
Federal Department of Justice
senior general counsel Cheryl
Tobias in Vancouver said the
decision recognizes that the nor-
mal procedural rules can ensure

Diversity seen as good for business

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Ontario and British Columbia,” a Barreau statement to The Lawyers Weekly said.

Both Norton Rose and Fasken Martineau DuMoulin are involved with the project in Ontario.

Fasken partner Douglas New
told The Lawyers Weekly that
the firm was concerned that the
number of women on the part-
nership track was not reflecting
the number of women in law
schools.

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fairness in an Aboriginal rights civil action.

“From a defendant’s point of
view, there are several adverse
consequences of the approach
advocated by the appellants,” she
suggested. “One of the important
ones is that the defendant would
be called upon to justify, in both
evidence and argument, possible
infringements of any and all
rights that could conceivably be
found at the end of the day.”
In their pleadings, the Lax
Kw’alaams framed their commer-
cial fishing right claim very broadly.

But they contended that the trial judge could only characterize their claim after she inquired into, and made findings about, their pre-contact fishing practices more than 200 years ago. If she rejected their broad claim, they urged her to re-characterize their claim more narrowly to find any “lesser and included rights” that were consistent with the evidence, such as the right to a more restricted commercial fishery, or an even narrower right to fish for food and social and ceremonial purposes.

Such a “commission of
inquiry” approach would be
illogical, contrary to authority,
and defy the applicable rules of
procedure, Justice Binnie said.
“The trial of an action should
not resemble a voyage on the
Flying Dutchman with a crew
condemned to roam the seas
interminably with no set destin-
ation and no end in sight.”
It would not be in the public
interest to permit a civil trial to
lapse into a free-ranging general
inquiry into pre-contact customs
and practices “from which, at the
end of the day, the trial judge
would be expected to put
together a report on what
Aboriginal rights might, if prop-
erly raised in the pleadings, have
been established.”
In this case, the evidence of
their pre-contact fishing practi-
ces and customs disclosed that
the Lax Kw’alaams traded only in
products from eulachon, a spe-
cies of fish whose oil was used as
a preservative.

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Financial Services Commission of Ontario

ONTARIO GOVERNMENT NOTICE
Request for Proposal (RFP) for Mediation and
Arbitration Services
RFP# OSS 00214497

The Financial Services Commission of Ontario (FSCO) requires up to four dispute resolution companies to provide high volume mediation and/or arbitration services in order to eliminate its backlog of files.

Under s. 279 of Ontario’s Insurance Act, FSCO must ensure a fair, accessible and timely process for resolving disputes in respect of a person’s entitlement to statutory accident benefits or the amount of those benefits under the Statutory Accident Benefits Schedule.

Due to unprecedented demand in recent years, FSCO has a large backlog of dispute resolution files. For this reason, FSCO has issued RFP# 0SS 00214497 inviting prospective proponents to submit a proposal for the provision of mediation and/or arbitration services on behalf of FSCO.

The RFP is available only through MERX™ the electronic tendering system used by the Province of Ontario. For further information about MERX™, call 1-800-964-MERX or visit the MERX™ website at www.merx.com.

Proposals will be received by 11 a.m. Toronto time on February 24, 2012 or as amended by addendum at the Ministry of Government Services, Ontario Shared Services, Tenders Administration Office, 700 University Avenue, 6th Floor, Toronto, ON M7A 2S4. Late or misdirected proposals will not be accepted and will be returned unopened.