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Alisa Lombard’s Published Work on Display at Pacific Business and Law Institute’s Specific Claims Conference

January 14, 2019

On December 14, 2018, Maurice Law’s Carly Fox presented on “The Role of Indigenous Laws in Specific Claims” at the Pacific Business and Law Institute Specific Claims Conference in Vancouver, BC.

The presentation was based on the published work of Maurice Law Associate Alisa Lombard, former counsel at the Specific Claims Tribunal, entitled “Specific Claims Adjudication Processes and Cultural Diversity: Reconciling Societal Traditions,” Canadian Journal of Administrative Law & Practice; Scarborough Vol. 29, Iss. 2, (Jun 2016): 187-207.

The following is a summary of Alisa Lombard’s paper:

I. Reconciliation is a legal imperative

The basic premise of the proposition that reconciliation is a legal imperative is that reconciliation is a shared journey towards the desired outcome of the resolution of issues arising in relation between the State and Indigenous Peoples.

In aspiration of this, the Specific Claims Tribunal may take cultural diversity into account in the development and applications of its rules of practice and procedure.

For example, the Specific Claims Tribunal Act, SC 2008, c 22 empowers the Tribunal to consider:

Any information, including evidence that otherwise would be inadmissible in a court (s. 13(1)(b)); and ¹
Permits the Tribunal to consider cultural diversity in the development and application of its rules of practice and procedure (s. 13(1)(c)).²

Further, the Specific Claims Tribunal itself, being born out of a historic effort between the Assembly of First Nations and Government of Canada, may be seen as a practical and principled example of a means to advance reconciliation by resolution of challenges that have arisen in the Indigenous-State relationship.

The Supreme Court of Canada (SCC) provides guidance on what is meant by this. In R v. Sparrow, [1990] SCR 1075, the SCC endorsed the view that historical wrongs must be recognized (para 49). and iIn Tsilhqot’in Nation v. British Columbia, 2014 SCC 4, the Chief Justice established that “The governing ethos is not one of competing interests but of reconciliation..” Consequently, establishing that reconciliation involves addressing both historical wrongs and contemporary obligations (para 17)..⁴

The Tribunal’s mandate therefore includes the shared goal of reconciliation by acting as a mechanism of reconciliation tasked with engaging novel legal issues – which rests on constitutional underpinnings, including but not limited to section 35 of the Constitution Act, 1982.

Section 35 of the Constitution Act, acts to protect Aboriginal rights against provincial and federal legislative power and provides a framework to facilitate negotiations and reconciliation of Aboriginal interests with those of the broader public (Tsilhqot’in at para 125).. In Canada v. Kitselas First Nation, 2014 FCA 150, the Federal Court of Appeals recognized that these underpinnings apply to the Tribunals work (para 34) and in Little Salmon/Carmacks First Nation v. Yukon, 2010 SCC 53, the SCC acknowledged its reconciliatory nature (para 10)..⁷

Therefore, grounded in statutory powers, regulatory frameworks and the SCC, the Tribunal is mandated to facilitate reconciliation as a legal imperative that is cognizant of historic wrongs and contemporary obligations. As such, it must recognize that such a process involves the plurality of legal perspectives and orders. This gives rise to more refined legal imperative that the societal traditions of Indigenous peoples must be given space in the processes that affect Indigenous interests. Failure to do so would result in an incomplete evidence and affect outcomes.

One example of this is oral history evidence. Challenges to the admission and consideration of oral history evidence are evident, but it is necessary to resolve this tension inherent in the reconciliation of legal traditions. On one hand colonial traditions emphasize written documentation and on the other Indigenous legal traditions are based in oral sources of knowledge keeping. The SCC decision in Tsilhqoti’in demonstrates the dilemma that this presents (paras 17 and 82).. In the absence or inclusion of oral history evidence the thrust of an evidentiary record in adjudicative proceedings can be radically altered.

Therefore, the establishment of procedures allowing for the inclusion of accurate and complete reception of oral history evidence into adjudicative proceedings are critical. A process capable of receiving a complete evidentiary base contributes to a just resolution of claims and a just resolution of claims, both historical and contemporary, enables reconciliation.

II. Culturally Diverse Adjudicative Proceedings in Practice
The Tribunal has developed practical experience dealing with evidence, Indigenous legal traditions and customary law. This is demonstratable in two areas:

Case Management Conferences; and
Hearings.

Case Management Conferences (CMC)
All claims before the Tribunal go through CMCs and Rule 49(1) sets out the matters to be discussed (Specific Claims Tribunal Rules of Practice and Procedure, SOR.2011-119, r. 49(1))..⁹ Notably, it states that every CMC must address,

Protocols for entering of oral history evidence and expert evidence; and
Cultural accommodation issues that must be considered in applying these rules.

As such, CMCs provide a space to:

Discuss how cultural diversity can be infused into the adjudicative process;
Provide the Tribunal benefit of foresight in planning accommodation of cultural diversity in the decorum of Tribunal Proceedings;
Give a Parties opportunities to request time to be set apart during the hearing to provide for expressions of culture, tradition or spirituality; and
Give the Crown opportunity to raise any concerns, seek particulars, provide consent or object.

Therefore, CMCs provide a built-in mechanism to ensure that adjudicators, their staff and all those involved in the process are better prepared by taking an active role in the case management process.

Hearings
Tribunal hearings are public (subject to confidentiality orders).
Further, the Tribunal is mandated to conduct hearings in any manner it considers fit. As such, ways in which cultural diversity have been included, are:

On Site Pre-hearing Discussions

Last minute requests or prayers, songs, dance or other expressions of tradition are often made at the hearing site.
Counsel for the Claimant brings the Claimant community’s desire to the attention of the Registrar and the Registrar informs the Judge. From here, a discussion between Judge and Counsel ensues.
This sort of request has never resulted in the SCT’s inability to accommodate.

Ceremonies, Expressions of Culture, Spirituality and Societal Traditions

Infinite diversity prevails among Indigenous People.
The Specific Claims Tribunal’s facilities provide a “cleansing room” in which medicines used in ceremony may be ignited due to a special vent.
It is best to provide advance notice so that facilities can be prepared.
The Tribunal is open to traditional expressions and may encourage them, provided the parties agree, where arrangements in advance have been made where necessary and they do not prevent the Tribunal from meeting its mandate.

Prayers

Hearings held in communities almost always begin with a welcome from the Claimant’s Chief, Elder or other designate. Expressions of gratitude are often shared in the language of the Nation, in English, or French.

Hearing Opening

Hearings held in communities almost always begin with a welcome from the Claimant’s Chief, Elder or other designate. Expressions of gratitude are often shared in the language of the Nation, in English, or French.

Oral History, Elder and Lay Witness Testimony

Oral history protocols, will-say and will- ask statements are exchanged and filed during the case management and produced well before the commencement of hearings.
Counsel for either party should not be unduly adversarial in examination.
The Federal Court – Aboriginal Bar Liaison Committee Aboriginal Litigation Practice Guidelines provide guidance to the challenges inherent in receiving oral history testimony of adjudicative proceedings - such practice evolves from lessons learned over time.
All witnesses have the option to swear, affirm or confirm the binding of their consciences to truth, however accomplished practically. This may include an eagle feather (however, a witness who wishes to use the eagle feather must bring their own).
Accommodation in adjudicative proceedings requires openness and active listening skills in the adjudicator

Afterhours in Shared/Close Accommodations

When hearings are held on reserve, parties, counsel, the Judge and Tribunal staff are often housed in close proximity.
There may be proclivity of individuals in the community to want to discuss the case or spend time with Tribunal members and staff.
Staff may assist in creating the appropriate distance between the adjudicator and other people where necessary, and should be intuitively proactive in doing so, without offending. They are intrigued and naturally seek to build relationships.
Due regard is paid to the reality that it is the first-time community members see the decision maker in person. The Tribunal’s decision will not come from an unknown bureaucrat in Ottawa. Someone with authority in relation to the fate of a longstanding claim is physically present in the community – listening, engaging – and that, as is a welcome change.

Terminology

To maintain integrity of the adjudicative process, caution and care should be taken to ensure that decisions and orders employ terms and concepts that are legally accurate and appropriate.
The legislative identity of Indigenous governance structures as they manifest today can only be understood with close attention to the legal and political backdrop. Further, Tribunals must take judicial notice where appropriate.

III. The Future
With the dawn of recent SCC decisions, the reconciliation imperative and a general appetite for much needed change, the creation of more specialized and appropriate processes to adjudicate matters relation to reconciliation of Indigenous-State relations must be created.

As such, it is incumbent upon existing and future adjudicative process to actively consider how meaningful effect is given to the Residential School apology, offered on June 11, 2008 in Parliament, which said in part:

“There is no place in Canada for the attitudes that inspired the Indian Residential Schools system to ever prevail again. You have been working on recovering from this experience for a long time and in a very real sense, we are now joining you on this journey.”