Former PCO clerk Michael Wernick warned that the former justice minister’s directive could ‘gutted at the stroke of a pen.’
Liberal MP Jody Wilson-Raybould, left, issued formal guidelines for lawyers defending the government against lawsuits from First Nations before she was shuffled out of the Justice minister role in January; new Justice Minister David Lametti, Conservative Justice critic Lisa Raitt, and deputy NDP justice critic Murray Rankin have all endorsed those guidelines. The Hill Times photographs by Andrew Meade
Attorney General David Lametti and the opposition justice critics say they will stand behind former justice minister Jody Wilson-Raybould’s instructions to government lawyers, telling them to give fair treatment to First Nations suing the government over treaty rights, after departing PCO clerk Michael Wernick warned Ms. Wilson-Raybould’s instructions could be “gutted” by a new government or attorney general.
Two Canadian lawyers who represent First Nations in treaty cases say the directive was a step toward reconciliation, but only has as much strength as the government of the day gives to it.
“It’s not legislation,” said Kate Gunn, a lawyer with First Peoples Law in B.C. “A lot of it depends on the extent to which government, the bureaucrats are committed to pushing for it to be fulfilled.”
Ms. Wilson-Raybould’s directive included 20 guidelines for the government and its lawyers as they deal with litigation over treaty rights with Indigenous peoples. The guidelines say that government lawyers should not object to First Nations’ claims of historical use of a territory when there are “no conflicting interests” involved; that oral history should be treated respectfully as evidence; that the government should try to settle disputes out of court; and more.
Government lawyers have for years fought back against lawsuits from Indigenous people and First Nations by using “delay tactics” in court that make fighting the cases too expensive for the First Nation or Indigenous group behind the suit, said Scott Robertson, a lawyer with Nahwegahbow Corbiere Genoodmagejiig Barristers & Solicitors and the president of the Indigenous Bar Association of Canada.
Those tactics have included challenging First Nations’ sovereignty over the lands they had long occupied, he said. MORE