The Lax Kw’alaams decision was released on Thursday. I’m sure many will be disappointed in this unanimous judgment, and I believe there is plenty of material for critical scholars in the reasons. Rest assured, I have my own issues with this case, which I will likely address at some later point in time.
I’m a bit of a contrarian, so I’d rather discuss one positive aspect of this judgment, authored by Mr. Justice Binnie. I’ve heard he’s retiring, so this may be his last aboriginal law judgment.
One of the issues raised in Lax Kw’alaams is the issue of pleadings. The Court was quite direct that in civil litigation, there are specific rules for pleadings which require the plaintiff to clearly and specifically articulate the nature of its claim. This is extremely important because it allows the defendant to properly defend the claim.
I’ve been perplexed about claim characterization for quite some time. Some of my concern or confusion likely stems from the complexity of defining and proving aboriginal rights claims, at least when compared to other types of civil litigaton. Then again, maybe all civil litigation is complex. An aboriginal rights claim is defined by the plaintiff in its pleadings. But the characterization of that claim is an issue of law. This means the court defines the claim. It strikes me one could get all the way through a trial only to see a court characterize a claim in such a way as to surprise plaintiff, defendant or both. As a matter of law, characterization of a claim can even be altered on appeal, something I believe this occurs with disturbing frequency. Disturbing because courts may be accused of outcome-based decision-making (if the case is disposed of and neither party has had the opportunity to respond to the proper characterization of the claim) or they may be complicity in dramatically increasing the cost of litigation, by ordering another trial.
What I like about this judgment is that Mr. Justice Binnie outlines the appropriate procedure for determination of aboriginal rights claims at paragraph 43 (it’s a bit lengthy, so I’ll spare a full quote for now).
What I like about the Lax Kw’alaams judgment is that Mr. Justice Binnie has conveniently identified a four step approach. The first step is characterization of the claim. The reason why I think this is helpful is that it raises the possibility that either plaintiff or defendant could propose a phased approach to trial, requesting a finding on characterization before the evidentiary phase.
Aboriginal rights trials are, as I understand them, lengthy affairs (I have no point of reference for how long ‘regular’ trials take). This makes them quite expensive. It would be extremely helpful to have an idea what is being argued prior to the trial phase.
Mr. Justice Binnie’s approach also allows for refinement of the characterization during or after the evidentiary phase. Again, I find this to be remarkably helpful. As the Court notes, new issues often arise during trial. If nothing else, it would allow characterization of the right claimed to be dealt with through focused motions practice, rather than through an appeal of a trial judgment that, like this one, raises any number of issues – both factual and legal.
If a right were characterized in such a way as to be unsatisfactory to an aboriginal claimant, it could force an early tactical decision to abandon the claim (even taking a risk of having a future claim barred), proceed or appeal. The appeal wouldn’t focus on what the evidence supports, but rather what the plaintiff is actually attempting to demonstrate to the court. This makes characterization of the right an issue of law that may be disposed of much more inexpensively than going through a trial and then evaluating characterization in light of the evidence presented (which itself raises a number of issues)
A two minute argument for something good that may be gleaned from the Lax Kw’alaams case.