We are pleased to post our letter to the BC Supreme Court’s Reconciliation Working Group.
September 30, 2025
Dear Sirs and Mesdames,
RE: Advancing reconciliation in the courts
We write in response to the Court’s invitation for those who are interested, including members of the bar, to address the Court’s role in advancing reconciliation.
We applaud the courts for revising processes to accommodate Indigenous practices and to improve the cultural safety of proceedings. Meaningful participation is an essential pillar of reconciliation. Yet procedure is not enough. Reconciliation requires a principled review of the law, including the common law, against Indigenous human rights, with a readiness to re-examine doctrines that entrench colonial assumptions about title, jurisdiction, and resource use.
Judicial independence is not threatened when courts substantively uphold reconciliation because independence guards against improper influence from the executive or legislature, not against courts performing their core judicial work. Interpreting statutes, applying section 35 of the Constitution Act, 1982, giving effect to legislated directions like British Columbia’s DRIPA and Parliament’s UNDRIPA, and developing the common law and equity in light of fundamental rights, are all orthodox judicial functions. Courts do not pick sides by doing this. Engaging with reconciliation simply means reading and shaping the law in a way that reflects binding constitutional norms and enacted human-rights commitments. That work reinforces, rather than erodes, judicial independence because it affirms the court’s role as an impartial adjudicator that explains and evolves the common law through transparent reasons grounded in law.
We respectfully suggest that the Court’s role as the custodian of the common law, and its interpreting the common law consistently with the human rights articulated by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), is an essential pillar of reconciliation. The role of the Court is ultimately to not only maintain, but to shape common law principles and rights with a view to fundamental values. These fundamental values now include Indigenous-specific human rights articulated by UNDRIP.
Accordingly, one role of the Court includes grappling with the colonial foundations of Canadian law, including the doctrine of discovery and the legal doctrines that continue to flow from it. One significant and persisting impact, for example, is the pre-UNDRIP presumption that all First Nations territories, including all resources on such lands, are beneficially owned by the Crown, even though the Crown has never entered any treaty respecting such lands. The law thus requires that any First Nation “prove” their prior occupation before acquiring any legal title to territory that the Crown never acquired, except by legal presumption. Such a lop-sided presumption is a heavy and significant structural barrier that overwhelmingly favours the Crown, as well as any Crown-approved industrial and commercial projects that take, consume, or impair Indigenous resources. Such a presumption further impairs the ability of First Nations in obtaining interlocutory injunctions to preserve their rights. The Crown has already deferred a reckoning of its colonial rights to Indigenous lands for over one-and-three-quarter centuries. Until the justices of the Court actively grapple with such one-sided colonial legal principles that manifest the doctrine of discovery, the law actively preserves the colonial status quo, and incentivizes the Crown to continue disputing and deferring recognition of Aboriginal title and rights.
A corresponding role of the Court includes grappling with how the common law incorporates UNDRIP rights, both as human rights, and as rights recognized and affirmed by section 35 of the Constitution Act, 1982. For example, Article 26 of UNDRIP expresses the right of Indigenous peoples “the lands, territories and resources which they have traditionally owned,” and the right to “own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use….” Any presumption of Crown beneficial ownership, for example, is now open to being interpreted in the light of foundational Indigenous human rights, instead of uncritically relied upon to stymie important elements of reconciliation, such as restoring to First Nations their ownership of and jurisdiction over traditional territories, habitats, and resources.
The bases for the Court’s role in addressing the legal foundations of colonialism are already firmly established in law:
- First, section 2(a) of the Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c. 44, affirms the application of the Declaration [UNDRIP] to “the laws of British Columbia”, and not merely to the enactments of British Columbia. (Similarly, the federal United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c.14, also affirms, in section 4(a), the Declaration as “a universal international human rights instrument with application in Canadian law”, and further clarifies in its preamble that the Declaration “is affirmed as a source for the interpretation of Canadian law….”)
- Second, section 8.1(3) of the Interpretation Act, RSBC 1996, c. 238 requires that all provincial enactments be interpreted consistently with UNDRIP: “Every Act and regulation must be construed as being consistent with the Declaration.” This interpretive mandate includes any interpretation of section 3 of the Law and Equity Act, RSBC 1996, ch. 253, which statutorily makes English common law applicable in British Columbia, but subject to “local circumstances” that include British Columbia’s Indigenous peoples and their inherent rights.
- Third, the Court itself is both a common law court and a court of equity. Equity has long been corrective, to mitigate rigid or unjust applications of the common law, and has superseded the common law since the decree of King James I to that effect in 1615. The court’s equitable jurisdiction has always been a role allowing the Court to give effect to rights grounded in conscience, where the law otherwise lags. The Supreme Court of Canada has not invoked equitable principles by accident when referring, for example, to Aboriginal title as a “beneficial” interest that burdens the Crown’s legal interests.
Additionally, we bring the Reconciliation Working Group’s attention to the structural problem of Indigenous matters split between the jurisdiction of provincial and federal courts. For example, where one of our First Nations clients brought suit for a devastating bunker oil spill in a marine harvesting area that the Nation considered one of its “bread baskets”, a complete lawsuit brought before this Court was forcibly bifurcated between this Court and the Federal Court. Nothing about splitting matters between courts make justice more accessible to Indigenous communities. The problem of split jurisdiction requires procedural innovation that only the Court can provide, developed in concert with the Federal Court, such as through cooperative procedural mechanisms that create a single process or tightly coordinated parallel processes (for example, joint case management, harmonized schedules, shared records, reciprocal recognition of interlocutory orders, coordinated or consecutive hearings, and, where authorized, cross-appointments that allow a judge to sit in both capacities). There is no constitutional prohibition against cooperative procedures that bridge or unify processes between this Court and the Federal Court (provided each court acts within its statutory jurisdiction), and such procedures would enhance access to justice for Indigenous communities. The BC Human Rights Tribunal and the Canadian Human Rights Tribunal are already working on such bridging processes in aboriginal human rights cases where the jurisdictions of both tribunals are engaged.
We hope that ultimately, by this Court recognizing its authority to interpret and develop the common law through the lens of Indigenous rights, and by expressly addressing the colonial foundations that continue to shape the legal system, this Court can lead reconciliation in its most substantive sense. We also hope that the Court may collaborate with the Federal Court, within each court’s statutory jurisdiction, to implement cooperative procedures that bridge or tightly coordinate parallel processes that may enhance access to justice.
As lawyers who have each practiced for over 25 years in British Columbia, we have witnessed the shifting ground in the profession, the courts, and the legislature toward uplifting reconciliation. We are proud of the fact of the Court of Appeal making a public reconciliation statement, and of this Court calling for public input on their reconciliation measures.
Sincerely,
Lisa C. Fong, KC and Michael Ng