Access to justice: Potential alternatives for indigenous peoples.

AuthorHunter, Troy

About a year ago, there had been some publicity concerning Louie v. Louie BCCA, a court case where I acted as barrister and solicitor for an intervenor at the B.C. Court of Appeal. The case had involved a band member who sued his Chief and Council for a breach of fiduciary obligation. I was approached at different times by a number of other concerned people who also wanted to sue the leaders in their communities over things such as alleged mismanagement of communal funds or even bigger questions about who has authority in land claims, etc.

I remember that one of the chiefs sued in Louie v. Louie, commented to me about the practice of band members suing chiefs. If I recall, his comment was that it shouldn't happen. Chiefs are part of the fabric of the community; they themselves stem from the grassroots people and often have the highest hopes for their communities. I very much agree; it shouldn't have to happen. However, there are times when individuals feel that they have no choice but to turn to the court to try to get their issues resolved.

Here, at this juncture, is when Indigenous law has an opportunity to flex its muscles and become the authority but that is not always the case. Rather than seeking resolution through consent-based processes that likely involve Elders and other community people, the courts are sought for binding judicial decision-making.

It's not an easy process to go to court, especially in situations where there is an imbalance of power, for example, between a chief and grassroots band members. Oftentimes, grassroots band members lack the financial capacity to carry a case through to completion of trial because the court system has become an expensive process.

Speaking of costs, the Tsilhqot'in case is the landmark Aboriginal title case in Canada and the only case where the judiciary has ruled that a First Nation has Aboriginal title. It cost tens of millions of dollars. How different is this than the First Nation that borrows $25 or $30 million to negotiate a treaty? Well certainly there are big differences, but in the big picture, the end result is similar. In both processes, there are vast expenditures of resources, and ultimately, there is settlement of some kind that involves setting out treaty land or aboriginal title land. To me, they are the same thing.

One of the biggest advantages of negotiation over litigation is that the parties involved control the outcome through consent. When litigation is involved, a...

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