Indigenization of Civil Litigation: Barriers and Opportunities

Abstract

This paper considers the Indigenization of civil litigation as a means to promote decolonization and reconciliation within the Canadian legal framework. In light of the growing proximity of Indigenous to non-Indigenous communities, the task of Indigenization has taken on a new urgency. However, there are many obstacles to the goal of Indigenization. Two barriers that are examined in this paper are the secrecy and confidentiality that surrounds civil litigation under Canadian law, and a related issue, the seemingly esoteric nature of Indigenous laws—that is, laws that are not well known or easily knowable outside of Indigenous communities. As part of that examination, this paper points to a decision of the Ontario Superior Court of Justice that gives us an early indication of how we might achieve the objective of Indigenizing civil litigation and overcome the obstacles identified. It then briefly discusses the Indigenization of civil disputes in the context of self-governance regimes, followed by a discussion of various other initiatives that promote the settlement of disputes. Settlement is promoted because it is seen as being more aligned with Indigenous legal traditions than litigation. Finally, this paper discusses a key consequence of settlement, being that settlement can cloak the manner and terms of resolution under a veil of secrecy.