In 2015, the Truth and Reconciliation Commission of Canada (TRC) recognized, rightly, that for reconciliation to become a reality, there has to be awareness of the past, acknowledgment of the harm inflicted, atonement for the causes, and action to change behaviour.

The TRC's Reports and the reports of numerous other commissions and public bodies (referred to below in the reference appendix), document aspects of the past that we are collectively responsible to address as part of the ongoing process of reconciliation. This history includes harmful government policies, rooted in Canada’s colonial past and enforced through law, which have resulted in inequalities between generations of Indigenous people and broader Canadian society. The Court of Appeal for British Columbia acknowledges these historical wrongs and the painful experiences of Indigenous people and peoples in a justice system that has too often failed them.

The Court began examining its role in reconciliation several years ago when reconciliation became a standing item on the Court’s agenda. Then, in 2022, former Chief Justice Robert Bauman established a working group, chaired by Justice Fenlon, to embark on a focused period of learning from people and organizations experienced in advancing reconciliation initiatives, including in the unique setting of the courts.

This period of study and reflection led the Court to develop its Reconciliation Framework and Action Items. The Reconciliation Framework describes the Court's understanding of reconciliation and its commitment to advancing reconciliation in all of its work. The Action Items provide a transparent, measurable path for applying the Reconciliation Framework.

In developing the Reconciliation Framework and Action Items, the Court has considered its duty to uphold and defend judicial independence. The Court understands its responsibility to uphold the constitutionally guaranteed right of everyone to have their disputes heard and decided in a fair way, based on the law and the evidence and free from other influences. The Court also recognizes that impartiality requires judges to be sensitive to others’ realities and consider different points of view, always with an open mind (see the Ethical Principles for Judges s. C.3.C).

The Court considers the Reconciliation Framework and Action Items to be living documents. The Court expects these documents will change over time to reflect the Court’s ongoing work towards reconciliation and relationship-building. With all of that in mind, the Court will continue to include information about its activities related to reconciliation in its annual reports and elsewhere. The Court welcomes constructive feedback on the Reconciliation Framework and Action Items.

Section 35 of the Constitution Act, 1982

• Recognizes and affirms existing Aboriginal and treaty rights

Case Law, e.g.:

• R. v. Sparrow, [1990] 1 SCR 1075
• R. v. Van der Peet, [1996] 2 SCR 507
• Delgamuukw v. British Columbia, [1997] 3 SCR 1010
• Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73
• Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), confirming rights such as self-determination, self-government, title, equality, and well-being

• The BC Declaration on the Rights of Indigenous Peoples Act, SBC 2019 c. 44, implementing UNDRIP by requiring the government to bring provincial laws into alignment with UNDRIP and by developing and implementing an action plan aimed at UNDRIP’s goals
• The Draft Principles that Guide the Province of British Columbia's Relationship with Indigenous Peoples, declaring a renewed relationship with Indigenous peoples and committing to working together.

The CJC Ethical Principles for Judges

• "Judges are expected to be alert to the history, experience and circumstances of Canada’s Indigenous peoples, and to the diversity of cultures and communities that make up this country. In this spirit, the judiciary is now more actively involved with the wider public, both to enhance public confidence and to expand its own knowledge of the diversity of human experiences in Canada today." (8)
• "Professional development describes formal and informal learning activities that include education, training and private study. It also covers education on social context issues affecting the administration of justice. Social context encompasses knowledge and understanding of the realities of the lives of those who appear in court. This includes the history, heritage and laws related to Indigenous peoples, as well as matters of gender, race, ethnicity, religion, culture, sexual orientation, gender identity or expression, differing mental or physical abilities, age and socioeconomic background." (3.C.3)

The Guidelines of the Action Committee on Modernizing Court Operations regarding Indigenous practices in the courts – This document (reproduced as Appendix B to this memo) is designed for use as guidance by all Canadian courts and sets out considerations and examples for incorporating Indigenous practices in the existing court system.

The 2020 BC First Nations Justice Strategy

• Includes objectives of further development of First Nations Courts, embedding a presumption of diversion, enhancing training of justice system entities, and increasing the number of First Nations people working within the justice system, including as judges.

The 1989 Royal Commission on Donald Marshal Jr. Prosecution

The 1991 Report on Aboriginal Peoples and Criminal Justice

The 1991 British Columbia Report on Chilcotin Justice Inquiry

The 1996 Royal Commission on Aboriginal Peoples

The 2001 Manitoba Aboriginal Justice Implementation Commission

The 2015 Truth and Reconciliation Commission Report and Calls to Action

The 2019 Missing and Murdered Indigenous Women and Girls Report

The NJI's Reconciliation in Canadian Courts Bench Book

The Law Society of BC's 2022 Indigenous Framework and 2018 Truth and Reconciliation Action Plan

CBA BC's 2023-25 Reconciliation Action Plan

The BC Prosecution Services Reconciliation Framework

• Includes a commitment to education, to pursuing culturally appropriate practices and procedures, and to engaging with Indigenous communities on system reform

The BC Directives on Civil Litigation Involving Indigenous Peoples

• States that conflict resolution is best addressed through government-to-government negotiations, and that meaningful reconciliation "is rarely, if ever, achieved in courtrooms" (citing Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 at para. 24)
• Mandates that government counsel must understand and apply the BC Declaration on the Rights of Indigenous Peoples Act and Draft Principles in all its work, and to vigorously pursue alternative resolution options throughout the litigation process.
• Mandates that litigation must be simplified and expedited to the extent possible, including by making admissions, reviewing denials, sparingly resorting to limitations and equitable defences, and avoiding arguments about which order of government is responsible.
• Mandates that oral history evidence is a matter of weight, not admissibility, and that appeals must be limited to important questions of principle and must be approved by the Attorney General or their delegate.