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Pre-Litigation Agreements in Aboriginal Rights and Title Litigation

Aboriginal rights litigation is notoriously complex. It involves proof of facts dating back hundreds of years. Cases are frequently set against a backdrop of overlapping territorial claims that can give rise to disagreements between neighbouring First Nations and different modern Aboriginal groups that descend from a common ancestor or Aboriginal nation, which can give rise to multiple plaintiff litigation. These matters, if not handled properly at the outset of litigation can seriously delay the litigation that First Nations have opted to bring or even derail it altogether. Thus, it is prudent for aboriginal plaintiffs to turn their minds to these issues before commending an action and consider how they may be addressed to avoid problems once the litigation is commenced. Pre-litigation agreements can be an important tool for dealing with these matters at the outset.

In this paper and corresponding presentation, I propose to focus on two types of pre-litigation agreements. First I will comment on boundary agreements that address (or, preferably, resolve) overlapping territorial claims both with neighbouring First Nations and amongst co-plaintiffs. In this part of the paper I will provide some context for how these overlapping issues arise, discuss how they can be a problem for litigation, explore how they can be addressed through a pre-litigation agreement and comment on the effectiveness of a pre-litigation boundary agreement in respect of the substantive issues in the case.

Second, I will comment on the use of pre-litigation agreements in cases where multiple First Nations are jointly pursuing an aboriginal rights claim. In this section, I will identify some issues that First Nations may wish to consider incorporating into a pre-litigation agreement that accommodates multi-plaintiff aboriginal litigation and minimizes the risk of conflicts arising amongst the plaintiffs in the course of the litigation.

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