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THE MOST CITED CASE IN ABORIGINAL LAW (1995-2015)...

7/6/2017

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​This is the second post in my series on analytics and aboriginal litigation
 
The focus of this post is on how analytics can reveal some interesting facts about the relative importance of different issues and different cases in aboriginal law.  The big question is ‘what is the most important aboriginal law decision rendered between 1995 and 2015?’
Please note that I’m not asking which case had the most influence over aboriginal law during that period, just which aboriginal law decision was the most influential.  The distinction, if you haven’t picked up on it yet, will become apparent.
Since I’m using a dataset by CANLII, I measure the ‘influence’ of a case in terms of how often it was cited by other cases in the CANLII dataset.  Naturally, this is somewhat limiting, in the sense that ‘influence’ is reflected only in terms of those cases reported through CANLII (there are boatloads of unreported cases decided every year).
I expected that Haida would likely be the most influential, although since it was decided in 2004 and this dataset runs from 1995 to 2015, I would figure that perhaps VanderPeet or Delgamuukw, both seminal cases, might ultimately win out.  Man, was I wrong (kinda).
The most cited aboriginal law case during that period, and by a wide margin, was British Columbia (Minister of Forests) v. Okanagan Indian Band.   That right there should tell you a lot about how aboriginal rights litigation (and really a lot of other litigation) works in Canada.
 To be fair, Okanagan isn’t really an aboriginal rights decision – it has far reaching implications, well beyond aboriginal rights law.  The core holding of Okanagan relates to an advanced cost order.

The point of an interim costs order is to provide claimants counsel with funding as they advance litigation.  This allows the case to proceed, and most important for claimants counsel, allows them to continue to be paid to advance the claim. This decision was, in essence, a finding that aboriginal rights lawyers could be entitled to an award of interim costs.  This is no small matter in aboriginal rights law, as many of these cases can stretch over decades and can cost claimants (in this case a First Nation government) millions of dollars to prosecute.  It’s a natural outgrowth of pursuing aboriginal rights claims through civil litigation (as anyone who has seen the film ‘A Civil Action’ would surmise, one popular strategy in civil litigation is for wealthy litigants to use procedural rules to drag out and increase the cost of litigation, making it more likely to both get a favorable settlement and to deter future litigation.  Few litigants have deeper pockets than a government, which literally has a mint at its disposal.  This can obviously present a problem for claimants counsel, who need a constant source of funding to advance a case, and in many cases lack a mint of their own.

Okanagan is the one aboriginal rights case which is extremely helpful to lawyers, and hence, is the most cited case in my inventory.  And don’t pick on counsel for claimants exclusively.  Consider that counsel for the Crown also have incentives for advanced cost orders: increased pace of litigation means more demand for Crown attorney, more overtime and most important in government, more prestige for Crown counsel working in aboriginal rights.  In a very real sense, if you’re a lawyer working in aboriginal rights cases, Okanagan should be a total winner for you.

Even if you happen to be one of the few devoted aboriginal rights lawyers barely scraping by to advance your client’s rights, or a claimant, Okanagan is also great news for you because it enhances access to justice.  Without this decision, its quite likely that many claims brought by impecunious clients might never see the light of day.  Of course, to figure out how many, you’d need to examine the cases where Okanagan was cited (something I could do, but never got around to) to assess the efficacy of advance cost orders to enhance access to justice particularly for indigent clients.  That’s some other project which would benefit from the application of this analytic.
 Also, please consider that this is drawn off the same search logic I used in my initial post.  That means it excludes cases like Gladue…quite likely a case which is cited much, much more often than any of these other cases.  Sad, but true, I would suspect the number of reported (and more importantly unreported) cases which cite Gladue is likely several orders of magnitude greater than anything I would discuss in this blog.

To get to the numbers, at the time I ran this data, Okanagan was cited by 517 other cases, yet Delgamuukw, an older and foundational case in aboriginal rights law, was cited 455 times and at number three on my list is Lameman.

Of these three cases, Delgamuukw is the one which most people would consider a ‘win’ for the claimant.  I certainly wouldn’t, mainly because the core result in Delgamuukw was to remand the case: the claimant neither ‘lost’ nor ‘won’ any remedy.  Okanagan is a definite and clear ‘win’ for the lawyers working on behalf of indigenous peoples (and more important for the principle of access to justice), but isn’t a decision about the merits of the broader dispute in front of the court.  Similarly, Lameman is a decision which holds that limitation periods apply to certain types of aboriginal rights claims.  I imagine Lameman is so popular because the Crown likely invokes it quite frequently in order to dispose of claims, without the need to proceed to the merits of the case.
In other words, the three most cited cases between 1995 and 2015 (as of early 2016) were a foundational decision on aboriginal title, oral evidence and possibly consultation, a decision which ensures counsel gets compensated and a decision which establishes a powerful technical defense for the Crown.  What’s most interesting to me, is that of the three ‘most important’ cases I identified, none of these cases actually resolved a dispute between indigenous peoples and the Crown: at least not on the merits of the dispute.
That right there sends a pretty powerful message about the state of aboriginal rights advocacy during that period of time.  One can only hope that the period 2015-2025 will see something quite different, at least in terms of address the core disputes between aboriginal claimants and the Crown.

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ANALYTICS IN ABORIGINAL LAW

6/21/2017

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Picture

So, I ‘ve been playing with data. I’m going to write a few posts on some of the interesting things you can find by playing with data. I’ll start with this picture:


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The graphic displays the total number of decisions from Canadian courts and tribunals on selected aboriginal rights cases. I got this data off Canlii, and cleaned it in Microsoft Excel. I won’t go in-depth on the search logic I used, but I made best efforts to capture two classes of cases: those involving collective rights holders and those involving aboriginal or treaty rights. The data one can draw from CANLII can be pretty cool, the CANLII/Excel combination allows users to take a look at any number of interesting phenomena in aboriginal rights law. Here, I am focusing on a year by year comparison. Since CANLII provides data on date of decision, one could look at the year of decision (which I do here), the month, the date or even the day of the week!

I make no guarantees on the efficacy of my data cleaning (I did do this for fun), but I think the data on this set (judicial decisions from 1995 to 2015) reveal several interesting points about aboriginal rights law in Canada. As a hint for what’s upcoming, these kinds of analytics can reveal the most cited aboriginal rights opinion (in CANLII’s opinion anyways) during that same period.

In this post, I just want to make some introductory comments about what I see in this data, but also to make a broader point on the value of using ‘analytics’ to look at trends in law, and particularly aboriginal rights law, more broadly. If nothing else, I can confirm that using CANLII’s data to analyze decisions provides excellent fodder for dinner parties and small talk with aboriginal rights lawyers (and who wouldn’t want to engage in witty banter with aboriginal rights lawyers?).

Looking at the number of decisions per year over the past 20 years reveals some results which should not be surprising. If you look at the ‘peaks’ and ‘valleys’ in trial decisions, it shouldn’t surprise you to see similar ‘peaks’ and ‘valleys’ in appellate decisions or in Supreme Court decisions, some number of years later.

It makes sense that if there are an unusually high number of trial decisions in a given year, that there would be an unusually high number of appeals filed and ultimately decided. Since I’m told appellate litigation doesn’t occur at lightning speed (it feels like it to me sometimes), its natural to see a bit of a lag in appellate decisions vis a vis trial decisions.

I would issue a caution about reading too much into the apparent buildup in litigation pre-2001 because it appears to me that CANLII doesn’t contain information on pre-2001 cases in several of its databases – this is likely more the effect of the digitization of trial and appellate decisions, than an actual litigation trend.

However, something that is interesting is the peak and subsequent decline in trial decisions post-2005. I would attribute this to the impact of the Supreme Court of Canada’s trilogy of decisions on the duty to consult and accommodate in 2004-05 (Haida/Taku/Mikisew). I find this a pretty important finding because what the Supreme Court did in those cases was to articulate what is essentially an interim remedy in otherwise extremely lengthy aboriginal rights cases. The prospect of a clearly articulated remedy, even one likely construed as a weak remedy by aboriginal rights claimants (winning a duty to consult case can seem like a far cry from an award of aboriginal title for some), provided guidance to both the Crown and industry proponents.

I would speculate that the prospect of a remedy, combined with considerable uncertainty about ‘how to implement’ the duty to consult and accommodate, led to a period where both the Crown and proponents concluded that it would be substantially less risky to litigate or otherwise ignore aboriginal rights or treaty rights claims, and to negotiate directly with collective rights holders.

If I’m right, then I’m inviting you to draw a somewhat counterintuitive conclusion: that recognition of rights and articulation of clear remedies may actually reduce the amount of litigation in aboriginal rights law. This conclusion, which I don’t think would be counterintuitive in other areas of law, nonetheless runs against a lot of conventional wisdom in aboriginal rigths law: that aboriginal rights themselves ‘create’ considerable uncertainty for the Crown and for industry.
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I’m not sure I’d go so far as to draw a rock-solid conclusion off this particular picture. I would; however, suggest that greater use of analytics by rights-holders, by industry and by the academy invite a richer discourse on the nature of aboriginal rights law than speculation of what a judgement ‘might’ or ‘might not’ do as its implemented.

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