Claims based on Aboriginal rights and title are notoriously complex and lengthy and, as a result, very expensive. These claims require extensive historical research dating back over 400 years in many cases. Large numbers of people must be interviewed to determine the best evidence available to assess impacts and damages. The law relating to Aboriginal rights and title is evolving and less than certain. It changes almost almost daily and cases require extensive legal research. A typical trial might take 15 years to reach the court house and could involve over 100 days of testimony and court time. Fees for lawyers and experts can easily reach several million dollars. No wonder many Aboriginal rights claims never even get started. How many aboriginal communities can afford to protect their rights today?
Yet the Canadian legal system is an adversarial system where we are each responsible for protecting our own rights. Often this means starting an expensive lawsuit which makes it impossible to protect our rights. This raises the issue of whether promises made to Canada’s Aboriginal peoples to protect their legal rights are enforceable in the modern context so as to require governments to provide funding for effective legal representation for Aboriginal claims.
In the Mi’kmaq context, at a 1761 Treaty ceremony, Lieutenant Governor Jonathan Belcher, later the first Chief Justice of Nova Scotia, assured the Mi’kmaq of their legal protection:
“The Laws will be like a great Hedge about your Rights and properties, if any break this Hedge to hurt and injure you, the heavy weight of the Laws will fall upon them and punish their Disobedience.”
Strong words indeed. It is clear that from the beginning the Crown intended to protect Aboriginal rights and title and that the Mi’kmaq relied on this assurance in entering into the Treaties. In my view this gives rise to a Treaty right to appropriate funding to access the Canadian justice system to effectivelyassert and protect Aboriginal rights and title.
Surely the noble words of lieutenant Governor Belcher were not intended to apply only to those Mi’kmaq that were able to afford the army of lawyers required to advance and protect their rights.
Of course history has shown that it was the Crown itself that frequently violated the Aboriginal rights. So much for legal protection from the Crown in those cases. Many Aboriginal peoples were helpless to defend their legal rights in a court of law as it was illegal for them to hire a lawyer until 1951! Until then the Indian Act prohibited lawyers from acting for status Indians or Indian Bands or advancing an “Indian cause”.
Once it became legal to hire a lawyer the cost of advancing Aboriginal rights and title claims still prevented many Aboriginal peoples from doing so. This is still the case today.
The Federal government does provide limited funding to Aboriginal groups when it comes to their legal claims. The Specific Claims process was set up to handle outstanding Aboriginal claims against the Federal government totalling several billion dollars. Canada provides funding for the preparation of these historical claims by Bands and Tribal councils so that a small number can be submitted under the Specific Claims process each year. If a submitted claim is deemed valid, Canada will agree to negotiate and will provide funds to pay for the legal fees and other costs associated with the negotiations. However, once negotiations fail, legal funds are cut off and claimants are left to fend for themselves in the courts or submit the claim to the Specific Claims Tribunal, a recently established court. If a claim is submitted to the Specific Claims Tribunal some groups may be eligible for legal funding on a case by case basis but funding is not assured.
Canada also provides test case funding. However funding is limited and is only available after a case reaches the higher courts on appeal, providing no assitance at the most time consuming stages of the case – preparation and trial.
In recent years the courts have recognized the need for legal funding of Aboriginal rights claims and have stepped in in some cass to force a governemnt to pay the costs of bringing a lawsuit aginst itself. In the Okanagan case (2003 SCC 71) the Supreme Court of Canada upheld a lower court order requiring the Province of British Columbia to provide funding to the Okanagan Indian Band in a court case against the Province over logging rights. In that case the Court issued an “advance costs order”. Such orders are unusual as the court traditionally waits until the end of a trial to see who wins and then orders the losing party to pay costs to the winner as a contribution to the winner’s legal fees. These traditional cost orders are granted to recognize that a party might win the trial but still not be fully compensated if the legal fees to achieve the victory erode the court award.
Unlike traditional cost orders, advance costs orders are made prior to or during the trial process and costs are payable to the Aboriginal litigant win or lose. This can level the playing field ensuring a fair fight – which is what the court wants to see. However, advance costs order are only available in exceptional circumstances where there is a good case on the merits of the claim, the case is of public importance and not a mere private dispute, and the case would not be advanced if legal funding is not ordered. Even when these conditions are met the court may still refuse to order a government to fund an Aboriginal lawsuit against itself. The court maintains absolute desrcetion in these cases.
While all of these mechanisms for legal funding of Aboriginal claims assist, they are very uncertain and unpredictable. It can also be very expensive to advance a claim for legal funding. In one successful motion for an advance costs order the government was ordered to pay $60,000 as a contribution toward the cost of making the motion. The Band’s actual costs for presenting the request for funding to the court were much higher.
The result of this lack of adequate and timely legal funding is that many valid cases have languished for decades and even centuries depriving Aboriginal people of vital land, resources and capital to support their growing populations. This status quo could all change quickly with a court ruling elevating legal funding for Aboriginal claims to the status of a Treaty right constitutionally protcted by section 35 of the Constitution act, 1982. This would finally give effect to the promises made by Lieutenant Governor Belcher and other representatives of the Crown to protect the legal rights of our Aboriginal peoples. It would finally give Aboriginal peoples themselve the ability to take part in one of Canada’s greatest institutions – it’s fine and impartial judiciary.
This is exactly what my clients at Pictou Landing First Nation intend to argue in its ongoing lawsuit against the Province of Nova Scotia. See: http://thechronicleherald.ca/novascotia/109813-band-council-seeks-way-to-fund-suit. Stay tuned.