Improving legal services

The current system of legal services for Aboriginal Rights needs improvement

There is a need for major reform of Aboriginal law.

For example, there is a major gap between what First Nations claim, particularly with respect to First Nations self-determination and the government to government relationship, versus Canadian law and government policy, which considers First Nations to be local governments under federal jurisdiction and control, rather than independent agents.

First Nations are ill-equipped to address this claim because it could threaten their own legitimacy, despite their possibility of claiming First Nations are successors-in-interest to indigenous nations. As a result of the ambiguity related to the juridical identity of First Nations, there are limited opportunities to engage and challenge the dominant characterization of First Nations as subjects of federal jurisdiction, rather than equal partners in Canadian confederation.

The typical aboriginal rights case is brought by a First Nation government against the Crown. Many First Nations are almost exclusively funded by the government. This makes First Nations remarkably vulnerable to pressure from the government. This pressure is likely often exerted in an indirect fashion, using the government’s almost absolute authority over the use of its own funds to restrict the activities of First Nations or to punish First Nations for politically embarrassing conduct. For example, in response to a declaration of a state of emergency in 2011, the federal government responded by imposing third-party control of the First Nations finances. This effectively stripped the Chief and Council of its governance authority, leaving them in power in name only. While such exercises of authority are rare, every First Nation lives under threat of interference from the government due to the extent of First Nations’ reliance on federal funding.

Many First Nations have developed their own economies, either through revenue sharing arrangements or business development. In many of these cases, the revenues are held in trust by Canada and First Nations must apply for the release of funds. Even when First Nations derive their own funds, the federal government retains near total regulatory control over the activities of First Nations and exercises that control on a frequent basis. The threat posed by such control means many First Nations assume tremendous risks for challenging Crown actions.

Cost structure – How claims are pursued

Most aboriginal rights claims are litigated by private firms retained by First Nations. This, combined with a federal strategy of engaging in protracted litigation, makes pursuing aboriginal rights claims a lucrative business. This has led to some commentators to decry the aboriginal rights ‘industry’. The existence of skilled litigators working on behalf of aboriginal clients is something which should be welcomed, although reliance only on a model of private firms retained by First Nations on particular matters creates several gaps. These gaps can and should be addressed by a new model for the provision of legal services in circumscribed circumstances.

The first is that private firms have strong incentives to select cases which are ‘winners’. In Canadian civil suits, costs follow the winner. This means, absent extraordinary circumstances, that there are strong disincentives for private firms to attempt novel legal arguments. This means challenges to the fundamental nature of aboriginal rights law, and particularly to the assumptions upon which that law is based, are less favourable to firms than cases which build upon the existing framework. Fortunately for Aboriginal claimants, many aboriginal lawyers are deeply committed to social justice and are willing to press novel arguments; however, they do so at considerable financial risk to their own well-being.

The second is that the clients themselves are individual First Nations. In addition to the possibility of pressure being exerted on First Nations, individual First Nations and their lawyers are properly concerned with seeking remedy in respect of a given situation. Individual First Nations generally don’t assume responsibility for strategic direction of Aboriginal law. Similarly, law firms seek to vindicate the issues of their particular client rather than broader issues implicating strategic direction of legal reform. In essence, the solicitor-client relationship itself serves to leave aboriginal peoples in an uncoordinated position dominated by tactical considerations relevant to any given case, rather than strategic considerations relevant to broad based legal reform.