Morse, Brad --- "Lessons from Canada" [2001] IndigLawB 61; (2001) 5(11) Indigenous Law Bulletin 15

Lessons from Canada

by Brad Morse

This article was first published in Issue No 7 of the Aboriginal Law Bulletin, April 1983.

The presence of a legal system that reflects the attitudes, values and culture of the dominant society has had a fundamental and devastating impact upon the Aboriginal people of the land that is now called Canada. Due to the similarity in orientation between the Australian and Canadian legal systems, the existence of a common foundation, and the similar experience of Aboriginal peoples in these two countries as a result of colonisation by European immigrants, it is this writer’s belief that we can learn a great deal from the successes and failures in these two countries.

In this brief article I will attempt to summarize the Canadian situation in terms of the modifications that have been made to the general legal system in the drive to obtain the elusive goal of ‘justice’ by and for the original inhabitants of Canada.

Before describing the various programs and changes that have been made in recent years, it is important to outline the position of Aboriginal people in Canada and the effect that the legal system has had upon them.

Canada’s Aboriginal Population

The Aboriginal population numbers over one million people, or roughly four per cent of Canadian society, and consists of members of dozens of Indian Nations, together with the Métis and the Inuit (formerly called Eskimos by the colonisers). The Indian people have been separated by federal legislation dating back to 1868[1] into those who are registered (called ‘status Indians’) – some 300, 000 people today from 575 bands – and those people of Indian ancestry who are not recognised by law or governmental policy as being ‘Indians’ at all (approximately 600,000 people today). In addition, the Inuit are comprised of 25,000 people, virtually all of whom continue to live upon their traditional lands in the Arctic. The final group within the Aboriginal population is the Métis (approximately 150,000 people) who developed a unique culture based upon a blending of Indian and early French colonial values and lifestyles primarily in the three Prairie provinces of Canada (Manitoba, Saskatchewan and Alberta).

The history of governmental responsibility has been very different in Canada from Australia, for the federal government was given express and exclusive jurisdiction regarding ‘Indians and lands reserved for Indians’ in the Constitution which created an independent Canada in 1867. The Canadian Parliament has exercised this authority by defining who Indians are in such a way as to divide them into those who legally have the status of being Indians and those who are legally regarded as non-Indians, despite their Indian heritage. Only the former have residency rights on Indian reserves and receive the benefits, as well as suffer the disadvantages that accompany Indian status. The Inuit also fall within the federal government’s constitutional mandate as a result of judicial decree.[2]

The social, economic, education and health conditions of the Indigenous peoples of Canada are somewhat akin to the position of Aboriginals here – it’s a disaster. Suicides and violent deaths occur far more frequently; infant mortality rates are higher; life spans lower; available housing is inadequate to meet real needs; unemployment is fantastically high; school completion rates are very low; and the litany of tragic indices goes on and on.[3]

The legal system has played its role in the disintegration of Aboriginal communities in Canada too. The Indian and Métis people are grossly over-represented in the jails and in the care of child welfare agencies as a result of judicial orders and the insufficient development of Indigenous controlled alternatives. The judiciary has also frequently failed to protect Aboriginal and treaty rights to the fullest extent possible through narrow interpretations of the law.

Nevertheless, all is not totally bleak. There have been some major legal battles won over the years regarding land, rights to hunt and fish, federal trustee responsibility and recognition of customary law. Aboriginal people are gaining control over their own lives through the acceptance of the necessity of their control over their education, lands, police, and child care agencies, as well as by the development of special legal service programs, halfway houses, alternatives to incarceration and other initiatives. The inclusion in the new Canadian Constitution of s 35(1) should further assist the Aboriginal peoples in their struggle for self-determination and sovereignty within the Canadian State. It states:

s 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.[4]

Legal Services

Every jurisdiction in Canada possesses a scheme for providing free legal assistance to those in financial need regarding criminal charges in which imprisonment is likely upon conviction. Most of the provinces also offer legal aid for a defined list of civil matters. The majority of provinces utilise a mixed system of judicare and community clinics with the private bar handling the bulk of the criminal caseload and the clinics using staff lawyers and paralegals to deal with civil cases.

Since the criminal legal aid system is an extensive and well developed one, there has been considerable resistance from federal and provincial governments towards the concept of an Aboriginal legal service working in the criminal law sphere. This has resulted in the establishment of two different types of special legal assistance projects in Canada. One form is similar to Australia’s Aboriginal Legal Service programs in that it is a legal centre which uses lawyers and paralegals to provide individual case assistance, legal education programs and preventative services. The first programs were established in 1975 and there are now five Indian projects and one Inuit centre, all of which supplement the criminal legal aid scheme by handling minor offences and all civil problems for Aboriginal people within their region. Each one is locally controlled by a board of directors elected by the Indian or Inuit people in that area. They are funded in the same manner that all other community clinics are, namely through a provincial or territorial legal aid body that obtains its funds under a federal-provincial cost sharing agreement as supplemented by revenues from solicitor’s trust accounts. These clinics function in ways that are similar to what I have seen in my Australian travels, except that there is greater emphasis on the use of Indian and Inuit paralegals in actually delivering legal services in Canada, on legal education and on civil matters. A number of Indian Friendship Centres in cities and towns also have one paralegal on staff to assist in small civil problems and organise public legal education programs.[5]

Native Courtworkers

The second type of program consists of Native courtworker associations, which are present in almost every province and territory in Canada. There are almost two hundred and fifty Native courtworkers who perform a function rather like Aboriginal field officers here. Their task is to contact all Aboriginal persons as soon after arrest as possible to provide summary advice, arrange for representation through legal aid if the charge is covered by the local plan, communicate with the accused’s family and friends, and arrange for bail. The courtworker will assist the legal aid lawyer by translating, if necessary, briefing the lawyer, interviewing witnesses, obtaining character references and developing sentencing options other than incarceration. The courtworker aids the defendant by explaining the law and how the justice system operates and by translating ‘legalese’ into something that can be understood. Where legal aid is not available for that charge, then the courtworker will represent the accused for bail, at trial and on sentencing. Several of the courtworker associations are also actively involved in juvenile, family and child welfare matters.

All of these associations are controlled by representatives of the Aboriginal community. They are also funded through the federal-provincial cost sharing agreements on legal services. Several of them have been providing a most valuable service for over a decade.[6]

Although both types of programs have geographic limits to their services, they are not restricted to Indian reserves only, as are the vast majority of Indian legal services in the USA.[7]

Aboriginal People – Police Relations

The history of the relations between the police and Aboriginal people has not been a pleasant one. Although there is still a long way to go before one can state that it is completely positive, there has been considerable improvement. This is partially a result of the impact that the Native courtworker and legal service programs have had. It also reflects a change in who the people are that are doing the policing. Police departments across Canada have made some, albeit rather feeble, efforts to recruit Indigenous people into the regular force or to establish liaison units. The more fundamental change has been the development of Indian police forces in many parts of the country. This has evolved through three distinct models.

The first special effort was the creation of a band constable program by the Royal Canadian Mounted Police (RCMP) in the early 1970s. The RCMP trained Indian men that it selected to assist regular officers in policing Indian reserves but whose authority was solely limited to the reserve. Over time, these band constables obtained some independence to deal with minor offences on reserves with the consent of the local band councils involved. The lack of Indian control and the limited mandate caused frustration and dissatisfaction resulting in the creation of two other models.

The second type is the Indian police constable program, which is based upon federal-provincial-Indian agreements in Quebec (72 officers) and Ontario (100 officers). These constables are special members of the provincial police in that they are selected by the participating bands to police their individual reserves and receive a somewhat different training program, but they possess the authority of the general police and often assist the latter in handling reserve problems.

The final model is the Dakota/Ojibway Tribal Council Police Force, which is a regional force covering eight reserves in southwestern Manitoba. These officers are responsible to all eight bands through a representative board and are completely separate from the other police in that province.[8]

Courts – Some Promising Developments

Although the judiciary have been active participants over the years in the process of ‘civilising’ the Aboriginal people through taking away their land, their children, and their freedom, most of which has been done under ‘the law’ in accordance with principles of ‘fairness’ and ‘justice’, the courts have been the most resistant to recognise any failings and to do anything about it. Despite this reluctance, there have been some promising developments in the past few years.

The James Bay Agreement, which settled a substantial land claim in northern Quebec, contains provisions which authorise the general courts within that area to develop simplified procedures for litigation in consultation with the Cree and Inuit residents so as to make the courts more accessible to their needs. This is, unfortunately, the only example of any structural changes that are occurring in the court process to date.

Another avenue of change which has been pursued somewhat sporadically over the last ten years related to the position of judge itself. There are approximately fifty Aboriginal people who have been appointed as justices of the peace across Canada. Although the importance of this role has dramatically declined in recent years due to the shift to legally trained judges presiding over all serious and most minor criminal offences, nevertheless, this is still an important development. Most of these justices of the peace, however, are ignored by the police or are only used to fill the most mundane judicial functions (eg, processing summonses, information and search warrants). Several of them in remote areas do have a more valuable function of hearing bail applications, sentencing after guilty pleas and conducting trials on minor offences. Their presence represents a foothold which may be expanded in the future. Some of these justices of the peace also are able to humanise the system while keeping the police in check to a limited extent.[9] There are also several communities in which Indigenous people sit with the white judge to decide upon sentencing and child welfare cases.

The alternative to modifying the court system is to establish a separate one. There are several Indian courts functioning in Canada on reserves which hear all charges under band by-laws and certain specified minor criminal offences (including assault and breaking and entering). Although their jurisdiction is unduly limited and they are few in number, the presence of these courts has had a major and positive impact upon those reserves by largely excluding the operation of the external criminal justice system.[10] A number of Indian bands are also actively pursuing the idea of establishing complete court systems of their own based upon the successes and failings of the American Indian Tribal Courts.

Indian Lawyers – Dramatic Increase

The legal profession has slowly been realising over the past two decades that Aboriginal people and their interests are of significance to the bar. There are now a number of white lawyers who regularly represent Indian and Métis people before the criminal courts and there are more than a few who are well versed in Aboriginal law issues. Most important has been the dramatic increase in Indian lawyers. There are now over seventy-five Indian and Metis law graduates, most of whom are working for Aboriginal organizations or in private practice with many Indigenous people as clients.

This has been a rather amazing development as there were only four graduates a decade ago. It has occurred as a result of three related factors. Firstly, there has been an incredible increase in university enrolment by Indians and Métis (a jump from almost zero in the late 1950s to well over three thousand full time students now) so that there is now a large pool of talented people with the necessary skills to survive in law school (Canadian law students generally have a BA before admission). Secondly, virtually every law school has adopted a special Native admissions policy.

Thirdly, the Program of Legal Studies for Native People was established by the University of Saskatchewan in 1973. It accepts approximately twenty students each year who have been admitted to a law school on the condition that they successfully complete the Program’s eight-week intensive course. The students come from across the country to study four first-year law school courses and a legal skills course taught by five full time law professors from different schools and two Indian or Métis law students. Approximately one hundred and fifty of the two hundred students have successfully completed the program so far and most of them are now in practice, in articles or in law school.[11] This has led to the establishment of the Canadian Indian Lawyers Association and the Native Law Students Association, both of whom sponsor annual and special conferences on legal issues of interest to the Indigenous peoples.

Research, Litigation and Reform

In the last few years there has been an explosion in Aboriginal law research in Canada. As opposed to the US where there has been a large body of legal literature for some time on Indian law issues, much of which was totally useless to Indian people, there was only one book, about one hundred law journal articles and comments and very little unpublished research on Native rights issues in Canada until five years ago. This has dramatically changed as the Indian, Métis and Inuit organisations have been conducting an incredible amount of research on legal issues of interest to them. The federal government is also doing quite a bit of research (much of which is confidential) and the Native Law Centre is sponsoring a number of projects. This research relates to land claims, court cases, legal problems confronting Aboriginal people, or the law reform efforts of Aboriginal people. Most of it is funded by government but controlled by the Aboriginal organisations. Although the original inhabitants of Canada generally wish to avoid the courts if at all possible, a large number of cases before the courts are raising Aboriginal law issues. Usually these are defensive actions forced by the state, however Indian governments are carefully initiating their own actions. Any case that raises a fundamental issue regarding Indian rights will be paid on a case-by-case basis by the federal government without strings. Canadian experience has tended to show that litigation can serve as a useful role so long as it is very carefully framed so as to minimise the possible negative consequences flowing from a defeat and is seen clearly as being merely part of an overall political strategy for change.

Brad Morse is a Professor of Law at the University of Ottawa, Canada, and a noted scholar on Indigenous legal issues. He is chief negotiator for the Government of Canada on several land claims and an advisor to First Nations and Aboriginal associations. He was a visitor at the Indigenous Law Centre in 1983, and has visited Australia on subsequent occasions.

[1] The legislation presently in force is the Indian Act, RSC 1970, c. 1-6.

[2] In re Eskimos [1939] SCR 104; 2 DLR 417.

[3] For further information, see Indian Conditions: a survey (Ottawa: Ministry of Indian Affairs and Northern Development, 1980); and Bradford W, Morse, ‘The Original Peoples of Canada’, (1982) 5 Canadian Legal Aid Bulletin, No. 1, 1-16.

[4] The Constitution Act 1981.

[5] For further information see Bradford W Morse, ‘Native People and Legal Services in Canada’ (1976) 22 McGill LJ 504-540; Paul Havemann, ‘The Regina Native Counsel Project: A Civilian Perspective on the Delivery of Legal Services to People of Indian Ancestry in the City’ (1982) 5 Canadian Legal Aid Bulletin, No 1, 69-91; and Peter Kirby, ‘The Use of Native Paralegals: The Kenora Experience’, (1982) 5 Canadian Legal Aid Bulletin No 2, 35-38.

[6] For further information, see Native Counselling Services of Alberta, ‘Native People and the Criminal Justice System: the Role of the Native Courtworker’ (1982) 5 Canadian Legal Aid Bulletin, No 1, 55-63; Jack Hardy et al, ‘The Role of the Native Courtworker in the Delivery of Legal Services to the Native People’ (1982) 5 Canadian Legal Aid Bulletin, No 1, 65-67.

[7] For a discussion of one such American Indian Legal Service, see Gary Forrester, ‘US Indian Legal Services’, (1982) 7 Legal Service Bulletin 112-116.

[8] For an interesting comparison of Australian and American experience, see FG Cohen, D Chappell and P Wilson, ‘Aboriginal and American Indian Relations with Police’, in D Chappell and P Wilson (eds), The Australian Criminal Justice System, 2d ed, Butterworths, Sydney, 112-154.

[9] For a detailed discussion of this development see Native Justices of the Peace: An Underemployed Resource for the Criminal Justice System, Toronto, Ontario Native Council on Justice, 1982.

[10] Bradford W. Morse, ‘A Unique Court: s 107 Indian Act Justices of the Peace’, (1982) 5 Canadian Legal Aid Bulletin, Nos 2 & 3, 131-150. For a discussion of the American Indian Tribal Court system and how it might be developed in Canada, see Morse, B, Indian Tribal Courts in the United States: A Model for Canada? Saskatoon, Native Law Centre, 1980. For an excellent comparison of the Australian, Canadian and American experiences in this area, see Bryan Keon-Cohen, ‘Native Justice in Australia, Canada and the USA: A Comparative Analysis’[1981] MonashULawRw 6; , (1981) 7 Monash ULR 250-325.

[11] For further information see Purich, D, ‘The Native Law Centre, University of Saskatchewan’ (1982) 5 Canadian Legal Aid Bulletin, Nos 2 & 3, 39-43.