The Hamilton Spectator

Feds urged to fund treaty rights cases

Critics say shortfall doesn’t make sense when reconcilia­tion is supposed to be a priority

- KRISTY KIRKUP

OTTAWA — The Liberal government’s failure to extend its Court Challenges Program to pay for Indigenous cases involving treaty rights doesn’t make sense at a time when reconcilia­tion is supposed to be a priority, legal experts say.

They say the government should expand the program to include funding for cases under Section 35 of the Constituti­on, which deals with Aboriginal and treaty rights.

Lorena Fontaine, an associate professor of Indigenous studies at the University of Manitoba and a former member of the program’s equality rights panel, said Wednesday she was “floored” when she first learned funding for Section 35 cases had been left out.

“We are in a period of reconcilia­tion,” she said. “We have a government that is supposedly supportive of Aboriginal rights. We have a minister of justice who is Aboriginal. I just thought that given the climate, that there would have been that extra step in implementi­ng the program to support Aboriginal rights cases.”

Martha Jackman, a University of Ottawa constituti­onal law expert, said the Court Challenges Program was expanded under the Liberal government to include money for cases relating to specific sections of the charter.

The mandate, however, did not extend to Section 35 cases and she said this is a clear problem, given the prime minister’s pledge for a nation-to-nation relationsh­ip with Indigenous Peoples.

“We have a huge access to justice problem,” Jackman said. “Socioecono­mically disadvanta­ged groups and Indigenous People do not have equal access to the justice system and the courts are the preeminent accountabi­lity mechanism when government­s don’t comply with their constituti­onal human rights.”

A number of groups, including the Canadian Bar Associatio­n and the Indigenous Bar Associatio­n, are urging that the program be consistent with the government’s commitment to implement the recommenda­tions of the Truth and Reconcilia­tion Commission, including legal equality for Indigenous People.

The Canadian Bar Associatio­n agrees that Section 35 law suits commonly seek to redress longstandi­ng imbalances that have prejudiced Indigenous peoples and resulted in disparitie­s between them and non-Indigenous society.

“The continued exclusion of Aboriginal and treaty rights is difficult to square with Canada’s firm commitment to reconcilia­tion with its Indigenous people,” the associatio­n said in a letter earlier this year to Heritage Minister Melanie Joly.

In February, Joly and Justice Minister Jody Wilson-Raybould announced the reinstatem­ent of a Court Challenges Program.

A former version of the program, which Ottawa deemed “instrument­al” in helping clarify and assert official language and equality rights under the Constituti­on, was cancelled in 2006 by the previous Conservati­ve government.

The reworked version was expanded to include funding for other sections of the charter, including religion and freedom of expression, democratic participat­ion and the right to life, liberty and security of the person.

Wilson-Raybould said this week the government is proud of the decision to broaden the program, adding it has historical­ly supported equality rights for Indigenous Peoples.

Courts can order Ottawa to provide interim or advance costs in appropriat­e cases brought forward under Section 35, Wilson-Raybould added.

Jackman warns such awards are extremely rare.

“It is like searching for a needle in a haystack for First Nations to get funding from this program,” Fontaine said. “That’s not what it was designed to do.”

 ?? JUSTIN TANG, THE CANADIAN PRESS ?? Minister of Justice and Attorney General of Canada Jody Wilson-Raybould responds during Question Period. Legal and constituti­onal experts are calling on the Liberal government to expand the Court Challenges Program to include funding for Indigenous...
JUSTIN TANG, THE CANADIAN PRESS Minister of Justice and Attorney General of Canada Jody Wilson-Raybould responds during Question Period. Legal and constituti­onal experts are calling on the Liberal government to expand the Court Challenges Program to include funding for Indigenous...

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