Native People and Legal Services in Canada
Bradford W. Morse*
INTRODUCTION
The relationship between the Native People of Canada and the
legal system has received far too little attention from either academics or the various levels of government in Canada. Provincial legal
services commissions and legal aid societies have largely ignored the
particular problems of Native People. That there are particular problems, there is little doubt. What kinds of legal services are the
Native People receiving? Are these services sufficient? Are they
successful? Do the Native People need special attention and individualized programmes? These are questions that will, hopefully,
be answered in this article.
I. THE PRESENT SITUATION OF NATIVE PEOPLE IN CANADA
It is necessary to understand the social, cultural, economic and
geographic position of Native People in our society in order to
determine how best to provide the legal services they need.
1. Who are the Native People of Canada?
A recurring source of confusion among many commentators, as
well as the general public, is the lack of precision and consistency
in the use of terms. The author is using the phrase "Native People"
to include all people who trace their roots in this country to time
immemorial: all Indians (whether registered under the Indian Act'
or not) and all Eskimos (or Inuit).
The Federal government has been given the power under section
91(24) of the British North America Act, 18672 to legislate in relation
* Assistant Professor of Law, University of Ottawa. The author wishes to
acknowledge and sincerely thank Joanna McFadyen, Professor Fred Zemans
and Professor Larry Taman for their kind assistance and support in the
development of this article. The opinions expressed are naturally those of
the author alone.
1R.S.C. 1970, c.I-6.
2 30-31 Vict., c.3 (U.K.).

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NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

505

to "Indians, and Lands reserved for the Indians". This power has
been exercised in the creation of the Indian Act' which contains a
complex system of registration and administration, the registration
system determining the subjects of the administrative system. The
concept of such a definitional system has existed since the earliest
legislation concerning Indians4 and has been maintained in all subsequent legislation.5
Originally, registration was accomplished by a government agent
who went out to the Native population6 and made a count. If people
were away hunting or bands were too remote to be numbered, then
7
they were not registered as Indians under the Indian Act.
Many Indians who were once registered, or who are the descendants of people who were registered, are no longer considered
to be Indians for the administrative purposes of this Act.8 Thousands
were persuaded to become enfranchised under the provisions in the
Act by local Indian agents, who were sometimes acting to meet
quotas. Indian people were told they had to become enfranchised
and leave the reserve if they wanted to join the dominant society and
enjoy its advantages. Until 1960, only enfranchised Indians could
vote federally, send their children to public schools, or benefit from
the provincially-managed social welfare programmes.9
The government's attitude toward Indian people reflected the
beliefs of the dominant non-Native society. Without understanding
Indian culture, they judged it un-Christian and undesirable.10 This
message was repeatedly relayed through the schools, the churches,
and the Indian agents.
Through this process of enfranchisement some Indian people gave
up their status under the Indian Act. They were then paid a lump sum
equivalent to the treaty annuities, if any, they would have received
over the next 20 years along with one per capita share of any band
funds held on trust by the Crown. Many people needed the money to
3

Supra, note 1.

4 The term "Indians" was first defined in S.C. 1850,

13-14 Vict., c.42, s.5.
5 See factums of the various counsel in the Lavell and Bedard cases, [1974]
S.C.R. 1349.
6This procedure was only utilized in regard to Indians and not with respect
to7 the Inuit.
For a comprehensive view of Indian history see E. Palmer Patterson, The
CanadianIndians: A History Since 1500 (1972), among others.
8 This is the effect of ss.7-12, supra, note 1.
9 J.S. Frideres, Canada'sIndians: Contemporary Conflicts (1974), 3.
10Frideres, ibid., 159, 164-5 and Patterson, supra, note 7, 109-111, 122, 124,
128, 138.

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survive and were given only a cursory explanation of the consequences of signing the enfranchisement paper. They usually did not
understand that they were forfeiting their right to be "Indian".
An Indian person could, and still can, voluntarily apply to
Ottawa for enfranchisement if he or she is willing to renounce
his or her Indian status. If this is done, the individual, the spouse
and any minor children (if the family is living together), along with
all heirs lose all rights and obligations of Indian status." Over 2,600
were enfranchised between 1955 and
Indian adults and children
2
1970 in this manner.1
There are, however, further automatic and involuntary methods
of enfranchisement, one of which has gained widespread notoriety
in the Lavell and Bedard cases.13 A registered Indian woman who
marries a non-registered man loses her status.' 4 Any minor unmarried children she has may also lose their status as registered
Indians. 5 In 1973, 538 Indian women lost their status in this manner'
and approximately 11,000 Indian women and children have "forfeited" their status in the last 20 years.' The fact that an Indian
woman may be marrying a full-blooded, but non-registered, Indian
man is considered to be irrelevant.
Others who lose their status are those included within section
12(1) (a) (iv) of the Indian Act, or the so-called "double-mother
rule". This generally unknown provision results in an individual
being enfranchised upon reaching 21 if his mother and the father's
mother gained Indian status through marriage, provided his parents'
marriage occurred after September 4, 1951. The contradictions are
blatant. The children of enfranchised parents may be full-blooded
Indian people yet may be denied the right to live on a reserve,
receive educational assistance or participate in fishing or hunting
privileges.
"'This occurs through the operation of ss.109-110, 12(1)(a)(iii) and 15 of
the Indian Act, supra, note 1. The Indian wife and minor unmarried children
are automatically enfranchised with the husband unless she and the children

are living apart from the husband, and she does not apply in her own right.
12Frideres, supra, note 9, 4.
13 [1974J S.C.R. 1349, (1974) 38 D.L.R. (3d) 481.
14Indian Act, supra, note 1, ss.12(1)(b) and 7(1).
15 Frideres, supra, note 9, 3; Indian Act, ibid., s.109(2).
'O Department of Indian Affairs and Northern Development, Annual Report
Fiscal Year 1973-1974, Information Canada (1974), 33 (hereinafter referred to

as Annual Report 1973-1974).
17 Statistics computed by the author from Frideres, supra, note 9, 4, and
the Annual Reports of the Department of Indian- Affairs and Northern
Development.

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NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

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The term "Metis" is often used to describe all those people who
have a "mixed" ancestry. "Initially the title meant a half 'mixture'
of French and Indian, although it has now been broadened to include.
almost all people with at least some Indian ancestry."1 8 It includes
many people whose families were never registered, or who had been
allotted half-breed lands or money scrip rather than receiving treaty
payments and residing on reserves. The terms "non-status Indian"
and "non-registered Indian" are recently becoming more common as
replacements for the word "Metis".
To make things even more complicated, some Native People are
referred to as "treaty Indians" and "non-treaty Indians", yet both
groups are registered as Indians under the Indian Act. It is sufficient
here to note that roughly 50% of the registered Indian population
are non-treaty Indians, found in Quebec, the Maritimes, parts of the
Northwest Territories, and most of British Columbia. 9 Residence
on a reserve is not a factor in differentiating between treaty Indians
and non-treaty Indians. Some of the former were never given the
reserves promised to them in the treaties and some of the latter
were granted reserves while the rest of their land was taken without
20
an agreement or compensation.
Thus the Indian populations of Canada are referred to as treaty
Indians, non-treaty Indians, non-registered or non-status Indians, and
Metis, although they are all Indians. The result of this process of
registration has been to divide the Indian people in half; the dominant white society has decided which Indians it is willing to consider as "Indians". Registration has been amazingly successful in
fostering division and competition among the Indians of Canada. Its
effect is lessening as the Indian people unite and create their own
political and social definitions.
The Eskimos (hereinafter referred to as the Inuit) have historically been ignored by the Federal government. They were not included
in the early Indian legislation and are implicity excluded in the
present Act.' This is presumably due to the lack of contact between
the non-Native society and the Inuit until the 20th century.
The Inuit have no reserves, no treaties, and no legislative guaran-tees to protect them. They do fall within the federal jurisdiction
18Frideres, ibid., 3.
19For a more complete history of the treaty process see P. Cumming and
N. Mickenburg, Native Rights in Canada (1972) and Patterson, supra, note 7.
20 Ibid.
21

This is the effect of the Indian Act, supra, note 1, ss.5-13.

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under the British North America Act, 1867,22 since the Supreme
Court of Canada held in In re Eskimos"3 that the Inuit are included within the meaning of the word "Indians" in section
91(24). The Federal government has responded to this responsibility
with a variety of programmes administered by the Department of
Indian Affairs and Northern Development extending to the Inuit in
the Yukon, the Northwest Territories and Quebec. 24 This situation
will be changing for the Inuit in Quebec as a result of the James
Bay Agreement. 2 5
It is interesting to consider the possibility of the non-registered
Indians seeking the benefits of being within the federal jurisdiction
by extending the reasoning of In re Eskimos. 6
Demographic and economic background

2.

27

Part of the difficulty that non-Native members of the legal system
face in attempting to understand Native People is the shortage or
absence of critical information. There is a wealth of historical,
anthropological, and ethnographical studies available on American
Indians and a growing number of similar studies on the Native
People of Canada but these studies tend to be very specific in nature
and refer only to individual bands or tribes. There is very little
material in existence of a somewhat broader nature that would be
of use to legal services planners in Canada. For example, no one
knows how many Native People there are in Canada. As of December
31, 1974, there were 276,436 registered Indians in Canada." The
population of the non-registered Indians (this term is used hereinafter to include "non-status Indians" and "Metis") is unknown. One
source quotes estimates ranging from 260,000 to 850,000 people, 20
while Douglas Schmeiser places the number at 570,4380 The Inuit
population is estimated to be about 18,000, which results in the
22

Supra, note 2.
S.C.R. 104, (1939) 2 D.L.R. 417.
24
Annual Report 1973-1974, supra, note 16.
25The Globe and Mail, October 30, 1975, 14.
26Supra, note 23.
2
See W. Stanbury, The Social & Economic Conditions of Indian Families in
British Columbia, November 1974 (unpublished), Annual Report 1973-1974,
supra,
note 16 and Frideres, supra, note 9, 13-58.
28
Department of Indian Affairs and Northern Development, Annual Report
23 [1939J

Fiscal Year 1974-1975, Information Canada (1975), 31 (hereinafter referred as
Annual Report 1974-1975).
29 Frideres, supra, note 9, 12.
30 D.A. Schmeiser, Native Offenders and the Law, Information Canada (1974),

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NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

509

Native population being somewhere between 554,436 and 1,444,436.
Combining Schmeiser's figures with the statistics of the Department
of Indian Affairs and Northern Development' leads to perhaps the
most reliable estimate of 864,874 Native People.
An examination of the economic and social conditions of the
Native People in Canada is startling. The mortality rates for Native
People 3' are considerably higher than for the non-Native population.
The infant mortality rate for registered Indians is 8 times greater
than the white population 2 The expected average life span for the
registered Indian in 1970 was 34 years, whereas for the non-Native it
was nearly 72 yearsY 3 If a registered Indian survives the first two
years of his life, then his expected life span rises to just over 50
years,3 4 still 20 years less than the non-Native population on average.
In our affluent society the economic status of the Native People
is equally hard to understand. Over 80% of the registered Indians
live below the national poverty line.3 The income of 40% of the
reserve families is under $1,000 per year. Native People experience
difficulty integrating into the job market due to problems in adapting
to non-Native values and customs. The Native person who is confronted with expectations of mechanical efficiency,, promptness,
rigid role categories and consistency in a new technology, with which
he is totally unfamiliar, is confused; and it is no wonder. The expectations of industry have very little to do with the culture and
society in which many Native People are reared.
Thus the Native population has an unemployment rate 3 times
higher than the total Canadian labour force. Even when they are
employed, it is usually seasonal or part-time work providing little job
security with an average duration of 5 months 0 The situation does
not appear to be improving on its own, and little is being done
about it by the Federal government:
31 The following categories refer only to registered Indians. The statistics
are2 generally not available for the non-registered Indians and the Inuit.
3 Frideres, supra, note 9, 19.
33 Ibid.
34 Ibid.

35 Ibid., 24; Stanbury, supra,-note 27, 45. Using figures suggested by the
Special Senate Committee on Poverty (Poverty in Canada, Information Canada (1971), 3) Stanbury estimates that 67.5% of all Indian families living off
reserves
were below the poverty line in 1970.
30
Frideres, ibid., 27.
37 S. Jamieson, "Native Indians and the Trade Union Movement in British
Columbia" in M. Nagler (ed.), Perspectives on North American Indians (1972),
142, 145.

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The native Indians' position in the resource industries has been marginal
at best, and recent trends indicate that they may be displaced in growing
numbers. At the same time, expansion in secondary (processing) and
tertiary (service) industries has failed to benefit but a small handful of Indians, even where such expansion has penetrated into hitherto
undeveloped areas within easy commuting distance of Indian reserves.5 1
Recently there has been some improvement in the area of education. However, the "drop-out" rate is still incredibly high 38 due to
a wide variety of causes: poverty, racism, poor quality education,
the rejection of alien middle class values. Yet the number of registered Indians enrolled in grade 12 has increased by one third in
3 years and university enrollment has doubled in 2 years5 9 It can only
be hoped that this trend will continue and that the school system
will become more responsive to the experiences, needs, and wishes
of Native People.
Poverty breeds other social and health problems. Frideres points
out that housing is a major concern. Over 80% of reserve homes
can be defined as overcrowded. 40 This factor, plus the generally low
quality of the homes, can have serious social and psychological
implications.
Tuberculosis is on the rise among Native People while declining in
the rest of Canada 4 ' Alcoholism is a serious concern among Native
TABLE A
% Incidence of Sentences Among Native People (1970-71)
Province

% Indians*/Total
Provincial Population

% Indian Sentences/
Federal Penitentiaries

% Indian Sentences/
Provincial Jails

0.5
1.63
Quebec
Ontario
2.00
2.0
10.9
Manitoba
11.33
30.0
50.3
Saskatchewan
12.67
30.0
46.2
Alberta
5.51
33.0
25.8
British Columbia
4.97
10.0
18.1
North-West Territories
4624
91.8
Source: Report of Task Force on Policing on Reserves; for DIAND, [Department of Indian Affairs and Northern Development], January 8,
1973, 41.
* "Indians" includes Metis, non-registered Indians and Inuit Peoples.

as Stanbury, supra, note 27, 25, states that only 12% of the Indian students
entering grade 1 in B.C. in 1958-1959 entered grade 12 in 1969-1970.
-"Annual Report 1973-1974, supra, note 7, 44-46. See Stanbury, supra, note
35, to see how small a percentage of students this is of the total, universityage
Native population.
40
Frideres; supra, note 9, 50.
41Ibid., 54, 56.

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NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

511

People and is a major factor in the rising crime rate of Native
People 2 Their incarceration rate is also considerably higher, as
shown in Table A.
The statistics do not paint a pleasant picture of the life of
Native People. The Laing Report's conclusions, arrived at in 1967,
are still true today:
It is accurate to say that the Indian and Eskimo people of Canada are in
cultural, social and economic isolation from the rest of the population. This
situation is aggravated by their geographic isolation which compounds the
difficulty in providing adequate levels of service. The majority of them
lack such basic necessities as running water, electricity, plumbing, telephones, roads and other transportation facilities. The cost of bringing
these services to them is substantially higher than to other groups because
they are scattered thinly throughout the rural and remote sections of the
country. Access to sophisticated services such as employment counselling
and placement, child and family services and recreation, is even more
limited for many of them, and in some areas not available at all.4 3
3.

Native culture

Certain aspects of Native culture that relate directly to legal
services and the judicial system must be mentioned. The diversity
of that culture is astounding: there are eleven linguistic groups and
seven major cultural areas.
The Native People traditionally lived off the land and the sea
and their language reflects this relationship by its emphasis on
descriptive words rather than abstract ideas.4 4 This concrete approach to reality was, of course, also reflected in their approach to
law. Law was concerned with right and wrong behaviour and
compensating the victims of the latter. The lack of abstract legal
concepts has resulted in difficulty in translating many of the terms
and ideas of the judicial system into a Native language. There is no
word meaning "guilty" in Inuit and some Indian languages45 Yet
these languages are not simple, nor is the vocabulary limited.4
The traditional form of communication was by word of mouth
as many tribal groupings had no written language. This emphasis
42See Schmeiser, supra, note 30, 81; Indians-and the Law, The Canadian
Corrections Association (1967), 26.
43
Indians and the Law, ibid., 17.
44D. Jenness, The Indians of Canada 6th ed., Information Canada (1972),
24-25.
45 W.G. Morrow, Riding Circuit in the Arctic (1974) 58 Judicature 236, 240;
J. 4Sissons,
Judge of the Far North (1968), 123.
10 Jenness, supra, note 44, 24-25.

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on the oral word rather than the written one is still present today
and leads to some difficulty in comprehending the complicated
system of written laws and procedures by which the dominant
society lives.
In most, but not all, Native societies property was held communally. Fish, game and crops were shared. Guests were always
welcome and borrowing was common. Many of the nations of the
Pacific Coast developed an elaborate system called the Potlach to
promote a sharing of even personal goods. These practices completely conflicted with the values brought to the new world by the
Europeans. Trespass and theft were important concepts to them
while Native People regarded need as -the determinative factor and
did not perceive a taking as a theft or an entry as a trespass.
Many of the cultural and linguistic distinctions between different
tribes have been obliterated by the presence of the dominant society.4 7 Legislation has been specifically enacted in some instances
to destroy certain aspects of native culture. For example, the Potlach
laws made the traditional Potlach practice of sharing goods illegal.4 8
All tribes have been treated on the basis of patrilineal descendency
although many Native People used a matrilineal system.49 There has
been an attempt to replace Native religions and cultures with
Christianity and European values.5 0 Traditional means of survival
have been rendered impossible by the reserve system and the prevalence of modern technology. Misunderstanding and conflict are
inevitable given the historical, cultural and linguistic circumstances
that have surrounded Native and non-Native relations.
II. NATIVE PEOPLE IN THE LEGAL SYSTEM
1. Criminal law
The conflicts between Native People and the Canadian legal
system are unfortunately far too apparent, particularly in criminal
law. The presence of male Natives in correctional facilities is as high
as 6 times greater than their proportional representation in Canadian
47

Frideres, supra, note 9, 13.
Waubageshig, "The Comfortable Crisis" in Waubageshig (ed.), The Only
Good Indian (1970), 80-81.
48

4

9Jenness,

supra, note 44, 147; Indian Act, supra, note 1, ss.11(1)(c), (d);

12(1)(b), 109(l).
5OFrideres, supra, note 9, 31.

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NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

513

society."' The situation of the Native woman is even worse. Schmeiser
has discovered that approximately 90% of the female prison population in Saskatchewan is composed of Native women.5 2 Is it possible
that Native People simply commit more crimes? Such a conclusion
would be both shortsighted and misinformed.
Schmeiser, in his study, found that Natives were involved in much
less serious crimes than other offenders, such as breaches of provincial liquor and vehicle registration statutes. Alcohol was a major
contributor to Native crime, directly or indirectly. Not only was
the average length of sentence served by a Native offender less than
that of the non-Native, but the sentences were ' often served for nonpayment of fines. 53 A recent study by the British Columbia Native
Indian and Metis Education Club confirms Schmeiser's conclusions.
This study indicates that the average sentence of Native offenders in
the federal institutions in British Columbia is less than that imposed
on non-Native offenders, yet the overwhelming majority of the Native
People are placed in maximum security and remain there throughout
their prison term.54
The effects of this experience with the judicial system go beyond
even the normal repercussions, social stigma or difficulty in obtaining
employment. There are hidden costs for Native People which include
higher recidivism rates, 5 Native People often live in remote areas
not served by public transit. Appearing in court can be very costly:
the Canadian Civil Liberties Association recently uncovered a number
of cases where people have had to pay as much as $80.00 in taxi fares
just to appear in the nearest criminal court.50 Correctional facilities,
like the courts, are often geographically limited to the more populated areas. An offender in such an institution is cut off from the
community in which he or she resides, a situation' which promotes
family instability.
It must also be remembered that the life expectancy of Native
People is much lower than that enjoyed by the rest of society. This
is an aspect considered by the Northwest Territories Supreme Court
in its sentencing policy, whereby it generally imposes shorter senten51

Table A, supra, "Demographic and Economic Background".

52 Schmeiser, supra, note 30, 81.
53 Ibid.

54 British Columbia Native Indian and Metis Education Club, Columbia
Penetentiary: B.C. Native Brotherhood Briefing Paper, presented to Ministry
of the Solicitor General, February 1975, 3 (unpublished).
55 Schmeiser, supra, note 30, 81.
56 Submission to the Task Force on Legal Aid, May 1974 (unpublished).

McGILL LAW JOURNAL

[Vol. 22

ces on Indian offenders, and even shorter ones on Inuit. This is done
in an attempt to relate the length of the sentence to the expected
life span of the offender in order to minimize any special harshness,
due only to the race of the accused.5 7
2. Family law
The conflict between Native People and the law does not only
arise in the criminal justice system. It also occurs far too frequently
under child welfare legislation. The Laing Survey, Indians and the
Law, noted with particular concern that there were many Indian
children in foster care:
The legal rights of parents concerning their own children appeared to be
regarded too casually by the Indian Affairs Branch and by other agencies.
Indians people are, for the most part, totally unaware of their rights and
responsibilities under child welfare legislation, and in many cases, have
become apathetic to the point where some do not even bother to attend
court hearings involving the custody of their own children.5 8

Eight years later the situation is even worse. The Tenth Report
of the Commission on Family and Children's Law of British Colum-

bia 9 devotes considerable attention to this problem. The Commission
discovered that there had been no set policy regarding the apprehension of Indian children in that province until 1955. In the last
20 years the number of Indian children in care has jumped from 29
to 2,825. Almost 40% of all children in the care of the Superintendent
of Child Welfare of British Columbia are of Indian ancestry °
The high proportion of Indian children under foster parent care
does not necessarily reflect abuse or neglect on the part of their
Indian parents. "[C]hildren are taken into foster care through court
orders simply because social workers feel they will give the children
a better opportunity off the reservation.""1
3.

Causes

What are the underlying causes of the conflicts that are reflected
daily in the family and criminal courts?
57

Morrow and Sissons, supra, note 45.
Indians and the Law, supra, note 46, 18.
59
The Royal Commission on Family and Children's Law, Tenth Report,
Native Families and the Law, Vancouver, May 1975.
"0Ibid., 5. These figures do not include the number of Native children that
have been adopted by non-Native families.
61 Ibid., 5-6.
58

1976]

NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

515

'Undoubtedly, the lack of respect for the existing criminal law
system has historical roots:
In specific terms, what the Indian people regard as the failure of successive governments to live up to the terms and spirit of the original
Treaties is, in the eyes of most Indian people interviewed, a stumbling
0 2'
block to their acceptance of the white man's lavWPin its widest terms.

As well, the Native People are the victims of the jurisdictional
disputes between the federal and provincial, governments, especially
in the area of health and welfare, adding to 'their confusion and
frustration.
The resulting gap in services exacerbates the present social
disintegration which is the source of most of the legal ills of the
Native People.
(a)

Family instability

Native People are still required to leave home for part or all
of their education in many places in Canada. In 1974-75, 36,725 registered Indian children were enrolled in provincial schools. 3 Many
of these students had to be boarded' vith other families because
the school was too far from their home reserve." Some of the
reserve-based schools, in which 37,614 Indian children were enrolled
in 1974-75,.o are also residential schools. The children from the more
isolated reserves are housed in these institutional settings with
little or no contact with their families for extended periods of time:
It was the unanimous opinion of field staff that these -frequent and

lengthy separations from the family setting contributed substantially to
the incidence of familly breakdown in subsequent years, and that the roots
of deviant behaviour, including anti-social acts, might be traced to lack
&6
of stable family environment during childhood years.

The Sanders Report has noted a similar devastating effect that
urban life has upon Native families, disrupting traditional bonds
and relationships and thus increasing the instances of homeless
7
children.1
Lack of knowledge about the legal system,
The general lack of knowledge and understanding of the legal
system by Native People cannot be over emphasized. Many NatiVe
(b)

o 2Indians and the Law, supra, note 42, 19.
3
6 Annual Report 1974-1975, supra, note 28, 32.
4Native Families and the Law, supra, note 59, 52-53.
65 Annual Report 1974-1975, supra, note 28, 32.
6

6 Supra, note 42, 18.
67 Native Families and the Law, supra, note 59, 4.

McGILL LAW JOURNAL

[Vol. 22

People perceive the legal system as an enemy since their only contact
with this system has been as a defendant in a criminal or child
apprehension action. The civil law is largely unknown. The possibility of suing a landlord, a dishonest merchant, a welfare officer or
the government is never considered. The problem extends beyond
the lack of legal information. The procedures involved in seeking out
available services are "alien to traditional native ways of dealing
with life"0 8 This can lead to tragic consequences and misunderstandings on the part of the white professional:
Thus native parents who have had their children taken into care may not
make persistent demands for the return of the children or continued
contact with them. This can easily be misinterpreted as constituting
abandonment, and reinforces whatever negative images were formed about
the parents initially. In turn this can reinforce the native sense of futility
in making any impact on decisions made by white social workers and
white judicial officers. 9

The adversary system is at odds with the traditional forms of
dispute resolution practised by many Native groups. 70 As opposed
to the common law belief in punishment, compensation for the victim
is their key philosophy: the debt is owed to the individual and not
to society in property-related actions or criminal offences.71 The
imposition of the European legal system has tended to deny the
validity of traditional Native practices. This has begun to change
recently in the Northwest Territories where customary adoptions
and marriages have been recognized. 72 The Family and Children's
Law Commission of British Columbia has recommended such legal
73
recognition of customary adoptions.
Little has been done to explain this "foreign" legal system to the
original inhabitants of this land. The assumption underlying our
legal system is that all people do know, or should know, the law. This
assumption may be justifiable in a society where everyone has some
basic understanding of how the legal system functions. It may not
be justifiable when dealing with Native People who do not share
a common legal philosophy and value system.

68 Quoted in Native Families and the Law, supra, note 59, 16, from M. Jackson
and B. Morse, "Summary of Prince George Native People's Conference" (1974)
(unpublished).
09 Ibid.

70 Jenness, supra, note 46, 125.
71 Ibid.
7
2 Morrow and Sissons, supra,note 45.
7

SNative Families and the Law, supra, note 59, 40.

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(c)

NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

517

Isolation from the legal system

The Native People have been isolated geographically, culturally,
socially, and ideologically from the dominant legal system. Numerous
studies over the last ten years have demonstrated the lack of
knowledge and contact between lawyers and the poor.7 4 I would
argue that this is even more true of the Native People of Canada.75
The likelihood of knowing a lawyer socially or having one as a
relative is quite small when there is only one Indian judge76 and a
handful of Indian lawyers in all of Canada.
The legal profession could play a valuable role in the process
of educating Native People to know and assert their legal rights,
remedies and responsibilities. Bands have frequently been seriously
disadvantaged through poor negotiations and contracts with either
Provincial or Federal governments or with private interests 7 Neither
the Department of Justice nor the Department of Indian Affairs and
Northern Development has recognized the responsibility to provide
independent legal advice to band councils, even though some bands
have been involved in major economic development projects, surrenders of reserve land, or pursuit of their aboriginal or treaty
rights.
(d)

Economic welfare of Native People

The Native People of Canada are economically the poorest group
in Canadian society. They have the lowest average education, the
poorest quality housing, the lowest income, and the shortest life
span. This situation can not be conducive to social harmony nor
to an appreciation and acceptance of the legal system.
III. INTEGRATED LEGAL SERVICES IN CANADA
There is presently a wide range of methods being utilized in
Canada to deliver legal services to people who could not otherwise
afford them. The initial impetus for these programmes flowed from a
sense of charity and public obligation on the part of the lawyers who
74

E.g., P. Wald, Law & Poverty (1965); C. Messier, In the Hands of the Law,
Montreal, Commission des services juridiques (1975).
75 H. Savage, Report on the Delivery of Legal Services to Native Population
in Ontario,July 1974, 2 (unpublished).
76 Mr Justice Alfred Scow of the Provincial Court of British Columbia.
77
Private communication by the author with legal counsel to Native groups
in Canada.

McGILL LAW JOURNAL

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controlled a monopoly over legal services. These privately motivated
services have existed for some time on a very limited scale, and
have now generally been replaced by government funded programmes.
It was not really until 1967 that a scheme of any magnitude was
developed in Canada7 8 The first legal aid plan in Canada was established in Ontario, using provincial funds to pay the costs of
individual lawyers who rendered their services to eligible recipients.
The Federal government later assumed part of the expense under
a cost-sharing agreement with each province."9
The basic concept was borrowed from the famous experimental
judicare programme that was established in Wisconsin. 0 The person
who qualifies under the eligibility criteria can choose any lawyer
that he wishes, provided the lawyer is willing to accept a reduced fee
under the legal aid tariff. The organized Bar argues that this freedom
of choice is also an essential aspect of the system. Each plan places
some limitations as to who can qualify as a proper recipient and
on what types of litigation or services can be sought.8 ' Thus the
scheme maintains the traditional lawyer-client relationship, except
that the client does not pay the actual fee. He cannot then exercise
the control that normally flows with the employer-employee relationship.
The judicare approach has been the primary delivery mechanism
of legal services to disadvantaged persons in Canada. Some of its
flaws have led to the creation of clinics connected with the law
schools which were initially staffed entirely on a volunteer basis.
These clinics used law students as the primary deliverers of legal
assistance with a lawyer present to fill a supervisory role. The
service offered was usually one of legal advice or referral, 2 however
these clinics have slowly been expanded in nature. Some law
schools now grant students academic credit for this work. These
clinics are often supervised on a permanent basis by a member of
the faculty or a staff lawyer. The largest of these programmes, Park78 1. Cowie, The Delivery of Legal Aid Services in Canada, Information
Canada (1974).
79 Ibid.
80 SJ. Brakel, Wisconsin Judicare: A Preliminary Appraisal (1972).
81 L. Taman, The Legal Services Controversy: an Examination of the Evidence, a study prepared for the Office of the National Council of Welfare,
September 1971.
82 J. Atrens, Experimental Legal Services (1970) 5 U.B.C. L.R. 91.

1976)

NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

519

dale Community Legal Services in Toronto has 6 lawyers, several legal
service workers, and 20 students per semester.83

Another variation on the judicare model has been the neighbourhood law centre. These centres utilize the services of full-time staff
lawyers to dispense legal advice and legal services and many also
employ legal service workers or paralegals. There are two basic
types, the first of which could be called the "neighbourhood legal
aid office". It is located in an area that would have a number of
potential clients. The staff retains the traditional lawyer-client relationship with its client community and provides a high quality
service by dispensing legal advice and representing the eligible
poor in litigation. It may even assist community groups with their
legal problems. It is, however an outside agency that is located
within the community. It is controlled by a regional or provincial
legal aid society or a legal services commission. All major decisions
as to policy, eligibility, location, and distribution of activity are
made by officials appointed by the Provincial government or the law
society of the province rather than by the client population.
The second type is the "community law centre". It is similar to
the first in that it also provides a similar high-quality legal service
to the community. However this type of operation serves its community in a way similar to that in whiclh a lawyer represents his
corporate client. Representations are made on behalf of the community or community groups before the town council, planning
bodies, and government agencies. Lobbying for desired legislation,
administrative changes or funding is an essential part of the activity
of the centre . 4 Test case litigation that is of importance to the community, and not merely of academic interest to the lawyers, is
launched, as are public legal education programmes. The centre
is a non-profit society managed by a board of directors that represents the community, although the government and the law
society may have a presence on the board. Through this involvement
the community becomes activated to make progress in other areas.
Economic development is a major concern of the centre and
is promoted through the organization of cooperatives and community
action groups. Other vital social services are improved or obtained
for the community. The philosophy behind the community law centre
83

Personal communication by the author with members of the staff of

Parkdale Community Legal Services.

8
4D. Kirkpatrick, "Community Development", in Conference on Legal Aid:
Reports and Proceedings, Ottawa: Canadian Council on Social Development
(1975), 107.

McGILL LAW JOURNAL

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is one of social improvement and change. It does not merely service
an individual's immediate legal problems, as it attempts to remove
the source of those problems as well.85
The neighbourhood legal aid office has been the more popular
of the two approaches to delivery of legal services. Quebec, Manitoba
and Saskatchewan have opted for this approach as a major complement to judicare8 6 The Osler Task Force in Ontario has followed
the same perspective in its recommendations, 1 and the Legal Aid
Society of British Columbia also uses this system as a part of its
judicare plan. 8 There are, however some places where the community law centre has been established. Several such centres are in
operation in Quebec, and British Columbia has also created sixteen
within the last year throughout the province."'
IV. DEFICIENCIES IN THE INTEGRATED LEGAL SERVICES
APPROACH FOR NATIVE PEOPLE
There is a major drawback in the existing systems of delivery of
legal services: the underlying philosophy of integration. That is,
no special attention is paid towards any one segment of the potential
client population and no special efforts are made towards increasing
access to the service by one group.
85 Ibid.
8
6 Cowie, supra, note 78; Savage, supra, note 75.

87 Report of the Task Force on Legal Aid: Part I, Toronto: Queen's Printer
(1974), 27, 31-32, 54-55 (hereinafter referred to as the Osler Task Force).
88
Cowie, supra, note 78. This approach is used in a more limited sense by
this group.
89
Several experimental projects have been developed in North America,
including Toronto, by established law firms through which a neighbourhood
law office was opened in a disadvantaged area. This branch office would be
staffed by members of the firm who could draw on the entire firm for
resources and expertise. The offices generally provided free legal advice and
accepted many civil and criminal legal aid cases. Although the offices were
not expected to return a profit to the firm, these projects have all been
abandoned because of the financial losses incurred: H.D. Pitch, Poverty
Law and the Private Law Firm: An Experiment in Judicare (1974) 22 Chitty's
LJ. 60. Public legal education programmes have also been created in several
urban centres in Canada using the volunteer labour of lawyers and law professors. The function has been to educate the general public about various
areas of the law through free evening lectures: Community Law Program,
A Directory of Community Legal Education Programs in Canada, Windsor,
Ontario: University of Windsor, Faculty of Law (1975).

1976]

NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

521

The liberalist tradition deeming "separate but equal" unjust, and
integration good, continues to persist. But people are not in an equal
position in society, and integration may precipitate assimilation and
absorption. The argument in favour of integration has its roots
in the discrimination faced by black people, Jewish people, Chinese
and other minority groups. These people were specifically excluded
from the dominant society which they wished to join. The Native
People, on the other hand, have faced repeated efforts to be forcibly
included in this society against their will. 0
Native People feel excluded from the operational control of the
integrated legal services system. The Law Society of Upper Canada
recently stated:
Indians represent one example of a group-who demonstrate an abnormal
reticence toward assisted legal services offered in a conventional manner
and require some special consideration.0 This "reticence" is in part due to the urban focus maintained by
the predominant delivery mechanisms in Canada today. The judicare
schemes rely on lawyers in private practice who congregate largely
in urban areas, to be the primary deliverers of legal services. The
overwhelming majority of Native People live in rural parts of
Canada. 2 This isolation from the deliverers of legal services inevit3
ably creates hardships.
Although there are no known statistics concerning the utilization
of legal aid by Native People, it appears that Native People do not
use the system as much as they should, or could. This is most

noticeable in the area of civil litigation, where such coverage is
included within a legal aid plan.9 4 One lawyer, who has acted as the
duty counsel in the James Bay area of Ontario since the inception

of legal aid in that province, has stated:
I do not know of any civil litigation coming from the area, and I really
wouldn't know how to handle it if it were available. The distances are just
too great, and the cost of service of documents is prohibitive. There is not
even a Justice of the Peace or Commissioner to my knowledge any place
OoM. P. Gross, Reckoning for Legal Services: A Case Study of Legal Assistance in Indian Education (1973) 49 Notre Dame Law. 78, 98.
91 Legal Aid Committee of the Law Society of Upper Canada, Community
Legal
Services; A Subcommittee Report, August 1972, 77.
92
Annual Report 1973-1974, supra, note 16. Stanbury, supra, note 27, 2,
notes that 69.3% of Indians in 1971 were classified as rural compared with
only 23.9% of the total population.
3
Savage, supra, note 75; D. E. Sanders, A Legal Services Programfor Indian
Communities
in Canada, (unpublished).
94
Saskatchewan Legal Aid Committee, Final Report, presented to the Attorney-General of Saskatchewan, March 1973, chapter VI.

McGILL LAW JOURNAL

[Vol. 22

north of Moosonee, so it is impossible to complete the simplest legal
documents. 9 5

Thus, not only are there few lawyers available in rural areas, but
there are no court registries, notaries public, or justices of the peace.
To this must be added a general lack of legal information on the
part of Native People concerning the civil lawP6 Therefore, divorces
are not obtained, social services and benefits are not sought and civil
remedies are not pursued. It must also be mentioned that in many
areas where there are no legal services, there is no dearth of law
enforcement personnel.
This urban orientation of the judicare system is also evident in
the location of neighbourhood legal aid offices and community law
centres. Until recently, there were no permanent legal services offices
in the more rural areas of Canada. Even these few new ventures must
service huge geographic areas with limited staffs and minimal
transportation allowances. Considering that the Native People are
the poorest of the poor, it is unlikely that they can afford the costs
7
of transportation to visit a lawyer for legal advice.
Fortunately, more satisfactory levels of performance can be found
in the criminal law coverage of the legal aid plans. Most Native
People presently before the criminal courts do receive the services
of a legal aid lawyer and/or a courtworker. Criminal courtworker
programmes have been developed, as have duty counsel programmes
which means that a Native accused is approached by either a courtworker or a duty counsel before entering a plea

s

It should be noted

that this is not always true in every province as there still are many
Native People who plead guilty without understanding the gravity
of their situation and without the benefit of independent legal advice.
Yet the progress over the past eight years has been encouraging.
Another reason for this progress in criminal law is that the
accused is physically taken before the court. The accused does not
have to discover a legal problem and then seek legal advice:
the entire system including, hopefully, a lawyer, is thrust upon him.
Many Native offenders are arrested in more urban areas to begin
95Letter of J.D. Bernstein

of July 23, 1973 in Report on the Delivery of
Legal Services to Native Population in Ontario (1974), 5, Appendix H.
96 Savage, supra, note 75, Appendix S, brief of Ontario Federation of Indian
Friendship Centres.
9. Canadian Civil Liberties Association, Submission to the Task Force on
Legal Aid, May 1974.
98 Cowie, supra, note 78.

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NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

523

with. They are, therefore, easier to "service" under a judicare
system.
There is a greater quantity of legal services for Native People in
the criminal law sphere but rural inhabitants still will not know or
have much contact with the urban lawyer prior to trial. The fly-in
court system used in Northern Ontario is a good example of this. The
prosecutor, the judge, and the duty counsel all arrive and depart
together leaving, little time for pre-trial communication between
lawyer and client 9 The defendant may also be left somewhat
sceptical concerning the impartiality of counsel.
This dilemma is exacerbated by a language barrier. Many Native
People still do not speak English at all or only with difficulty. One
report estimates that over one third of the Native population of Ont100
ario, north of Kenora, speak only Ojibway, Cree or Inuit dialects.
This inevitably leads to confusion, misunderstanding and fear of the
judicial system and its officers. The shortage of competent interpreters is a severe problem facing the courts, the accused and the
lawyers in pre-trial and trial communications.' The fact that much
of our law and our administrative requirements do not translate
conceptually into these native languages 2 compounds the problem.
It is interesting to note that these barriers of distance, language,
and culture still exist and are being discussed in much the same
manner by the Sub-committee on Community Legal Services of the
Law Society of Upper Canada 1 3 as they were in the Laing Report.'"
Eight years of legal aid has made little progress against these
barriers. In fact, the Sub-committee admitted that the "presence"
of legal aid, apart from duty counsel, was non-existent in most of
Northern Ontario.
The relative paucity of major litigation concerning the Indian Act,
treaty rights, hunting and fishing rights, aboriginal title claims, the
corporate powers of the band, customary adoptions, and breach of
trust actions against the Department of Indian Affairs and Northern
Development can be explained in part by the general lack of legal
99 Savage, supra, note 96, 4.

100 Sub-committee on Community Legal Services in Ontario, Law Society of
Upper Canada, Supplementary Report, Aid to Persons in Remote Areas of the
Province and in Particularto the Indian and Eskimo Population of Northern
Ontario (1974), 2.
101 Ibid.; Savage, supra, note 75.
102 Ibid.; Sissons and Morrow, supra, note 45.
103 Supra, note 100, 2.
'o4 Supra, note 42.

McGILL LAW JOURNAL

(Vol. 22

knowledge of Native law on the part of most lawyers. Most community clinics in operation have yet to rectify this problem. Neither
those clinics nor the judicare system will embark on such litigation
until they develop an appreciation of Native problems.
The emergence of major Native political organization on the
national, provincial, and local levels has created a special need for
legal services. These organizations need legal representation in the
same fashion as other legal entities. They also need the expertise of
lawyers as consultants in negotiations with governments and as
lobbyists for legislative reform. 105 The existing legal services systems
cannot respond to their needs. 10 6 Either lawyers are prohibited from
representing groups, or they do not have the time, interest, or expertise.
In addition, many bands are realizing that economic development
of reserve land may be one way to revitalize their economy. Major
projects are being undertaken without any legal advice whatsoever.
Even if a lawyer were available, it is unlikely that he would be aware
of special tax provisions, restrictions on band management of funds,
limitations placed on dealing with reserve land or other complex
issues flowing from the unique constitutional position of status
07
Indians.'

Since the existing programmes are generally managed by nonNative lawyers from urban centres, there is little impetus to transform the system to better serve the needs of Native clients. The
geographic locations selected for the offices, the under-usage by
Native People, the lack of an outreach programme, the lack of preventive-educational programmes, the lack of legal expertise in certain
areas, the language and cultural barriers, and the emphasis on professionalism and the independence of the lawyer are a result of the
type of people who currently populate the legal services systems. It
is in no way unrealistic to assume that if Native People had either
the money or the power, many, if not all, of these problems would
be dealt with and hopefully eradicated. Through money or power, or
both, they would gain access to the legal system.
Gaining access is one problem, control is another:
Paternalism has been the dominant characteristic of delivery of services
to Native People in Canada. History has not indicated that this approach
105 Sanders, supra, note 93,

2.
106 Ibid.
107 Ibid., 3-4; J.P. Icenogle, Economic Development of Indian Reservations:
Increasing Tribal Participation, Limiting Federal Control (1973) 48 Tul.L.R.
649.

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NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

525

is successful in terms of preserving or facilitating self-determination on
the part of Native People. Paternalism fosters dependency relationships
and thereby destroys any real equality of bargaining power between Indian
people and the government. Native Peoples must move from being merely
recipients of social services to being participants in the delivery process,
and ultimately to being the sole distributors and administrators of these
social services.108

This transformation from passive recipient to active participant is
impeded in part by the present legal services framework and the
lack of awareness on the part of the legal profession.
V.

NATIVE LEGAL SERVICES PROGRAMMES

1. United States
Until 10 years ago there was virtually no legal representation
for any Indians, Indian tribes, or Inuit in the United States. Prior to
that time there had been some representation for a few wealthy
bands or in claims before the Indian Claims Commission in regard
to aboriginal rights or treaty violations. 0 9 This suddenly changed
when the Office of Economic Opportunity established a Legal Services Program to oversee all federal funding to legal services projects
across the country.
In 1966 the first Indian legal services programmes were funded.
Over the next 9 years, a number of programmes were established
throughout the country varying considerably in size, purpose and
impact. They can be generally categorized as: (1) reservation-based
projects; (2) state-wide projects serving only Indians; (3) state
legal aid programmes that pay special attention to Native People;
and (4) national projects.
There are no accurate reports readily available concerning the
number and size of the various reservation-based legal services programmes. The author is aware of 9 such projects, varying in size from
one lawyer and a secretary up to a staff of over 100 with budgets
ranging from $25,000 to over $1,000,000 annually. 110 Despite their
108 J. McFadyen and B. Morse, A Proposal for a Task Force on Delivery
of Legal Services to Native People of B.C., Vancouver (1974) (unpublished).
109D. Getches, Difficult Beginnings for Indian Legal Services (1972) 30
N.L.A.D.A. Briefcase 181.
110 Ibid. See M. E. Price, Lawyers on the Reservation: Soma Implications for
the Legal Profession (1969) Law and Social Order 161, 168; J. Richards,
Providing Legal Services to Montana Indians (1968) 27 L.A. Briefcase 62; S.
Cohn and A. Hippler, Conciliation and Arbitration in the Native Village and

McGILL LAW JOURNAL

[Vol. 22

differences, the projects have tried to emphasize local control. The
larger projects have been able to create their own law reform units
with several full-time staff attorneys to launch test cases, prepare
briefs, assist in negotiations with business and government, and
improve the procedural and substantive tribal law."1 The avowed
purpose of these various programmes, as Robert Swan maintains, is
to provide the possibility of choice:
The ultimate goal' of the reservation legal services program must be to
strengthen the Indian's autonomy while enabling him to preserve his sense
of community. By assisting the Indian in developing the resources of his
reservation, while concurrently providing him with the capability to
interact on an equal basis with members of Anglo society, the OEO
[Office of Equal Opportunities] lawyer can perform perhaps his most
significant service for the members of the reservation community. With
this assistance the reservation Indian will then be afforded a meaningful
choice between the two options which control his destiny: assimilation
into Anglo society or development of progressive reservation communities.112
There are criticisms however. The experts are generally nonIndians who receive more money and status than do the Native lay
advocates.1 1 3 The relationship between the lawyer and the client
is the traditional one since the client comes to the lawyer with a
problem which the lawyer solves on his own by making all necessary
4
decisions himself."
The only state-wide programme that specifically addresses the
legal problems of Native People is California Indian Legal Services,
or CILS. This organization has existed as a distinct entity since
1968 to handle the non-criminal needs of rural Indians in the state."'
Its staff of approximately 12 lawyers is spread throughout the
state primarily to act as counsel in litigation of either a routine or
precedent-setting nature. CILS is extremely well-respected in the
United States for the quantity and quality of services it has provided."'
Urban 'Ghetto (1974) 58 Judicature 228, 229; Native Programmes Division,
Legal Services Commission of British Columbia, Legal Services for Native
Peoples of North America, Vancouver (1976) (unpublished).
l11R.C. Swan, Indian Legal Services Programs: The Key to Red Power?
(1970) 12 Ariz. L.R. 594, 599-600.
112 Ibid., 626.
113 Gross, supra, note 90, 82-83.
114 Ibid.
15CILS
is expressly prohibited from assisting Indians when they live
in urban areas or in regard to criminal cases. (Personal communication by
the author with Bruce Greene, former executive director of CILS).
118 Ibid.

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NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

527

The Board of Trustees of CILS is composed of representatives of
the state Bar and selected Indian people. Although the latter are
in the majority, they have been unable to exercise any practical
control due to the general ineffectiveness of the Board as a decisionmaking body. The lack of unity within the Indian population in
California has created a climate where "there is no community or
political leadership to control or direct the program".17
Most states provide some kind of legal services system ranging
from judicare, to public defenders, to neighbourhood law offices.
Native People can use these services in the same manner as anyone
else, if they meet the eligibility criteria. Some of these programmes,
due to the greater number of Native People living in the state, have a
fairly high percentage of Native clients. However, it appears that
only two states have responded to the challenge of delivering legal
services to Native People in any concrete fashion, namely, Montana
and Alaska.
There is a wide variety of national programmes relating to Native
People and the law in the United States. Several different organizations have been created to monitor federal legislative action
and to promote legal research on important aspects of Indian law. 11
Some of these organizations have also filled the important role of
providing financial assistance to young Indian lawyers 10 or to
individuals or tribes engaged in litigation with potentially widespread ramifications.2 0 The only national organization that delivers
any form of legal services on a regular basis is the Native American
Rights Fund, or NARF. NARF's major purpose has been as a resource
and research center for tribes and lawyers in regard to test cases.
The existence of these programmes, even with their faults, has
led to a dramatic upsurge of interest in Indian law by both Indians
and non-Indians in the United States along with a tremendous improvement in the quantity and quality of legal services available to
the American Native People.
117 Sanders, supra, note 93, 17.

118 E.g., The Institute for the Development of Indian Law; the Indian Legal
Information Development Service; the Office of Indian Law; the National
Indian Justice Planning Association; and the National American Indian Court
Judges Association. These organizations are referred to by Sanders, supra,
note 93, 8-12.
119 The American Indian Lawyer Training Program does this as well as
organizing intern programmes for Indian law students, arranging training
conferences and publishing a periodical.
120 The Native American Legal Defense and Education Fund, established by
Americans for Indian Opportunity, fulfilled this role among others.

McGILL LAW JOURNAL

2.

[Vol. 22

Canada

There are no reserve-based legal services programmes in Canada.
Unless a band is fortunate enough to be able to afford to retain a
lawyer, as, for example, the Squamish band of British Columbia,
there are simply no legal services available to the band. The band
members are in the same position as all other Native People, that is,
forced to rely on legal aid with all its shortcomings.
The only exception to this has been a brief legal aid pilot project
conducted by Harvey Savage in 1972 on the Islington reserve, which
is 65 miles from Kenora, Ontario.' 2 1 The Legal Aid Plan of Ontario
agreed to pay for the costs of Mr Savage spending approxicately
one day a week on the reserve as a "special Reserve Duty Counsel".
He was then able to devote all of his time to discussing people's
problems with them in an informal manner on the reserve and to
act on them accordingly.1 2 Unfortunately, this project was discontinued.
The national Native organizations (the National Indian Brotherhood, the Native Council of Canada, and the Inuit Tapirisat of Canada) do frequently have a lawyer on staff or on retainer. These
lawyers deal with the legal problems of a non-profit society and
occasionally write briefs for presentation to a government, or intervene in the occasional case of interest to the organizations. The
Canadian Association in Support of Native People (formerly called
the Indian-Eskimo Association) has some lawyers as members. The
organization does not provide legal services, but it does promote
123
legal research concerning Native problems and aboriginal claims.
It also makes representations to the various governments on behalf
of Native People as does the Canadian Civil Liberties Association.124
This group has attempted to educate Native People about the law
through pamphlets, 12' and through a pilot project in the Kenora area
which involved the training of several "indigenous ombudsmen" for
each reserve. 2 6
The Saskatchewan Legal Services Commission has established
a programme in Northern Saskatchewan somewhat equivalent to
the efforts of the Montana Legal Services Association. The pro121 Savage, supra, note 75,

1, Appendix C.

122 Ibid., 4-5.
123 E.g., Cumming and Mickenburg,

supra, note 19.
124 E.g., its submission to the Osler Task Force, supra, note 87.
125 E.g., Indian Life and Canadian Law, Canadian Civil Liberties Education
Trust (1974).
126 Ibid.

1976]

NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

529

gramme involved primarily the opening of a legal services office in
La Ronge. The office is staffed with 3 lawyers, an articling student,
and several native community legal services workers. This staff
must deliver all civil and criminal legal services in the northern
part of Saskatchewan as there are no lawyers in private practice
in that region. 2 7 The Carter Report does indicate that expansion of
the northern legal services operation would be possible if the caseload so required,'2 8 but did not address itself to the issues of law
reform, public legal education, community development, or community control. It can only be hoped that that outpost will grow
and tackle the challenges confronting it.
Manitoba has a northern fly-in programme. A junior lawyer is
dispatched into the community a day before the senior counsel
and the rest of the court's party arrive. During this one day, the
junior attorney has to prepare all criminal cases for trial as well as
dispensing summary advice and discovering civil problems in need
of a legal remedy.129 This approach cannot provide a high quality
service, let alone promote law reform or increased awareness and
understanding of the legal system.
Ontario's major attempt to deliver legal services to Native People
has been to use the duty counsel format along with a circuit-court
system under the legal aid plan. The presence of duty counsel ensures
legal representation for most Native People in the criminal courts.
Therefore, all criminal courts, including the ones in the most remote
areas of the province which have the highest percentage of Native
offenders, are serviced by Ontario's Legal Aid Plan. 130
The only remaining programme delivering legal services to
Native People is also the most important. This is the Native courtworker, or counsellor, or communicator as he or she is also called.' 3 '
Native courtworker programmes are now in existence in 6 provinces: British Columbia, Alberta, Manitoba, Saskatchewan, Ontario
and Nova Scotia.13 2 The John Howard Society, the Elizabeth Fry
Society and the Salvation Army have all operated courtworker programmes in the past that included Native People.
127 Supra, note 94, 4-18, ch. VIII and ch. VI.
128

Ibid., 5, ch. VIII.

129 Savage,

supra, note 75, Appendix A.
13o Supra, note 100; Savage, supra, note 75.
131 All information on these organizations, unless otherwise indicated, is
from personal knowledge of the author.
132 P. C. Cameron, Programme Evaluation: Native Court-worker Programme
in British Columbia (1975), 21 (unpublished). The Northwest Territories is in
the process of establishing a Native courtworker programme.

McGILL LAW JOURNAL

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The role of the courtworker varies somewhat according to local
needs and desires, and also according to the individual involved.
Generally, the Native courtworker makes the first contact with the
accused shortly after his arrest. The courtworker explains the charge
to the accused, the procedure for obtaining bail, and the method
of applying for legal aid. The courtworker then assists the accused
throughout the entire process. He ensures that the defendant
is competently represented by a lawyer who is aware of all of
the circumstances and the potential witnesses. He usually helps
prepare any pre-sentence reports and he may even act as a probation supervisor or a family counsellor. The Native courtworker.
who also assists non-Native offenders, is the vital link between the
foreign and frightening legal system and the Native offender. He
encourages mutual understanding and fairness while allaying the
apprehension of the accused. The cooperation and active support of
the judicial system is, of course, essential to his efforts.
The first native courtworker programme in Canada was established in Alberta in 1962 with a total staff of one. This Native-controlled
organization now operates with a staff of approximately fifty and
an annual budget in excess of $1,000,000. The courtworkers concentrate on either criminal cases or family and juvenile problems
after receiving an intensive training programme. Legal Education
Seminars have been offered to thousands of Native People over the
past few years by each courtworker in his local region, in conjunction with necessary resource people. 33
The Native courtworker organizations in the other provinces
function in basically the same manner as the Native Counselling
Society of Alberta. All of them have been growing in size and scope
over the past few years,' 34 led by the British Columbia Native Courtworkers and Counselling Association.135 The programmes really only

differ in terms of their administrative structure. The Indian friendship centres in Ontario and Saskatchewan operate the courtworker
programmes in their provinces as part of their overall approach
towards delivering social services. The Manitoba programme is
133 Personal communication by the author with Chester Cunningham, executive director of this organization.
134 The Nova Scotia programme is the smallest with only 4 courtworkers,
-whereas Manitoba has 14, Saskatchewan has 10, Ontario has 18 and British
Columbia has 31: See Cameron, supra, note 132, 21; Report of the Task Force
on Legal Aid: Part II, Ministry of the Attorney General (1975), 5.
3 5
Help for the Accused
1 See M. C. Bennett, The Indian Counsellor Project (1973) 15 CanJ.Corr. 1, for a discussion of a prior programme operated by the
John Howard Society of British Columbia.

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NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

531

operated in an entirely different manner as the individual court
communicators are all civil servants.. They, presumably, are, recognized more favourably by the other professionals within the
judicial system. The courtworker associations are operated as independent native organizations in the remaining provinces. The net
result of these programmes has been impressive. Thousands of
Native People are receiving legal representation in criminal ,cases.
It must be recognized that these programmes do suffer the limitations inherent in a piecemeal approach to criminal legal services.
The court workers must begin to prevent Native People from appearing in Criminal court, as well as helping them once they get there.
Diversionary, educational and fine-option programmes are essential
in this regard as is the 'reallocation of services towards the noncriminal sphere.
The organizations need to realize that law reform is. an essential
element of any social, legal, or economic change desired by Native
People. Legislative lobbying and test-case litigation are presently
beyond the means of these programmes, but these are the tools which
could be utilized by Native associations to reach their long-term
objectives. This orientation requires a dramatic transformation in
the position of courtworker, namely a change from second-class
assistant to full-fledged participant in the judicial system with the
talent and knowledge that is respected by the other -participants.
This obviously necessitates a considerable change in attitude on
the part of the legal profession and the judiciary which is long
overdue.
VI.

NEW DEVELOPMENTS IN NATIVE LEGAL SERVICES IN
CANADA

A variety of major breakthroughs in Native legal services occurred in 1975 in Canada. The National Conference on Native Peoples
and the Criminal Justice System was held in Edmonton prior to a
Federal-Provincial Ministerial Conference, prompted by "[c]oncern
over the jailing of disproportionate numbers of Canada's Native
People".y26
The ministers approved a number of policy initiatives relating to
all facets of the judicial system, including community legal services.
The Canadian Advisory Council on Native Peoples and the Criminal
136 Ministry of the Solicitor General, Native Peoples and Justice, Information

Canada (1975), 3.

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Justice System was established to promote consultation between the
various governmental ministries and representatives of the Native
associations in regard to the implementation of these, and future,
policy initiatives. 13 7 This national council, and its provincial and
territorial equivalents, have met on several occasions since the conference, but the progress has not been dramatic.
The following statement of general philosophy was adopted by
the ministers as underlying any approach to the problems of Native
People within the criminal judicial system:
(1) Native persons should be closely involved in the planning and delivery

of services associated with criminal justice and native peoples.
(2) Native communities should have greater responsibility for the delivery
of criminal justice services to their people.

(3) All non-native staff in the criminal justice system engaged in providing services to native people should be required to participate in

some form of orientation training designed to familiarize them with
the special needs and aspirations of native persons.

(4) More native persons must be recruited and trained for service functions throughout the criminal justice system.
(5) The use of native para-professionals must be encouraged throughout
the criminal justice system.
(6) In policy planning and program development, emphasis should be
placed upon prevention, diversion from the criminal justice system

to community resources, the search for further alternatives to im-

prisonment and the protection of young persons. 3 8

It is difficult to discern anything in these guidelines that can be
criticized. The only question that remains is will they be followed?
The Native People of Canada have received many glowing assurances
and promises in the past. What they have received very little of,
though, is positive action.
Despite fiscal restraints, some implementation of the various
resolutions adopted at this Conference has begun. Several provinces
have developed special programmes to recruit Native Royal Canadian
Mounted Police constables, while Saskatchewan has trained and
appointed Native justices of the peace. British Columbia, with the
assistance of the federal Department of Justice, has increased the
budget for the Native Courtworkers and Counselling Association
of British Columbia by over 100% in one year.
The Native Legal Task Force was jointly created by the Native
Courtworkers, the Union of British Columbia Indian Chiefs, the
British Columbia Association of Non-Status Indians, and the At'3
1-3

1bid., 59.
Ibid., 38.

1976]

NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

533

torney-General's Department. The mandate of the Task Force
was to investigate the overall problems of Native People in the
judicial system. Extensive fact-finding tours were taken to promote
a discussion throughout the province between the local non-Native
professionals and the Native community concerning the causes and
solutions of their problems. The result of this process has been the
establishment of a Native Programmes Division within the new
provincial Legal Services Commission to implement the recommendations of the Task Force. A province-wide, toll-free, legal
information telephone line was in operation under the control of
the Native courtworkers from September 1975 to April 1976. Unfortunately, a change in leadership has caused abandonment of this
programme. Three provincially-funded community law centres, under
the direct control of local Native residents; have come into existence
within the last year. These programmes operate in addition to the
lprovincial legal aid (judicare) scheme, therefore the bulk of the
caseload will be civil problems. The centres are similar in nature to
many of the Native legal services projects in the United States in
that a staff of lawyers and legal services workers will respond to
individual and group problems by using all conceivable methods:
litigation, conciliation, legal education, economic development and
law reform.
In January 1975, the College of Law of the University of Saskatchewan received a grant of $400,000 from the Donner Foundation
to establish a multi-disciplinary Native law centre. The development
of a major library on Native law and Native People, in conjunction
with the centre, should promote essential research in Native law.
A community law centre in Frobisher Bay has also been funded
by the Federal government. This centre employs a staff lawyer and
several Native legal services workers to handle the civil problems
of that area and to develop educational programmes.
These are all good beginnings that should be nurtured and supported. They are, though, only beginnings.
VII.

THE DEVELOPMENT OF NATIVE LEGAL SERVICES

If the integrated delivery system continues as the sole delivery
mechanism serving the legal needs of Native People, its deficiencies
will counteract an increased utilization of legal services:
[U]nless the proposed program is undertaken with other than a centralist,
paternalistic administrative approach its impact and success will be
limited, as have been other government-funded service programs in the

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past. Unless a community focus, including ongoing input and control, is
built into delivery systems the Indian People will continue to be recipients
and not participants. Because one of the key concerns is utilization of
the service by people who have, over time, grown mistrusful and apprehensive about governments, services and the non-Indian social system,
the primary focus on planning and implementation must also be on
utilization. It is suggested that community participation at all levels of the
30
program is a step in the right direction.

It must be remembered that Native People are not in a position
equivalent to other minority or oppressed groups. There is a disthe original citizens of this land, who suffered the effects of colonization for several hundred years, as no other group in Canada has.
ation for several hundred years, as no other group in Canada has.
The statistics on child apprehension rates and imprisonment rates
indicate that they are still suffering. The legal system has failed in
relation to Native People more than it has to any other group in
Canadian society.
The question remains: Why offer any kind of legal services to
Native People? If the reason is because of a feeling of guilt or a
sense of charity, then the assistance is doomed to be mere tokenism:
This aid has suffered from a psychological infirmity common to many
interracial, interclass, intercultural gifts: the infirmity inherent when
masters do something for slaves.
Social reform cannot succeed in that fashion ... .140

The dependency on non-Natives, forcibly developed among Native
People over the last 150 years, is maintained and even promoted
under our present legal services system.
Lawyers must talk in terms of Native "control", and not just
Native "involvement", if they wish to transgress the "Salvation
Army approach to technical assistance for the poor".1 40a Lawyers
must learn from the American experience and realize that simply representing Native People in the criminal and civil courts will not
change their social or economic position. Extending to them control
over a judicare scheme or the management of a grossly underfunded,
overworked, community, law centre is not enough. The legal profession must go further than merely transferring to Native People administrative regulation of the funds along with majority representation on the local board, or simply providing one paralegal to a band.
This approach occurred in many of the projects in the United States,
and their impact was not as great as might otherwise have been
expected.
139 McFadyen and Morse, supra, note 108, 13.
140 Gross, supra, note 90, 80.
3.40a Ibid., 93.

1976]

NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

535

Gross discerned the existence of professional elitism being
exercised by the lawyers in these projects. They operated under the
assumption that only someone with legal knowledge could understand the legal issues involved, let alone solve them; a result of
the traditional lawyer-client relationship in which, if the lawyer does
not actually make the decision, he predetermines his client's choice.' 41
The lawyers did not realize that their goal should have been to assist
the Native community in developing its own abilities to solve its
problems and concerns on a permanent basis. 142 Unfortunately,
[p]overty lawyers, without realizing the implications of their elitism,
unwittingly became part of the vast bureaucracy charged with the care
1 2
and tending of the poor and lacking in any accountability to the poor. 4 a

Even the treasured domain of progressive lawyers, law reform
and test-case litigation, is fraught with potential dangers and misapprehensions. Lawyers often believe that breaking new legal ground
will invariably achieve substantial benefits for their client population.
However, Michael Gross argues that from his experiences he has
determined that "law reform in its usual meaning - 'significant'
lawsuits - cannot reach the subtle relationships between the oppressed and the dominant society which constitute the heart of the
problem". 143 This approach to dispute resolution can remove the
initiative from the community with the problem. Therefore, even
if the lawsuit is triumphant, it is a win for the lawyers rather than
the community, since the latter did not create the victory.
How then can these problems be avoided? The most promising
approach is to have an active Native community in control of both
the board of directors and the daily administration of a community
law centre comprised of lawyers and legal services workers. It is
preferable that a particular Native community initiate the community law centre entirely on its own. This necessarily implies that
it possesses sufficient funds, and that it has the necessary skills to
establish and define such a project. Unfortunately, this is likely in
only a small percentage of the Native communities in Canada at the
present time as they generally lack both financial and legal resources,
The most probable procedure is for the initiative to come from
an outside agency, such as a legal services commission. This obviously has its hazards. The outside agency can choose to parachute into
141 Ibid., 97.

142 Ibid., 94-95.
142a E. and J. Cahn, Power to the People or the Profession? -

Interest in Public Interest Law (1970) 79 Yale LJ. 1005, 1041.
143 Ibid., 94.

The Public

McGILL LAW JOURNAL

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the Native community and simply open an office. This route is not
to be recommended, although it has been occasionally successful.
It can create a climate of antagonism and minimize the possibility
of community control. Alternatively, the agency can perceive its own
role as that of a resource person who provides necessary expertise
to the decision-maker. The local Native community should initially
be granted an assurance of adequate funding to overcome their properly held scepticism.14 The range of options in legal services programmes should be clearly delineated to the native leadership. The
method of implementation and its pace should be determined by the
local Native community, if they are really to control the project and
view it as their own. This does not mean that the agency should
refrain from offering any assistance. On the contrary, it should inform the community that it is ready, willing and able to provide its
expertise on a consultative basis as requested by the Native People.
If any non-Native lawyers are to be involved on the staff of the
project it is recommended that the Native legal service workers be
hired before the lawyers commence working in the community. Both
lawyer and legal service worker should undergo a joint orientation
programme before the first case is accepted. The lawyers will
educate the legal service workers about the law, while they in turn
will be educated about the culture, history, values, problems, and
aspirations of the people of the client-community. This mutual exchange of information will form the basis of their future relationship.
It is most appropriate initially to place the major emphasis on
tackling immediate problems of an individual nature. This emphasis
should slowly be shifted towards the legal, social, and economic
problems of the community as a whole. Individual problems should
still be handled, but they should not remain the sole preoccupation
of the staff. The backlog of untouched legal problems should disappear, providing the staff with more time to confront these community issues.
It must be perfectly clear, however, that this transition occurs
according to the wishes of the predominantly Native board of directors, and not simply due to the influence of the staff lawyers. The
lawyers must also realize that test-case litigation is not the only
avenue to be utilized in confronting social, legal and economic injustices. The effects of assisting in the creation of a fishing co144 This scepticism has been engendered by the repeated, but hollow, promises
offered to Native People over the years by missionaries, charities, academics
and government agencies.

1976]

NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

537

operative may far outweigh those engendered by "landmark" de145
cisions like R. v. Drybones.
Immediate individual needs must be balanced against long-term
projects. Reaching and maintaining an appropriate equilibrium
between these two competing influences is important. First of all,
Native People generally have a strong sense of community that

traditionally orients them towards collective action. This factor,
when combined with a deep interest in the future of their children

and their children's children, increases the possibility of an adequate
resolution. This result can be promoted by the actions of the legal

staff in relation to their cases. If they use each case as a vehicle for
educating the client about the law, then the perennial problem of
the case overload will be minimized by this attention to future

prevention.
The lawyers must be continually reassessing their position in

the community as long as they are there. They should be preparing
for their eventual departure from the moment of their arrival. Each

lawyer should attempt to distribute as much of his knowledge to as
wide an audience as possible, in order to lessen the chance of de-

pendency relationships being fostered. This will also serve to demystify the law and make the legal system, as well as lawyers, appear

less overwhelming to the people who will remain after the lawyer
ultimately departs. This goal will be further ensured by the presence
of Native lawyers in increasing numbers in the near future.'4
This is a three-pronged attack involving short-range, intermediate

and long-term objectives founded on the premise that local Native
community control 47 is the best and only road to achieving a
successful legal services programme for Native People. For Native
145 (1970)

71 W.W.R. 161, 9 D.L.R. (3d) 473, 10 C.R. (2d) 334.
for a discussion of several pre-law programmes
that have been developed in Canada and the United States to promote Native
lawyers: R. Carter, Legal Studies for Native People (1973) 4 (noA) C.B.A.J. 6; P.
MacKinnon and P. Rhodes, The First Canadian Program of Legal Studies for
Native People (1973-74) 38 Sask.Law Rev. 40; S. Deloria, Legal Education and
Vative People (1973-74) 38 Sask.Law Rev. 22.
147 The phrase "local Native community" must be particularly stressed as
the concerns and wishes of Native communities vary tremendously within each
province and across Canada. Although there may be a useful role for a provincial Native organization in this area, for example, to provide educational
materials and conduct training seminars, the decision-making authority in
regard to fundamental policy questions must exist at the local level. It is for
this reason that the author does not agree with the views of the Osler Task
Force; the scope of their suggestions is too narrowly defined; supra, note 87.
146 See the following articles

McGILL LAW JOURNAL

(Vol. 22

control to be a reality it must be complete and actual control. This
means that the Native community decides who sits on the board of
directors. It should be their right to choose to invite members of
the legal profession or the funding body to be represented on the
board or not to do so. The decision-making authority in reference
to priorities, programmes, allocation of resources between lawyers
and legal services workers, delivery methods, eligibility criteria, areas
of law handled and other matters must be vested in the Native community through its representatives. Only Native community control
will create an environment in which the clientele will be encouraged
to utilize effectively the expertise of the legal staff.
It should be recognized that the problems encountered by
lawyers involved in legal services in the poor urban communities are
not entirely transferable to the Native community. Since Native
People primarily reside in rural or remote areas, the specific tensions
engendered by the urban environment do not exist. The Native community is not as disorganized and dispirited as are the urban poor.
Credible indigenous leadership that has been elected exists in almost
all native communities. These leaders have some level of administrative sophistication due to their contact with the Department of
Indian Affairs and Northern Development and their previous experiences in operating programmes. A sense of homogeneity exists in
Native communities, particularly on reserves, that is unequalled in
any urban centre. This has been produced by the sharing of a common culture, tradition and philosophy. Poverty and discrimination
bind Native People closely together.
An awareness of these distinctions should render it possible to
avoid the disappointing experiences of urban legal services programmes. It is feasible to speak in terms of Native community control
from the inception of the projects. This may not be practical in every
Native community. However, the combination of limited resources
and immense demand will inevitably cause a selective process to
occur.
VIII CONCLUSION
Continuing research is necessary on a number of topics touched
upon above: the viability of tribal courts in Canada, methods of
sensitizing non-Native professionals to the needs, values and aspirations of Native People, the best techniques for informing Native
People of their rights and liabilities under the law, the ways of
developing diversionary or preventive programmes, and the creation
of a system of Native justices of the peace.

1976]

NATIVE PEOPLE AND LEGAL SERVICES IN CANADA

539

A warning is perhaps appropriate here for all those lawyers who
may become involved in Native legal services programmes. The
lawyer's pride in due process, individualism, and the sanctity of
the lawyer-client relationship may be impinged upon by the interests
of the community as a whole.1 4 s The lawyer must avoid becoming
involved in Native politics at all costs. The history of Native legal
149
The
services indicates that it can lead to disastrous consequences.
lawyer can not allow his expertise and his success to threaten the
local leadership. 5 ' There will be political divisions within the Native
community, but the lawyer must remain neutral and respond to the
wishes of the recognized leadership as the employee of the programme.
Many communities may properly choose to eliminate some of
these problems from the outset by deciding that the legal staff will
not intervene in disputes between the members of the community.
This would permit the lawyers to stay clear of potential conflicts in
which their role would be criticized harshly by some.
All of these ideas and proposals will, of course, cost money. They
will in fact cost a great deal of money. Harvey Savage emphasizes
how much it has already cost:
Until now it is the Native population itself which has borne the brunt of
the cost of legal services. It has borne it in the form of excessive transportation costs to and from court hearings, rights in numerous civil areas

which have been long neglected or lost because they were not defined as
such and were unattended to, rights in the criminal area which have been
compromised because material defense witnesses could not afford to travel
to court. All of the costs are inestimable. The transportation costs, though
in dollars and cents, cover numerous incidents over many years. There
were other hardships, such as returning to custody, which over the years
have been directly associated with inability to return to one's home. The
costs of social malaise, lost rights, unmet needs are virtually impossible to
calculate. It would seem a reasonable assumption to make that the cost
of justice has been excessive to the Native population of Ontario.
It would, therefore, ill behoove the various levels of government to say
they cannot afford the cost of implementing the recommendations ...
redressing a balance and providing for a
[i]t would be a question of
system. 151

meaningful delivery

The value to society is worth the price. The existence of Native
legal services in Canada will not lead to a dramatic revitalization of
148 Getches,

supra, note 109, 183.

149 Ibid., 183; Price, supra, note 110, 177-179.

150 Price, ibid., 177.
151 Savage, supra, note 75, 81-82.

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the Native community overnight. By itself it may not even halt the
social deterioration that has been taking place over many years.
"Legal services are interwined with social fabric. All promise and
hope lies in the restrengthening of that social fabric, and anything
which helps to that end must be worthy of serious consideration." 1 2
The Native People have been dealt with as human commodities
rather than human beings. This is not the Indian way, and has not
been successful. Native community influence, participation and control are the issues and are best resolved by the Native People themselves.

152 Ibid., 94.