OTTAWA -- The Liberal government's failure to extend its Court Challenges Program to pay for Indigenous cases involving treaty rights doesn't make sense at a time when reconciliation is supposed to be a priority, legal experts say.
They say the government should expand the program to include funding for cases under Section 35 of the Constitution, which deals with Aboriginal and treaty rights.
Lorena Fontaine, an associate professor of Indigenous studies at the University of Manitoba and a former member of the program's equality rights panel, said Wednesday she was "floored" when she first learned funding for Section 35 cases had been left out.
"We are in a period of reconciliation," she said. "We have a government that is supposedly supportive of Aboriginal rights. We have a minister of justice who is Aboriginal. I just thought that given the climate, that there would have been that extra step in implementing the program to support Aboriginal rights cases."
Martha Jackman, a University of Ottawa constitutional law expert, said the Court Challenges Program was expanded under the Liberal government to include money for cases relating to specific sections of the charter.
The mandate, however, did not extend to Section 35 cases and she said this is a clear problem, given the prime minister's pledge for a nation-to-nation relationship with Indigenous Peoples.
"We have a huge access to justice problem," she said. "Socio-economically disadvantaged groups and Indigenous People do not have equal access to the justice system and the courts are the pre-eminent accountability mechanism when governments don't comply with their constitutional human rights."
A number of groups, including the Canadian Bar Association and the Indigenous Bar Association, are urging that the program be consistent with the government's commitment to implement the recommendations of the Truth and Reconciliation Commission, including legal equality for Indigenous People.
The Canadian Bar Association agrees that Section 35 law suits commonly seek to redress long-standing imbalances that have prejudiced Indigenous peoples and resulted in disparities between them and non-Indigenous society.
"The continued exclusion of Aboriginal and treaty rights is difficult to square with Canada's firm commitment to reconciliation with its Indigenous people," the association said in a letter earlier this year to Heritage Minister Melanie Joly.
In February, Joly and Justice Minister Jody Wilson-Raybould announced the reinstatement of a modernized Court Challenges Program.
A former version of the program, which Ottawa deemed "instrumental" in helping clarify and assert official language and equality rights under the Constitution, was cancelled in 2006 by the previous Conservative government.
The reworked version was expanded to include funding for other sections of the charter, including religion and freedom of expression, democratic participation and the right to life, liberty and security of the person.
Wilson-Raybould said this week the government is proud of the decision to broaden the program, adding it has historically supported equality rights for Indigenous Peoples.
"Indigenous Canadians will be able to use the program in accessing the courts to assert their rights under sections two, three and seven of the charter, as well as other sections, such as 15," she said in a statement.
Courts can order Ottawa to provide interim or advance costs in appropriate cases brought forward under Section 35, Wilson-Raybould added.
Jackman warns such awards are extremely rare.
The government is making it very difficult for Indigenous Peoples to access funding, Fontaine agreed.
"It is like searching for a needle in a haystack for First Nations to get funding from this program," she said.
"That's not what it was designed to do."
