Legal trouble looms for Canada

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Department of Justice officials probably wish some of their predecessors had had the foresight to see what kind of legal problems the Indian residential school system would bring years later. So, a University of Lethbridge Native Studies professor is giving the government of Canada fair warning on the next big wave of litigation.

If the government continues to ignore its fiduciary obligation to First Nations people, it is sure to suffer a gigantic throbbing court headache a few years from now, said Tony Hall, who predicts this issue will be as costly and politically embarrassing down the road as the residential school compensation question is today.

He challenges federal authorities to protect the public's interest-and the public purse-by correcting its position to one that complies with the law of the land.

"It seems to me that in later years, the litigation looking at this time, that will be the violation, that the federal government is not living up to its fiduciary responsibilities," he said.

Supreme Court decisions have placed burdens on the government that many Native leaders and academics say have been ignored for political reasons. A fiduciary obligation, created by the government's actions as trustees for Native people, requires the government to put its own interests on the back burner when they conflict with Native interests, the Supreme Court of Canada has ruled. But few people would say the government has made much of an attempt to embrace the spirit of this ruling. Hall said the government has also ignored other legal gains by Native people.

"It does raise the issue that . . . we have his constitutional affirmation that existing Aboriginal and treaty rights are hereby recognized and affirmed. But again and again, we see when it comes to actual litigation, when the issues are actually posed, government-the federal government which has the specific fiduciary responsibility -ends up lining up with the provincial government on the side of extinguishment and devoting all the resources of the state to make that argument. Right there, you've exposed the hollowness of this constitutional affirmation. The very entity charged with the responsibility of recognizing and affirming the Aboriginal and treaty right will go to court and try to violate that right, try to develop the argument of why that right doesn't exist. So it's not recognize and affirm, but rather extinguish and negate," he said. "This is essentially an effort to slit the throat of the people you're supposed to be protecting."

Canada has already been criticized at home and abroad for its approach in this area. Hall said the longer the government continues to ignore its fiduciary duty and pay only lip service to the constitutional affirmation of Native rights, the more credibility it loses on the international scene and the more risk it assumes for legal trouble in the not-too-distant future.

"It makes a farce of Canada's position that it would take internationally. It would point to Section 35 and say, 'Look what we've got in the Constitution.' But when it comes to what would they do in respect to that provision in the Constitution, well, in case a, b, c, d and e, they use all the resources of the state to try to extinguish and negate what they're supposed to recognize and affirm," he said.

Windspeaker obtained a letter written by Justice Minister Anne McLellan on this point. In the letter she said the government of Canada must put its own interests before its fiduciary duty to First Nations in some instances. Several experts have concluded that position is wrong. Hall wonders why the government chooses that position.

"How is it decided that the national interest always lies in taking the extinguishment side in these arguments?" he asked. "As a citizen of Canada, I look to my government and say, 'You should be taking the Indian side. You shouldn't be taking the pulp and paper company's side.' The pulp and paper company, they're rich, the're powerful. Why do you assume that the pulp and paper company's interest is synonymous with the national interest of Canada? So Anne McLellan is basically making a political determination that the national interest lies in putting the knife to Indian peoples' throat and seeing if the judges will allow them to plunge the knife in."