Law Times

Page 6 August 5, 2013 Law Times • COMMENT u Editorial obitEr By Glenn Kauth Funding clinic reform I t's a common scenario: a government agency announces a funding cutback only to quickly back down in the face of opposition from those affected. It's the sort of situation that fuels people like Toronto Mayor Rob Ford. Once a program or funding is in place, it becomes permanent due to political pressures, he has argued on a number of occasions. But in the most recent such scenario, there's hardly any gravy to decry. That's because the funding reversal announced by Legal Aid Ontario and the Ministry of the Attorney General related to legal aid clinics, a sector hardly brimming with cash to waste. Clinics, the poor cousins of the legal system, have long had to do good works with very meagre resources. That remains the case despite significant funding increases in recent budgets that helped make up for years of lagging allocations. The cutback announced last month was $1 million spread across Ontario's legal clinics. They decried the cut, noting they had negotiated a two-year safe period with LAO for 2012-14 to allow them to develop and implement plans to achieve $5.5 million in administrative savings. LAO, in turn, noted the deal was that the safe period would no longer apply should the province cut its own funding. But for clinics, the sudden cut put their services at immediate risk. Giving clinics a reprieve, then, was the obvious way to go. But the decision shouldn't detract from the recent discussions around reforming the clinic system. LAO has been talking about the need to modernize legal clinics, in particular through measures such as reducing office space, consolidating back-office functions, taking advantage of technology, and merging some of the organizations. The clinics don't necessarily agree with all of those suggestions, but that doesn't mean they shouldn't happen. In fact, some clinics, as pointed out in Law Times on May 27, do accept the need for reform, including through mergers. Those changes won't necessarily be easy, and certainly reforms such as consolidating back-office functions take upfront financial resources. Fortunately, LAO announced it was providing clinics with $4 million in new funding to upgrade technology even as it was announcing the $1-million cut to the core budgets. The organizations have already allocated that money to a new clinic information management system, so if they need additional funding to make the suggested reforms happen, LAO and its funders should provide it as well. Clinics may well need to embrace reform, but they need the time and resources to make it happen. — Glenn Kauth Legacy of Haida Nation decision decried L aw Times columnist Ian Harvey, in his article on the Ring of Fire on July 8, writes that the fate of the project "rests in the hands of Ontario's First Nations." This is substantially true but it is not right. It is not in anyone's interest that Indian bands have that kind of raw, unchecked veto power. The Supreme Court's jurisprudence on consultation and accommodation, emanating from its decision in Haida Nation v. British Columbia (Minister of Forests) that gave them that veto power and so radically altered Canadian constitutional law by in effect making native bands a de facto third fount of constitutional sovereignty, stems from a skewed view of history, is disastrous on policy grounds for everyone — especially the vast majority of marginalized, vulnerable aboriginal individuals — and is morally wrong as it entrenches a version of the odious separate-but-equal constitutional doctrine that the U.S. Supreme Court found fit to abolish in that country in 1954. Lawyers, academics, jurists, and the elites are all dancing on the head of the pin of this new and revolutionary jurisprudence that busily ascribes new rights to Indian bands without seriously considering whether they will ultimately benefit the vast majority of non-elite, powerless, Law Times u Letter to the editor vulnerable, aboriginal individuals. I don't think they will. I think they will leave too many of Canada's aboriginals even further behind and left out than they already are in the increasingly urbanized and racially indifferent Canada of the 21st century. Only their elites will derive any kind of benefits that are mainly personal and material in nature and worthless to those they serve. None of these elites are willing to ask publicly or permit or encourage others to seek answers to the numerous basic questions about this new jurisprudence that silenced, intimidated, ordinary Canadians think about every day. I have a few examples: Is this shockingly new state of the law sensible, right, and good? Does it promote the overall welfare of our nation? Consider in this regard that major national undertakings like the Canadian Pacific Railway and the TransCanada Highway could never become reality if the Haida Nation jurisprudence had existed then just as the Ring of Fire and other significant projects today have stalled because of it. Is it ultimately good for First Nations? While this jurisprudence has been extant for many years, most social indicators for aboriginals continue to get worse. Our cherished and fundamental liberal values strive to give race no place in our laws. Does this jurisprudence not clash with these values? Does it not tend to further build racial walls between Canadians instead of helping to eliminate them? Will this jurisprudence help or hurt the Canadian economy? Can we afford it? Is affordability even a relevant factor or is this a case of proceeding full speed ahead for abstract rights regardless of the cost? Should the mistakes of our past govern Canada's indefinite future to this extent? Is it creating a two-tier justice system? Does it encourage and tolerate lawbreakers? Does Crown sovereignty matter? None of these elites are willing to ask or debate any of these questions or the even more fundamental issue of whether, in order to ameliorate the demoralization and dependency experienced by aboriginals, there are any better, more realistic options. Despite the baseless assertions of First Nations elites to the contrary, assimilation does not mean the end of aboriginal Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editor in Chief. . . . . . . . . . . . . . . . . . . . . . Gail J. 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Witness multicultural Canada. In fact, assimilation is a natural, positive, beneficial process that has been occurring continuously since the origin of humans and has been fundamental to the development, progress, and primacy of our species. We're all the product of this universal and timeless process. Our governments and politicians, our timid bureaucratic and police elites, our uncritical and ahistorical media, and our First Nations elites all poorly serve Canada's Indian peoples and hurt Canada more generally by so aggressively clinging to and trying to expand the illiberal, unworkable, and increasingly dysfunctional Haida Nation-based status quo in this crucial area of Canadian life. For native peoples, unity and integration with the rest of Canadians is the best option. Only as a result of that will they experience and learn that, just like all other Canadians from all other backgrounds, they don't need the crutches of the Indian Act, reservations, and special race-based laws to succeed in modern day Canada. Peter Best, D. Peter Best Professional Corp., Sudbury, Ont. label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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