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Nunavut Legal Services Study
2. BACKGROUND INFORMATION: NUNAVUT AND THE NUNAVUT LEGAL SERVICES BOARD (cont'd)
2. BACKGROUND INFORMATION: NUNAVUT AND THE NUNAVUT LEGAL SERVICES BOARD (continued)
2.2 THE LEGAL SYSTEM
2.2.1 The history of Nunavut's legal system
The Northwest Territories was the traditional homeland of Dene and Inuit, who lived on the land for thousands of years before coming into contact with European civilization. The tree line, running diagonally from the northwest corner on the Beaufort Sea to the southeast corner along Hudson Bay, was a natural division between the land-based culture and economy of the Dene and the marine economy and culture of the Inuit. By the end of the nineteenth century, a remotely administered political and judicial system was in place, based in Ottawa. With the founding of the territorial capital of Yellowknife in 1967, a resident government and justice system was put in place in the north.
As the territorial legislature became more reflective of the people of the north, and with the formation of strong organizations to represent the indigenous peoples of the NWT, there was pressure for more change.
On April 1, 1999, principally as a result of some thirty years of effort on the part of Inuit to finalize a land claim alongside a territory of their own, the NWT was divided. The process began as a negotiation of a land claim agreement between the Inuit and the Federal Government. The vision for change came to fruition in 1993 with the settlement of the land claim and the simultaneous federal commitment to the creation of Nunavut. The change took on the force of law under the Nunavut Act (S.C.1993, c.28). The creation of the new territory of Nunavut gave the Inuit a jurisdiction of their own, separate from the population of Dene and Metis to the west whose interests were different from theirs.
The Nunavut Implementation Commission, set up by the Nunavut Act, spent two years developing a detailed report on how the new government would be brought into being. An Interim Commissioner was then appointed under the Act and given instructions to implement the recommendations in the report, including making recommendations on new policies and laws that would meet the particular needs of the jurisdiction.
One key principle of the Nunavut Implementation Commission and the subsequent tripartite (federal, territorial and Inuit) process for implementing Nunavut was that the new government would be established on a decentralized model. Thus, government services and related economic benefits would not simply be confined to the capital of Iqaluit, in the southeastern corner of Nunavut, but would also be undertaken and based in 10 (of the 28) other Nunavut communities in the three regions of Nunavut: the Baffin, Kivalliq and Kitikmeot.
Another key underpinning of the new Nunavut government was that the territorial and federal governments were required, through the constitutionally entrenched Nunavut Land Claims Agreement, to meet certain obligations. Article 32 of the agreement requires that Inuit be involved in the design and delivery of social programs and services. This is reflected in the critical role currently played by Inuit in the delivery of legal aid services through their presence on three boards that oversee the operation of regional legal services clinics and the umbrella Nunavut Legal Services Board (NLSB).
The Nunavut Implementation Commission also decided that the legal aid delivery system, which had evolved and was in place in the Northwest Territories, should be continued in Nunavut. The system features a mixed model of full time legal aid lawyers working in regional legal aid clinics, assisted by Native Courtworkers, supplemented by services to legal aid clients from private lawyers retained on a fixed-fee basis.
The Nunavut model therefore features the NLSB, set up under the Nunavut Legal Services Act as an independent statutory body with the authority and mandate to fund and approve the establishment of regional legal services centres and set policies for the delivery of legal aid services. In keeping with the decentralized model for Nunavut, the headquarters of the NLSB is located in Gjoa Haven in the Kitikmeot Region.
2.2.2 The current legal system
In the area of the administration of justice, s. 31 of the Act created a Supreme Court and a Court of Appeal with the same powers and jurisdiction that their counterparts in the Northwest Territories have. During the process leading up to the creation of Nunavut, a new model for delivering superior court services was advocated by representatives of the federal government, and endorsed by the Nunavut Interim Commissioner. It was predicted that a single level trial court would provide speedier trials and better community access, particularly in civil matters. It was also hoped that the Nunavut Court of Justice (NCJ) would be more responsive to the unique needs and cultural values of Nunavut's majority Inuit population.
As a result of these discussions, an amending statute, passed in March 1999 and coming into force on April 1, 1999, created the NCJ. The NCJ is a single-level trial court consisting of three superior court judges based in Iqaluit, together with non-resident appointees. This innovative approach also required extensive amendments to federal and territorial law.
Another statute, the Nunavut Judicial System Implementation Act, provided for local justices of the peace (JPs), and repealed the former Territorial Courts Act - a necessary step in the process of establishing the single-level court. As of January 2002, there were 81 JPs appointed in 25 Nunavut communities. Nunavut also has its own Law Society.
The three judges of the NCJ provide court services to the entire territory of Nunavut from the NCJ headquarters in Iqaluit. From there, the Court travels to approximately 85 percent of the communities across the territory. The Court travels to these communities every six weeks to two years, depending on the number of charges coming into court from that community. On average, the NCJ has two to three court sittings per week each year, with at least one traveling court circuit and one court sitting in Iqaluit. In 2002, the NCJ scheduled 38 circuits outside Iqaluit. Typically, the court will travel Monday to Friday by scheduled flight or charter, with up to three community visits in one week.
Members of the circuit court include a judge, clerk, court reporter, prosecutor and at least one defence attorney. Courtworkers and Victim Witness Assistants might also travel with the circuit court, depending on the cases to be heard. Interpreters are hired in the communities when possible, but travel with the circuit court when necessary.
Court is held in community halls, school gyms, and in other conference facilities as available. All court proceedings in the communities are interpreted for the public. Elders and JPs sit with the judge in the courtroom and are given the opportunity to speak with the accused, following sentencing submissions and prior to the passing of sentence.
The Nunavut justice system is unique, and challenging in several respects. The effects of these challenges on the NLSB are discussed further in Section 3.1.1.
2.3 NUNAVUT LEGAL SERVICES BOARD (NLSB)
2.3.1 The history of the NLSB
Until the mid 1970s, legal aid services in the Northwest Territories, largely in criminal law, were delivered primarily by Yellowknife private lawyers working with traveling circuit courts. A government official co-ordinated these programs and services, which were also largely based in the far-western capital, Yellowknife.
By 1975, a Native Courtworker Program was established in the western NWT, with support from the federal Department of Justice. That same year, a demonstration project, proposed by the Inuit Tapirisat of Canada and funded jointly by the federal Department of Justice and the Government of the NWT, Department of Justice and Public Services, was established in Frobisher Bay (now Iqaluit). This new model provided for the delivery of a broad range of legal aid and public education services for Inuit in the most remote region of the NWT - the Baffin. A new feature of the model was that the clinic was established as a non-profit society, governed by a local Board of Directors. Over time, the demonstration project was deemed to be a success - and has had a significant influence on changes made in the delivery of legal aid services, shifting the method of delivering legal aid services in communities outside larger centres, from circuit courts to regional clinics.
A major review of legal aid services in the 1980s considered these developments, and made recommendations that resulted in the statutory underpinnings of the present model for the delivery of legal services in the NWT and Nunavut. This is a mixed model of service delivery - with private bar lawyers as well as staff lawyers working closely with Aboriginal Courtworkers through regional clinics. Overseeing these programs was an independent territorial Legal Services Board, established by the Nunavut Legal Services Act, with a broad statutory mandate to provide criminal and civil legal aid and public legal education.
Today, legal services in Nunavut are delivered through three regional clinics, located in Nunavut's three regional centres: Cambridge Bay in the Kitikmeot Region, Rankin Inlet in the Kivalliq Region and Iqaluit, with a satellite office in Pond Inlet serving the northern part of the Baffin Region. Private lawyers in Nunavut, all of whom are based in Iqaluit, also provide legal aid services. Occasionally, the services of lawyers based in Yellowknife are enlisted to assist with legal aid work, especially in western regions of Nunavut.
2.3.2 Roles and responsibilities of the NLSB
Section 7 of the Consolidation of Legal Services Act (Nunavut) identifies the roles and responsibilities of the NLSB as follows:
The objects of the Board are
- (a) to ensure the provision of legal services to all eligible persons;
- (b) to ensure that the legal services provided and the various systems for providing those services are the best that circumstances permit; and
- (c) to develop and co-ordinate territorial or local programs aimed at
- (i) reducing and preventing the occurrence of legal problems, and
- (ii) increasing knowledge of the law, legal processes and the administration of justice.
In order to meet these objectives, the NLSB is responsible for three different legal services in Nunavut:
- The provision of legal aid. These services are provided through the NLSB's four regional clinics and co-ordinated from the head office in Gjoa Haven.
- The management of the Courtworker program. Courtworkers are currently employed and managed directly by the regional offices. However, once a comprehensive, Nunavut-wide Courtworker training program is in place, responsibility for managing the Courtworkers may shift to the NLSB's head office in Gjoa Haven. For a more in-depth discussion on Courtworkers, see Section 7.0.
- Public legal education and information (PLEI). The NLSB is responsible for PLEI activities in Nunavut. For a more in-depth discussion on PLEI, see Section 8.0.
2.3.3 Current resources of the NLSB
The NLSB is provided with both financial and human resources in order to carry out its assigned tasks of providing legal aid, managing the Courtworker program, and providing public legal education and information (PLEI). The NLSB's funding comes from the Government of Nunavut, Department of Justice. The Government of Nunavut (GN) in turn receives a share of its funding for legal aid from the Access to Justice Agreement with the Department of Justice Canada, an agreement that consolidates a number of federal justice programs, allowing the GN some flexibility in determining priorities.
Financial resources
Figure 2.8 shows the budget of the NLSB from 1999/2000 (during which time the division took place) to 2002/2003.
Figure 2.8: NLSB Budget (1999/2000 to 2002/2003)8
Note that the figures for 1999/2000, 2000/2001, and 2001/2002 are revised main estimates that reflect the actual amount spent. The figure for 2002/2003 is a main estimate, and does not reflect the actual amount spent.
The NLSB's budget is broken down as shown in Table 2.1.
Note: Grants and Contributions refers to monies received from Justice Canada specifically for the funding of the three regional legal services clinics in Nunavut.
Human Resources
The NLSB's human resource complement consists of staff lawyers, private lawyers and Courtworkers, as well as support staff in the head office in Gjoa Haven and in the regional law clinics. At the time of writing, the NLSB employed eight staff lawyers and was also using the services of four private lawyers, on a contract basis, to supplement staff lawyers as necessary. Fourteen Courtworkers were employed by the regional clinics. Of these, three were full-time (one in each region) and the remainder part-time employees.
2.3.4 Current legal aid service delivery statistics
Since 1999, the demand for the NLSB's services, as indicated by the number of legal aid applications received, has increased steadily. Trends in the number and type of applications received since 1999 are shown in Figure 2.9, below. Of the four types of legal aid one can apply for (civil, criminal, family, and youth), demand for criminal legal aid is increasing the most rapidly, followed by less dramatic increases in demand for family and youth legal aid. Demand for civil legal aid appears to be remaining fairly stable.
It should be noted that a number of respondents expressed concerns with using legal aid applications as a measure of demand for services, although they acknowledged that there were no other quantitative means of measuring demand. Their concerns centred on the fact that individuals will not apply for services they do not believe to be available, even if they need those services. Therefore, the demand for family and other civil law services, which many individuals believe are not available, would be underestimated based on legal aid applications.
Figure 2.9: Number of Legal Aid Applications by Type (1999 - April 2002)
Source: Legal Aid Application files from the Legal Services Board in Yellowknife and Legal Aid Application ledger from the NLSB in Gjoa Haven.
Note: The number of applications recorded for 2002 reflects only applications received before April 2002. As noted in Section 2.0 - Methodology, every attempt was made to avoid double-counting files open during the June 2000 transfer of files from Yellowknife to Gjoa Haven.
Of the applications received by the NLSB, only a small number are denied. In fact, as the number of applications has increased over the years, the number of applications denied has decreased, as is shown in Figure 2.10.
Figure 2.10: Applications Received vs. Applications Denied (1999 - April 2002)
Source: Legal Aid Application files from the Legal Services Board in Yellowknife and Legal Aid Application ledger from the NLSB in Gjoa Haven.
Note: The number of applications received and denied recorded for 2002 reflects only applications received before April 2002. As noted in Section 2.0 - Methodology, every attempt was made to avoid double-counting files open during the June 2000 transfer of files from Yellowknife to Gjoa Haven.
The type of applications that are denied appear to be changing with time, as is shown in Figure 2.11.
Figure 2.11: Applications Denied by Type of Legal Aid Requested (1999 - April 2002)
Source: Legal Aid Application files from the Legal Services Board in Yellowknife and Legal Aid Application ledger from the NLSB in Gjoa Haven.
Note: The number of applications received and denied recorded for 2002 reflects only applications received before April 2002. As noted in Section 2.0 - Methodology, every attempt was made to avoid double-counting files open during the June 2000 transfer of files from Yellowknife to Gjoa Haven.
In 1999 and 2000, the majority of applications denied were for family law services, followed by criminal law services and civil law services. However, in 2001, more applications for civil law services were denied than for either family law or criminal law. At first glance, this would appear to indicate that unmet need exists for certain types of legal aid and that the nature of unmet need may be changing over time.
However, the reasons provided for denying legal aid appear to demonstrate that aid is most frequently denied for reasons other than the type of case involved, financial ineligibility or "other" reasons. The two most common "other" reasons for denial of legal aid are failure on the part of the applicant to provide the necessary information and belief, on the part of the NLSB, that the case is unlikely to result in any benefit for the applicant. Therefore, it appears that demand for services outside the scope of the NLSB's statutory mandate is not the primary cause of denial of legal aid. Figure 2.12 demonstrates the trends in reasons for denial of application.
Figure 2.12: Reasons for Denial of Application (1999 - April 2002)
Source: Legal Aid Application files from the Legal Services Board in Yellowknife and Legal Aid Application ledger from the NLSB in Gjoa Haven.
Note: The number of applications received and denied recorded for 2002 reflects only applications received before April 2002. As noted in Section 2.0 - Methodology, every attempt was made to avoid double-counting files open during the June 2000 transfer of files from Yellowknife to Gjoa Haven.
2.4 SUMMARY OF SECTION 2.0
The following table summarizes the key points relating to Section 2.0.
Table 2.2: Summary of Section 2.0
- Social and Demographic Characteristics of Nunavut
- The social and economic situation in Nunavut is very different from that of the rest of Canada.
- The unique demographic, social, and economic characteristics of Nunavut's population have an impact on the demand for legal services in the territory.
- Nunavut's Legal System
- Nunavut's legal system is unique in Canada due to the Nunavut Court of Justice, a unified court that replaces the dual court model (Territorial and Supreme) used in the rest of Canada.
- The history of Nunavut's creation led to a commitment to decentralization and Inuit involvement in decision-making on all issues. These commitments have an impact on the Nunavut Legal Services Board's costs and on the expectations placed upon it.
- Nunavut's legal system is a complex and interdependent entity. All of the system's components interact with and influence one another.
- The Nunavut Legal Services Board
- The Nunavut Legal Services Board has three responsibilities: to provide legal aid services, to manage the Courtworkers program, and to provide public legal education and information. As specified in section 7 of the Consolidation of Legal Services Act (Nunavut), the Board is responsible for ensuring that
"…the legal services provided and the various systems for providing those services are the best that circumstances permit …"
- The Board has a budget of $3,362,000 in 2002/03.
- Demand for the Board's services, as measured by the number of legal aid applications received, is increasing steadily. In particular, applications for family law legal aid are increasing, as women become more aware of their rights in this area.
- Very few applications for legal aid services are denied by the Board. The majority of applications denied are in the areas of family or civil law.
- Legal aid services are not usually denied due to financial ineligibility or the type of case involved. Among the common reasons for denial of legal aid are failure on the part of the applicant to provide the necessary information and belief, on the part of the Board, that the case is unlikely to result in any benefit for the applicant
- The Nunavut Legal Services Board has three responsibilities: to provide legal aid services, to manage the Courtworkers program, and to provide public legal education and information. As specified in section 7 of the Consolidation of Legal Services Act (Nunavut), the Board is responsible for ensuring that
[8] Budget information provided by the Department of Justice, Government of Nunavut.
