National Post

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Saturday, April 24, 1999

Attorney-general needed for aboriginals, expert says

Luiza Chwialkowska
National Post

The federal government should appoint a special attorney-general to represent the interests of Canada's indigenous people, an aboriginal law expert told a national conference yesterday.

As aboriginal rights are increasingly challenged and defined in the courts, federal attorneys-general are caught between their fiduciary obligation to protect the constitutional rights of aboriginals and their duty to represent the interests of the non-aboriginal majority, Sakej Henderson, director of the Native Law Centre at the University of Saskatchewan, said yesterday.

"The attorney-general is in clear conflict of interest," Prof. Henderson told 350 delegates to a conference organized by the Law Society of Upper Canada, the Indigenous Bar Association, the Canadian Bar Association, and the Law Commission of Canada.

"What we need is an aboriginal attorney-general to protect aboriginal and treaty rights from the onslaught of the federal and provincial governments," said Prof. Henderson.

When aboriginal and non-aboriginal interests have collided at appellate courts or at the Supreme Court, the federal government has usually intervened against aboriginals and sided with provincial governments, he said. Meanwhile, the collective rights are often left to depend on the financial and legal resources of individual aboriginal defendants who are "usually poor," he said.

"This is a structural inequality," Prof. Henderson said. "Every aboriginal person charged with a crime carries all the treaty law with him into court. If that person loses a hunting-rights case, for example, they take that right away from everyone else."

While provinces each have their own publicly funded attorney-general, aboriginals are left to scramble for legal resources, Prof. Henderson said.

"Every time we get into a tough issues, I'm the one who tries to find lawyers and raise money," he said.

According to Prof. Henderson, Canada's legal tradition, inherited from Britain, allows for appointing an attorney-general to deal with new constitutional rights, such as the aboriginal rights enshrined in section 35 of Canada's 1982 Constitution.

"When the U.K. created new constitutional rights for youth, their government appointed an attorney-general for youth," Prof. Henderson said. "We need an attorney-general for section 35 of the Constitution."

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