Legal aid is for the poor. Not for well-funded organizations

A Manitoba court case raises a simple question: should legal aid bankroll organizations that can afford their own lawyers?

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Legal Aid exists to help people who cannot afford a lawyer. It was never meant to bankroll litigation for organizations with substantial financial resources.

That principle is now being tested in Manitoba courts in a dispute over hunting licences between Misipawistik Cree Nation (MCN, formerly known as Grand Rapids First Nation) and the Manitoba government.

The case concerns MCN’s attempt to limit hunting access on lands the band says should be reserved for Indigenous hunters. MCN wants the Manitoba government to cease issuing moose licences to non-Indigenous hunters on these lands. Seeking intervener status in this case is the Manitoba Wildlife Federation (MWF), a conservation organization that promotes management of public lands for the use of all Manitobans, including hunters, anglers and trappers.

Before the case proceeds, the court must decide whether MCN should receive free legal representation from the Public Interest Law Centre (PILC), funded through Manitoba’s legal aid system, to support its efforts to limit access to public lands.

The problem is that legal aid funds, normally earmarked for low-income individuals, would be used to fund public interest litigation by groups such as MCN, even when those groups have sufficient resources to cover their legal costs. Interestingly, in the MCN case, the band is represented by both PILC and a private law firm.

The question in the MCN case is whether legal aid funding should be funneled through PILC to support an action in favour of a First Nation with substantial financial resources, especially given that MCN is seeking to limit the rights of Manitobans to access public lands.

As it turns out, a 2019 report reviewing legal aid funding argued that PILC should not receive legal aid funds. Commissioned by the Manitoba Minister of Justice and written by Allan Fineblit, a lawyer who served for eight years as executive director of Legal Aid Manitoba, the report looked at funding models for legal aid, and specifically at whether PILC should continue to be affiliated with Legal Aid Manitoba and receive legal aid funding.

In his report, Fineblit explicitly recommended that “PILC begin to build the things it needs to move to a free-standing organization (independent of Legal Aid Manitoba).” He noted that reforms to PILC’s structure could eventually allow it to “replace government funding with private donations and operate like many other public interest law centres as a free-standing organization.”

Among other things, Fineblit was concerned that the selection process for those groups receiving funds was too narrow, with decisions made by an unrepresentative group of individuals. The report even mentions that a decision by PILC to take on a case “has significant consequences for whoever is on the other side.”

The Manitoba Wildlife Federation feels it is unfair that, as a privately funded organization defending the public interest in access to public lands, it is facing the unlimited resources of the provincial government.

For Manitobans, this is a matter of whether money intended to assist low-income individuals should be used to provide free legal advice for litigation that could deprive the public of access to what are, in the end, public lands.

Fairness would suggest it should not. The Fineblit report agrees. Hopefully the courts will as well.

Collin May is a senior fellow with the Frontier Centre for Public Policy, a lawyer, and adjunct lecturer in community health sciences at the University of Calgary.