Indigenous Framework for the Law Society of BC A learning journey

Indigenous peoples have been at the forefront of advocating, educating and building alliances to rebuild, reclaim, reestablish and share their Indigenous orders and ways. Organizations, institutes, justice system stakeholders and others, are taking steps to promote inclusivity and respect, recognizing the implicit impact systems have had and continue to have on Indigenous peoples.

On September 23, 2022, the Law Society of BC’s Benchers unanimously approved the Indigenous Framework Report, prepared by the Truth and Reconciliation Advisory Committee. The report endorses principles that guide the Law Society in its application of the Legal Profession Act (Act), the Law Society Rules (Rules), and the Code of Professional Conduct for B.C. (Code).

The principles within the Indigenous Framework (Framework) are based on the Law Society’s Strategic Plan, the Truth and Reconciliation Action Plan, the United Nations Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Calls to Action and the BC First Nations Justice Strategy. The Framework weaves together numerous concepts integral to the recognition and advancement of Indigenous peoples and issues.

The Framework does not create new obligations but instead brings together the principles already endorsed by the Law Society. It presents them in a cohesive manner that sets out the prominence of the principles and their logic.

Principle 1 adheres to the saying “Nothing about us without us,” and commits the Law Society to increasing Indigenous representation at all levels throughout the Law Society, including governance, committees, tribunals, employment and membership. It also recognizes the importance of the Law Society’s engagement with, and responsiveness to, issues as raised by Indigenous peoples, organizations and agencies.

Principle 2 acknowledges the unique nature of Indigenous peoples within Canadian Society. In step with this principle, the benchers recently unanimously approved amendments to the oath of office to reflect the Constitution’s recognition and affirmation of the Aboriginal and treaty rights of First Nations, Inuit and Métis.

Principle 3 acknowledges that Indigenous cultures, societies, traditions, governance systems and laws continue to exist, and holds space for all lawyers to learn about Indigenous laws and their possible use in the common law and with the Law Society’s own regular processes.

Principle 4 regards Indigenous individuals as equal to all other people, defeating the concepts of colonial superiority and Indigenous inferiority, addresses the right to non-discrimination, and appreciates additional supports are often necessary to create equity.

Principle 5 respects the distinctiveness amongst Indigenous peoples, individuals and territories, and encourages the accommodation of their distinct interests in light of the Act, the Code, policies, procedures and practices.

Principle 6 understands that credibility requires follow-through on its commitments, that its commitments are ongoing, and assures the Law Society will be accountable for publicizing its progress, and is compelled to review, evaluate and renew the Framework obligations enduringly.

Colonial legal systems have done significant and often irreparable harm to Indigenous peoples. History must be studied in earnest search of Indigenous perspectives, and with humility, in order to see how the harm was created.

The Framework contextualizes the confluence of laws, policies, practices and procedures that have impacted Indigenous peoples, and embraces the principles within to ensure the wrongs never repeat. Only by stopping the creation of harm can we truly support healing.

linkedin.com/in/katrinaharry

@KatrinaHarry3

For litigators seeking guidance on navigating their client’s estate disputes, this newly released book provides comprehensive coverage of both procedural and substantive issues commonly encountered in estate litigation. These issues include disputes over the validity of wills and actions against fiduciaries.

The guide offers concise discussions of substantive law that can provide valuable insights on managing clients, developing a litigation strategy, and preparing for evidentiary issues. In addition, the guide provides step-by-step guidance on procedures, and includes over 40 sample forms and precedents to help with the efficient preparation of cases.

For those considering resolving their client’s dispute through mediation or trial, the guide provides information on how to apply the best method and navigate the appropriate procedures governing the case. The guide also provides quick access to leading cases on substantive issues to help with arguing the case with confidence.

CLEBC would like to acknowledge all the contributors who made this book possible. To purchase a copy of this valuable resource and be fully equipped to litigate clients’ estate disputes, visit: cle.bc.ca/edbc

CHRISTOPHER MCPHERSON, KC

The British Columbia government has proposed that one entity should regulate lawyers, notaries and paralegals. The stated rationale is that this will lead to legal services being more accessible to the public.

The Law Society, like every group and individual involved in the justice system, considers access to justice a priority. There can be no doubt that many members of the public in B.C. simply do not have access to legal services. According to a 2020 Law Society survey, around 60% of British Columbians facing legal issues do not receive legal advice from anyone, which is alarming and speaks to the lack of an accessible justice system. No matter how strong, how impartial, how fair a legal system is, if the majority of people can’t access it, it is flawed.

The question is, therefore, can a single legal regulator address this problem? I would say that it is one potential tool. There are others: a properly funded legal aid system, the Law Society Innovation Sandbox, and elevated use of clinics like the Rise Women’s Legal Centre and the Indigenous Justice Centres. Properly conceived and organized, the single legal regulator could be one further instrument to increase access to justice. It can do this by providing an alternative, hopefully at a lower cost, to seeking legal advice from lawyers. A single legal regulator would be in a position to ensure that the legal needs of the public can be provided by ensuring all legal professionals are licensed, competent, ethical and held accountable in a consistent manner.

A key component of this proposal is a flexible, competency-based approach to licensing all legal professionals, including lawyers, notaries and paralegals. While lawyers, notaries and paralegals may have different areas of practice, they would all be subject to the same high standards of competence, integrity and professional conduct. The Law Society supports a model where the regulator has the flexibility to ensure that every legal of flexibility and could unnecessarily restrict the ability of trained professionals to offer appropriate legal services to the public. professional is competent in their area of practice. It does not favour a legislated scope of practice, as it would not offer the required degree

Any proposed regulatory scheme must ensure the independence of the legal profession. While the Law Society supports the single legal regulator proposal in principle, the regulator and its board must remain truly independent. By the very nature of their work, legal professionals will inevitably find themselves representing clients whose interests diverge from those of the state. Those professionals must know that the body that regulates them is also independent of government influence.

Further, the board of the regulator must reflect the diversity of our population. There are currently more than 14,000 lawyers in B.C. There are fewer than 500 notaries, and so far, no licensed paralegals. Given their different roles, and the fact that by far the majority of current legal professionals are lawyers, the board should continue to be made up of a majority of lawyers. The elected model has served us well in the past and should continue to do so. Finally, any new legislation must enable the regulator, not the government, to maintain its broad, independent authority to regulate the competence and integrity of all legal service providers in B.C.