Mulcair exaggerated legal fees

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This article was published 28/08/2015 (3918 days ago), so information in it may no longer be current.

OTTAWA — An NDP claim the federal government has spent $1 billion to battle First Nations in court is political exaggeration, the Free Press has found.

During a news conference Thursday on his economic plan, Tom Mulcair outlined a number of places he will differ from Stephen Harper on spending priorities in order to balance the budget. Among them is on legal fees in court cases involving First Nations.

“He’s spent a billion dollars fighting First Nations,” Mulcair said of Harper during a campaign stop in Toronto. “We won’t do that.”

Has Stephen Harper really spent $1 billion on legal fees in First Nations court challenges? When queried for the source of this number, the NDP pointed the Free Press to two things.

The first was public accounts for 2012-13, which show the Department of Aboriginal Affairs and Northern Development Canada (AANDC) spent $106 million on legal services that year.

Extrapolating that out over the 10 years the Harper government has been in office, they got to $1 billion, said a spokesman.

That was coupled with a comment made in the House of Commons in May by AANDC Minister Bernard Valcourt who said AANDC was the defendant in 420 First Nations legal challenges. The number of cases backed up their claim, said the spokesman.

It did not take long to determine the NDP are exaggerating the legal costs significantly.

Public accounts are available for every year up to 2013-14. During the eight years Harper was in power ending with 2013-14, AANDC spent $646.9 million total on legal services. That ranges from a low of $4 million in 2006-07 to a high of $112.9 million in 2010-11.

Even taken as a whole, it’s $355 million less than what Mulcair claimed.

A quick search on AANDC’s website uncovers more specific breakdowns of some of those numbers that show not every dollar spent on legal services is spent on court challenges.

According to AANDC, only about $230 million was spent on litigation services from Department of Justice lawyers. Another $264 million was spent on legal advice to support land-claims negotiations, self-government agreements, and consultation processes. It’s certain some of that advice was incurred on cases that were — or ended up — in court, so some of that money could be considered part of “fighting First Nations” but not all of it.

Another $156 million was spent on legal fees for private lawyers, and that included legal work related to the Indian Residential Schools Adjudication Secretariat, and legal adjudicators who oversaw hearings of the independent assessment process of the Indian Residential Schools Settlement Agreement. That process allowed victims of abuse to tell their stories and make financial claims against the government.

The Assembly of First Nations did not want to wade into this argument Thursday.

There is no doubt Ottawa and First Nations have a litigious relationship with Stephen Harper in the Prime Minister’s Office. Valcourt acknowledges there are 420 court cases, and relationships between the Harper government and most First Nations could not be much worse.

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Last month, Ottawa launched its own challenge, demanding eight First Nations turn over financial documents required under the First Nations Fiscal Transparency Act.

There is an almost eight-year court battle over the Kapyong Barracks in Winnipeg, which has cost taxpayers at least $1 million in legal fees since 2007, and another eight-year battle over child-welfare funding. That case, which ended up at the Canadian Human Rights Tribunal, is to be decided this fall.

There are land-claims challenges, resource-revenue challenges, and the landmark Métis land claim in Manitoba, which the Supreme Court decided on in the Métis favour in 2013.

Litigious relationship or not, Mulcair’s claim Harper has spent $1 billion battling First Nations is not true. The actual figure is less than half of that.

mia.rabson@freepress.mb.ca