In Vancouver, Vital Legal Help for Indigenous People

When Mai Eagle Speaker’s six-year-old niece was taken into government care three years ago, she wanted to become her caregiver.

Mya had already lived with her briefly a year earlier when she was taken into care. And her mother had told the Ministry of Children and Family Development that she wanted her daughter to live with Eagle Speaker again.

But ministry social workers were not convinced. Instead Mya was placed in a foster home in Burnaby, where she stayed for two years.

Eagle Speaker sought custody through the provincial Family Law Act.

But she was juggling school, a part-time job and caring for four children and didn’t have the money to hire a lawyer. Because she is not Mya’s parent, she couldn’t access a lawyer through legal aid.

That’s when someone told her about the University of British Columbia’s Indigenous Community Legal Clinic, based in Vancouver’s Downtown Eastside neighbourhood.

Established in 1994, the clinic offers free civil/family, criminal and Indigenous law representation for Indigenous people in provincial court by law students, under the supervision of three certified lawyers.

“They said they could support me with a student lawyer, and they were helpful by listening to my story,” said Eagle Speaker, a member of the Kainai or Blood Tribe of southern Alberta, part of the Blackfoot Confederacy.

“And they were very supportive in wanting to help me get my niece into my care.”

Child welfare apprehensions make up 20 to 25 per cent of the cases the UBC Indigenous Community Legal Clinic deals with on a regular basis, says academic director Patricia Barkaskas. In British Columbia, two-thirds of the children in government care identify as Indigenous.

But that’s just part of the reason why the clinic, the only one of its kind in B.C., is needed.

“As the ongoing and rising numbers in terms of over incarceration of Indigenous peoples shows,” said Barkaskas, “the Canadian colonial state law just continues to leave Indigenous people behind. So Indigenous folks are affected the most by colonial state law and have the least access to justice within it.”

For the past 26 years, students from the UBC Peter A. Allard School of Law have worked in the clinic to represent Indigenous community members in provincial court, with 375 students providing legal representation, advice or referrals for 25,000 different cases. Students are “temporarily articling” under the rules of the Law Society of British Columbia.

Megan Wong worked at the clinic from early January until April. A second-year law school student, she chose to work at the Indigenous Community Legal Clinic because it does general practice law, and her sister, a social worker, had told Wong about her clients who used the clinic.

While she plans to go into general practice in a corporate commercial law firm after graduation, Wong says her experience at the clinic is something she hopes to integrate into her future work.

“The entire experience that I’ve had has been really eye opening, just being very conscious of the position that I occupy and the position of privilege that I have, and how inaccessible the entire legal system is — or just in general, speaking to a lawyer, how inaccessible and how intimidating that is for a lot of people,” she said. That’s especially true for those who don’t feel the legal system looks out for their best interests or is sensitive to their culture and backgrounds.

“The main thing I want to take away from this is the empathy and the sensitivity that you’re able to bring, there was and there should be space for in my future practice.”

The majority of clients live in the Lower Mainland, with many in Vancouver’s Downtown Eastside where the clinic is located. The clinic is funded jointly by the Law Foundation of British Columbia and the UBC Allard School of Law.

But thanks to a private donor, the Indigenous Community Legal Clinic has also gone on the road, travelling to remote Indigenous communities like Bella Bella and Klemtu to provide direct representation to clients.

Some cases, like child apprehension or Indian Act status cases, can take years, while others, especially criminal law cases, are much quicker.

While parents trying to get their kids out of care can access legal aid, the Indigenous Community Legal Clinic is where the aunties and grandmothers go to for representation in a custody or guardianship case.

“Every file will be different, but it could look like simply mediating informally with parents, the ministry, the social worker or the social work team, and that could be a very simple, co-operative and collaborative process. And that’s obviously the way we would prefer it to be,” said Barkaskas.

“However, if it’s not that kind of process, then it could look like actual mediation with a mediator, and/or in a court process,” she said. “And in the worst-case scenario, it can look like going to trial, and students do that, as well.”

That’s what happened in Eagle Speaker’s case. An initial bid to gain custody of her niece with assistance from the clinic failed when Mya’s paternal grandmother also sought custody of her through the Family Law Act. Thanks to mediation, they settled on joint custody of Mya.

But because the grandmother lived in the Downtown Eastside and didn’t have a car and Eagle Speaker, who did have a vehicle, lived in Coquitlam, the arrangement put a lot of stress on her household.

Because Mya still attended school in Vancouver, Eagle Speaker had to drive her to school every day in addition to dropping her off and picking her up at Mya’s grandmother’s house.

So a year later they were back in court with another lawyer from the clinic so Eagle Speaker could gain full custody of her niece.

She was granted temporary custody. But in order for Mya to receive dental and medical benefits, Eagle Speaker needed to be appointed her guardian. That involved another lawyer from the clinic and yet another court appearance.

But finally, after three years of trying, Eagle Speaker had her niece at home in her care.

Mya is now nine and thriving.

“Her teacher just called me yesterday and she’s like, ‘Oh, I just wanted to tell you that Mya’s doing really well, and I just wanted to congratulate you.’ And I was like, ‘Don’t congratulate me, I haven’t done anything, I just make sure the kids are sitting at the table and doing their work. It’s all Mya doing it.’”

Eagle Speaker isn’t sure what she would have done without the Indigenous Community Legal Clinic. While the BC First Nations Justice Council plans to increase access to justice through the opening of 15 new First Nations justice centres in the province over the next five years, there is currently little Indigenous-centric legal help except for the Indigenous Community Legal Clinic.

“Being an Indigenous woman and having a lot of the intergenerational issues that I have, that my family has, I needed somebody who really understands those things,” said Eagle Speaker.

“Because when you look at it like the social workers, they could be like, ‘Oh, she has four children, why should we give her custody of Mya? Can she even handle another child?’ So with [the clinic], they’re more understanding. Even meeting with them, them getting to know my family, it’s more personal.”

For Eagle Speaker, getting to the clinic’s office wasn’t difficult because she had a car and was already heading into Vancouver and the Downtown Eastside neighbourhood regularly for other appointments and family visits.

But for many Indigenous people in the rest of the province, the lack of physical access to the clinic is a barrier to getting legal help.

The clinic has gone largely online during the pandemic, and that has suggested ways to increase its reach to more of the province, said Barkaskas.

“I think that we have a really profound opportunity, frankly, to look at best practices for the provision of meaningful access to justice through novel interfaces,” said Barkaskas. “I think that that work will really be able to expand how many people we can help.”

But Barkaskas and her colleagues have ensured the clinic remains accessible for walk-in clients in the Downtown Eastside on reduced hours during the pandemic. Not everyone who needs legal assistance has access to the internet or a phone.

“We try as much as possible to meet our clients where they’re at,” said Barkaskas.