Q&A on Access and Preservation of Legal Information in Canadian Territories

Territories all over the world come in different shapes, sizes and with a diverse range of government power as well as statutory and constitutional constraints. Despite the usage of the same term, territories vary tremendously from country to country. They may be considered integral constituents of the countries they belong to or an unincorporated, detached or loosely linked separate jurisdiction.

Born in a territory myself, I have always been interested in the legal frameworks in which territories are created, and how they (d)evolve over time especially in times of crises. To that end, I had the opportunity to coordinate a panel for last summer’s annual meeting of the American Association of Law Libraries (AALL) called Legal Information from U.S. Territories as well as a webinar on the same topic. More recently, I wrote a report included in my project, Law Librarians Monitoring COVID-19 in Latin America and the Caribbean, called Emergency and Limitations in the U.S., French, Dutch and British Caribbean. All this networking with like minded people have led us to create a group called Territorial Law. Please join us for future events about this topic!

In my experience, when it comes to any questions regarding legal information about territories, you should always strive to contact the law librarians or legal experts working in these places. And that is what I did! For the purpose of this column, I contacted the following people: Aimee Ellis, Librarian, Yukon Public Law Library; Glenn Tait, Executive Director, Law Society of the Northwest Territories and Serena Ableson, Law Librarian, Nunavut Law Program. I have compiled below their answers to my questions on access and preservation of legal information and materials in their respective Canadian territories. The questions further served as a way to standardize their answers and also to provide an update on these issues for all users interested in this particular information.

As matter of introduction

In the context of Canada, there are three territories, namely Yukon, Northwest Territories (NWT) and Nunavut. Compared to other territories in the world as well as with the rest of Canada, these territories are massive and sparsely populated landmasses. The highest densities for each territory are concentrated in their respective capital cities: Whitehorse (21,732 inhabitants), Yellowknife (18,884 inhabitants) and Iqaluit (7,082 inhabitants). This vastness of space and low population densities are taken into consideration when territorial supreme courts travel outside of the territorial capital cities as often as necessary. The travelling circuit courts usually include a judge, clerk, court reporter, prosecutor, defence attorney and interpreters when needed. The current travel restrictions due to COVID-19 have significantly hindered the possibility for courts to travel to all corners of the territories. The promise of Zoom trials is severely limited in a region known for its unreliable or low rates of broadband internet access. These factors raise pertinent questions around how to secure and maintain people’s access to justice in these unprecedented and trying times.

However, prior to the impact of COVID-19, there were serious concerns regarding the lack of local judges in the composition of the judiciary in the territories and the lack of knowledge or connection to indigenous culture and local history. Calls for a more inclusive and local set of judges have increased over the years. The lack of a permanent law school in any of the three territories also hinders the creation of a locally-grown legal community with deep understanding of indigenous costumes as well as representative of the communities they serve. Inevitably, these issues play a role in the current state of access and preservation of legal materials from Canadian territories. In the next section, I will feature the questions I asked and then I will highlight the answers from my three interviewees on each territory.

Questions & Answers

1. If you are a lawyer, researcher, or anyone else from the legal community or the public, what are the best sources to do your legal research?

As identified by all interviewees, the Canadian Legal Information Institute (CanLII) is the preferred online free source for primary law from Yukon, NWT and Nunavut. CanLII not only has cases and legislations, it also provides commentaries through its interface, CanLII Connects. As Ableson notes, “At the time of our interview [11/26/2020], CanLII Connects only has 8 commentary articles about Nunavut case law. I hope this commentary collection will grow over time.” Furthermore, all three territorial courts have their respective websites (Yukon, NWT and Nunavut) with various levels of primary law as well as legal procedures and information available to everyone. It’s important to notice that CanLII as well as the main courts websites are available in both English and French. The website of the Nunavut Courts is the only one available in a third language, namely Inuit.

As noted by Ellis, the Yukon Law Library provides virtual free access to its entire library catalogue. Furthermore, Ableson notes that to search libraries located in Nunavut, there is the Nunavut Libraries Online – a union catalogue for the Legislative Assembly of Nunavut Library and the Nunavut Arctic College Library. Ableson further identifies several lib guides and secondary sources which can help users to begin their legal research journeys. These sources are the following:

• Many resources, research bibliographies, government documents, and recommended books are listed on the Nunavut Law Program research guide.
• The Nunavut Arctic College Media publishes excellent books about Inuit Qaujimajatuqangit (IQ) or Inuit traditional law. For example, Inuit Laws: Tirigusuusiit, Piqujait, and Maligait edited by Jarich Oosten, Frédéric Laugrand, and Willem Rasing. Other books in the Interviewing Inuit Elders series are also essential reading on this topic.
• Nunatsiaq News online – to keep up to date with current affairs in Nunavut (including news about high profile court cases).
• Jenny Thornhill and Riel Gallant co-published a chapter “Researching Territorial Legislation: Nunavut” in The Comprehensive Guide to Legal Research, Writing & Analysis, 3rd ed (Toronto: Emond, 2019). This chapter is excellent and essential reading for anyone doing legislative research for Nunavut.

In the realm of private commercial vendors, all three interviewees identified both Lexis Advance Quicklaw and WestlawNext Canada as the best sources of information. Both Yukon and NWT confirmed that they provide access to these private databases at their physical locations. Tait from NWT further notes that “the M.M. deWeerdt Public Legal Resource Centre (Resource Centre), … has free access to WestlawNext, Proview, the Decisia (NWT Judgments) database, a handful of other online resources and a small but competent collection of hard-copy titles relevant to legal practice in the NWT.”

2. How easy is it to access legislative and government information?

The main websites from all three legislative assemblies were identified as the most important sources for legislative information (Yukon, NWT and Nunavut). These legislative assembly websites contain a wealth of government information, including statutes, regulations, and Hansard. Both NWT and Nunavut Legislative Assemblies also have dedicated websites to their respective legislative libraries: NWT and Nunavut. The interviewees identified these libraries as great sources of information with resources for researchers and archived materials such as digital tabled documents, bills (including a Progress of Bills table), and Hansard — to name a few examples.

Given its geographical vastness, all three interviewees confirmed that most government and territorial department websites are kept up to date. Legal researchers may encounter major obstacles when it comes to finding historical materials. Ellis noted that “Accessing historic legislative and government information on Yukon can be complex as devolution of some powers from the Federal government to the Government of Yukon have occurred over the years.” The collections at the Nunavut Arctic College Library and the Nunavut Legislative Library & Information Services provide access to historical government publications and print copies are available from the Nunavut Territorial Printer, Ableson mentioned.

3. Is there a preservation program and/or policy to preserve legal information (primarily primary sources) online and/or in physical collections?

Based on the answers from my three interviewees, Yukon Archives is the only known institution actively archiving legal information in both physical and digital formats. For NWT or Nunavut, the interviewees were unaware of such a project or initiatives or advised me to contact the Nunavut Library Association directly for further information.

4. How has the pandemic affected library services mentioned before or others?

Given the travel and health restrictions in place, all libraries have experienced the same effects: significant increase of online library services, decrease or complete ban of public access in their physical spaces and reliance on institutional protocols within the buildings they are located in. Ellis in Yukon notes that the small team at the library have returned to work as of November 2020, and its future presence will depend on any surges of new cases. Ableson notes that “The Nunavut Court of Justice has suspended regular operations until January 2021 with some virtual/remote services”. If you would like to learn more about the impact of coronavirus and lockdown measures in the region, please read Emily Tsui, Visiting Fellow at the Arctic Institute.

The answers you just read are just the experiences of these three legal professionals. They are not meant to be exhaustive. If you would like to dig deeper, I’d highly recommend you to read The Comprehensive Guide to Legal Research, Writing & Analysis, 3rd ed (Toronto: Emond, 2019) particularly the chapters dedicated to the three territories. You can access here some of the information and sources mentioned in that book. As a member of the Canadian Association of Law Libraries (CALL), I’d like to also mention three surveys published in 2013 about the state of law libraries in the territories: Yukon, NWT and Nunavut. If you know of another source of information or commentary on law libraries, legal information or access to justice in the Canadian territories, please feel free to contact me or post them in the comments below. I’d like to consider this post as just one stepping stone in the path of a much needed conversation.