I quite agree that with the Montreal Gazette comment that the blame game is not going to help Attawapiskat. What I want to do in this short note is to give some background on the legal issues. Needless to say perhaps, the legal issues raised in this context are invariably also political issues.

I’ve been following the former Indian Affairs Committee of the House of Commons, succeeded by the Aboriginal Affairs Committee and the Senate Committee on Aboriginal Peoples, give or take a few breaks, since about 1960. I’ve been reading the major legal decisions since about 1973. And I directed the parliamentary relations program at the National Indian Brotherhood/Assembly of First Nations through several administrations.

There can’t be much doubt that Attawapiskat was placed under Third Party Management because of its appeal for help and the ensuing campaign that greatly embarrassed the Government. It was almost 24 hours after the Minister announced his decision to appoint a Third Party Manager (TPM) that I learned that Attawapiskat had been under Co-management for the past ten years.

I have witnessed Third Party Management. Not much good can be said about it. The outside manager typically begins by freezing all the band’s accounts, and opening up an account in his own name, often at his own bank. He does not spend much time in the community; he may administer Attawapiskat from Timmins or from Toronto. If Duncan’s appointment is true to form for TPMs past, he may have some managerial experience but he will also have a record of longstanding service to the governing party.

When he closes or freezes all the band’s accounts all the band’s programs stop. I’ve seen situations where summer employment programs, hot lunch programs, recreation programs, road maintenance and everything else that is needed to sustain a community came to a screeching half. The only person who continues to get paid is the TPM himself. Typically, he pays himself 25% of the band’s income for the period he is there.

Another northern isolated community, Pikangikum, was placed under a TPM some years ago by a vengeful minister. Pikangikum went to court and had the order rescinded (Pikangikum First Nation v. Canada (Minister of Indian and Northern Affairs) 2002 FCT 1246). The judge found that the minister had not set out specific issues or problems that needed to be solved. He had failed to consult with the band leadership. And he had not indicated what would be necessary for the TPM to be brought to a close. I haven’t seen the Attawapiskat order but one of the first things I would look for is whether it is put together any more thoughtfully than the Pikangikum order. And whether the Minister has sought to consult with the Chief and Council.

The 1982-83 Special Commons Committee on Indian Self-Government (Penner) quoted the Auditor General’s Report from 1980 pointing out that small bands are required to do far more reporting to the Government than small municipalities provide to their provincial government. Sheila Fraser made the same point in one report after another, all of which can be found on the website of the Office of the Auditor General (OAG).

No doubt some reports get in late. But typically when a quarterly report is late the next quarterly payment for that program is delayed. So the accusations of mis-spending need to be taken with a grain of salt, at least until someone goes through the First Nation’s books, which I understand have been opened to the public for quite some time.

I’m always suspicious of government statements that bundle a string of years together in order to achieve a high dollar figure. The band manager, in an early interview, talked of the difficulty of training staff to deal with the required report writing, typically at the expense of actual service to the community.

Although Attawapiskat is nominally in Ontario, it really needs to be seen as the far north. Goods come in by barge until freeze up. Medical personnel fly in twice a week, “the Lord willin’ and the river don’t rise.” And the Attawapiskat River often rises. That is one factor that contributes to the infestation of mold in the houses. Most of the houses that look like real houses are built to an Indian Affairs design used from coast to coast to coast without regard for whether they are appropriate in an Arctic setting like Attawapiskat. Or in any other extreme climate, hot or cold. (When similar houses were shipped to Indigenous villages in Guatemala as part of Canada’s aid after a major earthquake, the plywood began to host insects as soon as the houses were put up. The people moved out and moved their livestock in.) To construct such a house in Attawapiskat is likely closer to $250,000 than to the $80 to $100,000 that it might cost in southern or central Ontario.

The last time that Attawapiskat was in the news, or one of the last times, was about the deficient waterworks that contributed to the need to evacuate many of the families. Since we haven’t heard word about the waterworks perhaps that is one of the accomplishments that Stephen Harper might have acknowledged rather than saying he wants an accounting, as though there had not been one.

Successive AFN leaders, regional and national have stressed the need for Aboriginal rights and treaty rights to be recognized and respected, as guaranteed in s.35(1) of the Constitution Act, 1982. Yet one minister after another has said that he does not want to deal with “rights based solutions”, but only with “needs based solutions.” The difference, it seems to me, is that “needs based” means that it is the minister and his officials who decide what is needed.

A review of the long line of Supreme Court decisions descending from Chief Justice Dickson’s and Mr. Justice LaForest’s decision in Sparrow in 1990 shows a Court that began its consideration of these matters by describing s.35(1) “as a promise” and that promises needed to be considered with a liberal and generous purposive interpretation. 

The reason that the line of cases has gotten so long, and keeps getting longer, is because Governments, federal and provincial continue to ignore the tests set out in these decisions. The Court has not only set out a series of tests, it has also coined a variety of key phrases in hopes of goading the Governments into good behaviour. The Court would not reiterate the phrase, “the honour of the Crown is at stake” if the judges were not trying to persuade successive Governments to act honourably, and to take the promise of s.35 seriously.

I will come back to that theme later in one of my columns. For now, I just wanted to provide a quick overview of some of the more salient legal-political issues underlying the campaign that began with Attawapiskat’s appeal for outside help.