Dunkin’ the Victim: a Note on Legal-Political Background of the Current Attawapiskat Campaign

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 Pikangikum went to court and had the order rescinded (Pikangikum First Nation v. Canada (Minister of Indian and Northern Affairs) 2002 FCT 1246).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.

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Comments

  1. Thanks for this. Here’s an excellent blog post on the topic: http://bit.ly/v1IuMQ

  2. Tan’si,

    This is a great, clear, concise description of what third party management looks like, thank you. I’m linking to this article because I think it’s well worth reading, and a lot of people are interested right now in what this really means.

  3. The article that Susan Munro links to is by the following commentator, apihtawikosisan – it is a first-rate review of the history and political context in a very economical space for the amount of subtle analysis. The comment thread is very interesting too – people raise, usually very civilly and intelligently, a whole lot of issues about the aboriginal/other Canadian interaction.

    It seems to me that it would be unwise to comment on the Attawapiskat situation without an understanding on the level demonstrated by apihtawikosisan’s post, and the current one above.

  4. Makwaminising_nini

    I just want to add to the reference to “Rights Based” solutions for our First Nations People.

    I am also from a First Nations community located in the Near North, who have been trying to settle a Land Claim over 30 yrs now.

    It’s very clear in my mind that the whole treaty relationship with the Gov’t of Canada and First Nations needs to be seriously revisited and sensible guidelines hashed out that reflect an honourable, coexistence relationship.

    If we are serious about solutions, we need to go deeper and look closer at some of the roots of the issues and challenges facing us. Shawn the Grand Chief of the AFN touched on some of the principles needed to guide such a process, in his interview with Peter M. of CBC’s “one on one”

    Leaders in the Federation of Canada need to set aside times over the next few years and sit down with AFN Chiefs and Elders to discuss a transfer of Jurisdiction of our peoples traditional territories across the Country and give them back their rightful place in making decisions about what goes on in these territories. The Canadian Federation, in collaboration with First Nations, needs to come up with guiding principles and legislation, that reflect partnerships with the First Nations whose traditional lands they are giving licenses to major companies to extract resources from.
    Guiding Principles that give First Nations people equal say on who takes and what is taken off their traditional territories and that Royalties and revenues be received directly into their coffers for these resources.

    In this kind of arrangement First Nations would have their own revenue base and would not have to go to the Fed’s for hand outs … Chief Big Bear of the Plains Cree talked about this kind of relationship back at the time of Federation. Their response to him at the time was to mark him as a criminal and lock him in a jail cell. Public opinion allowed for that back in his time.

    For First Nations to continue with the present status Quo, of an indignant relationship with the Federation of Canada is socia-political/ economic suicide and the spinning of everyones tires. It’s a way to guarentee we’ll stay stuck.

    While this task force is at it they can rid us of the Reserve system of legislation and allow First Nations to choose where they want to live/build on their traditional lands without penalizing them if they build or live outside the 2 or 3 sq mi land area of the “Reserve”

    Just a few thoughts on first steps in re-building some of the dignity that’s needed if we as First Nations people are to move forward in developing a functional relationship with the Federation of Canada.

  5. All of the information being shared here is so essential. Thanks to all for helping to get us informed!

  6. Maria Russell Martin

    Thank you for this information. Keep it coming.