Attawapiskat: A study in the need to openly address misunderstandings.

Remember when entire families in a remote northern community were living in severely inadequate shelters in the wintertime, and the federal government reacted to this emergency quickly, and with compassion?

I don’t either.

What I do remember, is Prime Minister Stephen Harper making a claim about $90 million dollars, adding official legitimacy to an already popular nation-wide belief that band corruption/theft/fraud is axiomatic, and ‘innocent until proven guilty’ need not apply when Indians are involved.

I remember how objecting to the appointment of a Third Party Manager had every cyber Tom, Dick and Harry gleefully asking, “What is Chief Spence hiding?”

I also remember witnessing something I hadn’t expected; something I was wholly unprepared for.  Tens of thousands of non-native Canadians unequivocally declaring, “this is unacceptable, DO something NOW!” and shortly after, “If you won’t, we will!”  Then, even more incredible, people were asking questions and challenging their own misconceptions about more than just Aboriginal housing.

It might seem odd to say that it was shocking to see such an outpouring of support and a thirst for information with which to reject the accusations being hurled at the Attawapiskat First Nation.  You would be right to think that such rational, compassionate behaviour should be the default, not the exception.  Yet if you ever need to remind yourself just how poisoned the public discussion is, all you need to do is google “First Nations” and find a news article that allows anonymous comments.  Keep a bucket handy, you’ll be reading some vile stuff.

I suggest not bothering, however.

Attawapiskat vs. the Queen, the judicial review

Yesterday the Federal Court released its judicial review of the appointment of a Third Party Manager in Attawapiskat.  I think the media has done an excellent job of highlighting the findings of the Court and I do not want to replicate their work.  Instead, I want to explore the issue of misunderstandings.

For those not familiar with the different kinds of cases that come before the various Courts in Canada, a judicial review is precisely that… a Court is asked to review the legality of an action or decision made by legislative and executive branches.  It is a fundamental aspect of the ‘checks and balances’ built into Canadian system, ostensibly guaranteeing that no one, not even our highest political representatives, are above the law.

In essence, anyone should be able to ask, “Was the government right to do this?” and receive an answer from the Courts.

I explain this because I have seen numerous comments made online about how judges should not be able to interfere with governmental decisions and so forth.  The fact is, these decisions are not interference.  They are a safety measure predicated on the recognition that human decision makers do not suddenly become infallible once they start working for government.

The sequence of events

If you followed this story at all, and were ever confused about what happened and when, you should read page 4 to the top of page 15 of the Federal Court decision.  It’s double spaced, and you can skip through the paragraphs from other cases cited by the Court if you’d like. Just have a coffee and give it a gander.

I think a lot of people are (often rightly) intimidated by legal documents or judgments because of the dense specialised vocabulary.  However, most Court decisions provide a very readable summary of the events surrounding the issue, a kind of Coles Notes version. Since the Courts are often privy to information that was not available to or reported by the media, these summaries can sometimes fill gaps in our understanding and clarify ambiguities.

How the issue was framed in public and what the Court had to say

When Charlie Angus first blogged about Attawapiskat, the initial public reaction was horror that such conditions could exist in Canada.

That reaction quickly became swallowed up by a flood of accusations about Band mismanagement and culpability.  Whether you wanted to or not, discussing Attawapiskat in public meant addressing those accusations.

There are a lot of ugly national myths about First Nations based on things like misunderstanding the scope of First Nations taxation, and Treaties, as well as not really understanding that colonialism is not a merely historical issue.

Spoiler alert: this Federal Court decision does not magically clear away all the confusion.  However, it draws our attention to the way in which misunderstandings led to and exacerbated the crisis in Attawapiskat; misunderstandings not just in the public discourse but also in the minds of those making decisions as to how to respond to the Attawapiskat’s needs.

At paragraph 77 of the decision, the Court says:

“The reasonableness of the choice of remedies [i.e. appointing a Third Party Manager] is conditioned by a reasonable and accurate appreciation of the facts and a consideration of the the reasonable alternatives available.”

p. 78 “…the [Assistant Deputy Minister] misunderstood the nature of the problem…what was really an operational problem.  While the [Attawapiskat First Nation] were having trouble addressing the housing crisis, what they lacked was not the ability to manage their finances…but the material means to do so.”

The judgment speaks to the issue of financial management a number of times:

p.24,”Despite the [Prime Minister's] comments about management, the Respondent has not produced evidence of incorrect spending or mismanagement.  In fact, the reference by the Prime Minister as to the $90 million could not have related exclusively to the funds made available for housing repair or reconstruction.”

p.21, “At no point prior to the appointment of the [Third Party Manager] did department officials indicate there was any problem with Band management.  The Band was already under a co-management regime and no issue of Band management or financial administration was raised.”

Over and over again, the Federal Court states that financial mismanagement was not the issue, and never had been.  The fact that the public dialogue about Attawapiskat was almost wholly concerned with allegations of such mismanagement, demonstrates just how intensely events can become hijacked by misunderstandings.  These misunderstandings did not exist only in the minds of the ‘average Canadian’, but also in the mind of Prime Minister Harper when he made his statement about the $90 million, and in the minds of the local bureaucrats who were desperately trying to respond to the crisis.  That much is extremely clear.

It is unlikely that this finding will receive as much national attention as the initial allegations of financial malfeasance, and so unfortunately, this kind of misunderstanding becomes reinforced in the public consciousness as an obvious truth.  While this might feel like a ‘one step forward, two steps back’ situation, for me it merely highlights how important it is to keep chipping away at the lack of understanding between native and non-native in this country.  Quite literally, lives depend on us doing so.

We should not underestimate the power of public opinion… nor of public discussions.

p.2,”This judicial review confirms, if such confirmation were needed, that decisions made in the glare of publicity and amidst politically charged debate do not always lead to a reasonable resolution of the relevant issue.”

p.26,”It would be inaccurate to suggest that officials were insensitive or uncaring about the situation at Attawapiskat…[t]he problem seems to have been a lack of understanding of the [Attawapiskat First Nation's] needs and an intention on the part of officials to be seen to be doing something.”

The glare of publicity here is not the cause of the misunderstandings so explored by the Federal Court, just as Prime Minister Harper did not create the nation-wide clamour over supposed corruption in Attawapiskat.  Both merely tapped into what already existed.

However this time, native peoples were able to also engage in that public dialogue on a less uneven footing.  The Attawapiskat First Nation’s webpage was a veritable treasure trove of information even before its financial records were suddenly the most googled item for a few days.  More importantly, the bulk of the conversation was happening between people, not between politicians.

I do think the Federal Court is suggesting that had the crisis not become so public and politically charged, the outcome may have been more satisfactory… but I think that might be unduly optimistic.  The crisis in Attawapiskat provided a wake-up call that actually reached the ears of the nation.  Had it not become so public, I doubt we would have seen such a drastic shift in public opinion in favour of not accepting as self-evident that Attawapiskat was to blame for the housing situation.

I very much believe that out here, in the public, is where the most important gains can be made.  We can’t wait for more Royal Commissions or for widespread curricular reform, and we certainly can’t wait for the Canadian government to lead the way.  Instead, we should be bringing them along with us. Word by contested word until our misunderstandings are no longer threatening our lives.

Mainstream Canada is finally talking about relationships.

So let’s do this.  And maybe finally we can get past the wishing for, and into the planning and building stages.

 

Shorter versions of this article were published on Huffington Post and rabble.ca.

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39 Responses to Attawapiskat: A study in the need to openly address misunderstandings.


  1. Sharon Jackson says:

    Vindicated! I will pass this along to everyone I know. Thank you for explaining this so clearly.

    • morehistory says:

      Don’t celebrate just yet.

      While I share your sentiment, the Government might still appeal the decision. Only time can tell. :S

      • They may appeal, but the total lack of evidence of any basis for the accusation of financial management is not something that is going to go away.

        • morehistory says:

          Oh, I don’t expect the Gov’t to win, but they can drag the process out for a few more years, and continue to cast doubt about whether the Government’s actions were proper or not.
          We can’t expect less though, after all, no Minister in this crop has resigned their portfolio in the face of scandal, so doing the “honourable” thing is unknown to the current Government.

  2. brock says:

    The court also highlighted, and quite rightly so, the lack of correspondence (ie evidence) at the assistant deputy minister level. This is not a mere oversight by the bureaucracy mind you, but just a reflection of the kind of un-trackable decision making one can expect when First Nations deal with any government. Its an insulating exercise.

    Further, the court also (correctly) mentioned that the third-party manager had previously worked with the nation, and it is implied that the nation did not approve of their work previously – and then the federal government appointed the same individual as third-party manager, notwithstanding this (existing) bad relationship.

    • Exactly. This might not read like a slap on the wrist to the average person, but my eyes widened when I read it:

      p.27,”What is striking about this case is the paucity of contemporaneous records by the ADM. In an environment where note taking is a virtual art form, where the subject matter was caught in media headlights and Hansard is replete with Question Period behaviour, there is little written evidence of communications flowing from the ADM’s office both up and down the chain of command.”

      And the slap in the face to the First Nation in forcing them to accept someone they’d fired previously was an incredibly poor decision.

      • morehistory says:

        I’m wondering, because of the speed at which events developed, much of the communications was out-of-band to where it normally is? Usually in Government, everything is a Memo of some sort, creating a paper (or electronic) trail. But, what if the communications is by BBM, or SMS, or voice? I’m not sure that information is properly being captured, or perhaps wasn’t provided to the court. It seems unlikely that there wasn’t some _flow_ of information through the ADM, unless the DM or Minister were calling for information directly.

        This Government is quite the miser when it comes to shining a light on their decision making process, so it wouldn’t surprise me if they omitted communications that wasn’t on the “official” channel, and avoided using those channels as much as possible.

  3. mare says:

    Community perspectives are discounted and dismissed in the most ignorant way possible by the settlers of the land…I have personally never really understood how they as immigrants have never made the connection between Indigenous peoples and the debt there is to pay….taxes are to the government….the government has obligations to pay those who they are in debt to…thaddle be…First Nations…we need a lot of education….
    http://www.cbc.ca/ideas/episodes/2012/07/30/george-macmartins-big-canoe-trip-1/

  4. Melanie Sommerville says:

    Another superb post! Thank you for this.

  5. Grace Atkinson says:

    Thank you âpihtawikosisân – the comments in the Globe and Mail in response to the article are just vile. Hard to believe it is even legal to allow such racist comments. The contempt Canadians have for Aboriginal people is quite evident. The government must be rubbing their hands gleefully to know that the gaze is on ‘them’ and not ‘us’…

    • It is incredibly disheartening to see it, no doubt. But I notice that this time, more of the out and out racist comments are actually being moderated (deleted), and I was surprised at how many people were taking the time to repeatedly refute the tired refrain of “Lazy Indians/Band corruption.”

      To be honest, I think all comment sections should be under a person’s real name if we want to seriously weed out the ugliest of the dialogue.

    • morehistory says:

      Almost any newspaper has this backlash of the “unwashed” and uninformed.

      When taken to task, most of those commenting are unable to use facts to back up their opinions, and when challenged either don’t respond or do so on a loose and fast grasp on the subject matter.

      I’m happy to see that the Government’s decision to impose 3rd party has been shown as wrong. It’s a first step, but it’s a journey of a thousand miles I fear.

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  7. Ray says:

    Former PM and Finance Minister Paul Martin noted that First Nations are under-funded relative to actual need. He noted that First Nations receive between 60%-80% of what they actually need. This means that Attawapiskat’s situation is not unique, and the situation faced there is faced by everyone. The people of Attawapiskat should be thanked for raising the fact of our insufficient funding to the eyes of the general public and to our own people.

    • Kiaayohkatsi says:

      If you divide Canada’s government spending as a percentage of GDP by the population of Canada, the number ends up being something like $16 000/capita/annum. For comparison, I think Attawapiskat (and probably many other FNs) receive around $10 000/capita/annum in government spending. What about this doesn’t line up?

      • Ray says:

        One of the biggest sources of tension in communities stems from the fact that FNs do not receive the necessary funding to meet their needs.

        In the case of Attawapiskat even before there were homes being condemned I would strongly suspect that housing allotments did not meet the actual need of the Nation. Add in a long-term emergency situation where houses are suddenly condemned and the current funding model has no mechanism to deal with that.

        People really need to learn how FN funding works and fails to work for FNs.

        • Absolutely. Part of the problem, however, is that funding formulas for FNs are incredibly convoluted, with what is promised differing significantly from what is delivered, and the various obstacles to that funding being used effectively also require in-depth explanations. The Auditor General has referred to many of these obstacles in reports over the years, but to get a clear picture of what is happening takes more than a single article and extends long past the average attention span of people for whom FN issues are merely a minor point of interest.

          • Ray says:

            In some areas they are complicated. In other areas they are simple. Say CMHC gives you funding for 5-8 houses a year and you have over 200+ families on a housing list waiting for a home. Don’t need to be a CPA to understand the problems (and I used a real example.)

            There is nothing saying you can’t explain how some of the simple stuff works. Or how the federal Treasury board prohibits FNs from using most funding for off-reserve members. Thanks for replying.

          • I’m currently working on a housing article. Breaking the issue down very simply is not an easy task, but not just because the issue itself is complex; I find that there is a need to address the many misconceptions people have about native housing for such an explanation to be really useful, and THAT is why writing these articles can take up to 12 hours. So much damage has to be undone before the facts can be introduced.

  8. Sharon Jackson says:

    I sincerely hope that no one is holding his or her breath, waiting for an apology from the PMO. Attawapiskat deserves and apology, but I suspect it will be a cold day in Hell before it happens.

  9. Brian Fisher says:

    Hello Dear âpihtawikosisiân,

    I seem to recall you asking about the origin of the image you use for yourself. I ran it through tineye and have found the original. It’s from a cover of the magazine http://www.puropedomagazine.com. their May 2008 issue.

    Puropedo is published with a Chicano viewpoint.

    If you haven’t run across this yet, there it is.

    All the best.

    Hmm… no ill will by our prime minister and his government, just a misunderstanding. Perhaps the court says this because they have not been able to find hard evidence to the contrary. When I saw the news item I eagerly awaited your reflections. Thanks for your ecellent thoughts

  10. Thank you for posting such a thorough and thoughtful account of the court ruling. I find it fascinating that once again a government sought to validate bad behaviors by blaming the wronged. It is a relief to see them called out on this, no matte the final outcome. Of course, the outcome is vitally important, an winter is once again on the near horizon. I am afraid that here in the States we will see a vast increase in people living on the edge over the next couple of years, many, but certainly not all, of whom will be First Nations people.

  11. john lavers says:

    couldn’t agree more!

  12. Perry Bulwer says:

    at [26] “It would be inaccurate to suggest that officials were insensitive or uncaring about the
    situation at Attawapiskat. The record shows that officials were concerned about the crisis and the
    need to address the housing situation. The problem seems to have been a lack of understanding of
    the AFN’s actual needs and an intention on the part of officials to be seen to be doing something.”

    That sounds contradictory to me. If those officials were truly sensitive and caring, and truly concerned about the people they officiated over, they would not have had a lack of understanding of the facts and the actual needs on the ground. The fact that they did have a lack of understanding of the issues and facts tells me that they were indeed insensitive and uncaring, and negligent in their duties.

    The decision seems to suggest the politicians and bureaucrats involved in this case were guilty of mere misfeasance, but I think they are guilty of malfeasance, exactly what they accused Band managers of.

    malfeasance n. intentionally doing something either legally or morally wrong which one had no right to do. It always involves dishonesty, illegality, or knowingly exceeding authority for improper reasons. Malfeasance is distinguished from “misfeasance,” which is committing a wrong or error by mistake, negligence or inadvertence, but not by intentional wrongdoing.

    • morehistory says:

      “The fact that they did have a lack of understanding of the issues and facts tells me that they were indeed insensitive and uncaring, and negligent in their duties.”

      I’ll respectfully disagree. A bureaucrat’s job is set out by a job description in principal and by what their boss tells them to do practically. The bulk of bureaucrats live far away from isolated reserves, and it’s unlikely they have ever visited one. This sets up a perfect situation where there is a fundamental lack of understanding of the “facts on the ground”.
      Also, even if they had all of the facts and understood them, it’s unlikely that those who ordinarily interface with bands and band councils have much authority on authorizing budgets or allocating emergency funds to deal with such situations.
      Being sensitive, and having the means to react are distinct sometimes, at least at a staff level.

      Now, let me say that this doesn’t excuse the Government. Unlike ministry staff, Minister Duncan _DOES_ have authority to authorize expenditures and could have kept on top of the situation. He didn’t, and the Government put themselves in full damage-control mode, rather then show leadership and try to bridge the gap. The situation here spun out of PR-spin doctoring ability, and that is why they imposed 3rd party — “must be something cooked in the books” — and even if not, that’s people’s perceptions at the time. Now, this is 3rd page news, so even though the Gov’t was wrong, people won’t notice as much.

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  14. Pingback: A Socialist in Canada » Canadian government wronged the Crees of Attawapiskat: Federal judge

  15. Sylvia Harvey says:

    Does this mean the funds paid to the Third Party Manager will be refunded to the band?
    Should be.

  16. spark 123 says:

    What happened to all the promises and money De Beers was giveing these people to build their diamond mine up there ???????
    They are making billions in profits off of these peoples land .

  17. Ray says:

    Since you’re writing a housing article in the near future, here’s an example of an actual problem that’s created through the implementation of two extremely reasonable policies:

    1) upon the completion of project stages, work must first be inspected by a certified inspector who verifies the work is done to code.

    2) These certified inspectors often must travel hundreds of km or more to inspect various completed projects. To keep costs reasonable, these inspectors often have a set limit as to how many completed projects must first be completed prior to travelling, so as to make their trip cost-effective.

    I think most people would agree that having work inspected by a certified inspector makes a great deal of sense, and is sound. Given the criticism often levied upon government officials or employees (whether they be First Nations, federal, provincial or municipal), and given the heightened media scrutiny on expenses, it is eminently reasonable to ensure that inspectors have a full schedule of inspections to do. You wouldn’t want them travelling over a thousand km just to inspect the installation of a single sink and counter top, for example.

    But when you examine the situation closer, you start to see certain problems emerge. Say I am a housing contractor and I have removed the existing countertop and sink, and installed the new counter top and sink in a day. I have completed my project in a reasonable amount of time, and am now awaiting inspection before I can move on to my next stage. Since the inspector has to hit a certain number of completed stages, I have to wait until such time as he/she has the required number. While my completed stage took a day, other projects around me are often much larger and require more time, like installing an electrical system in a home, or putting a roof on a house. So if I have a series of small stages to work on, that in total may amount to 2-3 weeks of work, the actual time the project takes is closer to four or five months. So if your life is kind of on hold because you’re living in half your house, or staying with family to allow the work to happen, you’re not going to be pleased.

    There are a number of flaws in the current housing system, and most of them tie back directly to funding (or lack thereof). Thanks for reading this.

    • Absolutely fantastic information, and a very clear scenario! Thank you!

      • Ray says:

        Not a problem. The obvious solution would be to increase the number of local inspectors, but then you’d have to pay for training, and then these inspectors earn more. So here’s an example where spending more money alleviates existing problems, but there isn’t money there.They haven’t even updated housing funding formulas since the 1980s, if I remember correctly. There’s a lot of work needed to be done.

  18. Faith says:

    Now Minister John Duncan has “refused to provide a ministerial guarantee to support a plan that had been approved by Canada Mortgage and Housing Corporation to build 30 new duplexes in Attawapiskat through rents established at market rates. Since Attawapiskat has never defaulted on a housing loan it is not surprising that CHMC was willing to partner with the community.”

    http://www.huffingtonpost.ca/charlie-angus/letter-to-john-duncan-why_b_1767363.html

    Another “unreasonable” decision on behalf of AAND.
    In the recent judgment on the 3rd Party Manager, the judge said that it wasn’t that “officials were insensitive or uncaring about the situation at Attawapiskat.” Well, if this is how the government shows that it cares, I’d hate to see it act in an “uncaring” manner!

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  20. Mark says:

    Edit: you’ve made it very clear that you have no intention of engaging in a dialogue, and instead only want to make declarations about what Idle No More supposedly is. Thus, you are unwelcome here.

  21. Disillusioned Immigrant says:

    It is astonishing how easy it is to sway public opinion. When Attawapiskat declared a state of emergency all Canadians were horrified by the level poverty they saw on TV. Months later as if experiencing amnesia an audit that still can not prove mismanagement of funds gets people applauding the government for “proving” that the band is to blame for the problems on the reserve. This voluntary amnesia makes it much easier to point fingers and free ourselves of any sense of responsibility as a nation. It is much easier to applaud or rally behind the government than to look at ourselves and know that the our standard of living comes at a high cost supported by a colonial past that continues to this day.

    Thank you for your wonderful articles.

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