Dr. Dawg

Attawapiskat: appointment of Third Party Manager unlawful

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Attawapiskat winter1.jpg

“THIS COURT ADJUDGES AND DECLARES that the appointment of the Third Party Manager on November 30, 2011 was contrary to law. The judicial review is granted with costs.”

Backstory here, here, here and here. In-depth article here.

The clear finding of unreasonableness in imposing a financial Indian agent upon the Attawapiskat First Nation at a time of crisis—and a person who had already been fired by the Band Council—is laid out in forceful language:

[37] The Respondent appointed as TPM a person who had been an advisor to the AFN previously but who had been fired by the Council. There appears to be no consideration of the reaction this particular appointment would have on the AFN - a reaction that ought to have been contemplated.

…[78] At the core, the difficulty for the Respondent is that the ADM misunderstood the nature of the problem, choosing a financial tool in the form of a TPM to address what was really an operational problem. While the AFN were having trouble addressing the housing crisis, what they lacked was not the ability to manage their finances, in which case a TPM may have been an appropriate and reasonable remedy, but the material means to do so.

…[86] The ADM had been advised by his officials that the problems faced by the AFN in addressing the housing crisis were not financial management in nature but due to lack of resources and equipment. (Applicant’s Record, Vol 4, p 92-93)

[87] Despite choosing what was essentially a financial management remedy in the form of a TPM and the mandate given, the ADM admitted that at the time of the crisis, financial management was not the problem. In fact, the AFN was making progress on the implementation of a 2011 remedial management plan.

This judgement, however, raises as many questions as it answers. The Court finds no evidence that there was political failure on the part of Stephen Harper or his hapless Minister of Aboriginal Affairs John Duncan: “The problem in this case does not lie at the feet of the political masters but in the hands of the bureaucracy.” [3]

So we are to believe that the Senior Assistant Deputy Minister in charge, in the full glare of adverse publicity, took it upon him/herself to appoint a Third Party Manager, even while being advised by officials that this was the wrong remedy [86], as s/he admitted in court [87]; that s/he stuck to this decision even after a firestorm ensued; and somehow his/her boss, Minister Duncan, and the notorious micromanager Prime Minister Stephen Harper, just repeated banal talking points from bureaucrats without investigating further.

Then there is this:

[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 the communications flowing from the ADM’s office both up and down the chain of command.

How conveeeenient.

The ADM is clearly the person chosen to be thrown under the bus here. But someone has to explain to me—and I worked in government bureaucracy for many years—how the crisis for which s/he is supposedly responsible took place under the noses of his/her political superiors without contrary orders being quickly barked.

In any case, the judgement will be welcomed by the Attawapiskat First Nation, which had suffered the scorn of Canada’s racists for supposedly mismanaging Band finances. The judgement is very, very clear on that—it did no such thing. But it’s a bittersweet decision, nonetheless. Pace Mr. Justice Michael Phelan, a senior bureaucrat cannot possibly be entirely to blame for the mess. The people ultimately responsible for that useless bit of Great White Father paternalism—Conservative politicians—are getting an undeserved pass.

[H/t Emmett Macfarlane]

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This page contains a single entry by Dr. Dawg published on August 1, 2012 12:58 PM.

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