Pikangikum First Nation court case against INAC's imposed 3rd party management dismissed
A case study on first nations poverty
CHRISTIE BLATCHFORD - Dec. 30, 2010
In the court case of Pikangikum v Nault is a glimpse of an answer to the age-old Canadian question of how so many first nation communities in this country continue to suffer appalling conditions and ruinous poverty even as Ottawa throws millions and millions and millions of dollars at impoverished reserves.
That hint of an answer is found in what happens when intransigent bureaucracy (the federal Indian and Northern Affairs Canada, or INAC) meets stubborn and hypersensitive first nation, in this instance the Pikangikum band.
And what happens, as Ontario Superior Court Judge John dePencier Wright found, is … nothing.
Thus, more than a decade after the remote Pikangikum reserve in Northwestern Ontario first came to national attention (for, among other things, youth suicide rates that are said to be the highest in the world) and their local MP was named Indian Affairs minister and all seemed rosily possible, little has changed for the band’s approximately 2,100 residents.
As Judge Wright said, a much-ballyhooed power grid remains uncompleted, costing Canadian taxpayers an extra $3-million a year to keep prohibitively expensive diesel generators going; effluent from the water treatment plant is still going into Pikangikum Lake, which supplies the community’s drinking water; sewage facilities are inadequate.
A golden opportunity to improve life for some of Canada’s poorest citizens was “missed because of the unfortunate collision between an unstoppable force and an immoveable object,” the judge wrote.
Judge Wright’s 93-page decision, which amounts to a searing indictment of the status quo, was released just before Christmas to almost no attention.
He dismissed the Pikangikum lawsuit against former Indian Affairs minister Robert Nault, which had alleged he acted unlawfully by imposing what’s called “third-party management” – basically, an outside party is appointed to administer band funds – on the reserve.
In fact, Judge Wright found that when INAC arbitrarily moved to impose third-party management on the reserve in November of 2000, it did so “against the wishes” of Mr. Nault.
Calling the strike “breathtaking in its ramifications,” the judge said that either “elements in the Ontario Region of [INAC] were amazingly disloyal to their Minister or were shockingly oblivious to political realities.”
Third-party management is supposed to happen only after lower-level interventions, such as joint management or “co-management,” have failed, and always after a meeting with the band.
Instead, 10 days before the 2000 federal election, INAC abruptly announced it was arriving on the reserve to begin third-party management.
The action was “extraordinary on both the political level and procedurally,” the judge said, taken as it was against the minister’s wishes and on the eve of an election.
“The Minister did not agree with the imposition of third-party management,” Judge Wright said. “He wanted co-management.”
The judge did, however, find there were plenty of legitimate reasons for some sort of government intervention: Pikangikum was reeling from suicides; its only school had been shut because of a fuel spill for almost a year; the new water treatment plant had twice flooded, due to human error, and the community was in crisis.
The fault for all of it, Judge Wright said, is evenly divided between the Pikangikum band and the INAC bureaucracy, which appears to have fought Mr. Nault tooth and nail after he took over the ministry in 1999.
Pikangikum wasn’t just another reserve to him, but as the long-time MP for Kenora-Rainy River, his constituents.
“…to the annoyance of some in his department,” the judge said, Mr. Nault “instructed people at the highest levels” to give him monthly progress reports on the Pikangikum school project (tanks on the school fuel tank farm were to be replaced with more environmentally safer ones).
“To the annoyance of Mr. Nault … the bureaucracy was continuing to follow its accustomed five-year schedule and not treating this project as an ‘expedited’ matter for the Minister’s constituents as he had promised them,” the judge said.
The shine was soon off Mr. Nault’s reputation at the band office, the final straw coming when native leaders believed – wrongly it turned out – that he had personally appointed the third-party agent, which the band saw as another incarnation of the hated old “Indian agent,” to handle band affairs.
But for Mr. Nault, the judge wrote, there were two breaking points – the first when, in reaction to his perceived high-handedness imposing third-party management, the band contested the move at the Federal Court of Canada and personally served him with legal papers at a meeting, the second when a band official threatened to close the school, finally about to re-open after an oil spill had closed it for much of the previous year.
Internally at INAC, meantime, the bureaucracy, stung by Mr. Nault’s special interest in and treatment of Pikangikum, now sent every single piece of paper about the band, even routine funding requests not requiring the minister’s approval, to his desk, where they sometimes languished in a mountain of documents.
As Judge Wright once put it – and he was specifically talking about the fact that the band had missed a chance to receive housing assistance desperately needed, but the line has much broader application, “No one’s hands were clean …”