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David Schulze: What Attawapiskat seeks is fairness and equality

National Post  Feb 4, 2012

Several yeas ago my daughter and I took the ferry from Prince Edward Island to the Magdalen Islands, a small chain of islands in the Gulf of the St. Lawrence, which are part of the Province of Quebec.

Only 13,000 people inhabit the islands year-round, but tourists flock there in the summer. Most of the islands are connected by land bridges, but sailing in from P.E.I., as the main archipelago comes into view, a ship passenger sees Entry Island, unconnected to the rest of the chain and separated by 12 km of water.

Entry Island has about 130 inhabitants and can only be reached by sea or air. A ferry arrives twice a day from May through December and the island has regular airplane service from January through April.

While in the Magdalen Islands, my daughter and I visited the Anglican priest, whom we knew from Montreal, and he told us that about once a month he went to Entry Island, where all the families are English-speaking, to hold services. Our friend also explained that the provincial government pays for a teacher to live year-round on Entry Island and offer elementary school education to the local children.

As we sailed away from the Magdalen Islands, it occurred to me that in Canada, we see it as reasonable and proper that families like those of Entry Island should have regular transportation services and a public school in their own community, yet similar spending on Aboriginal communities is often viewed as a waste.

As a lawyer, I work almost exclusively for Aboriginal communities. An increasing amount of my time is spent dealing not with land claims or hunting or fishing rights, but funding for programs and services.

Since sailing past Entry Island, I no longer see a reason why my clients should apologize for the amounts their communities cost the taxpayer. Unfortunately, I now think that when Canadians complain these communities cost too much, they are demonstrating an unconscious form of racism.

These thoughts came back to me during the recent controversy about Attawapiskat, a Cree community of 1,900 people situated on the western coast of James Bay in Ontario. It is connected to the outside world only by air, water and an ice road accessible in the winter.

Attawapiskat attracted national attention after declaring a state of emergency on October 28, 2011, due to a severe housing shortage. Many Canadians were shocked when the Red Cross was called in to help.

Several commentators were quick to suggest that the best solution for Attawapiskat would be to shut the community down and move residents to the south, near urban areas.

It seems obvious that this would simply move the poverty elsewhere. The residents of Attawapiskat are predominantly Cree speaking. They live some 1,000 km north of Toronto. The nearest town of any size is Moosonee, which has only 3,500 inhabitants itself, is not connected to the rest of Ontario by road (only by rail and air) and had an unemployment rate three times the provincial average in 2006.

Moreover, Aboriginal leaders have asked why their people should be moved off their land at the precise moment when hundreds of millions of dollars can be made from its resources.

Paying jobs are finally available near Attiwapiskat because the mineral wealth of the Crees’ traditional lands is now being explored and exploited. Only 90 km from the reserve, De Beers has opened an open-pit diamond mine employing over 500 workers. Thanks to an impacts and benefits agreement negotiated by the band council, about 100 of those workers are from Attiwapiskat.

Another fundamental question for me is why so many believe we owe so little to the people of Attawapiskat, despite the fact that our federal government entered into a solemn agreement with them in the form of Treaty 9.

Treaty 9 was among the last in a series of “numbered” treaties signed by Canada from the 1870s till the 1930s, with First Nations from northern Ontario to the Rocky Mountains. First Nations surrendered their title to land and in return, the federal government promised them small annual payments, reserves, and the right to hunt and fish throughout their territory.

Representatives of the Crown met with chiefs who usually could not speak English and had them sign legal documents, usually with an “X”. From the government’s point of view, the land had been cleared of competing claims and was ready for settlement. From the Aboriginal point of view, the Crown had promised to protect their way of life.

The Attawapiskat Cree only “adhered” to Treaty 9 in 1930 and in Ontario’s far north, settlers did not follow negotiation of the treaty. As a result, little changed for the Attawapiskat Cree so long as they could still live off the land by hunting, fishing and trapping.

But the 1950s and 1960s saw a terrible combination of circumstances for remote Aboriginal communities like Attawapiskat. The fur trade ceased to offer a viable livelihood at the same time that the federal government pressed the Cree to settle permanently on reserves and enforced attendance for their children in residential schools. The communities were emptied of their children and the parents sat on the reserves waiting for them to return.

Community members had little else to do if they could not hunt, fish or trap. In Canada, infrastructure of all kinds (railroads, highways, schools, hospitals) has always been built for white settlers, for their farms, mines and factories. If Aboriginal communities happened to be nearby (like the Mohawk communities of southern Quebec and Ontario for instance), they benefited from that infrastructure, but if they lived in remote areas like Attawapiskat, they remained isolated.

Even the Indian residential school experience reflected this reality: attendance was most widespread in remote communities were the government did not want to build schools. The federal government took the children out of these communities to more centrally-located residential schools and left them there, sometimes for the school year, sometimes for years at a time.

Since the 1950s, the federal government has progressively provided Indians on reserve with most of the services the provinces provide to other Canadians, such as health care, education, and social assistance. Since the 1970s, service delivery has been progressively delegated to the First Nations themselves.

However, the federal government does not usually take on services to First Nations as binding legal obligations: funding depends on the annual budget and on a Minister’s discretion. Services such as local policing, for example, may simply stop from one year to the next, to be replaced by a distant provincial police detachment.

Moreover, federal funding for services to First Nations does not have to match the level of provincial funding for the same services off reserve. Often, federal funding is lower, even though the First Nations who administer programs are expected to meet provincial standards.

The result in an area such as education is that Indian Affairs provides per capita budgets below the provincial averages to reserves where needs are greater than the in the rest of the province. Communities already faced with the challenge of serving deprived populations in remote locations like Attawpiskat become trapped in a downward spiral of underfunding and underperformance.

During the Attwapiskat controversy, the Prime Minister cited the $90 million in funding provided to the community during the preceding five years and called the results inadequate. But how generous was this funding when Council was providing municipal, educational and health care services, as well as housing, all at a location no car or truck can reach in summer and where the cost of building a single home is $250,000?

Nor are First Nations unaccountable. The Auditor General has reported that their councils file literally hundreds of financial reports every year to various federal government departments. The Minister of Indian Affairs reacted to Attiwapiskat’s crisis by placing the council under “third party management”, a form of trusteeship the Minister reserves the right to impose when a First Nation’s deficit reaches a set proportion.

The most important point, however, is that things do not have to be this way. Clear evidence contradicts the commentators who insist that the problems of remote First Nations can never be solved, that no amount of money will make things better, that we must shut down communities like Attawapiskat and encourage their residents to leave their traditional lands.

Just across James Bay, on the east coast, the example of the Cree and the Inuit living in Québec proves that life could be much better for communities like Attawapiskat. Life in the Cree and Inuit villages of Québec is far from perfect, but it is significantly better than in the Cree communities of northern Ontario.

Unlike the James Bay Cree of Ontario, no one asked the James Bay Cree and Inuit of Québec to sign a treaty as a pre-condition to development. On the contrary, the Québec government announced in the early 1970s that the James Bay hydro-electric project would flood their traditional lands without even informing them of its plans.

The Québec Cree and Inuit went to court to stop the James Bay hydro project and obtained an injunction, though it was quickly set aside on appeal. Settlement negotiations with the federal and provincial governments led to the James Bay and Northern Québec Agreement (JBNQA), the first modern land claims agreement, signed in 1975, after which the project went ahead.

Among other things, the JBNQA left the Cree and the Inuit with regional school boards, health and social services agencies, police forces and local government structures under their control. These institutions are funded jointly by the federal and provincial governments, to the same level as comparable bodies in the rest of the province.

The JBNQA also recognized their right to hunt, fish and trap and provided the Cree and the Inuit with a role in wildlife management and environmental assessment on their territory.

With the compensation paid to them for settling their land claims, the Cree and Inuit bought the airlines that serve their communities, among other businesses. Where Attawapiskat derives benefits from a single mine, the crucial role played by the Québec Cree and Inuit in deciding on the development of their territory has led to a growing role in many areas of the regional economy. In businesses such as mining, forestry or commercial fisheries, the Cree or the Inuit participate through royalties, employment, or ownership.

The question raised by the example of the Cree and Inuit of Québec is why they had to go to court and accept massive development on their lands in order to obtain the benefit of adequate locally-controlled services and economic opportunities of the kind we would consider a minimum for other Canadians?

The real question raised by Attawapiskat is whether all we promised its people in Treaty 9 were underfunded resources on unsustainable reserves and an invitation to move elsewhere if it does not suit them? Or is it possible that we owe them institutions and services of at least the same quality we take for granted in the rest of Canada and a chance to participate in the economic benefits that can be derived from their lands?