Spence takes Aboriginal Affairs to court

Attawapiskat Chief Theresa Spence has filed a court injunction against Aboriginal Affairs for its decision to put her community under third party management despite a promise the imposed intervention would be lifted once the housing crisis is over.
Spence said the paperwork was signed immediately following a 90-minute meeting with Aboriginal Affairs and Northern Development Minister John Duncan Dec. 15 in Thunder Bay after Duncan “insisted that the third party has to be involved in this crisis.”
“We insist that we have a good team in place in the community plus we have a good relationship with the Thunder Bay (Aboriginal Affairs) staff … but he still insists on a third party,” Spence told reporters following the meeting. “Third party (management) is not an option.”
The First Nation declared a state of emergency – the third in three years – at the end of October due to a housing shortage. Some community members, including children and Elders, are living in tent framed shelters and sheds. Following weeks of inaction, Duncan put the community’s finances under third party management, citing mismanagement by the band.
Spence said she opposed third party management from the start and that it is proven to do more harm than good and is “very impunitive, counterproductive and unreasonable.”
Duncan spoke to the media after the meeting. He said appointing a third party was a in response to the immediate needs of the community. However, he will lift the third party management once the crisis is over. In the meantime, his department plans to provide homes for 25 families – 22 in modular homes purchased and three in renovated houses. He also said they have planned to do a “comprehensive, independent” audit of the band’s finances by the end of the fiscal year in March 2012.
“Once those people are housed and we think that we’re on the right track in terms of housing needs, then I think we can safely remove the third party management,” he said. “We’re looking at more or less the spring.”
Spence doesn’t buy it.
“I’ve been informed by other chiefs there’s never a short-term third party (manager),” she said.
The decision to contest the third party management appointee in court is not a first. Pikangikum First Nation, north of Red Lake in northwestern Ontario, successfully fought against third party management in the courts.
The community made national headlines when it refused third party management in 2000. A two-year long court battle ensued between then minister of Indian Affairs Robert Nault and the leadership of Pikangikum. It ended when a federal court in Winnipeg released a ruling in December 2002 telling the former Indian Affairs minister he acted improperly when he assigned an outside financial manager for Pikangikum.
Pikangikum then filed a lawsuit against Nault, alleging he abused his power and cancelled building projects after the community initiated the original 2000 court battle. This case was dismissed in 2010.
Kenora MP Greg Rickford was present at the Dec. 15 meeting with Spence. The parliamentary secretary to Duncan was part of the legal team that won the original court case for Pikangikum. He told reporters that appointing a third party manager in the Attawapiskat scenario is “good policy.”
“It was a pressing, substantial, health and safety issue,” he said. “We support self-governance, but we also have an obligation to the residents of Attawapiskat to ensure under these circumstances that immediate action is taken.”
But Duncan is being questioned on the $1,300 per day rate of the third party manager, especially if the community’s financial situation is in doubt.
“I never said money was the issue here,” Duncan said. “What I am saying is that by bringing in a third party manager, we’re bringing in the resources of the department to, for example, bring in the 22 modular homes.”
Spence said the third party manager has yet to step into the community and it is her council that is making the arrangements to bring the modular homes to the community by winter road in January.
“(Duncan) keeps saying that the third party is overseeing the crisis,” Spence said. “He’s not. It’s the people in my community who are working hard to keep things moving, documenting everything and making the phone calls to suppliers. He’s not even in the community, so how can he manage the crisis?”
Outside sources support Spence’s claim that third party management is inefficient and costly.
In 2008, then auditor general Sheila Fraser criticized the Aboriginal Affairs department for its selection process of third party managers and questioned why there is no accountability framework in place once a manger is in place.
Spence said the community is still willing to take an audit on their past funds received, but expressed frustration on the government’s focus on the band’s finance management.
“They’re throwing numbers at us and not focusing on the declared emergency, which is what this is about, and the people of Canada need to understand that,” she said.
Prime Minister Stephen Harper called out the First Nation upon hearing of the housing crisis, asking what happened to the $90 million his government put into the community since 2006.
But Duncan didn’t want to talk numbers when he was asked about the annual funding per capita comparison between municipalities and First Nation reserves, where the number for municipalities is nearly double that of First Nations.
“I don’t want to get into a numbers game here,” he said. “I don’t think talking about numbers is productive.”
Spence also addressed reports that some community members actually want a third party manager.
“As a chief of my people, I respect people’s opinion,” she said. “People object because they don’t understand what third party is, and I don’t think they understand what happened here.”
In his opening statement to the media after the Dec. 15 meeting, Duncan attempted to “dispel” the notion that he and Spence were having disagreements over the past two weeks. He was referring to an exchange of public statements between he and Spence.
In a letter sent to Duncan dated Dec. 9, Spence wrote, “I request that you rescind the third party management decision on my First Nation and allow us to proceed with the normal course of business and manage our own funding and decisions.”
Two days later, Duncan released a statement regarding the delivery of additional supplies to the community. He said that he was pleased that the community “has acknowledged the necessity of working with our government, the third party management team, and Emergency Management Ontario to get help to the residents of Attawapiskat.”
The statement was interpreted as Spence agreeing to third party management, and after receiving a call from a reporter to confirm, Spence was quick to reply.
She released an open letter to the minister that same day, writing: “this statement is completely false and untrue and the Minister has been misinformed.”
She outlined reasons as to why she will not accept third party management, which included the interruption to this fiscal year’s cash flow that “would seriously hinder the debt management plan that we currently have in place” and “prevent us from issuing social assistance payments and hence our members would not be able to purchase goods for Christmas Holidays.”
After the Dec. 15 meeting, Duncan said: “There’s been a lot of things said over the last couple of weeks, about the disagreements between the chief and I, and I would look to dispel those disagreements. They’re not true. We have strong agreement on the housing needs of the community.”
While both sides “agree to disagree” on the third party management, both have said the meeting was respectful and agree that the safety and health of the community members is a priority.
Supplies and aid continue to pour into the community. The Canadian Red Cross, which was the first outside organization to respond to the community’s emergency declaration, has provided most of the aid to Attawapiskat while on Dec. 16, the government sent supplies such as Styrofoam insulation, beds, diesel generators and drywall to the community.
On Dec. 7, Attawapiskat sent a formal plan and budget to the Thunder Bay Aboriginal Affairs office, which included budget and materials required for the renovations of vacant houses, acquisition of the modular homes, logistical plan for transporting the homes and a budget for start-up supplies and operating budget for the use of the community’s Healing Lodge as a shelter.