Decision in Nault, Pikangikum case could take months

Having already defeated Indian and Northern Affairs Canada in court once over imposing an Indian agent on their community, Pikangikum recently returned to court again, suing the minister and ministry they claim is responsible for it.
Dozens of community members spent much of the past six weeks in a Kenora Superior Court of Justice courtroom listening to testimony from Robert Nault and others tied to the case including INAC staff. The civil trial ran from May 10 to June 11 though this issue has been a decade in the making. A decision from Justice Peter Wright is not expected for months.
The court battle between the First Nation, INAC and Nault centres around whether Nault abused his power as a minister by allegedly cancelling building projects including a sewer and water project after the community served him with notification papers over the original 2000-2002 court battle.
That battle was fought over legalities of INAC placing Pikangikum under third-party management.
Chief and council were notified by a letter dated Nov. 7, 2000, from Indian and Northern Affairs Canada that their community was slated for third party management.
A.D. Morrison and Associates Ltd., was appointed by INAC to oversee the band’s financial affairs after Arun M. Dighe, regional director associate, used Sec. 4.14 of the Indian Act to allege the leaders were compromising the health and safety of its community members.
While the court battle waged on, the community alleges Nault froze funding for $40 million worth of infrastructure projects including a school, housing, water treatment plant, electrical grid and generator.
The community asked for a judicial review of Nault’s move in April 2001.
A federal court in Winnipeg ruled Dec. 2, 2002 Nault had acted illegally when he assigned an outside financial manager for the community.
Justice John A. O’Keefe ruled at the time “the application for judicial review is allowed and the decision of the minister to require co-management is invalid due to a breach of the duty of procedural fairness.”
Building on that case, Pikangikum is seeking general damages of loss of the projects (more than $10 million), special damages including the cost of the third party manager (about $1.5 million), and punitive damages (no specific amount claimed).
This relates to the defendants’ abuse of public office, intimidation and falsehoods made by the defendants, according to the statement of claim filed with the court.
During the closing arguments of the case, Dave Hill, who represented Nault, said it’s up to the justice to determine if his client did anything deliberately unlawful, knowing it was unlawful and would hurt the plaintiff.
He argued Nault did nothing wrong.
“(Nault) withstood 16 hours of cross-examination,” Hill said, noting unless Wright was prepared to rule Nault was outright lying, there is no case.
He said just because the sewer and water project had proceeded to tender by 2001, it didn’t mean it was ready to go.
“(INAC doesn’t) automatically fund projects, even under third-party management,” Hill said. “The community needed capacity to build and run the water treatment plant. INAC was concerned about Pikangikum’s capacity to build projects.”
Hill questioned whether Nault played a role in the project failing to move ahead.
“If he stopped the project, how long did that stoppage take place,” Hill said, adding that none of the projects have since been built.
Joseph Magnet, one of two lawyers representing Pikangikum, said the project failed to move ahead because Nault failed to sign off on the funding, forcing a retendering.
“The evidence suggests (Nault) stopped the project by doing nothing,” Wright said, while listening to Hill’s explanation of the tender process.
John Tyhurst, from the Department of Justice which defended INAC and Canada at the trial, spoke about the projects and their lack of construction, even now.
While Pikangikum’s lawyers argued it should be entitled to a value reflective of what the capital investment in the community would be worth, Tyhurst said the assets shouldn’t matter.
“The defendant shouldn’t be awarded damages since the projects haven’t been put in place,” he said. “We don’t know what the value of the assets in the ground would be to the First Nation.”
Magnet sees it differently. Pikangikum would be a different place had Nault not been INAC minister.
“But not for Nault’s abuse of power, the band would have had its five projects,” he said.
Pikangikum Chief Jonah Strang and the community’s lawyers declined to be interviewed.