Remember when entire families in a remote northern community were living in severely inadequate shelters in the wintertime, and the federal government reacted to this emergency quickly, and with compassion?

I don’t either.

What I do remember, is Prime Minister Stephen Harper making a claim about $90 million dollars, adding official legitimacy to an already popular nation-wide belief that band corruption/theft/fraud is axiomatic, and ‘innocent until proven guilty’ need not apply when Indians are involved.

I remember how objecting to the appointment of a Third Party Manager had every cyber Tom, Dick and Harry gleefully asking, “What is Chief Spence hiding?”

I also remember witnessing something I hadn’t expected; something I was wholly unprepared for.  Tens of thousands of non-native Canadians unequivocally declaring, “this is unacceptable, DO something NOW!” and shortly after, “If you won’t, we will!”  Then, even more incredible, people were asking questions and challenging their own misconceptions about more than just Aboriginal housing.

It might seem odd to say that it was shocking to see such an outpouring of support and a thirst for information with which to reject the accusations being hurled at the Attawapiskat First Nation.  You would be right to think that such rational, compassionate behaviour should be the default, not the exception.  Yet if you ever need to remind yourself just how poisoned the public discussion is, all you need to do is google “First Nations” and find a news article that allows anonymous comments.  Keep a bucket handy, you’ll be reading some vile stuff.

I suggest not bothering, however.

Attawapiskat vs. the Queen, the judicial review

Yesterday the Federal Court released its judicial review of the appointment of a Third Party Manager in Attawapiskat.  I think the media has done an excellent job of highlighting the findings of the Court and I do not want to replicate their work.  Instead, I want to explore the issue of misunderstandings.

For those not familiar with the different kinds of cases that come before the various Courts in Canada, a judicial review is precisely that… a Court is asked to review the legality of an action or decision made by legislative and executive branches.  It is a fundamental aspect of the ‘checks and balances’ built into Canadian system, ostensibly guaranteeing that no one, not even our highest political representatives, are above the law.

In essence, anyone should be able to ask, “Was the government right to do this?” and receive an answer from the Courts.

I explain this because I have seen numerous comments made online about how judges should not be able to interfere with governmental decisions and so forth.  The fact is, these decisions are not interference.  They are a safety measure predicated on the recognition that human decision makers do not suddenly become infallible once they start working for government.

The sequence of events

If you followed this story at all, and were ever confused about what happened and when, you should read page 4 to the top of page 15 of the Federal Court decision.  It’s double spaced, and you can skip through the paragraphs from other cases cited by the Court if you’d like. Just have a coffee and give it a gander.

I think a lot of people are (often rightly) intimidated by legal documents or judgments because of the dense specialised vocabulary.  However, most Court decisions provide a very readable summary of the events surrounding the issue, a kind of Coles Notes version. Since the Courts are often privy to information that was not available to or reported by the media, these summaries can sometimes fill gaps in our understanding and clarify ambiguities.

How the issue was framed in public and what the Court had to say

When Charlie Angus first blogged about Attawapiskat, the initial public reaction was horror that such conditions could exist in Canada.

That reaction quickly became swallowed up by a flood of accusations about Band mismanagement and culpability.  Whether you wanted to or not, discussing Attawapiskat in public meant addressing those accusations.

There are a lot of ugly national myths about First Nations based on things like misunderstanding the scope of First Nations taxation, and Treaties, as well as not really understanding that colonialism is not a merely historical issue.

Spoiler alert: this Federal Court decision does not magically clear away all the confusion.  However, it draws our attention to the way in which misunderstandings led to and exacerbated the crisis in Attawapiskat; misunderstandings not just in the public discourse but also in the minds of those making decisions as to how to respond to the Attawapiskat’s needs.

At paragraph 77 of the decision, the Court says:

“The reasonableness of the choice of remedies [i.e. appointing a Third Party Manager] is conditioned by a reasonable and accurate appreciation of the facts and a consideration of the the reasonable alternatives available.”

p. 78 “…the [Assistant Deputy Minister] misunderstood the nature of the problem…what was really an operational problem.  While the [Attawapiskat First Nation] were having trouble addressing the housing crisis, what they lacked was not the ability to manage their finances…but the material means to do so.”

The judgment speaks to the issue of financial management a number of times:

p.24,”Despite the [Prime Minister’s] comments about management, the Respondent has not produced evidence of incorrect spending or mismanagement.  In fact, the reference by the Prime Minister as to the $90 million could not have related exclusively to the funds made available for housing repair or reconstruction.”

p.21, “At no point prior to the appointment of the [Third Party Manager] did department officials indicate there was any problem with Band management.  The Band was already under a co-management regime and no issue of Band management or financial administration was raised.”

Over and over again, the Federal Court states that financial mismanagement was not the issue, and never had been.  The fact that the public dialogue about Attawapiskat was almost wholly concerned with allegations of such mismanagement, demonstrates just how intensely events can become hijacked by misunderstandings.  These misunderstandings did not exist only in the minds of the ‘average Canadian’, but also in the mind of Prime Minister Harper when he made his statement about the $90 million, and in the minds of the local bureaucrats who were desperately trying to respond to the crisis.  That much is extremely clear.

It is unlikely that this finding will receive as much national attention as the initial allegations of financial malfeasance, and so unfortunately, this kind of misunderstanding becomes reinforced in the public consciousness as an obvious truth.  While this might feel like a ‘one step forward, two steps back’ situation, for me it merely highlights how important it is to keep chipping away at the lack of understanding between native and non-native in this country.  Quite literally, lives depend on us doing so.

We should not underestimate the power of public opinion… nor of public discussions.

p.2,”This judicial review confirms, if such confirmation were needed, that decisions made in the glare of publicity and amidst politically charged debate do not always lead to a reasonable resolution of the relevant issue.”

p.26,”It would be inaccurate to suggest that officials were insensitive or uncaring about the situation at Attawapiskat…[t]he problem seems to have been a lack of understanding of the [Attawapiskat First Nation’s] needs and an intention on the part of officials to be seen to be doing something.”

The glare of publicity here is not the cause of the misunderstandings so explored by the Federal Court, just as Prime Minister Harper did not create the nation-wide clamour over supposed corruption in Attawapiskat.  Both merely tapped into what already existed.

However this time, native peoples were able to also engage in that public dialogue on a less uneven footing.  The Attawapiskat First Nation’s webpage was a veritable treasure trove of information even before its financial records were suddenly the most googled item for a few days.  More importantly, the bulk of the conversation was happening between people, not between politicians.

I do think the Federal Court is suggesting that had the crisis not become so public and politically charged, the outcome may have been more satisfactory… but I think that might be unduly optimistic.  The crisis in Attawapiskat provided a wake-up call that actually reached the ears of the nation.  Had it not become so public, I doubt we would have seen such a drastic shift in public opinion in favour of not accepting as self-evident that Attawapiskat was to blame for the housing situation.

I very much believe that out here, in the public, is where the most important gains can be made.  We can’t wait for more Royal Commissions or for widespread curricular reform, and we certainly can’t wait for the Canadian government to lead the way.  Instead, we should be bringing them along with us. Word by contested word until our misunderstandings are no longer threatening our lives.

Mainstream Canada is finally talking about relationships.

So let’s do this.  And maybe finally we can get past the wishing for, and into the planning and building stages.