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Attawapiskat seeks injunction against third-party manager

The Attawapiskat First Nation has filed a request for an injunction removing the third-party manager imposed by Prime Minister Stephen Harper, while Chief Theresa Spence has also signed an affidavit comparing the impact of the third-party manager to her experience in residential school.

The documents were published on the website of the Attawapiskat First Nation on January 26. In the motion for an interlocutory injunction, Attawapiskat argued:

2. The context of these proceedings is the serious and unprecedented housing crisis in the First Nation. Many members of the First Nation are now living in overcrowded, unsafe conditions, in uninsulated, unserviced dwellings. Some of these dwellings are mere tents and shacks. Others are once-usable premises that, because of poor construction and chronic underfunding, are now mold-infested and unfit for habitation. As a result of the deterioration of conditions and the onset of winter, a state of emergency was declared by Grand Chief Stan Louttit of the Mushkegowuk Council in late October, 2011.

3. After numerous attempts by the First Nation at dialogue with AANDC officials, and increasing media attention and questioning in the House of Commons, on November 30, 2011, AANDC advised the First Nation that a Third-Party Manager was being appointed. No prior consultations or attempt by AANDC to implement the First Nation's remediation proposals preceded this unilateral decision.

4. Ultimately, the Application seeks a declaration that the Minister appointed a Third-Party Manager for irrelevant and extraneous reasons, and not for reasons authorized by the Indian Act; by the CFA; or by AANDC's own published policies on Third-Party Management. On this motion, the Applicant need only show (a) that there is a serious issue to be tried in this regard; (b) that irreparable harm will be caused to the First Nation in the absence of the requested order; and (c) that the balance of convenience favours the restoration of the status quo, rather than the imposition of the extraordinary intrusion of Third-Party Management of the First Nation's affairs.

5. On the first issue, the record discloses an ample basis to find a "serious issue". There is no record of any effort to consider alternatives to Third-Party Management. Nor is there any basis to conclude that mismanagement or inappropriate use of funds by the Applicant required such intervention. The context of events strongly suggests that Third-Party Management was imposed unreasonably, and/or for collateral or extraneous purposes during a period of intense public scrutiny of the Respondents' role in contributing to the state of emergency suffered by the Applicant.

6. There is inherent irreparable harm in imposing a Third-Party Manager. Such a step seizes control of a substantial proportion of the authority of Chief and Council – the lawful elected government of the people of Attawapiskat. Imposition of Third- Party Manager will constitute a lasting affront to the First Nation that will damage the relationship between it and AANDC. Moreover, it will impede ongoing efforts to address the housing crisis now underway while eroding the First Nation’s resources. The professional fees of the Third-Party Manager (an accountant with BDO Dunwoody) draw from the very funds available to resolve the urgent and time-sensitive housing crisis. And -- in the weeks since this appointment was made -- the Third-Party Manager has failed to even appoint a project manager to set the process underway. The First Nation, in the meantime, has taken active steps to organize an effective response, and has plans developed and ready to execute -- but no capacity to control the funds necessary to do so.

7. Finally, the balance of convenience strongly favours the restoration of the status quo. The Applicant is prepared to proceed with the plans developed in co- operation with its own, highly-qualified project manager, whose time has been donated by De Beers Canada Inc. There is no evidence that the continued management by Chief and Council and the co-manager now in place presents any tangible risk, nor is there evidence that the presence of the Third-Party Manager will prevent a tangible risk. To the contrary, the Third-Party Manager’s involvement will sap funds that would be better used to remediate the crisis and delay implementation as he educates himself about the unique challenges of managing a construction project in the far north in the midst of winter.

8. Completion of the project is time-sensitive not only because of the conditions that the people of Attawapiskat continue to live in, but because of the short window during which the "ice road" -- the only overland means of transporting the modular housing that is to be installed -- is open each winter. The Applicant asks that the interlocutory relief be granted, pending the argument of the Application on April 24, 2012.

In a supplementary affidavit, Chief Theresa Spence wrote:

... 5. Residential schools are one of many direct and catastrophic experiences that have taught the First Nation and its members that it is not safe to surrender our autonomy and decision-making authority to Canada. Our current housing crisis is the result of Canada's housing and construction policies for our people throughout the last 4 decades. Our community's lack of adequate infrastructure is also the result of Canada's policies and practices, as is the lack of safe water to drink and a safe school for our children to attend. ...

10. As Chief, I feel as powerless and vulnerable in the face of third pretty management as I did as a child taken to residential school. I and my council re therefore asking this Honourable Court to restrain Canada from imposing third party management on our community to deal with the present housing crisis.

While the media have rarely mentioned Attawapiskat in recent weeks, it continues to be discussed actively on Twitter.

Crawford Kilian is a contributing editor of The Tyee.

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