Independent media needs you. Join the Tyee.

The Hook: Political news, freshly caught

Attawapiskat third party manager will stay: Federal Court judge

Federal Court Judge Michael L. Phelan has turned down the Attawapiskat First Nation's request to enjoin the Minister of Aboriginal Affairs from imposing third party management, or at least to keep the third party manager from being paid out of funds intended for the members of the Attawapiskat First Nation.

In the decision, handed down today, Judge Phelan acknowledged the housing and health conditions on the First Nation:

[10] The Applicant filed numerous letters from medical professionals which address the types of diseases and other conditions rampant in the Reserve due to the inadequacy of housing.

[11] How conditions such as these could occur in a country as rich, as strong and as generous as Canada has yet to be determined. That issue is for another day.

After summarizing the issues and providing a detailed legal analysis, Judge Phelan wrote:

[55] The Applicant claims that the appointment of the TPM causes irreparable harm by its very nature because it deprives the Applicant of dignity, self-determination and the ability to remediate serious and urgent risks to the members of its community for whom and to whom the Chief and Council are responsible.

[56] The Respondent undermines those concerns by pointing out that the powers and responsibilities of the Chief and Council remain in place, that the TPM only affects the CFA and no other funding or powers.

[57] One should not be dismissive of the impact that the TPM may have on the concerns raised by the Applicant. However, the potential for the appointment of a TPM was contemplated by the CFA [Comprehensive Funding Agreement] and the nature of the harm accepted (albeit reluctantly perhaps) by the Applicant particularly where there was a proper appointment. It is not the appointment itself which causes irreparable harm - that harm to dignity, self-government and ability to remediate risk only arises if the appointment is improper. The establishment of improper appointment has not been made out yet and is the matter for the judicial review.

[58] The other types of harm alleged, such as harm to the fiduciary relationship to the Crown, the harm to the trust between the parties and other forms of intangible (but potentially no less real) harm have not been established at this stage of the proceedings absent an improper appointment of the TPM.

[59] The only area of real and present harm which the Applicant has established is the delay in the servicing of the lots and the delivery of the trailers referred to earlier. The question of who is responsible for this harm is a somewhat open matter.

[60] On this matter, the interests of the people in the community are directly affected and must take precedence over the arguments between the Chief/Council and the Minister. There is real harm to the affected people and to the community at large if the "window of opportunity" is missed due to legal wrangling.

In his conclusion, the judge wrote:

[68] In the exercise of the Court's discretion with respect to the equitable relief of injunction, having considered the tripartite test as required by law, the Court will not issue an injunction at this time subject to compliance by the Minister and his TPM with the terms of the Order regarding payments for matters in respect of the 22 trailers to be installed at the Attawapiskat Reserve.

[69] The Court would expect the Chief and Council to take the steps necessary to permit the TPM to comply with the terms imposed on the Order dismissing this injunction application.

[70] It will be a term of the Order that upon the TPM being presented with invoices related to the installation of the trailers (including servicing of lots, transportation or anything reasonably related thereto) and upon confirmation by the Project Manager, De Beers, that the goods or services in the invoices are consistent with the remedial plan previously approved by the parties, the TPM will forthwith pay those invoices.

[71] The Applicant shall not be required to accept, acquiesce or acknowledge the legality of the appointment of the TPM in order to secure payment of the invoices.

As of Friday afternoon, no comments on the judgment had yet been posted on the website of the Attawapiskat First Nation. The judgment was being discussed under the hashtag #attwapiskat.

Crawford Kilian is a contributing editor of The Tyee.

What have we missed? What do you think? We want to know. Comment below. Keep in mind:


  • Verify facts, debunk rumours
  • Add context and background
  • Spot typos and logical fallacies
  • Highlight reporting blind spots
  • Ignore trolls
  • Treat all with respect and curiosity
  • Connect with each other

Do not:

  • Use sexist, classist, racist or homophobic language
  • Libel or defame
  • Bully or troll
  • Troll patrol. Instead, flag suspect activity.
comments powered by Disqus