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Third-party manager's appointment to Attawapiskat 'contrary to law': Federal Court

Justice Michael L. Phelan of the Federal Court has declared that the appointment of a third-party manager for Attawapiskat First Nation was "contrary to law."

The Attawapiskat First Nation last fall declared an emergency owing to the serious housing crisis on the reserve. John Duncan, Minister of Aboriginal Affairs and Northern Development, appointed a third-party manager to run the reserve's business affairs. Attawapiskat refused to accept the appointee and went to court.

In his 31-page decision, Justice Phelan concluded:

[83] One of the factors relied upon by the ADM [Senior Assistant Deputy Minister] in appointing a TPM was the supposed "failure of the First Nation to accurately identify how many and which members were in need of assistance, as demonstrated by the late identification of 17 families in need of assistance" (paragraph 54 of ADM’s Affidavit).

[84] The ADM failed to appreciate that there was no failure in this respect but rather, that Chief and Council had simply assigned as a "priority" for attention those five families living in tents. What the ADM took to be a failure was not a failure at all but merely a reasonable assignment of action priority.

[85] There was no attempt to clarify what the ADM saw as a dichotomy between the five families living in tents and 17 families in sheds despite the Mushkegowuk First Nation’s statement of emergency which referred to both situations.

[86] The ADM had been advised by his officials that the problems faced by the AFN in addressing the housing crisis were not financial management in nature but due to lack of resources and equipment. (Applicant’s Record, Vol 4, p 92-93)

[87] Despite choosing what was essentially a financial management remedy in the form of a TPM and the mandate given, the ADM admitted that at the time of the crisis, financial management was not the problem. In fact, the AFN was making progress on the implementation of a 2011 remedial management plan.

[88] The evidence shows that the ADM never looked at any remedy other than the appointment of a TPM despite the indications of problems with resources and equipment.

[89] Ultimately, while the ADM concluded that the appointment of a TPM was a reasonable and necessary remedy in light of the AFN’s lack of capacity to address the housing crisis, the remedy he chose failed to deal with the problem at hand, which was not financial in nature. Although courts must show deference to the Minister’s choice of remedy and specifically, his decision to appoint a TPM, where the remedy chosen does not respond to the problem, it is not reasonable.

[90] Therefore, the Court must conclude that the Respondent’s decision to appoint a TPM was unreasonable in all the circumstances of this case.

[91] The Applicant is entitled to a declaration to that effect. There is no appointment to be quashed nor actions to be enjoined. The Applicant is entitled to costs on the usual scale.

THIS COURT ADJUDGES AND DECLARES that the appointment of the Third Party Manager on November 30, 2011 was contrary to law. The judicial review is granted with costs.

The Attawapiskat First Nation had not yet published a comment on its website on Wednesday morning. However, the ruling was being widely discussed on Twitter on the #attawapiskat and #cdnpoli hashtags.

Crawford Kilian is a contributing editor of The Tyee.

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