The Red Cross is in response. Opposition parties are outraged. The Crown has sent in a team to investigate. Another First Nations community is in crisis. And that community is not alone, a fact that will quickly lost in the short-lived public debate over this episode. At the outset, I must state that as with many issues, this is not a partisan debate – it seems whichever political party controls the government inherits and perpetuates such issues – because the problem is not a political problem, it is a systemic problem.
At the root of the problem is federal neglect of First Nations. Not so much in terms of funding and funding levels for First Nations, but a gross negligence in terms of evaluating whether that funding is contributing to improvement in the lives of First Nations citizens.
Compounded to the neglect for individual welfare of First Nations citizens is an ongoing federal neglect of the treaty relationship between First Nations and the Crown.
How bad is this neglect? Well, consider this. The federal government provides funding for all public services at Attawapiskat, as for most First Nations. In order for a First Nation to build a school, employ a water treatment plant operator, or perform any of a number of functions, it must enter into an extremely detailed funding arrangement with the federal Crown.
Taxpayers may be stunned by the amount of work that goes into getting money out of the federal door, particularly when compared to the amount of work that does not go into assessing what that funding was used for or whether it was successful. I’m not stunned, I’m outraged.
Let’s be clear. First Nations have to report on all the funding they receive. In fact, they over report on it (or so said the Auditor General). Those reports are not used by AANDC to assess and change how funding is delivered and I don’t believe those reports even speak to whether outcomes are improving in First Nations.
If AANDC’s mission is to improve the welfare of individual First Nations citizens, that is negligent conduct. AANDC’s mission might have nothing to do with this, it might be solely focused on maintaining a proper relationship between First Nations, as nations, and the federal Crown (a mission statement I would support).
On the treaty front, as far as I’m aware, this funding isn’t provided because there is a treaty relationship, but rather out of the largesse of federal First Nations policy. I write largesse somewhat sarcastically, although I note that without a legal basis compelling the provision of funding to First Nations, the Crown could withdraw funding for public services at any time. Because funding is so discretionary, there really isn’t any need to determine whether the funding is being used for any productive purpose – until public attention is focused on a particularly appalling situation. Unilaterally setting funding levels appears to me to be negligent pursuit of a nation-to-nation relationship envisaged by the treaties.
Indeed, First Nations, and frankly political actors, are left with several potential arguments to address such issues, many of which deal with impugning funding levels. However, success on such issues doesn’t really address the core problem that funding is a discretionary activity and is generally severable from outcomes (in other words, there’s no reason funding needs to be effective).
I’m much more interested in establishing ‘substantive’ rights to healthcare, education, housing and other specific areas. For example, a treaty right to education has recently been asserted in court and will likely be winding its way through the court system over the next several years. Similar treaty rights could be established in other contexts. This would mean that the federal Crown would need to guarantee a basic level of education or other services to First Nation citizens, rather than relying on simple provision of funds to execute such activities (to First Nations or third parties).
Alternatively, the Canada Health Act states, at section 3, “It is hereby declared that the primary objective of Canadian health care policy is to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers.” Again, First Nations are residents of Canada. This section tells me that the primary objective of Canadian health care policy is to ensure First Nations have reasonable access to health services. It doesn’t say that the federal government should provide funding to First Nations and then let the chips fall where they may.
Finally, and complementary to other arguments, there is a very strong human rights argument to be made that Canada is obligated to ensure that where citizens have access to services (education, drinking water, health care), that First Nations have access to the same services in a non-discriminatory fashion. This is, again, not an argument about funding, but an argument about whether public housing, drinking water and health care in Attawapiskat or other First Nations is substantially the same as it is elsewhere in Canada. International law is important, which is why I often write about it.
I’ve written recently about accountability – this, I think is the real accountability gap right now, not salaries and conflicts of interest. It’s a gap that needs to be addressed honestly and openly by First Nations and the Crown together. It would be a difficult discussion for First Nations because it would likely mean different kinds of strings attached to funding (and maybe more). It would likely be an extremely difficult discussion for the Crown because, inter alia, there is a tremendous amount of time, work and money that would be needed to even begin contemplating progress, if progress is measured in terms of outcomes, rather than funding levels.
All the more reason to start sooner, rather than later.