A reconciliation project

No legal advice, just some random commentary on the core principle of aboriginal rights jurisprudence in Canada

Month: January, 2013

On Audits

I have written before about Attawapiskat First Nation and funding cuts (http://wp.me/p1AYud-V) and about consolidated funding agreements (http://wp.me/p1AYud-1M).

This post is a bit unusual, in that it raises no legal issues per se (but I’ll come back to that at the end), but demonstrates the relatively extreme amount of power that the government may exercise over First Nations – all through the power of “contract” (though we learned in the Attawapiskat case that a consolidated funding agreement is no ordinary contract).

Through these comprehensive agreements, in which the terms are effectively dictated to First Nations, AANDC is able to control what programs are delivered, how they are to be delivered and how results are to be reported under those programs. Doesn’t always (or often perhaps) leave a lot of room for local self-government, or more accurately, self-administration.

A more subtle point on such funding agreements is their length and complexity. The complexity of funding agreements means it can be very easy for First Nations to get ‘caught offside’ on some technical requirement (which may or may not be very important) and run afoul of its commitments.

The flip side of those funding arrangements is that it is also very easy for AANDC to run afoul of its responsibilities! When First Nations run afoul of their commitments, it is often raised by the department, and usually picked up by a number of press outlets as a ‘mismanagement’ or ‘corruption’ story. When the department runs afoul of its commitments (or is accused of sloppy administration), it is usually by the Auditor General, and similarly receives some degree of press coverage as an uncaring or incompetent department.

Audits are back in the news, it seems, as an audit, allegedly of Attawapiskat First Nation’s housing program, was leaked out recently. The release of this audit was accompanied by a series of relatively coherent lines alleging that the Audit concluded there is rampant mismanagement at Attawapiskat First Nation.

False.

This audit has nothing, or at best, very little to do with Attawapiskat’s actual finances. Page 2 outlines the scope of the audit. At no point does the “objective and scope” mention Attawapiskat First Nation. It does however state:

The objective of this internal audit was to “provide the Deputy Minister and Minister of AANDC with assurance that the AANDC management control framework in place was adequate and effective in ensuring compliance with Treasury Board and departmental policies and directives governing transfer payments and that AANDC monitoring, oversight, and reporting practices were effective and functioning as intended.”

Moreover, the recommendations that the Audit makes are not directed at Attawapiskat First Nation, but rather at AANDC. Specifically:

The Audit and Evaluation Sector recommends that:
1. The Ministerial Loan Guarantee process should be reviewed, in consultation with CMHC, giving consideration to the following:
• Developing stricter enforcement practices with respect to eligibility requirements and taking remedial action with regard to non-compliance;
• Implementing practices to certify completion of housing units by a suitably qualified professional according to National Building Code of Canada standards or an accepted equivalent set of standards;
• Conducting a risk-based periodic review of First Nation inspection records; and,
• Developing formal practices (e.g. Memorandum of Understanding between AANDC and CMHC) to require that the results of CMHC Physical Condition Reviews and client visit reports be shared with AANDC as a mandatory requirement of the eligibility process.

2. The Capital Facilities and Maintenance (CFM) Program terms and conditions should be reviewed, giving consideration to the following:
• Including eligibility requirements which require demonstrated financial management capability with respect to the First Nation’s housing program (e.g. Replacement Reserve Account, collection practices, reliable housing reports);
• Adding the requirement that a separate Housing Authority be established as a CFM eligibility
requirement;
• Discontinuing the practice of allowing minor core capital to be used for the purposes of debt
repayment; and,
• Clarifying housing report definitions and developing housing performance indicators which can be used to assess maintenance needs and establish a baseline on which to measure ongoing
performance.

Given that the audit was directed at AANDC management control systems, rather than at Attawapiskat FIrst Nation, it is entirely possible that transactions which lacked documentation may not have been undocumented at all – just undocumented at AANDC!

To be fair, it is quite possible that Attawapiskat First Nation does have weak financial controls. And that the ‘undocumented transactions’ lack proper documentation both at AANDC and in the community. This audit; however, was focused on and made conclusions about AANDC’s financial controls. To the extent the press represents this audit concludes Attawapiskat First Nations actual finances are in disarray, they are misleading the public.

To me,this episode is less about a ‘smear’ campaign (though I can see how one could reach that conclusion) and more about the inability of AANDC – an entity which is large, sophisticated and dictates the ‘rules of the game’ to First Nations, to manage increasingly unwieldy and complex financial arrangements. This case points to the growing need for genuine reform of administration, at the community, regional and national levels and in terms of financing, delivering and reporting on both funding and outcomes.

As is usually the case (whether AANDC or the Auditor General is doing the ‘accusing’), the need for administrative reform is going to be lost on politics — to my mind, the most unfortunate aspect related to the timing of this report’s release/leak. I don’t think AANDC is genuinely interesting in any meaningful reform (indeed, if administration is a problem at Attawapiskat, this report certainly doesn’t seem to be suggesting any community level solutions) and I certainly don’t believe Attawapiskat’s leadership, First Nations leadership or even First Nations grassroots are particularly interested, either (because they are consumed with the, I think reasonable, accusation this audit is being released as some kind of ‘smear’ to turn the press against Attawapiskat’s Chief).

And that’s really a shame.

Because the only serious indication I’ve seen that practice around funding agreements might change comes from the Attawapiskat case at the Federal Court, where the Court suggested that funding agreements may implicate the Honour of the Crown.

If First Nations Chiefs and AANDC officials can’t agree on how to meaningfully reform funding agreement policy, then it may be that the court’s may have to impose reform on them. It would be expensive, time consuming and uncomfortable – but it may be one of the few ways left to achieve progress in such a polarizing discussion (and an even more polarizing debate).

I’m sure many would prefer if reconciliation could be achieved through purely political processes (for a variety of reasons), but I think reconciliation can only work if courts are prepared to step into debates where political action and negotiation is unable to deliver any meaningful progress. But the alternative, at least on this issue, is no progress at all (and indeed, very little space for any reasoned debate).

Collective Rights

I’m reading a relatively good book by some guy Miodrag Jovanovic called Collective Rights: A Legal Theory (http://www.amazon.com/Collective-Rights-Miodrag-Jovanovi-263/dp/1107007380). If you don’t want to read the book, but want a 20 minute read on it (I really do recommend reading the book, though), Prof. Dwight Newman has issued a pretty damn good book review – available on SSRN (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2159894).

I really only read two books last year, the other being Karen Engle’s The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (http://www.amazon.com/Elusive-Promise-Indigenous-Development-Strategy/dp/0822347695a). That, incidentally, is a must read if you work in indigenous rights advocacy. Possibly as well if you work in international human rights advocacy.

About the book
This is not a book review, so I’m not going to wade into Jovanovic’s arguments. I will offer that I find the work pretty compelling. Its not entirely convincing, and for me it raises several questions worthy of debate. For a book on legal theory, that’s about as good as it gets.

Collective Rights: A Legal Theory aspires to offer a coherent legal theory which explains what collective rights are and how they operate. This is a pretty important debate for indigenous peoples, as domestic and international courts, instruments such as the UN Declaration on the Rights of Indigenous Peoples, and a range of policy documents, many of which are advanced by indigenous peoples themselves.

However, at the point of implementation, courts, policy makers, and possibly indigenous peoples themselves grapple with what collective rights actually mean. This is particularly true where the spectre of conflict between individual rights and collective rights is raised – usually by opponents of collective rights and in some cases, any form of indigenous rights.

It is true that simply recognizing and affirming collective rights of indigenous peoples is the preferred way to proceed, but at some point, courts and policymakers will inevitably ‘wade in’ to the collective v. individual rights argument (especially when the argument itself is relatively trivial).

Why legal theory is important
Legal theory is perhaps one of the most important and underappreciated aspects of legal practice. It is rarely central to law school curricula, and most lawyers will likely tell you that legal theory has absolutely no relevance to their practice. This is probably true for those doing purely transactional (contracts, corporate due diligence etc) work that many lawyers aspire to spend their careers doing.

But for those working in law reform, legal theory is perhaps the single most important knowledge and skill set they will learn. Because legal theory is like the Force in Star Wars. It’s everywhere, but nobody can see it. A lot of people (in old school Star Wars) don’t even believe in it – or think its unimportant. But if you can learn to manipulate it, then you can do some pretty amazing things. Things, which to regular people in Star Wars appear to be impossible.

So it is with the law. Legal theory binds the rules and precedents of law together. It is everywhere in the law, even though legal theory is rarely expressly mentioned in judgments and probably never in legislation or regulation. Because legal theory is what ‘bind the law together’, though, it is incredibly helpful (with its dark-side cousin, ‘public policy’) to explain why longstanding legal rules require change. Or, more relevant to this discussion, how ‘new’ rules of law should be articulated and applied.

Why collective rights theory is important
Collective rights theory is particularly important for indigenous peoples right now. I’m actually shocked that with a large (compared to the past) and rapidly growing number of indigenous legal academics, very few (noone?) is actually doing serious work on this. The UNDRIP itself highlights this importance by explicitly articulating that several indigenous rights have both individual and collective dimensions. ‘Individual’ human rights are well understood, but the notion of collective human rights (or most collective rights) is not clearly understood by many. I’m not sure anyone understands how collective rights interact with individual rights, particularly in the indigenous context. Yet the silence from the Academy remains deafening (you may have already guess, but Jovanovic is not an indigenous legal scholar and did not focus this work on indigenous rights).

A theory of collective rights, which articulates what a collective right is, and how that right interacts with individual rights, would seem to be helpful in a number of other situations (outside those expressly mentioned in the UNDRIP). For example, s. 35(4) of Canada’s Constitution states that s. 35 rights are “guaranteed equally to male and female persons”. This seems to create a tension, within section 35 itself between collective aboriginal and treaty rights of aboriginal “peoples” and the individual rights of male and female “persons”, at least those related to gender equality.

A robust theory of collective rights might also assist indigenous peoples themselves, government negotiators and courts when attempting to determine the interaction of aboriginal title (which apparently includes reserve lands) and individual rights to property (not yet a constitutional right in Canada) – be they those of aboriginal ‘persons’ or non-aboriginal ‘persons’.

Again, the Act to repeal the exemption of the Indian Act from scrutiny under the Canadian Human Rights Act (http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2008_30/page-1.html), which expanded the scope of the CHRA to a range of on-reserve issues, explicitly raises the need to balance “individual rights and interests against collective rights and interests”.

Without some kind of legal theory to explain how such balancing acts should occur, Canadian courts will simply develop a corpus of law based only on the facts of the cases brought before them, in the order they come. This is how the law works, and wouldn’t be a problem, except that it risks unprincipled development of the law. By that I mean it will be difficult, if not impossible, for First Nations, claimants and counsel to predict or determine whether their actions constitute a violation of the Canadian Human Rights Act, for example. This ‘chaos’ is easily avoided if a court can offer a principled vision of law when deciding cases. As much as I’m sure judges love to expound on legal theory and offer principles, its remarkably helpful for lawyers and especially the academy to help them out.

The other risk that unprincipled development of the law raises is the likelihood that a legal resolution which works in one case will create unintended consequences in many others. This is the ‘dark side’ of policy, though unintended consequences are usually explored by legal theorists (as Jovanovic). Courts; however, must decide on the cases in front of them. They cannot simply veer off on an exploration of policy implications (though I believe this happens with alarming frequency in aboriginal rights law and am quite critical of it). But litigants or amici (intervenors) can raise ‘unintended consequences’ arguments which may not influence the outcome of the case before the court, but allow the court to articulate rules which will guide the disposition of future cases.

These are important issues, which actually go to the core of the Crown’s (and probably the Court’s) reluctance to recognize rights of self-determination (or self-government, the two are quite distinct, but we like to jumble the concepts in Canada), aboriginal title, human rights and even treaty rights!

Collective Rights: A(nother) Legal Theory
Without getting into Jovanovic’s construct, I would note that this theory of collective rights follows a long and proud liberal tradition of starting with the individual and working out (Hobbes, Locke and possibly Bentham). I’ve never been a fan of this, and I’m not convinced that one must start with the presumption that individuals hold some rights and then ‘use’ those rights in some way to justify the existence of a collective right. This is despite the fact that this is the best explanation I have seen yet that follows this particular pattern.

If you’re educated in such matters, you may be suspicious of Hobbes and Locke (I don’t know so much about Bentham on indigenous issues) – and I’d say you should be. Why is another story for another day, but no friends of indigenous rights are these.

I think its folly to start with the individual. There are several reasons. But think about what a legal system actually is and how rights actually work. If you are in isolation, you can’t use rights for anything. In fact, I say you don’t have rights. The reason is that a legal system, and by extension rights, are essentially social constructs. By that I mean they can only exist if there is a group. One (The?) major function of a legal system is to provide order. Well, you don’t need order if you are alone, order is only necessary in a social situation.
I go so far as to suggest that rights can only exist where there some kind of a legal system (there are no rights in anarchy) – and I do believe that the international human rights regime is a global legal system – and has been for quite some time (longer than many others, I think).

I suggest it is not the collective right which must be ‘constructed’ from individual rights and interests, but rather it is the other way around! In other words, I say all individual rights and interests are derivative of some collective right or interest. We think of individual freedom and liberty as paramount because, I say, we have been brainwashed to think such things are paramount – they haven’t always been, even in cultures which had otherwise valid legal systems. We like them, indeed we prize them and value them so highly (like “democracy”) because we believe they are necessary to the types of collectives (i.e. governments, legal systems and societies) we prize and value. In fact, such rights are necessary for effective democracies (the flavour of our current century, but we are not far removed from ‘monarchy’ and ‘feudalism’)

And since I work in indigenous rights, I say those collective rights and interests are defined by reference to those indigenous nations which pre-dated European contact, those formed freely after European contact (as nations, confederacies and peoples were legitimately formed or altered in the colonial period, and continue to be today), or those formed freely by Europeans or others (giving rise to ‘states’).

And what do I mean by ‘formed freely’? What constitutes sufficient connection to be termed an indigenous people? Well, that’s a topic for some other time, but I would note these are issues the law of self-determination addresses.

My only claim here is one could construct a theory of collective/individual rights in which individual rights are derivative of collective rights – it doesn’t have to be the other way around.

In closing, I’ll again recommend the book Collective Rights: A Legal Theory, commend those who are already working on development of a legal theory of collective rights, and encourage the indigenous academy to focus on some of these issues in 2013.