INAC must provide documentation of exclusive deal; must also prove Duty to Consult

Indian and Northern Affairs Canada (INAC) has been stopped in their tracks in their efforts to divert Aboriginal funds to favoured non-Aboriginal banking institutions – at least until they come up with proof that they fulfilled their Duty to Consult with First Nations Organizations.

Alan Park, Chief Executive Officer of TWCC, said the Order represents a major victory for TWCC and all 57 Aboriginal Financial Institutions (AFIs) operating in First Nations, Métis and Inuit communities across Canada.

“We are particularly gratified that the Court is demanding the government produce documents that show Aboriginal organizations were consulted. We believe this is required under Section 35 of the Constitution Act.”

This will be a sticking point for INAC as all indications are that no such consultations ever took place.

The Federal government (and other provincial governmental bodies) appear to demonstrate a standard policy of ignoring and/or consciously violating the “Duty to Consult” requirement. The most egregious transgressor of this policy is INAC, supposedly charged with facilitating federal aboriginal affairs, positioning itself as the agent most closely associated with opposing the social, cultural, and economic growth and independence of Canada’s First Peoples. By excluding Aboriginal Financial Institutions, INAC is saying that Aboriginals are indeed second class, that they must remain under the yoke of non-aboriginal domination. This is despite the fact that aboriginal economics is outstripping and out producing the mainstream marketplace.
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Sole-sourcing, or ACAN procurements by INAC and other federal departments are and should be a major concern of Aboriginal peoples and organizations, particularly as it is being implemented by the Harper government. As stated in the last blog article, the preferential means of selecting and awarding Aboriginal funds to non-aboriginal recipients is inappropriate and violates the Federal governments a variety of own policies.

The major concern should be that Aboriginal policy and decision-making is being outsourced to private non-aboriginal interests. Aboriginals are not only being denied competitive participation in such matters but that they are being cut out of the INAC process entirely by sole-source procedures. This has to be addressed immediately. Native peoples for whom the INAC policies are designed must take a more active stance in how such monies are being used.

What could possibly go wrong?

You could say that $25,000 is not a lot of money but the issue may not be that simple. Theoretically, a $25,000 contract may only be the tip of the iceberg in a broader scheme. With a clever rewrite, a related ACAN can be generated to piggyback off the existing one. The same sole-source can then be selected for the next contract, especially if the previous one was never challenged. To take it a step further, larger contracts could also be created down the line in which the original sole-source grantee would then be the most qualified competitor as the result of the gateway ACAN. This stepping-stone arrangement could potentially lead to hundreds of thousands or even millions in government contracts, if inside influences are exploited.

In fact there have been complaints recently of similar abuses of the system. CTV.ca (1) has reported that four sole-source contracts, each worth $21,000 but renewable for up to $84,000 for three additional years, were posted on a contracting website last September. The first term runs until Nov. 9 this year. So the $25,000 limit can be easily circumvented at the whim of the government. Spokeswoman Annie Trepanier said in an email that Public Service Commission no rules were broken. “The PSC has met all the contracting requirements of the government of Canada,” That is open to interpretation but it is evident that the government shows no hesitation in bending, twisting, and otherwise abusing the policies in place.

The CTV report goes on to demonstrate another abuse of the ACAN mechanism, the claim that recipients of the contracts are the only ones capable of performing the job described. In a blatant misrepresentation of this each posting said there would be no job competition because “only one person is capable of performing the work” — even though the job description was identical in all four cases and four different candidates were awarded the jobs.

So to summarize, a total of at least $336,000 in contracts is divided up among four preferred providers in an uncompetitive manner under the ACAN procedure that has been clearly violated.
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