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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A story on the CBC website recounts the manner in which the Federal Government departments do not initially observe the property rights of a First Nations man and as a result leaves its operations compromised. See: DFO sockeye count hindered by building occupation, CBC, August 11, 2010

The hero in this tale is the man who stood up for his rights and forced the government to respect his claim. While the story starts out as a man “occupying” the site in question, it later turns out that it is the man’s land being occupied by the Department of Fisheries and Oceans Canada (DFO). This is apparent by the stance of Chief David Luggi of the Carrier-Sekani band stating “Well it’s his land, his property. He has every right to do so [occupy the building] and he’s exercising that right.”

Who Messed Up?

It seems that the land upon which DFO placed a building was on the land they leased from the province of BC but actually belongs to Carrier-Sekani. Had the federal government done even basic due diligence, this would have become apparent and negotiations with the proper people would have initially taken place. Unfortunately there still seems to exist the assumption among non-aboriginal interests that First Nations don’t really have ownership rights, or if they do, these can be ignored.

The result is that DFO now has to limit its operations for the year as it can’t use the building in question. Further it is necessary that DFO and the federal government reach a settlement with the owner.

It doesn’t do any good for DFO to complain and blame the owner for the loss of productivity as this was a result of their own mistake.

The lesson from all of this is for First Nations people be diligent in monitoring their property and rights and to act decisively in asserting them.

Once more, The Federal government is selectively excluding Aboriginals from economic opportunities on aboriginal projects.

A case in point is the suspicious manner in which a contract is being directed preferentially to a recently retired employee and ineligible service provider, Radek Banderzierz, formerly of Indian and Northern Affairs Canada (Aboriginal Business Canada).
(See APTN Video Interview with Grand Chief Morris Shannacappo)

According to government policy Mr. Banderzierz is presently prohibited from receiving such contracts, much less a preferred status in the contracting process. Banderzierz retired October 1/2009 and government policy states such a person cannot be involved with any government business for at least 1 year. This would disqualify Banderzierz’s company, 1818872 Ontario Limited, incorporated on March 2, 2010 from even being considered for the contract.

As Banderzierz held a senior position within the department there is no excuse for being unaware of this restriction. Similarly, the current employees must have encountered this information in its due diligence. The only conclusion then is that either the participants in this contract are either incompetent, or they were actively accelerating procedures in a less than open and honest manner to guarantee that Banderzierz’s company benefited.

Banderzierz has established a numbered company in order to obtain an exclusive contract by having INAC issue it under the Advance Contract Award Notice (ACAN). This effectively shuts out other service providers, and in particular qualified and respected Aboriginal service providers. Numbered companies often referred to as “shell” companies make the true ownership less apparent. One has to wonder if the use of a numbered company was an attempt to circumvent regulations in light of Banderzierz’s current ineligibility for the contract.
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Vic Toews, who was President of the Treasury Board at the time of First Nations/Kapyong Barracks ruling, now hopes to redact history and falsely blame First Nations for the lack of progress on negotiations and development. In an effort to manipulate the social protest group, Raging Grannies, on June 21, 2010 (1) he deflects government responsibility by stating “Maybe the Raging Grannies should go talk to the lawyer for the First Nations,”

Even though The Raging Grannies don’t really have a dog in this hunt, the question of why the land continues to remain dormant does have merit – in regard to the rights of First Nations people.

“Highly respected judge Douglas Campbell, who has a solid track record of well-reasoned court rulings, completely rejected any and all arguments by the federal government that First Nations did not have entitlement and a right to be consulted concerning the development of the Kapyong Barracks.” (2)

Toews has now taken the opportunity to falsely target First Nations for the governments own delaying tactics, which can only foment a further increase in public anti-aboriginal sentiment. Using political smoke and mirrors he fails to be truthful and admit that he was actually the one blocking any efforts to bring the situation to the negotiation table.
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Things are improving for aboriginal peoples through their own political will and organizational abilities but there is still a long way to go. Basic issues such as adequate and cost-effective access to food and water services are being taken more seriously only because the people are making their voices, socio-economic interests, and when necessary, their votes well known.

Northern Shipping

In the article of May 19, 2010 (Serving the True North – The North West Company Should Not Be Involved) it was argued that the North West Company should not take a principal role in replacing the Canada Post Food Mail Program privatization through that company would only serve to narrow public options and increase costs. A recent article on page 9 of Grassroots News, June 1, 2010 (1) indicates that although INAC officials presently indicate that they are still reviewing, sufficient backlash and demand that First Nations be involved in the review and consultations. An announcement is to be issued by INAC but unconfirmed rumours are that 1) INAC itself will take over administration of the Program and 2) Northern Stores will not be involved in the program in Manitoba. Hopefully, North West Company/Northern Stores will not be a factor in the future of the program and there will be a real chance to bring consumer costs of essential foods in line with the economy of the communities.

However we await the official announcement to find out if the program will truly serve the peoples involved.

Clean Water

In a second article in Grassroots News (June 1, 2010, p.1), the Water and Wastewater issue has taken another step forward as the federal government is putting some numbers to their plans That I mentioned in the article of June 2, 2010, (Water, But No Bucket: Bill S-11)
The Conservatives also announced a two-year extension of the First Nations Water and Wastewater Action Plan, at a cost of $330 million (1). There still remain gaps in the proposal, such as what the full costs would be to bring the plan to national standards. Still, it does indicate that there may at least something positive towards priming the pumps of better wastewater management and clean water access.

References
(1) Grassroots News June 1, 2010, http://www.grassrootsnewsmb.com/, download PDF
(2) Canada to improve drinking water in First Nation communities, by K.J. Mullins Digital Journal, June 7, 2010 http://www.digitaljournal.com/article/293078