Canadian Government Lawyers
Buried in government filing cabinets and secret court dossiers are 259 documents that could prove the federal government knew for years it had failed to protect three northern First Nations from hydro-dam flooding and might owe millions in compensation.
A key hearing in the case that's dragged on for nearly 20 years in obscurity is set to begin Monday. That hearing, too, could be shrouded in secrecy.
The Canadian government has asked a Federal Court judge to hold the hearing entirely behind closed doors, beyond the prying eyes of journalists and even some First Nations leaders who might want to get a glimpse of the secret documents.
It's a Kafkaesque situation that has infuriated Grand Rapids Chief Ovide Mercredi and his lawyer.
"They're trying to hide documents so the truth of what happened to us will never be told," said the chief, who plans to fill the courtroom with elders on Monday.
Lawyer Harley Schachter, who has spent years representing Grand Rapids on the labyrinthine case, called it "astounding."
"I have never heard of a situation like this whereby the press and the public could be barred from court proceedings to protect information the government doesn't want to come out."
Crown lawyer Cary Clark said he could not speak about the case without approval from media officials at Indian and Northern Affairs Canada.
An INAC spokesman said Canada's position is that the documents are protected by solicitor-client privilege and can't be shared with First Nations.
In 1992, Grand Rapids First Nation sued Ottawa for failing to stick up for the band, its treaty rights and its right to be properly consulted and represented during the construction of Manitoba Hydro's Grand Rapids dam.
Chemawawin Cree Nation and Opaskwayak Cree Nation also sued for the same reason.
As the trustee and protector of First Nations, Ottawa had a fiduciary duty to the bands and promised to share all its reports and information, according to Grand Rapids' statement of claim.
A 1985 letter to Grand Rapids from then-Indian affairs minister David Crombie promised Ottawa would negotiate a settlement with the band if evidence arose showing Ottawa failed to meet its legal obligations.
The First Nations say that's exactly the evidence Canada is now trying to keep secret.
A little more than a year ago, Canada sought to have 259 documents -- ministerial briefing notes, internal correspondence and legal opinions -- declared off-limits and kept confidential from the public and the First Nations forever.
The documents describe Ottawa's position in the 1980s regarding its role in getting the dam built and its obligations to the First Nations.
Because of an interim court order that bars any disclosure or discussion of the potentially damning documents, Schachter couldn't offer any more detail about the files.
He would only say they would help the First Nations prove that Ottawa knew for years it was liable for some of the damages caused by the dam.
He said the documents will show that Ottawa's internal discussions were at odds with repeated public claims that it bore no fault and was pursuing a "close relationship" based on co-operation with the First Nations.
The federal government gave 96 of the 259 documents to the First Nations on at least three occasions over the years as the case plodded along.
It's absurd to argue they should now be kept confidential, Schachter said.
Canada is asking the bands to return the documents and may even ask that Schachter resign from the case because he has seen too much.
The lawyer said the Canadian government is also arguing its officials hadn't actually read the documents before handing them over to him years ago.
"I don't think Canada is that stupid," he scoffed. "I give their lawyers more credit than that."
If the judge sides with the band, the federal government could owe Grand Rapids and the two other First Nations tens of millions of dollars in compensation.
maryagnes.welch@freepress.mb.ca
The dispute
The bands: Grand Rapids is the main one suing, but Opaskwayak Cree Nation and Chemawawin Cree Nation have filed similar lawsuits that hinge on the progress of the Grand Rapids suit.
The case: It was filed in 1992, but has dragged on incessantly, producing thousands of court files, orders, affidavits, exhibits and documents housed in the Federal Court on Broadway. Delays were caused by attempts at negotiation, changes of council, a fight to get the claim amended and the recent procedural mess over secret documents.
The claim: When the Grand Rapids dam opened in the mid-1960s, thousands of acres were flooded or altered, sacred burial grounds were deluged, fish stocks and fur-bearing animals disappeared, incomes fell, political autonomy and self-sufficiency were lost and poverty and alcoholism took hold. The federal government knew or ought to have known about that devastation, but failed to protect the First Nations.
Ottawa's defence: It fulfilled all its obligations to the First Nations when the dam was built. The First Nations agreed to give up their reserve land and were properly compensated.
Republished from the Winnipeg Free Press print edition March 4, 2010 A3
What is the cause of the current controversy at Rights and Democracy? There is no doubt that there is a dispute. But what is the subject matter of the dispute? There is an argument to be made that the present dispute has a whole lot do with the nature of the institution, that what we are seeing is the eruption into broad daylight of hidden but inherent contradictions embedded within the structure and mission of the organization.Rights and Democracy was established to give grants to third world NGOS which would promote rights and democracy. It was set up at arm’s length from government in order to avoid giving the impression of political interference in foreign countries which direct Canadian government granting to foreign NGOs might give.
Since the enactment of the legislation creating Rights and Democracy, there has been an evolution in the way human rights NGOS are viewed. The various NGO-led revolutions in dictatorial countries have taught perpetrators a lesson.
The October 2000 revolution in Serbia, the 2003 Rose Revolution in Georgia, the 2004 Orange Revolution in Ukraine, the 2005 Tulip Revolution in the Krygyz Republic, the 2005 Cedar Revolution in Lebanon—in all of which foreign-financed NGOs participated—have led perpetrators to be wary of this financing. The notion that Canada might be seen to be independent of NGOs it finances through an arm’s length organization has become illusory in light of the heightened suspicion of that sort of funding.
Funding of these NGOs with moneys originating from the Government of Canada remains worthwhile. But, the political objective of appearance of non-interference is no longer attainable through a structure like Rights and Democracy.
One could question the mission of Rights and Democracy as devised by Parliament, even if the organization stayed within the statutory vision. But it has not. And its straying, rather than correcting the problems the statutory vision now poses, has made the working of the organization even more problematic.
The staff and management of Rights and Democracy have all but abandoned the original Parliamentary intent to “carry out its activities through existing organizations, institutions and agencies.” Canadian law requires a charitable foundation to spend 4 ½ percent of its investment assets and 80 percent of receipted gifts in the previous year on grants to qualified donees. Rights and Democracy does not spend anywhere near 80 percent of its funds on existing organizations, institutions, and agencies.
There are, to be sure, NGOs to whom Rights and Democracy money goes. But, none of this is simply the awarding of grants amongst applications. All spending today by Rights and Democracy on NGOs results from elicited requests. The organization devises a program and finds NGO contractors to deliver it. NGOs that receive grants today from Rights and Democracy are doing what Rights and Democracy wants, on contract.
The original vision was that the third world NGOs which received grants from Rights and Democracy should be independent from the Government of Canada. This has been perverted into a notion that the staff of Rights and Democracy should be independent from its Board. Yet, independence of the staff from the Board violates the statute of the institution which vests authority in the Board over the conduct and management of the affairs of Rights and Democracy.
As well, independence of the staff from the Board makes no sense. The Government of Canada should indeed take the NGO world as it finds it and not try to manipulate it through money.
But that is different from saying that a government-appointed Board should leave the staff of a government-devised and wholly financed creature to do whatever it wants. It is, on the contrary, bizarre to suggest that the Government of Canada should fully fund an institution to hire people off the street to run their own political agenda in the name of human rights, without its appointed Board raising so much as a peep.
The staff and the Board have been two slowly moving trains facing each other on the same track. At some point a collision was inevitable. The Board, well aware of the politicization of elements of the human rights NGO movement which the 2001 Durban NGO World Forum on Racism had highlighted, was determined to prevent Rights and Democracy from being complicit in it. The staff, moving in the opposite direction, morphed the Parliamentary vision of third world NGOs acting independently from the Canadian government which funded them, into a vision of staff acting independently from their own board of directors.
Where does this leave Rights and Democracy? If this were just a matter of hot tempers, tempers could cool; time would heal. If this were just a matter of some misspoken words, apologies might remedy the rudeness.
However, if the problem lies with Rights and Democracy itself, then resolution of the problem is not so simple. Independence of a government-created and fully financed operation from a government-appointed board makes no sense. But once the institution does nothing but run its own program, once the government finances the operation entirely and directs it through its board appointees, why should it exist at all? Why should it not just be folded into a government department? Does Rights and Democracy as it has become serve any purpose whatsoever, aside from delivering non-controversial programs which could be delivered in a myriad of different ways?
A crisis situation, where people are angry and upset, is no time to answer these questions. They should be put off for another day. We do not have to decide today what is to become of Rights and Democracy. But unless we have identified correctly the problem which Rights and Democracy now faces, we cannot hope for a solution.
David Matas is an international human rights lawyer based in Winnipeg, Manitoba. He was appointed to the Board of Rights and Democracy in November 2009.
