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Feds wrong on troubled reserve: judge

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OTTAWA -- It was "unreasonable in all circumstances" for the federal government to appoint a third-party manager in response to an unfolding humanitarian crisis in the troubled First Nations community of Attawapiskat, the Federal Court ruled Wednesday.

But there was no political malice at play in the decision on the part of either Prime Minister Stephen Harper or members of his cabinet, the court found.

Sending in Jacques Marion last November to take over the band's finances was the wrong way to address what was a critical housing shortage and worsening crisis on the northern Ontario reserve, the court said .

"The decision to appoint (Marion) did not respond in a reasonable way to the root of the problems at Attawapiskat nor to the remedies available," wrote Federal Court Judge Michael Phelan.

"The (government) invoked a financial management remedy without considering more reasonable, more responsive or less invasive remedies available."

The decision to appoint someone to take over the band's books was made without any indication there was a problem with the way the band was being managed, Phelan wrote.

"It would be inaccurate to suggest that officials were insensitive or uncaring about the situation at Attawapiskat... The problem seems to have been a lack of understanding of the AFN's (Attawapiskat First Nation's) actual needs and an intention on the part of officials to be seen to be doing something."

"The problem in this case does not lie at the feet of the political masters but in the hands of the bureaucracy."

The Conservative government made it clear Wednesday it's unhappy with the ruling, but isn't yet ready to say whether an appeal is in the offing.

The ruling verifies what many experts have already concluded, said constitutional lawyer and University of Ottawa professor Joseph Magnet: The relationship between the federal bureaucracy and some aboriginal communities is seriously flawed.

The James Bay community of 2,000 declared a state of emergency in October 2011 after a severe housing shortage forced more than two dozen families to live in temporary, mouldy shelters, some without insulation or plumbing.

Marion, the third-party manager, was withdrawn in April, with government officials insisting it was because the band had done a good job in improving health and safety conditions.

But the Attawapiskat First Nation persisted in its lawsuit against the government, anxious to get the courts to refute Harper's suggestion the band was mismanaging federal money and to have Marion's appointment declared unlawful.

Magnet urged the government to launch a complete review of living conditions in Attawapiskat and shake things up in Aboriginal Affairs.

"If I were minister, I would be moving in and cleaning up house," he said. "You can't have that kind of a bureaucratic failure and say, 'OK, try to do better next time.' "


-- The Canadian Press

Republished from the Winnipeg Free Press print edition August 2, 2012 A8

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