Masthead graphic based on a painting by Gudrun Thriemer.

Monday, April 30, 2007

"Institutionalized conflicting government interests," April 30, 2007.

Two weeks ago, the departure of American deserter and war objector Kyle Snyder from Nelson provoked me to reflect that the mediation of disputes by an independent third party is indispensible to the rule of law.

A group of concerned citizens had objected among other things to police secrecy about the use of an anonymous tip as the initiating factor in their investigation of Snyder. Were there irregularities in Snyder's immigration application? Or were authorities responding to a request by the American military to extradite him for desertion?

Naturally enough, the concerned citizens responded to the swirl of vagueness and speculation by calling for an investigation. Sensing controversy, Nelson Police Chief Dan Maluta, took what he called “a leap further” and asked his colleague, the Abbotsford Chief of Police, to do the investigation. Since then, the Abbotsford Chief has had the good sense to take another leap.

Perhaps entertaining thoughts about conflict of interest, he has declined to do the investigation himself and has assigned it instead to one of his subordinates. This latest “leap” really amounts to a very small step toward acknowledging an irreconcilable flaw in the system but does nothing to address the issue as it has been framed in the public discourse.

The issue, stated positively, is that complaints against the police should be investigated by an agency that is independent of the police and not by the police themselves. Having the right hand investigate the left is a game of illusions that does nothing but arouse further suspicions. Impartial third-party adjudication is crucial if justice is truly to be served.

It seems obvious enough. In its article on “Conflict of Interest” the Wikipedia Encyclopedia's first example is self-regulation.

Self-policing of any group is also a conflict of interest. If any organization, such as a corporation or government bureaucracy, is asked to eliminate unethical behavior within their own group, it may be in their interest in the short run to eliminate the appearance of unethical behavior, rather than the behavior itself, by keeping any ethical breaches hidden, instead of exposing and correcting them. An exception occurs when the ethical breach is already known by the public. In that case, it could be in the group's interest to end the ethical problem to which the public has knowledge, but keep remaining breaches hidden.

So why have the police, including one who is also a lawyer and a teacher of law, been so slow on the uptake about this? There is at least one good reason. Traditionally, conflict of interest resides in individuals, not collectives. Last week I gave two examples.

In the first, you may use your government position to get a summer job for your daughter. This time there is only one collective—the government—but the individual parent is the one with the conflict of interest.

In the second example, if you have the opportunity to exploit your job in government to get contracts for a private consulting company which you own, then you have a conflict of interest. Although there are two collectives involved here—the government and the private consulting company—it's still the individual who has the conflict of interest.

In the case of the objection to police investigating—and sometimes even resolving—complaints against the themselves, no individual is named in this description. Although the complaint is likely regarding actions taken by individuals and the investigation will be done by one or more individuals acting on behalf of the police, the conflict of interest is institutional. It is the police organization as a whole that contains the conflict.

Organizations often do embrace conflicting interests, some more than others. In the early days, for example, the local Mountie might have been the only representative of the Crown for many days' travel, so he did marriages and funerals (like a ship's captain), he was the judge, the jury, the prosecutor, and the defence attorney. There was no room in this comprehensive brew of duties to worry about conflict of interest. Conflict of interest became an integral part of the RCMP's treasured history.

But in the case of the police investigating complaints against themselves, the conflict has been factually demonstrated produce outcomes that are “erroneous,” “flawed,” and “unsatisfactory” twenty per cent of time. If the complainant is not willing to accept those odds, then what?

The idea that conflict of interest may be institutional is not just a burr under my own personal saddle. Canadian historian Anthony J Hall who teaches Globalization Studies at the University of Lethbridge has called for “innovation at the international move beyond the present system of institutionalized conflict of interest that has developed ever since Indigenous peoples all over the planet were trapped and enclosed in small reserves of domestic law not of their own making.”

In Hall's view, domestic courts have no basis in Aboriginal law, but are “exclusively rooted in a constitutional heritage that, in the case of Canada, for instance, draws all its legitimacy from the authority of the sovereign crown that established the framework for the colonization of the country....[This heritage] reserves no role at all for Aboriginal governments in the choosing of judges.”

Moreover, these judges, who are appointed by federal and provincial politicians
come up through a system of legal education and legal practice that does not require them to develop any expertise in the Crown's tradition of making laws for Indigenous peoples, let alone in Indigenous peoples' own heritage of making, interpreting, implementing, and enforcing laws for their own self-governance.

The status of lawyers and judges as officers of the court and of the crown clarifies their own conflict of interest in any dispute involving arbitration over assertions testing different interpretations of where crown jurisdiction ends and Aboriginal jurisdiction begins. As institutions with deep roots in the colonization of Indian Country, the domestic courts are not presently constituted to act neutrally and disinterestedly as directing agents in the process of decolonizing the First Nations or as final arbiters in determining the extent of Aboriginal rights and titles to lands, resources, and self-governance” (42-43).

If you heard last week's World Report, you may remember that my thoughts turned immediately to the Mohawk protesters of the Tyendinaga First Nation who had blocked the CN tracks in Deseronto, Ontario and to a discussion of the Federal Government's “fiduciary duty.” That discussion is still available at the website as an mp3 and as a text file with links to more detailed information in case you have questions—that's cjly dot net slash worldreport. Worldreport is all one word and the slash is a forward slash. Cjly dot net slash worldreport.

The long and the short of it is that in 1857, when the Crown imposed the original Indian Act called the “Act for the Gradual Civilization of the Indian Tribes in Canada,” it took up trust-like or fiduciary responsibilities that effectively turned First Nations people into wards of the colonial authority. This fiduciary duty is especially sensitive to conflict of interest.

Last year during a similar crisis in Caledonia, Ontario, Rolland Pangowish of the Wikwemikong Unceded Indian Reserve spoke of the “trust-like” responsibilities of the federal government and concluded

"Time and again it is proven that federal officials did not secure the interests of Indians, in a myriad of reserve land surrenders across Canada. The building of Canada's railways brought about a number of classic cases, where Crown officials and politicians colluded with developers to swindle First Nations out of reserve lands without adequate compensation" (Pangowish Letter Ipr 26 06).

Lorne Gunter of the National Post responded to the Deseronto action saying that "Politicians and police commanders afraid of an ugly scene are prepared to tolerate native protests they would never permit from non-natives" (Apr 21 07). For Gunter, this amounts to a double standard. In the absence of better information, he creates a fairy tale according to which "for politicians, the rule of law is trumped by political correctness and the cult of victimhood."

This kind of dispute is inevitable when the government's own interests conflict with themselves.

Like so many perpetual motion machines, this fiduciary arrangement can be made to look on paper--or in the hot air of public debate--to seem like a practical possibility. But like the nuclear hand grenade, it is at best an inherently bad idea, an infernal gadget you can never throw far enough to avoid the inevitable consequence of vaporizing at least yourself and anyone standing with you.

At worst, it's a fraud, a kind of political snake oil perpetrated not just on the First Nations, but on all of us. As Marlon Brando used to say during the fish-ins in Washington state, racial oppression dehumanizes the perpetrators as well as the victims. We are learning that the hard way in Afhanistan. The Indian Act isn't broken. It's difficult to make a case that it has ever worked.

It is past time to let go of the civilizing mission, the silly pretense that European immigrants are the civilized ones. Possibly more to the point, it is important to remember that in Canada, many First Nations have long seen themselves as allies of the Crown, not subjects.

Yet even today, after a major revision of the Indian Act in 1951 that reversed the prohibition on Indian dancing, on the Potlatch, and on raising money to pursue an Aboriginal claim, Native women living on reserves have fewer rights than women in most countries. According to an article published in Straight Goods on April 16, 2007, First Nations women are often forced to leave their homes, and even their communities, if their marriages fail.

This is not because of some quaint aboriginal custom, but because provincial laws govern how matrimonial property is divided when death or marital separation occur. Reserves, however, are governed by the federal Indian Act, which means that provincial community property laws do not apply. And the Indian Act has no provisions for equal division of property and other assets when a marriage ends on a reserve.

That's the rule of law under the watchful eye of institutionalized conflicting interests--in this case, the provincial and federal governments.

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