Masthead graphic based on a painting by Gudrun Thriemer.

Monday, April 23, 2007

"When government interests conflict," April 23, 2007.

Last week, I concluded World Report by asking three questions. When Canada sends police advisors to Afghanistan in the spirit of exporting a Canadian values like the rule of law, what exactly do they teach about the handling of complaints against the police? What do they disclose about the use of official secrecy and the pretext of national security to cover up their own mistakes and wrong-doing? What informalities do they teach—perhaps unintentionally--about the risks and rewards of racism?

This week, I want to begin by acknowledging that the issue of police investigating themselves is a small, but critical, part of a much larger issue in the rule of law: conflict of interest.

Last week was not so much about Kyle Snyder as it was about the rule of law and the need for impartial third party adjudication of disputes. I emphasize in particular that impartiality is difficulty to achieve.

This week my focus turns to conflict of interest as it relates to what has been called “the oldest and deepest human rights issue in the Americas”--the historic failure to recognize either the humanity or the rights of First Nations peoples (Hall 263).

I hope that within a week or two it will become clear how these separate themes—rule of law, impartial arbitration, conflict of interest, the choosing of adjudicators, and so on—converge on a single point when I review some of the opinions out there not only about the case of Kyle Snyder and the current generation of American military refusers, but also refusers from other times and places and several other key issues which have in common that they cannot be fairly adjudicated within the sovereign internal confines of any single nation state—like Canada or the US.

Let's begin with the people and their issue. It so happens that this week, 150 protesters from the Tyendinaga First Nation rolled a schoolbus across the railroad tracks in Deseronto, 15 km east of Belleville, Ontario. Their plan was to create a 48-hour economic disruption in protest against the very slow progress of negotiations between the band and the Ontario government over what is known as the Culbertson Land Tract.

The Culbertson is a 923-acre tract of land that runs along the eastern boundary of the Tyendinaga reserve. In 1837 the Federal Government changed its status from Indian land to white land.

It is helpful to remember that there are agreements between the Mohawk Nation and the Crown that predate the existence of Canada. In addition, there is a document known as the Royal Proclamation of 1763 which is identified in the Canadian Constitution Act of 1982 as the foundation on the British side of all legal dealings between the Crown and the pre-existing aboriginal nations including those of Indian Country in the west. Even then, 20 years before George Washington became president of the United States, the Proclamation of 1763 tried to prevent what it called “great frauds and abuses” when European settlers purchased land from the Indians.

While the Mohawk Chiefs immediately registered their people’s dissent in
1837 when the land was taken, no formal legal process existed to pursue its return. Despite a fundamental obligation to uphold previous agreements between the Mohawks and the crown, the Federal Government only created such a process in 1991.

The Tyendinaga filed a formal claim for the land with the Federal Government in 1995. The claim seeks the restoration of lands to the Tyendinaga Mohawk Territory.

In November 2003, the Tyendinaga received a letter from the Federal Government apparently acknowledging that the Culbertson Tract was never surrendered and is Mohawk Land.

Strictly speaking, the flaring up of the Culbertson Tract issue last week when I was preparing to link conflict of interest in issues of military refusal with conflict of interest in the protection of aboriginal rights was a gift of synchronicity. It could have been something with the youth group organizing around the Sun Peaks issue or a renewal of the Grand River issue in Caledonia or something else entirely. There is always something.

Indian Country in Canada is a country within a country. It has its own television network (APTN=Aboriginal Peoples Television Network), radio programming, journalism, art, music, dance and of course a rich and diverse political life that we rarely hear about unless something goes wrong in a big way.

As people lucky enough to live in a country with aboriginal peoples, we get to learn about concepts that may never cross the path of a person living in say France or Kazakhstan or even Afghanistan—like fiduciary.

I never tire of telling about fiduciary responsibility. It sounds like a kinky sexual contradiction, but it's really a special legal relationship.

Canadians who know the word are most likely familiar with the fiduciary duty that corporations have toward their shareholders, that is to say corporations are required to protect shareholders' interests above say the interests of their customers. The customer may always be right, but the shareholders have a special relation of trust which the corporation must protect.

When a fiduciary duty is imposed, equity law requires a stricter standard of behaviour than the comparable duty of care under common law. It is said the fiduciary has a duty not to be in a situation where personal interests and fiduciary duty conflict, also a duty not to be in a situation where their fiduciary duty conflicts with another fiduciary duty, and finally a duty not to profit from their fiduciary position without express knowledge and consent. Generally and in detail, a fiduciary cannot have a conflict of interest. It has been said that fiduciaries must conduct themselves "at a level higher than that trodden by the crowd." (Wikipedia) And so it is for the government in its relation to the First Nations.

According to Rolland Pangowish, who directs the Assembly of First Nations Land Rights Unit and co-chairs the Joint First Nations-Canada Task Force on Specific Claims Policy Reform, the Crown's outstanding fiduciary obligations relate to "trust-like responsibilities the Crown unilaterally assumed when it imposed its Indian Act and other laws on First Nations, despite its treaty relationships with most of these First Nations" (Pangowish Letter Apr 26 06).

"...the Crown is expected to protect the interests of Indian bands from unjust deals. The court has sometimes said no sharp dealing should be tolerated.

Pangowish says "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 Canadas 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).

Pangowish points out that "Canadas Bill C-6, the Specific Claims Resolution Act, sits on the books unimplemented because .... The Liberal Government... could not bring itself to eliminate the conflict of interest in handling legal claims against itself....”

Since a heightened requirement to eliminate conflict of interest is obviously a crucial part of the fiduciary relationship, let's have a closer look.

A conflict of interest is a situation in which person or institution in a position of trust has competing professional or personal, economic or political interests. Competing interests can make it difficult to fulfill one's duty to be impartial. The existence of a conflict of interest is not, in and of itself, evidence of wrongdoing. However, even if there is no wrongdoing, a conflict of interest can undermine confidence in the ability of that person or institution to act ethically, effectively and especially impartially and objectively.

Canadian political scientists Ken Kernaghan and John Langford in their book, The Responsible Public Servant consider seven commmon conficts of interest: self-dealing, accepting benefits, influence peddling, using your employer's property for your own advantage, using confidential information inappropriately, outside employment, and post-employment.

Often a financial interest or a family interest may conflict with an individual's professional duty. For instance, if you have the opportunity to exploit your job in government to get contracts for a private consulting company you own then you have a conflict of interest. Another instance is using your government position to get a summer job for your daughter.

Conflict of interest can lead to corruption.

Trust is at the heart of the conflict of interest issue as it is also the defining characteristic of the fiduciary relationship.

According to Michael Macdonald of the W. Maurice Young Centre for Applied Ethics at UBC,

"Conflicts of interest involve the abuse, actual or potential, of the trust people have in professionals. This is why conflicts of interest not only injure particular clients and employers, but they also damage the whole profession by reducing the trust people generally have in professionals."

Macdonald suggests two solutions: "Often if we let others know what might be influencing our judgment, they can be on their guard and not caught unaware.

"But sometimes it isn't enough to know that there is a particular private interest influencing a professional's judgment; the client, employer, etc. expects that the professional will stay out of such situations." So that's the second solution: withdraw from the situation in which you cannot fulfill your duty to act impartially.

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