Cindy Blackstock, a long-time advocate for aboriginal children in Canada, won a major victory on April 18 when the Federal Court ruled that further scrutiny is needed to determine whether Ottawa is discriminating against First Nations children on reserves by underfunding child welfare services.
The court ordered the Canadian Human Rights Tribunal, which dismissed the original discrimination complaint in 2011, to hold a new hearing on the case before a newly constituted panel of adjudicators.
Blackstock, who serves as the executive director of the First Nations and Family Caring Society (FNFCS), filed the complaint against Ottawa with the Canadian Human Rights Commission in February 2007, together with the Assembly of First Nations (AFN). FNFCS and AFN argued that the services on reserve should be on par with those off reserve, which are funded by the province, but, in fact, are much worse.
The commission referred the case to the tribunal, which rejected it without hearing any arguments on the grounds that to establish discrimination one needed to compare the provision of the same service to two different groups but that in this case, it was not valid to compare services provided by the federal government with those provided by provincial governments.
The commission, FNFCS and AFN all requested a judicial review of the tribunal's decision in Federal Court.
Blackstock, 48, says that throughout the process, Crown lawyers tried to slow down hearings with repeated objections on technical matters. At one point last year, she discovered that Aboriginal Affairs and Northern Development Canada had her under surveillance and was sharing information about her with the Department of Justice. She took her story to the media, and it made national headlines.
The federal government is responsible for funding child and family services on reserves, and Blackstock's complaint contends that it has long neglected that responsibility, but she and her fellow complainants never had a chance to argue that case before the tribunal. In its decision, the Federal Court ordered the tribunal to review the evidence it had initially refused to hear.
The landmark decision could open the door to similar challenges and have a wide-ranging impact on other services that, on reserves, fall under federal jurisdiction, such as education, health and housing.
Blackstock, who is a member of the Gitxsan First Nation in northern B.C., is respected among many aboriginal activists and lawyers for her long campaign to attract national attention to the appalling living conditions of many children on native reserves. Her advocacy work began during her college years, when she worked with aboriginal kids in a group home and started wondering why so many of them were in foster care and looking into the conditions that put them there.
CBC News talked with Blackstock about the Federal Court decision and how it could benefit First Nations children.
What prompted you to launch this case five years ago?
The failure of Canada to implement a solution to address the inequalities that would have then only [cost] less than one per cent of their surplus budget.
What's the impact of the underfunding of child welfare services on reserves?
We have never had more First Nations children in child welfare care than we do at this moment. Our best estimate is that there are more First Nations children in child welfare care today than at the height of residential schools by a factor of three.
'We have never had more First Nations children in child welfare care than we do at this moment.'— Cindy Blackstock, youth advocate
In provinces like Alberta, 65 per cent of all children in child welfare care are First Nation, even though they represent well under 10 per cent of the population. In B.C. it's 53 per cent. So, if you take those two provinces alone, we're talking about 11,000 First Nations children living in foster care. It's shocking.
The reasons why First Nations children go into child welfare care are poverty, poor housing and caregiver substance misuse. The good news is that these are problems we can do something about. The bad news is that the federal government so dramatically underfunds child welfare on reserves that it makes it hard to tackle the problems.
The inequity arises because the provincial/territorial child welfare laws apply on and off reserves in Canada, but the federal government is supposed to fund services on reserves. When the federal government does not do so, or, more often, does to a lesser level, the provinces and territories do not top it up, resulting in a two-tiered service delivery system where First Nations children get less.
A review the government of Canada commissioned found the shortfall of child welfare funding on reserves was about 22 per cent. The auditor general of Canada found that all of the federal government's funding arrangements for on-reserve child welfare were flawed and inequitable.
What is the legal significance of the Federal Court decision?
This is a landmark decision. The federal government was trying to immunize itself from any accountability for discrimination resulting from its legislation, policies and programs for First Nations peoples just as it was patting itself on the back for removing a clause in the Canadian Human Rights Act that previously barred First Nations from filing discrimination claims.
This decision by the Federal Court says that Canada is not above its own laws and discrimination cases, such as this one, involving vulnerable children should be decided on their facts.
Did the housing crisis in Attawapiskat serve as a turning point in national awareness about poverty on reserves, and might it have contributed indirectly to this decision?
I hope Attawapiskat was a turning point. I think many Canadians would agree that if the government cut off power, sewer, safe drinking water and put us all in tents it would not be too long until our ability to care for our children would suffer.
Justice [Anne] MacTavish made her decision on the child welfare case on the basis of the material properly before her, which did not specifically relate to Attawapiskat.
What is the next step? What will it take for the federal government to adequately fund these services?
Our goal is, and always has been, to get culturally based and equitable services for First Nations children and families. The prime minister could do that tomorrow, and this case would no longer be necessary, but, sadly, I expect he will not. This means that we will continue to work with thousands of caring Canadians to continue this case and our peaceful citizenship action to create a social movement that makes this type of racial discrimination against children politically and socially unviable in Canada.
How much money is needed to make services on and off reserve comparable?
The actual amount would need to be recalculated based on today's dollars and experience, but in 2005, a report jointly commissioned by Canada and the Assembly of First Nations pegged the shortfall in First Nations child welfare at 109 million additional dollars per year, excluding Ontario and the territories. If we take into account the other areas of inequality, we could go a long way to eradicating them with a portion of the government's $10 billion underestimate on the fighter jets.
Why did the Human Rights Tribunal initially refuse to hear the arguments in this case?
Because Canada did not want a full hearing on the facts so they continually filed motions to dismiss the case and to delay the case. One should ask Canada why they do not want to have the case decided on the merits — what are they worried about?
There were reports last year that the federal government was monitoring you because of your involvement in this case. What was that all about?
I obtained hundreds of pages of information from Aboriginal Affairs last year showing that they are coming to numerous talks and meetings I am at and sending briefing notes to the Department of Justice and senior Aboriginal Affairs officials. They have also repeatedly accessed my personal Facebook and Twitter accounts and even pulled my Indian Status Registry [information]
, which has the personal details of my grandparents, parents and siblings.
The documents I obtained from the Department of Aboriginal Affairs under the Privacy Act say that the reason they are following me is because they want to find "other motives" for the filing of the First Nations child welfare complaint. There is only one motive: giving children a chance to grow up safely at home, be healthy, go to good schools and be proud of who they are.
The Federal Court has ordered new hearings on your complaint. What will happen at these hearings?
There will be a full hearing on whether or not the Canadian government is discriminating against First Nations children. Canadians should stand on guard, though, because, if past behaviour is any indication, Canada will try to raise new technicalities and delay tactics to avoid being held accountable.
It makes me sad that the Canadian government is fighting against the equality of First Nations children. It makes me wonder what they "stand on guard" for when they sing Oh Canada.
Thankfully, caring Canadians are not in agreement with the government on this and are standing on guard for First Nations children by the thousands, and we are forever grateful.