The struggle continues, for the kids

On October 1, reports surfaced that the government of Canada has spent $3.1 million attempting to prevent the First Nations Child and Family Caring Society (FNCFCS) and the Assembly of First Nations (AFN) from bringing the issue of Aboriginal child welfare underfunding before the Canadian Human Rights Tribunal.

Child welfare services in Aboriginal communities are managed by the federal government, unlike in non-Aboriginal communities, where they are under provincial jurisdiction. Under federal discretion, Aboriginal children receive 22% less funding than non-Aboriginal children receive from the provinces. The suit by the FNCFCS and the AFN seeks to address this gap; in 2007, the two organizations attempted to launch a human-rights challenge over it.

Since that time, the Justice Department, supporting the Department of Aboriginal Affairs, has spent $3.1 million in legal fees attempting to derail the case with technicalities and to convince judges that the issue shouldn’t be decided in court. In April, a Federal Court judge disagreed, directing the case to the Human Rights hearing that the FNCFCS and the AFN hoped for in the first place. Meanwhile, on October 9, the United Nations committee on the rights of the child released its report on Canada’s treatment of young people, which found that Aboriginal youths were not being treated equally, particularly in the area of child welfare.

The Nation spoke with FNCFCS director Cindy Blackstock from her office in Ottawa.

The Nation: If I’m not mistaken, the tribunal is sitting already?

Cindy Blackstock: It is. There have been so many efforts by Canada to derail this. We were originally set for full hearings on the merits in 2009, and then Canada brought a motion to dismiss on a legal technicality. That set us back close to three years. We had to go to Federal Court and get that ruling overturned – that was made by the [Stephen Harper-appointed] tribunal chair, Shirish Chotalia, who’s no longer at the tribunal.

TN: She was a very controversial person. There were allegations about her mistreating her subordinates.

CB: Certainly, in our case, the Federal Court found her ruling to be unfair, because she took into account 8,000 pages of material that wasn’t put properly before her, including a report filed by the government two months after the hearing took place. And yes, there were public reports that she was found responsible for harassing her staff by an independent labour investigator who, in his report, characterizes her management style as “bizarre and baffling”. She was the chair of the tribunal and still remains so, but she went on stress leave two days after the Federal Court ruling in our case came down. She has not returned to the tribunal since that time.

TN: I remember hearing about that at the time and thinking it was suspicious.

CB: Any time you have someone who’s in a position to stand as a role model for all people in terms of upholding human rights, and these types of allegations come forward and are found to be true by an independent investigator, that’s a concern. In our case, we were very concerned about her original ruling and management of the case, particularly because it had an impact on kids.

One of the things I’m very aware of is that there’s a desperate need to ensure equity for children right now. The first 2,000 days of a child’s life are the most critical in terms of their development. We’ve been at this case now for five years. We’re pretty much at that 2,000-day mark, but we’ve been set back because of the technicalities the government is using to avoid a full and proper hearing on the facts. The ones paying the price, unfortunately, are children, and that’s completely unacceptable.

TN: Why do you think the federal government is holding this up so much?

CB: I can only think they have something to hide, and that something to hide is that there is overwhelming evidence they are in fact discriminating against First Nations children by underfunding child welfare. We need only look to the 9th of this month, when the UN Committee on the Rights of the Child released its Concluding Observations. In section 32, they make an explicit comment that child-welfare funding is inequitable.

So every independent body that’s looked at this, from the Auditor General to the Standing Committee on Public Accounts to Canada’s own documents, suggests that there’s inequality there. And I don’t think [the federal government of Canada wants] the Canadian public to know that. They want to sweep these things under the rug – it’s the only logical argument I can come up with.

If it was me – if someone said I was discriminating against kids, and that was untrue, I would be racing to have a hearing on the merits. Put all the facts on the record—if you have nothing to hide, do it! But this government has spent millions of dollars to avoid just that. Couple that with the efforts to keep APTN [the Aboriginal Peoples’ Television Network] from broadcasting [the tribunal hearings], and it doesn’t look like an accountable, transparent government.

TN: What’s the story behind the APTN broadcasting the hearings?

CB: Back in 2009, when the hearings were originally scheduled to go ahead, APTN had filed an application to broadcast them. We were for it, of course. We believe in the public’s right to know, and in public accountability. But Canada objected. We filed 17 affidavits – from Elders, young people, Chiefs – in support of the broadcasting. Canada filed one affidavit with the tribunal chair. It was a legal clerk who spoke to a lawyer who spoke to an unnamed witness, a public servant, who said they were worried that what they said might damage relationships with First Nations. On the strength of that one affidavit, the same tribunal chair, Shirish Chotalia, overruled and said there would be no broadcasting. APTN then took that to Federal Court and won, so since the case has now been referred back to the tribunal, the tribunal has said that yes, broadcasting would be allowed.

TN: Do you think the desire to keep this information under wraps is motivated by fiscal conservatism? Is it motivated by racism? Do you have any idea what motivates them to fight so hard against these hearings?

CB: The only reference I have is in the Access to Information documents: they’re concerned that this would set a precedent of equity across all services. To me, that’s not a concern: that’s something we should all be expecting as a bottom line. When it comes to political conservatism, I haven’t met one Canadian yet who believes that racial discrimination against children is a legitimate fiscal restraint measure. That’s why this case strikes to the core of what Canada’s about. If we think we’re going to save funds as taxpayers by racially discriminating against children, then let’s put it out there and own it. But they’re fighting for the right to continue those practices and they don’t want Canadians to find out about it, in my view.

TN: Already this year we’ve seen the Federal Court ruling on the situation at Attawapiskat.

CB: The Federal Court found that there was no reason to send in the third-party manager. And one of the things the Federal Court raises in its decision was – I don’t know the precise wording of it, but something to the effect that, “It’s very worrying to the court how little documentation the federal government had about how this decision was made.”

TN: In previous interviews, I’ve heard you talk about the history of the federal government using financial auditing as a means of punishing communities that brought issues like this to the fore.

CB: Before the Caring Society was around, First Nations agencies reported getting cuts, or found their program applications weren’t approved, if they were to raise concerns with the Department [of Aboriginal Affairs and Northern Development]. Certainly, that concern was out there in the communities, and some agencies saw these things happen – which meant direct impacts to kids.

They used to go after you if you stood up for something that they disagreed with. Now, they’re basically going for every Aboriginal organization.

The Aboriginal Healing Organization was pretty uncontroversial, but they cut it 100%. They cut the AFN by 50%. It doesn’t seem to matter now where you are on that continuum anymore. Now, we don’t get any money from the feds. But in my day, when the Caring Society was cut 100%, that happened within 30 days of us filing a complaint. Back then, if you were standing up for something the government wasn’t supporting, then you were putting yourself at risk of a potential cut. I don’t think that’s true any longer. There’s a broad-based, very concerning pattern across NGOs – not just Aboriginal NGOs, but NGOs in general, where the government is trying to silence free speech in this country.

They amended charitable tax status in the omnibus bill, and they’re coming down hard on that. They’re expanding what it is to be an advocacy organization. So even if they de-fund you, and other people fund you, they’re after that money too, because, in my view, they want to see you completely gone.

TN: What a mess.

CB: It is a mess. But it’s also a real problem that Canadians need to wake up to if they believe in democracy, because this is not what a democratic country does.

TN: This has affected you and your organization directly.

CB: From the Caring Society perspective, I can say that we filed a retaliation complaint after we filed our Human Rights complaint, and we feel that the federal government has retaliated against us as a direct result of having filed that complaint. In our view, that is a contravention of the Canadian Human Rights Act. It also raises huge alarms about freedom of speech. Because, let’s face it, we’re not raising something that’s frivolous. The Auditor General and the UN Committee on the Rights of the Child agree with us. No one seems to agree with Canada that there is no problem. We filed a retaliation complaint because it was clear to us that the federal government was getting in the way of us completing our work.

I also filed an individual complaint against the federal government because of the monitoring activity that it’s been doing with me on my personal Facebook page, attending different events – systematically going to places where I am, writing up briefing notes and sending them to the departments of Justice and Aboriginal Affairs. But it was mostly this monitoring – getting in on my personal Facebook page and filing documents about the contents of that page – that was really concerning to me. Vic Toews, about a year ago, was tabling legislation that would have allowed that practice to happen with all Canadians. The privacy investigator is still investigating it, but I think what my case suggests is that they do it anyway, regardless of whether the legislation is in place.

TN: Are they still doing that, at this point?

CB: I don’t know. I’m presuming that they are. The last document that I saw, before I referred the whole matter over to privacy investigator, was late 2011. As of that date they were doing it. I have email correspondence between officials at Aboriginal Affairs where they say, in essence, “We applied to monitor her Facebook page, but we stopped after six months because Department of Justice was already monitoring it.”

In another email written by a lawyer at Aboriginal Affairs, it says that the reason they’re doing this monitoring is “to find other motives for the child welfare case.” It’s explicitly linked to that. I find that kind of behaviour completely unbecoming, and concerning. I have not been following around public officials, or getting onto their Facebook pages. We’re going to address their complaints based on the documents that they file and on a public-policy front. But what they’ve been clearly willing to do is cross a line and violate people’s individual privacy to try to undermine the credibility of the complaint.

TN: They believe you have “other motives”? Other than your advocating for the thing your organization exists to advocate for?

CB: Exactly. There are no other motives. I’m not going to get a dime out of this. Even when I filed the privacy violation, what I’ve asked for is a donation to a charity of my choice. There’s no personal benefit for me whatever. Even on my desk, I’ve got a $20 cheque from the Department of Justice for being cross-examined, which I still haven’t cashed, and it’s from August 2011. I haven’t made a penny off of this, nor do I ever intend to. This is not about me. This is about giving every child in the country the chance to grow up with their families and go to good schools.

TN: Which is what they’re trying to prevent you from achieving.

CB: It really concerns me that this type of thing is happening in Canada. This is the type of thing you expect to hear in countries known for their human rights abuses, and yet it’s happening here. I have a 19-year-old nephew living with me, and we had to sit down and talk about his internet use. We’d done all the safety stuff when he was younger, about all the inappropriate people out there, but now I have to have the same discussion about the government of Canada possibly monitoring his material. I have no evidence that’s happening, but I think it’s a reasonable thing for me to worry about.

TN: I’d feel the same way.

CB: One thing I’m not going to do, though, is to stop speaking out on behalf of children, or to not continue to pursue this, because it is critical that this be heard by Canadians. I won’t be silenced by this type of inappropriate conduct.

TN: It’s amazing to think that’s happening.

CB: The thing about it, in our case, is that while a lot of people have conjecture that thing [like spying on organizations] are happening, we can document it, from their own documents. That’s what separates our case: we have proof through legitimate channels: Access to Information and the Privacy Act.

Luckily, Canadians are not stupid. This government underestimates the goodness of Canadians. That’s been my experience. When you present people with the opportunity to learn about something and make up their own minds, they’ll engage and they’ll critically examine the government. That’s why we’ve got our website, www.fnwitness.ca, with close to 11,000 people and organizations watching this from all over the world. It’s the most formally watched human-rights case in Canadian history. We can simply say, “Go read Canada’s side of the story, then read ours, and make up your own mind as a good and moral person who cares about Canada. Figure out yourself who’s acting in the best interests of Canadians.” The bottom line for me is the facts lead you to a certain place. They’ve led everybody else who’s ever looked at this in a certain direction.

TN: Including the Auditor General.

CB: Including the Auditor General.

One other thing I’d like to point out is that we’ve been so grateful for the support of children themselves. We are big believers in the UN Convention on the Rights of the Child, not only in supporting it, but actually doing it as best we can as an organization. That means we have an obligation to include children and young people in matters affecting them – that’s article 12 of the convention. With all of our work, we’ve engaged young people. We had a national competition to select six First Nations youth to go meet with the UN Committee on the Rights of the Child in February in preparation for Canada’s review, because we wanted the committee to hear from the children themselves, in their own voices, what it’s like. One of the youths was a young girl from Attawapiskat, Chelsea Edwards, spokesperson for Shannon’s Dream, who’s saying, “I’m from a community of people living in tents. We have one source of potable water and our school sits next to a contaminated waste dump.”

It’s really important that people not lose sight of the fact that this is about the kids. I do not want this case to be decided on the basis of the best interests of the Caring Society, or on my personal best interests. Or on [the government of] Canada’s best interests. I want this case to be decided on what’s best for kids and what’s best for the country, because I think those things are the same. I’ve publicly argued that if Canada loses this case, then all Canadians win. I’ve not seen one argument forwarded by the federal government in the five years we’ve been doing this that says, “What we’re doing is in the best interests of children.” It’s always about their own “fairness”.

TN: That really sums it up. I appreciate that you’re out there doing this. I can’t think of a more important issue.

CB: It’s a real honour to do it. That’s why we’re never going to give up until this thing is done. We think that this is a critical moral turning point for the country. If we don’t get this right, then we’ve lost a lot of what the veterans fought for, for this country. It throws into question our national commitment to human rights, to equity, to freedom and to justice.