Cindy Blackstock and her intrepid ally Spirit Bear are prepping for yet another battle in their bid to stop the Canadian government from racially discriminating against First Nations children.
The pair haven’t lost a single round in their 14-year legal war of attrition with Ottawa—and they don’t plan on starting now.
“What we know from the government is that they try to use legal technicalities to try and get out of their obligations towards children,” said Blackstock, executive director of the First Nations Child and Family Caring Society (caring society).
“I don’t think they’re going to win,” she added. “They’ve lost every single legal hearing except for one, and that was overturned on appeal. So the kids and the bears are winning the case so far.”
Indeed, the kids and bears have racked up victories, exposed injustice and forced the government to reform. But Canada is fighting back, trying to overturn two Canadian Human Rights Tribunal rulings that, respectively, order Ottawa to compensate victims of the purposely underfunded child welfare system and extend eligibility for Jordan’s Principle.
Canada submitted its written arguments on March 12—arguments the caring society characterized as weak, absurd, perverse, and patently unjust.
“In this judicial review, Canada is attempting to erase and sanitize the impacts of its discriminatory conduct,” the organization argued. “This is shameful.”
— F. N. Caring Society (@CaringSociety) May 12, 2021
The case dates back to 2007, when the caring society and the Assembly of First Nations (AFN) lodged a human rights complaint that Canada was discriminating against First Nations kids on reserves and in the Yukon by knowingly underfunding the child welfare system.
Nearly 10 years later, in 2016 the tribunal released its ground-breaking decision that the state was indeed violating basic human rights by underfunding the program. It ordered Canada to immediately reform the system and properly implement Jordan’s Principle, which exists to ensure First Nations children aren’t denied access to essential social services due to jurisdictional disputes.
The tribunal ruled again in 2019 that Canada was “devoid of caution with little to no regard to the consequences of its behavior towards First Nations children and their families.” It was a “worst case scenario” under the Canadian Human Rights Act, the panel said.
The panel awarded the maximum allowable amount of $20,000 to victims and their families along with another $20,000 because the discrimination was “wilful and reckless,” causing profound indignity and harm to thousands of people.
Ottawa failed to immediately comply, so the tribunal issued numerous subsequent orders. Among them, the tribunal ordered Canada to extend Jordan’s Principle eligibility to certain non-status kids.
Though Canada accepted the seminal 2016 ruling, it decided to appeal the compensation and Jordan’s Principle orders. The court hearing is scheduled to begin June 14.
Canada contends that the complaint was about systemic discrimination, so the tribunal was wrong to compensate individual victims. Systemic discrimination requires systemic reform, not payouts to people, according to the Justice Department.
It’s a notion Blackstock vigorously rejects. She believes Canada is trying to defy the rule of law and flout quasi-constitutional federal human rights legislation. She said Canada lays out arguments that would set a dangerous precedent if allowed.
“What we’re worried about as a precedent is that these offenders, these discriminators, can actually get a free pass if they discriminate against a whole wack of people,” she explained.
“If you just discriminate against one person, you can owe them compensation. But discriminate against thousands? Canada’s arguments would suggest that you get a free pass, you don’t owe any compensation. That’s absurd.”
The Jordan’s Principle appeal is separate but is being heard in tandem with the review of compensation order. Blackstock accuses Canada of reverting to the Indian Act to try and limit its legal obligation to fund services for all First Nations kids.
“(Canada) doesn’t want a legal, binding ruling that somehow sets a precedent that would make that the federal government is responsible for paying for First Nations children in a way that First Nations communities define and recognize them,” she said. “They’d rather have control over it with that archaic and racist Indian Act.”
Several other advocacy organizations filed their written arguments on May 12 as well. The AFN criticized Canada for using “every tool available in its arsenal to have the case dismissed.”
Canada argued, right from the start, that the tribunal had no jurisdiction to hear the complaint. The court quashed two Canadian bids to toss out the case after judicial review. Only in 2013, after much wrangling, did the hearing begin.
“Once these administrative tactics were dealt with, Canada then engaged in conduct to derail the process,” explained AFN counsel. “Several times, the Tribunal was required to deal with Canada’s failure to comply with lawful orders.”
Along with legal and administrative tactics, the human rights commission pointed out that Canada engaged in retaliation and deceit that demonstrated “lack of transparency and blatant disregard” for the tribunal’s process.
The panel awarded Blackstock $10,000 after Ottawa retaliated against her by ejecting her from a meeting with the Chiefs of Ontario at the federal minister’s office in 2012. It tacked on another $10,000 because the conduct was wilful and reckless. Tribunal also heard Canada spied on Blackstock after she launched the complaint.
The panel also scolded Canada for knowingly withholding 90,000 documents that, it turned out, were “prejudicial to Canada’s case and highly relevant.” The documents were only disclosed after the Caring Society filed a request under the Access to Information Act.
Thus, the commission urged the judge who will be reviewing the orders not to interfere lightly with the tribunal’s conclusions, which were reached after reviewing thousands of pages of evidence over more than 70 days of hearings.
“While aspects of the Decisions may be bold, extraordinary violations of the CHRA appropriately call for extraordinary remedies,” wrote counsel for the commission. “Overall, the Decisions are reasonable.”
Chiefs of Ontario, Nishnawbe Aski Nation and the Congress of Aboriginal Peoples all filed written arguments as well.
APTN News requested an interview with Indigenous Services Minister Marc Miller, but he wasn’t made available. Press secretary Adrienne Vaupshas sent us a statement instead.
“Far too many First Nations children have experienced harm in the child and family services system. The over-representation of First Nation children in care is a dark part of our shared history,” the statement said.
The department said, as it has in the past, that Ottawa will provide individual compensation—just not on the tribunal’s terms.
“We brought the Judicial Review on the September 2019 ruling as the CHRT exceeded its statutory jurisdiction, with ramifications beyond this decision—notably by acting as a Court with jurisdiction to hear a class action in the absence of a legislative framework that serves a fundamental protective function,” it said.
The department also accused the tribunal of essentially writing federal policy as it crafted remedies to end racial discrimination against children.
“Quasi-judicial tribunals are not the appropriate forum to address these types of policy questions as commissioners do not have the policy expertise to make policy decisions, nor can they engage in the necessary widespread consultation,” the statement argued.
There is a class action before the courts that seeks damages for the same groups of people. It’s currently in mediation, and Ottawa said discussions about compensation are confidential.
The Caring Society, however, argued that compensation for human rights violations and damages for harm under civil law aren’t the same thing.
Asked if, once this judicial review concludes, the kids will see some form of resolution, Blackstock said it depends on Ottawa.
“I’m not sure that Canada has really taken on board the harm that their discrimination has caused and accepted real accountability for that,” she said.
“Because, if they did, they would be moving heaven and earth to make sure that they reform the federal government so it no longer, ever again, puts another generation of First Nations and their families at risk.”