Taking on the Feds for Aboriginal Equality

Cindy Blackstock says the only thing public school taught her about Aboriginal people was that in the days of the fur trade, the Hudson's Bay Company would give Aboriginal people "cool stuff" in exchange for skins. Growing up Gitxsan in Northern British Columbia during the 1960s and '70s, racism and stereotypes about stupid, lazy, alcoholic Aboriginal people were, at best, unchecked.

Now executive director of the First Nations Child and Family Caring Society (FNCFCS), Blackstock says Aboriginal students growing up, and going to school, on reserves today have it a lot tougher than she did: funding for reserve schools is roughly 25 per cent less than funding for public schools, the on-reserve graduation rate is just 40 per cent, and more Aboriginal youth are in government care today than were during the height of residential schools.

Ten years ago she led FNCFCS on a mission to work with the government of Canada to bring equality to all Aboriginal people. But after five years of government rejecting proposal after proposal for fair education, safe housing and clean drinking water on reserves, FNCFCS took them to court. On April 18, FNCFCS won their case in Federal Court, and will head back to the Canada Human Rights Tribunal for another hearing.

Blackstock's work has attracted the special notice of officials. Late last year, she learned she was a target of government surveillance, with employees monitoring her making speeches and photographing her Facebook page. According to reporting by the APTN, officials from the department involved, Aboriginal Affairs, declined comment and instead issued a statement stating it "routinely monitors and analyses the public environment as it relates to the department's policies programs, services and initiatives... social media sites such as Facebook and Twitter are public forums, accessible to all."

The Tyee spoke with Blackstock the day before the April 18 ruling, to ask why a case about equal rights for Canadian children was meeting so much resistance from the Canadian government, and how it feels to know that same government has spent time and resources spying on her.

On April 24, Blackstock will speak at a Lawyers' Rights Watch Canada event in Vancouver, but for those who can't make it, here's the story of how one of the most important human rights cases in recent history reached this point.

From co-workers to combatants

Beginning in 2002, FNCFCS worked side-by-side with the feds to develop a strategy for bringing on-reserve services like water, housing and education up to par with public provincial systems. But after government walked away from two solutions they helped develop, FNCFCS took them to court.

"We filed a court case against the government of Canada in 2007 alleging that they are discriminating against First Nations children by underfunding child welfare services," Blackstock told The Tyee.

"And since it's been filed, Canada has done everything in its power to avoid a hearing on the merits of that case, that being the central question of whether they're discriminating or not, and they're trying to get off it on legal loopholes."

Blackstock, FNCFCS, and the Assembly of First Nations took the case to the Canadian Human Rights Tribunal, which was ideal for FNCFCS because they have the power to order a specific solution.

"What we didn't want was a court order that was very vague, that Canada could then drag its feet over for decades or more before providing the right thing for kids. We had these solutions, we jointly developed them, we wanted them ordered to implement them," Blackstock explains.

But when the ruling came down in 2010, Tribunal Chair Shirish Chotalia dismissed the case, arguing that to compare federal and provincial services was to compare "apples and oranges."

Blackstock was shocked. To her mind, the ruling not only ignored a previous Supreme Court decision that found discrimination cases do not require a comparison group, but that Chotalia was essentially saying racial discrimination by the government was okay.

"The implications of that ruling would really be to immunize Canada against any human rights application made by First Nations, because, of course, they only fund on-reserve services," she says.

Target of surveillance

FNCFCS and the Assembly of First Nations took the case to Federal Court for their right to present evidence of unequal treatment for Aboriginals at the Tribunal. This time, however, they had witnesses to the proceedings. When the case had its time in court Feb. 12-15, 2012, hundreds of Aboriginal and non-Aboriginal people, mostly children, sat in the courtroom to watch.

"We had just about 200 people show up every single day just to witness this case firsthand," says Blackstock, adding some of the adults in attendance included legal scholars from as far away as Australia.

"We had so many children coming that we had to book them in shifts. We could have well had a courtroom that held 500-600 people if we were able to accommodate everyone that wanted to come."

Most of the kids learned about the court case by signing up for FNCFCs I Am A Witness campaign, which posted court documents from both sides online, inviting people to monitor the proceedings as impartial witnesses. But although they didn't ask people to choose sides, Blackstock says most of the people she spoke with, young and old, were upset with the government's treatment of Aboriginal people.

"They just could not figure out why they were trying to worm out of providing equitable and culturally-based treatment for children," she says.

All the action didn't take place in the courtroom, however. Last November, Blackstock revealed a file she received through Access to Information showing both the departments of Aboriginal Affairs and Northern Development and Justice were spying on her, with as many as 165 government employees involved.

Blackstock told The Tyee she has not let the revelation deter her or change how she lives her life. Instead, she says it reveals a lot about the insecurity of the federal government.

"Canada is becoming a place where we're only democratic once every four years when the government wants to hear from us, and the rest of the time they're trying to protect themselves from viewpoints from the public that raise critical issues," she says.

"That should be welcomed by a competent government, they should be welcoming dissent because it helps us create a better society, helps us create the discourse that's necessary to raise us all up."

Equality's 'the floor, not the ceiling'

She will not be grateful, either, for the $275 million the government is putting into Aboriginal education this year. It is nowhere near enough, she says, and equality is "the floor, not the ceiling" of what Aboriginal people are asking for.

"They described the accounting problems with their fighter jets of $10 billion as simply being an accounting error. If they've got that amount of money to play with, $10 billion would have gone a long way to addressing these inequalities that these kids are facing, and there's absolutely no legitimate reason for racial discrimination to be used as a fiscal restraint measure," she says.

But Blackstock says the tide is turning for Aboriginal people in Canada, whether the government is leading the way or running to catch up. She says each new generation of Canadians has a chance to right the wrongs of the past, to treat Aboriginal people with the respect and dignity they deserve.

"We're shifting the climate in Canada so that this type of discrimination against First Nations children, be it in education, child welfare or any other service, is politically and socially unviable," she says.

Blackstock and FNCFCS still have to make it through the judicial system, however, vowing they will take the case all the way to the Supreme Court if they must, which could take years to settle. A new day Canada's for Aboriginal people may be dawning, but it could still be a long time before we see the light.