Cindy Blackstock never expected she’d become a household name, nor hailed as a national “hero.”
Then again, the 56-year-old Gitxsan professor of social work never expected that being a children’s champion would get her spied on by the federal government in 2010. Nor did she imagine that in early 2021 she’d still be fighting the same gruelling human rights case against the federal government that she launched in 2007.
That case, led by Blackstock’s First Nations Child and Family Caring Society and the Assembly of First Nations, alleged the federal government discriminates against Indigenous children by providing less funding and poorer services than it does for non-Indigenous children.
Last week marked five years since the Canadian Human Rights Tribunal ruled in their favour, declaring on Jan. 26, 2016, that Canada’s “service gaps, denials and adverse impacts” on Indigenous children amounted to “a prima facie case of discrimination.”
Since then, Blackstock has obtained nine new rulings from the tribunal ordering Ottawa to comply with its original decision — including ordering it “to cease its discriminatory practices and reform the First Nations Child and Family Services Program” and that $40,000 in “compensation be paid to the estates of deceased” children who were denied equal funding, as well as to children apprehended from their reserves since 2006.
But on Dec. 22, 2020, the federal government launched a judicial review of a tribunal decision to expand the eligibility of Indigenous children who would benefit from the decision.
Ottawa also counters it has already spent nearly $700 million since the 2016 ruling ensuring “all First Nations children can access the products, services and supports they need, when they need them.”
Blackstock, who grew up near Burns Lake, B.C., now teaches social work at McGill University. The Tyee reached her in Ottawa, in the midst of her latest court battles. This interview is edited for length and clarity.
The Tyee: Cindy, what an honour to talk to you and happy 2021.
Cindy Blackstock: For First Nations kids, I’m hoping that this is finally going to be the year we end the discrimination they’ve faced from the Canadian government for so long.
You’re still in court. What is the status of all your legal efforts to have the government live up to its commitment to these kids? They’ve had so many rulings against them over and over again, and it doesn’t seem to be budging the dial.
The federal government funds public services on-reserve, whereas the provinces do for everyone else. And as you know, since Confederation the federal government has given First Nations kids far fewer services. And even when they do fund those services, they’re to a lesser standard.
That was your original case, back in 2007?
We, along with the Assembly of First Nations, filed a human rights case against Canada. We didn’t get the decision until 2016. So that’s nine years later, but the decision substantiated the racial discrimination by the Canadian government and ordered them to stop.
You found out about five years into that, in 2010, that they were spying on you.
Yeah, I did. During the history of the actual hearing of the case, Canada did everything it possibly could to not have the facts presented to the Canadian public or to the courts. They wanted to throw it out on technical issues. And when that didn’t work, they tried to discredit me by doing this kind of surveillance activity. But unfortunately for them, I live a pretty boring life.
So they never did find out about your obsession with Cheezies?
I am guilty of that. I do happen to have an obsession with Hawkins Cheezies. I love Hawkins Cheezies.
I’m not spying on you, I swear.
No, it’s absolutely legit. I admit it. So the decision found the Canadian government was racially discriminating against Indigenous children and Canada said it would comply, but then it didn’t. And so now we’re in non-compliance motions.
We’re still in court, but we have budged the dial a bit. The good news is, because of the ongoing litigation, First Nations kids in child welfare are now getting double the budget that they were before the litigation, before the decision. And over 777,000 services have gone out to First Nations kids under Jordan’s Principle.
Jordan’s Principle is about ensuring First Nations kids can access public services free of discrimination, because they’re often denied things like access to special education supports that other kids would take for granted, or basic health care things like being provided a hospital bed so that they could hospice at home without going into respiratory distress. Those are things that the Canadian government denied in the past.
Jordan River Anderson was the subject of this sort of jurisdictional fight between Manitoba and the federal government, and he ended up not getting the care that would’ve kept him alive.
And the reason he didn’t get that care was because he was First Nations. If he was any other child in Canada, he would have gotten that care. And that’s what that discrimination looks like, right? As a parent, if you have a child in need and you’re told “No,” because of their race, that literally is the lived reality of First Nations parents across this country. Even today, even after all these orders, there’s still more to do.
You said that the federal government has doubled the amount of funding for First Nations child welfare services, but it still falls short of what non-Indigenous Canadians get off-reserve?
Absolutely it falls short… I’m thinking about the water crisis. Last Christmas, a child from a northern Ontario First Nation actually took to YouTube because their community was on a boil water advisory for 25 years and the water was so toxic that they couldn’t drink it anymore, so they had to be relocated to Thunder Bay. And this little kid had never lived in a community where they didn’t have a boil water advisory, where you could drink from the tap. The child told the prime minister, “We’re not animals, we’re human beings.” That’s what it feels like when you’re told “No,” because of who you are, and denied basic public services that everybody else takes for granted.
This court case has taken almost 15 years of your life, but you’ve done this work far longer. Do you think this legal strategy has paid off?
I think it’s important for people to know that the legal case wasn’t our first card we played off the deck. We actually worked for 10 years before that with Canada, documenting the inequalities and coming up with evidence-informed solutions by economists and others. And it was only when Canada didn’t implement that that we turned to litigation. So I think litigation has been the only thing that has resulted in change from the Canadian government. We have legal orders; they’re not decisions that Canada can just ignore, they have to implement them, or they can be found in contempt.
The second thing that’s happened though, is that as caring Canadians have become more aware of these inequalities, people have become really aware about it. And they want it to stop. And children have been such a big part of this, because they see the unfairness and they don’t make any excuses for it. So they themselves have been demanding change, because they want to grow up in a Canada where First Nations kids matter.
I want to turn to child welfare issues. The B.C. government learned from its own lawyers that alerting social workers to First Nations women before giving birth, a practice known as a “birth alert” that can lead to the removal of a newborn baby from its parents, could actually be unconstitutional, yet the government continued doing it for months. B.C. stopped, but some other provinces keep this up. What’s your reaction to those kinds of stories?
It’s another example of how the government will regularly breach the law. And it feels like it operates above the law, so it can ignore tribunal decisions, it can ignore the Constitution, as long as it serves their interests. That’s why it is so important that we as citizens stand up and tell the government that we expect them to respect human rights for everybody, to respect the legal decisions, and to not perpetrate racism.
As for birth alerts, the research shows there’s not enough evidence they work or don’t work. So they shouldn’t be used at this time until there’s evidence that they work. And they shouldn’t be used in a way that breaches the law for First Nations families. That’s just totally unfair.
What’s the impact on those families when newborn babies are removed from their families?
None of us want kids to be unsafe. And there are rare circumstances where babies have to be removed from their family, but I underline the word rare. In most cases, you can provide support to families for them to address the issues that may be putting their children at risk. Are there government policies, government decisions, that put these families in the situation where they’re at risk?
A lot of First Nations are saying they want agreements to take control of their own child welfare. That’s been such a rallying cry in the last few years.
Not just the last few years. I was part of writing a report where that was a recommendation to the federal government 21 years ago. When Canada drafted its act that allows for the affirmation of First Nations laws, it did so in a way that made sure that it had no clear positive obligation to fund any of this.
You’ve mentioned legislation relating to child welfare and Indigenous control, is that Bill C-92?
Yeah. We need to make sure there is affirmation of First Nations’ jurisdiction over child welfare, but Canada and the provinces must accept their responsibilities to ensure those services are adequately funded so that those children, those families and those communities get equal, equitable benefit. Governments, including the federal government, are often very keen at offloading very expensive programs onto First Nations with insufficient funding, and then basically wash their hands of it.
You’re Gitxsan, and you have connections to the territories on the West Coast. When you were growing up, did you ever imagine you’d be where you are today: fighting the Canadian government for decades?
No! I grew up in the bush in northern B.C. and my first job, when I was four-years-old, was picking pine cones for reforestation.
Who most influenced you, as a pine-cone-picking Gitxsan kid in northern B.C., to have the values and fight that you do?
I really credit my mom and my family members for that, especially because I grew up in the bush, and there weren’t a lot of other people around. But also, throughout my working career, I have been so blessed to be supported and directed by some amazing people.
So many people helped me understand how to try to govern my own behaviour in a way that matches the dignity of these children and these families. They actually created the foundation that people like me could stand on.
Do you think the time and energy that you’ve put into this has been worth it?
I grew up believing in the goodness of people. This was naive on my part, but I always believed that if I worked with experts, if I documented the inequalities, if I provided Canada with evidence about how they could fix it and what the positive impacts would be on children — that they’d do it.
But what I’ve come to realize now, after 40 years of doing this, is that the most obvious things the government should do — it’s exactly those issues that are the hardest to fix. Because they’ve been so normalized within the public service; they cannot grapple with it.
That is the curse of systemic discrimination. Government doesn’t create change; it responds to change, sometimes to legal orders.
And when the public says, “We’ve had enough.”