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Human Rights Tribunal Hears Indigenous Child Welfare Case to the Ire of Harper Government

Andy Crosby

A hearing at the Canadian Human Rights Tribunal regarding Ottawa’s systemic neglect and unfair treatment of Indigenous children began on Feb. 25 and is expected to last 14 weeks.

The human rights complaint, which Ottawa has spent millions of dollars fighting, was first filed in 2007 by the First Nations Child and Family Caring Society (FNCFCS). According to Cindy Blackstock, executive director of the FNCFCS and University of Alberta professor, the case marks the first time Canada has been legally held to account for its discriminatory treatment of Indigenous children and their families.

“We want First Nations children to have the same opportunity to grow up safely with their families that other Canadian children enjoy, something the Canadian government deprived many of their parents and grandparents of during the residential school era,” Blackstock told the Leveller via email.

According to the Canadian Human Rights Commission (CHRC), the FNCFCS and the Assembly of First Nations (AFN) “allege that the Government of Canada is discriminating against First Nations families and children by inadequately funding child welfare services delivered on reserves.” These receive 22 per cent less provincial funding than off-reserve services.

Indigenous groups charge that systemic neglect is forcing unprecedented numbers of children into the child welfare system. According to Blackstock, Indigenous children comprise 30-40 percent of the child welfare numbers while representing less than five percent of the child population in Canada.

JUSTICE IMMINENT AS EVIDENCE MOUNTS

Blackstock points to “overwhelming” evidence provided by the Canadian government which confirms systemic inequality due to government policies. These include reports from the Auditor General in 2008 and 2011, from the Standing Committee on Public Accounts in 2009 and 2012, as well as those from the United Nations Committee on the Rights of the Child.

In late February, new documents were introduced. One in particular “calls the situation created by the funding inequality ‘dire’ and goes on to describe legal advice Aboriginal Affairs received from the Justice Department suggesting they are vulnerable to legal action by children and youth affected by this program when they grow up,” according to Blackstock.

All eyes are on Canada in this landmark battle, “the most watched human rights case in Canadian history with over 11,800 people and organizations registered to watch,” according to Blackstock. She encourages the public to follow the case and attend public hearings in person.

Blackstock notes, “[the] tribunal has the authority to make a legally binding determination of discrimination and to order a remedy that is enforceable in Federal Court.” She told the Leveller. “We have asked that Canada be ordered to provide equitable and culturally based child welfare services throughout Canada [and implement a] $112 million trust fund to be set up for children and families who experienced hardship related to the years of inequitable funding so they can access reunification services, cultural services, counselling, etc.”

Further, the groups want “full implementation of Jordan’s Principle, which is a child first principle to resolving jurisdictional disputes within and between federal government and provincial/territorial governments,” she told the Leveller. “This principle would ensure First Nations children can access government services on the same terms as other children.”

Jordan’s Principle was developed after a child from the Norway House Cree Nation unnecessarily spent over two years in hospital due to jurisdictional wrangling between Ottawa and Manitoba because he was a First Nations child, according to Blackstock.

 GOV’T POLICY: ELIMINATE THE INDIAN PROBLEM

The Harper government has made all efforts to stop the case cold in its tracks. “The Canadian government has wasted over three million dollars trying to avoid a proper hearing, funds that should have been deployed to fix the problem for children instead of trying to hide from it,” Blackstock told the Leveller. “The tragedy in their delay tactics is that thousands of children received inequitable services over the six years that the Government tried to derail a proper hearing.”

These efforts, says Blackstock, are ongoing. “On March 6, 2013, a hearing was held in the Federal Court of Appeal as Canada tried to overturn the Federal Court ruling ordering the Tribunal hearings to proceed, but the justices reserved their decision,” she said. “A case of this moral and legal importance to the country should absolutely be decided on a full evidentiary record before an independent body, not on the countless legal loopholes Canada has pursued.”

According to AFN chief Shawn Atleo, tens of thousands of Indigenous children in foster care ― a figure estimated at 27,000 in 2006 ― are being deprived of their language and culture.

The high numbers are not an anomaly, but instead represent a modern application of long-term government policy towards Indigenous children. The infamous “60s Scoop” saw thousands snatched without consent and placed in the child welfare system. An extension of forced attendance in residential schools, today’s figures represent a modern manifestation of Canada’s endeavors to “eliminate the Indian in the child.”

 UNDER INCREASING SURVEILLANCE

As a result of Blackstock’s advocacy for the rights of Indigenous children, the Canadian government began spying on her after her organization filed the human rights complaint in 2007. Although she worked closely with the government on child welfare policies and programs prior to filing the case, she says, “things changed dramatically after that.”

After being refused entry into a meeting between Ontario Chiefs and the Department of Indian Affairs (INAC – now referred to as Aboriginal Affairs and Northern Development Canada) and forced to wait outside the room under the watchful eye of security, she submitted Access to Information (ATI) and Privacy Act requests on her file.

She obtained a mountain of documents revealing that the government monitored her social media accounts, accessed her Status Indian file to obtain data on her family, and attended 75-100 meetings at which she spoke.

“Records obtained from [ATI] suggest that INAC and the Department of Justice conducted systematic and intense monitoring of my public appearances, monitored my personal Facebook page and Twitter Accounts, and accessed my Indian Status registry which includes information about me, my family and grandparents for reasons that are not clear,” Blackstock explained to the Leveller.

According to the documents obtained under the Privacy Act, the government was “[trying] to find ‘other motives’ for filing the child welfare case.”

Blackstock’s analysis of the documents reveals the involvement of 189 separate government officials, often in high-ranking positions, “devoting time and money to following me instead of spending the money fixing the problem for the kids,” she said.

Furthermore, Blackstock warns that, “It is important to underscore that among the documents entered into evidence this past week at the Tribunal is an application form whereby government officials can apply to access blocked websites including, in my instance, to monitor personal Facebook pages apparently without a warrant, suggesting the practice is systematic and others are likely affected.”

Surveillance of Indigenous peoples intensified after the Harper Conservatives obtained power in 2006. A weekly “hot spot binder” monitors the activities of numerous communities to mitigate any potential protest or unrest surrounding land and treaty rights.

Documents also revealed the close relationship between INAC and the RCMP, as well as intelligence sharing across multiple government departments, the Canadian military, and the Canadian Security Intelligence Service.

“My experience places itself within a series of other unfortunate efforts by the government to squash freedom of speech such as the muzzling of scientists, discounting of whistleblowers and the reluctance to provide government documents to watchdog organizations such as the Parliamentary Budget Officer,” Blackstock told the Leveller. “It appears to me that freedom of speech and respect for citizen privacy exists in Canada, unless you take a position not supported by the government.”

This article first appeared in the Leveller, Vol. 5, No. 6.

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