Debates of the Senate  
2nd Session, 41st Parliament, Volume 149, Issue 43
  Tuesday, March 25, 2014
Inquiry: Canadian Children in Care, Foster Families and the Child Welfare System

On the Order:

Resuming debate on the inquiry of the Honourable Senator Hubley, calling the attention of the Senate to Canadian children in care, foster families, and the child welfare system.

Hon. Lillian Eva Dyck: Honourable senators, I rise today to speak to the important and timely inquiry on Canadian children in care, foster families and the child welfare system, introduced by my colleague Senator Hubley.

I will focus my speech on the work of Dr. Cindy Blackstock, who, along with the Assembly of First Nations, in 2007 initiated a human rights complaint against the Government of Canada for the disparities in funding for on-reserve First Nation child welfare compared to provincial funding.

Dr. Blackstock is the executive director of the First Nations Child & Family Caring Society of Canada. She's an associate professor, University of Alberta, and she is also the founder of the First Nations Children's Action Research and Education Service. Dr. Blackstock is a member of the Gitxsan Nation. She has worked in the field of child and family services for over 20 years, and she is one of the country's most committed and respected activists for First Nations children.

In her speech to the House of Commons Special Committee on Violence Against Indigenous Women on February 6, 2014, Dr. Blackstock stated:

We know the statistics. First nations children are more likely to be in child welfare care. They're placed there at 12 times the rate of non-aboriginal children, driven primarily by neglect that's fuelled by poverty, poor housing, and substance abuse, all things we can do something about, members. Those are not unsolvable problems.

She continues:

We know that the federal government is directly involved with first nations children. Although we can make the argument that for other children, education and child welfare are a provincial jurisdiction, for first nations children the federal government has a direct role in the provision of child welfare for 163,000 children.

She continues:

We are before the Canadian Human Rights Tribunal at the moment trying to get equality in first nations child welfare funding. I tell people that the most shocking thing about that case is that it's even necessary at all in a wealthy country such as ours.

Honourable senators, Dr. Blackstock filed the complaint against the federal government with the Canadian Human Rights Commission in February 2007, along with the Assembly of First Nations. The First Nations Child & Family Caring Society of Canada and the Assembly of First Nations argued that the services on-reserve should be on par with those off-reserve, which are funded by the province. Instead, there is a gap. Reserve funding is about 22 per cent less.

Dr. Blackstock maintains that children on reserves deserve the same opportunities as those off-reserve. Throughout the process of the complaint, the federal government and its Crown lawyers have tried to slow down hearings with repeated objections on technical matters.

The original discrimination complaint was dismissed in 2011 without hearing any evidence. The tribunal rejected it without hearing any arguments on the grounds that to establish discrimination one needed to compare the provision of the same service to two different groups, but that in this case it was not valid to compare services provided by the federal government with those provided by the provincial governments.

The ruling was appealed, and Dr. Blackstock won a major victory on April 18, 2012, when the Federal Court ruled that further scrutiny is needed to determine whether Ottawa is discriminating against First Nations children on reserves by underfunding child welfare services; in other words, she won the appeal.

The Federal Court ordered the Canadian Human Rights Tribunal to hold a new hearing on the case before a newly constituted panel of adjudicators. The Federal Court ordered the tribunal to review the evidence it had initially refused to hear. After six years of procedural delays, the Human Rights Tribunal began hearing from witnesses in February 2013, just a year ago.

This landmark decision could open the door to similar challenges and have a wide-ranging impact on other services that, on reserves, fall under federal jurisdiction, such as education, health and housing, where there are funding gaps. If the government is found in the wrong that is, if the government did discriminate against First Nations children based on race and ethnic origin this could have a domino effect with all First Nations funding from the federal government for education, health services and social services.

Honourable senators, there is substantive evidence that the federal government's provision of First Nations child welfare is inequitable. The Auditor General of Canada, in 2008 and 2011, confirmed that the federal government's provision of child welfare services on reserves was not comparable to that provided off- reserve. These findings echo other reports commissioned by the Government of Canada itself, as well as findings of the Public Accounts Committee in 2009, and the United Nations Committee on the Rights of the Child in 2003 and in 2012. So there is lots of evidence that there is inequity in funding between on-reserve children and off-reserve children.

After filing a human rights complaint against the federal government, Dr. Blackstock discovered that Aboriginal Affairs and Northern Development Canada had her under surveillance and was sharing information about her with the Department of Justice. She took her story to the media, and it made national headlines.

Government documents obtained by Dr. Blackstock showed that the two federal departments monitored her personal Facebook page, tracked people who posted to her page, and sent staff to take notes on her public presentations, all in an attempt to find information that might help the government fight the discrimination complaint that Dr. Blackstock's organization is pursuing before the Canadian Human Rights Tribunal.

Ten months ago, the Privacy Commissioner concluded that the Department of Aboriginal Affairs and the Department of Justice went too far in their online monitoring of Dr. Blackstock. According to the Privacy Commissioner's report, senior officials overseeing the government response to the tribunal case directed staff to collect screen shots of Dr. Blackstock's personal Facebook page and circulate this material within the departments. The Privacy Commissioner concluded:

By all indications, it was clear to officials in both departments that they were accessing and compiling information about the complainant personally.

The Office of the Privacy Commissioner found that officials in both the Department of Aboriginal Affairs and the Department of Justice began collecting personal information about Dr. Blackstock in February 2010. In the report, the commissioner found that the two departments "repeatedly accessed, viewed, read, copied and recorded personal information" from Dr. Blackstock's personal Facebook page.

Dr. Blackstock has filed a complaint with the Human Rights Tribunal for this intimidating surveillance.

Under section 14.1 of the Canadian Human Rights Act:

It is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint...

These hearings began last month, so additional hearings are in progress.

If found guilty, the government will be facing the embarrassment of retaliating against a First Nations child advocate, and the panel could award Dr. Blackstock and the Caring Society a maximum of $20,000 each.

To summarize, the human rights tribunals are supposed to provide an alternative to lengthy, costly court challenges. In this instance, however, the federal government has gone to great lengths to challenge the tribunal's authority to hear the complaint, repeatedly forcing the case into the courts and interfering with obtaining a timely and effective solution to address the alleged discrimination.

By June 2012, the federal government had spent more than $3million in legal fees to oppose the case. The government's arguments have relied on extremely narrow interpretations of the Canadian Human Rights Act. The federal government has argued, for example, that while the Canadian Human Rights Act prohibits discrimination in the delivery of government services, this shouldn't apply to the government funding decisions that determine the level of services that can be provided.

The federal government also argued that it cannot possibly discriminate in the delivery of services to First Nations children since it doesn't provide services for any other children and therefore does not treat any other children better than it treats First Nations children. Had they been successful, these arguments would have severely limited future applicability of the Canadian Human Rights Act, especially in relation to federal government services in First Nations communities. However, as I mentioned previously, they lost that case.

After the initial complaint was filed seven years ago, hearings into evidence of discrimination only began in February 2013. In May 2013, it was revealed that the government had still not disclosed more than 50,000 documents relevant to the hearings. The existence of these documents was revealed only through an access-to-information request. The lengths that the federal government has gone to delay this case, including gathering personal information on Dr. Blackstock, flies in the face of fundamental principles of human rights protection.

Honourable senators, on reviewing this case, it is clear that the federal government has spent enormous amounts of time, effort and taxpayer dollars trying unsuccessfully to prevent the Canadian human rights complaint from even being heard. Clearly, much is at stake. If the Canadian Human Rights Commission rules in favour of the complainants, the continual underfunding of First Nations child welfare on reserves will have been acknowledged and, presumably, compensation orders will be made.

The federal government can appeal the ruling. However, at this point in time, wouldn't it be wiser to accept such a ruling? Why waste more money trying to deny the reality of chronic underfunding of basic services such as child welfare, education and health services on First Nations reserves?

Honourable senators, $106 million was spent by INAC litigating against First Nations. It's time to stop wasting money this way and instead invest it in measures that will actually help solve the problem and that will cost far less in the long term.

Thank you.