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Charged with racial discrimination, Canada’s government fought dirty and lost


The incredible thing about Cindy Blackstock’s landmark racial discrimination case against the government of Canada, is that it almost didn’t happen at all.

Nearly a decade ago, the social worker filed a human rights case that claimed First Nations kids are systemically denied access to the health, education and child welfare services that are widely available to non-First Nations kids. Within a month, the feds cut all of the funding to her non-profit First Nations Child and Family Caring Society.

“We lost 50 percent of our staff,” Blackstock told VICE. “We had to go pro-bono on our legal, we were much more reliant on volunteers, and I think all of us at the Caring Society worked double time without being paid… During the same period the number of people increased at the Department of Indian Affairs, so it was much different over there.”

You might call this the first suckerpunch in the government’s long and dirty fight to keep Blackstock out of court. It set the tone for nine years of surveillance, interference, legal loopholes and cover-ups that ultimately didn’t work. Canada’s human rights tribunal ruled that Indigenous kids are discriminated against in January, and has since issued two compliance orders against the slow-to-act feds.

The film We Can’t Make the Same Mistake Twice lays out this battle in its most tedious, bureaucratic agony. Relatively unnoticed at TIFF, the film comes to Vancouver next week, detailing exactly what madness Blackstock is up against. Director Alanis Obomsawin puts a (nearly translucent) face on the unrelenting semantic contortions used to justify denying kids surgeries, wheelchairs, breathing equipment, and access to their own families.

Though the courts ruled in her favour, Blackstock knows her fight is far from over. VICE caught up with her to recap how we got here, and what’s next.

VICE: This film approaches your case as a Canadian Brown v. Board of Education. Except it’s not 1954, it’s not black and white, it’s 2016. Were those parallels with racial segregation in American schools obvious to you?
Cindy Blackstock: Absolutely, on a personal level as a little girl growing up in northern BC, I remember seeing in black and white television, pictures of the KKK and persecution of African American people. I looked at these people in these white hoods and I couldn’t figure out what the African American people had done that was so wrong, that would lead these other people to be so mean, and I saw white people standing with the African Americans fighting against the guys in the white hoods, and I saw Canadians speaking out saying this has got to stop, this is no good.

And yet all around me were messages that being First Nations was not okay, that we had done something very wrong, and we were being treated differently. I’ve learned from and been inspired by the American civil rights movement throughout my career, because of those early experiences. And in fact when we were making legal arguments at the tribunal, we referenced Jim Crow laws, which was really racial segregation where they would provide separate services for black, and separate for white. The decision from the US Supreme Court was that separate is not equal. And what we argued in court is that this is even worse than that, it’s separate and unequal.

How did the battle play out for you? What were some of the tactics outside the courtroom? 
Within 30 days of filing they cut all our core funding, so the Caring Society doesn’t get any government money. That came very quickly. Then they tried spending millions to get the case dismissed on legal technicality. I know from the government’s own documents that they decided to follow me around, monitor my moments. I’m not sure what I’m more embarrassed about—that they followed me around so long, or how boring my life must be that they couldn’t find even one scandal. I just thought it was so sad, because if I was a government, and someone was accusing me of racially discriminating against children, I would focus on that. Are we doing it? And if we’re not, let’s put the evidence before the court to show we’re not doing it.

The tribunal eventually agreed with you, that First Nations kids are racially discriminated against. Can you tell me what that means, what it looks like?
Sure, I think everyone who has ever been in a family can understand you go through some difficult times. For First Nations families, because of the legacy of residential schools, those times are more difficult than other people have experienced. There are fewer support services so children can stay safely in their homes. According to the government’s own documents, there are more First Nations children in child welfare today than at the height of residential schools. They’re 12 times more likely to be in government care.

And because the feds fund services on reserve, and child welfare is provincial jurisdiction, sometimes they’ll fight between each other about who should pay for services for a First Nations kid, and in the process they’re denied or delayed services just because they’re First Nations… Health Canada recently spent $32,000 fighting a teenager in court over a surgery that would give this girl a chance to eat and talk properly. And the bill is still growing. To me, I think that’s why people like me pay taxes—so a young girl can eat and talk without chronic pain.

The tribunal has issued two compliance orders, most recently in late September. What are those, and what change is the government supposed to be making?
The compliance order is basically a statement that you are failing to comply with a legal order, and here is more specificity about what you actually need to do right now to comply… For example, in BC, there has not been an increase in the funding for prevention services for First Nations children for 27 years. They said that is unacceptable, and you have to do a variety of steps to remedy that immediately. The tribunal makes it clear in that decision, it finds the lack of progress very concerning, particularly given what’s at stake, which is really childhoods, and the opportunity to grow up safely with their own families.

Read More: First Nations Advocates Slam Canada’s ‘Illegal and Immoral’ Child Welfare System

Do you have a backup plan in case the government doesn’t act? 
There is a possibility of filing a contempt order in federal court, and we’re seriously considering that. Because we cannot allow the federal government to basically make a legal order moot by not acting on it. If you or I ignored three court orders to stop discriminating against little children, we would be wearing orange jumpsuits by now.

Has Trudeau’s government acknowledged any of this publicly? 
Last week the prime minister had a press conference, and [Canadian Press reporter] Kristy Kirkup asked why this government was not complying with legal orders, and he said ‘Well, we’ve done these announcements in Budget 2016. And Kristy noted two of the compliance orders have come after Budget 2016. So the tribunal had considered the budget and issued two orders anyway.

Trudeau said we can do better for First Nations kids. But to me it’s not about doing better, it’s about complying with the law. Do better sounds discretionary. These are legally binding orders. According to the federal court, if they are found to be in contempt, it’s possible people within government could be fined or sent to jail. I hope that’s a bridge we never have to cross. There’s no legal precedent for it in Canada, but up until January there was no legal precedent for our case, either.

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