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Cindy Blackstock

The Right to Be Free from Discrimination

By: Patricia Pearson

Patricia Pearson

Historical Contributor

Patricia Pearson is an author and journalist whose books include Opening Heaven’s Door: What the Dying May Be Trying to Tell Us, a finalist for the BC Book Award, and A Brief History of Anxiety: Yours and Mine, which she adapted into an award-winning television documentary for the CBC.

She has contributed commentary and reporting to the New Yorker, the New York Times, and the Guardian, among many other outlets, and was a regular columnist for the National Post. She has a B.A. in history from the University of Toronto, and an MSc. in journalism from Columbia University.

Pearson is the co-founder of Bellwoods Press, which offers clients the chance to tell their stories to a sensitive journalist and to publish a book for their extended family and friends.

United Nations Declaration of the Rights of the Child, Article 30:

Children have a right, if members of a minority group, to practise their own culture, religion, and language.

In 1987, years before she took Canada to court and won a resounding victory for First Nations children, Cindy Blackstock was a student at the University of British Columbia with a part-time job at a child protection agency. The Gitxsan First Nation social worker, raised in Burns Lake, BC, took a shine to the young people she met. “I’ve always believed that your work chooses you,” she has said. She wanted the children to feel cared for and safe. 

The provincially funded agency that Blackstock worked in at the time was pretty good at its task. The office was well-equipped with toys, colouring supplies, and a family visiting area. Her pay was decent, and, “most importantly, we had the tools we needed to assist families.” 

There are many social supports that Canadians take for granted. Is your child at risk because there isn’t enough supper on the table? Here is an emergency food voucher and we can refer you to a breakfast program or a food bank. Is the problem about stress and anger? Here are some parenting and therapy sessions. But, as Blackstock soon discovered, these supports are considered luxuries for First Nations families on reserve. 

When Blackstock crossed the street in Vancouver in 1995 to work for the Squamish First Nation child and family services agency, Ayás Mén̓ men, the contrast in what Canada was willing to fund for First Nations kids versus what the province had been providing to other British Columbia families was “absolutely astonishing,” Blackstock later wrote. “The Squamish staff worked incredibly hard and were really dedicated to the children, but they had far fewer resources.” The work space was cramped, there was no dedicated space in which to interview children, the file room was a shed. “Basics like medical equipment for children in care and support services to keep families safely together were negligible, difficult to access, or unavailable.” Even food banks and family counselling were off the table. Invariably, Vancouver-based non-profit organizations would cite “limited resources and the incorrect assumption that the needs of on-reserve families were adequately addressed by the federal government.” 

It is a signature blindness of many Canadians that somehow our government is being generous and fair to Inuit, Métis, and First Nations communities and that no one in civic society needs to worry about Indigenous needs being met. Blackstock often wound up going to the First Nations for funding, paying for services out of pocket or raising money by hosting raffles, something that would be “unheard of in the provincial civil service.” The lack of preventive measures meant that family crises worsened, and children entered into foster care at higher rates than their non-Indigenous peers, repeating harms that were inflicted throughout residential schools.

Blackstock described another of our nation’s blind spots in a chapter about my mother, the late Senator Landon Pearson, whom she met after founding the First Nations Child & Family Caring Society in 1999, and whom she invited to serve on her board.

“When I raised the fate of First Nations children back then,” Blackstock wrote, “I often felt I was screaming into silence. The carefully woven white noise barrier constructed by Canadian governments acted like a dike holding back even the most caring and dedicated of child rights actors.”

In other words, the federal government never let on that it was severely underfunding everything on the reserves, from housing to water filtration to child welfare. Ordinary citizens were only then just becoming aware of what had happened in residential schools, and knew much less about what was ongoing in the communities. “Landon was one of few exceptions,” Blackstock wrote. “When I met her, she understood the gravity of the dire situation of First Nations children.”

Mum and her colleagues introduced me, in turn, to the plight of these kids in 2010. When I visited a remote, fly-in Oji-Cree community in Northern Ontario that summer, it proved to be one of the most shocking experiences of my life. The children – whose grandparents had been ordered by Ottawa to abandon their traditional and self-sufficient way of life in the 1970s – had nothing. No playground, no sports arena, no restaurant, no cinema, no skipping ropes or skateboards. The homes were overcrowded and covered in mould, and there was no clean water. The Ottawa bureaucracy that ran their lives via the oppressive rules and regulations of the Indian Act behaved like a neglectful parent, barely even keeping them healthy. (Most Canadians do not understand the breadth of the powers that the federal government has on First Nations peoples. A quick scan of the table of contents of the Indian Act reveals that Canada holds the power to determine who is an “Indian,” to establish band councils, and to regulate business activity and even the wills of First Nations peoples.) By then, Blackstock had already launched a multi-pronged campaign to compel Indigenous and Northern Affairs Canada (INAC) to do better. 

In 1999, a baby from Norway House Cree Nation in Manitoba named Jordan River Anderson was born with complex disabilities that required him to stay in a Winnipeg children’s hospital, thousands of kilometres from his home community. Jordan’s mother, Virginia, spent months at a time with him in the city while her husband Ernest looked after their other two children. When the little boy was finally cleared to live at home with medical support, the province, INAC, and Health Canada fell into dispute about who should pay for his care. The jurisdictional squabbling went on for two years, and Jordan died without ever leaving hospital, at the age of five. 

After Jordan passed away, his family wanted to ensure that no other First Nations child died waiting for public services, so Blackstock approached NDP member of Parliament Jean Crowder (from Vancouver Island), who introduced a private member’s motion called “Jordan’s Principle.” The legal principle requires whatever government department that has first contact with an Indigenous child in need to automatically fund the same supports that other Canadian children receive, and to sort out jurisdictional responsibility later. The motion passed unanimously in 2007 – but it didn’t really alter the way the bureaucracy thinks.

“They talk about children as files. They dehumanize them,” Blackstock told me, about how many public servants function. “They list cases as budget expenditures; they’re detached from the human reality of their decisions, so they can perpetrate harm against children without taking any responsibility. Public attitudes have slowly shifted,” she added, “but the bureaucracy is a self-sustaining system.” So, she keeps chipping away at its concrete foundations. 

In February 2007, the Caring Society and the Assembly of First Nations brought a complaint under the Canadian Human Rights Act, alleging that Canada’s inequitable provision of child welfare services to 163,000 First Nations youth was discriminatory on the grounds of race and national ethnic origin. And Jordan’s Principle wasn’t being implemented. Blackstock chose to go to the Human Rights Commission, established in 1977, because the Canadian Human Rights Act “has enforcement teeth,” she explained. The alternative would have been to bring the case through Sections 7 and 15 of the Charter of Rights and Freedoms:

Section 7:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” 

Section 15:

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

Instead of conceding, the federal government fought Blackstock tooth and nail. Within a month of filing the case, INAC cut the Caring Society’s core funding, and shortly thereafter all funding ceased, which hampered its ability to proceed with the case. Before 2006, groups that brought cases before the Human Rights Commission could apply for money to pay their lawyers through Canada’s Court Challenges Program. The government of Stephen Harper cut this program, making it more difficult for parties to seek justice. To cover its legal bills, the Caring Society reduced its staff to one full-time position and three part-timers. They cleaned the office themselves, bought used furniture, and ran fundraisers to keep their legislative complaint going. “Meanwhile,” Blackstock has pointed out, “INAC benefited from the full public subsidization of its legal fees – totalling at least 10 million dollars – to fuel a plethora of legal, illegal, and procedural tactics to avoid a hearing on the merits of the First Nations child welfare case before the CHRT [Canadian Human Rights Tribunal].”

At first, the CHRT dismissed the case after Ottawa argued about a narrow technicality in the Canadian Human Rights Act that requires an exact comparison of services: for example, one bakery refusing to serve a gay couple, whereas nearby bakeries accommodating them. Because the federal government is the only service provider on reserves, it cannot be proved through exact comparison that they discriminate against First Nations kids. “It’s a threshold issue,” Canada’s attorney, Jonathan Tarleton, announced at an appeal hearing before the Federal Court. “If they can’t get past that hurdle, it’s not acceptable as a complaint.”

Two months later, the tribunal decision was reversed after Blackstock appealed to the Federal Court, and that reversal was upheld by the Federal Court of Appeal. The case would proceed.

In 2010, Canada prohibited Blackstock from attending a child welfare meeting, and in 2011, she discovered that the government had put her under surveillance, spying on her personal social media accounts and following her movements. “They were trying to prove [I had] other motives for this child welfare case,” she speculated to Alanis Obomsawin, who was following the story for a National Film Board documentary titled We Can’t Make the Same Mistake Twice. So Blackstock amended her complaint before the tribunal in September 2012 to include allegations of government retaliation. Finally, the case went formally before the three-member tribunal in January 2013, seven years after the Caring Society first launched its complaint. Even so, the Government of Canada again tried to get the case dismissed, only to again be overruled by a Federal Court of Appeal. 

Among the evidence presented during the tribunal was a letter from BC’s oldest First Nations child welfare agency, run by Nuu-Chah-Nulth Tribal Council in Port Alberni, which reminded the government in Ottawa that the agency’s budget had not been increased in 27 years. The INAC bureaucrat testifying before the tribunal responded by asserting that money would have “to be reallocated” to child welfare from the community’s housing budget. Since First Nations populations have long outgrown the original size upon which these budgets are based, the response from the INAC bureaucrat only meant deeper cuts to an already inadequate housing budget, which in turn made the children increasingly vulnerable to the effects of overcrowding and disrepair. It was a vicious circle. 

The Caring Society didn’t have much money, but they had mounting support from the public. Theirs was the first human rights case to be broadcast live on TV (by APTN). It was also filmed by the NFB. Blackstock launched an awareness campaign featuring T-shirts that said “I am a witness,” encouraging students to attend the hearings, which they did. “Prior to the case, many children only associated courts with criminal and divorce cases,” she said. Now, they could learn about how the law affected children like themselves, and how tribunals could uphold their rights. “Every time Canada moved to dismiss the case, more children would show up, and they would keep on coming year after year . . . Teens came back to see me years later, as adults. ‘We were so angry, watching it. We’d say to our families, you won’t believe what the government is doing to these children.’ They started educating their parents.”

On January 26, 2016, the CHRT substantiated the complaint and ordered Canada to cease its discriminatory conduct. It also judged that Ottawa had indeed engaged in retaliation against Blackstock, for which it ordered that she be paid compensation, which she donated to children’s causes. Three United Nations special rapporteurs launched an investigation into Canada’s conduct as well. This was important, Blackstock later wrote, because “domestically there is a dearth of injunctive measures to stop retaliatory behaviour perpetrated against human rights defenders by Canadian governments.”

The tribunal ordered reparations of $23.4 billion, as well as an additional $20 billion to be earmarked from the federal budget for on-reserve child welfare agencies over five years. There was no comment as to what would happen in year six. Do we go back to square one? “No one knows the terms of this [settlement] until an agreement with the Assembly of First Nations is done negotiating with Ottawa,” Blackstock told me in the spring of 2024. “Secret negotiations are too often Canada’s colonial playing field. They rely on closed-door negotiations with one group even though those negotiations will impact numerous First Nations. They see the entire chess board and no one else does.”

In spite of the glacial pace of legal and jurisdictional wrangling, what the First Nations Child & Family Caring Society contributed to was a heightened national awareness that has most recently been reflected in the orange T-shirts and lawn signs that say “Every Child Matters.” That slogan, of course, was spurred by further revelations about the horrifying mistreatment of children in residential schools. But the two issues have melded together, past and present. And this is a key element in what makes the Universal Declaration of Human Rights such a critical catalyst for civic societies. As Mum’s colleague Tara Collins, a professor of social work at Toronto Metropolitan University, has noted,

“Landon introduced the powerful and influential concept of relational rights in her Florence Bird lecture of 2012. She explained, ‘I have learned that human rights, properly understood, are about relationships rather than entitlements. They are about the relationships between individuals, between individuals and society, and between individuals – either alone or as a group – and the state.’ . . . Relational rights make our commitments to respecting children and their human rights meaningful and relevant to our day-to-day efforts . . . In other words, rights regulate how we understand and relate to one another.” 

First Nations children are not just budget line items or case files. Their hopes do not get to be crushed by bean counters who never meet them or witness their struggles and joys. To recognize their right to be free from discrimination is to see them in the fullness of their sacred humanity. “I want this generation of kids to know one thing,” Blackstock told the tribunal. “I want them to know that we love them enough to fight for them.” 

Additional Resources

Blackstock, Cindy. “The Complainant: The Canadian Human Rights Case on First Nations Child Welfare,” McGill Law Journal 66 (2) (December 2016). 

I Am a Witness campaign,” First Nations Child & Family Caring Society.

Mansbridge One on One: Cindy Blackstock,” CBC News (February 14, 2016).

Obomsawin, Alanis (director). Jordan River Anderson: The Messenger. National Film Board of Canada (2019). 

Obomsawin, Alanis (director). We Can’t Make the Same Mistake Twice. National Film Board of Canada (2016).

Timeline: Jordan’s Principle and First Nations Child and Family Services,” Indigenous Services Canada – Government of Canada.