Re-Conceptualizing the “Enemy”

2015 Blashko Michael By Michael Blashko

In my time here at the First Nations Child and Family Caring Society of Canada, I feel as though I have learned a lot. I have learned not only from reading articles by academics, reports from various organizations, and legislation from the federal, provincial and international levels, but also more generally by getting some experience working in this field. I have had the opportunity to meet and interact with the people involved in the activities of this organization and members of others, to attend events and conferences to hear about a broad range of subjects, and to research and write about Aboriginal history and rights. It has been quite the experience and it is hard to understand how it will already soon be coming to an end.

Although we are still waiting for the Canadian Human Rights Tribunal decision to come down on Canada’s inequitable and discriminatory funding of First Nations child welfare services (and hope is quickly fading that this will happen while I am here), last month we did have one decision come down from the Tribunal. Dr. Cindy Blackstock, the Executive Director of the Caring Society, who filed the original complaint with the Human Right Commission, amended it in December of 2009 to include allegations of retaliation by the federal government against for having filed that initial complaint. The CHRT found that the Government of Canada (the special assistant to the Honourable Chuck Strahl, former Minister of Aboriginal Affairs and Northern Development Canada, then known as Indian and Northern Affairs Canada) had in fact retaliated against her for filing the complaint. They awarded $20,000 under two separate heads of damages, including what are essentially punitive damages because they found their actions to be of a willful and reckless nature. Dr. Blackstock intends to donate the financial award to children’s charities.

Of course I was not working at the Caring Society while any part of the case before the Tribunal was ongoing. What I can say is that it has been extremely interesting to have come in and read documents such as this decision and to also hear some thoughts and reactions to the tactics and approach of the government, through their representatives from the Attorney General’s office. All of it has made me reflect not only on what it is that we are fighting for in this organization, but also who and what we are fighting against.

Perhaps it was always a little naïve, but throughout the majority of my life I can generally say that I have trusted that the government genuinely had everyone’s best interests in mind as it went about the business of governing this country. In fact, over the last couple of years I have strongly considered exploring potential opportunities to eventually work for the government as I venture in search of a career post-law school. I can’t say I have that same level of interest now. This experience has granted a new perspective and while I acknowledge that it has been limited and brief, I like to think that this new view is informed by more than a simple “us vs them” or some kind of perceived “right vs wrong” mentality that seems as though it could be so easy to slip into in this field. I remain convinced that the government remains likely the biggest potential source of social change. It just seems to me, from this experience, as though the justice department may not be the best breeding ground for that kind of thing.

Once the retaliation decision came down, the government then had 30 days in which to file an appeal. Largely, the assumption was that they would indeed appeal it. Not only that, but it was also a popular prediction that they would wait until the last possible moment in the 30 day time limit to file, in order to delay the process as much as possible. I found that this kind of cynicism towards their tactics speaks volumes in relation to the legal process involved in fighting to enforce people’s human rights here in Canada. It is particularly jarring when contrasted against what is generally a very positive and hopeful work environment. I have seen this kind of cynicism towards the government’s approach (particularly of late) to protecting and ensuring the enjoyment of all civil and human rights extend to some of the events I have attended this summer as well.

This type of approach also seems evident in the legal strategy employed in their submissions to the Tribunal. Having read the AG’s factum containing their closing arguments, I found them rather uninspiring. There was very little engagement with the actual issues of the case, instead the focus was largely on using legal technicalities to undermine the complaint and simply have it dismissed. Threshold arguments, statutory interpretation and evidentiary burdens took centre stage. Perhaps it really was all they could do, after all how do you begin to justify what the government is doing (or rather, failing to do) for First Nations children on reserve? Not to mention how making those arguments would look. The lack of such arguments almost seems like a tacit acknowledgement of the legitimacy of the claims being made against them.

I recognize that the lawyers who work for the AG likely have very little say in the process, although an area of interest for me would be to learn more about the relationship between the government and their legal team, to see how seriously their legal advice is taken or how much policy drives their strategy. I’ve heard the argument that those who work for the government can justify their roles in advocating against these kinds of cases by seeing themselves essentially as the crucible through which arguments for substantial change must pass to gain their legitimacy. I can see the truth in that perspective, but in this case there has been no actual arguing of its merits, only attempts to ensure that this complaint would never have the opportunity to prove the legitimacy of its claims. I have difficulty understanding how playing a role in doing essentially everything possible to delay and deny the rights of children, how to seemingly be so clearly in jeopardy of being on the wrong side of history (as our country has been all too often on Aboriginal issues), can be justified. It is also important to note that it can be argued that the government is simply exercising its legal rights, just as we all have the right to do. However, somehow this argument rings hollow to me in cases such as these.

As it turned out, surprisingly enough, the government did not appeal the retaliation decision. I found this surprising not only because it seems to run counter to their normal tactics, but because in my opinion there may have actually been a potential argument to be made in regards to the damages that were awarded, specifically in relation to the punitive damages.

So to conclude this lengthy post, perhaps referring to the government as the “enemy” is a bit hyperbolic, but it is clear that their approach is meant to frustrate, and it appears to be working. I feel as though to say that I find these tactics frustrating after only being here for three months would be borderline insulting to those who have been working on these kinds of cases for years. It would also likely be of greater insult to those who are actually having their rights denied, or their enjoyment of them delayed, often with dire consequences. As of now, I can only describe my feelings as those of disappointment in the approach that my government is taking on these issues. Instead of accepting their responsibility, they are paying millions of dollars of tax payer money to fight these cases, figures which I am sure are being inflated by the delay tactics being employed. Last year, AANDC spent almost $60 million more on legal fees than they did only 6 years prior, which if this trend continues, will likely ensure plenty of frustration and disappointment to come.

Retaliation decision:

http://www.fncaringsociety.com/sites/default/files/2015%20CHRT%2014.pdf

Article on Government spending on legal fees by department:

http://www.lawtimesnews.com/201311113587/headline-news/feds-pouring-big-money-into-aboriginal-litigation

Government summary of AANDC legal fees:

https://www.aadnc-aandc.gc.ca/eng/1359569904612/1359569939970

Closing arguments of the AG in child welfare CHRT case:

http://www.fncaringsociety.com/sites/default/files/Federal%20Government%20Closing%20Statements.pdf

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