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

On the Path, Together

2015 Blashko MichaelBy Michael Blashko

It’s hard to believe it’s already been over a month now that I’ve been working at the First Nations Child and Family Caring Society in Ottawa. I have had the opportunity over this time to work on some interesting things, to consider some important questions and compile a lot of information. There are times where it feels like I’m waiting for my true work to begin here, which would likely occur if the decision for the Caring Society’s case in front of the Canadian Human Rights Tribunal actually comes out while I’m here. But it is neither my current, nor my potential future work that I want to talk about today. Instead, it is the work of the past that I would like to focus on. I always find the best place to start with is the past, and it is something that has been occupying my mind of late.

When I first started working here, I did a lot of reading and researching to get caught up as much as I could on the history of the case, the projects that the Caring Society espouses, and context in which the original complaint was filed. Throughout all of this, I felt overwhelmed at what I had just stumbled into the middle of. The amount of time and work that had clearly gone into all of these initiatives was intimidating, from the lawyers in the court case, to the children who have participated year after year in the annual events the Caring Society helps to organize. Factums had been written, awareness raised, partnerships and alliances created, and steps had been taken (both literally and figuratively).

It was around this time that I realized that this internship never really was, and certainly never would be just about gaining professional experience and course credits. I can’t help but feel as though the work, passion, and sacrifice of all the people that have contributed to these initiatives and continue to do so, impose a responsibility on those who come after them to match that effort, to see their work continued and hopefully one day completed. The fact that I am only here for three months does not diminish this feeling; in fact it intensifies it in that I hope in this short time that I am able to make some sort of meaningful contribution in turn.

The Caring Society itself is made up of people who fit this description of hard work and an intense passion. It is an organization that operates nationally, that plans and coordinates events, that conducts research, that coordinates with other organizations, participates in conferences and events, and that throughout it all still manages to engage those for whom it advocates, children and youth. All of this with only three permanent staff members. Even considering all of this, I think that they would agree with me that it is actually this last group, the children and youth, that most incite this feeling of responsibility. They have so much to contribute and in too many cases, have sacrificed too much already.

The main focus of my time here so far has been to examine and engage with Jordan’s Principle. Briefly, Jordan’s Principle was created in memory of Jordan River Anderson from Norway House Cree Nation. Jordan was born with multiple disabilities and lived all five years of his life in a hospital because the Federal and Provincial governments could not agree on which one of them would pay for his home care. This Principle is meant to resolve such jurisdictional disputes by putting the child first and was unanimously endorsed in the House of Commons in December 2007 but the government’s implementation of it has narrowed its applicability and ultimately failed these children.

I have also had time to look into another initiative known as Shannen’s Dream, named in memory of Shannen Koostachin who was a strong advocate for the right of Aboriginal children on reserve to safe and comfy schools, and a culturally based education. These two Aboriginal children and others like them have become the true inspiration behind the Caring Society. The statistics on First Nations child welfare services, education and health care are abysmal and show that Aboriginal children are facing a dangerous mix of systemic issues and inequitable treatment. The need for their voices and experiences to be heard in all of this is significant.

There are young people who have stepped up and certainly others who will do so in the future. I have met a couple of them already and it is clear to me from what I have seen so far that their years (!) of being involved with the Caring Society have set the bar quite high in terms of their commitment, energy and the impact of their message.

I would like to conclude by saying that over the last week or so I have had the privilege to attend a few of the events related to the release of the Truth and Reconciliation Commission’s work over these last seven years. Perhaps this is part of the reason for my recent thoughts on the past, whether it be mine own, my family’s, that of the Caring Society or of Canada’s. It is the perfect example of a lengthy body of work by dedicated and intelligent people through which they have made an incredible contribution to our society, expanding our knowledge and with time, hopefully our collective understanding. I am hopeful that in light of this report, that many people across the country are now feeling this same sense of responsibility that I have had since I first started here and which has continued to grow, especially now.

It is not and should not be a feeling of responsibility rooted in guilt or pity, not one that was created out of the negative of the past even while it must recognize what occurred and the ongoing effects that were caused. Instead, I think it is a responsibility based in the work, struggle and courage of those who came before, each within and defined by the context of their time and their personal circumstances, it is a responsibility sustained by the hope of a better future.

Perhaps there are others who are feeling this same sense of responsibility in their own organizations around the world, working on different issues, in different contexts with different histories. I doubt however that there are many that lack a similar history of passion and commitment as I have experienced. I guess what is really resonating with me at the moment is the current sense of hope, that all of the effort and sacrifice may actually be leading us somewhere positive, and that we’re gaining momentum on that path.

IMG_0466

Here are some links to sources that may be of interest. The Caring Society website will provide more information for anyone curious to find out more about Shannen’s Dream or Jordan’s Principle. The focus of the Caring Society has historically been on First Nations Child welfare issues. I have attached a link to the Wen:De report, which provides some of the statistics and issues relating to First Nations Child welfare in this country.

http://www.fncaringsociety.com/main

http://cwrp.ca/sites/default/files/publications/en/WendeReport.pdf

For those interested and who have not already seen, here is the link to the TRC’s findings that they released this past week. They released their executive summary, their 94 recommendations, their principles for reconciliation and excerpts from testimony of some of the survivors, all of which can be found at this link.

http://www.trc.ca/websites/trcinstitution/index.php?p=890

Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.