Last Friday we reviewed the Federal Court’s key findings on the case between the Attorney General of Canada and the First Nations Child and Family Caring Society of Canada. Today, we explore one of the stories behind the litigation. This is a story about the government of Canada’s failure to act either in good faith or in the spirit of reconciliation. A story that shows how the government perpetuated mistrust and animosity between Indigenous peoples and the Crown.
Artwork: “New Beginnings” by Christi Belcourt and Isaac Murdoch
The human rights complaint brought by the First Nations Child and Family Caring Society of Canada (Caring Society) against the Attorney General of Canada took eight years. During those lengthy proceedings, the Tribunal heard a separate complaint that the federal government had retaliated against Cindy Blackstock, head of the Caring Society. In this separate proceeding, the Tribunal found that the senior special assistant to the Minister of Aboriginal Affairs had retaliated against Cindy Blackstock for bringing forward the human rights complaint. But this was not Blackstock’s only claim of retaliation.
Blackstock also claimed that the government retaliated against her by denying her a position on the British Columbia Working Group on a new Enhanced Funding Formula for First Nations child welfare services, a position that she was more than qualified to hold. The Tribunal found that, although that decision was retaliatory on its face, it was reasonable for the Crown to refuse to hire a person who “publicly expressed negative views” on models of reform that were similar to BC's proposal. Blackstock had simply expressed negative comments about a similar funding model that was adopted in Alberta, and that she preferred more generous funding models.
Blackstock discovered through a request under the Access to Information Act that the federal government had monitored her public appearances and Facebook account after she filed the human rights complaint. She claimed that the government did so to retaliate against the human rights complaint. Although the Crown did not dispute that this complaint was one reason for monitoring her, the Tribunal found that it was not barred from doing so for the purpose of gathering information for the ongoing case. The Tribunal did not comment on whether monitoring Facebook was a violation of the Privacy Act.
Regardless of whether these activities were justified in law, they cannot be justified in principle and we should not accept them. Actions like these are “lawful but awful”. Collectively, they emphasize the power imbalance between parties. They can intimidate not only the target, but anyone who might consider bringing similar action against the Crown. It can especially intimidate Indigenous people who have suffered generations of harm at the hands of the government. These activities drive the litigant parties further apart and perpetuate Indigenous peoples’ mistrust in government.
Our country is supposed to be working towards reconciliation. These activities may not breach the law of retaliation, but they certainly impede our collective progress towards reconciliation.
It is important that we hear this story, dear readers, for two reasons. First, it is important that we all hear the truth about government actions that harm Indigenous peoples. We have left these stories untold for too long. Secondly, we must hold our governments accountable for acting in the spirit of reconciliation. Our elected representatives must know that retaliation against complainants, especially complainants who represent Indigenous interests, is unacceptable.
Until next time,
 Canada (Attorney General) v First Nations Child and Family Caring Society of Canada, 2021 FC 969 (CanLII)  Ibid at para 9.  First Nations Child & Family Caring Society of Canada et al. v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2015 CHRT 14 (CanLII) [Federal Court decision].  Ibid at paras 44-48.  Ibid at para 72 and 88-89.  Ibid at para 90.