Canada spent $14.5M fighting First Nations child advocate in court

Federal governments both Conservative and Liberal spent at least $14.5 million fighting a prominent First Nations child advocate in court over the last 18 years, according to a newly released estimate.

The Justice Department says it identified "approximately 19 litigation files" in its electronic system involving Canada and the First Nations Child and Family Caring Society, led by executive director Cindy Blackstock, dating back to 2006.

Blackstock is a Gitksan social worker, academic and advocate who spent those years fighting at the Canadian Human Rights Tribunal and in the courts to stop the underfunding of the on-reserve child welfare system. Disappointed but not surprised, she told CBC Indigenous the figure likely underestimates the true spending.

"I was really disappointed. This money should have been brought for the benefit of First Nations children instead of fighting things in court," she said.

"Especially because the government's record in court has been that it's lost virtually every application when it's fighting against First Nations kids."

Nine of the files were brought by Canada and 10 were brought by the Caring Society, with total associated costs amounting to approximately $14,545,000, the department says. This would average to about $800,000 per year.

The Justice Department released the information to New Democrat MP Niki Ashton, who filed an order paper question in October. She sought information on all cases involving Canada and the society, including citation, file number, date, court or tribunal and total expenditure. 

The Crown asserted legal privileges and withheld most of that information. Canada waived only solicitor-client privilege "and only to the extent of revealing the total legal costs and the approximate number of legal proceedings," the department said.

Ashton criticized the lack of transparency, but called it typical of a government that chooses to fight rather than live up to its obligations. The northern Manitoba MP said the effort was a waste of money better spent helping young people who live in some of the most marginalized conditions in Canada.

"It's sickening. We're talking about heroic work done by the First Nations Child and Family Caring Society, led by a well-respected Canadian figure and First Nations leader," Ashton said.

"For years they've attacked her and the organization but now we also find out that they spent $14.5 million to fight them and essentially fight First Nations youth in court. This figure is appalling."

The Liberals have long denied they are fighting Indigenous kids in court, saying Canada wants a fair resolution but turned to the courts for guidance on some of the human rights tribunal's precedent-setting orders.

Blackstock rejected that.

"The government's justification for spending this sort of money, in general, it's hogwash and it doesn't align with the factual record," she said.

"Even in filing the initial case, we exhausted every option, presenting clear descriptions of the discrimination and how it could be remedied by Canada, and even having Canada's agreement on some of those remedies, and Canada still chose not to do it."

A long battle

Blackstock and the Assembly of First Nations (AFN) opened the initial case together in February 2007. In a human rights complaint, they alleged the government's underfunding of on-reserve child and family services was racially discriminatory.

In response, Stephen Harper's Conservative government moved to have the complaint dismissed, and officials were caught wrongly spying on Blackstock in 2013. 

The court-like tribunal panel upheld the allegations in a landmark decision in 2016. Three years later, the panel ordered Canada to pay the maximum allowable amount of $40,000 to each victim as compensation. Prime Minister Justin Trudeau's Liberals challenged this order in court, but lost.

Eventually, Canada complied by agreeing to pay $23.4 billion in compensation, which also settled a related class-action lawsuit. The Liberals recently offered $47.8 billion over 10 years to comply with an order to reform the on-reserve child welfare system.

In a statement, Indigenous Services Minister Patty Hajdu pointed to that offer as evidence of Canada's commitment to resolving the matter.

"We reached a final settlement agreement that was rejected by the AFN and the Caring Society. The amount of funding in the agreement ended up $20 billion more than what was contained in the agreement in principle," Hajdu said in the statement.

"With Canada's nearly $48-billion mandate, we met the objectives all parties initially agreed on. We won't give up on kids and their families. We must all work to ensure children get the care they need — care that lets them grow up surrounded by language, culture, and community."

After reading the Justice Department's answer to Ashton's request, Blackstock also questioned what the phrase "litigation files" means. More than 30 orders have been issued against Canada so far, not 19, she said.

The society previously estimated Canada's legal costs at $10 million in 2012, so Blackstock doubted the Justice Department's figures are comprehensive.

"I think that this overall is an underestimate," she said.

A spokesperson for the minister of Justice referred questions about this to the department, which said it uses litigation files as an equivalent term for cases. The department again claimed solicitor-client privilege over any additional information or further breakdown of costs.