The First Nations Child and Family Caring Society (the Society) filed a discrimination complaint against Indian and Northern Affairs Canada (INAC) - now called Aboriginal Affairs and Northern Development Canada, alleging that services for children on Canada’s aboriginal reserves are not funded fairly. According to the Society, INAC retaliated by excluding their Executive Director from important meetings, and the Society filed a second complaint against INAC in relation to that exclusion.  Recent documents suggest that INAC officials also initiated a program of systematic surveillance of their Executive Director, both in her professional and personal life.

Established in 1977, the Canadian Human Rights Commission is an independent government body that oversees the Canadian Human Rights Act. The Commission receives and investigates complaints about discriminatory practices arising under federal jurisdiction, which includes the services provided to First Nations people living on reserve.

In February 2007, the Society and the Assembly of First Nations (AFN) filed a discrimination complaint with the Canadian Human Rights Commission against Indian and Northern Affairs Canada (INAC).

The complaint alleged that INAC funding for Aboriginal family services at the federal level is significantly less than funding for off-reserve children who receive the same services from provincial governments.  The Society and the AFN argue that the underfunding of services for on-reserve Aboriginal children is  discriminatory under the Canadian Human Rights Act.

In October 2008, the Commission referred the case to the Canadian Human Rights Tribunal for a hearing. This step occurs when the Commission has determined that there is sufficient evidence to support the complaint.

In 2009, the Harper government appointed a new Chair to the Tribunal, Shirish P. Chotalia, who was later designated to preside over the Society’s complaint.

Exclusion

The Society alleges that, between 2008 and 2009, INAC began to exclude the Society’s Executive Director, Cindy Blackstock, from meetings between INAC and other Aboriginal leaders, and that this was a response to the Society’s initial human rights complaint. So, in January 2010, the Society asked the Tribunal for permission to amend its complaint to include allegations of further discriminatory treatment by INAC, relating to Blackstock’s exclusion from meetings. As such, the Society argued that INAC had treated the Society in an adverse and prejudicial manner and that this treatment constituted an act of retaliation against the Society.

Delays

In June 2010, Tribunal Chair Chotalia began hearing the case, but the case soon stalled. The delay lasted almost a year, with Chotalia holding no further hearings, issuing no decision, and refusing to consider the Society’s motion to include the retaliation complaint in the proceedings.  Since the retaliation complaint had to be filed within a one-year period, the Tribunal’s delay forced the Society to re-file its retaliation complaint with the Canadian Human Rights Commission in order to preserve its right to make the complaint.  The Tribunal’s delay was so significant that the acting Chief of the Canadian Human Rights Commission publicly criticized the Tribunal for inordinate delay.

Faced with the Tribunal’s lack of action, in February 2011, lawyers for the Society made the unprecedented decision to apply to the Federal Court of Canada and request that the Court force the Tribunal to hold hearings into the merits of the case.

Case Dismissed but up for Judicial Review

Less than a month after this application, Chair Chotalia dismissed the case, finding that INAC was not responsible for discriminatory funding practices.  Chotalia reasoned that, as a matter of human rights law, the federal funding of services for on-reserve Aboriginal children could not be compared with the provincial funding of services for off-reserve children.

In April 2011, the Canadian Human Rights Commission applied to the Federal Court of Canada for a judicial review of the Tribunal’s decision.  In its application for the review, the Commission alleged that the Tribunal’s decision had applied the law incorrectly, and further that it had erroneously failed to conduct a full inquiry into the merits of the complaint, thereby violating basic principles of procedural fairness. The judicial review is scheduled for a hearing before the Federal Court in February 2012.

As of December 2011, it has been more than a year since the Society filed its retaliation complaint against INAC with the Canadian Human Rights Commission, but the complaint has as not yet been considered.

Blackstock systematically monitored?

The ongoing delay caused the Society to be concerned about further retaliation. Consequently, Blackstock filed an Access to Information Request to obtain any information about her that might have been collected by the Government between June 2009 and June 2011.

Blackstock received the documents in November 2011, and says they indicate that INAC systematically monitored her private and professional life.

INAC allegedly collected Blackstock’s personal information from her personal Facebook page, and from her Status Indian file, which includes data on her family.

INAC also allegedly assigned several federal officials to follow Blackstock in her professional activities, attending 75 to 100 of her public speaking engagements on the state of Aboriginal children’s rights in Canada.  According to Blackstock, the internal reports about her activities, produced by INAC officials and circulated within the Department, sometimes employed a mocking tone.

Blackstock also alleges that the products of these surveillance activities were shared with the Department of Justice legal team, charged with defending INAC in the Society’s discrimination complaint.

Blackstock argues that this creates a clear link between this surveillance and the Society’s role in bringing the discrimination complaint forward.

INAC has refused to comment specifically on Blackstock’s Access to Information documents except to say that it “routinely monitors and analyses the public environment as it relates to the department’s policies programs, services and initiatives. This is done to do a better job in service delivery and policy’’ and that “social media sites such as Facebook and Twitter are public forums, accessible to all.”

On national radio, Blackstock asked Canadians to question which policies and services have been improved by INAC’s systematic monitoring of her public and private activities, and why such a large investment was put into monitoring a citizen with no criminal record, whose single goal is to help secure the fair treatment of Aboriginal children.

Relevant Dates:

• February 2007 - The Assembly of First Nations and the First Nations Child and Family Caring Society file a complaint with the Canadian Human Rights Commission, against Indian and Northern Affairs Canada.
• October 2008 - The Commission refers the case to the Canadian Human Rights Tribunal.
• 2008-2009 - The Society alleges that its Executive Director, Cindy Blackstock, was being excluded from meetings between INAC and aboriginal chiefs
• January 2010 - The society amends its complaint, to include the allegations of exclusion.
• 2009-2011- After a successful Access to Information Request filed by Blackstock, she alleges that INAC has been systematically monitoring her private life.
• 2010 - The government-appointed Tribunal Chair, Shirish Chotalia, begins hearing the case. There would not be another hearing for almost a year: such a delay was puclicly criticised by the acting Chief of the Canadian Human Rights Commission.
• February 2011- The Society applies to the Federal Court of Canada to force the Tribunal to hold hearings.
• March 2011 - Chair Chotalia dismisses the case.
• April 2011- The Canadian Human Rights Commission applies to the Federal Court of Canada for a juducial review of the decision.
• 2012 - The judicial review of the Tribunal's decision is scheduled.