How activists negotiated a $40 billion settlement for Canada’s Indigenous children

NEWSCLIP WITH WOMAN SPEAKING:

Children taken from their families and put into a system underfunded and ill-equipped to deliver the basics of life led to generational trauma, harm and loss.

NEWSCLIP WITH SECOND WOMAN SPEAKING:

The federal government is offering $40 billion, the largest-ever proposed class action settlement in Canada.

NEWSCLIP WITH THIRD WOMAN SPEAKING:

One that provides fair and equitable compensation to First Nations children and families harmed by discriminatory underfunding.

CANADIAN WOMAN: 

And I thought, “Oh, my God, we’re going to have to take these guys to court!”

CINDY BLACKSTOCK: I grew up in northern British Columbia, and I grew up at a time when residential schools were still operating. And in fact, I was—my first job at the age of 21 was being a child welfare worker while residential schools were still operating. And what I saw is a lot of First Nations kids coming into care, and the reasons for which they’re coming into care seem to largely be out of the control of the families themselves. You know, there’s a stereotype in child welfare that is when parents mess up or they don’t care about their kids. And what I was seeing is that First Nations families were far poorer than everybody else, that they didn’t have the same education as everybody else, that they were experiencing a lot of trauma as a family that was passed down from one generation to another, and that led people to addictions and poor housing and lack of water. And I just thought—I’m all about holding people’s feet to the fire for things that they can change, but these people seem to have been given far more than their load of disadvantage. And being expected to be able to parent to the same standard as those people who did not have that experience. And that seemed to be completely unfair to me. That’s why we were seeing so many First Nations kids in care.

JENN: So in the early 2000s, you became the executive director of an advocacy group called the First Nations Child and Family Caring Society. And that’s where you still are today, right?

CINDY: Yeah.

JENN: What was your strategy at that point? What was, you know, what were you trying to accomplish there by forming that group?

CINDY: Well, I was so naïve. I thought the reason the government is treating these kids so badly in the wake of residential schools—by giving their families less funding for child welfare, less funding for basics like health care—is because they don’t know about it. 

JENN: Mm.

CINDY: So I’m going to work with the government, along with all other kinds of First Nations experts. We’re going to show them that inequality. We’re going to cost it out using credible sources of research. And then we’re going to present a solution. When we did the first report in 2000, we found that First Nations kids were getting $0.78 on the dollar. And the big deficit was lack of support services for families to stay safely together. And they got the report; you get the nice letter from the minister: “Good work, everybody. We’re reviewing it.” And nothing changes. Because they say the problem was not that the report wasn’t good, of course, but we need something more specific. So we do a more specific report. By this time, the inequality, underfunding of child welfare, that inequality had grown. And now First Nations kids are getting $0.70 on the dollar.

JENN: Wow.

CINDY: And it was only at that point that I realized that these guys were never going to change anything. This whole idea of doing the research and doing reports and doing inquests was a way for the government to look like it was helping kids while it continued to breach their fundamental human rights. And I thought, “Oh my God, we’re going to have to take these guys to court!”

JENN: So in 2007, right, that’s when you, your organization, and then as well as the Assembly of First Nations, you filed a complaint to the Canadian Human Rights Commission, right? So what was in that complaint? What did you file?

CINDY: What we alleged is that their failure to address those inequalities was directly linked to the overrepresentation of First Nations children in care. By this time, they were going into care at higher rates than in residential schools. Family separations were happening. And we said that Canada, therefore, has breached the human rights of these children and is discriminating against them on a widespread scale. And even then, I was convinced: now they’ll know we’re serious and they’ll do something. Well, they did do something. They cut all of our funding right away. And they then began to argue the case, not on the merits, not on what was happening for kids, but instead, they argued that they were the victims. They put eight motions to get the case dismissed. It took us years to get it to trial until 2014. And when we did get it to trial, the courts had found on three different occasions that Canada had breached its own laws.

JENN: That’s remarkable. They cut your funding?

CINDY: Oh, yeah. Within 30 days. And then—

JENN: Well, it turns out they can act quickly when they want to, I guess. [LAUGHS]

CINDY: [LAUGHS] Yeah, they can! And then that wasn’t the extent of it. They actually—one of the ways they were found in breach of the law is that they were found responsible for retaliating against me. They actually deployed—and this is a matter of, of court record—over—nearly 200 different bureaucrats to follow my personal movements and to follow my online communications, to try and find something, ulterior motive for filing the case so they could get it dismissed. And this was found by the courts to be unlawful. They were prepared to fight to make sure that they could continue to hurt kids.

JENN: So part of the challenge that you brought was about Canada’s inequitable provision of child and family services and the failure to implement what’s known as Jordan’s Principle. Can you tell us about that and what that is?

CINDY: So the federal government funds public services for First Nations reserves, but the provinces provide the funding for other services, often at far-higher levels. What Jordan’s Principle is—it’s named after a little boy named Jordan River Anderson from Norway House Cree Nation. This little boy was born in 1999, and he had some medical issues. He had to stay in hospital for two years. But finally, the day comes when he could go home. And he needed some support at home, though. Those supports would have been funded if he was not First Nations. But because the federal government underfunded everything, they said, “Oh, well, you know, we don’t want to fund all this stuff he needs, and surely the province could pick up some of this.” So they literally argued for over two and a half years about who should pay for this kid, like this puck-passing from adults. And meanwhile, this little boy—as his sister, Jerleen Anderson, said, “He died of a broken heart.” He started to see other little boys come in to hospital not feeling very good, but then going home. And he was behind that hospital glass. And so he dies at the age of five, never spending a day in a family home, because he was a First Nations child. And the family said, ‘We never want to see this happen to other kids.” Yet it was happening to other kids—all over the country, First Nations kids were in this situation. So Jordan’s Principle says: when a First Nations child needs a public service, they should get it. And all the arguing between who should pay, between governments, that needs to be figured out later. And Canada passed it in the House of Commons. So every member of Parliament stood up and voted for it in 2007. And then they didn’t implement it. And the stories that we saw in Canada’s own records about the harms this was creating…like there were children who were denied enough feeding tubes. Their parents had to make a choice: Do I rewash this feeding tube and risk infecting my critically ill child, or do I not feed that child? And in one of those cases, one of those children died. This was the reality. And it wasn’t just health. It was education. It was other basics that other families take for granted. That’s Jordan’s Principle.

JENN: So in 2016, then, the Canadian Human Rights Tribunal ruled that the Canadian government had to reform its child and family services programs for First Nations. So can you just explain to us what exactly the tribunal’s role is in Canada? We don’t have quite the same thing here in the United States. So what that tribunal is, and what that ruling did for your case.

CINDY: Right. So the tribunal is actually a court. It can make legally binding orders. So we had a case that—our trial was 72 days long. So hundreds of documents were filed in this case. So they find that Canada is racially discriminating against at least 165,000 children, and they order the government to stop. The government parades out ministers saying, “Yeah, we’re all about reconciliation. We’re going to”—you know. “We welcome this order.” And then what did they do? Just like clockwork, they didn’t. They failed to comply. We’ve— over the last six years, have had 22 noncompliance and procedural orders against the government of Canada, trying to get them to comply. And slowly but surely, kicking and screaming, we’ve dragged them to do the right thing for kids. But that noncompliance? The courts—the tribunal has found that noncompliance has been linked to, at least, the deaths of three children who were denied vital mental health services that they ought to have received under those orders. So this noncompliance is not benign.

JENN: I think a lot of our listeners probably are familiar with at least this—that last year, there were hundreds of unmarked graves that were discovered at the sites of two former residential schools. And you said you thought that was a turning point for the Canadian public. Can you tell me a little bit about that? You know, how you think that changed the dynamics a little bit here?

CINDY: Yeah. The survivors had told their truths about the children in the unmarked graves for over two decades now. But that did not pierce that propaganda that, that Canadians have been fed, like, “We’re a good country based on human rights.” And that’s true for some people, but not in this case. And so when the physical evidence of children in unmarked graves—we’re now at, by the way, over 10,000 of these unmarked graves have been found in residential schools over Canada—people could not look away. They couldn’t excuse it, like, there it was right in front of them. But you have, right now, Canada fighting in court against this generation of kids. This is on your watch. And what it takes for you to make a difference is to get a hold of your member of parliament and to say, “Not—no, no. No more. You need to stop your behavior. You are—the government is a repeat offender against First Nations kids and we won’t stand for it. So if you continue to violate their human rights and discriminate against them, you won’t get my vote, regardless of what kind of political party you hold at the next election.” And that worked, because the Prime Minister was asked about—this became an election debate issue, and that resulted in the government saying, “OK, we’ll, we’ll—we’ll sit down and we’ll talk.”

JENN: I would love to talk a little bit about the negotiations for this settlement that recently came out. So it was only possible, as we said, after years and years of litigation on, on your part, several other cases against the Canadian government. So in November, former Canadian senator Murray Sinclair also was brought on to help negotiate a settlement out of court. Now for our listeners—I know you know, but—he’s also a well-respected Indigenous judge. So if you could just tell me about what you saw, what you experienced, what you heard in those meetings, maybe one of those meetings, with Sinclair?

CINDY: Well, Murray Sinclar, another thing he did was the Truth and Reconciliation Commission. 

JENN: Right.

CINDY: He was one of the—he was the chief commissioner. So he enters into this with a real sense of the continuity of history, and the patterns of history that have been so problematic. I can’t go into a lot of detail of what happened in that room, but I can say the end result of that was that the government agreed to compensate the children who it had hurt, including those who had died. But it capped that value at $20 billion. And it’s important to know that they were already legally obligated to pay the kids $40,000. So it announced this—basically, that it’s willing to comply with the law. And it also says, “OK, well, we’ll announce further monies to help First Nations families over the next five years.” Now, this sounds good on its face, because it’s a—you know. But then, when you look at it more closely, you realize, OK, five years. What happens in year six?

JENN: Right.

CINDY: How are you going to be reforming yourself, government, so that you don’t do this again? These are some of the big questions. And we’re working right now with First Nations, and First Nations experts in child and family services and other experts to really map this out. To say, “OK, when you have a system this embedded in systemic racism, how do you change that system? And how do you then also ensure that the monies are rolled out in a way that they actually have real benefit for the children and families on the ground?”

JENN: Yeah. So I know that, you know, I don’t want you to—I know there are legal issues around what you can and cannot say, but our show is, is called The Negotiators. So…

CINDY: Yeah.

JENN: …I wonder if you could take us into the room of those negotiations with the government. How were you feeling, personally? Was there a lot of pressure to get a bigger deal or, you know, on your end to not compromise on certain things? Obviously, negotiation is about having to compromise on some things. So what was that like for you to be in that room and just, kind of, maybe paint the picture for us?

CINDY: Well, I think it was a really interesting challenge, because, for us, we are really focused in on what’s happening with kids on the ground. That’s our measure of success. It’s whether or not we walk into a nation and that child says, “You know what? My life’s a little better today than it was yesterday.” 

JENN: Yeah.

CINDY: But you have other parties around the table where they have different measures. For example, with Canada, they want this political pressure to go away. I still feel that, in many ways, their metric of success is having this case go away. 

I think the other thing that’s really interesting is that you start to see that, in these negotiation spaces, that is actually one of the colonial tools. Just like the report process I was in. Going into a private dark space to talk about the children of other people—that struck me as very uncomfortable. Why is everything secret in this space? You know, the European Union negotiates trade agreements in an open negotiation. You can go and check on a website and see what somebody’s proposal is. Why aren’t we doing that for children? And so I would consistently go back and think about those children. And this was hard during the pandemic, because one of the things I did before is I was on the road 200 days a year. And that was necessary, because I felt I needed to be accountable to communities. I need to be learning from them. And I needed to see the kids. Because I didn’t want to make the mistake that Canada had, which is that they lose their humanity, so violating their human rights becomes easier. You start to think of them as a file, or a group, but you don’t think of them as individual children with wonderful potential that you owe a solemn duty to. So I actually think that we need to step back and look at these negotiating spaces and ask ourselves whether they are tools for the observance of human rights or whether they are tools of colonialism. The truth is probably somewhere in between, but I think we need to really change up the way that we do these negotiations writ large.

JENN: That’s a fascinating perspective that I’ve never heard. And we’ve done a full season of this and I’ve never heard—I got chills, honestly. You picture negotiations, right, as being this, like, black box. This—behind closed doors, in secret. That’s why we do this show, is to try to open those doors and let people see what that’s like. But that’s fascinating. And I love how you keep going back and talking to the kids themselves, and reminding that this isn’t a file, this isn’t—and that makes total sense, that bringing people, separating them, separating you from the kids, bringing you into some government room would have that effect of trying to separate the humanity.

CINDY: Right. And then the other thing that they did to us—which actually turned out to be a big gift—is cutting our funding. Because when they’ve done that to every other organization, they’ve died, right? 

JENN: Yeah.

CINDY: Indigenous organization in Canada. But for us, you know, we’re a pretty scrappy little group, and we were really little, so we didn’t need a lot of money. And we survived. We don’t get government money. So unlike a lot of, unfortunately, a lot of our First Nations political organizations, which are dependent on the government, we don’t have any skin in the game. I don’t care—you know, and even when they announced this $20 billion, I didn’t go to the news conference with the minister, because photo ops are their currency. It gives the illusion that something is happening. What I said is, “Those are words on paper, and they’ve changed no child’s life today.” I will—I want to see what that looks like at the level of the child. So there’s these things that we do in negotiation that seem normative. And I think one of the benefits I’ve had is to kind of come in there with—kind of a questioning piece, which is, “Why would you do this this way?” Why—how comfortable would any parent be to know that there’s a group of people who aren’t a part of your family that are going to negotiate something that is going to have a direct impact on your child? And you aren’t going to know what they’re saying in that room, but they’re going to come out with a big deal, and there will be a lot of fanfare and confetti, but it might actually not be a good thing for your kid. I just thought, “No, we have to push back. We have to expand this. We have to start asking ourselves these courageous questions about negotiations.”

JENN: Do you feel hopeful? I mean, given—I know you’ve fought for this for so long. Do you feel like there’s a chance they might actually do that, ever? Or is it just a “keep pushing them, keep pushing them” kind of thing?

CINDY: Well, I think I’ve come to understand, after all these years, that governments are really sociopaths. They’re neither moral or logical. But the good thing about sociopaths is that they respond to the situation that gives them their lifeblood, which is the Canadian public. I was taught years ago—actually by a maintenance man in India—that governments don’t create change; they respond to change. And the key work we need to do is not to have Canadians turn the page on those headlines.

JENN: Yeah.

CINDY: And that’s the danger of this negotiation going into dark, because the headlines fade; they’re already fading. And that works for Canada. It doesn’t work for kids. So if we can keep the Canadian public’s pressure, and show them that, look, you can make a difference. It might not feel like a lot when you send an email to this elected person, or when they come knocking for your vote, that you’re sitting there with one of those legal decisions, saying, “Hey, what have you personally done about this?” But it actually makes a huge difference. This is how the world changes for the better, is when all of us take literally a couple seconds—it doesn’t take any money. It just takes, “Hey, you know what? I care enough about these kids, and I care enough about human rights around the world to actually do something.” Then I think we will see real change. That’s the only thing that’s got us this far.

JENN: You’ve been doing this for 15 years, having setback after setback, and then, you know, fighting, fighting, fighting. That must have been just emotionally really hard on you all of all of, all of these years. How did you, you know, just keep going? How do you keep your spirits up?

CINDY: The hardest part was knowing that kids were suffering while we were still trying to get them to be accountable. And it was also about—I’ve always been very vigilant about the danger of trying to be right versus do right. So to me, doing right is holding yourself accountable to the evidence. It’s about not being ideological. Because when you’re in a fight, it’s so easy—and that’s what she was doing, on “Team Canada,” right? 

JENN: Mm-hmm.

CINDY: “Well, this is a—I’m on this team, and we’re going to win at any cost.” You lose touch of the moral anchor. My job was to do right. There were times when I was crabby and tired for sure, but I would just kind of say, “What is the message that I would send if I took the off-ramp?” Like, I literally can leave at any time and say, “Look, I did more than most people have for these kids.” But what is the message I’m sending that child? Is that, “Sorry, you’re on your own again to face these winds of discrimination.” I thought, “I may not be able to do much, but the number-one thing I want them to know is that I love them enough to stand with them.” And even if I fail, that is something I want them to have as a, as a warm hug, so that they know they’re not alone again. That’s what kept me going. That, bath bombs, and we have these fabulous things up here called Hawkins Cheezies. [JENN LAUGHS] If you ever come to Canada, you got to get yourself a bag. I’m telling you, like they are life-changing. 

JENN: [LAUGHS] OK, I’m definitely going to try those. I am definitely a fan of bath bombs, though. So that is— [LAUGHS]

CINDY: Oh, OK. Yeah. Like those are, you know, those are more universal.

JENN: Yes, It’s very, “Calgon, take me away” on days. Thank you again so much, Cindy, for all of your time and for all of your work.

CINDY: Well, thank you for the fabulous questions and the opportunity. I really appreciate this.

[SOUND OF BURKINABÉ MAN SPEAKING FULA]

MALE TRANSLATOR:

When he was not radicalized yet, I used to advise him, and there was a trust between us. So that’s why I thought I could approach him, and then give him some pieces of advice.