This is the Every Lawyer presented by the Canadian Bar Association.

Brad Regehr: Tansy, bonjour and hello everyone. Welcome to conversations with the president. My name is Brad Regehr, this episode is presented by Lawyer’s Financial, get expert advice and quality insurance and investments with Lawyer’s Financial. And because they’re not for profit you get exceptional value. Get started at lawyersfinancial.ca.

Throughout this podcast series I’ve talked with Indigenous lawyers about the calls to action at the truth and reconciliation commission directed at the legal profession and the justice system. In this final episode I’m going to shift gears a bit to discuss what comes next. Is it possible to reconcile with a government that keeps taking you to court.

My guests today have extensive personal experience with the intractable nature of the problem with a particular emphasis on how governmental policies affect the next generations. Cindy Blackstock, a member of the Gitxsan First Nation is the executive director of the First Nations Child & Family Caring Society of Canada.

A former social worker with a long list of accomplishments and accolades including a Master’s in Jurisprudence. She came to most people’s attention when the society along with the assembly First Nations brought a case against the government before the Canadian Human Rights Tribunal. The case filed in 2007 accused the government of underfunding First Nations.

Dr. Pamela Palmater is a Magma lawyer, professor, author and social justice activist from Eel River Bar First Nation in New Brunswick. A practicing lawyer for 22 years, Pam has been volunteering and working on First Nation issues for over 30 years on a wide range of issues like socioeconomic conditions, aboriginal and treaty rights and legislation impact in First Nations.

Pam was one of the spokespeople and public educators for the Idle No More Movement and advocates alongside other members focusing on social justice and human rights. She is frequently called as a legal expert before parliamentary, senate and United Nation committees dealing with laws and policies impacting Indigenous peoples. Welcome Cindy, welcome Pam. My first guest is Dr. Pamela Palmater, welcome Pam and thanks for coming on the podcast.

Dr. P. Palmater: Thanks Brad, I am super pumped to be here.

Brad Regehr:   For decades now every time Indigenous people try to act within their section 35 rights or rights guaranteed through negotiated treaties, it seems like government takes them to court tying them up with years of litigation costing hundreds of thousands of dollars. It’s emotionally and financially exhausting. Pam, can you tell me what does the government gain from this?

Dr. P. Palmater: Well, I think the primary objective for them is they gain delay and people might not really understand the significance of delay. But delay means while you’re putting the issue off for you know, it could be upwards of 15, 20 years to get to the Supreme Court of Canada. You can continue to extract resources, breach people’s human rights, treaty rights, aboriginal rights, inherent rights without consequence.

And they’re able to do that and put it off to another government to have to deal with that at the end of the day. And so, we all know all of the weird picadillos around Canadian law where you know, it’s how could a court order and say oh, you have to put all those trees back that you took from this territory. You know, that’s never going to happen.

So, this is all in the government’s best interest according to what it thinks is in its best interest to continue to engage in meetings, tables, studies, research, and court cases. They get to keep doing what they’re doing without consequence.

Brad Regehr:   So, it’s interesting you talk about the resource extraction and on June 21 we had the new UNDRIP Act get royal assent here in Canada. What do you think that’s going to do? How does this, how does this assist Frist Nations or Indigenous people?

Dr. P. Palmater: Well, I’m glad you asked the question about the United Nations declaration on the rights of Indigenous peoples which we call UNDRIP because there’s a lot of confusion and misinformation and analysis about it. But at the core of it, it is another tool that is meant to constrain Canada’s actions and when I say Canada I’m talking about federal, provincial governments, municipal governments, and any entities.

So, that includes you know, transnational corporations or anybody else who is operating in Indigenous territories. It is meant to be a constraint on power, a limit on power. Will it solve everything, of course not, there’s no piece of legislation we can point to here in Canada or around the world that is the magic solution to Canada’s ongoing genocidal laws, policies, and practices.

However, the more tools we have to constrain Canada’s powers and abuses to me that’s, that’s powerful because this legislation, this you know UNDRIP isn’t directed at Indigenous peoples it’s not saying hey, Indigenous peoples here’s what you have to do.

This is all about limits on state power and state obligations. And I think the more we have of that it’s just another tool in our arsenal to get the work done so, that we have more tools to cause delay. You know, that we have more shields to protect our lands and powers and all of these things while we’re in the litigation process or we’re in the negotiation process or we’re in the advocacy process. Because right now as you know it’s very unbalanced.

Brad Regehr: So, I’ll admit that I follow you know, I’m on social media as many people are and lately in my feed you’ve been showing up with TikTok videos about land back. You’ve been doing a few of those lately, tell us more about land back.

Dr. P. Palmater: Yeah, I’m so glad you asked that because land back is like the heart of everything. Think about these you know, genocidal you know, organizations and governments and agencies that continue to extract and exploit Indigenous lands and bodies. And how they continue to do so with relative impunity and to their empowerment or enrichment and you know, to our suffering.

And when you think about land back it’s the whole concept of you know, getting our land back physically you know, people say oh, it’s just a metaphorical thing, no it’s not it’s actually yeah, physical land back. The majority of lands held in what is now known as Canada is held in so called federal crown land or provincial crown land.

And so, there’s a lot of land that’s available to actually be returned to Indigenous peoples without having to deal with so-called third-party interests or people who are already say living on territory. So, land back isn’t about displacing people who live here already, it’s about getting the lands back that are in crown lands, that are in leasing, that are you know, in permitted lands being used for economic purposes.

And it’s everything that surrounds the land so, it’s also about making sure that you know, our resources are back for us to manage how we choose. It’s also a recognition of our self-determination, our sovereignty our laws.

It’s about protecting our cultures, it’s about revitalizing our languages. When you think about the word revitalization what does that mean? It means getting it back. It means protecting it and growing it, and so, it’s all of that, it’s everything back.

Brad Regehr: I just want to shift gears a little bit here; at the Canadian Bar Association we have a motto, when we know better we can do better. You know, but in terms of residential schools, you know, the government and the public, they’ve known for decades that the residential school system was wrong. And we’ve had all these reports over the last 20 + years that brought that message home; why isn’t the government doing better?

Dr. P. Palmater: Because it doesn’t have to. And why doesn’t it have to? Because it holds all the power, all the wealth, all the resources. It has not just the power of a federal police force, but it has the military behind it and of course provincial governments have their own provincial and municipal police forces. I mean, this is what the situation is here in Canada, and while I would agree that there is some value in public education and advocacy and information.

And analysis with the hopes that once people know they will themselves take action because we know that the government’s known all of this long before the public has. So, the government knowing better doesn’t make them do better, it just makes them find ways to solidify, fortify their status quo so, that they can pre-emptively stop challenges in the future.

So, where the no better do better works is with the Canadian public because then you have Canadians pressuring governments to take action, forcing them. You’ve got the media just exposing all of the genocide and human rights abuses and corruption and fraud that happens in government.

And those things are powerful forces. And we’re only going to know better if we have access like through internet on social media, mainstream media, public education, education, wherever we get it within our workplaces.

That’s where the power is. Government is never, ever going to give up the power, wealth, and control that they have arranged for themselves through Canada’s laws, policies and practices unless they’re forced to do so.

And as you can see we do force them to do so whether it’s action on the ground, court cases, international advocacy, public advocacy, shaming. We have to literally use every tool to force them to take action.

Brad Regehr:   That’s really interesting because I know you have been involved in a grassroots movement, Idle No More. You know, a few years ago, several years ago that it was probably at its height though I know it’s still ongoing. But I remember going to a rally in Winnipeg and there was the police with their cameras taking pictures of us all.

How does these grassroots movements make sure that there’s clean water you know, readdress the wrongs of residential schools? Do you think that those grassroot movements can make this action, make this change happen?

Dr. P. Palmater: They already have. These grassroots movements are the – they are the solution. They are the cure because you have to look at it over the long haul. You can’t just look at little periods of time. So, think about you know, whether it’s Idle No More, or Wet’suwet’en Strong or [Mattagmi? 00:11:40] Strong or No Dakota Access Pipeline.

All of these movements have profound impacts on society, on what people are talking about, what people care about, and ultimately change. Because you have to look at these movements as planting the seeds of change not immediate change in among themselves. And that’s how we have to do the analysis, we have to see what impact did it have, what are the most profound things to come out of the Idle No More movement was the change in media about who they talked to.

Prior to that they talked to the same old people you know, it was always whoever’s elected at a national aboriginal organization or whoever is a so-called expert working in some official capacity. Idle No More, media didn’t even know how to handle Idle No More. Like who do you talk to, who’s your leader, where’s the constitution like where’s your coms people? There wasn’t it was an organic movement.

And they had to reach out and talk to people on the ground with lived experiences, the people with the actual rights holders as they called it. And that changed everything. You see now media engages on Indigenous issues with a wide variety of voices. Also, Idle No More had the powerful impact of bringing social justice groups together.

So, you saw people coming together, you saw Black Lives Matter and Indigenous peoples, environmental groups, human rights groups, anti-poverty groups, anti-homelessness groups, coming together and not just on the ground for the protests. But while all that was happening joint research was happening, joint strategies, joint advocacy planning.

And when we went to the United Nations or the inter-American Commission, you saw this powerful united front of all of these non-government organizations coming together to speak with one voice on human rights abuses in Canada and how we need to move forward. That is – that is powerful, that’s how we make changes for the future, and all of these things that happen like look at Wet’suwet’en Strong.

The court cases that came out of that. Forcing governments to come to the negotiating table, look at what’s happening in Migmagi? 00:14:01] You’ve got the United Nations telling Canada that they have to account to the world for what their failing to do in Migmagi, so, these movements have powerful impacts.

And the most powerful things that are happening are not the protests that you see in the streets, it’s what’s happening behind the scenes that people don’t get an opportunity to see. All of the planning, all of the joint advocacy, all of the strategies that are happening amongst the people because it’s the people who are the powerful ones who’ll make these changes.

Brad Regehr: So, is it possible to work with government, is it possible to reconcile with government? You know, a government that keeps taking Indigenous peoples to court or that keeps – that keeps obstructing things, is that even a possibility?

Dr. P. Palmater: Well, for our part it’s always been a possibility, I mean we actually entered into treaties, we’ve been holding out our hands in peace and friendship saying, hey, let’s work together. We meet them everywhere they ask us to, we have endless meetings, endless emails, endless letters and submissions. It’s literally endless, we give every single Minister of Indigenous Affairs or every Prime Minister an opportunity, a chance. So, for our part we’re already there.

The problem is on the government who has no good faith interest in addressing these issues and that’s why we need to meet them on the battlefield every single battlefield there is. So, that could be working in government and trying to change policy. It could be as someone who’s elected into government trying to force things on the political front.

It could be on the frontlines defending lands and waters, it could be in communications and advocacy, educating the public. It could be at the United Nations, it could be in court. You know, it’s literally everywhere there’s a battlefield we have to go toe to toe with them to effect change.

Because ultimately it is weakening their frontlines because like I’ve always said, they project a really hard frontline, but they’ve got nothing backing them. We have people backing us, we have our cultures, our traditions, all of our ancestors, our elders.

Everything backs us and what we’re doing and that’s how we’ve survived genocide and that’s how we’re going to survive the next government and the next one who continues to attack us. Because ultimately, they’re going to get worn down.

Brad Regehr: We’ve recently seen an outpouring of grief and outrage at the discovery of the unmarked graves you know, starting with Kamloops and going across the country, Alberta, Saskatchewan, Manitoba. They’re looking in Ontario at Six Nations and we know this is just the tip of the iceberg.

We know that there’s more to come and it’s starting to happen in the United States. It’s not just Indigenous people; I’ve witnessed it you know, in terms of non-Indigenous people as well. How do we, how do we harness that? How do we get that emotion to lead to change?

Dr. P. Palmater: Well, I think it’s very – it’s an organic process that happens naturally. You have people who you know, when they think about oh, my gosh this is not at all what I learned, this is not at all what I knew. I had no idea this is what reconciliation was talking about. You’re taking about you know, there’s going to be many, many, many unmarked graves, some of them may in fact being mass graves.

And not just around residential schools it will be around Indian day schools, it will be around Indian hospitals as the bodies of murdered and missing Indigenous women and girls continue to be found. All of this is something that Canadians just can’t fathom in their country and so, all of the emotional response, all of the shock and the horror and the disgust at how Canada continues these policies today is an organic process that will naturally and is leading to change.

It’s people working together, it’s calling out government, its putting pressure on, it’s media taking sustained interest in this issue that forces them to change, obviously. I mean, look the TRC had all of those recommendations around missing and unmarked – missing children and unmarked graves. Canada didn’t act on it so, we know the governments are not going to do it on their own.

But as soon as the first unmarked grave was made public and Canadians could see that and their profound response to that then all of a sudden the government scrambles to do what they should have done in the beginning. And identify monies and start talking to people about monies and supports and intergovernmental relations to get this to happen.

That’s how we’re forcing change. If we ever thing that by voting for any political party or any nice individual you know, is going to bring about the change that is gravely mistaken idea to have. It’s only when we push, when we act as the governments we are because remember whether it’s Canadians or Indigenous peoples it’s the peoples who are the government and it’s time we took back control over all these processes.

Brad Regehr: I want to ask you about an incident that occurred here last week here in my home territory where a Minister stood up, stating that in his view he thought that the intention of peoples who started residential schools was positive and that it was – there was good intentions. How do you respond to those kinds of statements after everything that’s happened?

Dr. P. Palmater: Well, I think when you know, NDP leader Wab Kinew stood up and challenged him and said that he can’t be standing there and saying that residential schools were good when they were meant to kill the Indian in the child.

And in a context of the last few weeks where we just see one unmarked grave after another after another; you can sense that things had changed. So, had he said this like when the former Minister of Indigenous Affairs under the Conservative government did a long time ago and said oh, residential schools were an education policy gone wrong, but they were well intended there was a little bit of hubhub, but not much.

Now you see the space that Canadians and Indigenous peoples are willing to give politicians shorter and shorter and shorter. So, this time the response was immediate right as it was happening and then the call for that Minister to resign literally the next day you saw all of the organizations you know.

You saw the assembly Manitoba Chiefs of the Chiefs Organization, MKO, and many others collectively saying along with Treaty Five saying no, this has to end, we’re done with this we’re not going to – we cannot work with governments who hold these ideas.

And no one believes for a second that this new Minister misspoke; we all know how coms work, we all know that they’re prepped for questions they know what kinds of questions they’re going to get. And we know exactly what they’re going to say; I mean, he’s basically just repeating what Conservatives all across the country have been saying for years.

Brad Regehr:   I have one more question for you and I’m going to take this back to the TRC’s calls to actions, and this is the Canadian Bar Association podcast so, I’m going to have to take it back to legal education which you’ve been involved with for a long time.

The calls to action did focus on education and did have things that were specifically directed towards the legal profession. History lessons, cultural competency training; what do you think what else does the legal profession and the justice system need to do?

Dr. P. Palmater: Well, I think they need to stop focusing on cultural sensitivity training and cultural awareness training which I mean, that’s been ongoing for decades and police forces and hospitals and lawyers. And it’s had zero impact because the problem isn’t our culture, the problem is their racism, their misogyny, their like they’re the ones who have the problem so, we need to train differently.

Here’s how your racism manifests into the deaths of Indigenous peoples or the dispossession of Indigenous peoples. And here’s what the impacts are, here’s what the legal impacts are and I think it needs to be mandatory training. I think it needs to be updated just like we have professional development requirements we have to do every year.

And I think we have to get out of this very limited vision that what we’re responding to is one or two calls to action in the TRC, the Truth & Reconciliation Commission and not thinking about the broader issues like what about the hundreds of recommendations in the Royal Commission on Aboriginal peoples?

Some of them were very much focused on education and training and accountability I might add. Or the Manitoba Justice Inquiry talked about this. The National Inquiry in murdered and missing Indigenous women and girls. So, we haven’t learned, we’re focusing on one, but we’re not looking at you know, the Donna Marshall inquiry this is a legal inquiry about failures in all of the justice system including lawyers.

Because we are Native People and that has never been effectively addressed and that’s on lawyers, that’s on lawyers, that’s on law firms, that’s on all of the professional development associations that represent lawyers. We are not doing what we’re supposed to be doing and this is contributing to the problems that are happening in society. And of all people that should be taking up these calls from all of these reports and every single justice inquiry including like the Ipperwash inquiry here in Ontario, it should be lawyers.

Brad Regehr:   Pam, I want to thank you for being my guest today; your passion on these issues is inspiring to so many people. I wish we had more time to talk about these things more in depth, but I really, really want to thank you for being my guest today.

Dr. P. Palmater: Well, thank you for having me and for actually covering these issues so that we can help educate ourselves, our colleagues as lawyers, but the public in general.

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Brad Regehr: My second guest is Cindy Blackstock. Welcome Cindy to our podcast.

Cindy Blackstock: Thanks for having me Brad.

Brad Regehr: I want to ask you about the case that the Society brought against the government; can you talk a little bit about that what that’s all about?

Cindy Blackstock: Sure, a lot of your listeners may not know that the federal government funds First Nations public services primarily on reserve, but in the case of health off reserve as well. And since confederation it is underfunded all of those public services. One of the results of that systemic discrimination is that there are more First Nations children being places in foster care than at the height of residential schools.

Because the families came out of the last residential school closed in 1996 with a lot of multigenerational trauma and with fewer resources to be able to address that. So, the leading reason why First Nations kids come into care is poverty, poor housing, and caregiver substance misuse.

We worked with the Assembly of Frist Nations and the government of Canada for over 10 years trying to develop solutions to remedy this inequality and stem the tide of these kids being removed from their families unnecessarily. Canada welcomed both those solutions and didn’t implement them.

So, in 2007, we filed a human rights complaint against the federal government alleging their failure to equitably fund child welfare. And their failure to implement Jordan’s Principle so, that First Nations kids could get access to the public services they need when they need them amounted to racial discrimination. And that case has now been going on for 14 and a half years and counting.

Brad Regehr: That’s a really long time for –

Cindy Blackstock: Yeah, if this case was a child it would be driving in a year and a half right. And Canada has fought it tooth and nail primarily on jurisdictional grounds. At no point has Canada advanced an argument it was really based on the best interests of children. It does not want to talk about the children because the evidence of the harms to the children is really overwhelming and that’s what the tribunal found when it substantiated our complaint in 2016.

It found that Canada’s systemic and conscious racial discrimination against these children was not only contributing to their placement in child welfare, but also to harms to these children and to the deaths of some of the children. Canada was ordered to stop its discrimination, it paraded out Ministers to welcome the decision and then they repeated the pattern again and didn’t comply.

So, we’ve had to go back to the tribunal for 19 further orders against the federal government and just as recently as three weeks ago we were in federal court dealing with two of Canada’s judicial reviews on compensating the children who were so harmed by Canada’s willful and reckless discrimination. And also, trying to counter Canada’s efforts to deprive non-status First Nations kids recognized by their nations off reserve from help under Jordan’s Principle.

Brad Regehr: Have they tried to justify all of this stonewalling and all of this continual court action?

Cindy Blackstock: Yeah, the justifications we hear are things like well, the tribunal has exceeded its jurisdiction. Or look at all the money we’ve already spent without mentioning the fact that we had to force them to spend that money via Court Order. Or we’re never going to be perfect. Those kinds of rationales are often used        in the courtrooms most dangerously and the most recent action Canada was saying, individual victims of systemic discrimination ought not receive human rights damages.

That was a really concerning argument to us because if you take that to its full extent then people like Joyce Echaquan who clearly was a victim of systemic discrimination under the most horrible circumstances of her last moments of life would not be entitled to human rights compensation.

And also, George Floyd if he was a Canadian would not be entitled to it. So, they’re mounting these very dangerous arguments. They really have at their aim the making the federal government above the law. Everybody else would be subject to these laws, but the federal government wants to immunize itself from review under human rights law.

Brad Regehr: You’ve said that racial discrimination is a federal fiscal policy, can you explain what you mean by that?

Cindy Blackstock: Yes. Because ever since confederation the federal government has known it under funds these services. In fact, Brad you and others have seen the news about the children found on the grounds of residential schools who died and were buried in unmarked graves. Well, we don’t know the exact cause of death of some of those children, we have strong reason to believe that many of their deaths were preventable.

Because in 1907 Canada’s own Chief Medical Health Officer pointed to inequalities in health funding, and to bad healthcare practices in the schools being linked to death rates from tuberculosis at 20 times the rate of other children at that time. And his name was Dr. Bryce and he said that if they fix this problem they could save a lot of these kids’ lives.

The government of Canada chose not to do it, and Bryce’s report was leaked to the media where a lawyer, actually the founder – co-founder of Blake’s law firm, Samuel Hume Blake said that in that Canada fails to overt the preventable causes of death it brings itself to unpleasant nearness with the charge of manslaughter. It was also carried in newspapers where there were headlines like the children are dying like flies, absolute inattention to the bare necessities of health.

And we see this in the historical record across different programs like water, housing, healthcare, children’s services across the decades. And we see the government make the choice to not implement those solutions. When we have been dealing with these inequalities for First Nations kids, there are solutions on the books. The federal government chooses not to do it.

Therefore, I say that they really embrace this idea of racial discrimination at fiscal policy. They want to shortchange these children and their families so, that they can spend money on things like doing a multi-billion-dollar renovation of Parliament buildings.

Brad Regehr:   So, let’s talk about the current child welfare policy. Children in record amounts are being taken from their homes due to the allegation that there’s a neglect and you know, is this going to create harmful effect that we had from the residential schools if these children aren’t growing up with their families? Is it going to be the same kind of impact?

Cindy Blackstock: Yeah, I think it is. We’re already hearing that from youth in care who are growing up in foster care often moving into multiple placements. And being dislocated from their cultures and their languages and dealing with a lack of support in the child welfare system.

Because the child welfare system is so overloaded with these cases that the children are not receiving the attention and support that they need and that they deserve. So, this is why it’s so important that we amend child welfare laws so, that we don’t codify what are structural issues and what I mean by that Brad is things that are reasonably beyond the ability of the parent to control on their own. So, we don’t codify those as a parental deficit and that’s what child welfare laws do.

And I would say if anyone is amending their law, that is the major challenge they have to do is address those systemic and structural issues and make sure that we’re holding parents speak to the fire for things that they can change. But not for things that are beyond their reach, and that’s why far too many kids are going into care is in that there’s been inadequate attention to the structural drivers.        

Brad Regehr: At the CBA we have a motto; when we know better we can do better, but the government and the public you know, they’ve known for decades that the residential school system was wrong. We’ve had all these reports over the last 20 + years that have brought that message home to people. Why isn’t the government doing better?

Cindy Blackstock: Because it’s choosing not to do it, it’s a deliberate choice. I really believe that the colonialism is so infused in the federal government’s DNA that it is either unwilling or unable to change sufficiently. And that’s why litigation is such an important part of this, and what we’ve done Brad which is different than what many other cases that have been brought, is that we’ve kept this litigation in the public light.

And we’ve actually engaged children in learning about the litigation and being active participants in addressing the injustices that First Nations kids face. So, children started attending at the hearings in 2009, by 2012 so many children wanted to come that we booked them in in shifts. And unlike adults they had not been kind of programmed if you like to normalize this discrimination.

So, children of all diversities were just horrified by it, and they would send letters to their political leaders and everything else to try and change things, and they educated their own families. And as a result, and so, this whole engagement of children in the case has been really important in keeping our attention clearly on the First Nations children. But also, engaging non-Indigenous children in true justice-based reconciliation. And I’d like to see more litigation do that.

Brad Regehr: Do you think it’s possible to work with government to make the changes we need or no?

Cindy Blackstock: Not right now I don’t think. No. I remember years ago I went to India and I was – I went to Mahatma Gandhi’s house, and I had made my way through the museum and there was a maintenance guy on the other side. And he asked me what I did and I told him; I said, working with the federal government to address these inequalities and we create these reports, they agree with them.

And then they don’t implement or they cherry pick the easiest things and leave the substantial things undone. And he finished his cigarette after my 20-minute rant, and he said, did you learn anything in that house? He said, governments done create change, they respond to change. Your conversation has to be with the Canadian public to create and put pressure on the government so, that there’s a different environment there for collaborative work.

And that has stuck with me all these years. I think that we need something akin to the civil rights movement to really push government. I think it’s a mistake actually to sit down with government right now because they’re not obviously motivate towards doing things in a good way.

Brad Regehr:   We’ve had you know, over the last number of weeks we’ve had you know, the discoveries in BC and Saskatchewan here in Manitoba they’ve talked about the school in Brandon. Six Nations in Ontario is not doing its own investigation, and we know there’s going to be a lot more discoveries to come.

Why doesn’t that emotion and it’s been emotional, it’s been emotional for Indigenous people, I’ve witnessed it’s been emotional for non-Indigenous people. Why isn’t that turning into action, how do we change that?

Cindy Blackstock: I think one of the things is and we see governments do this a lot. We saw the Prime Minister do it; you know, this is a dark chapter in history, and the reason we like to think of it as a dark chapter in history is that we don’t have any accountability to that. And what I have been trying to do is say to folks, that is absolutely true, dark history does not even cover it.

It was a deliberate decision by the government to allow those kids to die. What we need to do is learn from the past so, that we can honour what the survivors have asked us to pay attention to. Which are the TRC’s calls to action, and amongst the top calls to action are equity and culturally based justice for this generation of First Nations, Metis and Inuit children.

Those survivors had the courage to tell their truths so, that their grandchildren didn’t have to go through it. That’s our shared work, and I think that’s what we need to bring forward. And then the other myth we need to press through and it’s the reason why I say it’s not necessarily useful to sit with the government right now is because we have the solutions Brad, to so many of these problems are at the government’s footsteps.

They just need to implement them. And so, having worked with them to develop the solution, and then seeing them do nothing about it and then just invite us back to “these engagement tables” to talk about it, and they never implement it. They use official procedures like meetings all the time to avoid accountability. We need the public pressure so, that the government actually acts on the solutions that First Nations have put forward.

Brad Regehr: This grassroots support that is out there, you’ve witnessed it, I’ve witnessed it, how do we get that support to make the changes we need?

Cindy Blackstock: I think we – one of the things we try to do at the Caring Society is be very specific with the public. So, we actually have seven free ways for people to make a difference in under two minutes. And that way we can engage people of all ages and all income levels in a real positive justice-based reconciliation process that prioritizes those top calls to action.

And the other thing we’ve been encouraging people to do is print out a copy of the TRC’s calls to action, and the murdered missing Indigenous women and girls calls to justice. And whenever someone comes knocking at your door asking for your vote, ask them what they’re going to do to specifically implement all of them.

And if they don’t have an answer don’t give them your vote. I think that that’s a way that governments really listen to the public is in the voting booth. And we have an opportunity with the upcoming federal election.

Brad Regehr:   So, since this is a Canadian Bar Association podcast I got to ask you something in direct relation to the legal profession. The TRC’s calls to actions focused a lot on education particularly for the legal profession from history lessons to cultural competency training.

What do you think? And you’ve worked with a lot of lawyers I know that; what else do you think the legal profession and the justice system need to do?

Cindy Blackstock: Well, one of the things I think that it would be really excellent to have is kind of a national pro bono association for systemic rights, cases for Indigenous peoples as prepared to take it forward. The Indigenous Bar Association has such rich membership, but there isn’t a financial pool to draw on so, that cases like ours in the earliest days received the support to frame the complaint properly.

And to then have the expertise required in order to push it through. In our situation I actually wrote the complaint and I had no legal training at that time. I later got a Master’s in Law, but that was only to try and better understand what was going on. But at the time I wrote it and I wrote it like a social worker would write it.

Thankfully, it stood mostly the test of time, but it’s in those earliest days when you really need good legal counsel to make sure that the case is framed properly and that we’re not going to be creating bad law with that case as it’s going forward.

The other thing I would say is that I learned a lot by not being a lawyer but having to interface with lawyers and I wrote an article for the McGill Law Journal called The Complainant that talked about how my experience as a First Nations person dealing with the Western legal system that is based in kind of French and English culture.

So, that kind of cultural interlude, but there was another cultural bridge I had to cross. And that actually was with the way that the legal profession manages itself. So, to give you an example, one of the things I saw is the government would always want extensions. And I was told early on that it’s normally good form in the legal position to agree to these extensions.

But I thought why, why are we agreeing because it means more delays for kids? So, I actually developed a political [unintelligible 00:42:55] to when we would consent or not consent to those delays. There’s all that kind of stuff that is normative for lawyers, but not normative for clients. And so, I think there’s some more work to be done there.

I also would say that I’d like to see far more attention to human rights cases for First Nations, Metis and Inuit peoples. If you look at the body of what we would call First Nation, Metis or Inuit law, it's largely land and resources.

And while that’s important if we do not have a healthy generation of First Nations, Metis, and Inuit children, none of that really matters very much. Those things have to go hand in hand, and there’s been far too little litigation to really uphold the rights of this generation of kids.

Brad Regehr: So, how does the justice system, the Judges, how do they deal with this, how do they address it?

Cindy Blackstock: One is to be kind of is to receive training. I was glad to see Rona Ambrose’s you know, Motion in parliament to have mandatory training for Judges on – for sexual assault. I think something similar needs to happen for First Nations, Metis, and Inuit peoples.

I’ve been fortunate in our case, we’ve had good members of the judiciary who were prepared to kind of innovate in ways that range from welcoming children into the courtroom to actually spending a lot of time fairly and justly listening to the arguments. And making firm decisions based on the law that’s center children’s rights.

We’ve – the children have won every single case in this 14-and-a-half-year litigation which I think is about 25 Orders. Except for one which was overturned on appeal. So, we’ve been lucky, but it shouldn’t just be luck, it should be something that’s intrenched as a systemic issue.

And we should also have that for lawyers as well, non-Indigenous lawyers. I think it’s very important that they too benefit from mandatory courses in law school, but also in their articling experience have real on the ground experience relating and working with First Nations, Metis, and Inuit peoples.

Brad Regehr: Cindy, I’ve got one more question for you. You’ve been doing an amazing job at holding the government’s feet to the fire on this issue, what keeps you going, what gives you hope to keep doing this?

Cindy Blackstock: When I see a child get help under Jordan’s Principle and be able to learn and feel confident in themselves and realize that they can achieve their dreams. Or I see a First Nations community being able to develop a service that really responds to children’s needs, and I see First Nations social workers no longer under paid just because they’re working for a First Nations agency.

All of that is enough for me. I just really feel like I owe such a big debt Brad, to all of the survivors of residential school. They remembered every little word they could, they remembered the values that we were brought up with. They remembered the knowledge sources, and they passed on the best of all of that to us.

I think the small way I can repay them is to do everything I can for this generation of kids so, that their dream of not having another generation of First Nations, Metis and Inuit children recover from their childhoods comes true. And then they can finally be at peace, and that is also true for the children who are lost in residential school.            

Brad Regehr: Cindy, you’re an inspiration to us all, thank you very much for being a guest on this podcast.

Cindy Blackstock: Thank you for having me Brad.  

Brad Regehr: In this episode I’ve been talking to Cindy Blackstock, Executive Director of the First Nations Child & Family Caring Society of Canada. And Dr. Pamela Palmater, full professor and Chair in Indigenous governance at Ryerson University.

Thank you for listening. We want to hear your stories about your experiences as an Indigenous person with a legal profession as a practitioner as a student or as an academic. Let us know on Twitter at @cba_news, on Facebook and on Instagram at @canadianbarassocation.

You can hear this podcast and others on our CBA channel The Every Lawyer. On Spotify, Apple Podcasts, Google Play and Stitcher. Wherever you listen to podcasts. Subscribe to receive notifications for new episodes. And to hear us in French listen to Juriste branché podcast.

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