Harper government withheld documents in indigenous human-rights case

OTTAWA — The Globe and Mail

Prime Minister Stephen Harper is the primary salesman. He was caught off-balance in 2011 when he declared in September that approval of the line a “no-brainer,” only to have President Barack Obama delay it and demand a rerouting of the pipeline two months later. That decision infuriated Mr. Harper and led to him to declare new urgency in the effort to build oil sands pipelines through British Columbia to access China and other Asian markets. The Prime Minister will get another U.S. airing with his appearance this week at the Council on Foreign Relations, where he will be interviewed by Robert Rubin, the former treasury secretary under Bill Clinton. (Adrian Wyld/THE CANADIAN PRESS)

The Harper government withheld tens of thousands of documents that it was obligated to disclose as part of a human-rights case in which it is accused of discriminating against indigenous children. Now, it is using its failure to hand over the files to try to get the proceedings put on hold.

The First Nations Child and Family Caring Society filed a complaint with the Canadian Human Rights Tribunal in 2007 saying it is wrong for the federal government to pay 22 per cent less for child welfare on reserves than the provinces pay for non-aboriginal welfare services.

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Despite many attempts by the government to have the case dismissed, the hearings before the tribunal finally began in February of this year.

But, next Tuesday, Justice Department lawyers will ask for an adjournment of many months while they gather more than 50,000 documents that were required to have already been handed over to the Caring Society’s lawyers under the human-rights commission rules.

Cindy Blackstock, the Caring Society’s executive director, said in a telephone interview this week that the government indicated months ago that it was in the final stages of disclosing all pertinent documents, including those relating to the “enhanced” funding formula it uses to determine how much money First Nations receive for child welfare.

As the hearings progressed, however, Ms. Blackstock grew suspicious. The government was cross-examining witnesses about the funding formula, she said, “and I just thought, ‘man, there’s got to be more on this thing.’ So I filed an Access to Information request.”

The response to that request arrived on April 9 in the form of 4,000 pages of documents, about a quarter of which had been redacted. “In there are evaluations and critical notes and acknowledgments by the government that the enhanced funding formula is indeed significantly flawed and inequitable in all of the regions they have implemented it in,” Ms. Blackstock.

The lawyer for the Caring Society asked the government why the documents had not been disclosed previously and Melissa Chan, a lawyer for the federal Justice Department, responded in a letter dated May 7 saying the government was just then in the process of handing them over. In addition, wrote Ms. Chan, “we have been advised that there are over 50,000 additional documents that have been identified as potentially relevant.”

Those will be turned over to the Caring Society and its lawyers between September and December of this year, she wrote – which is after the hearings in the human-rights case are scheduled to have ended.

The government informed the human rights tribunal this week that it will ask for the case to be adjourned so it can gather the documents.

The department of Aboriginal Affairs said in an e-mail that it has hired two research firms to assist in producing the relevant material. “Our request for an adjournment will help to ensure Canada has the necessary time to provide all documents in our possession that relate to the proceedings …”

But the Caring Society says this is just another delay tactic and it will try to block the request for adjournment. It will also try to get the government to disclose the material in a timely fashion.

Ms. Blackstock said it is not fair that many of the Caring Society’s witnesses have already testified without being aware of the documents’ existence. “I was on the stand for five days,” she said. “I think I did a pretty good job. But, had I known these documents were available, it would have helped me with my testimony.”

Shawn Atleo, the National Chief of the Assembly of First Nations, has said there is not enough welfare money to pay for the services that would allow First Nations children to remain with their families when there are social problems. Data released recently from the 2011 National Household Survey suggested that nearly half of Canada’s 30,000 foster children aged 14 and under were aboriginal.

“The possibility that government intentionally withheld relevant documents from an ongoing Canadian Human Rights Commission hearing is a very disturbing, but not a surprising, development,” said Carolyn Bennett, the aboriginal affairs critic for the Liberals. “We’ve seen the Conservatives use this same tactic time and again as a way to shield themselves from politically damaging information.”

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