THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, April 19, 2023
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:45 p.m. [ET] to examine the federal government’s constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Métis peoples and any other subject concerning Indigenous Peoples.
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: Honourable senators, I would like to begin by acknowledging that the land on which we gather is the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation. It is now home to many other First Nations, Métis and Inuit peoples from across Turtle Island.
I am Mi’kmaq Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the chair of the Committee on Indigenous Peoples.
Before we begin our meeting, I will ask committee members in attendance to introduce themselves by stating their name and province or territory.
Senator Martin: Yonah Martin from British Columbia. Welcome.
Senator Hartling: I am Nancy Hartling from New Brunswick. I live on the unceded territory of the Mi’kmaq people.
Senator Tannas: Scott Tannas from Alberta.
Senator Sorensen: Karen Sorensen, Alberta, in Banff National Park, Treaty 7.
Senator LaBoucane-Benson: Patti LaBoucane-Benson from the beautiful Treaty 6 territory in Alberta.
Senator Audette: Michèle Audette from Quebec.
Senator Greenwood: Margo Greenwood from British Columbia and Treaty 6 territory, the very best part of it.
The Chair: Today we are continuing our study into the effectiveness of the Canadian human rights framework and the promotion, protection and realization of the rights of Indigenous peoples.
Specifically, we are considering whether existing mechanisms could be improved or whether new ones are required, including Indigenous-specific.
With that, I would like to introduce our first panel. From the Canadian Human Rights Tribunal, Jennifer Khurana, Chairperson. Wela’lin. Thank you, Ms. Khurana, for joining us today. You will have approximately five minutes to provide opening remarks which will be followed by a question‑and‑answer session with senators.
Ms. Khurana, the floor is yours.
[Translation]
Jennifer Khurana, Chairperson, Canadian Human Rights Tribunal: Honourable senators, thank you for your invitation.
First of all, I want to acknowledge that I’m speaking to you from the unceded ancestral territory of the Algonquin Anshinaabeg people. I thank them for sharing this land with us.
I would also like to pay tribute to the survivors and their families, who courageously shared their truths through the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG). Their contribution led to developing the calls for justice we’re discussing today.
I also want to acknowledge the voices of Indigenous people, which are contributing to your study on the effectiveness of the current human rights framework. While I’m here to answer your questions and talk about the Tribunal, I’m also here to listen to those trying to access human rights justice. Their input is central to any process for moving forward. Thank you for giving me the opportunity to learn with you.
The Canadian Human Rights Tribunal is an administrative tribunal. We operate at arm’s length from the government, which means that no department or official can tell the tribunal how to decide the cases that come before it. We are accountable to the Canadian public and report to Parliament through the Minister of Justice.
The Tribunal hears discrimination cases involving federally regulated organizations. Tribunal members, who are the decision makers, deal with complaints of discrimination referred to us by the Canadian Human Rights Commission. If the Tribunal finds that discrimination has occurred, it can decide on a remedy.
In addition to its mandate to adjudicate complaints of discrimination, the Tribunal has also been given specialized mandates under the Pay Equity Act and the Accessible Canada Act.
Most complainants do not have access to legal support. They may allege discrimination on a number of grounds, including allegations of systemic discrimination. In contrast, respondents are usually large organizations represented by lawyers.
[English]
As you’ve heard, many of the complaints before the tribunal are challenging complex files that engage novel areas of the law. They often involve a high volume of documents; the disclosure process can be very long. We must also accommodate the needs of vulnerable and marginalized parties who face many health and resource challenges and may find the litigation process difficult to access.
The tribunal is small. We are just five full-time members, including a vice-chair person and myself, and eight part-time members across the country. But our work matters deeply to the people who come to the tribunal looking for answers.
Last year, we received 140 new complaints from the Canadian Human Rights Commission, and the number of cases we receive annually is steadily rising. Since 2020, the tribunal has received 70% more complaints than it did in the preceding three-year period.
To respond to this increase and to look for non-adversarial approaches to dispute resolution, we also work with the parties to resolve complaints in a collaborative way outside of the hearing process. Mediation is a significant part of our work and one in which the parties can control the outcome and be creative in finding solutions that may not be available at the end of a hearing.
Each year, we settle between 55% and 70% of our cases in mediation. We’ll continue building on alternative ways of resolving complaints wherever possible.
I had the privilege of being appointed chairperson last spring, just over a year ago. Since then, we have simplified and built up our mediation services. We also trained members to write decisions that are simpler to understand. We strengthened the tribunal’s core competencies in areas that support meaningful access to justice, namely, an active adjudication, effective case management and the use of plain language. We trained members on trauma-informed inclusive and respectful processes.
In the coming year, we will seek input from people who have experience before the tribunal to inform any changes on how we deliver service. We will work to reduce delays, advancing cases in a more efficient and proportionate way and develop tools to help people navigate the system.
As someone who has worked in high-volume social justice and human rights tribunals at both the provincial and federal levels, I’m a strong believer in administrative justice as a service, but efforts to improve these services must reflect the needs of those seeking to access them rather than being based on what lawyers and others working within the system believe to be best. After all, it’s not about us.
The tribunal is accountable to the people who come before it looking for meaningful and timely access to justice. It is their voices that we must hear to build confidence and trust.
I would be pleased to answer any questions you may have.
The Chair: Thank you, Ms. Khurana. The floor is open for questions from senators.
Senator Sorensen: Thank you for being here. Would you say that the federal underfunding of social services in Indigenous communities constitutes a human right violation? Regardless of that answer, are there particular demographics within the Indigenous population who are disproportionately affected — women, LGBTQ+, disabled people — and is there a way to ensure that those groups potentially have equitable services?
Ms. Khurana: Thank you very much for your question. I think it’s important just to highlight right off the bat that as a chairperson of the tribunal and an adjudicator, our mandate is to hear the cases referred to us by the Canadian Human Rights Commission, so I can’t opine on something that may or may not come through our door or that might be an open case or one that we have already heard before the tribunal.
But I will say that tribunals are adversarial systems. They are there to litigate. Parties are before us to litigate, and we make decisions on the basis of the evidence and submissions of the parties on a case-by-case basis and on the basis of whatever the parties present to us.
Senator Sorensen: Thank you.
The Chair: Ms. Khurana, in your view, how would Indigenous-specific mechanisms such as an Indigenous ombudsperson or tribunal intersect with the current mechanism such as the Canadian Human Rights Tribunal?
Ms. Khurana: Thank you, senator, for the question. As I alluded to in my opening statement, questions about the appropriateness of new mechanisms are, first and foremost, directed, I think, to those who seek to access these services and who try to seek justice before our mechanisms.
Given my role as the chairperson of the tribunal, it’s also not my place to tell Parliament how best to proceed in terms of any changes to existing mechanisms, but of course, if there are changes made, it will be my role to ensure we implement those and oversee any legislative or statutory changes that exist.
Of course, our role is to apply the Canadian Human Rights Act, also referred to as the CHRA, and any other legislation as it currently exists.
Senator LaBoucane-Benson: In your testimony, you mentioned that your services are trauma-informed. Can you flesh that out for me and explain how your services are trauma‑informed? How do you accomplish this?
Ms. Khurana: Thank you for the question. Since 2021, and when new members are appointed, we ensure that they undergo standard training and mentorship. We also have ongoing professional development and training. That includes conducting inclusive, respectful trauma-informed processes. I can perhaps give you some examples from the hearing context.
In a hearing that is about to start, a member has consulted and worked with the parties to understand their needs. One way to do that is to ensure that counsellors and support persons are available to witnesses and participants who are going to be testifying and participating in the proceedings to make sure they have the supports they need and that they have space for that.
In another context, both in mediation and in the litigation process, elders have been available to speak to participants and give their perspective on the needs of the community and supports available for participants in the proceedings.
Other examples are to ensure that the space is as safe, fair and inclusive as it can be in our proceedings, and that is tailored to the specific parties, but each adjudicator makes an effort in their case management with the parties to ask what they need to make the process feel a safe and accessible one for everybody who is participating, understanding that the nature of our complaints can be challenging for all parties.
Senator LaBoucane-Benson: Thank you.
Senator D. Patterson: Thank you for being here. You talked about the growth of complainants, I believe. Could you now or later give the committee an idea of what categories of people are complainants? I suppose we’re particularly interested in the proportion of Indigenous complainants if you gather such data that could be made available.
Ms. Khurana: Thank you, senator. I did verify. So just to give you an example, in 2022, I mentioned earlier that the Canadian Human Rights Commission referred 140 new complaints to us, and 21% of those complaints involve Indigenous persons. I say that “we know of,” because that’s also based on self-identification. Also, it depends on the nature of the complaint, so it could be higher on the basis of that.
I’ll give you a concrete example. There could be a complaint involving an individual who makes an allegation of discrimination against their employer, and it might be on the grounds of disability. Well, that person may also be Indigenous or may have other characteristics that are protected under the Canadian Human Rights Act, but they may not have identified as such. So that’s where we know of.
Of course, the proportion of complaints that the commission has received would be significantly higher. I’m just speaking about the complaints that were referred to us, which is 140. I understand from the commission’s 2022 stats that they accepted 763 new complaints in 2022, but the complaints we would have received that year would have largely and almost exclusively been received by the commission much earlier than 2022.
Senator D. Patterson: Is this information available in a report?
Ms. Khurana: Yes, we have annual reports. As to the information about the proportion of complainants who are Indigenous, I can certainly provide that to you in writing if that would assist. I don’t know that the annual report breaks it down in that detail, but certainly I’m happy to provide that to you after this meeting.
I understand the commission may be appearing before you as well and can probably give you the broader picture in terms of complaints that were received by them.
Senator D. Patterson: That would be appreciated, thank you, through the clerk.
Ms. Khurana: Of course. Thank you.
The Chair: Thank you.
Ms. Khurana, on March 28, 2023, Naiomi Metallic explained to the committee that an individual cannot bring a human rights complaint against both the federal and provincial governments at the same time. There is jurisdictional overlap between federal and provincial governments, meaning that human rights complaints may cover multiple jurisdictions.
What services or supports are available to assist complainants to navigate the human rights framework across multiple jurisdictions? If none are available, what system or structure would need to be developed?
Ms. Khurana: Thank you very much for your question. Indeed, we’re well aware that for somebody trying to navigate various recourse models, it can be a challenge. I know that my colleagues and friends from other provincial tribunals and jurisdictions are here today as well. Certainly, the B.C. Human Rights Tribunal has paved the way to open up a dialogue in terms of the needs of Indigenous peoples in particular, with respect to accessing their services.
One way to do that and to help assist claimants is to work with our partners across the provinces, even in terms of providing that information and opening up some kind of navigation system for complainants to be able to know where to go so that they don’t get to a wrong door or be told that they are before a wrong door.
I have got six years in my mandate left, and one thing on my list of priorities is asking for support to create tools for parties to really be able to navigate that system. That is something that exists in other tribunals, in a proactive way, right, not waiting for people to ask questions and be lost, but to try to reach out to those who have chosen to file complaints and help them understand the process.
Another thing I can say is that it’s the responsibility of all of us who are adjudicators and members to actively adjudicate. That doesn’t mean waiting until the hearing starts to explain how the process works, but at the front end. In our institutions and particularly in human rights bodies, we have a heightened responsibility to provide information at the front end, knowing that the majority of complainants are self-represented before our tribunal, and on the flip side, the majority of respondents are very well represented.
The Chair: Thank you for that.
Senator Martin: In fact, that was one of my questions that I was going to ask, but I was curious, when you talk about working with the provincial partners, how closely do you work with them? What does that look like on a yearly and monthly basis?
Ms. Khurana: I’m sure we would all — I know some of my colleagues across the human rights mechanisms are here today. We exchange informally. Each tribunal is working to implement and execute their mandate under their own legislative framework, so we don’t overlap in that sense. I think what I’m speaking of is finding ways to work together proactively. We have informal exchanges, but certainly following on some of the recommendations that my colleagues from the B.C. system have put forth. That is one way to make it more concrete and where we can proactively provide some information to parties so that they know when to make an application or a complaint to one of the provincial tribunals and when the commission is the mechanism to go through.
Senator Martin: If an issue falls between jurisdictions — so there is a provincial component and a federal component — how does one navigate his or her way through addressing this complaint, where it falls between jurisdictions?
Ms. Khurana: Just in terms of our role at the tribunal, as you know, the Canadian Human Rights Commission is the first port of call for any complaints. So they receive — like I said, it’s a significantly higher proportion each year. Last year, as I said, it was 763 complaints. Only those that are screened by the Canadian Human Rights Commission are referred to us. They can determine whether or not to refer a complaint to the tribunal. They are an independent body, of course, that makes those determinations.
So part of that test — I will let the commission complete and more properly respond to your question, but part of that is ensuring that the tribunal or the federal jurisdiction is the right place to be.
Then from our perspective, when a complaint is referred to us, we, under the Canadian Human Rights Act, conduct an inquiry; so we do the work that is sent to us.
Senator Martin: One small question. Do you provide services, or do you deal with the cases in other languages, so maybe the language specific to the complainant? Do you have those resources available?
Ms. Khurana: Yes, we do, absolutely. Of course, as a service provider ourselves, we have a duty to accommodate. We absolutely will work with the parties to ensure that they can communicate in whatever language. The advent of video hearings has helped facilitate that in many ways, by just expanding the availability and timeliness of interpretation of all sorts across the country, including ASL; so we do indeed. Whether it’s for a mediation or a hearing, we will provide those services so the parties can participate fully and fairly.
[Translation]
Senator Audette: Thank you for being with us. I’m sure you know that certain calls for justice in the MMIWG report are very dear to me: those regarding the Tribunal and the ombudsman.
You mentioned a certain percentage of Indigenous people or Indigenous communities; it’s clear to you. How many proceedings were successful among complainants? Did the process in your community lead to justice being done? Within the framework of the calls for justice, which proposes an Indigenous tribunal and an ombudsman, do you see something important and good for First Nations? Do you see any collaboration if this happens? I dream of it happening. I don’t want to influence you.
Ms. Khurana: Thank you very much, Senator. Regarding your first question on the statistics for successful Indigenous complainants, I will make a note of it and send you the answer through your clerk, if that’s suitable.
As for the proposed ombudsman, as I said initially, the most important point is to check what’s missing with the parties or the Indigenous people who have already tried to access justice. Were there any barriers, any obstacles? I know the committee already started working on it and will continue down that path.
However, I can say that if the ombudsman were to play a role in overcoming the lack of information, awareness and guidance — we know that legal processes can be quite complex for the parties that come to us —, then that is certainly a role that both the tribunal and an ombudsman could play. It’s also a role that people accompanying parties before the courts could play.
Otherwise, the choice is left up to Parliament. However, the need certainly exists for awareness, for information and for a guide to accompany the parties.
[English]
Senator Hartling: Thank you for being here. Very interesting. Supposing one of these 140 cases, can you walk me through the process? How does it happen? If I’m the person, how do I know what the process is? How do I get assigned to my support people, to my legal counsel? Or if I decide to defend myself, how does that work? Then how long would it take to go through to get to resolution?
Ms. Khurana: I will try to break that up into a few steps.
If your complaint is referred by the Canadian Human Rights Commission, we initially — because it’s not a model where you file your complaint directly with us. It’s sent to us from the Canadian Human Rights Commission. We will first offer the parties in all cases the possibility of mediating, and that’s an area where, in the past year, we have built up a roster of experienced human rights mediators who are former adjudicators with extensive experience in this area so they can really provide a lot of perspective to parties in trying to work with them in alternative methods. So we will do that. Usually we can offer mediation pretty quickly, as soon as the parties have provided some basic information to us about the case so the mediator knows where they’re coming from and what it’s about, within three or four months. We can do that at short notice certainly for the parties, and we will always offer that throughout the lifecycle of a case.
If the parties don’t resolve their case — and mediation sometimes leads to a full settlement, but sometimes it only settles some of the issues in dispute — it is always a valuable exercise, of course, because it can reduce what moves forward to a hearing and help resolve certain things. Then I will assign it to an adjudicator.
We certainly have a backlog of cases at the moment. I mentioned earlier that there are five of us working full time for the full case load of the tribunal and a few part-time members as well.
You asked about time frames. We’re now looking at at least six months for me to be able to even assign it to a member. The tribunal is working hard to recruit and attract additional members to the tribunal. We can move up to a full complement of 18 under the Canadian Human Rights Act. That would certainly help reduce those time frames.
To your question of how long it takes and what happens next, there is no legal clinic or provided legal assistance by the tribunal. Some parties choose to have counsel and are able to retain counsel. The majority, though, represent themselves. There were about 57% last year who were self-represented. They may have questions about the process. We try to set them out in guides and through some explanations, but that’s where we have work to do. This is an area where I’m absolutely asking for support to develop better tools for our parties in plainer language that is not just legalese and that people can understand accessing the process.
From then, the whole legal process starts. If the matter doesn’t resolve, pleadings are filed and an adjudicator, when they’re assigned, will start working with the parties right off the bat to identify the issues and hopefully resolve some.
In terms of how long it takes to get to a hearing, some of that depends on whether there are preliminary issues. Sometimes there are motions about the scope of the complaint that was referred by the commission, motions to add allegations, add a party, for disclosure. That’s often where there are challenging issues to work out.
I looked at the numbers. Because of all of those lead-ups, really, I believe the average for hearings that we held between 2018 and 2022, it took an average of 600 days to get to a hearing from the time the complaint was received to the first day of the hearing. I’m happy to speak to some of the other reasons for that. I alluded to those, but delay is an area where we face challenges. I’m happy to speak further to that if you have a follow-up question.
Senator Hartling: It sounds like resources and more people are necessary.
Ms. Khurana: Certainly that’s not an uncommon theme across our systems of justice, but there are things that require resources and others that do not. That’s where I started, because not everything that can simplify and reduce delay requires additional resources. For example, I mentioned earlier training our members on active adjudication and ensuring the systems and processes that we do have are more proportionate to the issues in dispute.
I’m trying to establish a triage function for the files so that we focus our time and energy on those certain files that will take longer to move through our process, whereas others can be dealt with more expeditiously. It is absolutely always a balancing act. Of course, parties have their right to be heard.
Some of these files, as you know, involve complex systemic allegations of discrimination. Parties really need to be able to tell their stories, and also to ensure that they have what they need to prepare adequately for their day in court so to speak. We balance that with the need to proceed as efficiently as possible.
Senator Hartling: Thank you.
Senator Coyle: Thank you very much. I apologize for missing the beginning of your remarks. I want to build on what my colleagues have been asking you and also what you’ve been leading us into. You mentioned six more years in your mandate, which is great. There you are, you’ve already identified some things that you could do in terms of triaging and creating simpler ways of dealing with simpler issues so you can have the time for the more complex ones, preparing guides that are accessible to the people who have experience dealing with a tribunal like yours. Frankly, not many people would. Those are some innovations.
Of course, you’ve mentioned that you would likely need further human resources. Are there other things you would like to tell us about that you think would really help to streamline? Streamlining is one thing. Are there other improvements you would like to tell us that you can foresee undertaking during these six years on top of moving the various cases through the process?
Ms. Khurana: Right. Thank you, senator, for your question. I think your latter comment just is the right way for me to start to respond. As I mentioned in my opening remarks, while there are some things we know of that would improve systems — addressing delay, making things less complex, writing in plain language, making decisions and reasons easier to understand for the parties and not just reviewing for courts — these are all things I’ve already started to put in place, building the mediation process out.
The first place to start — and that’s really where I’ve asked for support and where we will move this year — is on listening to the parties, having proper stakeholder consultations, but particularly building out a comprehensive way of reaching Indigenous peoples, understanding the challenges that have been experience, hearing what is missing and where those gaps are is the first place to start. Any changes are really designed around what we hear and what’s reflected back in terms of the needs of our users. I will start there.
Certainly, you’re right that there are two sides to resources. One is ensuring that you’re able to keep processing your files. You’ve heard about the increasing case loads. That is certain.
We also have two new mandates as the Canadian Human Rights Tribunal under employment equity and the Accessible Canada Act. The other is making more transformative change. Just ensuring you keep files moving and you do so in a way that is inclusive, respectful, accessible is kind of the core mandate.
Making significant changes on the access to justice side and transforming the tribunal — I mentioned this in my message in my annual report — won’t happen with the current resource base.
One thing is adjudicators, and I’m very pleased that that process is under way and is working well. The other side is the whole public service side and the support for the tribunal. I don’t have any authority or delegation on financial and human resource matters. That falls to the Administrative Tribunal Support Service of Canada, also known as the ATSSC, that supports our tribunal. I’m certainly going to be working with them and making requests to ensure that our tribunal is supported in doing both things. That is, keeping the files moving, but also truly making this a service that works for the parties who appear before us.
Senator Coyle: Thank you.
Senator Greenwood: Thank you for your words and your introduction. I have several questions. I really want to ask about trauma-informed and culturally safe services, but I’m not going to. I’m going to restrain myself and leave that to Senator LaBoucane-Benson because I know she wants to go there.
In 2013 and 2014, the Canadian Human Rights Commission held roundtables with Indigenous women and Indigenous organizations. They focused on access to human rights institutions and access to justice.
This follows up on what Senator Coyle was asking about. In that, they identified several barriers. For example, the human and financial resources, confidentiality, re-victimization, those sorts of things.
Could you tell us a bit about how the commission, the tribunal, has addressed some of those barriers identified in the reports? Do you have any data or information where those things have changed for Indigenous women in organizations? I know those are huge concepts with multiple strategies in each of them, but has there been some progress, and is there any data that shows that we’re making a difference?
Ms. Khurana: Thank you for your question, senator. The roundtable you’re referring to, I assume, was with the Canadian Human Rights Commission. Although they’re a separate and independent body, I’m sure that some of the concerns you’ve raised — although I’m not familiar with their report or the details of what was discussed, the parties who filed their complaints with the commission are the same individuals who will eventually make their way to the tribunal. Because I’m not familiar with the work they did, I can’t make a comparison. I will say that those are concerns that apply to us too.
On the issue of confidentiality, I can mention that while the tribunal process is a public one, at the commission, parties may have confidential discussions. Our process is, of course, public when you get to a tribunal hearing. That’s also why we offer mediation at all stages of the process. If parties want to have confidential discussions and settle their matters or a portion of their complaint in that type of space — I mentioned creative solutions — they can do that in ways that may not be available to them at the end of the hearing.
Tribunal members are bound to apply the law in the Canadian Human Rights Act and on the basis of the evidence and the submissions they hear, whereas in a confidential mediation, the parties can be as creative as they want in terms of coming up with different options that can help them move forward and move on from the complaint.
Senator Greenwood: I’m thinking about re-victimization and some strategies whether they’re confidential or public. How do we protect individuals around that?
The other piece of that is education of the public and people going into this process. It’s like going into the emergency room in a hospital. Sometimes you don’t know what you’re walking into. How do we educate people around what the process is and what it can do? I know that’s public education. With such a small team, as you say, how do you get to all those things?
Ms. Khurana: The first part of your question about ensuring the safety of the process and not wanting to re-victimize anyone who is a participant in our process, that is top of mind for all adjudicators. I mentioned training that all members receive when they are appointed. Under the Canadian Human Rights Act, to be appointed as a member of the tribunal, you must have experience with, a sensitivity to and an understanding of human rights. We’re fortunate that the members who are appointed to the tribunal necessarily come with that background and some sensitivity to the challenges and the difficulties of the issues before us.
We also, and certainly since I’ve been in this role, have invested in working through these issues with members and spending considerable training time on understanding how we can mitigate those challenges in the hearing room and in the language we use and still do so in a fair and impartial way for all the parties. So the process is safe and accessible and feels as if you’re able to, no matter how challenging the issues, have an opportunity to tell your story and be heard, regardless of the outcome.
That’s something that the members work on. We mentor each other and share in that experience. You mentioned the smallness of the tribunal. It can be. As adjudicators, we’re very privileged to do this work, but it is an isolating role in many ways because we sit, for the most part, alone in panels of one. We do try to share strategies for how to ensure our hearing and mediation spaces are safe, inclusive and respectful. I mentioned earlier some examples of things adjudicators have done to try to understand the needs of the parties.
Senator Greenwood: Thank you.
The Chair: Ms. Khurana, does the Canadian Human Rights Tribunal have Indigenous-specific public education materials about the Canadian human rights framework? Has the tribunal elevated its public education initiatives with Indigenous communities? If so, what were the results of this assessment?
Ms. Khurana: Thank you for your question. I mentioned earlier in response to one of the other questions about priorities and where I want to ask for support is, indeed, in the area of a broader strategy for listening to first, understanding the needs of Indigenous peoples and other users of our system, but there is not specific material that exists. The information on the website, this is also on the priority list of this year, to change the content to make it more accessible. Indeed, this is an area where the tribunal still has much work to do.
The second part of your question, you mentioned public education.
The Chair: Yes. Has the tribunal elevated its public education initiatives with Indigenous communities? If so, what were the results of this assessment?
Ms. Khurana: Thank you. Just more broadly, I mentioned stakeholder consultations, but also the need to really focus our efforts and outreach on the Indigenous communities and Indigenous peoples who are claimants and parties before the tribunal. That is an area that one of your colleagues mentioned, the limited size or scope or resources we have. That is an area where I will be asking for support from the ATSSC to try to undertake a similar initiative to what our colleagues have done in British Columbia.
Senator LaBoucane-Benson: I want to focus specifically on the Canadian Human Rights Act. I know that it looks like it has been updated in 2021, but it is still a 1985 piece of legislation. I think our legal, ethical and social understanding of human rights has evolved since 1985. I know mine has.
I wonder if you have any opinions how we as a committee could study that act, if you have any advice as to what we should focus on and maybe what needs to be updated.
Ms. Khurana: Thank you for your question. As the tribunal chair and as an adjudicator myself, I apply the law as it currently stands. You referenced updates with respect to the new mandates under the Pay Equity Act and the Accessible Canada Act. There have been studies in the past, including the La Forest report, which addressed some of the issues that you’ve touched on today in this committee with respect to legal representation. There were other questions at the time with respect to features of the Canadian human rights system: delays, accessibility, how complaints are filed, the existing remedies available under the act.
While I can’t suggest to Parliament how to modify the legislation, those are areas that have been considered in the past in other studies. In fact, through your questions, you’ve raised the very same issues.
Senator LaBoucane-Benson: Would you recommend that this committee study and perhaps recommend updates if you were asked, if you were a senator today?
Ms. Khurana: Although I can’t recommend specific provisions and I’m bound to apply the legislation as it currently exists, I think these are factors to consider. As I said, witnesses and other stakeholders who will appear before this committee will speak to you about challenges that they’ve faced. As I said at the beginning, I’m also always listening. This is useful information for us at the tribunal just to hear. I can’t provide the answers to those questions, given my role. I’m certainly listening to what that feedback has been and where parties have encountered challenges and where they might propose specific legislative amendments.
Senator LaBoucane-Benson: Thank you very much.
[Translation]
Senator Audette: Thank you very much, Ms. Khurana. I’d like to come back to the subject, and do it with a lot of love. My colleagues understand — and I would say the same — that you need resources, more people and so on. The more we get to know your work, through the commission and through you, the more we will have Canadian women filing complaints and so on.
However, there is a bottleneck, and the approach requires trauma-informed programs and Indigenous people’s knowledge. What action is required with a person who has a long way to go, when we don’t have the training because universities never offered it to us? Do you think that Canada can have a tribunal for Indigenous people that works with you, specifically to streamline and reduce over 600 days of wait time? Can it happen without requiring you to constantly follow training, due to the lack of knowledge around a situation that isn’t quite second nature?
Our goal is to work with those who have that knowledge and are familiar with Indigenous approaches in a Canadian context. We want both tribunals to get results, so that justice extends to individuals or a community.
Ms. Khurana: Thank you very much for your question, Senator. Indeed, as you say, the more awareness there is, the more complaints we will get. In fact, the commission’s numbers highlight this awareness of human rights; it’s very positive in terms of the knowledge of plaintiffs who file complaints.
As for your question on mechanisms for collaboration, if Parliament makes a decision based on the expertise you’ve heard here and the testimony of Indigenous people who appear before you, the Tribunal will always be ready to collaborate in order to understand from both sides how to manage each institution’s jurisdictions.
I’m always open to considering how we can implement the legislative changes passed by Parliament.
Thank you very much.
[English]
The Chair: Does anyone have further questions? Seeing none, the time for this panel is complete. I wish to thank Ms. Khurana again for joining us today.
For our second panel, we will hear from Emily Ohler, Chair, British Columbia Human Rights Tribunal; Amber Prince, Member, British Columbia Human Rights Tribunal; Patricia DeGuire, Chief Commissioner, Ontario Human Rights Commission; Juliette Nicolet, Director, Policy, Education, Monitoring and Outreach, Ontario Human Rights Commission; and Kathryn Oviatt, Chief, Alberta Human Rights Commission. Wel’alioq and thank you to all of our witnesses for joining us today. I understand Ms. Prince will provide opening remarks of approximately five minutes. Ms. Prince, I now invite you to provide your remarks.
Amber Prince, Member, British Columbia Human Rights Tribunal: Thank you very much.
[Indigenous language spoken]
Tansi, boozhoo, kwey, shé:kon. Hello, I am Amber Prince, nehiyaw, moniyâw iskwew.
[Indigenous language spoken] I am a member of the Sucker Creek First Nation on Treaty 8, but I grew up in Lheidli T’enneh territory in Prince George, B.C.
I am also a member of the BC Human Rights Tribunal, and I’m here with our chair, Emily Ohler. Our tribunal is located on the unceded territories of the Coast Salish peoples, the Musqueam, the Squamish and the Tsleil-Waututh, although we serve all of B.C.
Kinanâskomitin. I am grateful to the Anishinaabe, the Algonquin and the Mohawk peoples. It’s an honour to be here with you and on this territory. I know that Ottawa is also a place of significant history, connection and gathering for Métis, Inuit and First Nations people across Canada.
We are here today to talk to you about the seminal report by Ardith Walkem, K.C., now Justice Walkem, who wrote a report for our tribunal in 2020 examining some of the very questions that are before this Senate committee. Her report is entitled Expanding Our Vision: Cultural Equality & Indigenous Peoples’ Human Rights. Justice Walkem’s report gifted our tribunal with the truth and a roadmap to transform the tribunal’s processes into one that, in Justice Walkem’s words, makes a real difference in the lives of Indigenous peoples and truly protects their distinct human rights.
Justice Walkem’s report called for and led to the creation of the Expanding Our Vision Implementation Committee, or the EOV. It includes a majority of Indigenous leaders across B.C. The EOV committee has been a beacon of light to our tribunal, illuminating a path that we must walk to follow Justice Walkem’s roadmap. For more than three years, the EOV committee has offered their guidance, time, expertise and commitment towards Indigenous people’s human rights.
Justice Walkem’s report and the EOV committee deserve special consideration and recognition. Together, they offer immeasurable and precious teachings, and we are only here with a clear mandate from our EOV committee to speak to you about this transformational work as detailed in our written brief. It’s an honour to do so.
We also stand with the EOV committee in raising some concerns about this process. Those concerns are on the record, in our brief, and reflected in the recommendations that we can offer today. We will use our limited speaking time now to centre the voices and expertise of our EOV Committee.
The EOV Committee offers the Senate committee the following six recommendations: One, the Senate committee’s work must align with the United Nations Declaration on the Rights of Indigenous Peoples, which the Government of Canada has adopted in Canadian law as the United Nations Declaration on the Rights of Indigenous Peoples Act.
Two, the Senate committee must work in consultation and collaboration with Indigenous peoples to ensure their voices are prioritized in work that concerns their human rights. The principle of free, prior and informed consent must be central to these discussions.
Three, the structure of consultation and collaboration must occur outside of a colonial process and demonstrate sincerity and respect for Indigenous people’s laws, traditions and protocols. Indigenous peoples must hold the architect’s pencil on this or any new initiative or body which, (a), must be comprised of Indigenous leadership and decision makers from Inuit, Métis and First Nations groups, and (b), must be prioritized and sustainably and equitably resourced.
Five, the Senate committee must coordinate with other committees working in areas of Indigenous progress, such as education, housing, children and families and so on and not operate in a vacuum in order to appropriately respond to this call to justice.
Finally, six, the Senate committee must ensure that they are accountable and transparent with information gathering, the interview process and a subsequent reporting of the Indigenous perspective on this issue.
Justice Walkem and the Expanding Our Vision Implementation Committee have gifted our tribunal with knowledge to guide our path. It’s an honour to share this knowledge with you now.
[Another language spoken] for this opportunity.
The Chair: Thank you, Ms. Prince. I will now invite Ms. DeGuire to provide her remarks.
Patricia DeGuire, Chief Commissioner, Ontario Human Rights Commission: Honourable senators, I am pleased to be here tonight representing the Ontario Human Rights Commission. Accompanying me is Juliette Nicolet, the commission’s Director of Policy, Education, Monitoring and Outreach, who will be answering questions.
I begin by acknowledging that it is my honour to be discussing the issue of Indigenous human rights on the unceded territory of the Anishinaabe Algonquin Nation, whose presence and contributions are ongoing since time immemorial. The Ontario Human Rights Commission acknowledges that, for thousands of years, Indigenous communities from across this land have practised distinct cultures and ways of life, including their legal traditions and approaches to human rights long before colonial systems were imposed.
I recognize and support the important opportunity to partner with First Nations, Inuit, Métis and urban Indigenous peoples and organizations to address the failings of these systems to fulfill Indigenous people’s human rights.
In 2018, the Ontario Human Rights Commission co-hosted a three-day dialogue bringing together diverse Indigenous peoples and members of the human rights community to discuss a vision of human rights that reflects Indigenous perspectives, worldviews and issues. During our testimony, we may refer to some key issues and recommendations from that event.
Also, we may draw on what the commission heard during engagements with Indigenous communities, organizations and leaders across Ontario since then, and we will share feedback from the Indigenous Reconciliation Advisory Group, which was created to advise the commission on addressing discrimination under the code.
It is no news to you that there are massive gaps in the system — I would actually say canyons in the system — with respect to Indigenous human rights. We have heard of the significant gaps or canyons between the needs of Indigenous peoples and services human rights systems provide or not. Given time limitations, though, I will list some of the significant deficiencies identified, and we may elaborate more during the question period, if you like.
Human rights legislation is founded upon the presumption of Crown sovereignty and primacy over Indigenous law and custom. Human rights legislation does not recognize the unique status of Indigenous peoples as the first human occupants of this land and their constitutional status as First Peoples. Most tools used in resolving disputes in human rights are antithetical to most Indigenous worldviews and approaches to conflict resolution.
What we can offer you is how to improve the system, if you will. Indigenous partners have suggested several improvements to the existing human rights protection mechanism to better promote fulfillment of Indigenous human rights. In sum, these include — and as a colleague on my left just mentioned — using the United Nations Declaration on the Rights of Indigenous Peoples, also referred to as UNDRIP, as the organizing framework for understanding, interpreting and implementing Indigenous people’s human rights in Canada. Amending federal, provincial and territorial human rights legislation to explicitly recognize the unique status of Indigenous peoples, stipulate that the UNDRIP must inform interpretation and application, and include Indigenous identity as a prohibited ground of discrimination. Recognize collective rights and responsibilities, as well as positive duties to realize social and cultural rights. Require the appointment of Indigenous commissioners, adjudicators, mediators and staff to human rights institutions. Permit the creation of Indigenous-led Indigenous human rights division within existing human rights institutions. Establish optional restorative justice processes and separate processes for handling systemic human rights complaints. To be effective, each of these measures would need to be adequately funded.
Human rights institutions must also change the way they work with Indigenous peoples to advance human rights priorities. This requires meaningful consultation, true partnership and co‑development. Respecting Indigenous self-determination and sovereignty means Indigenous communities should have the right to create distinct and unique approaches to human rights, and Indigenous-led human rights institutions if they like. Indigenous peoples must determine what these approaches and institutions, including their roles and powers, will look like.
Considerations could be given to the Paris Principles, which indicate that to be effective, human rights institutions require as broad a mandate as possible to function effectively. Any new institutions developed must be permanent and have sufficiently dedicated funding to exercise all their roles and powers. The relationships between any new Indigenous-specific human rights institution and existing human rights protection mechanism would need to be determined once the full scope of powers of the new institutions are known.
Given the ongoing, harmful impact interjurisdictional neglect has on the full realization of Indigenous human rights, all possible options must be explored to permit new Indigenous‑specific institutions to address matters that fall within the federal, provincial and territorial jurisdiction. However, the federal government should not let any delay in reaching these ideal resolutions prevent it from taking immediate action to support Indigenous-led development of Indigenous-specific human rights institutions with the power to address matters within federal jurisdiction should that be the desire of Indigenous people. In other words, let them exercise their self-determination, self-governance, whatever they want to enjoy their rights. Thank you.
The Chair: Thank you, Ms. DeGuire.
Kathryn Oviatt, Chief, Alberta Human Rights Commission: Thank you very much. My name is Kathryn Oviatt, and I am the chief of the commission and tribunals of the Alberta Human Rights Commission. Alberta is home to the traditional lands of many diverse First Nations and other Indigenous peoples. We are home to 45 First Nations and 140 reserves on Treaties 6, 7 and 8. In addition, we have eight Métis settlements and the six regions of the Métis Nation of Alberta, as well as Inuit residents within our province.
Indigenous human rights has been a priority for our commission for decades. In 2021, we developed a comprehensive Indigenous human rights strategy. That strategy is guided by an Indigenous advisory circle. That circle is currently comprised of ten circle members, nine of whom are Indigenous women. They come from every area of our province. We also continue our engaged and ongoing stakeholder consultations with Indigenous communities, including elders and knowledge keepers. As we do this work, we are learning much, and know that we still have much to do.
As one of the first actions under our Indigenous human rights strategy, we conducted an organization-wide external review, and that was conducted by an independent Indigenous-owned third party. From that review came a report, which gave us 23 recommendations specific to our organization. I want to be clear that I’m not taking a position because it’s a snapshot in time and may be as a result of how the question was asked, but one of the themes that came out was that participants believed that the Alberta Human Rights Commission is the right organization to protect Indigenous human rights in Alberta, but — and it’s a significant but — we need system reform.
We are currently actively working on making our processes more culturally appropriate. We have obtained a blessed eagle feather that we will be providing in tribunal hearings. In addition, we have incorporated Indigenous practices like smudging and swearing in with a sacred object.
To better understand complainants’ experiences, the commission is launching a disaggregated data project later this year. This will give us anonymous collection of demographic data to better understand and address trends relating to who is bringing human rights complaints and how multiple protected characteristics intersect. This is important because a complaint form may not identify every protected characteristic, only the one that is being alleged to have been discriminated against.
We are also actively seeking to appoint First Nation tribunal members and First Nations and Indigenous staff to our commission in both front line and leadership positions. We are providing baseline training to all new and existing staff on Indigenous issues. This is some of what we have done and are doing.
I turn now to considerations for future reform and new model initiatives. I have five points. First, any reforms or new processes need Indigenous-led initiatives.
Second, diversity amongst First Nations, non-status, Métis and Inuit communities must be recognized. As I previously mentioned, Alberta is home to 45 distinct nations. Each of them has their own traditions and practices. In addition, our eight Métis settlements are unique in Canada. These are the only lands that are controlled exclusively by Métis communities for Métis use. That unique settlement arrangement brings different experiences and perspectives than in other jurisdictions that need to be accounted for. Within these distinct communities, there are subsets of unique diverse voices. We have Indigenous women, we have two spirited and LGBTQI communities, and Indigenous persons with physical and mental disabilities. That diversity needs to be reflected in our processes.
Third, bureaucratic complexity creates barriers. We have talked about this a little bit today, but I want to add to the conversation on that. A current issue that we face is confusion about whether a complaint should be brought federally or provincially. This barrier can be amplified in jurisdictions like Alberta, where we have a strict limitation period, which is a one‑year limitation period. Any new or reformed human right system must account for the unintended consequences of confusion caused by multiple forums and bureaucratic complexity.
Fourth, we need to start addressing systemic discrimination. Human rights law has developed historically on the basis of individual rights and responsibilities, but we know that systems create barriers, both intentionally and unintentionally. We need to get there. Our commission is working right now on developing a systemic discrimination complaint team to address those issues, but I will tell you that we are in the early stages and it is not easy work.
These are challenges and opportunities, and the last point that I want to get to is that significant change cannot be achieved without substantial financial investment, and that applies to every comment I have made so far, but particularly on systemic discrimination. We need adequate resources. There is a lot that we can do within our existing structures, and there are opportunities within new structures, but we can only get there if both federal and provincial funding follows those initiatives.
Thank you, I’m happy to take your questions.
The Chair: Thank you, Ms. Oviatt.
[Translation]
Senator Audette: I’d like to digress for a moment, dear colleagues. It’s rather impressive to see that women are leading courts and commissions, or at least appearing before them. So, congratulations to us! We are incredible. Congratulations for your work.
I was very enthusiastic about most of the commissions and tribunals throughout Canada. In June 2019, your organization committed to responding to the calls for justice from the National Inquiry into Missing and Murdered Women and Girls. As a senator, I’ve been thinking about finding a way in Canada to implement trauma-informed programs or processes to streamline your institutions or organizations, or to work with them to ensure that we have the tribunals or spaces where work is being done by and for Indigenous peoples.
Since 2019, have you learned any lessons you can share on methods of accountability pertaining to the calls for justice? How have you honoured or applied them? What were the difficulties or obstacles to making us better, on our end?
How do you see this space for Indigenous women who asked for a court date or ombudsman? How can provinces and territories work together and share best practices?
[English]
Ms. Oviatt: Thank you for the question. It’s a nuanced and complex question. In terms of the Calls for Justice, yes, we have learned a tonne. That is why we launched our Indigenous Human Rights Strategy, and we based it on the TRC Calls to Action as well as the MMIWG calls. We’ve also leaned on our colleagues, some of whom are on the panel with me, in learning together. That is why we have brought together an Indigenous Advisory Circle, and that’s why we have done a lot of the work we have done. We know we still have much more to do.
In terms of the trauma-informed process, one of the things I think we could do better is providing navigation services. We do try to do that. At the commission stage, complaints come into an intake team and then they are processed at a conciliation team and then they are taken up to a screening team. At each stage, our staff are trained to talk through navigation. What are the next steps? What do you need to do? What is it going to look like?
If a complaint is then referred up to the tribunal stage, we then have a case manager who acts as a navigator for the tribunal stage, and we work with the parties in assisting them. Now, we don’t provide them with representation. It’s a neutral role of navigation. We are doing navigation, but I think we could do more and maybe that’s part of where that resourcing issue could come into play.
I think having someone to walk a complainant through each stage and stay with them throughout the process would be a benefit, but it is something that we are active on and are working to ensure that we are reaching people.
I will add to some of the comments of the Canadian Human Rights Tribunal and trauma-informed practices. We do many of the same at our tribunal. In addition, we do try to train our adjudicators on the psychological effects of trauma and how, when a trigger happens, the person is incapable of continuing. So we actively work on taking breaks, recognizing signs of triggers, asking parties if they are alright and doing half days or measures like that.
That does require some communication on the part of the person to let us know because it’s not always easy to observe when a trigger has happened, but we try to have that conversation with the case manager early, and then in pre-hearing conferences and then as we go forward. Our training to adjudicators is usually annual. We repeat those messages again and again because it is so important. I think just being part of an adversarial process can be triggering in and of itself.
The Chair: Anyone else have anything else to add before we move on?
[Translation]
Ms. Nicolet: Thank you for the question. We’re from the Ontario Commission, so we’re not the tribunal. We’ve had experience working with Indigenous organizations, as well as with our Human Rights Legal Support Centre in Ontario, which leads me to think that it’s very difficult. Encouraging Indigenous people to file a complaint is already a challenge; even more so for Indigenous women. That’s been our experience with some of the projects we led with groups offering education in Native friendship centres. I think that’s a very important aspect.
That strong reluctance must be understood. I’m not saying that because you don’t know — you know it very well — but because it must be said. We have to deal with that strong reluctance when thinking about the way to move forward on the issue. That’s why the recommendations we received suggested different systems and not necessarily integration. There are a lot of opinions, and they differ, but there’s also a perspective that tells us we need something very distinct.
[English]
The Chair: Thank you. You mentioned that the Alberta Human Rights Commission is launching disaggregated data collection project. How will Indigenous peoples be involved in the data collection as part of this project, and how will the data be used to ensure your institution meets the needs of Indigenous people?
Ms. Oviatt: The disaggregated data project is related to all complainants, so we’re not segregating and doing something different for different groups. It is so that we can learn about all complainants and how those multiple characteristics intersect.
I know the Canadian Human Rights Commission and B.C. have both already launched, so I would encourage you to ask them as well about their experience with it.
We are going to be following the model I believe that B.C. has adopted where they ask for disaggregated data on their complaint form so it’s asked for in the first instance.
Now, the challenge with this is, of course, trust. We need complainants to trust us to give us that anonymous data. We are working with our stakeholder groups, including our Indigenous Advisory Circle, but also other stakeholders, to develop the relationships as we roll this out so that community leaders can assure their communities that this data really is anonymous and it really is being used for overall benefit and understanding the trends and issues.
Just by way of an anecdote, I’ll share with you that I was adjudicating a case where it was a pregnancy discrimination. In the course of the hearing, the witness revealed that she was also an Aboriginal woman. There is no way that our current data could collect that and know that this Indigenous person was coming to us with multiple protective grounds because her indigeneity wasn’t the issue, it was her gender. That is why the disaggregated project is really important, because it will help us to see who are the complainants, how their multiple characteristics intersect and what the outcomes for them in that process are.
Now, that data is anonymous, so if it’s not disclosed in the complaint form, the commission and the tribunal won’t have that. It’s for our background understanding. That’s really important.
To answer your question, senator, about how we are involving Indigenous people in data collection, we are involving our Indigenous adviser circle in the rollout of this, and we are taking on stakeholder engagement and consultations to ensure that the message gets out that it is safe and trustworthy.
Senator LaBoucane-Benson: The three groups have presented very different models: on the one hand, a completely Indigenous and separate model, built from the ground up; on the other hand, a very Western model that is seeking to be inclusive. We’ve also heard about a kind of dismantling and decolonization process that your human rights commission has gone through.
I don’t know how the question I have it fits. That’s why I’m saying you can decide if this fits or not.
I know there are Indigenous court workers in the criminal justice system in Alberta, Saskatchewan, B.C. and Ontario. Their role is to provide services pre-, during and post-court. They may interface with lawyers or legal aid as well. They are Indigenous people. Their role is to be a friend in court. The issues of trust that were brought up are managed because it’s Indigenous people helping Indigenous people in a culturally congruent and safe manner.
Full disclosure: I worked for Native Counselling Services of Alberta and oversaw the historic trauma healing components of all of our work. Our folks were trained in historic trauma, not just in trauma, but in the four dimensions of historic trauma, how it presents in a client and how our interventions had to address historic trauma.
How are Indigenous people in their expertise culturally and in many other ways are included in your processes to help bridge that much-needed trust, comfort and safety for your people going through your system?
Ms. Prince: Thank you for that question, senator. This is one of the issues that Justice Walkem identified in Expanding Our Vision report. She essentially said Indigenous people are not coming to your tribunal despite facing very serious human rights issues because you’re not a place where Indigenous people exist or any Indigenous protocols or culture or laws exist. You’re a colonial institution with no Indigenous people. That shapes the way that people see you, and it also shapes the way that you operate on a day-to-day basis.
One of the first orders of business for the tribunal was to actually increase representation from zero to much more Indigenous representation within our tribunal. So we have three Indigenous members now, myself being one. We have Indigenous legal counsel and Indigenous mediators.
Another recommendation that Justice Walkem made was that we have Indigenous navigators within our process, which, I think, parallels quite a lot with Indigenous court workers.
This has been a project-in-the-making for the last three years, and we’re excited to have four Indigenous navigators who joined our tribunal recently and have been busy working onboarding them. The idea is that when Indigenous people come through our doors, they see themselves reflected in our tribunal.
Senator LaBoucane-Benson: One of the things we’ve noticed with the court worker program is that not only did the court workers help clients navigate, they also transformed courtrooms at the same time because they developed critical relationships with Crown prosecutors and judges. A lot of our court workers might go fishing with judges. They build these relationships, and, through those relationships, that courtroom is transformed to be a much safer environment for Indigenous people.
Would you have that same experience with navigators transforming adjudicators, that space and the way that service is provided?
Ms. Prince: I know that they will. I already know from having Indigenous members and mediators at our tribunal that it has been transformative in terms of the baseline understanding of everyone within the tribunal and how some of the ideas and the lived experiences get brought forward in every aspect of our process.
Ms. Nicolet: I just want to make a brief comment and also full disclosure. Prior to working at the Human Rights Commission, I worked for 16 years and nine months with the Ontario Federation of Indigenous Friendship Centres as their policy director.
I’m quite familiar with the court worker program. It’s a good program. However, it’s a program that was conceived to reduce the over-representation of Indigenous people in the criminal justice system, and it has not done that. I think that the important distinction between something like the court worker program and what my colleagues in B.C. are doing is an approach that has much more rigour with respect to concepts of decolonization and a commitment to the concretization and the realization of human rights in a way that is significantly different from what was conceived in the court-worker program.
I want to make that distinction because I think it would be dangerous to think if we just put navigators in the human rights contexts that we will solve the problem. I think it requires a much deeper engagement, and probably more resources in order to succeed.
Ms. Ohler: I wanted to add briefly to my colleague Ms. Prince’s comments. When you mentioned the fact that you have three very different models sitting in front of you, I think it is worth noting that B.C. is unique in that we are a direct-access model. So there isn’t a commission that will investigate and shepherd people through at the front end of the process. Anyone who believes they have experienced discrimination can come directly to our door.
As with any process, not just legal processes, there are pluses and minuses to that. Some of the minuses could be, for example, that we don’t provide investigative services. As with a court model, people are responsible for coming and gathering the evidence that they need and putting it in front of us. It can be rather a lone experience. As our colleagues at the Canadian Tribunal know, most complainants do come before us self‑represented.
Having said that, the whole purpose of administrative systems is to be more nimble than court systems. If properly resourced, you can leverage that nimbleness to innovative and be responsive, and that, in turn, facilitates our being able to embark on this transformational process. Because we have this direct‑access model, we’re able to direct more resources into listening to and learning from the parties who come before us.
As Ms. Prince said, we have no doubt having the navigators on board will transform us internally, but it must also be recognized that we are also able to transform our processes through what we learn from the parties who come before us, the parties who tell us what was missing and how they were harmed, sometimes frankly. We’re able to be responsive to that in part because we are direct access.
Senator Greenwood: Thank you to all of you for some very informative presentations. I appreciated what you had to say.
I’m looking at the written brief submitted by British Columbia and the six points that you went through, your recommendations. I have a couple of questions, but I think all of you can answer them.
There was some talk from each of you about these different models, Indigenous-specific models. Ms. DeGuire, you put that out there. And then I listened to the conversation about the need for navigators. I come out of the health system, so we have what’s called “patient navigators.” They’re akin to what all of these other ones are, in a way. It’s often necessary — and I said this earlier when Ms. Oviatt was doing her presentation.
There is a necessity for people to have that person to guide them in the process. When I think about that, I think about different knowledge systems, different cultures, different philosophies, different backgrounds. So people are coming into spaces that aren’t their spaces. So, of course, if I go to the emergency and I don’t know what’s going to happen to me, I have a whole lot of mistrust about what’s going on there because they just say, “Oh, go here, go there, go there,” but I don’t know why I’m going there or what’s going on. I see that mistrust.
There is a fundamental piece around that. When we are dealing with folks from different cultures and different systems of knowledge, navigators become extraordinarily important just to simply tell you, “Here is what is going to happen when you go there.”
I’m coming to my question, really. I would really like to think about what would be some of the guiding principles, then, if we had an Indigenous-specific human rights institution. What would that be? The other piece is what does it look like when we integrate aspects of the United Nations Declaration on the Rights of Indigenous Peoples? What does that look like on the ground? Those are hard questions to think about, because theory is easy. Making it happen and making it real is the harder part of that.
When we think about these things, there are multiple levels to think from. What are the philosophical differences and implementation differences? And there are multiple ways to get there, as you’ve all shown us this evening.
I would like you to comment on some of those thoughts. I think you’re looking a bit puzzled, Ms. Prince. How have you implemented any aspects of UNDRIP into your process in British Columbia? Or what would you like to see? It could be aspirational too.
Ms. Prince: Yes. I will give this a shot. In our six recommendations we have recommended that any plan must be UNDRIP compliant, and we have recognized this in Canadian law and in B.C. law as well.
In B.C., to be frank, we’re in the early stages of trying to make our B.C. Human Rights Code UNDRIP compliant. As was mentioned by one of the earlier panellists — sorry, I forget that specific thought that I had in my mind.
We’re in the early stages, and I think we have an understanding from the Expanding Our Vision report that Indigenous human rights are conceived of differently, and I think that that’s reflected within UNDRIP. So within our own process, we see that in the complaints that are coming forward. We’ve told Indigenous people to come forward to our tribunal, that we are a place that you can trust to bring those complaints forward. But a lot of those systemic issues, as was mentioned earlier, have not been the focus. We have a human rights code that was really conceived of without Indigenous people in mind, a very individualistic, colonial, Western understanding of human rights law.
Getting to a place of understanding the specific and distinct human rights issues that Indigenous people face, we must grapple with UNDRIP. We must make our code UNDRIP compliant.
If you will indulge me to turn to our chair to add to my comments.
Senator Greenwood: Yes, of course.
Ms. Ohler: Just to build on what Ms. Prince was saying with regard to Indigenous people’s human rights requiring particular recognition, British Columbia recently amended the human rights code in order to recognize Indigenous identity as a specific and distinct ground of protection under the code, whereas previously Indigenous people would apply or — not apply, but submit a complaint under the grounds of the place of origin or race, for example. There was this recognition and advocacy from the provincial mechanisms to make that amendment to the code, which happened and is excellent.
The other piece I wanted to mention about UNDRIP — and this is a theme you’ve heard recurring in the various testimonies you’ve heard this evening — is funding. A core principle in UNDRIP is that Indigenous peoples have access to not just meaningful justice, but timely justice. Of course, we understand that meaningfulness and timeliness intersect. So like many other institutions, we were underfunded for a very long time and we’re not delivering on that promise. We recently received a funding increase. So the future holds a lot of promise, but it’s a difficult sell to be saying to Indigenous people, “Look at the changes that we’re making to make this a hospitable, welcoming, meaningful process for you,” but then when people come through the door we say, “Okay, now wait here for years and years and years because we don’t have the resources to deliver on that promise that you have trusted us with.”
Thank you.
Senator Greenwood: Thank you. That’s great. Does anyone else want to comment as well?
Ms. Oviatt: I thought I would add — I take no position on whether there should be a separate Indigenous human rights commission or tribunal. Like my colleague at the Canadian Human Rights Tribunal, I’m a statutory body, and I administer the act that I am given. There are opportunities within our acts that we can do better on, we can amend our acts, or we can do something entirely new.
The caution I would add is to make sure that there aren’t unintended consequences from too many forums. Make sure that that gap is closed. I’m also a little bit worried when I hear things about separate but equal. We should be cautious, especially when we have intersecting protected characteristics. It’s not just a case of one plus one equals two. A person who is Indigenous has a different experience than a person who is Indigenous and a woman and has a different experience from a person who is Indigenous and a woman with a mental disability. I’m not saying no or yes. I’m saying think about that gap and think about that gap very carefully.
That also goes back to the diversity of the Indigenous experience too. The Algonquin experience here in Ottawa is going to be very different than the Blackfoot experience in southern Alberta. We can’t treat them the same when they have different traditions. That’s the other caution that I would say. That’s not to say that our existing system is the one that you need to work with, but just to highlight that those are considerations that are going to be really important as you’re looking at how we can better serve Indigenous peoples.
Ms. Nicolet: I don’t know if I’m going to completely answer your question, but I’m going to say what I think.
In our dialogue in 2018, there were clearly three distinct perspectives that emerged. I’d say one was really based on the irreconcilability of traditional Indigenous laws and customs. Total irreconcilability. The other perspective was based on an understanding of the strategic necessity or requirement to continue to engage with Western models and to live with that.
The third perspective was one that rejected the dichotomy that those two previous ones set out and really said that we don’t need to choose and we can elaborate on something new. In so doing, we engage with both of those questions simultaneously so that we are able to advance through the elaboration of these things in an evolutionary kind of way.
The other thing that I would add, the reality is that whatever is going to happen — Ontario has the largest Indigenous population of any province and territory in Canada at almost 400,000, and roughly 372,000, or 85% of that population lives off reserve. This means that people are getting their services off reserve, so where their human rights may be violated are in areas that the OHRC has a mandate; they would bring complaints to a tribunal now.
As we move through an elaboration, whatever we do, we can’t leave people with nowhere to go is my point. I think that’s an understanding that everyone has. It’s a fairly obvious point. What it means is that even if a whole brand-new thing is set up, we have an obligation to continue to evolve simultaneously as well. We can’t stop our own work.
In Ontario — I will speak only for Ontario — people will continue to come to the HRTO, the Human Rights Tribunal of Ontario. They will continue to go there, and the Human Rights Commission will continue to look at systemic discrimination against Indigenous people in Ontario. It will not go away. I don’t know if that answers your question.
Senator Greenwood: I don’t know the answer. That’s why I’m asking you. Thank you.
Ms. Nicolet: I don’t know if it responds to your query, let’s put it that way.
Senator Greenwood: Thank you very much.
[Translation]
Senator Audette: Just so I understand, in my world, since the 1970s and 1980s, courtwork services weren’t designed to reduce the number of incarcerations, but to work with people caught up in the justice system. Today, we give them a lot of mandates, but not necessarily resources. However, some are doing remarkable work. I’ve seen it in Quebec, in Wendake. All that to say I understand that there may be a fear or a concern that if we have too many institutions, we’ll get mixed up.
For First Nations, it’s been said for a long time: the system has failed. Commissions of inquiry have proposed solutions, have told us how we can work together. I think we must work together.
First Nations don’t have an Indigenous university, but my five Indigenous children can choose from hundreds of Canadian universities. There is room to create institutions by and for Indigenous people. Your knowledge will be valuable. It will be valuable because you’ve been doing this for a long time.
I’d like to keep this relationship going, because there will be debates in the chamber, discussions and maybe even bills. Your successes could feed our future success in terms of an Indigenous tribunal and an ombudsman or an ombudswoman — why not?
I just want to assure you: We don’t want to push anyone aside. I may have misunderstood, but in spite of the complexity, I’m sure we can make it simple when we work together.
[English]
It’s because of what you have here.
Ms. Nicolet: An expression of concentration.
Senator Audette: It wasn’t a question; it was a comment. Your expertise will be precious if one day we have an Indigenous tribunal — and we have to; I hope I’ll be alive to see it — and an ombudsperson, ombudswoman. Your knowledge will be precious. Can we count on you?
Ms. Oviatt: Yes, 100%. I think you have heard some different perspectives from all three organizations here, but I don’t think we fundamentally disagree, particularly on one fundamental point, which is any solution needs to be Indigenous led. As I’m coming here, I want to be very conscious of the role that I play in representing a colonial institution with a mandate to promote equality in my province.
I cannot speak for the Indigenous people of my province. That is a conversation I hope that you will have with them. I can only speak on behalf of the Alberta Human Rights Commission, but I can say unequivocally that the staff and tribunal members who are in my organization are deeply committed to issues of reconciliation and to addressing discrimination against Indigenous people.
As I’ve said before, we are a statutory body, so we apply the law that we are given, and we will continue to do so. If there are other forums and other opportunities, we will be there as partners because the work of equality doesn’t stop at our borders.
The Chair: Thank you. The floor is still open, if anyone has a question.
Senator D. Patterson: I’d just like to say that I found the presentations most impressive as to what is being done within the existing structure to admit shortcomings. I think it was called a failure to recognize Indigenous peoples. Ontario, you made that comment. The colonial models. Amazing efforts to transform these organizations to deal with issues that were not really at the forefront decades ago when provincial commissions were established.
I have been wondering — and I think Senator Greenwood asked the question — would it be possible to transform the Canadian Human Rights Commission, as you seem to have done in your provinces, even though the Truth and Reconciliation Commission Calls to Action and our own committee’s mandate is to study creating an independent Indigenous commission and ombudsperson, which we must respect? Maybe I’m not asking a question, but I think the answer that came tonight from your very impressive work is that you have shown the way as to what could be achieved in our recommendations. You have done so within an existing framework. We have an opportunity to recommend the creation of a new framework. Your work, as Ms. Nicolet was just saying, will also probably be instructive for what is left behind in Canada, the transformation and the evolution of the existing Canadian bodies.
My questions have been answered in all of the good questions asked by my colleagues and the great answers. This is not a question but, rather, an observation to thank you all for such thoughtful, thorough, stimulating information about the great progress that you seem to have made.
That’s a concluding comment, Mr. Chair.
The Chair: Senator Patterson, thank you for that.
I remind our witnesses that if you have any additional information you would like to provide, feel free to provide written briefs to our clerk, Ms. Andrea Mugny. We would be happy to receive them. I wish to thank all our witnesses again for joining us today.
(The committee adjourned.)