THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, December 6, 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: Good evening, everyone. 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, and is now home to many other First Nations, Métis and Inuit Peoples from across Turtle Island.
I am Mi’kmaw Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the Chair of the Standing Senate Committee on Indigenous Peoples.
I will now invite committee members in attendance to introduce themselves by stating their name and province or territory, starting on my left.
Senator Arnot: I am David Arnot. I’m a senator from Saskatchewan. I live in Treaty 6 territory.
Senator Hartling: Senator Nancy Hartling from the unceded territory of the Mi’kmaw people in New Brunswick.
Senator Martin: Yonah Martin from British Columbia.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, Mi’kmaki.
Senator Sorensen: Karen Sorensen, Alberta, Banff National Park, Treaty 7 territory.
Senator Prosper: P.J. Prosper, Nova Scotia, land of the Mi’kmaw.
Senator White: Judy White, Ktaqmkuk, better known as Newfoundland and Labrador.
[Translation]
Senator Cormier: I am René Cormier from New Brunswick, the unceded territory of the Mi’kmaq people.
Senator Patterson: I am Dennis Patterson from Nunavut, in Inuit Nunangat.
[English]
The Chair: Thank you, everyone.
Today we continue our study into the effectiveness of the Canadian human rights framework and the promotion, protection and realization of the rights of Indigenous peoples.
I would like to now introduce our witnesses. From Crown-Indigenous Relations and Northern Affairs Canada, we have Valerie Gideon, Deputy Minister, and Mary-Luisa Kapelus, Senior Assistant Deputy Minister, Policy and Strategic Direction.
Wela’lin and thank you for joining us this evening.
Ms. Gideon will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session with senators. I will now invite the Deputy Minister Gideon to give her opening remarks.
Valerie Gideon, Deputy Minister, Crown-Indigenous Relations and Northern Affairs Canada: Thank you very much.
Kwey kwey, ullukkut, tansi, hello, bonjour.
I would like to acknowledge that we are gathered today on the unceded traditional territory of the Anishinaabe Algonquin people.
[Translation]
We have just marked the annual 16 Days of Activism Against Gender-based Violence, an international campaign that begins on November 25, the International Day for the Elimination of Violence Against Women, and goes until December 10, Human Rights Day. Each year with this campaign, we renew our commitment to ending violence against Indigenous women, girls and 2SLGTBQI+ individuals. In this regard, I welcome this discussion on Call for Justice 1.7, an important component of addressing the ongoing crisis of violence against Indigenous women, girls and 2SLGTBQI+ people.
[English]
I am here before the committee, not only as the Deputy Minister for Crown-Indigenous Relations and Northern Affairs Canada — on day ten of that particular job — but also as a First Nations woman, member of the Mi’gmaq nation of Gesgapegiag of the Quebec region and as a mother of two young girls.
[Translation]
Thank you for the committee’s study of the Canadian human rights framework, and the promotion and protection of Indigenous peoples’ rights. I especially want to acknowledge Senator Audette and her work in protecting Indigenous women as a commissioner for the National Inquiry into Missing and Murdered Indigenous Women and Girls and, now, as a senator.
[English]
For senators who may not have been there at the beginning of the whole development of this process but would be very familiar today, an action plan that was national in nature was co-developed in 2021 by a core working group in collaboration with the National Family and Survivors Circle and contributing partners. The federal government’s work is guided by the federal pathway, which is our contribution to the national action plan.
[Translation]
We report annually on progress on the federal pathway, and, as outlined in this year’s report, progress has been made through programs for families and survivors, cultural spaces, health and wellness, languages, shelters, housing, education and data collection. New policies and strategies that support important focus areas, such as community safety initiatives, justice and policing, and gender-based violence, are under way. I’m happy to provide details on this progress during our subsequent discussion.
Despite these efforts, the loss and suffering continues. We will continue to work with families, survivors, Indigenous organizations and governments to make this country a safer place for Indigenous women, girls and 2SLGTBQI+ people.
[English]
I know that the Ministerial Special Representative for Crown-Indigenous Relations, Jennifer Moore Rattray, was here this past April, and as you may recall, she was appointed in January 2023 to provide advice and recommendations on the implementation of Call for Justice 1.7, and specifically the creation of a National Indigenous and Human Rights Ombudsperson.
Ms. Moore Rattray has been engaging extensively across the country since her appointment with over 600 people, representing more than 100 organizations, accountability entities and governments. I can say that in my previous role as the associate deputy minister, I also had an opportunity to participate in a wonderful conversation with her. She will present her final report to the Honourable Minister Gary Anandasangaree at the end of December.
Since the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls was released in 2019, we have been hearing about the need for an Indigenous-specific human rights institution to advance the realization First Nations, Inuit and Métis rights in this country, whether it be the right to health, the right to justice, the right to safety or the right to dignity.
[Translation]
There are currently no ombudspersons with the specific mandate to safeguard Indigenous rights, despite the disparities that exist. The mechanisms that do exist are often not Indigenous-led, culturally safe or trauma-informed. Through our efforts to help end the violence against Indigenous women, girls and 2SLGTBQI+ people, we have heard about the importance of collaboration among partners. For example, Call for Justice 1.7 calls on federal, provincial and territorial governments to work in partnership with Indigenous peoples to establish an ombudsperson.
[English]
It is with such collaboration in mind that we are looking forward to a second national Roundtable on Missing and Murdered Indigenous Women, Girls and 2SLGBTQI+ People that will take place this winter. At the roundtable, Indigenous, federal, provincial and territorial governments and organizations will discuss a number of areas of mutual interest, including how to launch a Red Dress Alert to notify the public when an Indigenous woman or two-spirit person goes missing.
At the second national roundtable, we will also make space for discussions on accountability. Since that first national roundtable held in January, work has been undertaken in consultation with Indigenous partners, families and survivors on recommendations for the development of an oversight mechanism. The federal government, alongside provincial and territorial governments and organizations, will continue these important conversations on the establishment of an oversight mechanism.
I am now happy to take your questions. Wela’lin, meegwetch, qujannamiik, marsee, thank you, merci.
The Chair: Wela’lin, Ms. Gideon. Thank you.
We will now move on to questions from senators. To help keep us on time and ensure equity to all, each senator will have five minutes for a question-and-answer exchange.
Senator Arnot: Thank you to the witnesses for coming today. I have a couple of questions, and I will direct the first question to the deputy minister.
How could a human rights framework tailored for Indigenous peoples align with and enhance current federal policies and programs for Indigenous communities? That is fairly open-ended, I think.
The second question is for Ms. Kapelus. Could the establishment of a separate human rights framework for Indigenous peoples impact the strategic direction of Crown-Indigenous Relations, particularly in areas of reconciliation and economic partnership?
If you do not like those questions, just pick another one and answer it.
Ms. Gideon: As you noted, senator, I think they are fairly broad questions.
The challenge that Ms. Kapelus and I find ourselves in here today is that we do not want to preempt the results of the Ministerial Special Representatives’ report, and I also don’t want to preempt the engagement process that has been under way around the oversight mechanism. As senior representatives of the federal public service, what we say could be interpreted as us having made the decision around what this is going to look like.
We really want to be very cautious. We want, of course, to participate in this conversation, but we also want to be very clear that we will, as senior officials — and the advice that we will provide to the government and to ministers, of course, and cabinet — will be based on the results of the Ministerial Special Representatives’ report and the engagement of First Nations, Inuit and Métis Nation partners.
What I can speak to in terms of my existing experience as a senior federal official who has had interactions with the Canadian Human Rights Tribunal on the First Nations Child and Family Services complaint, in particular, and the Jordan’s Principle complaint, is I do not think that it is a secret that I have been engaged and I have testified before the Canadian Human Rights Tribunal in the past.
What we have heard is that it was a long process prior to being able to get to a decision. The federal government took forward positions that were not supported or agreed to by First Nations partners who were trying to advance the complaint.
I would say that even after that decision was rendered by the tribunal, there have been challenges that are in the public domain with respect to the implementation of those decisions.
There is an opportunity to have First Nations, Inuit and Métis Nation voices be more present at the outset of a process whereby they are identifying an issue that they feel needs to be rectified.
One of the expert witnesses who already has testified before this committee has signalled that when you are talking about an issue that involves children, for example — here we’re talking about Indigenous girls — if it takes a long period of time prior to corrective action being taken, it creates an impact on the lives of these Indigenous girls who are the subject matter here, who are quite important for the work of the ombudsperson and on an oversight mechanism. Thinking about it from that perspective, I would say the more the process is adapted to the contexts, to the culture, to the language, to the needs of the individuals whose rights you are seeking to protect, those processes would likely be more responsive and effective.
I know that that is broad in response, but hopefully it assists.
Ms. Kapelus could answer your second question.
Mary-Luisa Kapelus, Senior Assistant Deputy Minister, Policy and Strategic Direction, Crown-Indigenous Relations and Northern Affairs Canada: You covered it with the first.
Thank you for the question. To the point, I was part of the Missing and Murdered Indigenous Women, Girls, and 2SLGBTQQIA+ People National Action Plan. I was the federal co-chair of a lot of that work.
The issue of the rights aspect to the work was very important to many of the partners. What was paramount, what we heard as we were developing the National Action Plan and the federal pathway, was that it has to be truly co-developed. They have to be leading those conversations, and not — to the deputy’s point — us being seen in that driver’s seat position.
Now, as alluded to, we have the Ministerial Special Representative out there. We have had an Indigenous company engaging across the country.
We are hearing early indications that rights and how those will be respected in the go-forward will be of paramount importance, but it is still early days. We’re anticipating a report from the Ministerial Special Representative at the end of this month, hopefully. That is the timing for that. Once we have all of that material, we will be in a better position to answer the question that you have put forward in terms of what we are hearing from partners and what their vision for this can be.
Senator Arnot: Maybe we should have you back sometime after.
Ms. Gideon: Yes. I would say that we will also be providing advice to ministers about their process and decision making on this.
Senator Sorensen: I will broaden the question, so maybe it will be easier for you. Are there examples from other jurisdictions that you know of or that work well in terms of models for establishing an Indigenous-led human rights mechanism?
The second part of my question is: In your view, does the United Nations Declaration on the Rights of Indigenous Peoples, also known as UNDRIP, or can UNDRIP provide guidance to the structure that we are trying to create in Canada for a new Indigenous-led human rights mechanism?
Ms. Gideon: I have not heard of a model that I can point to. I know there has also been work to try to look internationally to see if there is something. I have not seen it in my binders that I have here.
Senator Sorensen: But you have only been at it for ten days.
Ms. Gideon: Exactly. I will turn it over to Mary.
The United Nations Declaration Act Action Plan, which was released in June, clearly identifies that Crown-Indigenous Relations, along with the Department of Justice and others, have a role to review legislation, policies with the United Nations Declaration Act as the lens.
I would say any framework of this nature, based upon the commitment that we have already made in the Action Plan, would have to be designed with UNDRIP not just in mind; it would have to be aligned. That is the commitment that the government has made.
What does that signal concretely? We would certainly look to experts who actually developed the declaration and the United Nations Declaration Act for that advice.
Substantively, we know that there are some core principles around self-determination and around the recognition of the diversity of cultures, language and all of these pieces that would need to be front and centre in terms of how this is designed. You would need to have meaningful space for all of the diversity of nations to be represented or responded to in this process. That would be a core element.
Ms. Kapelus: The only thing that I could contribute to the conversation is that we have been doing work this past fall. There is a trilateral working group with Canada, the U.S. and Mexico.
Senator Sorensen: Okay.
Ms. Kapelus: They were up here this past fall. Depending upon elections in other parts of the world and things such as that, we are hoping to continue on some of that work.
Is it an ideal model? No, but we are catching snippets of other things that they are doing that could inform a model here. They are very interested in what we are doing. There are things that they are doing that are very progressive, and we’re starting to build collaboration there.
Senator Sorensen: So at least some best practices there that you are seeing.
Ms. Kapelus: Yes. Also with Australia.
Senator Sorensen: I don’t know why Australia always comes to mind for me, or New Zealand.
Ms. Kapelus: New Zealand as well, but Australia is interested in working with us and seeing where this work is going.
Senator Sorensen: Thank you.
Senator Coyle: Thank you very much to our witnesses. Welcome back to both of you. Congratulations. We are in good hands with you. It’s good to see you here.
I am sure that you have been following the work we have been doing here. We have had an incredible quality of witnesses who have spoken with us and given us a number of important must-haves in terms of setting up the ombudsperson’s role and the tribunal for success.
One of the things that we keep hearing from previous witnesses is the importance of ensuring that the Paris Principles — principles for national human rights organizations — are employed in this case to ensure this Indigenous human rights tribunal remains independent from the government. Could you tell us, if you are able, how those principles will be followed or implemented in the creation of the tribunal and the ombudsperson position?
Ms. Gideon: I would be able to answer that question more so afterwards. It is very difficult. I feel that I would be preempting or biasing, even though it would just be my opinion, again, because of the level that I hold in government. There is still a lot of work to do in terms of the trust relationship between any department and Indigenous people. I would worry about answering that question.
I would say that there are fundamental interests around accountability, transparency and also ensuring that you have provided the supports required and needed for people to fully and equitably participate in the process.
Going back to the previous question, there is the development of an Indigenous Justice Strategy as well that the Department of Justice is looking at. I’ve been meeting with the Assembly of First Nations Special Chiefs Assembly, which has been happening in the last three days. I’ve been absorbed in meetings with First Nations leadership from all across the country. A number of them have spoken about the importance of being able to advance on justice, enforcement and accountability mechanisms, which they still feel we have not moved far enough on in Canada to be able to support those First Nations-led models.
To your point, I think it’s a fair point that the expert witnesses have raised. How that would come together from an Indigenous perspective is the answer that I don’t have for you tonight.
Senator Coyle: Thank you.
Senator Hartling: Thank you for being with us tonight. First of all, Deputy Minister Gideon, thank you for sharing about yourself. It helps to see where you’re coming from, your perspective and that you have daughters. Certainly, you spoke a lot about the loss and suffering that people have experienced. We felt that listening to the various stories and the reports, so I can only imagine being right there all the time and hearing that.
You talked about the need for safer places. What I’m wondering about, with the setting up of a new ombudsperson and tribunal, what are your thoughts around having it culturally safe and trauma informed? We’ve heard a lot about that too. Can you tell me about that and what your thoughts are?
Ms. Gideon: Absolutely. We have been able to receive funding to support a variety of different initiatives relating to implementing the national action plan. Reading through the number of projects that are under way, I do feel that what we know today is not what we’re going to know two to three years from now once these projects have fully had the opportunity to be implemented, because we also have to understand that we are still in a post-pandemic environment where there are capacity challenges and some delays in terms of people being able to get started, even in that context. I’ll give you some examples.
Through Budget 2021 funding, which was $2.2 billion, that was announced specifically for missing and murdered Indigenous women and girls, and there is an initiative specific to cultural spaces in Indigenous communities. There are a number of initiatives, 51 projects that have been funded through that.
There is also the Pathways to Safe Indigenous Communities Initiative, which is actually hosted through Indigenous Services Canada. It is also supporting a number of very innovative initiatives that are outside of the boundaries of existing federal programs that are enabling communities but also other Indigenous organizations to actually work on creating a safer environment for their members or the people they serve in very different ways than conventional policing or other types of approaches. Many of those initiatives also involve the voices of Indigenous women, of course, in terms of the design of those pieces.
I do think there is a tremendous amount of innovation. I think there have been significant resources invested starting in Budget 2021 over a five-year period. I would suggest to the committee that in a few years’ time, not too many years, get us to come back or whoever will be in these jobs to actually report against the results. Of all of these concrete grassroots initiatives, hearing directly from the people who are delivering those would really help to inform.
The timing is nice in the sense that the funding could be announced early enough after the rollout of the national action plan for these discussions, which are very complex, around an ombudsperson and an oversight mechanism and to be informed by that grassroots, local work that is now happening across the country.
Ms. Kapelus: If I could add something, I don’t know if you read our federal pathway, but you just listed two of our key fundamental principles in the pathway, that it be trauma informed and culturally safe. It was interesting you raised those two right off the bat because I thought, those are actual principles. You may have heard me mention that I co-chaired the federal group, which was with an Indigenous partner. That was something we heard consistently that no matter what we do, we have these key fundamental principles to guide the work, and that has been a constant.
You’ll see it reflected — the deputy gave one example. Much of the work touches on those principles. That’s part of possibly what we would like to see going forward as we monitor progress. How are we doing with ensuring culturally safe approaches that are trauma informed? Part of the way we have done that is by having families and survivors at the centre of this work. I know you have probably heard a lot about that as well.
Senator Hartling: Thank you. That makes a lot of sense.
The Chair: Ms. Kapelus, I’m wondering if you could provide more details about the work with the trilateral working group and some of the work happening in the U.S. and Mexico. If not tonight, then in writing, if you could.
Ms. Kapelus: Yes, absolutely. We’re in the phases right now. You may recall I mentioned we had those meetings just this past fall, and I actually just actioned today to get a status update on a report that we will have a readout from that work. I would be happy to share it with this group.
The fall session focused on some areas. Again, it’s a bit of a challenge when we have the trilateral come together because we’re speaking slightly different languages — no pun intended. When we start talking up here in Canada about distinctions-based approaches, our colleagues across the borders are like, “Huh?”
For the most part, we focused on key areas where we could find common ground. One of those areas was human trafficking and learning best practices. We talked about learning systems. You may recall the Red Dress Alert that was announced in the budget recently. That was something of particular interest, as well as learning some of the systems they have down there. We had the human trafficking and the learning systems that we talked about. I’d be happy to share the outcome of that last round of conversation with you all.
The Chair: Thank you for that.
Senator Prosper: Thank you for being here this evening. I’m not sure if this is a question that is contingent upon the report that is forthcoming, but I wanted to get your thoughts — either of you — on the nature of a human rights tribunal and the relationship between collective rights as we know them through section 35 of the UNDRIP and the action plan. How would you foresee those two elements coming together under a tribunal-like structure?
Ms. Gideon: I wish I had gone to law school. I suspect you have quite a few lawyers around you. I know one who is at the table, and it’s not Ms. Kapelus or me.
Honestly, it’s an excellent question because of the fact that this is something we deal with all the time, not with respect to the tribunal per se, but in terms of the design of federal initiatives. We still have a lot of direct service delivery initiatives and programs at the federal level — not at Crown-Indigenous relations per se but at Indigenous Services Canada. We have to ensure that those services are funded with integrity and provided in a culturally safe manner but that they are still being provided by the federal government, either pretty directly in some cases, in terms of at least the funding decision on very specific individual service provisions is done by the federal government.
At the same time, we also want to ensure that we are providing support for the advancement of self-determination with section 35 rights holders. For example, I’ll use child and family services reform again, where we are investing in the existing system, which is delivered through child and family services agencies and/or communities. Much of that is direct service to individuals. We are also advancing Bill C-92, which is the act respecting First Nations, Inuit and Métis jurisdiction.
We want to ensure that those approaches are complementary and that they are not working against each other, obviously, but it is not always an easy decision for First Nations, Inuit or Métis leadership around where to put your energy and efforts. I don’t know how a tribunal would balance those interests.
If you look at the Jordan’s Principle and First Nations child and family services case, there is evidence and testimony that has been provided by the Assembly of First Nations on this matter. There has been some back and forth with the tribunal on this particular matter. It’s not coming from the federal government per se, but from the AFN, so I won’t go further than that, but I’ll say that interplay has occurred. I don’t know how it would be resolved.
The only thing I can say is that if it were an Indigenous-designed process, I would have every confidence that they would find a mechanism to have an equilibrium between that respect of collective and individual rights within their context, just like they have for generations before and ahead. Some of their traditional restorative justice practices, for example, do speak to the balance between the community and the individual interest.
Senator Prosper: Very good. Thank you very much.
An Hon. Senator: She doesn’t need to go to law school.
Senator D. Patterson: Thank you for being here. It’s nice to see you again in our Senate committee in a new capacity.
I’m really intrigued that you were engaged — or maybe I should say embroiled — in the child welfare human rights saga, the 15-year saga. Maybe not for all 15 years, but it was a notable event.
In connection with that settlement, the largest settlement in Canadian history, I asked witnesses speaking on this subject: Didn’t the system work for Indigenous people? It was a bit of a devil’s advocate question. How would an Indigenous human rights tribunal be better than the process that you were embroiled in?
I will tell you what Katherine Hensel, a partner in a firm specializing in Indigenous issues, said about that, and I would like your comments. She said the Canadian Human Rights Tribunal is complaints-driven, it focuses on individual and not collective rights, it requires proof, it is adversarial and there needs to be respect for the Indigenous resolution process. Natan Obed said there isn’t, but needs to be, a dispute resolution process.
I think you hinted that the government was at odds with the complainants at times. We know that. Would you have any comments on those reasons for carving out an Indigenous rights tribunal that was given by the witnesses at our meetings on November 29, I believe it was. Do you have any comments?
Ms. Gideon: Well, I think that those are a list of concerns that I have heard before. I think that the way in which to address those concerns is going to be the complex matter.
In order to advance on a dispute resolution process that is not adversarial, you do have to have an agreement of a common interest toward what is possible around the resolution. It’s important for the committee and your study, for the ministerial special representative and for the engagement process that is under way, for people to really consider that.
The reason I say that is because under the Canadian Human Rights Tribunal decision, for example, provinces and territories are not implicated. This is an example. Yet the provinces and territories have a clear jurisdiction over many services that either impact the determinants behind child and family services or in some cases the actual services. The remedies that can be brought forward by the federal government will not necessarily be remedies that will be available to all Indigenous people in Canada, because not all Indigenous people in Canada have access to the same degree of federal investments, programs, services or interventions. That’s an example of something that I think is missing in that list.
In order to have an expedited process, in order to have a process that is less adversarial, in order to have a process that is not as dependent on — I don’t know how you do it without an evidentiary base, but you would need to, of course, have something. The burden of proof, I think, was the language she was raising. I don’t know what you would substitute that with. In order for those things to be addressed, you have to have a common or shared framework around the expectations of what the parties are bringing to the table and how you manage those disputes. At the end of the day, certainly for the federal government, we have to seek a mandate for settlements for negotiated agreements, and in order to do that we do need to have some very specific parameters, including funding decisions or accountability mechanisms. All of those things. Those would have to be acceptable to all parties in order to actually resolve the dispute. That is not an easy journey in the federal context. It would be the same situation with respect to any jurisdiction, including Indigenous governments as well. They have a lot of diverse perspectives around what they would see to be acceptable as a framework. I’m not saying it’s impossible, but I’m saying that there are other layers of complexity there that will need to be considered in the process.
Senator D. Patterson: I don’t know why it took 15 years, but you suggested that there were points of tension with the parties. You represented the Crown. Do you think this process could have been improved, or in a new model could be improved, with a dispute resolution process? When you think of the impasse that occurred, would a dispute resolution process have maybe sped things up to the resolution that finally came after so many years?
Ms. Gideon: There was always the possibility, through the Canadian Human Rights Tribunal process for the parties to agree to mediate. The process itself does not prevent the possibility of going toward attempting mediation.
Senator D. Patterson: That’s not what the witnesses told us. They said there is no dispute resolution built in. Maybe it could be done by agreement, but maybe it needs to be encouraged in legislation that isn’t there now.
Ms. Gideon: For that, you would definitely need someone from the Department of Justice and not me.
I think the government has been very clear that it is committed to negotiated agreements or settlements to the maximum extent possible. Even in this process, we have attempted different approaches, including mediation. That’s the best that I can say. I don’t know how it would work in terms of making certain steps mandatory. I don’t have that degree of expertise to answer your question.
Senator D. Patterson: So, there was mediation in the child welfare process.
Ms. Gideon: Even just in the compensation agreement negotiation, for example. All parties agreed that the court process could be put in abeyance so we could attempt to negotiate a settlement, which we did and that was then brought to the tribunal. The tribunal did not accept the settlement, initially. We had to go back, improve the agreement and enhance the agreement, and then the tribunal approved it. Then it went to the federal court process. That’s an example of a situation where there was litigation, it was put in abeyance and a negotiated agreement was brought forward.
Senator Arnot: Thank you, Senator Patterson, for setting the agenda. I want to keep on the case of the First Nations Child & Family Caring Society issue, and the 16 or so years that it took to deal with it.
You were heavily involved in that. What was your experience there in terms of — what can you tell us about what you learned there and what you think should be done better? What changes can be made, if any, inside the department or your relationship with the Ministry of Justice in terms of avoiding such a prolonged litigation over almost two decades?
Ms. Gideon: I will speak to the department that I am in right now.
Crown-Indigenous Relations and Northern Affairs Canada manages childhood claim settlements. There are a number of settlement negotiations that have been concluded and are under way. While they are not before the tribunal in all or most cases, they also continue to offer a path to demonstrating that negotiated settlements are possible.
At the time, when the complaint before the Canadian Human Rights Tribunal was filed, we had the Indian Residential Schools Settlement Agreement that had been concluded, but we did not have the degree of experience within our departments. Our departments did not exist at the time, but I will speak from the perspective that now these are the departments. We are building every time on the experience of negotiation that we are having whether these are childhood claims or whether they are specific claims. All of the approaches have been shifting toward one that is really intended toward reconciliation.
The Department of Justice introduced their principles with respect to civil litigation several years ago, and those principles continue to inform their approach to the advice that they are providing us as a client department. There has been a lot of changing of policies and frameworks approaches.
I can also speak to the training of public servants. We introduced a mandatory cultural competency training policy, a few years ago. It is jointly adopted by my department and Indigenous Services Canada. It reaches a large number of federal employees. I would say just under 10,000 or so. That policy was actually designed by a group of experts on a committee that I tri-chaired with the Assembly of First Nations and the First Nations Child & Family Services Caring Society that was specifically intended to look at different ways in which the departments could learn from that particular experience, as well as the many years of the colonial legacies before that, in order to have a more culturally informed approach to everything that we do. We have been doing that ever since.
The Chair: I have a question for Ms. Gideon: As a part of the recommendation from the National Inquiry to establish the Indigenous human rights mechanism that can operate in all jurisdictions, as a senior federal official that worked on the implementation of Jordan’s Principle, what lessons can be learned from this approach to service delivery on jurisdictional cooperation?
Ms. Gideon: Would you mind repeating that last section of the question, Jordan’s Principle implementation and then the jurisdictional aspect?
The Chair: As a senior federal official that worked on the implementation of Jordan’s Principle, what lessons can be learned from this approach to service delivery on jurisdictional cooperation?
Ms. Gideon: Okay. I am trying to think of this in the context of Missing and Murdered Indigenous Women and Girls and the work of the National Action Plan.
There are a couple of things that I would say. The distinctions base is very important to the National Action Plan and the individuals who have participated and shared so much in order to have it occur.
In that context, ensuring that you have the ability to frame your service delivery response, not just in the context of the distinction but also in the context of where people are living and where people are experiencing those particular needs, because there is so much difference across regions, across subregions, across communities and nations.
Typically, what we have done with programs or services is created a list of eligible criteria, standard operating procedures, and authorities have been framed in a specific way to provide as much certainty as possible, which is something that is fundamental when you are also trying to ask for funding to match the service delivery.
The difficulty, if you are developing an approach that is grounded in diversity, in Indigenous-led approaches is that you are not necessarily going to be able to get that same well-defined frame of how the service is going to be delivered. Then that makes it even more difficult to predict the cost.
The federal system was not set up specifically for that type of process. That was something that we learned. How do you reverse engineer a service so that it is built around an individual, but also understanding that you have to be able to operate and deliver it? You also need some degree of predictability around how it is going to happen. I know that I’m being very opaque, but it is a challenge to deliver a service on the basis of the need of a specific individual and on the basis of substantive equality without looking at all individuals who could possibly benefit from that service.
Right now Jordan’s Principle is based on who calls, who submits a request. It doesn’t mean that other individuals, in similar circumstances, would not have that need, also. How do you balance those two approaches? It is an important lesson for the federal system, for all governments at all levels.
We are studying it, we are analyzing the information and we are looking at it in the context of other program and service reforms.
On your jurisdictional question, I would say that — because that particular implementation is only applicable to the federal government. What I am talking about is even more accentuated in a context where a recipient of Jordan’s Principle is not more directly served by the federal government or federal programs. It is a challenge in terms of being able to be responsive in an environment like a provincial school board in a large city, in a particular province. How do you build the networks and the connections to be able to address that need? How do you get all jurisdictions to come together to address systemic gaps and access to the services?
[Translation]
Senator Cormier: I am filling in for Senator Greenwood. I apologize if my question seems out of order.
Ms. Gideon, you mentioned the 2SLGTBQI+ community in your opening remarks. Members of the community face tremendous discrimination. How is your department, Crown-Indigenous Relations and Northern Affairs Canada, working with the Department for Women and Gender Equality on the Federal 2SLGBTQI+ Action Plan? One of the plan’s priority areas is to support Indigenous 2SLGBTQI+ resilience and resurgence.
In the context of the committee’s study, how are you working together? How is the work complementary? How do you see the relationship developing?
Ms. Gideon: That’s an excellent question. I will give part of an answer, but I will also ask Ms. Kapelus to respond, since she worked more closely with the representatives on developing the national action plan.
With respect to the strategy to end violence announced by the department, there are very close linkages between the strategy and activities that our department is carrying out.
For example, we invested $36.3 million over the next five years to support organizations that serve Indigenous women, and the community. We are working closely with the department to make sure the two strategies are aligned. They are also reflected in the UN Declaration Act Action Plan. Strategies are specifically laid out in the national action plan. We have joined forces with them to implement those commitments.
Mary may be able to give you more concrete examples.
Ms. Kapelus: One example is that we are currently holding frequent meetings with our counterparts at the Department for Women and Gender Equality.
This morning, in fact, I met with my counterparts to discuss coordinating our efforts at the round table in late January. We are exploring several questions. Are there opportunities for coordination when we address the different needs and requests of Indigenous stakeholders and other outside partners? Are there opportunities to coordinate discussions and small groups in order to set priorities jointly?
[English]
That is where we have been going with them recently. It’s baby steps.
[Translation]
We’ve started working together on a different approach, because our partners and the partners of the other departments are the same. We all have the same partners.
It’s more effective if we work together.
Senator Cormier: My next question is along the same lines. Tomorrow marks the end of Indigenous AIDS Awareness Week. AIDS awareness is important for not only the 2SLGBTQI+ community, but also the Indigenous community, and Canadians alike.
Do you work with the Department of Health on that issue? The community of those affected, both Indigenous people and members of the general population, faces considerable discrimination.
How do you work with the Department of Health? Do you work together to tackle discrimination and improve access to care? I know a lot of progress is being made right now when it comes to access to care. That is my question.
Ms. Gideon: I can answer that. I spent 13 years at the First Nations and Inuit Health Branch, which used to be part of Health Canada and is now part of Indigenous Services Canada.
I can tell you that there is an excellent relationship between the people at Health Canada and those at Indigenous Services Canada who work on Indigenous health. I should mention that best practices in the areas of prevention, detection and treatment originated in First Nations communities in Saskatchewan and others. Those networks are still in place.
In addition, an interdepartmental committee tasked with improving Indigenous women’s well-being exists. It is separate from the committees that deal specifically with the Missing and Murdered Indigenous Women, Girls, and 2SLGBTQQIA+ People National Action Plan. The committee has a broader mandate. It’s not a political committee, in the sense that it’s made up of deputy ministers and assistant deputy ministers as well as Indigenous partner representatives. It has done a lot of work in recent years on issues ranging from midwives to racism in the health care system and forced sterilization. Senator Boyer is very involved in those efforts. Funding was secured to support those victims. That committee was involved.
A few years ago, during the pandemic, we collectively decided to ensure that the 2SLGBTQI+ community was represented on the committee.
The committee is named the Advisory Committee on Indigenous Women’s Well-being but includes that representation. The committee members were actually asked whether they were interested in setting up a subcommittee specifically to keep… The priority areas are really health, child and family services, and social services. The committee really focused on those areas.
[English]
The Chair: The time for this panel is now complete. I would like to thank our witnesses again for joining us this evening. If you wish to make any subsequent submissions, please send them to Andrea Mugny, our clerk, within seven days.
I would now like to introduce our next witnesses from the Assembly of First Nations, Interim National Chief Joanna Bernard and Kyrie Ransom, Director of Justice, and from the Métis National Council, President Cassidy Caron. Wela’lin. Thank you all for joining us today. Witnesses will provide opening remarks of approximately five minutes to be followed by a question-and-answer session with the senators.
I will invite the Interim National Chief Bernard to give her opening remarks.
Joanna Bernard, Interim National Chief, Assembly of First Nations: Kwey kwey. Greetings. My name is Joanna Bernard, Interim National Chief for the Assembly of First Nations and the Regional Chief for New Brunswick.
I would like to acknowledge that this meeting is taking place in Ottawa on the unceded and unsurrendered territory of the Algonquin Anishinaabe people. Thank you for the invitation to speak about the federal government’s role in the implementation of the National Inquiry into Missing and Murdered Indigenous Women and Girls Call for Justice 1.7.
The AFN is mandated to call on the Government of Canada to accelerate the implementation of the MMIWG and 2SLGBTQQIA+ People National Action Plan and the 231 Calls for Justice, including the Call for Justice 1.7.
The AFN supports the “families first” principle in all of the work that we do on the Missing and Murdered Indigenous Women and Girls and Two-Spirit file.
We believe that it is important that the implementation of the 231 Calls for Justice reflects the voices of those who, for many years, have been advocating for the health and safety of First Nations women and girls.
As Interim National Chief, I have met many First Nations individuals and families who have been deeply affected by human rights injustice and racism. They remain at the heart of this work.
I recently met with Martha Martin, the mother of Chantel Moore. Chantel Moore was shot and killed by the police during a wellness check. Following Chantel Moore’s death, a coroner’s inquiry ruled her passing a homicide. The officer involved in the shooting was back to work shortly after the incident.
I would also like to mention that Martha Martin’s son, Michael Martin, was also killed. So the same mother of the two children both killed by police. He was killed in the justice system in British Columbia. This mother has been through this, twice.
This September I met with the family of Steven and Haven Dubois from the Pasqua First Nation. We discussed the neglect and racism that Steven Dubois experienced with his end-of-life care. They shared their struggles to find answers regarding the suspected death of Haven, which police ruled an accident within 24 hours. There was no investigation within 24 hours. It was ruled an accident.
The Dubois family has been seeking a national inquiry into the missing, murdered and neglected Indigenous men and boys, two-spirit and gender-diverse people. These experiences highlight the racism and bias First Nations face in Canada every day.
I want to emphasize a point about the Call for Justice 1.7. Start with looking at the authority and resources needed for the national Indigenous and human rights ombudsperson and tribunal. There must be legislation similar to the Office of the Correctional Investigator, which sets out the authority and ability to work between jurisdictions with resources to support regional offices in all provinces and territories. Any legislation being developed must involve First Nations, survivors and families at the start to ensure that any potential barriers to accessing an ombudsperson or tribunal are addressed.
Although Call for Justice 1.7 is rooted in the MMIWG2S+ report, the scope of the Calls allows the ombudsman and tribunal to be accessible to all First Nation individuals who experience violence or injustice regardless of sex or gender.
The ombudsperson and tribunal also must also a mechanism to examine current and historical cases of missing and murdered First Nations. True reconciliation requires acknowledgment of the past and its impacts today. Canada must work in partnership with First Nations as recommended by the Call for Justice 1.7.
Families continue to experience bias and racism when searching for their loved ones. These experiences were also documented during the national inquiry. As we move forward, it is essential to keep these families and all those who have been impacted by racism and will be looking to access these mechanisms at the forefront of our actions. When the colonial-based systems in place fail us, as they have time and time again, we, as First Nations, need a safe place for our voices to be heard and our human rights to be upheld.
Wela’lioq, wela’lin. Thank you.
The Chair: Wela’lin, Interim National Chief Bernard. I will now invite President Caron to give her opening remarks.
Cassidy Caron, President, Métis National Council: [Indigenous language spoken] Good evening, everyone. First and foremost, thank you for having me appear before your committee this evening. I’m grateful to be here with my colleague, the Interim National Chief, during what is a very busy time for her this week.
I also want to recognize that I’m grateful to now live and work on the unceded Algonquin Anishinaabe territory. I’m really grateful for their stewardship of this traditional territory where we are sitting and working here this evening.
I join you tonight as the president of the Métis National Council, or MNC, which is the recognized national and international representative of the Métis Nation in Canada since 1983.
I also want to recognize that today is the National Day of Remembrance and Action on Violence Against Women. It is a very monumental day for us to be having this conversation.
Of course, we’re here to talk about, from my perspective, the Métis National Council’s position on the creation of an Indigenous human rights tribunal, which is consistent with Call for Justice 1.7 of the National Inquiry into Missing and Murdered Indigenous Women and Girls. The significance of the crisis of missing and murdered Indigenous women, girls and 2SLGBTQQIA+ peoples cannot be overstated. It impacts Métis women, girls, two-spirit and LGBTQQIA+ people, their families and their communities. As well, it includes a cycle of violence, intergenerational trauma, discrimination and ongoing and repeated violations of Métis peoples’ basic human rights.
It is a foundational principle of western law that there is no right without a remedy. Call for Justice 1.7 calls for an independent national Indigenous human rights ombudsperson and an independent national Indigenous and human rights tribunal. Each of these is an important measure for remedying violations of our rights.
Further, Canada must uphold its obligations under the United Nations Declaration on the Rights of Indigenous Peoples. Article 40 of the UN declaration affirms that Indigenous peoples have the right to access and prompt decisions through just and fair procedures for the resolution of disputes with states as well as to effective remedies.
To implement its obligations under the UNDRIP declaration, Canada tabled the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan, or the UNDRIP Act Action Plan, in Parliament in June of 2023. Under the UNDIP Act Action Plan’s measure 19, Canada committed to establish an independent Indigenous rights mechanism with effective remedies for violations of our rights. It is the Métis National Council’s position that this mechanism be Indigenous-led, distinctions-based and informed by Indigenous customs and legal understandings.
This mechanism must also be independent and appropriately resourced and include recourse to clear and enforceable remedies for violations of Indigenous human rights. It is MNC’s position that in addition to any other human rights measures, Canada must fulfill its specific commitment to an independent Indigenous rights mechanism, providing both recourse and effective remedies for violations of our rights.
MNC looks forward to working with Indigenous governments, representative institutions and Justice Canada to further Métis peoples’ human rights and establish a recourse and remedy mechanism and calls upon Justice Canada, to do so in short order.
Ensuring the safety and survival of all Métis people, especially our women, girls, two-spirit and LGBTQQIA+ people requires recognizing, upholding and remedying the violations of our basic human rights.
On this National Day of Remembrance and Action on Violence Against Women, we call upon Canada to fulfill its commitments to do so.
Thank you again for having me here. I look forward to the discussion tonight.
The Chair: Wela’lin. Thank you, President Caron. We will now move on to questions from senators. To help keep us on time and ensure equity to all, each senator will have five minutes for a question and answer exchange. We’ll have round two of questions if time permits. I’m going to open up the floor by asking the first question for any of you to answer.
From your perspectives, what should be the mandate, responsibilities and institutional framework of a potential Indigenous ombudsperson and tribunal?
Ms. Caron: There is work under way right now. Of course, you have heard a lot about it over the last few hearings here. But Jennifer Moore Rattray has been appointed as the Ministerial Special Representative. She is doing a lot of consultations right now to provide recommendations back to the minister on what the role of the ombudsperson will be. The Métis National Council is working alongside Ms. Rattray on this work. She has provided us with a comprehensive list of questions that we are working with our governing members on to really understand and formalize the position of what an ombudsperson could look like.
In our most recent conversation, though, we really wanted to make it clear that there is the role of the ombudsperson, but in Call for Justice 1.7, there is also the Indigenous human rights tribunal. I think it’s important that those be viewed separately. In our last conversation with the Ministerial Special Representative, she did actually make it clear to us that she sees her role as being able to provide the recommendations on the ombudsperson role as separate from the Indigenous human rights tribunal space.
That’s the way we are working on that at the Métis National Council. Of course, we worked with our counterparts, the Assembly of First Nations, or AFN, and Inuit Tapiriit Kanatami, or ITK, on the development of the joint action plan measures within the action plan for the UNDRIP Act implementation. One of those was the development of this rights and recourse mechanism.
That’s one of those priorities that we hope to see implemented right away.
If it hasn’t been provided to you already, the Métis National Council jointly published a paper with Inuit Tapiriit Kanatami, on establishing a human rights commission and tribunal where it lays out the process and the mechanisms that we hope to see. There has been a lot of work that has been done on this already. We can submit this to you as well. Absolutely. It’s up on our website as well.
But, important to kind of look at 1.7 as it’s a massive recommendation with those two pieces. For us, we’re separating ombudsperson and human rights tribunal at this time.
The Chair: Thank you for that.
Ms. Bernard: I have eight recommendations. First Nations participation, of course, is essential. The tribunal must be established with the full participation of First Nations. It must also be established through the distinctions-based approach. Appointments must be made by First Nations based on the First Nation’s own processes.
Co-development is the ideal place to start, but the system must focus on rights holders and institutions that represent rights holders to ensure First Nations participation.
It must be consistent with the minimal standard set out by the United Nations Declaration on the Rights of Indigenous Peoples. All levels of government in Canada must commit to working with the tribunal.
There must be the ability to make orders in order to remedy both current and historic cases. There must also be the ability to evaluate legislation and policies to determine how they will affect First Nations.
Adequate resources must be provided in the manner that ensures that both institutions are fully independent. Lastly, it also needs to implement mechanisms to ensure success.
The Chair: Ms. Ransom, do you have anything to add?
Kyrie Ransom, Director of Justice, Assembly of First Nations: What I would add to that echoes what we heard from President Caron. When we’re looking at these two mechanisms of ombudsperson and tribunal, they would be separate instruments in developing both of those, so on that point, we can definitely echo what we’re hearing from our counterpart here.
The Chair: Thank you everyone.
Senator Sorensen: Thank you very much. I’ll ask both interim National Chief Bernard and President Caron these questions. Based on the testimony this evening and past testimony that we have heard, my first question may actually not be necessary, but I’m going to ask it, and I’ll understand if it’s a one-word answer.
How would you assess the government’s performance in addressing the crisis of missing and murdered Indigenous women and girls?
The second part of my question is, while violations of Indigenous human rights are blatant across Canada, how can an Indigenous human rights ombudsperson and/or tribunal reflect Indigenous values and the diversity of Indigenous cultures, laws and traditions across the country, even though it seems wherever the witnesses are from, we are hearing the same kinds of stories? I’ll turn both those questions over to you.
Ms. Bernard: I apologize, first question was in reference to the —
Senator Sorensen: How would you assess the government’s performance in addressing —
Ms. Bernard: We have had the success of the child and family services, and the legislation that went through and the settlement for the child and family services children.
One success doesn’t make it successful. When you’re looking at Canada, and I think they see it as okay, we did this one good thing. That covers all and that’s where the problem lies. It needs to be consistent to ensure everything, whether it’s legislation or policies, that the First Nations are definitely part of the process. Co-management is so important when it comes to this.
And I have said this before to multiple senators, you have to start with us, not prepare legislation and bring it to us and tweak it. You are wasting time and money in doing that. Bring in the Indigenous people and led by Indigenous whether it’s this organization or the Métis. Start from the beginning with us. This is where the problem lies.
They have been doing this time and time again thinking that we will just go behind closed doors, come up with something and then hand it to us. That’s where the problem lies. We need to be in it from the beginning. A senator asked me once, what does co-development look like? It’s from the conception, and the idea that we need to be at the table from the very beginning. It will save the government a lot of time and money too. Thank you.
Ms. Caron: How would I rank the Government of Canada in working to address the crisis of missing and murdered Indigenous women and girls? I don’t have an answer to that other than there is so much more work that has to be done. It’s not just a Government of Canada issue. This is a Canadian issue. The solution to addressing all of this will take a whole-of-society approach.
I have said this before, I’ll say it again and again. The challenge is that it is such a massive problem, it paralyzes us. We don’t know where to begin, even when we have the recommendations, the Calls for Justice, but there are so many of those that we don’t even know where to begin to start implementing those Calls for Justice, not to mention the fact that they will all need to be implemented, not in silos.
The jurisdictional issues that we always face, is it a provincial problem? Is it a federal problem? Is it a municipal problem? Is it an Indigenous problem? We have to break down all of those silos and work together to address this. It is such a systematic challenge that we face. It’s going to take a lot of conversations to continue implementing this.
I could keep talking about that some more, but to get to your second question about how can a tribunal really reflect the diversity of First Nations, Métis and Inuit? Again, for Métis specifically, as interim national chief said, you need to start by working with us first and foremost, and you need to work with the Métis National Council, you have to work with our Métis governments and the representatives that our Métis people choose to be represented through, those representative institutions, to ensure that our laws and our customs and our traditions are really reflected in the development of this tribunal.
It needs to be co-developed right from the beginning. It needs to take a distinctions-based approach. A pan-Indigenous approach to this will not work. We have such unique experiences, traditions and laws that a pan-Indigenous approach will not work.
However, there will be areas of collaboration that could work. But a distinctions-based approach, working with the rights holding representatives from the very beginning and ensuring that our rights holders are heard throughout these processes is the way to go.
Senator Sorensen: Just a comment based on the testimony too, I feel that regardless of what any government in the past or the present or the future has or may do, it’s what is happening on the ground. It’s not actually even the government. The government really has nothing to do with the way a police officer reacts or an attendant in a hospital reacts, or somebody in a prison reacts or even a neighbour reacts. It’s at the grassroots level of racism.
Ms. Bernard: I have one more comment if you allow me. There are 231 Calls for Justice. Two have been worked on. We will be here for 100 years. We need to focus and get some of this done because I’m not going to be here in 100 years. Neither will you. But we need to really buckle down and get some action here. Thank you.
Ms. Ransom: If I can add to the remarks of our interim national chief, in February of this year, we hosted a national MMIWG gathering in Vancouver. We had 450 survivors and families and grassroots organizers who are at the forefront this work. We heard resounding frustration at the lack of movement. That’s really the push that we have here today. We want to see action. Our position is we want to see the full and meaningful implementation of the Calls for Justice, especially around Call for Justice 1.7.
The Chair: Thank you, Ms. Ransom.
Senator Martin: Actually, Senator Sorensen asked the question that I was most interested in, about how an ombudsperson or a tribunal could reflect the diversity, but I have a question related to that.
Are there certain skill sets, education, criteria or checklists in selecting such an ombudsperson? Because that one person needs to navigate and be effective in the role. Can you go further in talking about some of those skill sets and criteria that you would recommend?
Ms. Bernard: I actually have the question here; I was expecting that to be asked. First of all, they must know and respect the uniqueness of nations and understand First Nations laws. That ombudsperson must also be focused on bringing forward First Nations voices. Also, they need to understand the roles of remoteness, regional considerations and other factors that affect First Nations’ access to human rights systems. The ombudsperson must be of Indigenous ancestry with experience in creating safe spaces for First Nations to seek justice. Thank you.
Senator Martin: Wow. Thank you. You gave us eight recommendations, and you have this checklist, so that’s very helpful.
In terms of access to justice in the current system, identifying the barriers would then allow this new tribunal to hopefully reduce or eliminate such barriers. Would you talk a little bit more about those barriers? Do you have another list? I know access to legal services is one of the biggest barriers. I would love to hear another list.
Ms. Ransom: I don’t have a list prepared, but, yes, we heard about barriers from the different survivors and families with whom we have been engaging over the last several years, even going back to the inquiry. Obviously, we have the legal services piece, the lack of having wraparound support to help navigate systems when something happens.
Also, we are thinking of some of the more practical concerns. There is a lack of understanding of cultural protocols and responsiveness for First Nations people looking to access an ombudsperson and even language barriers. We must recognize that, in some of our more remote areas, our Northern regions, the predominant language is their First Nations language. When they try to access an external service that is predominantly English, a lot gets lost in translation.
Fundamentally, any service created needs to be based on trauma-informed approaches. Anyone who comes to this ombudsperson should find a safe space and the support to navigate a crisis. They are dealing with the worst moments of their lives when they are looking for their loved ones.
Senator Martin: Thank you.
Senator Coyle: Thank you to our witnesses for being with us on this busy night for all of you.
My questions have been asked, but as I listened carefully, I heard repeated frustrations with the slow and inadequate responses. One of my worries is that when the new tribunal is up and running — hopefully fairly soon — that it may be slow, too. One of the reasons for this recommendation in the Calls to Justice is that the existing human rights mechanisms in Canada are slow to deliver or inadequate in their delivery of Indigenous rights.
Do you want to comment on how we can bake into this new national Indigenous human rights tribunal the requirement and the necessary mechanisms to ensure efficiency, as well as everything else you have talked about? Efficiency is probably even more important than a lot of other things. If justice is delayed, it’s the worst thing. If any of you have anything to say on that, I would like to hear your ideas.
Ms. Caron: Sure. It requires creating a completely new system. Absolutely, that’s what needs to happen. That is why we’re also pushing for the human rights tribunal as separate from the ombudsperson.
How many ombudspeople has Canada had? Still today, they table recommendations in front of Parliament, but then there is no actual mechanism to hold the Government of Canada accountable to implement those recommendations.
That’s why we have so many reports and recommendations just collecting dust. That’s why we are really pushing for this separate Indigenous human rights tribunal mechanism.
Again, another report has been tabled in front of Canada with the recommendation for the UNDRIP Act Action Plan. We know that the federal human rights system already has significant capacity constraints. Those will be further exacerbated by adding the human rights tribunal into that system, so we are pushing for a separate mechanism. It needs to be independent, and it needs to be a new system that would work to hold the Government of Canada accountable for human rights violations against Indigenous peoples.
The answer is not to try and fix a broken system that has been broken for Indigenous peoples for the last 150-plus years. Rather, we must start from the ground up and use our traditions and customs to build something new that we know will work.
Ms. Bernard: We need three tribunals. We need to get all the backlogs out. If we start with something good and have three of them, we will catch up until there is no longer a need for three. It’s an idea. It might work. We have a lot of backlogs and historical cases. I don’t know any other way to do that correctly and adequately. As you mentioned, it is very important. Maybe we can get one going and, if it works well, we can make another one. Thank you.
Senator Coyle: Resourcing it well is also critical.
Ms. Ransom: I would add to the comments of the interim national chief. Again, when we look at this, as mentioned by President Caron, we’re talking about both a tribunal and then a separate ombudsperson. You had a question about timeliness. Some of our families have been advocating for their loved ones for decades.
Our national chief, in her opening remarks, referenced the Office of the Correctional Investigator. They tabled a report not too long ago with astonishing statistics showing that despite the investments into the corrections systems that things have gotten worse, especially for women being 50% of the population.
We were fortunately able to meet with Dr. Zinger before that release in preparing for a joint press conference. We noted, through their work, that they have access to information. To me, there’s value in having an office that can cut through red tape and have the legislative authority to access records in the system when families cannot, when families hit a number of barriers.
Looking beyond the scope of that office, President Caron mentioned having a mechanism that can hold the government accountable when they come up with a report and recommendations.
Any type of ombudsperson office needs to have the legislative teeth to back up what it is they are recommending.
When we are looking at a tribunal having a specific focus on Indigenous people, it has a number of benefits, specifically looking at having expertise and understanding how Canadian human rights would coincide with UNDRIP and how that would operationalize in the context of now that we’re in this space of having UNDRIP legislated in the country. Also, the tribunal would have a cultural understanding of the people who will be accessing it, and be able to ensure that when First Nations people try to go through these mechanisms they will not have to explain themselves, their history and intergenerational trauma and the systemic discrimination they are facing. To be dealing with people who know and who can support would First Nations people will make all of the difference in the world. Having a tribunal that can just focus on these cases and not everything else would make a difference.
Senator Prosper: Thank you for your testimony.
I am curious about a couple of things. I took from your points with respect to the separation between a tribunal and an office of an ombudsperson. Does that essentially mean separate duties, separate functions, no linkages? I am curious about the linkage, if any, between both of them.
Second, you were all quite strong on the need for it to consider a distinctions-based approach and to have the benefit of the diversity and uniqueness that exists throughout our great nation among all Indigenous groups. How would you see that translate within our country in terms of allowing and gathering that input to bring into this structure of a tribunal?
Ms. Bernard: The tribunal and ombudsperson should have some kind of connection. They do link. There is a need for that, because there may be the need to go to one instead of the other. I am assuming that if I were going to the ombudsperson, I may not be at the right place.
They work together, I would say, and to be open, to have access to that information between each other. My personal opinion is they should be connected.
Ms. Caron: This is something we are trying to work through right now. There are a lot of moving pieces and recommendations that are at play. We were having this conversation with the Ministerial Special Representative. It must have been within the last few weeks. I hope that you have been able to see her interim report.
She has an interim report out on what she has heard throughout her engagement so far on this. We have only had an initial conversation to get that clarity on what her mandate is. My team at the Métis National Council is busy working on how we create and implement an Indigenous human rights tribunal.
The way we are going forward with that was through the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan. That is Action Plan measure 19, which is:
Establish an independent Indigenous rights monitoring, oversight, recourse or remedy mechanism or mechanisms to provide Indigenous peoples with access to and prompt decision through just and fair procedures for dispute and conflict resolution and effective remedies for infringements/violations of their individual and collective rights.
That was tabled in front of Parliament in June. For us, that provides that mechanism for us to go forward and start working on this. It was a joint action plan measure. It was done in collaboration with ITK and AFN, and we’re ready to hit the ground running on this.
I believe that there would be linkages between an ombudsperson, but at this point, again, we see it as two separate things. This piece, moving forward, is necessary for the work that is moving forward for implementing the Calls for Justice, as well as making sure that all of Canada’s laws — which are to be harmonized with the United Nations Declaration on the Rights of Indigenous Peoples — are done so in a way that is monitored by Indigenous peoples. Canada cannot hold itself accountable for doing that in a good way without the input of Indigenous peoples.
We hope to see this mechanism implemented right away, while this process goes forward. Then, through these processes, of course, finding ways to bring in all of the other recommendations, mechanisms and processes that are out there functioning in silos. Again, that siloed approach to all of the issues that we are trying to solve in this country is just creating more problems for us. It is creating this mechanism that will be critical to us as Indigenous peoples moving forward, and then finding ways to bring all of these pieces in, together, to make sure that we can continue to implement 1.7.
Senator Prosper: Thank you.
Senator Hartling: Thank you to the witnesses for your very interesting presentation tonight. There is a lot of food for thought. I appreciate the various ideas, recommendations and the idea of separating the ombudsperson and the tribunal. It is the first time I have heard that. I thank you for that. Also, you spoke about the trauma, loss and suffering, and the backlog.
So that we have that on the record, what are the impacts on your people in the current system? What are those impacts for people? I know there is a lot of suffering, but can you expand on that, please?
Ms. Bernard: Regrettably, I was not at the gathering in Vancouver where over 400 families participated and told their stories. Like anything else, when there is something that happens in their life, if there is no remedy or solution to it, or no completion or end, it affects them their whole life. They cannot go about living, moving forward and thinking about education and about living a normal life, because it is always there. Any kind of trauma, as we would all expect.
It bothers me most when I hear these things, because it has caused a lot of drug and alcohol use. It has caused a lot of things. What does that do? It affects the next generation.
It needs to be worked on as soon as possible. Those historic cases really need to get settled. The trauma has been intergenerational. Until it gets resolved, it will continue to do so. Definitely, there is an issue there.
Ms. Ransom: Coming back to one of the examples in our Interim National Chief’s opening remarks when she brought up the case of Chantel Moore. We worked closely with Martha Martin, the mother of Chantel Moore. We brought her to our gathering. What is the impact of that? She is raising her granddaughter. Her granddaughter is growing up in a world where she is seeing her grandmother having to champion and push for change and carry this burden to try to effect change so that nobody else goes through the same experience of what she has felt.
That is when we are talking about the intergenerational impact. It is the children who now do not have mothers or fathers and how they are raised, being brought up in a world without that stability and love at home.
Ms. Bernard: I would also like to mention, in this day and age, Facebook is out there. If you were on and befriended Martha Martin, it is sad. You see her posting all these things. I just can’t imagine what she is going through. I really can’t imagine it. I see her postings. She is just sad every day. Every single day.
We could see that more literally now that Facebook is out there. When you are looking at the day-to-day struggles, it is right there. It is right in front of our face.
Ms. Caron: If I could add to that, what is important here is that systems continue to fail Indigenous peoples. The education system failed and continues to fail Indigenous peoples. The health care system has failed and continues to fail Indigenous peoples. The justice system has failed and continues to fail Indigenous peoples.
The Correctional Investigator just tabled his report. He also did a report on the statistics that he took ten years ago, specifically on Indigenous peoples in the justice system, and compared them to ten years later, to today, and things have gotten significantly worse. The recommendations that he tables year after year with the Minister of Public Safety, continue to go unimplemented, and the system continues to get worse. Our people don’t trust these systems because there is data to show that the systems don’t work for them. This is absolutely why we need to create new systems.
I also want to be able to provide you with an example, and we can share more information about this. One of our Métis governments, Métis Nation Saskatchewan, is right now undertaking the creation of a Métis court, a judiciary, for their citizens. They are doing consultations throughout the province right now. They are working with experts, they are working with elders, and they are working to create a mechanism. This just illustrates that there is existing expertise in the creation and operation of Indigenous-led mechanisms and that they can be informed by Métis laws and legal understandings. The indicator of success for that Métis court will be when Métis people use that system because that implies trust in the system. It implies that there is trust in a just and fair procedure and remedy that is designed by and for our people. This is going to take time, but I hope that you will watch the process that will unfold there.
There are systems that were not designed for Indigenous peoples and they continue to perpetuate systemic racism. Until we break these systems down and build new ones that will be informed by our people, it will just continue to perpetuate injustice against Indigenous people.
The Chair: Thank you.
Senator Arnot: It is very clear that both AFN and MNC know what they want. That is clear. We are waiting for a ministerial special representative to give a report, and you will be ready to go on that. What is your expectation of a timeline to actually get to a conclusion on this? Is your timeline and expectation shared by the Crown-Indigenous Relations ministry? Are they giving you signals that your expectation is the same as theirs?
Ms. Bernard: I say yesterday.
Ms. Caron: I will have to check back with you — I have it written down somewhere — on the tabling of the final report of the special representative.
I am going to be completely honest with you. The cabinet shuffle this summer has really slowed down progress in a number of the priority areas of the Métis National Council. We are now in the position of briefing these new ministers on all of the critical files that we were working on, Justice and Crown-Indigenous Relations being two of them, and on the priorities of the Métis National Council. We had worked very closely with the previous Minister of Justice on the !UNDRIP Act Implementation Plan. We were ready to hit the ground running. It was June 2023 when that was tabled, and then just a month later there was a cabinet shuffle. We came back in September and are briefing the new minister on this and making sure that he is aware that the establishment of this accountability mechanism is essentially our number one priority. How can we continue to make progress on implementing the United Nations Declaration on the Rights of Indigenous Peoples without an accountability mechanism? Again, we cannot have Canada holding themselves accountable for this without the involvement of Indigenous peoples.
There has been some delay. We hope that by voicing our concerns with the delay and the slowed progress that we are heard, we can continue to make progress on these absolutely critical files for our people.
The Chair: Thank you for that. Unfortunately, we have to have a hard stop due to interpretation.
Thank you very much to the witnesses for your testimony, everyone. The time for this panel is now complete. I wish to thank everyone, and all the witnesses for joining us today.
Before we leave, a want to give a special shout out and thank you to Senator Patterson, who is winding down his career in the Senate before too long. He has been a great ally, and he has done a lot of work for our people. Senator Patterson was the chair of Standing Senate Committee on Indigenous Peoples from 2013 to 2015, and deputy chair from 2015 to 2017, and 2020 to 2021. I want to thank him for that.
Senator D. Patterson: Thank you very much. Thank you.
Hon. Senators: Hear, hear.
The Chair: Thank you, everyone.
(The committee adjourned.)