THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, November 28, 2023
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 9:02 a.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.
[Editor’s Note: Portions of the proceedings were presented through an Inuktitut interpreter.]
[English]
[English]
The Chair: Honourable senators, welcome. 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 this committee. I will now ask committee members in attendance to introduce themselves by stating their name and province or territory.
Senator Arnot: I’m Senator David Arnot from Saskatchewan. I live in Treaty 6 territory.
Senator Hartling: Good morning. I’m Nancy Hartling, senator for New Brunswick, on the unceded territory of the Mi’kmaw people. Welcome.
Senator D. Patterson: Ulaakut. Dennis Patterson, senator for Nunavut in Inuit Nunangat.
Senator Prosper: [Indigenous language spoken] I’m Senator P. J. Prosper. I am from the Mi’kmaw territory of Mi’kma’ki.
Senator Coyle: Good morning. I’m Mary Coyle from Antigonish, Nova Scotia, Mi’kma’ki.
Senator White: Good morning. I’m Judy White, proud Mi’kmaw from Ktaqmkuk, better known as Newfoundland and Labrador.
The Chair: Thank you, everyone.
Today, we are continuing our study into the effectiveness of the Canadian human rights framework in 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 ones.
Now I would like to introduce our witnesses. From Inuit Tapiriit Kanatami, we have Natan Obed, President; and Will David, Director, Legal Services. From Nunavut Tunngavik Incorporated, we welcome Aluki Kotierk, President. Wela’lin. Thank you for joining us today.
Witnesses will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session with senators. I’m pleased to advise that we have arranged for simultaneous interpretation from Inuktitut into English this morning, so witnesses are welcome to speak in the language of their choice. I will now invite Natan Obed to give his opening remarks.
Natan Obed, President, Inuit Tapiriit Kanatami: Nakurmiik. Thank you, Mr. Chair. It’s wonderful to be with you all here this morning.
I’m pleased to be here this morning to talk about the views of Inuit Tapiriit Kanatami, or ITK, in regard to the creation of an Indigenous human rights tribunal consistent with Call for Justice 1.7 of the National Inquiry into Missing and Murdered Indigenous Women and Girls, or MMIWG. I’m honoured to be appearing today with Aluki Kotierk, the President of Nunavut Tunngavik Incorporated and a current member of the United Nations Permanent Forum on Indigenous Issues.
The issue of murdered and missing Indigenous women and girls is a serious, massive and persistent matter of discrimination that the national inquiry itself identified as genocide. There are very few, if any, Indigenous individuals in Canada who have not been impacted by Indigenous women and girls who have gone missing or have been murdered. The impacts on our families, societies and peoples have been devastating, and that devastation lingers.
In the face of such devastation, Inuit have been forced to ask what we can do to end the cycle of violence and ensure that our children and grandchildren may live free of the fear of being victimized and murdered. For ITK, the answer is that massive violations of human rights require human-rights-based solutions. One key element of a human-rights-based solution is to recognize Inuit women and girls as human beings and recognize our rights as human rights. The fundamental rights of all peoples are rights that must be respected and ones that require states to take corrective actions when those rights are violated.
ITK first proposed the establishment of a national Indigenous peoples human rights institution in 2017. Establishing an Indigenous peoples’ human rights tribunal would fill a gap in the understanding and implementation of the fundamental human rights of Indigenous peoples. Since 1971, Inuit have been working together at the national level to negotiate modern treaties. Our collective experience in the implementation of these treaties is that the mere existence of a right does not guarantee that rights are implemented.
Unlike the specific obligations contained in modern treaties, the nature and sometimes even the existence of the human rights of Indigenous peoples are often placed in question by public governments in Canada. While we all agree that the international human rights obligations exist, we do not all agree on the proper interpretation of international human rights instruments or how best to implement those instruments within Canadian law.
Establishment of an Indigenous-focused national human rights institution would provide assistance to Inuit and to Canada on the implementation. A tribunal could provide recourse and redress by requiring government to change its conduct, programs and policies, and how it interprets its own laws.
Accepting complaints from Indigenous persons themselves would provide a powerful lever for Indigenous individuals and collective rights holders to identify disputes and potential resolutions or remedies that are defined by Indigenous peoples rather than government policy experts.
Development of an Indigenous rights tribunal would also create an independent centre of experts who have experience in applying both collective and individual human rights of Indigenous peoples. This kind of expertise is rarely, if ever, found within existing human rights mechanisms. The independent expertise is critical not only for the resolution of disputes regarding the implementation of Indigenous rights but also in terms of providing advice and guidance for governments, Indigenous peoples and Canadians on Indigenous rights.
For those reasons, ITK produced two papers on the concept of a national Indigenous peoples human rights tribunal in 2017. During the development of the federal United Nations Declaration on the Rights of Indigenous Peoples Act, ITK sought and secured legislative language that would leave open the possibility for Canadians to consider developing an Indigenous peoples’ human rights tribunal.
One of the challenges that ITK identified at the National Inquiry into Missing and Murdered Indigenous Women and Girls was that the effects of colonization create situations of extreme vulnerability for Inuit women and girls, while the protections of the law — remedy and recourse — are not often available. As a result, ITK is strongly supportive of the full implementation of Call for Justice 1.7 of the national inquiry, which calls for the establishment of both a tribunal and an ombudsperson.
The marginalization caused by colonialism is built on a foundation of injustice, so measures that only address the symptoms or the effects of that injustice will be ineffective. While Inuit recognize that systemic change is hard, Inuit women and girls will not live in environments of safety and security so long as their well-being and their most fundamental rights are treated like discretionary programs.
I appreciate the time to be able to talk to you about that this morning. Nakurmiik.
The Chair: Thank you, Mr. Obed. I will now invite Aluki Kotierk to give her opening remarks.
[Interpretation]
Aluki Kotierk, President, Nunavut Tunngavik Incorporated: Thank you. I am happy to be here to give my statement as a witness, and I am in agreement with Natan Obed. I am the President of Nunavut Tunngavik Incorporated, and we are the representative organization of our people, the Inuit. As President of the Nunavut Tunngavik Incorporated, I am also a member of the Inuit Tapiriit Kanatami and also for Inuit, Indigenous peoples.
[English]
Inuit have consistently advocated for the creation of an independent national Indigenous human rights commission analogous to the Canadian Human Rights Commission.
An Indigenous human rights commission would be responsible for monitoring federal compliance with the rights affirmed by the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and promote and assess implementation of those rights nationally.
This is consistent with Call for Justice 1.7 of the National Inquiry into Missing and Murdered Indigenous Women and Girls:
. . . to establish a National Indigenous and Human Rights Ombudsperson, with authority in all jurisdictions, and to establish a National Indigenous and Human Rights Tribunal. . . .
Full implementation of the United Nations Declaration on the Rights of Indigenous Peoples, combined with universal access to recourse and remedy through mechanisms outlined in the national inquiry’s final report, would set a new foundation for our relationship with the federal government.
An independent Indigenous human rights commission and tribunal can make informed recourse and remedy determinations. Today the fundamental rights of Indigenous peoples are often subjected to the whims and discretion of unelected and unaccountable government officials.
A credible and informed independent Indigenous human rights commission could also examine the inadequacies in access to housing, quality health services and mental health and substance use programs in Nunavut communities. Due to critical gaps in the housing continuum and health services, many Inuit are forced to leave Nunavut to access these services in urban centres. This introduces a risk for violence and human trafficking of Inuit women, girls and 2SLGTBQQIA+ people.
These social inequity issues are underscored as critical in addressing violence in the National Inuit Action Plan on Missing and Murdered Inuit Women, Girls and 2SLGTBQQIA+ People.
A new Indigenous-specific human rights commission and tribunal needs to allow for Inuit self-determination and governance as defined under Articles 3 and 4 of the United Nations Declaration on the Rights of Indigenous Peoples.
The unacceptable delays in the implementation of the Calls for Justice deny Inuit women, girls and 2SLGTBQQIA+ people safety and security and perpetuate existing violations of human rights.
Nunavut Tunngavik Incorporated urges governments to immediately take the steps necessary to create an Indigenous human rights commission and tribunal. Implementation must fully integrate Inuit-led approaches, laws, cultures, language and values so that complaints are dealt with in a trauma-informed, culturally safe and specific manner for Inuit and Nunavut communities. This will require significant and sustained investment to be successful.
This will be the only way forward if Inuit are to have accessible and meaningful recourse. Qujannamiik.
The Chair: Thank you, Ms. Kotierk. We will now move on to questions from senators, and I will open it up by asking a question of both of you.
In your perspectives, how can or should the national Indigenous human rights ombudsperson/tribunal reflect not only Inuit but also Métis and First Nations cultures, laws and traditions?
Mr. Obed: Well, co-development of this particular function within the human rights regime of this country would be the ideal place to start. The limitation for all of us would be to try to create an impartial process that allows for appointments of those who are best suited to do the work rather than politicizing the institution itself.
We have seen through various pieces of legislation and the implementation of legislation how difficult it is to find that path to action, but also to do best for those who are most in need and, in this case, those whose rights are being violated.
I know that we can create institutions that allow for the systemic implementation of our existing human rights and the implementation of the United Nations Declaration on the Rights of Indigenous Peoples in this country. Co-development is that first place to start, and focusing on relationships with rights holders and rights holders’ institutions should be the focus of government, not only in this exercise but also in all other legislative exercises.
The Chair: Thank you, Mr. Obed. Anything to add, Ms. Kotierk?
Ms. Kotierk: In addition to co-developing, I was going to become very specific and talk about how important it is to be aware of one of the things that we often advocate for, which is to take a distinctions-based approach. It’s extremely important that there be a really good understanding of Inuit reality, that there’s an ability — human rights are fundamentally based on the ability — to live with dignity.
What are we going to do to ensure that Inuit are able to live with dignity? We need to be able to provide the services in Inuktitut so that Inuit are able to access the services in their mother tongue. We need to be aware that the reality is different than for a mainstream Canadian.
Yesterday I was taking part in discussions about housing as a human right, and the reality is that there is a housing crisis that impacts the ability of Inuit to successfully complete formal education or that pushes Inuit to leave their homelands, from Inuit Nunangat, and move to urban centres because they are trying to access health care.
Having that kind of understanding, the basic understanding of what life is in Inuit Nunangat, is crucially important as a component of this entity. Thank you.
The Chair: Thank you, Ms. Kotierk.
Senator Arnot: Thank you to all the witnesses for coming today, and thank you, Mr. Obed and Ms. Kotierk, for your leadership in your organizations and helping us understand this better.
I’ve got three questions, but they are open-ended, so I hope that you’ll be able to amplify some of the things you’ve already said and perhaps augment them, but each from your perspective as president of your organization.
Do you believe that the establishment of an Indigenous-specific ombudsperson or human rights body could contribute to the reconciliation process in Canada between Indigenous peoples and non-Indigenous peoples in this country? Do you believe a dedicated human rights body in Canada for Indigenous people should and could enhance the representation and advocacy of Inuit communities in national policy-making in Canada, to enhance your voice in that process?
What unique challenges — and you’ve already talked about this, but if you could amplify that, it would be excellent — are faced by Inuit communities that could be more effectively addressed by a human rights body tailored to Indigenous peoples? I know you’ve spoken about this already, so I’m just asking that.
Anything you’d like to say about those issues would be helpful. Thank you.
Mr. Obed: I’ll try to systematically go through these in response. To your first question, in relation to reconciliation, I was there in New York when the Government of Canada reversed its position on the United Nations Declaration on the Rights of Indigenous Peoples. I heard the minister at the time, Minister Bennett, talk about a new chapter of reconciliation in the country.
I was a bit confused about how simple it seemed to be from the Government of Canada’s perspective to go to endorsing its support for UNDRIP as a panacea for the systemic challenges that we have of upholding our existing human rights.
That brings me to remedy and recourse, remedy and redress. Both President Kotierk and I have referenced them in our opening statements. If we have no way to have redress or remedy for human rights violations, then we are still lacking when it comes to the basic levels of foundation of support for the upholding of our existing human rights and other people’s rights in Canada. Throughout our history, we have seen that litigating the upholding of our existing human rights is costly, ineffective, and in many cases courts are unprepared to be able to properly understand and then provide a guidance and direction on the way in which Indigenous peoples’ human rights are upheld and respected in this country. It is a massive part of reconciliation for ITK to have recourse and remedy in relation to the upholding of our existing human rights.
As far as the representation of Inuit goes in relation to this exercise, distinctions-based work is still relatively new. It has only been the last 15 years or so, perhaps 20 if you go back to the very beginning, where we have conversations that sometimes are about Inuit, First Nations and Métis instead of Indigenous peoples. There still are institutions of varying perspectives on the limitations of distinctions-based language. We would love to be able to be definitive. We would love to create structures that are best practices in how to properly implement a distinctions-based approach. Once again, I fall back on a rights-based definition and foundation for distinctions-based work in this country.
Concerning the unique challenges that we face, we have a relatively small population across 51 communities, across 40% of Canada’s land mass. We have massive deficits in relation to the administration of essential services, whether that be justice, health care, education, infrastructure or housing. Often, we have a basic lack of the ability to access recourse and remedy or access justice systems generally.
We hope that the establishment of an Indigenous human rights tribunal and an ombudsperson would call attention to these matters in a way that we have not been able to be successful to date. It would address some of the major challenges that we face in basically being a part of Canada on an administrative level.
Ms. Kotierk: I have appeared in front of this committee on a number of occasions, and I want to express what a delight it is to be appearing with a fellow Inuk because it feels like I don’t have to say anything. Thank you.
In terms of creating an ombudsperson, Inuit have consistently said many things while trying to bring attention to the issues that we face in our communities. I will talk a bit about housing again because it’s so fresh in my mind. For decades, Inuit have talked about how there’s a housing crisis, yet there has been no substantial commitment to address it. Often, Inuit will say, “It was the day that my family was relocated into the settlement or coerced into a settlement, that the housing crisis started.” Many Inuit were lured to live in settlements but then were told to pitch up a tent because there were not enough houses right from the get-go, and investments have not been made.
Having an ombudsperson specifically focus on the human rights issues would add a credible additional voice to complement Inuit voices. Sometimes, in the Inuit experience, there’s great change when someone who is easily relatable to other Canadians and is credible says something that we’ve said. In that context, it’s really important.
In terms of some of the experiences that we have in our communities, having an office that would be able to advocate on the human rights violations in our communities is extremely important because, unfortunately, in our communities, there is a lack of basic human rights, and services available to other people are often not available in our communities, so we grow up thinking that it’s normal. It becomes normalized. It’s really important that an office will be able to highlight that a house needs to have basic water and sanitation available. That’s what every Canadian expects. However, when you live like that and you see other people living like that, you start thinking, “Oh, everyone else must be living like this.” It’s really important that there be a focus on the human rights violations in Inuit communities. Thank you.
Senator Coyle: Thank you to our guests for being with us again and for reminding us again of the importance of this distinctions-based approach, which you’ve identified, President Obed, as being relatively new. We’re not nearly good at it, but I think what you’re telling us is here’s another opportunity to really seize what we do know in terms of best practices and incorporate that well into what we develop here in this new important institution, which I understand both of your organizations not only endorse but have called for. I wanted to mention that.
President Obed, I believe I heard you say that you see the tribunal as an independent centre of expertise which is not often found in existing institutions. That’s one of the problems, namely, that we don’t see that in existing institutions. Could you speak a bit more about that expertise that needs to be embedded and protected in some ways from political interference on all sides? What do you see as essential to that centre of expertise? Do you see that centre of expertise also having an influence on those other existing institutions beyond its own functioning?
Mr. Obed: Thanks for the question. I think it’s also good to highlight that not every Inuit jurisdiction has a corresponding human rights tribunal or commission. Some have shared jurisdiction with other Canadian jurisdictions, which is also a gap in administration and focus. I would like to ask Will David to answer this particular question.
Will David, Director, Legal Services, Inuit Tapiriit Kanatami: I have a couple of points. First, in 2017, as President Obed mentioned, ITK released a couple of papers on an Indigenous human rights commission. One of them called for establishment of a commission that’s consistent with a class A institution of the Paris Principles precisely so that it would be independent of government. Independence is a clear principle that we have in mind.
In terms of expertise, again, consistent with the idea of a national human rights institution, with any national human rights institution one would envision not only the ability of the institution to provide recommendations, guidance and advice to others within society but also the ability to resolve complaints and disputes. The theory goes that in order to really understand and articulate what any right means, there needs to be some sort of a dispute resolution function not only to induce better conduct from government institutions but also to develop a clearer understanding of how rights should be applied on a case-by-case basis. It’s one reason why the issue of recourse and remedy is so closely tied to the more advisory functions that we typically see coming out of national human rights institutions.
Senator Coyle: Ms. Kotierk, you talk a lot about the systemic violations, the challenges and the need for supports for solutions to those systemic issues. Could you speak a little more about how you see these two particulars, the ombudsperson and the tribunal, playing a role in dealing with not just individual complaints of human rights violations but also some of the systemic efforts that you’ve identified in terms of access to justice, housing, appropriate health — you name it — that is just not there? How do you see the establishment of the ombudsperson and the tribunal in actually getting at those systemic solutions that are far overdue?
Ms. Kotierk: By having those structures, it would be an opportunity to highlight the issues but also provide opportunity for solutions that would be Inuit-specific. Inuit often have solutions of how to address things in our communities, and it would be an opportunity for Inuit voices to be amplified, and it would be an opportunity to amplify the solutions that we have in our communities.
I also think it would remind governments of the obligations they have that they need to meet and uphold.
Senator D. Patterson: Thank you.
The case you have both eloquently made for an Indigenous human rights tribunal is clear based on the Calls for Justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls and the UNDRIP legislation. I know it has been a priority at the Inuit-Crown partnership tables in which you have both been active.
This committee is actively considering this issue, and I don’t think we could have better advocates than you both today.
I want to ask you both a question. Let me make it clear that this is not to challenge your recommendations; rather, I am asking you to answer a question that will be asked, I think, and needs to be answered. It will be asked in government circles that will be tasked to respond to a recommendation that I expect will come from this committee, endorsing your recommendations.
The Canadian Human Rights Tribunal, or CHRT, exists and it has dealt with Indigenous issues. I know it took 15 years since the 2007 complaint regarding First Nations Child and Family Services, but it is clear that in 2019 the Canadian Human Rights Tribunal ordered that Canada cease its discrimination practices, which led to the largest — $23.4 billion — settlement of this case of discrimination against First Nations children.
My question — and again, I think it just needs to be asked — is the following: What would you say to those who might say that the Canadian Human Rights Tribunal is working, and the recent settlement for First Nations children and families demonstrates that?
I will turn to Mr. Obed.
Mr. Obed: Thank you. I’ll also have Will supplement my answer.
There may have been a few recent cases that involve Indigenous peoples for which the tribunal has been influential in a change of course by jurisdictions, whether they be provincial, territorial or federal. However, over the course of the history of human rights tribunals and commissions and their work in this country, I think if you see the report card on the violations against Indigenous peoples’ human rights in this country, it is in stark contrast with saying that this mechanism has systematically worked to uphold Indigenous peoples’ human rights.
Therefore, in this time of reconciliation and also when there is an explicit focus on missing and murdered Indigenous women and girls and 2SLGBTQQIA+ people, there need to be exceptional mechanisms created to handle those extraordinary problems. It is also a network of different commissions, and if this Indigenous peoples human rights tribunal were created, it would very naturally have an expertise base that is Canadian in structure rather than regional in structure. It would also have expertise that is an emerging understanding and reinterpretation of Canadian law to coincide with not only UNDRIP but also the Constitution and the Supreme Court cases that many tribunals are not able to properly assess.
My final point is in relation to time and tension. The ability to explicitly focus on Indigenous peoples is a very different thing than a larger mandate.
Mr. David: Just picking up upon those points, I’ve never encountered a human rights institution, particularly one that deals with remedy, that hasn’t been completely swamped with case overloading. So one of the serious benefits of an Indigenous-focused human rights institution at the national level would be to relieve some of that case load from the Canadian Human Rights Commission and Tribunal.
The case you’re referring to is First Nations-specific, and it’s one of the concerns I would have about relying exclusively on the Canadian Human Rights Act and its institutions. The depth of Indigenous expertise is limited precisely because the mandates for the bodies are so broad.
I would also suggest — just picking up on some earlier questions about this — that the Canadian Human Rights Act was amended some time ago such that First Nations’ customary laws and traditions could be considered in dealing with complaints. That’s not true for Inuit and Métis. It’s not necessarily as a result of that, but it’s just noting that the composition of both the commission and the tribunal doesn’t represent any degree of expertise from Inuit Nunangat reality, which does contribute to a lack of uptake of Inuit-specific cases, including reluctance from Inuit to potentially try to use the commission and the tribunal. That is something that would probably be true for Indigenous peoples overall. It was certainly one of the considerations that led to the repeal of section 67 of the act itself, which had exempted the Indian Act from application under the act.
Senator D. Patterson: Thank you for those answers. It’s important to have them on the record.
I have one related question. Maybe this is for Mr. David or President Obed, but the 2017 paper that ITK released that you spoke of called for an independent Indigenous human rights tribunal with a dispute resolution mechanism. Again, I’d like to ask this: Would those principles differ from what we have in the current Canadian Human Rights Tribunal in that it would be a more independent tribunal than the Canadian tribunal and have a dispute resolution mechanism that does not currently exist in the Canadian Human Rights Tribunal regime?
Mr. Obed: Perhaps I’ll go back to 2016-17. At the time, especially with Canada reversing its position on UNDRIP, the Canadian government was saying that Indigenous peoples now have what it was calling “a full box of rights” such that, magically, overnight, we wouldn’t need the courts to litigate. Our rights would be upheld. This was a brand new world.
But without an explicit focus on recourse and remedy and any mechanisms that systematically changed the status quo from days prior to that government decision to endorse UNDRIP and the days after, what did we really change?
That was the question that ITK and its board members considered. That is why the ITK board put forward the two complementary papers in 2017, a subsequent paper that we released just a couple of years ago, the testimony that we gave to the MMIWG inquiry and then the work that we’ve done in relation to the UNDRIP Act and the creation of the action plan. All of that is trying to answer a very central question: How do we introduce recourse and remedy into the changed government position for the support of Indigenous peoples’ existing human rights?
The spectacular failures of upholding those rights came with the entire suite of the Canadian Human Rights Commission structure in place prior to 2017. So we’re introducing a structure that is meant to ensure that we are in a different place than we were before Canada made its very real endorsement of UNDRIP, but we don’t want it to be symbolic; we want it to live in very specific ways. That’s why we have come forward with this particular solution.
Senator D. Patterson: Thank you. It was good to have that on the record as well.
Senator Prosper: Thank you to the witnesses for sharing your expertise and your experience in this area. I have two questions, one for Mr. Obed and one for Ms. Kotierk.
Mr. Obed, you mentioned — and it really is quite daunting — 51 communities. I believe that’s 40% of Canada. And you linked that to an access-to-justice issue, which is an important consideration. Part of your testimony and something I’m all too familiar with is that the mere existence of a right does not necessarily guarantee that the right will be implemented. Certainly, I take that from back East with respect to fishing, and thus the need for a distinct emphasis.
You mentioned there is a need for expertise to emerge so that it’s there to deal with individual and collective rights. I’m curious what your approach to that would be with respect to this tribunal.
Ms. Kotierk, you mentioned a credible and informed Indigenous human rights commission and one that is Inuit-led, developing through your own approaches, laws and values, that can have tangible and real solutions. From your perspective, if one such commission or tribunal is developed, what would be some of the signs that would indicate that it’s doing good work? I’m always curious about the tangible takeaways of something that is on the right track.
I hope those two questions were not too convoluted.
Mr. Obed: I appreciate your question. Part of the co-development process will be to answer that very essential question that you asked about expertise and to try to ensure that, systematically, there can be individuals appointed who have the wide depth of understanding of Indigenous-specific human rights law but also a distinctions-based way of understanding the world so that there are not natural blind spots that exist within these entities based on the composition or on the administration side. Those who are hired and work to support it would understand that they’re there not just for a section of Indigenous peoples in the country but for First Nations, Inuit and Métis as under the Constitution.
I would ask Will David to supplement my answer.
Mr. David: To add to that, it’s easy to talk about collective rights and human rights of Indigenous peoples in the abstract in very theoretical ways.
In this situation, Call for Justice 1.7 is about ensuring that Indigenous women and girls exist in a space of safety. I don’t know that it’s possible to accomplish that through a theoretical conversation about what government should or shouldn’t do, or through issuing recommendations. The only way to develop a clear understanding of how to balance competing interests in society and to ensure that rights are respected and implemented is through dispute resolution. We’re proposing that it occur through a human-rights-based dispute resolution process. Thank you.
Ms. Kotierk: I was thinking that one of the great things that face Inuit leaders and Inuit generally is always building awareness. It is about reminding people that this is our reality and trying to get people up to par with our reality before there can be any movement on making any improvement.
Personally, I spend far too much time talking about our reality and raising awareness. Having an entity focused specifically on Indigenous human rights would help create an institution where Inuit could go and feel recognized and not have to explain themselves before they’re able to share their concerns.
Culturally, as Inuit, we’re very practical. We are often discouraged from complaining. Instead, we are taught about discussions with a solution in mind.
A mark of success for me would be that Inuit feel recognized, seen and are comfortable going to this entity where they’re able to talk about the solution and how they are going to arrive at this solution. Thank you.
The Chair: Thank you. I have a question for Mr. Obed or any of the witnesses.
What are some of the best practices you have experienced with respect to a distinctions-based approach in the development of policy or legislation?
Mr. Obed: I will highlight the creation of the Inuit Nunangat Policy, which was adopted by the Government of Canada in April 2022. We have worked, sometimes successfully, sometimes with challenges, through the Inuit-Crown Partnership Committee for the last five or six years. It is the first time that the Government of Canada and Inuit leadership have come together in a systematic way to create joint priority areas, work plans and then evaluate the progress we have made on those work plans and priority areas on an ongoing basis.
One of the big challenges for us in a distinctions-based setting is the understanding by all government departments across the Government of Canada about Inuit. We don’t fall under the Indian Act, because we have very different structural relationships with the Government of Canada and eligibility for programs and services that vary across different departments. We had identified the creation of a government policy that would guide the work of any department or individual who works for the Government of Canada who is working on an issue that affects Inuit. We worked on that policy for over two years and we co-developed it. We were very proud when the Government of Canada and the Prime Minister endorsed it as a Government of Canada policy.
Its implementation is something that we’ve had to monitor closely and push the government to fully implement, but that is a great example of co-development. There was a specific gap within the way in which the Government of Canada functioned in relation to properly addressing Inuit concerns or including Inuit as Indigenous peoples within government policy and programs, and we worked systematically with government to try to close those gaps. That’s the best we can do on our side.
In the implementation, we often hear about it being either an Inuit policy or an ITK policy, and we have had to course-correct for a number of different government officials, government departments and new ministers sometimes that no, in fact, this is a Government of Canada policy that was co-developed with Inuit. That’s something to flag, namely that even when we do make these small inroads — and in this case it isn’t small; this should be a fundamental change in the way the Government of Canada interacts with Inuit — we don’t necessarily know if that is enough. We don’t know if litigation will be required. We don’t know if other steps will be necessary for now to ensure that the Government of Canada actually implements its own policies. That is, I think, also in keeping with our land claims legacy and the lack of systemic implementation of modern treaties.
The Chair: Thank you, Mr. Obed.
Senator Coyle: Thank you for having a second opportunity.
Whenever I listen to the three of you, more and more questions come to mind because we don’t always get enough time to hear the Inuit perspective. It is so distinct and important and one that we really need to heed. I’m just trying to listen to each word that you’re saying.
Setting this ombudsperson and this Indigenous human rights tribunal up for success is what we’re all here to talk about — success not just in terms of what it looks like at the outset but in terms of doing its job in the ways that you’re describing, delivering on the promise and honouring what they’re being established to do.
One of the questions that keeps coming back to me is about accountability mechanisms and feedback mechanisms. This front-end, really solid co-development should help set it up for success. Okay, it’s set up and it’s now functioning. How do we ensure its ongoing success? How do you move beyond co-development to co-oversight, co-insurance, accountability and those sorts of things? What are your perspectives on that?
Mr. Obed: Imagine that we are successful in creating an ombudsperson and an Indigenous human rights tribunal, and that we then go through a co-development process on the legislation and then the regulations that are associated with it. We now have these entities. The biggest challenge that I foresee would be the Government of Canada challenging the findings of the institution and continuing to push back against rulings, which then end up spiralling into decades of challenges not only for proper implementation of existing rights but also for the wasted resources of institutions fighting Indigenous peoples.
I hope that we can get beyond that, but if recent history is any example, that’s the thing that I think we all should be worried the most about. I’m not sure how to get the Crown to act honourably when it comes to the implementation of Indigenous peoples’ human rights other than to try what we’re doing now. We have no other path. The honour of the Crown is the thing that I would be most concerned about.
Senator Arnot: Mr. Obed, I really want to follow up on this identification of the honour of the Crown and the fact that it has been in breach for 150 years, because that’s a high moral standard, and the Government of Canada has failed, failed, failed.
Do you think that the ombudsperson/tribunal should have a much more central focus away from litigation and more on problem solving, mediation and establishing collaborative, cooperative goals between government and Inuit communities and organizations? That would be a significant feature of the work that would occur away from the colonial aspects of litigation, because you identify the failings so articulately. They’re so clear. Building another institution with built-in colonial thinking is going to produce more failure.
What’s your comment on that? If there is a chance for Ms. Kotierk to respond as well, if possible, please do.
Mr. Obed: Immediately, I think of some of the competing interests of the day. I think of other legislation that is before you all, especially with respect to the reconciliation council and how difficult it will be for that particular piece of legislation to change any of our fortunes moving forward, especially when we already have rights holding institutions that can interact with government and hold government accountable for reconciliation and also the Calls for Justice and Calls to Action under the Truth and Reconciliation Commission and, from a governance perspective, the respectful governance relationship between Canada and rights holding First Nations, Inuit and Métis.
In relation to the question you raised, that has been a major consideration of Inuit in the way we have proposed the institution. I will ask Will to talk about how we have considered it.
Mr. David: Honour of the Crown is not just a moral standard. One of the points that has driven a lot of our thinking is trying to move beyond the view of the rights of Indigenous peoples as moral or political obligations into more legal obligations, noting that even when Indigenous rights are recognized as legal obligations, there are still challenges in implementation.
I want to challenge the idea of litigation as a colonial construct by noting that the institutions that we’re seeking to change are inherently, almost by definition, colonial institutions. We’re not necessarily seeking using such a tribunal in a decolonized environment. As a result, litigation and dispute resolution are tools that are arguably necessary in that case.
You have to forgive me. My only real experience working with human rights institutions is the Inter-American Commission on Human Rights and court. Even there, when there is a threat or there has been a decision of the Inter-American Court of Human Rights that is binding, there is always the opportunity which is often used for a friendly settlement either on the implementation of the decision or on predecision. In fact, friendly settlement can even be used within the commission itself, which does not have many binding levers. Without these binding levers, there is very little incentive for states to engage in friendly settlement negotiations in any event.
The same could be said here. Our problems are fundamentally about colonial structures. That means we do need tools that are cognizable by those colonial structures in order to effect change.
Senator Arnot: Thank you for that fulsome answer, and I certainly recognize that at some point litigation is required, but maybe there should be an emphasis at the front end on a different way. Anyway, I appreciate the fullness of your comments. Thank you very much.
The Chair: Thank you, Senator Arnot. The time for this panel is now complete, and I wish to again thank all our witnesses for joining us today. If you wish to make any subsequent submissions, please submit them by email to the clerk within seven days.
I would now like to introduce our next witnesses: Robert Morales, Chief Negotiator, Hul’qumi’num Treaty Group; and Katherine Hensel, Partner at Fogler, Rubinoff LLP. Wela’lin, thank you both for joining us today.
Witnesses will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session with the senators. I will now invite Mr. Morales to give his opening remarks.
Robert Morales, Chief Negotiator, Hul’qumi’num Treaty Group, as an individual: Huy ch q’u, Mr. Chair. Thank you, Mr. Chair. ‘Uy’ skweyul, good morning, respected senators, chair. My traditional name is Tl’ul’thut Robert Morales. [Indigneous language spoken]. I am a member of the Cowichan Tribes of the Coast Salish Peoples on the east coast of Vancouver Island.
If you have a set of rules that conflict with reality, then reality normally wins. The challenge of domestic implementation of international human rights law in Canada carries many dimensions. The level of deference that is given to the implementation of international human rights law by Canada’s domestic legal and political regime is troubling. Canada has not yet ratified the vast majority of human rights documents of the American human rights system. Of particular concern is the failure to agree to ratify the American Convention on Human Rights, with the result that Canadians are denied the opportunity to access the Inter-American Court of Human Rights. The Inter-American Court of Human Rights has been a very progressive body with regard to Indigenous human rights.
The United Nations Declaration on the Rights of Indigenous Peoples is the most comprehensive and universal international human rights instrument expressly addressing the rights of Indigenous peoples. It affirms a wide range of political, civil, economic, social, cultural, spiritual and environmental rights. It constitutes a major step towards addressing the widespread and persistent human rights violations against Indigenous peoples worldwide.
Back in November of 2010, at the time of the endorsement of the declaration, the Government of Canada described this historic instrument as an aspirational document with no legal effect. They stated that the declaration is an aspirational document that speaks to the individual and collective rights of Indigenous peoples but that the declaration is a non-legally binding document that does not reflect customary international law nor change Canadian laws.
In light of its far-reaching significance, it is disturbing that the Canadian government seeks to devalue the legal status of the UN declaration so as to undermine Indigenous peoples’ rights and related government obligations.
Chuck Strahl, who was then minister, stated that, by signing on, you default to this document by saying that the only rights in play here are the rights of First Nations. Of course, in Canada, that’s inconsistent with our Constitution. He further stated that Indigenous rights are laid down in the Charter of Human Rights and Freedoms and the Constitution, and he said that reflects a much more tangible commitment than the “aspirational” UN declaration.
In its recent decision in the Gitxaala case, the Supreme Court of British Columbia stated:
I set out my analysis on the proper interpretation of DRIPA —
— which is British Columbia’s Declaration on the Rights of Indigenous Peoples Act —
— below. In the end, I find that DRIPA does not implement UNDRIP into the domestic law of the province. Further, I find that, properly interpreted, s. 3 of DRIPA does not create justiciable rights as proposed by the petitioners.
I am aware that there is a significant interest in this issue and, so far, very little judicial comment. As noted by Justice Kent in Thomas and Saik’uz First Nation v. Rio Tinto Alcan Inc.:
It remains to be seen whether the passage of UNDRIP legislation is simply vacuous political bromide or whether it heralds a substantive change in the common law respecting Aboriginal rights including Aboriginal title.
The court then goes on to say:
Turning to the “context” . . . the province points to comments during the legislative debates by the Honourable Scott Fraser, the Minister of Indigenous Relations and Reconciliation. He stated that DRIPA would “not, in and of itself, give the UN declaration legal force and effect.” He further asserted that “[b]ringing laws into alignment with the UN declaration won’t happen overnight. It will be generational work.”
The historical roots of this denial and perpetuation of discrimination against the human rights of Indigenous peoples, including the right to property and self-determination, can be traced back to that early 1823 decision of Johnson v. McIntosh, where the Supreme Court Chief Justice John Marshall indicated of the New World that:
. . . the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. . . .
Then he goes on. I won’t read the rest of the quote; it’s in my written submission. But that line of reasoning had been followed by Canadian courts, starting with St. Catharines Milling and Lumber Co. v. R., right up until the recent Tsilhqot’in decision.
The Hul’qumi’num Treaty Group, for which I serve as Chief Negotiator, filed a petition with the Inter-American Commission on Human Rights in 2007, alleging that Canada had violated the human rights of the Hul’qumi’num peoples through failure to demarcate, establish boundaries and record a title deed to their ancestral lands; the lack of compensation for the Hul’qumi’num Treaty Group’s ancestral lands currently in the hands of third parties; the granting of licences, permits, concessions within the ancestral lands without prior consultation; and the resulting destruction of the environment, the natural resources and those sites the “alleged victims” consider sacred.
In that case, Canada registered a fundamental objection to any interpretation of the provisions of the American declaration, based on obligations set out in treaties to which Canada is not a party. I will just note that the fact Canada has not signed on to any of those treaties is of great concern.
Canada also argued that the Hul’qumi’num had not exhausted their domestic remedies, since we did not take this case to a domestic court prior to filing the petition. The Inter-American Commission on Human Rights ruled in favour of the Hul’qumi’num Treaty Group, declaring admissible the allegations contained in the petition with regard to Article II, the right to equality before the law; Article III, the right to religious freedom and worship; Article XIII, the right to the benefits of culture; and Article XXIII, the right to property of the American declaration. The Inter-American Commission also found that the B.C. treaty process was not an effective mechanism, since there has been no remedy of the Hul’qumi’num situation, which is now approaching 30 years in this process.
The Hul’qumi’num Treaty Group concluded their evidence and submissions on the merits in 2010. It has now been 13 years, and we continue to await a decision on the merits, without a resolution of the issues being raised. This is not an effective remedy.
Those are all examples of the challenges of relying upon the Canadian domestic courts and political commitments to the implementation of Indigenous human rights, as well as the challenges of relying upon international human rights bodies.
As it currently stands in terms of the UN declaration and other international conventions, Canada is the sole arbiter of whether it has discharged its human rights obligations to those impacted. For Indigenous peoples, this means that despite the troubling history with Canada and the provinces, there is no domestic tribunal with an appropriate scope of remedies available that Indigenous peoples are seeking to pursue Indigenous and Aboriginal claims to these rights as set out.
The results support the establishment of an independent Indigenous and human rights tribunal, and we would say that it should be in accordance with the Paris Principles.
The Chair: Mr. Morales, I’m sorry to interrupt. We need you to wrap up. Then we’ll move on to our next witness.
Mr. Morales: Thank you.
In conclusion, we would say that this body needs to be established in correspondence with those principles, including the competence to protect and promote human rights, the autonomy from government, the composition to include Indigenous representation and so forth.
In the written submissions, I refer to two decisions of the Inter-American Court of Human Rights that I think are relevant in terms of demonstrating that international or at least human rights bodies are able to deal with the issues we’re dealing with and that they should have the power to deal with recourse, as was stated previously by the Inuit representatives. Thank you, Mr. Chair.
The Chair: Thank you, Mr. Morales. We’ll now move on to Ms. Hensel to give her opening remarks.
Katherine Hensel, Partner, Fogler, Rubinoff LLP, as an individual: Weyt-kp, xwexweytep, Katherine Hensel ren skwekwst. Kukwstsétsemc to the senators here for having invited me to speak with you today. Thank you to Mr. Morales for your comments. It is, of course, a privilege to be here in the unceded territory of the Algonquin Anishinaabe people.
I’m going to begin by stating the obvious: The lives of Indigenous peoples are framed and, to some extent, defined by human rights violations, including in the areas of housing, social services, health, education, citizenship, eligibility for services and child welfare. Any reasonable observer can find this true by looking anywhere; there are numerous commissions and lived realities.
It’s inescapable that the experience of Indigenous people as citizens of their own nations within Canadian territories is one that’s defined by scarcity, underfunding, discriminatory treatment and lack of autonomy, all of which work together to manifest breaches of Canada’s obligations with respect to the human rights of Indigenous people.
There’s one recent example of where a human rights violation and Canada’s breach of its obligations have been at least somewhat adequately addressed or meaningfully and substantively addressed, and that’s, of course, in the area of child welfare.
The numerous decisions of the Canadian Human Rights Tribunal with respect to Indigenous children, their safety and the resources available to them — both on- and off-reserve, but particularly on-reserve — have to some extent resulted in the compensation of children and families for grave harms that they experienced because of the discriminatory treatment and the breach of their human rights.
The tribunal’s decisions have resulted in some correction in the resources available to Indigenous governing bodies to serve and protect their own citizens to govern in this area and to improve the resources and safety available to Indigenous children and families and the effectiveness of services. To some extent, I believe they have resulted in the redefinition or transformation of the relationship between Canada and Indigenous peoples and governing bodies with respect to recognizing and operationalizing inherent jurisdiction, which all of our nations hold.
It’s an incomplete process, but it at least has the chance of being sufficient and meaningfully addressing human rights violations in the child welfare sphere. Of course, none of the measures taken will be fully or meaningfully effective if human rights violations across the board in every area of the lives of Indigenous people and communities are also not addressed.
I understand one of the reasons for the study that you’re undertaking is there are problems with the CHRT process. It’s complaint-driven. It focuses on individual rights to the exclusion of collective rights. It’s very adversarial. It’s fraught with risk and uncertainty and requires proof of discrimination and, in that case, underfunding, which was a significant barrier and required people like Cindy Blackstock and her legal counsel to devote thousands of hours of their own time to do something that a responsible government arguably ought to have undertaken of its own volition.
Just by way of closing my opening remarks with respect to any contemplated ombudsperson role/tribunal that is specific to breaches of Indigenous rights and Canada’s and the Crown’s obligations with respect to Indigenous people, I would suggest that it begin from the acknowledgement of these human rights violations. It should focus less on the need for colonial versions of proof and start by quantifying and qualifying those breaches with a problem-solving mandate, to do it with rigour, fairness, justiciability, in a manner that’s culturally fair — which the CHRT just cannot be — in a manner that’s binding and recognizes that its decisions must be binding on a government that is not just in a decolonized environment, as you heard from the previous speaker. The government continues to be colonizing in its approach, particularly in mediation, unfortunately, and like processes. So the new body should recognize that fact that there needs to be some compulsion, that carrots alone will not work with the Crown, unfortunately, because the accountability of the Government of Canada is predominantly politically to the people of Canada rather than to Indigenous peoples within Canada.
The Chair: Thank you for that, Ms. Hensel. We’ll now move on to questions from senators, and I will open it up by asking the first question to both of you.
In the First Nations Child & Family Caring Society case, Canada appealed several of the tribunal key decisions to both the Federal Court and the Federal Court of Appeal. How do you see the judicial system in Canada interacting with a potential Indigenous human rights mechanism? Ms. Hensel, would you like to start?
Ms. Hensel: I’ll start. In a way that would have to be statutorily prescribed. The rigour and fairness that I was suggesting earlier in my opening remarks will, for the time being at least, have to be framed. The Federal Court is a statutory court, so that’s easily enough done. But the capacity of Canadian courts to come up with their own approach or follow historical and colonizing approaches to hearing evidence, to considering appeals or reviews of this type of thing — the statute would have to lead the court rather than relying on the court to implement some of the finer points. This should be done in recognition of the fact that those sitting on the court are almost exclusively non-Indigenous people, the lawyers appearing before the court are almost exclusively non-Indigenous people, and that the dialogue that occurs, therefore, requires significant constraint and support in order for it to meet the obligations that I would assume Parliament would want the courts to meet under the circumstances.
I should have said this in my opening remarks, but it should also incorporate UNDRIP. It almost goes without saying, but we should statutorily prescribe that as well.
The Chair: Mr. Morales, do you have anything to add?
Mr. Morales: Yes. The reliance on the courts brings into the mix the issue of precedent, and we need to be able to move beyond that in the court system. It makes it difficult, as I indicated earlier, when the starting point is rooted in that historical view, so how do we get over that and get beyond that? How do we get to a point of having Indigenous legal orders, Indigenous legal systems being incorporated into our court system?
Fundamentally, if the decisions of human rights bodies will be subject to review by a domestic court, the domestic courts need to have the ability to take into account Indigenous legal systems, and not simply rely on precedent. Then, as was stated, if it’s a statutory court, we need to have the statute that guides the court, giving enough flexibility and enough ability to respond to the Indigenous perspective, to the Indigenous world view of how these issues should be dealt with so that you don’t have a court simply, as I said, relying on the previous way of dealing with these matters. Thank you.
The Chair: Thank you, Mr. Morales.
Senator Arnot: Thank you to the witnesses for coming today. I have some questions for Mr. Morales and some for Ms. Hensel.
Mr. Morales, considering your examination of international human rights law as a framework to bring justice to Indigenous people in Canada, what role could you see a specialized human rights body play in fostering reconciliation? I realize you’ve talked about this, but I want to give both of the witnesses a chance to augment and amplify some of these things.
You’ve also noted that reconciliation of First Nations land issues has been stagnated in a system hampered by colonial beliefs. How could a dedicated Indigenous human rights body overcome those systemic barriers? What would your ideas be for the design, the fundamental components and the fundamental goals that might be outlined for these two organizations?
Ms. Hensel, having served on the National Inquiry into Missing and Murdered Indigenous Women and Girls, what lessons can be learned from your experiences there to inform the structure and function of the specialized human rights body for Indigenous people? That is, what key components and the underlying principles need to be incorporated to make these entities distinct from the existing colonial entities that you’ve spoken of?
Second, particularly Ms. Hensel, you have a lot of experience in educating and speaking about Indigenous law. Do you believe that either of these or both of these new entities should have an educational component not only for the larger Canadian population but also for the policy-makers in the Canadian context?
I’ll sit back and listen to your answers. Add anything else you think we need to know.
Mr. Morales: In my experience as a chief negotiator within the British Columbia treaty process for 30 years now and having participated in court cases, including an intervenor in the Tsilhqot’in decision before the Supreme Court of Canada, there is a reluctance in the current Canadian legal system to really consider international human rights as part of their decision-making process.
I argued on behalf of our Hul’qumi’num Treaty Group before the Supreme Court in the Tsilhqot’in decision that the way that human rights are taken into account in terms of Indigenous land rights and property rights should be part of the decision-making process. Amnesty International also brought forward those arguments. As we know, the Supreme Court of Canada didn’t address that at all in their decision.
The domestic courts are reluctant, as I stated earlier, as evidenced in the B.C. Supreme Court, to take into account these international human rights instruments because they say that Canada has not signed on to them and has not ratified them as a treaty into our domestic legal system.
While the two systems start from a fundamentally different perspective, the Canadian common law has this long tradition, as I said, of relying on stare decisis and on precedent. If the precedent has a starting point that denies the existence of these rights, denies the existence of the right of Indigenous peoples, then that permeates the whole system and carries on, whereas the international approach really has a starting point from the recognition that these rights do exist.
Indigenous peoples have a right to equality. The right to equality means they have an equal right to property. The equal right to property means that there is a fundamental starting point that Indigenous peoples do have a right to have their traditional territories delimited, demarcated, recognized by legal titles and so forth, without having to go through 20 years of legal battle in court to prove that you actually have that right in the first place.
I think that there’s a fundamental difference in the way that the two legal systems approach these issues. The American system — not the U.S. but the Inter-American Commission and the Inter-American Court, as was stated earlier — takes a different perspective, but it’s limited. My experience in the Inter-American Commission on Human Rights is that because Canada and the United States are primarily the two English-speaking countries, and most of the work of the Inter-American Commission is done in Spanish, that puts us at a disadvantage. They’re not familiar with our legal system. So here we are, 12 years after we finished our merits decision, still waiting for a decision. It’s not effective.
We have to figure out a way to actually make a human rights system effective for Indigenous peoples. Hopefully, if we do construct an independent body, that body will have the ability to respond to these kinds of issues in a timely manner.
I appreciate the comments that were made earlier by the previous witnesses in terms of it being distinctions-based and being able to take into account the Indigenous legal systems that Indigenous peoples have.
Hopefully, that helps to clarify. Thank you.
The Chair: Thank you, Mr. Morales.
Ms. Hensel: I think one of the starting points might be to give the tribunal or the commission a mandate. If you start from the presumption that human rights violations exist in terms of under-resourcing and discrimination, then you need to have a study mandate, something akin to a public inquiry — I’ve participated in a number of them — to proactively go out and find out what housing looks like, in particular. There isn’t adequate housing in any Indigenous community that I’m aware of, and it’s a significant factor with often lethal consequences that leads to MMIWG and all these terrible things. Give the tribunal that mandate in some of the same ways that public inquiries have — through hearings, through study, through research, through culturally appropriate ways that respect/incorporate Indigenous legal protocols and legal orders — to come up with rigorous facts.
The other part of the commission or the tribunal’s mandate would be to remedy that. That might be a more adversarial process because Canada may not agree with how Indigenous people view the solution to the problem, but if you start with the recognition of the problem, you don’t make people prove there is a problem. You start with the recognition of the problem, and then you have a study phase or mandate and then the solution phase or mandate, which may look more like a tribunal hearing, depending on the approach taken by the parties.
I also agree that education would be a crucial component in order to permit Canada to do on behalf of the electorate what it needs to do. Right now, I don’t think the electorate is prepared to authorize that from election to election — and not just with policy-makers, lawmakers, judges and lawyers but with everyone who has agency within the systems that the commission would be addressing.
Anecdotally, I’m doing some work on behalf of the Algonquins of Pikwakanagan and implementing their law in [Indigenous language spoken] as a federally recognized law but also their inherent jurisdiction. The work that we have to do with judges, lawyers, Children’s Aid Societies, police — all these instruments of government — to educate them is an enormous lift. It’s beyond the means and the resources of one community in whose territory you’re sitting. They shouldn’t have to do it, and they can’t do it, frankly.
There are many people, many of these agents, agencies, policy-makers and judges who will not listen to them. It sounds aspirational; it sounds like a position or a perspective as opposed to a binding law about jurisdiction and exclusivity of jurisdiction.
Some of the human rights commissions already do this work, so there is some experience in setting up, such as the provincial commissions as well.
Senator Hartling: Thank you to the witnesses for being here today. My question is for Ms. Hensel. I know you have a lot of experience in child welfare. Cindy Blackstock from the Caring Society — you know her — was here last week, I believe. She recommended to our committee that there need to be opportunities for children’s participation in systemic cases in the human rights process.
I’m wondering what your thoughts and recommendations would be on this idea of including children in the design of the structure. What would be some of the merits, challenges and ways to protect children? We don’t want them to be vulnerable in this case. Can you talk about that?
Ms. Hensel: You want to avoid using children as visual aids, basically, and there’s a risk of that. You also want to avoid placing a burden on children. Children are entitled. The entitlement lessens with age. They are entitled to have decisions made on their behalf. That’s what we do as parents, families, communities and nations. You don’t ask a six-year-old, “Where do you want to live? What culture do you want?” That’s your obligation to do these things for them, to raise them within your culture and decide how they’re going to be cared for, not placing that burden on children and giving rise to the anxiety that would necessarily result: “Is it up to me as an eight-year-old?”
On the other hand, the perspective of children in terms of their lived experience is meaningful. It can provide insights that can’t come from anywhere else. But I would suggest it takes incredible skill and expertise, and it has to be culturally grounded, not just culturally competent, to bring that out in a way that doesn’t place an undue burden on children. Our entire job and the reason we exist as peoples are to care for children, to create places and make decisions, and the reason why we have cultures is to teach our children how to relate to one another and to care for them safely and effectively. So we must recognize that it is never their burden, but just with exquisite care elicit their views and their experiences.
Senator Prosper: Thank you to both of the witnesses. I have a question that I’ve been thinking about while listening to the testimony. It’s a follow-up. We had a question from Senator Arnot with respect to the interaction between this type of tribunal and the courts and how that would translate.
I’m quite curious about a tribunal of this nature. I guess in whole or in part it’s not created within a vacuum. There are, in part, I would imagine, colonial ties with respect to its inception. Given that there is a federal component in terms of jurisdiction of a tribunal, and, undoubtedly to have real effect for Indigenous communities, it would have to, in a way, inform the provincial domain as well.
I’m curious about what sort of mechanisms you foresee or would suggest that should exist within government to help support this particular institution, this tribunal. How would that also interplay within a provincial domain? This is for either of the witnesses or both.
Ms. Hensel: I think we’ll know more about the legal landscape, at least, any day now. There is a decision down the street with respect to the Quebec appeal and child welfare and Bill C-92. The Supreme Court will have a fair amount to say with respect to the relationship between Canada and the provinces and territories, the division of powers and how they relate to Indigenous people. We don’t know, of course, but we anticipate that decision will to some extent, incrementally, as the court does, reframe the authority and obligations of the provinces in Canada with respect to Indigenous peoples and services provided and authority exercised. We’re waiting for that. There will be more from that.
Ultimately, any human rights tribunal decisions that are federally mandated but have a profound impact on what’s available and normally funded and under the jurisdiction of the provinces are not going to be effective unless the provinces either agree or are compelled — so we need protocols around that. Let’s try to have a protocol so we don’t have jurisdictional disputes. That might be attempted, but, of course, it’s subject to electoral and political wins and the differing perspectives of provinces and territories regionally.
You don’t want to leave Indigenous people in — I’m not going to name a province — one province that doesn’t recognize federal obligations or authority such that they are exposed or more vulnerable and do not have the same rights and resources available to them.
We want to avoid constitutional amendments because they are very time-consuming, resource-intensive and fraught with peril, but we want to begin the work of developing protocols, where possible, and then begin to carve out characterizations of the rights, services and issues that are going to be considered by the tribunal under federal statute in a way that comports with a constitutional analysis on division of powers. It doesn’t mean it won’t be challenged by some provinces and, potentially, some territories, but it minimizes the risk, if it is done skilfully, that the ultimate authority of the tribunal won’t be subverted by a province that doesn’t have the same view about sections 91 and 92.
Mr. Morales: I’ve been working in the child welfare field for a long time. We’ve written a law. We’ve ratified our law. We’re in the process of negotiating a coordination agreement with the governments of Canada and British Columbia. We have lots of experience in that field as well.
I guess the issue is really the political will to be able to have implementation of law. For example, in our negotiations on child welfare, we are referencing some of the commitments made in the federal legislation, in Bill C-92.
There is a pushback, a reluctance to include some of those commitments in the agreements that we’re negotiating. Notwithstanding the fact that there is federal legislation, notwithstanding the fact that there are human rights tribunal decisions, the political will is an important factor. So how do we deal with that? I think that is part of the challenge.
The binding nature of the decisions is open to interpretation, and I think that is where we have a lot of challenges. On the ground, as we try and move forward on important human rights issues, like the rights of children and overcoming the history of forced removals of Indigenous children from their families, we’re making progress; there’s no doubt about it. But we’re still having to deal with the reluctance to really implement some of the fundamental pieces.
As we see from the Quebec Reference decision, the political will to incorporate those human rights issues into the domestic legal system and the domestic legal fabric is still a question. We get caught in the federal-provincial wrangling of who is responsible and who has jurisdiction. All of those factors play into how we actually implement, how we get beyond simply discussing these matters to being able to have an effective system that does result in positive changes at the community level.
Yes, it’s a challenge, for sure, in terms of getting adherence to these important decisions that are being rendered, like the child welfare decisions of the Canadian Human Rights Tribunal. Thank you, chair.
The Chair: Thank you, Mr. Morales. How can the existing human rights system or any new Indigenous system contemplate measures such as legally binding compliance orders? Would sanctions be required?
Mr. Morales: Thank you. We need to establish the foundation for a human rights tribunal’s jurisdiction and authority, as stated in the written submissions.
When I was preparing for this opportunity, I looked at the compliance of nations to decisions by, say, the Inter-American Court of Human Rights. Partial compliance exists but not 100% compliance. As I say, we’re still in a world where the political commitments to these issues are an important factor. Perhaps the general public needs more education in terms of human rights and, specifically, Indigenous human rights. Then the political system will make it a priority and will have a commitment to it.
In terms of mechanisms, the Supreme Court of Canada decisions are rendered but not always implemented as the court had wished. Oftentimes, there is this reluctance on the part of government. I look at some of the important court decisions that have come down with regard to the Aboriginal rights of Indigenous peoples, and I see that implementation is not always smooth. It does not always happen in the way we would hope, but we have to keep trying and keep pushing these issues forward. We really need to shine a light on this area.
I look back at those early debates that happened in Spain. The big question before them was what the rights of the Indigenous peoples in the Americas are. In particular, are Indigenous peoples human? We are, and we have the right to human rights. I’ll just end with that. Thank you, chair.
The Chair: Thank you, Mr. Morales.
Ms. Hensel: It’s a tremendous challenge to implement Indigenous laws, as we’re doing across the country now, in not convincing and not persuading. Legally binding decisions must be a consequence of the operation and enforcement of laws. It has to be legally binding for them to work.
Non-Indigenous people, institutions and governments often almost inevitably have not experienced being subjected to and submitting to laws that are not their own. It’s an enormous challenge. I can give an example from the child welfare sphere when I tried to educate Children’s Aid Societies’ lawyers. They would ask, “What if you have blended families? What if the non-Indigenous parents don’t consent to being subject to your jurisdiction?” No, you don’t get to choose who governs you. You don’t get to choose which laws apply to you.
I understand this would be a federal initiative and it would have to be the law of Canada to occur in the way it did, but it would potentially incorporate Indigenous laws and processes and protocols in a way that was binding, mandatory at times and enforceable in decisions — ideally through consensus but not always consensus, not consensual and not voluntary. That’s a tremendous psychological, political and social and cultural hurdle that requires education, but it also requires inexorability. It needs to be clear in the legal instruments that create this system that it is actually mandatory, not voluntary, whether and to what extent participants, parties and respondents submit to Indigenous laws and protocols.
The Chair: Thank you, Ms. Hensel.
Senator D. Patterson: Ms. Hensel, in the previous panel, I asked why an Indigenous human rights tribunal is needed when we have the Canadian Human Rights Tribunal. You said very clearly that it’s not working: It’s complaint-driven; it focuses on individual and not collective rights; it requires proof; it’s adversarial.
Inuit Tapiriit Kanatami has proposed that there should be a dispute-resolution mechanism built into the proposed Indigenous human rights tribunal. Would that be a way of changing the adversarial nature which has not worked so far?
Ms. Hensel: Ideally, it would work if Canada as a primary respondent — a most frequent respondent systemically — can come to the table in a way that respects the principles and the Indigenous dispute-resolution process or a less adversarial process. It’s not our experience. It’s not my experience as a litigator who often tries to divert things into mediation. Again, that would need to come from the electorate, so we need education.
It’s all of a piece, right? Because a government that comes in an open-hearted, kind, good, conciliatory, consensus-based way to a dispute-resolution process that will result in billions of dollars of liability must be able to answer to it. The public has to authorize that, ultimately — not in the moment but down the road. Otherwise, it won’t be sustainable.
We’re not there yet societally and culturally in Canada, unfortunately. Things are better than 10 years ago, but we are not there. Governments change as well, and that very much affects what is possible in dispute resolution. It still has to have available to it some of the adversarial tools, but understanding that the adversarial system is inherently harmful, wasteful and ineffective in terms of achieving justice, generally. It’s really the implied use of force, enforcing the orders. It’s a harmful tool, but sometimes it’s necessary. It should be extraordinarily rare. Right now, in terms of the reconciliation relationship, unfortunately, it’s necessary.
Senator D. Patterson: Thank you.
The Chair: The time for this panel is now complete. I wish to thank all of our witnesses again for joining us today. I remind our witnesses, if you have any subsequent submissions, please submit them to Andrea Mugny, our clerk, within seven days.
Thank you, senators. That brings us to the end of our meeting, and this meeting is now adjourned.
(The committee adjourned.)