THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, February 13, 2024
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.
[English]
The Chair: Good morning. I would like to begin by acknowledging that the land on which we gather is on 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’kmaq 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 names and province or territory.
Senator Arnot: My name is David Arnot. I am a senator from Saskatchewan. I live in Treaty 6 territory.
Senator Tannas: Good morning. Scott Tannas from Alberta.
Senator Coyle: Good morning. Mary Coyle, Antigonish, Nova Scotia, Mi’kma’ki.
Senator Prosper: Good morning. Senator P. J. Prosper, Nova Scotia, Mi’kma’ki.
Senator White: Good morning. Judy White, Mi’kmaq from Ktaqmkuk, better known as the province of Newfoundland and Labrador.
The Chair: Thank you, senators.
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.
I would now like to introduce our witness From the Nova Scotia Human Rights Commission, we have Cheryl Knockwood, Chair. Thank you for joining us. She will provide us opening remarks of approximately five minutes to be followed by a question-and-answer session with the senators.
I now invite Ms. Knockwood to give her opening comments.
Cheryl Knockwood, Chair, Nova Scotia Human Rights Commission: [Mi’kmaq spoken]
Kwe. Thank you, senators, for the opportunity to address you today as part of this hearing.
The National Inquiry’s principles for change stated that Indigenous peoples hold international and domestic human rights, including inherent rights, treaty rights and constitutional rights; and governments have legal obligations to ensure that the individual and collective rights of Indigenous women, girls and 2SLGBTQIA+ people are fully respected, promoted and upheld.
Together with other provincial, territorial and federal human rights agencies, I bring comments from the perspective of the current human rights framework, which has not adequately protected Indigenous women and girls throughout Canada.
In Nova Scotia, the Human Rights Commission upholds human rights through the administration of the Nova Scotia Human Rights Act. We are proponents and allies in this important work, and we are committed to decolonizing our processes and services.
Mi’kmaw people form part of the Nova Scotia Human Rights Commission’s DNA, in particular our mandate to advance human rights understanding through race relations, education and community engagement. In its final report, the Royal Commission on the Donald Marshall Jr., Prosecution made a series of recommendations, including amendments to the Nova Scotia Human Rights Act that led to the establishment of a race relations and education mandate that would build upon our dispute resolution processes and deepen our connections to communities, including Indigenous communities in Mi’kma’ki. The call for a more proactive approach to fostering understanding of human rights was an acknowledgement of dysfunction and mistreatment of Indigenous peoples resulting from the incongruence of laws implemented by governments and the commitments made in historic treaties of peace and friendship that were intended to guide our relations.
A fundamental misunderstanding of Indigenous peoples and their rights has created cultures of mistrust and division — us versus them. The work of educating about the rights of Indigenous peoples is critical and ongoing. Without the support necessary to enact meaningful change in Nova Scotia and elsewhere across Canada, we alone cannot combat the legacy of mistrust and systemic discrimination of colonial institutions.
Despite the historic connection to the Nova Scotia Human Rights Commission, low inquiry numbers from Indigenous peoples affirm the overall lack of trust and confidence that they have in government institutions to support them or to protect their rights. While we continue our efforts to decolonize our work in Nova Scotia — doing so with limited resources — Indigenous women in Canada do not have the luxury of time. As Chair of the Nova Scotia Human Rights Commission, I call for the urgent implementation of Call for Justice 1.7 and offer my full support.
The violence suffered by Indigenous women, girls and 2SLGBTQIA+ people is a result of systemic anti-Indigenous racism, colonialism, sexism, ableism, homophobia, transphobia, cultural genocidal policies and other forms of discrimination. Prioritizing the protection of the human rights of Indigenous women is the foundation of safety and security in this country going forward. Doing so through mechanisms built by Indigenous people, ensuring a safe space for those requiring support, is critical.
The failure of public institutions to protect Indigenous women is a failure to provide culturally responsive and trauma-informed care and services to people forced to engage with colonial institutions bogged down by bureaucracy, the very systems that attempted genocide against generations of our relations.
Colonizers and early Canadian settlers proffered promises of peace and friendship but disregarded their responsibilities and legal commitments to Indigenous peoples immediately after signing these very important, sacred documents.
Instead, they buried these foundational treaties under tier upon tier of systems that were designed not only to control, but to contain Indigenous peoples, suppress our traditions and culture, our connections to one another and the lands of Mi’kma’ki of Turtle Island.
The burden of navigating the overly complex bureaucracies to access government services or support has been an effective tool for suppression of Indigenous peoples for far too long. In Nova Scotia, to ensure those Indigenous complainants who come to the Human Rights Commission are not denied access to justice when there is a question of whether we have jurisdiction or if it is instead a matter for the Canadian Human Rights Commission, we instruct individuals to file their complaint through both channels. This is because there is no better option. Again, the burden is on Indigenous complainants.
A national Indigenous and human rights ombudsperson and a national Indigenous and human rights tribunal have the potential to remedy failures of overly complex, colonial models of complaint processes that have proven incapable of caring for Indigenous peoples and inflicted trauma upon generations. These entities must be designed by Indigenous people to serve Indigenous peoples and, in so doing, provide a model that can inform necessary changes to all government-administered services and programs. They must be based on Indigenous ways of knowing and being, designed to be relational and human-centred.
We should consider how a relationship between these entities and the Canadian Association of Statutory Human Rights Agencies, CASHRA, could assist in providing direction and guidance as federal, provincial and territorial human rights agencies adapt to be better partners with and provide better services to Indigenous peoples.
These entities must be resourced, empowered to enact systemic change, and define and formalize the application of Jordan’s Principle to apply to services administered across all levels and facets of government beyond just the healthcare system, and to protect the Indigenous people who fall between the cracks in our education, employment and justice systems as well.
The Nova Scotia Human Rights Commission urges the federal government to support the immediate implementation of a national Indigenous and human rights ombudsperson and a national Indigenous and human rights tribunal without interference or limitation. We support the empowerment of Indigenous peoples to ensure our experiences of discrimination and unfair treatment are addressed effectively with culturally responsive and trauma-informed service. Wela’lin.
The Chair: Thank you, Ms. Knockwood.
Senator Coyle: Thank you so much for being with us and for that clear and well-stated support for this. Speaking from your own experience is also very helpful in terms of the journey that the Nova Scotia Human Rights Commission has been on. I would like to try to bring those two things together, if I could ask you to reflect.
You spoke about the importance, in the case of the Nova Scotia Human Rights Commission, of decolonizing the processes and creating a more proactive approach so that you can build the trust and confidence among the Indigenous population in Nova Scotia, in that case, to actually feel like it’s a safe place to go and that they might get a good hearing. You also spoke about some of the bureaucracy. You’ve spoken about how the ombudsperson and the national Indigenous human rights tribunal that we’re talking about here needs to be designed by Indigenous people for Indigenous people, and it needs to be relational. I really like that.
Can you tell us a little bit more about what you’ve learned in your current role — I think you’ve already reflected some of that in your remarks today — and how that could influence the shaping of the ombudsperson role and this new national Indigenous human rights tribunal? How can that be done in such a way that — we’re now moving into a territory where we’ve got many different Indigenous groups with different identities and cultures across this vast country of Canada. Would you mind walking us through how you would see that, from the experience you’ve had, and how that could be applied in a context where we’re looking at multiple groups that are very distinct from each other? We want to make sure that those Indigenous people who are chosen, as you suggest, to help shape these new entities are doing it in a way that is respectful of those distinctions.
Ms. Knockwood: Those are a lot of questions, Senator Coyle.
Senator Coyle: Oh, sorry.
Ms. Knockwood: Thank you for the questions. My immediate response to sharing my experience and what I could share with all of this would be that — actually, let me share what I have here.
In Nova Scotia, we have a dual mandate to protect human rights through a formalized dispute-resolution process and to promote human rights through education and community engagement. One step we’ve taken to ensure that our processes are culturally responsive is to create liaison and education officer positions that work directly with the community. It’s really important, I think, if we are going to establish a national process that we definitely ensure that we are working with the community throughout and that we have representatives of the community working in liaison.
In Nova Scotia, our Mi’kmaq Indigenous liaison officer is leading the development of reconciliation action framework to guide the commission to address variants for Indigenous peoples seeking to bring a complaint forward. The liaisons work with the community, help to inform internal work and client services, they work with human rights officers at intake to support their learning and development, and they can assist with client services when Indigenous people ask for support.
By deepening our relationship in the community and designing education in partnership with organizations, such as the Confederacy of Mainland Mi’kmaq, the Mi’kmaw Native Friendship Centre, the Union of Nova Scotia Mi’kmaq, the Atlantic Policy Congress of First Nations Chiefs and other organizations that currently work within Nova Scotia, the commission ensures our approach is informed by the experiences of the communities.
If we take that model and apply it to the creation of a national model, I think it’s really important that we ensure that there are relationships built right at the onset. That’s the first part.
The second part is that we look to the expertise of the organizations to get their input right from the beginning. I know UNDRIP has said, in many different places within the document, that federal and provincial governments should not create anything without First Nations taking the lead in all of this. It has to be driven and created by Indigenous peoples across Canada. That’s probably one of the first steps we should take — look to the Indigenous people’s leadership and get their input through this.
We don’t have to reinvent the wheel, either. There have been many recommendations not only within the National Inquiry into Missing and Murdered Indigenous Women and Girls inquiry, but also other work that has been done nationally, where Indigenous peoples came forward and brought their hearts and minds and gave feedback and recommendations on the very important issues related broadly to justice, and specifically to human rights. We need to make sure those voices don’t get lost and that we continue to hear and make sure those voices continue to be heard.
For instance, the Royal Commission on Aboriginal Peoples with the over 440 recommendations made in relation to that, many of the commissioners were Indigenous. We had a Mi’kmaq leader who was also one of the commissioners, Viola Robinson. I always look at that document and those recommendations. Many great recommendations came out of that report which has not yet been implemented.
Let’s not reinvent the wheel when we are looking at recreating, launching or building this new institution that we want to create based on recommendations given by the families of the missing and murdered Indigenous women and girls when we are creating the ombudsperson and the national human rights office.
Senator Coyle: Thank you. That’s very helpful.
The Chair: Thank you.
Senator White: Thank you, Ms. Knockwood. It’s great to see you again. Thank you for that informative presentation.
For the benefit of the senators here, Ms. Knockwood has been with the Nova Scotia Human Rights Commission over six years now. She has done a tremendous amount of work in stakeholder engagements, consultation and moved the human rights commission, so that even though there are still not many Indigenous people coming forward, at least there are those liaison officers. I commend you for the work you have done so far.
My question is one that Senator Coyle asked. Going forward, I am interested in your advice or thoughts as they relates to — we don’t want an Indigenous human rights tribunal that mimics or mirrors what’s already out there, because that’s not working. I know we would have to be cognizant of various groups and nations. How do you suggest we provide oversight and remedies in the current climate as it relates to jurisdiction? What can we do in terms of ensuring that the remedies we have are reflective of our cultural values?
Ms. Knockwood: That is a great question, senator.
When institutions are created, such as the Nova Scotia Human Rights Act and other human rights bodies across Canada, they are usually created through legislation that gives a jurisdictional mandate that’s very specific in terms of what they can and cannot do. Sometimes that act limits the scope of what human rights issues can be addressed.
For instance, as Indigenous peoples, we know we’ve been a part of many human rights atrocities committed against us, but you can’t go to the Nova Scotia Human Rights Act — because of the limited legislative mandate it has — to deal with those complaints. It is more specific to what the act says. The same can be said with the Canadian Human Rights Act.
If we’re going to create something that’s different and effective, it needs to have a broader mandate in relation to looking at the human rights atrocities that have been committed against Indigenous Peoples. It has to be broader in scope than just the individual, because atrocities committed against Indigenous peoples affected all of us, and it is intergenerational.
What that model will look like, I don’t know. It is something that has to be looked at and addressed. There has to be legislative and jurisdictional space created to bring forward those complaints.
We’re very limited. Now I’m putting on my Indigenous person hat. We are very limited in what kinds of complaints we can bring forward in existing human rights regimes as individuals because it is based specifically on what the legislation says. It is an individual perspective.
If we are going to be shaking it up and making something that is effective, if we bring together individuals who have worked within human rights, who have advocated for human rights at the international level — and who were successful in ensuring such groundbreaking and important work that was done, such as the United Nations Declaration on the Rights of Indigenous Peoples, which Canada and British Columbia have made law — it is allowing that to happen. It would be interesting to see what we come up with.
Senator White: Thank you.
Senator Arnot: Thank you, witness, for coming today. I believe you are uniquely placed to respond to this committee and the issues we are dealing with, since you are the chair of the Nova Scotia Human Rights Commission and you oversee the promotion and protection of human rights for all residents of your province, including Indigenous people.
I understand from your website that you are involved in community engagement, education and awareness in support of the rights of Indigenous people. There’s nothing you have said so far that I disagree with. Let’s see if you keep up batting 1.000 with this question.
You identified the Royal Commission on Aboriginal Peoples as a resource. I invite you to send to this committee, perhaps in writing, some of the sections you think would be helpful. The reason I ask that is because you are the first witness I’ve heard since I’ve been on this committee who has mentioned, in any way, the Royal Commission on Aboriginal Peoples. Nothing new under the sun here. That document is as good today as the day it was written. It is strong. Not many advocates mention it. I’m happy you’ve done that.
Do you think that other human rights commissions, since there are 13 different commissions with different regimes, are in the same boat as the human rights commission in Nova Scotia in supporting this new regime we are talking about?
Do you see an opportunity to work in concert and collaborate with provincial and territorial human rights agencies that exist?
I believe you are 100% right in that there is a lack of trust in the existing regimes in Canada provincially, territorially and federally in the existing regime. There is no question about it. It is from coast to coast and universal in Canada. Something has to be done. I believe this is the right way to go.
We see other jurisdictions bogged down in jurisdictional, territorial, financial, technical and many considerations that create a morass and don’t advance the cause of promoting or protecting human rights, in my opinion.
Can you see these opportunities? Do other colleagues in CASHRA see these opportunities the same way you do? I am interested to know that. I hope all provincial, territorial and federal commissions see that we need a specific Indigenous human rights resolution regime. I will let you answer that question. Thank you.
Ms. Knockwood: Thank you, Senator Arnot. I am glad to see you again. When I was working with the Atlantic Policy Congress of First Nation Chiefs, I had a chance to visit you when you were part of the Office of the Treaty Commissioner and the work that you were doing there. At that time, we were impressed with the model of the Office of the Treaty Commissioner. We are glad to see you now in your new role as senator. Nice to see you again.
In terms of submitting something in writing, we would love to do that. We will definitely do that. Thank you so much for that.
In terms of your question about CASHRA, since I’ve become chair — and I’ve been chair now for a little over three years, I would say — I had an opportunity to participate in CASHRA. When I first got involved in that — you’re probably aware of how the system works — we meet on an ad hoc basis at various times throughout the year. It’s primarily self-funded. Commissions with funding will contribute toward having a staff person who will ensure we meet on a periodic basis. We share best practices on what we’re doing across Canada.
In terms of the work and what CASHRA feels around all this stuff, I do believe that’s something that I’m going to definitely bring up. I’m sure there have been discussions around it, but I’ll pointedly ask about this at our next event.
I do believe the Canadian Human Rights Commission has supported the recommendations that have come out of the National Inquiry into Missing and Murdered Indigenous Women and Girls around the development of the national ombudsperson and the human rights specific to Indigenous peoples. It’s something that I will definitely bring up and see. If I get any responses specifically to that, I will ensure that they’re put into the written component of what I submit.
If it’s okay with you, senator, I’ll even ask to see if they would like to submit any written responses themselves from their separate jurisdictions in relation to your question.
Senator Arnot: Yes, absolutely. There is a real opportunity in working collaboratively with all of those agencies in Canada. I hope they see it the same way so that these issues can be addressed. Thank you very much. Your testimony has been very helpful.
Ms. Knockwood: Thank you.
Senator Boniface: Thank you very much for being here. I just want to follow up on your comments around a broader scope and individual human rights.
One of the issues that many people who are involved in human rights commissions — I’m from Ontario, so the experience might be somewhat different than Nova Scotia — is the inability to move anything quickly. In many ways, that creates greater frustration and causes further pain than the initial transgression.
When you say a broader scope than just individual human rights, have you thought about or can you help me understand how you would incorporate more things and not run into the same issues that Human Rights Commission of Ontario, for example, have run into where people start to lose faith because it takes so long to get through the process that people give up?
Ms. Knockwood: I definitely understand that frustration. Thank you for your question.
Again, I’ll go back to the Royal Commission on Aboriginal Peoples and the 440 recommendations that came out of that. One of them was to create a treaty of rights and reconciliation act to implement the treaties of Indigenous peoples across Canada, because unfortunately, sadly, right now, gaining any treaty right recognition through the court system is largely through the Fisheries Act. For instance, Donald Marshall, Jr., when he was fishing and spearing for eels in Pomquet Harbour, he was charged under fisheries legislation. He had to argue for his treaty right — the 1761 treaties — through that specific framework of the Fisheries Act.
That’s what is unfortunate with the protection of and advocating for Indigenous people’s Aboriginal and treaty rights within Canada. We’re limited with different types of judicial, court and legislative frameworks in order to protect and advocate for our rights. If we had a separate body that was broader in scope related to the implementation of treaty rights, specifically, we wouldn’t have to go through criminal jurisdictional systems, fisheries legislation, or different specific jurisdictions that aren’t necessarily related to treaty rights and Aboriginal rights recognition.
I do believe it was the treaty rights and Aboriginal rights implementation act that was recommended within the Royal Commission on Aboriginal Peoples.
In talking about getting a broader approach. Sometimes the frustration arises trying to argue for rights within a system that doesn’t fit and isn’t equipped to deal with treaty and Aboriginal rights recognition. The courts are limited with that act and how to interpret sections of acts in applying the constitutionally protected rights for Indigenous peoples.
We know, as Indigenous peoples, we look to section 35 many times to argue for the protection of our Aboriginal and treaty rights versus another legislation that is saying, “You’re in contravention of fishing out of season at a certain time in this area.” It’s trying to argue for treaty and Aboriginal rights implementation within existing structures that weren’t designed to deal with that.
Developing, for instance, the human rights ombudsperson and a national Indigenous and human rights tribunal system that would be equipped to deal with the broader issues related to Indigenous rights designed by Indigenous peoples for Indigenous peoples in regard to all this would make a huge difference, I do believe.
Thank you, Senator Boniface.
Senator Boniface: Thank you. You’ve explained it very well. I’m thinking in terms of design, based on what you said. You created a notion of two arms of the same organization. Would that be —
Ms. Knockwood: Two arms as in?
Senator Boniface: I still get concerned in terms of individuals themselves versus, say, treaty rights, which have a broader impact on the number. While I think there is an interaction between the two, I just worry that — I’m trying not to create the same problem we have in other human rights commissions, which is that they get bogged down and their processes fail to deliver. I’m not speaking about Nova Scotia, because I’m not familiar with that. I’m familiar with Ontario.
Ms. Knockwood: In the new system that would be created and designed by Indigenous people — it’s not designed yet, but I’m sure those are the types of issues they will be looking at to ensure they learn from the models that exist now in Canada through the provincial, territorial and federal human rights systems to see what doesn’t work and what works for the creation of a new national Indigenous and human rights tribunal.
It would definitely have to look at collective rights. I think that’s the difference between existing models right now. They’re very much specific to individual right, but it’s the collective rights that need to be addressed.
Senator Boniface: Thank you.
Senator Prosper: It’s so nice to see you, Ms. Knockwood. [Mi’kmaq spoken] It has been a while.
Ms. Knockwood: [Mi’kmaq spoken]
Senator Prosper: I want to recognize your leadership and what you have done, not only for the Mi’kmaq people, but for all Nova Scotians and all of Canada by being the leader that you are. I want to recognize that. I’m honoured that you’re here before our committee and providing testimony given from your extensive experience.
There were a lot of points that you went through, and I must admit, it’s a built of a challenge to focus it down into a core element, but we had a number of witnesses before our committee to discuss this important subject, and your experience certainly contributes much to the dialogue and debate.
I want to get back to your point. I thought your responses to a number of inquiries from committee members were very instructive. You talked about the jurisdictional space that is needed given the history and the need to decolonize existing processes and services, and you mentioned that the current framework doesn’t adequately protect Indigenous people, that there are fundamental misunderstandings, the need to actually design a mechanism for Indigenous people by Indigenous people and to rely on our ways of knowing to inform that process.
I’d like to get your thoughts on the relationship, in your mind, that you think would exist between the office of the ombudsperson and the human rights tribunal itself. More specifically, would you envision certain linkages that would exist between those two arms or those two elements?
The second component is — and I think Senator Boniface and others have gotten into the complexity of it — the balance between collective and individual rights under this existing framework. What could we look at to try to develop that balance between individual and collective rights? At times, they come up against one another within the mechanism of certain communities. One can only look at how Indigenous women were treated within our communities and through legislation. I hope that’s not too many questions. Thank you.
Ms. Knockwood: Not too many people can bring me to tears. Thank you for that, Senator Prosper, and for your acknowledgement. You and I go way back. Wela’lin.
When you brought up your question, right off the bat — today, for instance, I decided to wear this. The Mi’kmaq senators sitting at the table should recognize this symbol. This symbol is a petroglyph that is within Kejimkujik. My understanding of what this petroglyph means — and there will be many interpretations — but I think it answers as a model to the question of the balance between collective and individual rights. We don’t know the time period — time immemorial — by our Mi’kmaq ancestors, and we’re told it’s a representation of a Mi’kmaq constitution and Mi’kmaq governance. If you look at the symbol — I don’t know if you can really see it — but the yellow is our teepees. What I was told is that it represents individual families, and the Mi’kmaq nation is made up of families. So when you look at a system of governance about collective versus individual, within the Mi’kmaq system it’s more the families. The mounds that you see here, there are seven mounds, which make up the seven districts of the Mi’kmaq nation. Those families that lived within each of the different areas of Mi’kma’ki also fit into a system of government that was represented within each of the districts. Then in the middle, the core, are the sun and moon. From what I was told, this is the creation story of the Mi’kmaq. There is a creation story — there are elders out there who will share it with you. They were also written into form by some of the people who came during the colonial period who wrote down our stories. The sun reached across to the moon, and within that reaching out and those beams that were brought onto the earth, that was the creation of the Mi’kma’ki.
This petroglyph is a symbol of how individuals are very important, the families, in any system. They were very much a part of it. We also looked at how important it is to build those relationships and have the seven districts and the Mi’kmaq Grand Council, which was our ancient form of government that still exists today. It’s not ancient, it’s still modern, but it exists and interacts in a different way right now within the current chief and council structures. It’s still very much respected and still very much a part of every single meeting that happens in relation to the Mi’kmaq.
When we’re talking about models and balancing, we could look to our ancient models of governance. There are also, I’m sure, many other examples that exist out there that have been around for many years. It’s very important.
In terms of what I see as the interaction between the human rights ombudsperson and the national Indigenous and human rights tribunal, I think it’s always important to have independence between the two. If we look at the model of what an ombudsperson is and the role it has played within Canadian provincial and territorial jurisdiction, I think it could play a similar role within this model and this framework as an entity that Indigenous people can go to that is independent if they feel that what they’re advocating for and trying to protect within the national Indigenous human rights tribunal is not effectively being done. It’s always good to have a second tier to help with that.
Senator Prosper: It was an honour and privilege to speak with you, Ms. Knockwood. You reminded me to wear my petroglyph. Wela’lin.
Ms. Knockwood: Wela’lin.
Senator Coyle: This has been such a rich conversation with you. I apologize for my multiple questions, but you set my brain on fire early in the morning, and I thank you for that. You have made a great contribution to us here in so many ways. I just want to pick up on one thing I think I heard you say. I want to make sure that I heard you correctly.
When you’re talking about the new tribunal balancing — and we’ve had quite a conversation about individual rights — you’ve mentioned families in the case of Mi’kma’ki, which I expect is similar across the country, and collective rights, and the importance of making sure that whenever entity is designed by Indigenous people for Indigenous people has that mandate and capacity to serve that balance.
I believe you mentioned that it was important to look at the international successes on the issue of collective rights. Did you mean to say that it might be helpful to also bring in some of those who were or are at some of these international tables and who have some successes that they’ve learned, in many cases, the hard way, so you don’t have to have some of that “hard way” to get to where we want to go with these new mechanisms and institutions? Could you speak more about that international side of things?
Ms. Knockwood: Thank you for that. It gives me time to honour some of those individuals who are now passed within Mi’kma’ki who were instrumental in advocating for our treaty rights. If it wasn’t for our ancestors — because of the history in Canada — colonialism and the genocide that has been discussed many times, where there were treaty rights signed within the Mi’kma’ki, the Wolastoqiyik and the Passamaquoddy — our treaties were signed before Canada was a country; they were signed in the 1700s. As I mentioned in the notes that I talked about, sadly, many times as soon as we signed the treaties, our treaty partner ignored them and would have continued to ignore them and would have buried them, burned them and God knows what if it had not been for the Mi’kmaq ancestors and others — I speak from a Mi’kmaw perspective — who advocated, argued for, knew through oral history and had physical copies of some of these treaties who said, “Wait a minute. We have these treaties that we signed with your ancestors. These treaties were signed in the 1700s.”
Up until even 1929 in the Gabriel Sylliboy case, we had members of the Mi’kmaq Grand Council go into court. Even though we kept losing every single case, they kept saying, “We have these treaty rights. We signed these with your ancestors. These mean something.”
If it hadn’t been for our ancestors continuing to advocate, despite the losses — the advocacy work didn’t end in the courts; a lot of this advocacy had to happen internationally.
So our leadership at that time, I heard stories from Grand Captain —, for instance, and another elder who passed on just recently who was the executive director of the Union of Nova Scotia Mi’kmaq. He was one of the chief negotiators on behalf of the Mi’kmaq recently through the KNKNO and the Assembly of the Nova Scotia Mi’kmaw Chiefs, Joe B. Marshall.
Those are two individuals I can name who recently passed whom were very instrumental in making sure we had treaty rights protection not only within the current legislative system in Canada. They travelled to ensure the protection of our treaty rights. When Prime Minister Pierre Elliott Trudeau had said he was going to bring the constitution home to Canada, the initial copies that were floating around in terms of what might be in the Constitution didn’t make any references at all to Indigenous or Aboriginal people. It was through the direct advocacy of Aboriginal leaders all over Canada, not only within Canada but by travelling to Europe, to make sure that we weren’t forgotten, that we were acknowledged. Because of that advocacy work, the draft of the Constitution was amended to include sections in relation to Aboriginal and treaty rights.
Then it didn’t end there. Even though we were successful in advocating and ensuring that we were listed within the Canadian Constitution, the way it was interpreted in Canada was that we had to go to court to prove that we had treaty and Aboriginal right recognition; it wasn’t automatic recognition. That has been a billion‑dollar industry since then for the legal community, because we had to rely on lawyers in order to be able to make these constitutional arguments in order to get any kind of constitutional primacy and recognition.
Despite winning at the Supreme Court, for instance, with the Donald Marshall Jr. case for treaty rights to commercially sell what we fish and harvest — because our treaty rights weren’t just related to fishing; it was related to fishing, hunting and harvesting. We had a commercial right to a moderate livelihood. There aren’t many Mi’kmaq people right now, sadly, who are being recognized with their treaty right to use that right. They’re still being charged within the DFO regulation system.
So arguments can be made that we can go to and utilize international forums. If you exhaust all domestic remedies in Canada to get your rights recognized, where else do you go? You have to go to international forums.
That is the reason why there is UNDRIP in the international community today. That’s the reason why we have UNDRIP as something that is recognized here in Canada now. That’s because of the advocacy work that Indigenous peoples, not just in Canada but all across the international community, did and who went to the United Nations Permanent Forum on Indigenous Issues in New York City and to the Expert Mechanism on the Rights of Indigenous Peoples in Geneva. They went to the United Nations with the different tables and advocated for these documents and declarations so that we could get this rights recognition happening.
The work is not over, and this is why we need and hope that these mechanisms that we’re thinking of that, which were advocated for by Royal Commission for Aboriginal Peoples, for instance the aboriginal treaty rights recognition act — happen sooner than later. So we continue to advocate and lobby. Rights have been recognized. The Canadian courts have recognized treaty rights. Let’s talk about implementation now.
Senator Coyle: Thank you.
The Chair: The panel is now complete. Again, I wish to thank Ms. Knockwood for joining us today. We really appreciate your testimony, Ms. Knockwood. Thank you again. We especially thank you for your beautiful explanation of the petroglyph.
If you want to make any subsequent submissions, please submit them to our clerk by the end of the month. That would be greatly appreciated.
(The committee adjourned.)