THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, March 28, 2023
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 9 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: I would like to begin by acknowledging that the land on which we gather is the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation and is now home to many other First Nations, Métis and Inuit peoples from across Turtle Island.
I am Mi’kmaw Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the Chair of the Committee on Indigenous Peoples.
Before we begin our meeting, I will ask committee members in attendance to introduce themselves by stating their names and province or territory.
Senator Arnot: I’m David Arnot, from Saskatchewan, Treaty 6 territory.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, from Alberta Treaty 6 territory — probably the best part of Treaty 6 territory.
Senator Hartling: Good morning. I’m Senator Nancy Hartling, and I’m from New Brunswick. Where I live is on the Mi’kmaq unceded territory.
Senator Tannas: Scott Tannas, from Alberta.
Senator Sorensen: Karen Sorensen, Treaty 7, Alberta.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, Miꞌkmaꞌki.
Senator Greenwood: Margo Greenwood, British Columbia, the very best part of Treaty 6 territory.
Senator Audette: Meegwetch, Ms. Gunn. Michèle Audette.
[Indigenous language spoken]
The Chair: Thank you, senators. Today, we are beginning a short 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.
This short study follows from a commitment made by the committee in the report titled Not Enough: All Words and No Action on MMIWG, which was released in June 2022, to consider the implementation of Call for Justice 1.7 of the National Inquiry into Missing and Murdered Indigenous Women and Girls, or MMIWG, calling for the permanent creation of a national Indigenous and human rights ombudsperson and a national Indigenous and human rights tribunal, which are independent of governments and have the authority to receive complaints from Indigenous individuals and communities, as well as to conduct independent evaluations.
With that explanation out of the way, I would like to introduce our first panel. As individuals, we have Brenda Gunn, Associate Professor at the Robson Hall Faculty of Law at the University of Manitoba, who is on secondment as the Academic and Research Director at the National Centre for Truth and Reconciliation; and Naiomi Metallic, Assistant Professor at the Schulich School of Law at Dalhousie University, where she holds the Chancellor’s Chair in Aboriginal Law and Policy.
Wela’lin. Thank you to both of our witnesses for joining us today.
Each witness will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session with senators.
I will now invite Ms. Gunn to give her opening remarks.
Brenda Gunn, Academic and Research Director, National Centre for Truth and Reconciliation, as an individual: Good morning, everyone. I am Red River Métis and I live on Treaty 1 territory, also the homeland of the Métis.
Thank you so much for the invitation to be here today. I am pleased to be here on the unceded Algonquin Territory.
As noted, I am a professor of law at the University of Manitoba and now I’m at the National Centre for Truth and Reconciliation. Over the past 15 years, my research has focused on implementing the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and other international human rights standards.
Today, I want to provide some information around the questions before you, specifically about what the current challenges and opportunities are that are presented with the consideration of a new body that would provide some oversight to the implementation of human rights.
Before I get into that, I want to provide one clarification when we speak of human rights and Indigenous peoples. From my perspective, I understand this to be a question of international human rights standards such as those articulated in the UN Declaration on the Rights of Indigenous Peoples and the American Declaration on the Rights of Indigenous Peoples.
These instruments have developed over decades and provide some basic human rights standards that are available to all peoples, but really provide guidance on how general human rights standards that exist in international human rights law apply in a specific Indigenous rights context.
I want to start by looking at a few of the gaps I see in the Canadian system. Due to the limited time, I’ll try to work through just two or three.
What are some of the key gaps that I see in the human rights protection system? First, there are questions about whether our existing mechanisms can play a role, that is, the national human rights institutions, or NHRIs. At this point, none of the Canadian human rights institutions have specific statutory authority relating to the UN declaration. All of the instruments have specific human rights legislation that they oversee, and none of the statutes specifically reference the UN declaration, leaving it up to individual institutions to try to refer to the UN declaration in the interpretation of their main human rights statute.
This really runs the risk of contorting the UN declaration to fit domestic human rights instead of the converse, which is to use international human rights standards to expand domestic standards here in Canada. I have written a paper on the role of NHRIs and the implementation of the UN declaration that I can share with the committee if it’s of interest.
Second, Canada has neither expressed its support for the American Declaration on the Rights of Indigenous Peoples nor taken any action to implement this specific instrument.
This instrument was passed by the General Assembly of the Organization of American States, OAS, in 2016 and provides a few key developments that we don’t see in the written text of the UN declaration. I can highlight three. For example, Article VII provides a better protection around gender rights, and the American declaration is viewed as having less of a deficit approach to gender equality than we see in the UN declaration. There is also Article XVII of the OAS declaration, the American declaration, that provides protections to family systems.
Finally, I would also like to highlight that Article XXIV of the American declaration, the treaty provision, makes specific reference to the need for states to implement the spirit and intent of treaties.
The third gap is with the enforcement of treaty monitoring body recommendations. In the international human rights system, there are bodies that oversee the implementation of different human rights treaties. Canada periodically reports to these bodies, but there is no mechanism to ensure Canada is following up on these recommendations to implement human rights standards.
I recognize I’m just about out of time, but what I thought I could share is the system that happens internationally to monitor international human rights treaties such as the International Covenant on Civil and Political Rights. These bodies are formed by independent experts who have two key functions: to provide guidance on the interpretation of the instrument through general recommendations and to guide states through periodic reporting and complaint mechanisms. States are required to report to the body periodically on what they’re doing to implement that international human rights treaty. The process is specifically designed to include the perspectives of civil society and Indigenous peoples in those processes, so it allows for a really robust review of what different states are doing to implement those human rights treaties.
This sort of process allows for a new body to specifically monitor a specific instrument to undertake studies as well as engage in periodic reporting and includes a complaint process.
I’m happy to provide more details as required.
The Chair: Thank you for that, Ms. Gunn. I now invite Ms. Metallic to give her opening remarks.
Naiomi Metallic, Professor, as an individual: Hello, gwè. I am a Mi’kmaw lawyer and law professor joining you from Kjipuktuk, Mi’kma’ki.
My work focuses on the ongoing discrimination against First Nations people in the delivery of key services like child welfare, policing and social assistance, as well as the denial of Indigenous peoples’ fundamental right to self-determination.
In March 2022, I co-authored a report on effective accountability mechanisms to address the extensive discrimination found by the Canadian Human Rights Tribunal in the Caring Society case. Our proposal took inspiration from the national inquiry’s Calls for Justice, in particular call 1.7.
Ultimately, we recommended three interconnected mechanisms: one, a national Indigenous child and family advocate, which is a type of ombudsperson, to provide soft advocacy, public education and systemic oversight; two, a tribunal to provide binding rulings over complaints when necessary; and three, national legal services to allow children and families to meaningfully access these and other avenues for accountability. These mechanisms would have to be independent from government, oversee both the federal and provincial governments and be set out in legislation.
We felt that while any of the three mechanisms on their own would be an improvement over the status quo, all three are necessary for meaningful accountability. This is because the stakes are too high, the patterns of discrimination too long and entrenched, and governments’ practices, policies and legal reforms to date are still too inadequate for anything less to be effective at this point.
Turning to the gaps in accountability that inform our report, there is no federal ombudsperson or child advocate, even though Canada is the primary service provider for First Nations children and families. This is a major gap. Every province has an ombuds or a child advocate or both to oversee the delivery of provincial services. Indigenous children and families are thus left with the courts and human rights bodies. But there are massive barriers to accessing these forums, including their complexity and cost. The Caring Society has been helping those they can to fight for the services they need, but it lacks the resources and capacity to handle the volume of requests.
The Canadian Human Rights Commission and Tribunal, while they have helped in recent years, are not an answer to Call for Justice 1.7, and here’s why.
First, the level of disregard for Indigenous peoples’ fundamental human rights necessitates Indigenous-specific mechanisms. The problem with general institutions is that their priorities can shift. We saw this with the Canadian Human Rights Commission’s National Aboriginal Initiative. After about eight years, it was quietly phased out, as it was no longer viewed as a priority of the commission.
Next, the grounds of discrimination recognized in human rights statutes only protect a fraction of the fundamental human rights recognized within the UN declaration, as recognized by Professor Gunn.
Finally and most importantly, we need mechanisms that can address both federal and provincial violations of Indigenous rights in one place. The constant game of hot potato between provinces and the federal government over Indigenous issues is one of the biggest contributors to the human rights abuses Indigenous peoples face and needs to be addressed. But currently, you can’t bring a human rights complaint against both the federal and provincial governments in the same forum at the same time. You have to pursue each through their respective human rights bodies, and there’s a similar problem with bringing judicial review in the courts.
Said otherwise, there’s a Jordan’s Principle problem with trying to vindicate Jordan’s Principle, and this harms Indigenous children and families.
There is no doubt in my mind that Canada has the jurisdiction to pass legislation to create such mechanisms under section 91(24) of the Constitution, even if this may have impacts on the provinces. Canada has the power to protect Indigenous peoples’ fundamental rights without the provinces’ agreement. This is what motivated Parliament to pass Bill C-92, and I am very confident this will be upheld by the Supreme Court.
Not only does it have the power to do this, but Parliament has obligations to protect Indigenous peoples’ fundamental rights. This comes from the treaties, the honour of the Crown, section 35 of the Constitution Act, 1982, and the UN declaration.
While our report specifically focused on Indigenous children and families, we have looked at how the model can be expanded to address various areas of need by adopting a deputy ombudsman model like the one in Ontario. With this, you have a central ombuds body, but it has different deputies who focus on specific issues. So you could have specific deputies on children and youth, women and two-spirited persons, et cetera.
I’ll end on this. While I am not opposed to Bill C-29’s national reconciliation council, it is not an adequate substitute for the Call for Justice 1.7 by the National Inquiry into Missing and Murdered Indigenous Women and Girls. Thank you, wela’lioq.
The Chair: Thank you. Now I’ll open the floor for questions. I’m going to start by asking the first one here to either or both of you. You may have touched on it in your opening remarks, but I’ll ask it again for clarity.
In your view, how would Indigenous-specific mechanisms such as an Indigenous ombudsperson or tribunal intersect with current mechanisms within federal, provincial or overlapping areas of jurisdiction? What kinds of powers or authorities should be considered for these independent bodies? Whoever would like to take a crack at that first.
Ms. Metallic: I can go first. How would it intersect and how to manage those? We do set out in our report — and I think we provided a link to it — around pages 59 to 73 extensive details about what we have in mind. As I said in my main submission, an ombudsperson — or you can call it an advocate, but they are essentially the same types of ideas — provides soft advocacy on individual and group complaints through providing informal resolutions through confidential means. They also provide systemic oversight of government activities and can conduct own-motion inquiries and studies and also provide education.
But you also need a tribunal with this that can rule on complaints and provide substantial remedies. That’s really important. We also think that legal services are necessary because Indigenous people experience such challenges in trying to navigate the existing system.
As for how they interact with each other, senator, we are used to overlap in Canada. In a federal system, we are comfortable with it and it works. What we found in our report is that, first of all, there is no overlap when it comes to an ombuds at the federal level because there isn’t any, and that’s a massive anomaly.
When it comes to provincial ombuds, what we found is that when it comes to discrimination against children and families, there are still provinces that deny services despite Jordan’s Principle and the orders from the tribunal. It does not seem that the majority of provincial advocates and ombuds are really holding provinces to account. So yes, there could be potential overlap between what a national ombudsperson or tribunal could do, but we think it is necessary, because they don’t seem to be, at this point, doing a sufficiently good job to advance the real needs of Indigenous children and families.
As I’ve said, overlap is common. We even see this with securities regulators. We have both federal and provincial securities regulators. It’s fine. We can manage that.
I also think it is possible to structure any legislation so that if there are other accountability bodies out there that can effectively respond, the ombudsperson could decline their jurisdiction to allow that body to do its work. However, sometimes we find that hasn’t been the case so far. But the advocate could also be mandated to provide outreach and education and coordinate with other provincial and federal bodies in order to make sure that they are paying specific attention to the rights of Indigenous peoples.
So I don’t think it would be redundant. I think it would be a value added and it would be a really important service to add. Thank you.
Ms. Gunn: I want to add maybe one or two other points.
One, such a body that would be newly created would be comprised of experts with specific experience on the human rights of Indigenous peoples. That is not a requirement on any of the existing human rights bodies. Some people may have experience, but it is not a criterion, so a new body that is specifically looking at the rights of Indigenous peoples is going to be different because of the expertise on it.
The next component that I see also being really powerful to a federal body, again, mirroring the international human rights system, is that these expert bodies comprise experts from the different global regions. The United Nations is divided up into regions, so each body has representation. Through a federal body, we could similarly identify regions across Canada with, of course, First Nations, Inuit and Métis distinctions, but also the distinctions we see coast to coast to coast. You could have regional representation across Canada as well as specific expertise.
The Chair: Thank you, Ms. Gunn.
Senator Arnot: This question is directed to both of the witnesses. I’m just going to make a couple of observations.
The first one is that any writings you have on this or any ideas you might have on some of the issues raised today, please provide them to the clerk in writing. I think it is going to be quite effective.
I think this is a real opportunity to correct some fundamental issues, and it is all in the mandates that we have given to these two bodies. Focusing on that, one thing that bothers me is that there is not enough emphasis on mediation and restorative justice principles in the current resolution model. This is a place where they could fit in, perhaps.
Would you see the ombudsperson as someone who is trying to mediate some solutions? Also, I’m wondering about the linkage between the ombudsperson and the tribunal. Would there be a place where someone would try mediation, and if it failed, then it would be sent to the tribunal? Where would the investigative mechanism be? Would that be in an ombudsperson’s office, or would it be better placed in a tribunal?
The one thing that I think is important if there is an investigation function is that there needs to be the ability to compel witnesses and compel documents, and that should be in one of these two institutions, and I just wonder what your thoughts might be on that.
I really like the idea of incorporating the OAS — the American rights — idea, and you have identified the areas of gender, family systems and implementing treaties according to spirit and intent. That is very important. Those could be put into the mandates, and that’s what you are advocating for.
I want to make this comment regarding the enforcement of treaties: I’m hoping that this body, this committee will look into this issue. There is a lack of tools to hold the executive branch of government to account in Canada. Is this a good place to start to hold the executive branch to account in this model? Would you have any thoughts on the enforcement of treaties and the implementation of the spirit and intent of treaties and how that could be accomplished or should be accomplished? It could fit in here, but it might fit into another study, so there is crossover. I’m really interested in what you might have to say about that.
I think Ms. Metallic has made a compelling observation about the Canadian Human Rights Tribunal and the dropping of the National Aboriginal Initiative. It was a really effective tool for policy-makers to utilize, in my opinion, and this fundamental problem of the relationship between Indigenous people and the Crown is a national shame. I don’t understand how that was dropped, but it was, and it points to the need to cure that.
The only other thing I would say is that you mentioned the honour of the Crown — I agree with that — section 35, the UN declaration; also the fiduciary duty is a huge principle in making these changes.
I want you to comment on all of that. If you don’t have time, please do it in the documentation or the further follow-up ideas because the analysts are very effective at drawing out these issues, which could feature in a final report.
Thank you.
Ms. Gunn: I think I’ll quickly say that the Inter-American Commission on Human Rights, which is the complaints body through the Organization of American States, does specifically include mediation as one of the steps in the process, so there is a model that can be used.
Mediation is incredibly important, but we do have to recognize the power imbalance that exists between the Canadian state and Indigenous peoples, so mediation can be challenging where there are significant power and resource imbalances. Mediation is sometimes felt to actually add delay and time and expense onto the parties. I would just flag that, but I’m not opposed to mediation by any stretch of the imagination.
Yes, I think the enforcement of treaties, it could play in here. I think we want to be very aware of the gaps that exist and how much can be taken on by one body. That specifically relates to expertise. If we want to have a special body set up to address human rights of Indigenous peoples, we should think about if they can do everything because it is actually a very broad field.
I do see a role for treaties and the enforcement of treaties being within this body, but I’m also aware that — I think Naiomi Metallic and I would both agree that we are not experts on all things Aboriginal rights. We all have our specific areas of expertise, so I think there is a balance there between addressing the key areas that need to be addressed while also recognizing that one body addressing everything might be challenging. Again, I refer to Naiomi Metallic’s idea of the deputy model and breaking things up.
I think the only other point I would say is from the elders I have had the privilege of working with in Manitoba. There has been that sense that courts are not a good place to go for treaties. There is a desire for other mechanisms, particularly independent mechanisms, to address the outstanding treaties, including the spirit and intent of treaties.
I think there can be a strong role. Again, the concern is thinking that you can get one person who would be an expert in all the different areas.
The Chair: Thank you, Ms. Gunn.
Ms. Metallic?
Ms. Metallic: Thank you.
Yes, I think I would echo what Brenda Gunn said about that nuanced concern around treaties. What we see in some places and what there have been recommendations for is a specific body on lands issues and the need for that to bring the provinces and federal government together. There is some reference, in terms of your request, senator, for documents.
There is our report that breaks down a lot of this, and we also talk about some of the different calls that have come so far about particular bodies on treaties. It is something to weigh, and I do think there is the possibility to cover various things under one house, but the question is how much you can take on and reasonably do an effective job of, which is what we really all want to achieve for Indigenous peoples and their fundamental human rights.
Let me talk a little bit about what we thought around mediation and what I would essentially say is an informal dispute resolution prior to having a final decision maker like a tribunal. We thought about this ombudsperson. We called it an “advocate,” but we were modelling it on some child advocate bodies that you see. We like the Alberta model quite a bit. They have social workers who work behind the scenes and work with government in a confidential way to try to resolve disputes. We really liked that model, and they do advocate on behalf of the individuals. It’s all confidential, and we thought that this is a trade-off in that there is not a final decision, but they are able to get the confidence and work and trust. Then you also need the tribunal in case that doesn’t work out.
We definitely see instances with the Canadian Human Rights Commission model where you can’t move on. You are stuck at the commission if you don’t go through that mediation process. I believe I had one client where we were at that for two years in a very straightforward case. It almost ends up as a sort of delay tactic, and we don’t want to see that.
We think Indigenous people need more mechanisms, not fewer, so by creating even a mechanism like this, we didn’t want to tie the hands of individuals from still going to the Canadian Human Rights Commission or to some other body if that’s their desire.
So we would have seen it as a place where people can see, go to, get information and have the opportunity if they want to access the informal dispute mechanism, but go to the tribunal if they feel that it’s not appropriate. We don’t want to hold things up. Sometimes that is the best course.
We grapple with that and discuss that extensively in our report, which is linked in my speaking notes today. I think that answers that. Thanks.
The Chair: I will remind everyone that we have a healthy list of senators wanting to ask questions in a short amount of time, so I will keep an eye on the clock here as we move forward.
Senator Coyle: Thank you very much to both our witnesses today. I have so many questions, but I will restrict myself to just a couple.
Ms. Gunn, you mentioned the American standards, the OAS, and how we are part of that, yet that isn’t reflecting back on how we are practising things here in Canada. You also mentioned our national human rights institutions as an important group of institutions. We are talking about a new ombudsperson and a new human rights tribunal at the national level that is specialized.
In the context of the existing institutions and then the new, what would be your advice on what needs to be done to build capacity in our existing institutions, not instead of, but as complementary to the new institution we are hoping to create? Then I will ask about the new one.
Ms. Gunn: I will try to answer that quickly.
There could be and should be greater involvement of the current national human rights institutions in considering how, when they have complaints from Indigenous peoples regarding their own human rights acts, they are making reference to the UN and American declarations. Those international human rights standards should be informing how we understand our domestic legislation on human rights as it relates to Indigenous peoples, but that requires those decision makers to have a sense of what those declarations are, which is well beyond reading 46 articles; there are decades of international jurisprudence that help us understand that.
There needs to be training and a willingness. Ideally, it would be explicitly included in their statutes, but amending 13 statutes gets to be a little challenging.
There also need to be people on the bodies who have experience. When you look at appointments to the various human rights bodies, none of them are specifically looking at people who have international human rights experience related to Indigenous peoples. That’s the crux of what I see as needing to happen in order for the NHRIs to play a greater role.
The Chair: Senator Coyle, I’ll put you down for next round.
Senator Coyle: No problem.
Senator Sorensen: I might be going into the weeds a bit here; there are so many topics to discuss under Indigenous rights.
However, I continue to think about two topics that were discussed at a previous meeting of this committee. I am asking either witness, or both if we have time, to comment if the following kinds of topics fall under Indigenous rights. I assume they do, but I am asking. The first is the requirement to reapply for status, and the second are the rules around second-generation cut-off. Excuse my ignorance, but is this current second-generation cut-off rule appropriate, or is there thinking around Indigenous rights that it’s not appropriate? Are these common in other countries, namely, the U.S.?
Ms. Gunn: Under the UN declaration, Indigenous peoples have a right to define themselves and their membership, so the ongoing role of the Indian Act in determining who is Indigenous needs to be re-evaluated, and we need to go through a process.
I don’t know of any Indigenous peoples who would define themselves by that blood quantum cut-off without government roles. In the U.S., there are definitely tribes that would follow a blood quantum, but I’m not sure any of that was traditional; it was more so influenced through U.S. law.
I think it falls under this because it falls under that right of a people to define their citizens themselves.
The Chair: Do you have anything to add, Ms. Metallic?
Ms. Metallic: No.
[Translation]
Senator Audette: I will be asking you questions in French. While you are putting on your headphones, I would like to say thank you to all the senators who stepped up and decided to do these studies in response to the National Inquiry into Missing and Murdered Indigenous Women and Girls. Because of your leadership, the federal government appointed a person and an organization to study these issues.
As you know, commissions of inquiry go beyond recommendations; we are faced with legal obligations, and this I know from having studied them. Ms. Metallic, I must stress the importance of distinguishing between Bill C-29 and the entities that are being examined right now.
Now, knowing that you and I — the incredible teachers, the Indigenous women who are here as witnesses — are invested in this each and every day, we understand and we know that it is a responsibility, it is a duty. How can we tell the rest of Canada, my colleagues in the Senate and in the other place that we should have these mechanisms? How can we exert our influence to ensure that, regardless of whatever government is coming in or coming back, we must soon put in place these mechanisms that are, in my opinion, non-negotiable? I am all alone in this great Canada of ours.
By the way, there are young Indigenous people in Quebec who are listening to you, and they are proud to see you, I’m sure.
Ms. Metallic: Thank you very much, senator. I think that’s a really good question.
I am proud of Cindy Blackstock and I commend her courage. I’m also proud of the Assembly of First Nations for bringing this great case of the First Nations Child and Family Caring Society before the courts. As I have written in some of my articles, the problem with providing support and care to children is the same as the problem with social services, housing, water, and many other services to Indigenous people that are primarily delivered by the federal government.
Also, in regard to helping children, I would point out that, according to what the inquiry reported, what they saw was one of the worst cases of discrimination ever in Canada. I think that is now being more and more broadly recognized by Canadians. We’re starting to see identical cases coming to court. This year there was one from a group in Quebec that dealt with police services. The group felt that there wasn’t enough funding to meet the needs of the community.
If we keep going like this, we will continue to have more complaints. It’s not a good idea to keep doing things as we are, we have to change. I do think, however, that a tribunal and an ombudsperson can help change ways of thinking, to help people see that we still have serious problems of discrimination in Canada. We have to respond to that. It’s not enough to go to court, we also need to educate people and follow up.
[English]
The Chair: Ms. Gunn, do you have anything to add?
Ms. Gunn: One of the tactics I’ve seen the government use, including internationally, is this laundry list of places where you can bring complaints. They do this when they report, “Oh, you can bring a complaint around economic, social and cultural rights.” They come up with this amazing list of places. Part of this is really breaking it down. That’s probably why both Naiomi and I identified gaps. No, there aren’t places. Economic, social and cultural rights are not justiciable under our Charter currently. Despite you setting up 50,000 mechanisms, or whatever someone can pull together, there are significant gaps in what can be addressed. If we want to be a human-rights-respecting country, you need to have enforcement and accountability mechanisms available to people when they feel their rights have been violated.
Senator LaBoucane-Benson: Thank you to our witnesses today. My question is for Ms. Gunn. I would like to take a deep dive on Article XVII of the American declaration, if we could, the better protection for family systems.
In your mind, what kind of clarification does it provide over and above UNDRIP? This committee has studied UNDRIP in the past. We’ve also studied Bill C-92, so there is some understanding perhaps in this committee of those two pieces of legislation. What clarification does the OAS provide? How would it result in better services for Indigenous people in the context of Bill C-92?
Ms. Gunn: Thank you. Article XVII of the American declaration includes “the right to preserve, maintain, and promote their own family systems” and recognizes that:
States shall recognize, respect, and protect the various indigenous forms of family, in particular, the extended family, as well as . . . matrimonial union, filiation, descent, and family name. In all cases, gender and generational equity shall be recognized and respected.
That’s what is included. I would say the same idea is included in the UN declaration but it is not expressed in the same way.
The key distinction is when we’re talking about child protection, as it were. We know that there are challenges as to what we view from the Western perspective as the best interest of a child. A provision like this starts with Indigenous peoples and their own views of family and responsibilities.
One example I can think of that I’ve learned about is a Cree concept. In the nēhiyaw language, “mother” and “father” are actually verbs, so they are responsibilities and actions, not just nouns, as in English. Those are the key sort of distinctions that we can see from provisions like the American declaration. We start to understand not the best interests of the individual but how deeply connected that individual is to their family and collective. That’s what is being protected, and that needs to be reflected in the state.
Senator Hartling: Thank you to the witnesses for being here. I really appreciate your presentations. They give us lots of food for thought and lots of practical solutions.
I appreciate that you are talking about the disconnect between the federal and the provincial. In New Brunswick, that’s very obvious. You mentioned, Ms. Metallic, about the social workers in Alberta being involved in this. In New Brunswick, we have Indigenous social workers studying at St. Thomas University who could be ready to do this. But before that could happen, we need to move to setting up the tribunal and the ombuds. How would you see that being governed and operated and the resources and things like that? That would need to be a solid commitment in a body. Where would it be? Can you give me the vision that you see, please?
Ms. Metallic: We did see it as a federal body. In fact, we recommend one statute to establish both the ombudsperson and the tribunal. We also think that there ought to be legal supports provided through the mechanism of the ombudsperson.
We do feel, as I said, that it should provide oversight, not only to the federal government but also to provincial entities, including working alongside them — for example, if there are ombuds in New Brunswick, and other ombuds — and picking up the slack if there is slack, but also supporting these organizations. Potentially, these organizations can be providing greater services to Indigenous peoples while also filling a gap, if there is, in practice, a gap, by also supporting and trying to build up the education.
In terms of where it would be situated, we have a vast country. Earlier, Brenda Gunn was talking about regions. I think regional representation is key; there will have to be regional representation so that these are actually accessible bodies that can be accessed throughout the country. We will probably have to have some form of headquarters, but there will need to be offices available in different parts of the country, providing different mechanisms that make it as accessible as possible, because that has been a massive issue, namely, this accessibility.
The Chair: Thank you for that. We are on to the second round.
Senator Arnot: I promised the chair I would get my points out in 30 seconds. I’m not sure that will be the case, because I had two, and now I have four, but I will go quickly. I’m not expecting an answer today, but you might have some kind of an answer. These are the four points.
First, on independence, do you agree or think that we should have a standard of independence defined and that that standard should be the highest possible one, which would be judicial independence, for these bodies and organizations? Do you have any comment here?
Second, binding rulings are really important. I would like to see that amplified, if you could, because I think that would help to focus agencies and ministries on the idea that there is a lot at stake in any complaint that comes and they might focus more on settling rather than litigating.
Third is public education. There is a huge need to do that. Is that something the ombudsperson could do or could have a mandate to do?
Fourth is resources. Here, I’m thinking that if you have a comprehensive mandate which is wide and broad, you need a comprehensive set of resources to meet that. Don’t hold back. Don’t be fettered by existing models in what you are thinking there in terms of not only these two mechanisms but also the resources needed to fund them. Thank you.
Ms. Metallic: On independence, in our report, we tried to spell out what that looked like, certainly, as much independence as possible. There is the Veterans Ombud, but it is completely created by the executive. There have been various reports criticizing it as not having sufficient teeth or power, so definitely that. In bodies that are created legislatively, there are different ways to ensure as much independence as possible, for example, appointing a chair through Parliament or through parliamentary mechanisms as opposed to having the executive pick the lead of any organization. We get into that, and I think that’s really key.
In terms of rulings, we go on at length about that as well. Really robust remedial powers are so important. The role that the Canadian Human Rights Tribunal has maintained in terms of supervisory jurisdiction since its initial decision in the 2016 Caring Society case has been really important. You need that. This is an area where we have seen over and over again that governments are told to do something, but they don’t necessarily do the thing they were told to do, and if that’s the end of the matter, that’s not sufficient. You need robust remedial powers, including interim powers as well.
Public education is really key and would be a fundamental role of the body. We also think — particularly because of the work we’d done on Bill C-92 and because there was barely any public education rolled out as part of that when it came to children and families — there is a role for education of social workers, people who work in the child welfare services, including lawyers and judicial education in that area. So public education is really key.
In terms of resources, it will be a significant investment, but, as I said to Senator Audette, the alternative is these really long discrimination complaints, and at this point, we are litigating one after another. We had child welfare and now we have policing. The last time I checked how much was spent by the federal government on the child welfare Caring Society case, I think it was over $8 million. So there are resources, but they would be much better invested in something like this, as opposed to litigating. Thank you.
The Chair: Thank you for that. Before we go on to Senator Coyle, I want to mention something to Ms. Metallic. She referred to pages 59 to 73 of her report entitled Doing Better for Indigenous Children and Families. If those could be excerpted and sent to the clerk, that would be great, as it would facilitate translation. Thank you for that.
Senator Coyle: This is for you, Ms. Metallic. You have just now and previously in your introductory remarks hinted at different characteristics of what this new makeup and organization could look like. You talked about possibly having deputies for Indigenous children and families. That could be one example. You talked about regional representation.
Could you go a little further for us and just describe — if you could sort of step back — the essential elements, as you see them, which would optimize the investment in this very important new ombuds role as well as the tribunal role?
Ms. Metallic: Thank you. Our work focused on children and families, but since writing the report, we have had conversations with people involved in MMIWG and people who have raised concerns of the Inuit. So you could develop this, as I say, deputy model where each deputy would be mandated to focus on those areas of concerns. And I think that’s the best way to meaningfully address the concerns that have come up in all these important areas, which should not be disregarded, and give them appropriate attention without having a separate ombudsperson for each and every one of them. I think it is an effective means to do that.
In terms of the essential characteristics, what I mentioned before for the ombuds body itself, that soft advocacy or informal resolution of individual and group complaints is really important to attempt to do so that not everything has to be brought to a tribunal.
Systemic oversight is really key. That’s what we are completely lacking at the federal level in terms of Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada, or CIRNAC, which is looking at how the departments are doing, asking questions, asking for information and actually having the ability to request this information and it be provided by government bodies, and being able to write reports and ask questions and make recommendations. We think that’s really key, and we don’t have that yet. And, of course, public education is something that I have spoken to.
But that systemic oversight, probably in terms of an essential function, is really key. And we’ve touched on the other, the tribunal; it has to be there because we need a body that can make final decisions if necessary. And legal services really important because, to this point, Indigenous people have a hard time navigating that system. We have more than one mechanism, but they are barely used by Indigenous people.
To give one example that’s in our report, there’s a First Nations mother named Carolyn Buffalo-Jackson. She has a child who was born with multiple disabilities. She was a lawyer and a chief, yet she could not navigate the Canadian human rights system on her own. She had to go to the Caring Society, and they provided some ad hoc support, and she was able to move her human rights complaint along. So even if you are a First Nations person, a lawyer and a chief, and connected, it is difficult process. Thank you.
Senator Tannas: Thank you both very much. This has been interesting and inspiring. I want to check on something. I am hopeful, having been on the committee for 10 years now, that at some point before I die of old age, I will see that the role of the federal government is to collect money and to flow it to Indigenous governments without conditions or directives. I think there is an effort to do that, you know, to move in that direction.
I just want to make sure that your vision of this ombuds and tribunal and its enforcement would apply to Indigenous governments in the future. That tribunal, if someone has a problem with their Indigenous government and the way in which they are being treated, they would go to that tribunal, and that tribunal could order the Indigenous government to do whatever it is you envision today that they would order the federal government to do. Could you just clarify that, please?
Ms. Gunn: I think absolutely Indigenous governments need to be held to human rights standards. I’m not sure it is as easy as setting up a body today to hold the federal government accountable in how it is providing resources and then, as governance transitions, to just sort of step in. I think there might be additional considerations. But I think many Indigenous governments themselves are developing dispute-resolution mechanisms. I fear it could be a little colonial if the government is setting up a process for judging itself and then expecting Indigenous governments to step up and be bound by it. Some sort of transition will be necessary; I’m just not sure you can substitute governments in a very simple way.
Ms. Metallic: I would echo that. We grappled with that issue in our report as well. The report and what led to it is 70 plus years of chronic underfunding and interjurisdictional neglect by the provinces and the federal government. Although I completely agree that Indigenous governments also have to be held accountable to respect the human rights of their members, there’s a long and nuanced discussion around that.
What we ultimately concluded in our report was to suggest that for the time being — because the real discrimination is happening at the federal and provincial levels, while Indigenous bodies are only at the beginning journey of transitioning to effective self-government, and we’re not there yet — that conversation should happen, but it should be in co-development or discussion with Indigenous governing bodies as opposed to simply imposing it. And it should really be cognizant of the history and the nuances of how the discrimination that we’re currently facing — how we got here. So I agree with Brenda on that.
The Chair: The time for this panel is now complete. I again thank our witnesses, Brenda Gunn and Naiomi Metallic, for being with us today.
For our second panel, from Women’s Legal Education and Action Fund, or LEAF, we will hear from Pam Hrick, Executive Director and General Counsel; and Kienna Shkopich-Hunter, Public Interest Articling Fellow.
Wela’lin to both of our witnesses for joining us today. Ms. Hrick will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session with senators. I will now invite Ms. Hrick to give her opening remarks.
Pam Hrick, Executive Director and General Counsel, Women’s Legal Education and Action Fund: Thank you for inviting us here today. I’m joined today by my colleague Kienna Shkopich-Hunter, with whom I’ll be sharing my time for this opening statement.
LEAF is a national charitable organization that advocates for the equality of women, girls and transgender and non-binary people. We do this through litigation, law reform and public legal education.
We are very glad that this committee is studying the federal government’s role in implementing Call for Justice 1.7 from The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.
As a settler organization and as a party that had standing in the inquiry, LEAF is in solidarity with Indigenous communities and organizations urging the government to implement this Call for Justice, along with the many others that remain unimplemented. There is a clear need for a national Indigenous and human rights ombudsperson and for a national Indigenous and human rights tribunal. Existing administrative processes frequently fail to provide meaningful remedies to Indigenous people who have experienced discrimination and breaches of their rights.
Take, for example, as this committee is well aware, efforts to remove gender-based discrimination in the Indian Act. It has been over 40 years since the United Nations Human Rights Committee first recognized this discrimination. It did so in response to a complaint brought by former senator Sandra Lovelace Nicholas. Despite piecemeal amendments to the legislation, discrimination remains.
Likewise, Jeremy Matson has appeared before this committee to share his ongoing efforts to pursue justice for himself, his children and other Indigenous people in Canada. Those efforts began with a federal human rights complaint in 2008 and continue today, 15 years later. As well, the First Nations Child and Family Caring Society of Canada has been fighting for almost two decades to remedy this government’s unequal treatment of Indigenous children.
As the national inquiry reported, there has been a lack of accountability for law enforcement and governments at all levels for the ways in which they have failed Indigenous women and survivors. As Senator Audette has said at this committee regarding Call for Justice 1.7, Indigenous women have asked to be put at the centre of the process of reflection, analysis, debate and creating institutions.
Survivors deserve to have the Calls for Justice honoured and must be included in the process of appointing an ombudsperson and creating a tribunal.
Kienna Shkopich-Hunter, Public Interest Articling Fellow, Women’s Legal Education and Action Fund: Hello, committee members. I am speaking to you today as a Red River Métis woman from the Meadow Lake area in Saskatchewan. I am also a member of the Métis Nation of Alberta and was raised in Edmonton.
We are encouraged by the recent appointment of Jennifer Moore Rattray as the Ministerial Special Representative who will engage with survivors, families and organizations to provide advice and recommendations related to creating an Indigenous and human rights ombudsperson.
LEAF supports the creation of an ombudsperson but notes that Call for Justice 1.7 asks for both an ombudsperson and a national Indigenous and human rights tribunal. Both of these are necessary, as they serve distinct functions. An ombudsperson would provide functions such as support for people filing complaints, while a tribunal would enforce human rights laws. Together, they would ensure oversight as well as enforcement and accountability for survivors.
In addition, the ombudsperson and tribunal must receive the necessary funding, resources and support to ensure that they will be successful in meeting their mandate long term.
In consideration of the rightful distrust that many Indigenous peoples have in administrative processes, an ombudsperson should be independent of government. They should have the authority to make objective decisions, conduct investigations, address individual complaints, issue reports on systemic issues and make recommendations.
The tribunal needs powers that are not merely symbolic. It must have the jurisdiction and authority to provide meaningful, legally binding remedies for Indigenous people. It must be independent, impartial and consist of members with specific expertise and knowledge about the harms Indigenous people have experienced and continue to experience.
Canada has spent a lot of time issuing reports and making recommendations to address the issues identified by the national inquiry. However, to effect real change, there needs to be accountability and enforcement for Indigenous women, families and survivors.
Thank you for your time. We will be happy to answer any questions you may have.
The Chair: Thank you, Ms. Shkopich-Hunter. The floor is now open to questions from senators.
Senator Arnot: Thank you very much. Were you here for the last panel? Did you hear some of the discussion?
Ms. Shkopich-Hunter: Yes.
Senator Arnot: Thank you. I think this is a wonderful opportunity for you to give advice to us on a number of issues. You have touched on them, so I’ll just mention a couple.
One is the mandate — to make sure that gender rights are included in that mandate. The role of public education: Where should that be? Is that best housed in an ombudsperson’s office? How robust would you make that public education mandate?
In terms of the independence of the agencies, I’m suggesting that judicial independence is a very high standard, and that high standard should be incorporated into the mandates. I wonder what you think about that.
I also wonder what you might think of the idea of making sure that the tribunal’s findings would be binding on the parties at first instance, and also the resources required to fund these organizations. If you have a comprehensive mandate, you obviously need comprehensive funding. The problem is that it is comprehensive, so we need the mechanisms to do it, but we also need the funding to do it.
Those would be my comments. I’d be happy to hear any other comments that you would like to follow up with, and anything you want to put in writing to us would be helpful as we make recommendations at the end of this study. Thank you for coming. I’m interested to hear your answers to those questions.
I’m happy to see my colleague from Saskatchewan with us here today, from Treaty 6 territory.
Ms. Shkopich-Hunter: Thank you, senator. I will touch on a few of the topics you mentioned. To echo what Ms. Metallic and Ms. Gunn spoke about, I think that public education is really important, especially for building trust and ensuring buy-in. I envision that would be part of the role that an ombudsperson would play.
As well, both the ombudsperson and the tribunal would need to be independent of the government. There is such a lack of trust that I couldn’t see either role being effective long term if they weren’t independent.
In terms of funding, I think that funding has consistently been raised as a barrier for taking real actions that would help First Nations, Inuit and Métis people, and that is unacceptable. Again, to echo what Ms. Metallic was saying, the federal government has spent a lot of resources fighting different organizations, such as the Caring Society, over human rights issues, and that funding could have been directed to finding solutions.
The federal government has funded a lot of studies and reports, and I think that funding as well could have been directed towards creating solutions that would actually address the problems rather than just continuing to study them.
Ms. Hrick: I don’t have anything to add.
[Translation]
Senator Audette: Thank you very much for your presentation.
I will ask the same question I already asked the other witnesses: How can we, who are used to the situation and believe that this is necessary, that it is Canada’s responsibility, ensure that the rest of the population, senators and parliamentarians understand that it is only natural to make this claim? Have you thought about what we can do to ensure that all our other colleagues understand that it is not a barrier, but rather a responsibility that Canada has to put in place institutions or entities while ensuring that these entities have adequate representation, including in our nations that have English as a third language? I don’t know if you have any thoughts or suggestions to share.
[English]
Ms. Hrick: Thank you for the question, Senator Audette, and for your indulgence as I respond in English.
As I mentioned at the outset, LEAF is a settler organization. Organizations like ours and folks who are non-Indigenous speaking up, amplifying and echoing the advocacy that is being done and led by Indigenous communities and by brilliant Indigenous women such as those on the panel preceding ours is part of what we can do to try to convince others who are not already on board that this is not just a nice-to-have but an imperative. I think it is embarrassing that we are approaching the four-year anniversary of the release of the report from the inquiry — we are certainly grateful that this committee is bringing attention to and studying this issue, but it is yet another recommendation and yet another report that has been commissioned that has not been acted upon.
We have a role to play in bringing attention to this, in speaking as allies to Indigenous communities, myself speaking as an ally to Indigenous communities and amplifying those voices and saying that this is something that matters to us as well. The ongoing human rights violations highlighted by Professor Metallic in the previous panel are ones we should be ashamed of as a country. It amplifies the extent to which we see the impacts of colonialism and ongoing discrimination against Indigenous peoples. We have a choice to make — as Canadians, as people who live here and as parliamentarians — about how we prioritize our resources and what kind of society we are trying to build.
Those are some of the things I would try to highlight to be able to bring forward that view and persuade people who are not already here that this is not just a nice-to-have, as I said, but an imperative.
Ms. Shkopich-Hunter: Thank you for your question, senator. We think that it makes sense that an ombudsperson and a tribunal should be able to provide services in both English and French. We also suggest to the greatest extent possible that they be equipped to provide services in Indigenous languages.
Then, on your question about buy-in, I want to go back to the national inquiry report and point to all of the instances within the report where they spoke about women not feeling comfortable going to police, going to authorities, turning to the justice system when they are experiencing violence. It is really important to highlight in terms of buy-in that Indigenous people across this country are experiencing human rights violations and they don’t currently have a place that they can turn to, and the current human rights institutions in place are not adequate. There are massive delays. It hasn’t been an adequate solution so far, and it won’t be if nothing is changed.
The Chair: Thank you.
Senator Coyle: Thank you to both of our witnesses here today. This point about trust and buy-in is really important once these are up and in place. They are also really important right now, not just in terms of getting there and making it happen but in terms of how this should be done.
We know that Call for Justice 1.7 of the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls noted that a position of a national Indigenous and human rights ombudsperson and a national Indigenous and human rights tribunal should be collaboratively established by all governments. Could either of you or both of you speak to what the makeup of that should be, what the organization of those entities should look like? You have spoken a little bit on that in terms of engendering trust and buy-in. How do we get from here to there? What does that collaboration actually look like? Who should be involved? There are already some steps, as you have started to mention to us. In your view, how will this be set up for success — and a big part of that success are the trust and buy-in in how both of those are being established? Thank you.
Ms. Shkopich-Hunter: Earlier we heard from Ms. Metallic and Ms. Gunn, and I came prepared to talk about the very report that Ms. Metallic already spoke about. Both of them offered really great solutions. I support Ms. Metallic’s solution to have deputies to address the issue of the tribunal covering too broad of an area of issues.
They raised some really great points, and there are a lot of really brilliant Indigenous people in this country who have a lot of ideas, and it is just a matter of inviting them to the table.
Ms. Hrick: I think you have hit one of the key points right on the head, senator, in terms of ensuring that these institutions are built in collaboration, with the full participation of Indigenous communities as well, and I would defer to people like Professors Metallic and Gunn and to leading Indigenous organizations to identify those who ought to be at the table, but this certainly is not something that can be unilaterally imposed. It is not something that will be successful in responding to the needs of Indigenous communities and Indigenous women in particular, speaking in the context of the inquiry, if it is not done in full partnership and really under the leadership of those communities to identify their needs and their expertise. It needs to be built into these mechanisms.
The Chair: Thank you for that, Ms. Hrick.
Senator LaBoucane-Benson: I think that this group absolutely agrees that we need an ombudsperson and we need a mechanism for teeth so that some traction can be gained and change can happen.
I take your point about us cranking out another report. Our report does not necessarily mean anything is going to change. I think you have broad consensus in this group that these are steps that need to be taken.
I want to take you down a path about what’s going on with gay and trans people, particularly in the south, but starting to happen in Canada as well, and the attack on the art form of drag. We see that even in Canada this rhetoric is ramping up. I don’t see a cross-Canada place where these kinds of human rights violations — that there is a place to take them. I think that Call for Justice 1.7, because it is gender-affirming and because we are talking specifically about LGBTQ2S people and trans people, offers an opportunity to develop expertise in dealing with these human rights violations. I would like to hear your opinion on that.
Ms. Hrick: I’m happy to provide that as a member of the LGBTQ community myself and deeply invested in responding to the growing rhetoric that we have been seeing, the violence that has been escalating, particularly against trans communities, and seeing the abhorrent attacks on the art form of drag, as you mentioned. There is certainly a need for strong state mechanisms to deal with that sort of discrimination and that sort of rhetoric. It is an interesting idea to think about the ways in which that could be related to the mandate of an ombudsperson or a tribunal such as being recommended in Call for Justice 1.7.
I, of course, in all of this, want to ensure the centring of Indigenous rights and Indigenous communities as well. That doesn’t mean there is not room to respond to what you are describing.
In addition to needing those mechanisms to deal with that kind of hatred, we do need to speak up and encourage a cultural shift, really, or a resistance to what we are seeing, particularly emanating south of the border. We need to have not just mechanisms for accountability and enforcement of rights but proactive investments in education, in housing for queer and trans communities specifically — and that, of course, includes two-spirited folks — and in trans-inclusive and competent education and service provision as well, all of which ought to be baked in as a common standard across the provision of services and the provision of accountability mechanisms in this country.
Senator LaBoucane-Benson: Would you say that this could be an opportunity once again for Indigenous people to lead, that Indigenous innovation around how we handle these kinds of human rights violations for Indigenous trans and gay people and drag queens can be a model for the rest of Canada and non-Indigenous people, and that there could be a space where we could innovate?
Ms. Hrick: I sure think there is a lot of space for the rest of us to learn from how Indigenous folks lead and direct how we ought to be perhaps more constructively resolving and addressing human rights violations.
To come back to the point of another report from this committee, I want to clarify. I’m certainly grateful for the advocacy and the study that this committee is continuing to do and the recommendations it is providing, for example, in last year’s report as well. It serves an important function to ensure that the government is being reminded to be held accountable and that there are folks in this room and outside of it who are watching as well.
The Chair: I’ll jump in with a couple of short questions here for both of you. Could the existing Canadian human rights framework be modified or adapted? Why or why not? Should additional training for individuals currently involved in reviewing and determining human rights complaints brought forward by Indigenous individuals be required, and, if so, who should deliver that training?
Ms. Hrick: Yes, I think there is certainly room for improvement in the delivery and adjudication of complaints right now that includes a better understanding, on the part of adjudicators, about Indigenous rights, Indigenous legal orders, Indigenous approaches to problem solving.
As was touched on by the previous panellists, I think it is something that should be done through education that is delivered by Indigenous folks and those with expertise and lived experiences of Indigenous communities as well. That would answer the second question you asked.
In terms of existing human rights frameworks and modifying those, if the question is trying to get at whether the existing frameworks being modified to address some of the issues being raised warrants a separate tribunal, I don’t think modifications to the current framework would do the trick. The reason is that — and we will keep harkening back to the testimonies of Ms. Metallic and Ms. Gunn — in the existing human rights systems, Indigenous rights are not centred. Too often, barriers exist for Indigenous people availing themselves of those tribunals, and, quite frankly, they have to fight for the recognition of their own ways of knowing and their own ways of doing in those tribunal mechanisms. So having something that is dedicated to availing or vindicating Indigenous rights in a way that centres those communities is something that I think is necessary. Modifications to the existing human rights framework wouldn’t be sufficient.
The Chair: Thank you for that, Ms. Hrick.
Ms. Shkopich-Hunter: I will also add that when writing the national inquiry report, surely improving existing mechanisms would have been something that was considered. They came to the conclusion that we need a new mechanism, and we support that.
The Chair: Thank you for that.
Senator Hartling: Thank you for being here. I followed your good work in the past. I worked in government organizations and always appreciate all you do and continue to do.
We’re looking at this question today of what we can do to improve the system. I would agree that getting new people in there — a new ombuds and a tribunal — would be helpful. I’m just wondering if you think it would be helpful toward reconciliation and also with the Truth and Reconciliation Commission. We heard in the last couple of weeks about violent denialism. Can you tell me how this might help to educate but also maybe expand people’s thinking? What would that do for changing some of the rhetoric that’s still unfortunately happening in Canada?
Ms. Hrick: I do think that it would be helpful, of course, for improving the system. We’ve heard a lot about the distrust — very valid and well-founded distrust — in existing systems and the lack of accountability we’ve seen in raising complaints through the existing mechanisms. So I think that having that separate, dedicated institution — a separate ombudsman and a particular tribunal to deal with Indigenous human rights — would do some good. It would not repair all the damage — not by a long shot — but it would move us toward the path of trying to rebuild that trust in providing effective mechanisms for Indigenous communities to vindicate their rights. Of course, the caveat is that this will have been built with and on the advice of Indigenous communities as well. That would be very helpful in the broader scheme of things.
As was said on the previous panel, when Parliament makes the decision to act on the recommendation of experts and on the recommendation of the inquiry, I think it will send a signal to the broader community about the need for this sort of mechanism, saying this is important and fundamental for us to undertake as a government, alongside many other items. That could go a way to expanding the thinking and the realization and message that is sent to folks who aren’t already on board and knowledgeable about how these issues are fundamentally important and should receive due resources and consideration.
Ms. Shkopich-Hunter: I would like to add to that. I just want to talk about the role an ombudsperson would play. A lot of Indigenous people who have complaints and who are experiencing a human rights violation don’t have the resources or the expertise. The entire system might be daunting. I think an ombudsperson is really important because it would alleviate some of the labour being put on people when they have a complaint.
I also want to touch on the national inquiry report again, specifically where they talked about how Indigenous women are often not taken seriously when they raise their complaints. An ombudsperson is really important because it is someone who could hear them, who would have the specific expertise in understanding and who would hopefully take them seriously and then help guide them through the process of having their complaint heard.
The Chair: Thank you for that.
Senator Sorensen: Indigenous women are shamefully overrepresented in Canada’s prisons. What factors have contributed to this and what should be done from a policy perspective to address this?
Ms. Hrick: It is a result of systemic racism and colonialism. That is what has led to more than half of women in federal women’s institutions being Indigenous. That’s a national disgrace. A lot of that was brought to light in the context of the recent Supreme Court case in Sharma as well as with Bill C-5.
The measures that were adopted in Bill C-5 will hopefully have a moderate impact on addressing some of those issues, but those measures didn’t go far enough. We appeared in the Senate Committee on Legal and Constitutional Affairs during the discussion of Bill C-5, as well as elsewhere, to advocate for the safety valve that had been proposed, I believe, by Senator Pate. It was an amendment to Bill C-5 to actually go further to address some of the ongoing racism and colonialism we see in the criminal legal system to ensure that sentences that align as best as possible with Indigenous legal orders and Indigenous principles and that do the least damage to Indigenous communities are actually baked into legislation and that judges have the discretion to be able to craft sentences in appropriate cases that are consistent with those values.
At the same time, we’ve been advocating at LEAF for looking for alternatives to criminal legal solutions, full stop, so taking the lead of Indigenous communities, as well as trans and Black communities, in looking at restorative justice and transformative justice as alternatives because we know how damaging the criminal legal system can be and how ineffective it can be in addressing harms caused and in preventing harms.
Some of those additional sentencing reforms along with shifting our thinking, our ability and the opportunities to pursue justice and accountability that aren’t the traditional mechanisms of the criminal legal system could be helpful in alleviating that overrepresentation of Indigenous women in prisons.
Ms. Shkopich-Hunter: To add to that, we also need to look at the overrepresentation of Indigenous women in maximum security institutions and how that impacts their ability to have any sort of rehabilitation while they are in maximum security. We need to look at the factors that are considered for that. I believe the federal government did release a really interesting report on that a few years ago. I don’t know of any current initiative to address that issue.
Senator Coyle: Thank you for this. You keep stimulating more questions. I will limit it to two fairly quick ones.
First, we talked about setting up for success these two new entities: the ombudsperson and the tribunal. Do either of you have any commentary on the governance aspect? Obviously, independence is critical, but is there anything about governance that you feel will be critical for it to succeed?
Second, related to that and other things, are there international models that you are aware of that we could be learning from that have been effective in other countries — obviously, you never directly translate from one place to another — and that might help inform what is developed here in Canada?
Ms. Shkopich-Hunter: Thank you, Senator Coyle.
I don’t have the expertise that Ms. Metallic and Ms. Gunn have on the United Nations Declaration on the Rights of Indigenous Peoples and international law, so I couldn’t speak to any models, although my understanding is that there are many out there.
To talk about governance, I will just add that the tribunal would need to be able to make decisions that are binding; otherwise, their function would be merely symbolic, and it would not create any real change that is s needed.
Ms. Hrick: I agree entirely with my colleague and I would just reiterate, as I think this committee already takes the point, that these systems need to be developed hand in hand with Indigenous communities and need to not just take into consideration but fully incorporate the governance structures that Indigenous communities are saying are necessary to be able to have that trust in these systems as they are set up.
The Chair: My list is exhausted. Are there any additional questions before we adjourn?
Seeing none, the time for this panel is complete. I wish to again thank our witnesses, Ms. Hrick and Ms. Shkopich-Hunter, for joining us today, and that brings us to the end of our meeting.
(The committee adjourned.)