THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, April 25, 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 David Arnot (Deputy Chair) in the chair.
[English]
The Deputy Chair: Honourable senators, I would like to begin by acknowledging that the land on which we gather is the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation, and is now home to many other First Nations, Métis, and Inuit Peoples from across Turtle Island.
I am Senator David Arnot from Saskatchewan, and I am the Deputy Chair of the Indigenous Peoples Committee.
I will now ask the committee members in attendance to introduce themselves.
Senator Greenwood: Good morning. I am Margo Greenwood from British Columbia, originally from the beautiful Treaty 6 territory.
Senator Sorensen: Good morning. I am Karen Sorensen, province of Alberta. I live in Banff, Treaty 7 territory.
[Translation]
Senator Audette: [Innu spoken] Michèle Audette [Innu spoken], from Quebec.
[English]
Senator Coyle: Hello. Welcome. I am Mary Coyle. I am from Antigonish, Nova Scotia, in Mi’kma’ki.
The Deputy Chair: Today we are continuing our study into the effectiveness of the Canadian human rights framework in promotion and protection 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 mechanisms.
I would now like to introduce our first witness, Jennifer Moore Rattray, Ministerial Special Representative, Crown-Indigenous Relations and Northern Affairs Canada. Thank you for joining us today.
Ms. Moore Rattray, you will have an opportunity to provide opening remarks, which will be followed by a question-and-answer session from the senators.
I now invite Ms. Moore Rattray to give her opening remarks.
Jennifer Moore Rattray, Ministerial Special Representative – Call for Justice 1.7, Crown-Indigenous Relations and Northern Affairs Canada: Ekosani. Thank you so much, senators. Tansi and aniin and good morning.
I am a proud citizen of Peepeekisis Cree Nation in what is now Saskatchewan, with maternal roots in Oxford House, Norway House and Fisher River in what is now Manitoba.
[Cree spoken]
I want to thank you all for the invitation to be here today and for your commitment to ending the national crisis of missing and murdered Indigenous women, girls and 2SLGBTQQIA+ people.
I want to acknowledge the ancestors, this beautiful day and that I am grateful to be a visitor on the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation.
As this is recorded, wherever you are, I acknowledge that you are on sacred land.
I am here in my role, as mentioned, as Ministerial Special Representative for Call for Justice 1.7, related to the establishment of a national Indigenous and human rights ombudsperson.
It is an honour to work with families and survivors, and it was one of the honours of my life to serve the National Inquiry into Missing and Murdered Indigenous Women and Girls as executive director.
I want to begin my comments by saying that we are in nothing less than a state of emergency. Our women, girls, two-spirit and gender-diverse people are going missing and being murdered in an ongoing epidemic of violence.
The work we do today is urgent. I am just a little over a month into my mandate, in the process of seeking guidance from families, survivors, Indigenous governments and organizations, but the evidence shows us that the existing human rights protection mechanisms are not enough and have not done enough. We are not talking about gaps; we are talking about chasms. So I will start with the most basic.
There is no category of complaint specific to Indigenous peoples. There is a failure to acknowledge Indigenous identity as grounds for human rights complaints not to mention recognition of the intersectionality of being female and Indigenous or being two-spirit and Indigenous.
Our existing mechanisms are limited in understanding, enforcement and protection of Indigenous rights, and none have the authority related to the United Nations Declaration on the Rights of Indigenous Peoples, also referred to as UNDRIP.
Second, there is a significant lack of trust in government and affiliated authorities. There is an understandable skepticism that these authorities will uphold our human rights after the residential and day schools, the Sixties Scoop, the -ld and Family Services, or CFS, system and, of course, the very crisis we are here to discuss.
There is a lack of information on how to access these mechanisms, from logistics if you live in a rural or remote community, to the significant resources, both time and also often money, needed to successfully file a human rights complaint.
There is a lack of timeliness, and that discourages many from filing a complaint when recourse can take not days or months but years. The luxury of time is for the privileged.
The existing mechanisms do not often reflect Indigenous peoples within their organizations. There is, quite simply, little representation and representation matters. As a result, the entities are most often not culturally safe or trauma-informed. There is often a lack of education on Indigenous issues and on Canada’s colonial history within government and affiliated authorities. The education systems have simply not prepared them, and while we need to build capacity within existing institutions and entities, that will not be enough.
Beyond that, there is a lack of specific knowledge and expertise on Indigenous rights within existing mechanisms. There is also the absence of monitoring, investigative and enforcement tools. For the few who make their way through the labyrinth of existing mechanisms, we need more than mediation. We need remediation and we need enforcement.
There can also be significant jurisdictional issues. One only needs to think of Jordan River Anderson from Norway House in Manitoba and the long road to Jordan’s Principle. We have need a mechanism that can deal with both federal and provincial or territorial rights violations. There is no federal ombudsperson.
Lastly, the existing mechanisms are inherently reactive and not proactive.
Racism and discrimination are entrenched in our colonial systems and structures, and there is no simple, effective, fast, free way for First Nations, Inuit and Métis peoples to address violations of Indigenous and human rights or treaty rights.
Family members have reinforced with me the need for independent, safe, confidential reporting mechanisms and that wraparound supports are needed. They have told me very clearly that they believe there has been little action and a lack of accountability.
For that reason, any new Indigenous and human rights mechanism has to have powers that bind — because it is evident that “encouragement” alone is not enough.
So, yes, there is room for improvement within our existing human rights protection mechanisms. And, yes, I am hearing that new Indigenous-specific human rights institutions are required to guarantee the fulfillment of Indigenous human rights. But, as I conclude my comments today, I am hopeful.
At the first national roundtable, convened by Canada on January 10, 2023, I saw Indigenous family members, survivors, elders and leaders and federal, provincial and territorial leaders come together to share their efforts and talk about collaboration.
There is nothing we cannot do if we do it together.
What we have before us is an opportunity to co-develop a new future. Thank you, senators for shining a light. I am deeply grateful.
We are a little over a month away from the fourth anniversary of the release of the national inquiry’s final report and Calls for Justice. Let’s end this state of emergency. Let’s honour families and survivors by showing them what we can accomplish before another year goes by. Families and survivors deserve nothing less than to have the Calls for Justice honoured.
Ekosani. Chi-miigwech. Thank you. I’m happy to answer any questions.
The Deputy Chair: Thank you, Ms. Moore Rattray, for that introduction.
I have a general question for you, and then the senators will have some questions. My first question is really this: Your work is so very important. What do you think the Senate committee can do to help you in your work?
I’m interested to know, as well, the timeline that you have set to make your report and any comment about some of the tough jurisdictional issues that you’ve mentioned earlier.
Ms. Moore Rattray: Thank you so much, senator, for your really good questions. First, in terms of what you can do as senators, I think this is a great start. You are using your power and your privilege to shine a light on this issue, and that is really important. Specifically, what you might look to do — and I did ask family members and survivors before coming here what they wanted me to say, because that’s the most important voice. They talked about a red dress alert, the critical importance of a red dress alert. Basically, the systems and structures are all in place, the mechanics, the technology is all in place, ready to go, and just how important that is, but with families setting the parameters and deciding when a red dress alert is sent out. That was one of the things.
Another big one is universal basic income as prevention, as something that can provide somebody with the funding to have the resources to be able to be safe, and that’s so important. That’s a big one, universal basic income.
The third thing that people talked about was the desperate lack of affordable housing that keeps people in circumstances that are unsafe, and the lack of places to go. We’re talking about traditional — sorry, transitional housing for — could be traditional too, but transitional housing for women, for children, for two-spirit people. That is so important. And also shelters. There are not enough shelters. Some of the shelters are — as I’m sure you will know — far overcapacity in this country.
Those are some of the very tangible things I can identify. You asked a couple of other really good questions. In terms of timeline, because I feel the urgency, because families and survivors have said this is very urgent, I’m working really hard. There are a number of meetings set up, and then I want to make sure that there is always a validation process, an opportunity to go back to families and survivors. Maybe I will briefly explain the process.
I have started my meetings, and I am continuing this phase now. I am meeting with families and survivors, Indigenous governments and organizations. After that, I’m going to be speaking with provinces, territories, Canada and various entities. After that, I want to go back to the families and survivors and say, “This is what is coming out, this is what I’ve heard. Is this what you’ve said? Does this make sense to you? What is right? What did I not get quite right? What needs to be adjusted?” And then to be able to come with something that families and survivors and Indigenous governments and organizations say is what they want represented. That process will take me to December of this year. So working flat-out to make sure that that happens. There will be interim recommendations and then a final report by December of this year.
That’s my goal. I have a little more time if I need it, but I don’t want to use that time because time is of the essence here. That is the answer to your second question.
In terms of jurisdiction, that’s a really big question. Another issue that I have heard in talking with Indigenous legal experts, families and survivors is choice. Is there the ability to select jurisdiction? Is there the ability to have an ombudsperson’s office that supersedes other jurisdictions that an Indigenous family member or survivor could choose to go to? That’s part of the architecture that needs to be worked out, and so I will be seeking brilliant minds to be able to have that conversation.
If we look at the example of the National Inquiry into Missing and Murdered Indigenous Women and Girls, that was every single jurisdiction in this country, all provinces, all territories, the Government of Canada, everybody signing on and working together, and what we need to do is nothing less than that. Thank you.
The Deputy Chair: Thank you.
Senator Coyle: Thank you, Ms. Moore Rattray, for being with us and for the work that you do.
I have two rather obvious questions, particularly given how you’ve described our existing mechanisms and the limitations thereof.
The first one is, as we know, Call for Justice 1.7 of the National Inquiry into Missing and Murdered Indigenous Women and Girls asked for the establishment of an independent national Indigenous and human rights ombudsperson by all governments, in partnership with Indigenous peoples, co-development, with authority in all jurisdictions, along with a national Indigenous and human rights tribunal. Can you comment on this and any progress related to that?
My second question is the following: Would you also be able to comment on what, if any, concrete actions the government has undertaken since the issuance of the Calls for Justice and related recommendations to reform the existing human rights framework in Canada and to make it more responsive to the rights and needs of Indigenous peoples.
Ms. Moore Rattray: Thank you for your really good questions.
Call for Justice 1.7 speaks to two points. It speaks to the creation of an ombudsperson’s office, and it also speaks to the creation of a tribunal. My mandate is the first half of that, around the creation of an ombudsperson’s office and what that would look like. What I’m hearing so far — and again, it is early days — is around the desperate need for both navigation and mediation services, for people to have some place to go that is safe and that they can find, that they know about, that exists in their community, or, at least, they are aware of it. That education piece is so important. There is lots I could talk about there.
The other part of that is when mediation doesn’t work and when it is not possible to resolve an issue, there is a dire need for the other half of the equation, which is a tribunal. While that’s not within the scope of my mandate, I believe what I am hearing is that a tribunal is so essential and so important. That’s the other half of it. That’s the enforcement, that is the remediation that does not normally or does not usually occur within the spectrum of an ombudsperson’s office.
In terms of the work that Canada and the provinces and territories are doing — when it comes to existing mechanisms, I understand that many entities and authorities are working hard to improve their services and to make them culturally safe, to make them all the things that they need to be, trauma-informed, representative of Indigenous peoples. But I do not believe that this will be enough. I think both have to happen. Thank you.
Senator Sorensen: Welcome, and thank you for being here with us today. I have to start by saying that I have much respect for the challenge of the work that the tribunal or the ombudsperson will need to do, working in our colonial world with municipal, provincial and federal governments and needing to work with all of them and get responses from all of them. I want to give a nod that this will, in fact, be challenging. My question is, how can we ensure that the human rights ombudsperson has teeth? What role, for instance, should the ombudsperson play in holding the government to account for the underfunding of Indigenous communities and services? What might that look like? The committee has heard from some witnesses who stated that they have faced significant roadblocks due to their inability to compel witnesses and documents, and particularly we had a long conversation about getting documents.
What kind of special powers will the ombudsperson need in order to make sure that they can accomplish some of these things that, to date, have been difficult, if not impossible?
Ms. Moore Rattray: Thank you so much, senator. I think you’ve really outlined the reason why this work is so important and why the establishment of this office is so important. In fact, the word “teeth” came up in the very first conversation I had with family members and survivors following the announcement of my piece of work. That’s exactly what they said: Whatever you do, it has to have teeth; it has to mean something. It can’t just be pretty words; it has to be more than pretty words. Lives are literally at stake.
From what I’ve heard from family members and survivors, we are absolutely talking about the need to be able to compel witnesses and documents. The way the conversations and research have occurred so far, that might be the role of a tribunal. Again, it is outside of my mandate, but that might be the role of a tribunal — the navigation, advocacy, conversations and the great ideas — because the knowledge is in the community. Women know, families know and two-spirit people know what they want and need. They talked about advocates working out of the ombudsperson’s office. They talked about some really great ideas like that and that the work of the ombudsperson would be around navigation, advocacy and mediation. Also, the tribunal, the other half of that, would be the “teeth,” the compelling of the witnesses, documents, et cetera.
It’s early days, but that’s what’s coming across so far to me. Thank you.
Senator Audette: I want to say thank you to all my colleagues for very important and good questions. Some of you mentioned the important work on — I don’t want to call it an issue but this emergency, if I can use your word. Thank you for accepting this journey because it’s going to be a historical journey, I’m pretty sure.
I was known, I want to say, at the national inquiry, as a person who is a too-far-ahead thinker, like 7 years or 10 years. Commissioner Robinson was always bringing me back, asking, “What about today?” But, still, it’s in my heart. It’s in my spirit.
Ms. Moore Rattray, do you have a discussion with Innovation 7 in mind, because they are so closely related, those two mandates? You were talking about “teeth” with Senator Sorensen — where the mandates will also be respectful for the Métis, First Nations and Inuit. We tend to put all Indigenous people in the same bundle when we have different protocols. Do you have some reflection on that?
Also, will there be something attached to legislation? I don’t see in your mandate that a foundation bas been proposed, but this was mentioned by families, survivors, our own Indigenous government and, of course, by the frontline organizations that save and walk beside the family members every day?
Ms. Moore Rattray: Thank you very much for your question, Senator Audette. You are absolutely right. There are distinctions, and those distinctions are so important to acknowledge and respect. There are many different nations. First Nations people are very different from coast to coast to coast, as are Métis peoples and Inuit peoples. I’m also very cognizant of the urban Indigenous reality. I am also very cognizant of two-spirit and gender-diverse people. I absolutely think that whatever is recommended — and I’m having some of those conversations literally in the next week or two — but whatever is recommended absolutely has to be respectful and encompass distinctions. That’s absolutely paramount.
In terms of your question about legislation, there will have to be legislation because this needs to be permanent. This ombudsperson’s office, or tribunal — if that’s the decision — will need to be properly funded and continue in perpetuity. Legislation is very important. That will perhaps be an opportunity for senators to be involved. Thank you so much.
Senator Tannas: Thank you for being here, and good luck with your work. It’s a lot.
I want to probe a little bit on two areas that are not clear to me. One is urban and reserve residents and the differences, if there are any, in the challenges that they have with their own governments, with Indigenous governments. What role would you envision, or is envisioned, for an ombudsman? It was quick out of our mouths to say provinces, municipalities, federal government. What about the Indigenous governments, particularly in the context over the next couple of years of something that I believe is unstoppable and which should not be stopped — the transfer of responsibilities, authority, money, to Indigenous governments? You just mentioned perpetuity. How do you see this transitioning in the course of the transitioning of power and jurisdiction to Indigenous governments? Can you talk about that — the past, present and future experiences?
Ms. Moore Rattray: Wow. That is a question. Regarding Indigenous rights and human rights, if we look at the orders of government that have not respected Indigenous and treaty rights and human rights when it comes to Indigenous peoples — those orders of government have been at the federal level and at the provincial and territorial levels. Do I think human rights should apply whether somebody lives in the community — which is how we would say on-reserve — or whether someone lives in an urban centre? Absolutely. But when I look at the nothing less than the genocide, at what has occurred, the perpetrators are the orders of government — Canada, the provinces and the territories. That’s where the focus of the conversations has been to date when it comes to the families and survivors that I have met with.
Senator Tannas: Of course, that would be the case, right, for the families and survivors. But as you look forward — and that’s your role, right, to be the person looking forward, not backwards — I just want to know, are we going to build a construct for something that is fading into the past and ignoring what will likely be the road block for an individual in the future?
I know it’s sensitive, but somebody has to be pragmatic when they are thinking seven generations ahead. And I am wondering, is that you? Do you see that as a segment of your report, of at least broaching the issue of who will compel Indigenous governments that are not respecting somebody’s human rights in the community? Who will be doing that? How will this all play into that? Because that’s likely to happen. It happened with the last three orders of government. Government is government.
Ms. Moore Rattray: I am early into my mandate. I’m certainly going to have full conversations with families, survivors, Indigenous governments, organizations, and, of course, Canada and the provinces and territories. Absolutely, I think everyone would agree that human rights, Indigenous rights and treaty rights need to be honoured, wherever you are living, but what, exactly, that should and will look like, it’s too early in my mandate to say. Thank you.
Senator Greenwood: Thank you very much for being here today. Thank you for the work that you do in taking on this large position.
I have a two-part question. You have already said some of the things, but I just want to understand. We have talked about human rights institutions. We have also talked about Indigenous-specific human rights institutions. If you were to give some advice — and you have already said some of these things — to existing human rights institutions, what are the key areas that you would see them working on to make it more effective for those they serve — First Nations, Inuit and Métis peoples in this country? I’ll leave you to think about that first part.
The second part of it — and this is an imagining question — if we did have Indigenous-specific human rights institutions and existing human rights institutions, what would be the relationship between them?
I’m also very curious how you are going to contain the mandate of the single ombudsperson in the future because it’s so large, but if you could respond to those. You have already addressed some of it, but if you could provide that advice.
Ms. Moore Rattray: Absolutely. Thank you. More really great questions.
I think your first question is around what existing human rights entities and mechanisms can do. I have touched on a few things. First of all, I think just reinforcing that community members need to know that they exist. In many cases they don’t. They are outside of the realm of the world within which we work on a daily basis. I think education, outreach, awareness, making those entities are easier to access, less intimidating, culturally safe, trauma informed, all of that good stuff needs to happen.
When you walk into a very intimidating environment. As an example, if you are walking into a human rights tribunal, or an ombudsperson’s office, I think being welcomed by somebody who looks like you, and making sure that there are Indigenous — First Nations, Inuit and Métis people — within those organizations informing those processes and what the experience is like when you are in there, is really important. There is a fair bit of work to do there.
In terms of the timeliness factor, many of the existing mechanisms and entities, as I understand, are not funded in a way that they are able to be timely. That’s the point that I made wherein if you have an urgent issue, you can’t wait. You want some response in days or weeks, even months, but not in years. That’s just impossible.
There are a lot of things that can be done. I also think that specific knowledge and expertise within those entities about Indigenous human rights, Indigenous rights and Indigenous world views that don’t currently exist is also important.
There are many wonderful people across the country working really hard every day to be responsive, and I sometimes think folks don’t have all of the tools that they need to be responsive. I think additional funding, additional supports and additional resources could be added there. Those would be the points that I can quickly touch on.
Your second question was around Indigenous-specific human rights and Indigenous rights mechanisms and how they would intersect with existing mechanisms. That is really one of the thorniest questions. I have absolutely been consulting with, in a very preliminary way and certainly in a deeper way in the coming months, around what that could look like. There are some legal tools that are possible that I’m exploring right now and that look promising, but really it’s a matter of jurisdiction. What families and survivors have talked about is wanting choice and being able to go to a place that meets their needs to get the help that they want and need.
In terms of the jurisdictional piece, there is no federal ombudsperson, as an example. That’s an easy case where there actually wouldn’t be any overlap or issue of figuring out who is doing what.
I keep coming back to the national inquiry, the first truly ever national inquiry in this country, with every single province and territory signing on and coming on board. I think that with the provinces and territories and Canada at the table right now — the first roundtable was held in January, and there are a lot of people who want to figure out how to make this work. There is a lot of goodwill. There is a lot of real dedication to this right now. People realize that we’re in a crisis. With willingness and some creativity, I’m absolutely sure that we can make this work.
Senator Audette: I want to say thank you to Senator Tannas for always asking questions about Indigenous futures and autonomous government. When we talk about First Nations, I’m coming from a place where my community was under the Indian Act. Of course, with the national inquiry, we understand that the root cause, of which the impact is still being seen today, is the imposition of the Indian Act and how we implement it in our communities.
I think it’s an important question if, in your work, we can find either a recommendation to further study or make sure that there is protection for Indigenous women, men and families. Again, I’ll speak to my nation as an example, the Innu Nation.
It can also be clear that if a woman wants to complain to her band office — I’ll use the Indian Act vocabulary — there is a space where she feels she is protected when going to the ombudsperson’s office. At the same time, that people understand the root cause. It’s not a Canadian act here, la loi canadienne; it’s the Indian Act that created that discrimination or complications. That is very important.
Would you also recommend in your report that any parliamentarians or senators who will have to debate and vote on a bill related to a nation or to a community, that we add the aspect of how to protect men and women? We have that responsibility, so we must prevent. It’s co-development, of course, with the nation or the community. The more recommendations we have on our end, we become responsible.
Ms. Moore Rattray: Thank you so much. That is a really excellent, critical and important point. Absolutely. Thank you.
Senator Tannas: You don’t want to create another chasm.
Ms. Moore Rattray: Yes. Absolutely.
The Deputy Chair: Ms. Moore Rattray, it seems to me that under the rubric of reconciliation, you’ve got a wonderful opportunity to really construct something that is effective and Indigenous, with a foundation of Indigenous cultural perspectives not constrained by colonial mechanisms. It’s a great opportunity.
Are you anticipating in your report suggesting the design, the mechanisms and the processes to make this an Indigenous-friendly institution and ombudsperson?
Secondly, you are anticipating that there would be legislation to create an ombudsperson based on the report that you are going to create, I assume.
I’ll just leave that there for you to answer that question.
Ms. Moore Rattray: Thank you very much. From the first meeting I had, I received really great suggestions about how this ombudsperson’s office could be a truly Indigenous — First Nations, Inuit, Métis and two-spirit — ombudsperson’s office. At the very first meeting after the mandate was announced, one of the grandmothers said, “Well, of course, we’re going to have to have grandmothers, elders and knowledge keepers as part of this, and we will have to think about how to make that an intrinsic part of what this ombudsperson’s office looks like and is about.” Of course! People — family, survivors, Indigenous governments and Indigenous organizations — have great ideas, and I want to capture as many of those as possibilities and also capture the ways we can move forward in a really decolonized way.
We don’t want to just adopt — I think that’s what’s happened in some parts of the country with Child and Family Service legislation, as an example, and devolution. To your point, how do we create something that is truly and authentically ours as opposed to something that is colonial, while still working within this modern nation state called Canada? It is definitely a balance, and good legislation will be part of finding that balance.
Senator Coyle: Just on this point, one of the things we find ourselves trying to balance — your point about balance — when we do receive legislation of this sort is how much has to happen before we see that legislation versus how much needs to happen once the legislation is in place. It’s a constant tension, frankly, particularly when we are dealing with legislation that absolutely needs to be appropriate in meeting the requirements of a call to action like this and the needs of the diversity of the Indigenous peoples in Canada.
I’m just curious what your take would be, given your responsibility, as to a timeline. You talked about the urgency at the outset. How much of this very important work you are doing — and as you said, people have already got lots of great ideas on what this should look like. What does that balancing act look like with the work you are undertaking now, hopefully leading up to the development of an important, solid piece of legislation? What happens once the legislation is in place? Because we know there is always more work to be done at that point. Could you speak to that point for us? I think it would really help us.
Ms. Moore Rattray: Absolutely. Thank you very much for your good questions.
To your question about time, I think we need enough time to do it right but not a second longer. It’s so urgent. I think legislation that is co-created is going to be the best legislation. There are some brilliant First Nations, Métis and Inuit legal minds in this country that can be brought together in a really different way of working — in a way that is really reconciliation in action. If those brilliant minds came together for a month or for a few weeks or for a legislative boot camp — I don’t know — and sat together, I truly believe there is nothing we cannot do. It would be the most excellent, beautiful piece of legislation because these family members and survivors — and some of them are the lawyers — have been working and focused in this area of work for literally years and decades. The knowledge is there. I believe strongly that the knowledge is in the community. The knowledge is already there, and all mainstream organizations need to do is tap into it.
Therefore, I think it’s a matter of sitting down and just rolling up sleeves and literally getting to work in drafting that. I have a bit of familiarity with drafting legislation from the perspective of somebody working for the province of Manitoba at one point in time, and I know it can take a really long time. But I also know that when urgent things need to be done, they can be done very quickly, effectively and efficiently.
I know that’s not a precise date or month. I wish I had that for you, but I just go back to “enough time to get it right but not a minute longer.”
The Deputy Chair: Ms. Moore Rattray, you are anticipating a lot of cooperation and constructive help in your consultations. I gather you think you are going to get that, and you’re quite excited about the opportunity.
I have a couple of questions. The other half of the Call for Justice 1.7 is the creation of a tribunal. Are you going to be constrained in making any comment about the construction of that tribunal?
My other question is this: You were integral to creating the Calls for Justice in your prior role. Call for Justice 1.10 asks for the creation of a mechanism to fundamentally monitor and report on the implementation of the Calls for Justice. Have you had any discussions with anybody about that, or do you have any thoughts about how that particular institution or mechanism should be created?
Ms. Moore Rattray: I should be really clear that the Calls for Justice were developed by the family members and survivors and the commissioner. I was privileged to be a small part of that process as the executive director, but absolutely, the Calls for Justice are what families and survivors said to the commissioners. That’s how they came to life — just to be clear on that.
In terms of my mandate, my mandate is not the tribunal. My mandate is the ombudsperson’s office and also the evaluation piece — having that mechanism to evaluate those programs and services that are being delivered by Canada, the provinces and the territories and what that looks like. That’s a big mandate to get done by the end of the year. That’s my mandate.
However, family members and survivors — and I have many more to speak with — are already speaking about the tribunal aspect. They are already speaking to me. While that is outside of my mandate, I can certainly reflect where they have specifically made comments to me about the tribunal. I can reflect that. I would be remiss if I didn’t reflect that in my interim and final reports.
In terms of Call for Justice 1.10, which is really about holding governments, plural — also institutions and entities — accountable for the Calls for Justice, that’s a different piece of work. It’s related, absolutely, but it’s a different piece of work. That piece of work has been done and is, I understand, being done by an organization by the name of Innovation 7.
Thank you.
Senator Coyle: You have made it very clear that your mandate is on the issue of the Indigenous human rights ombudsperson. Are we looking at one or two pieces of legislation? That’s just the simple question that pops into my mind here. You have been very clear that critical to the role of ombudsperson will be its counterpart — a tribunal that will be the enforcement instrument — with, as you say, the teeth to respond to this very important Call for Justice. Could you speak to whether you would see them coming together in one piece of legislation, or not? What would your recommendation be on that?
Ms. Moore Rattray: Thank you very much, Senator Coyle. I think I am too early in my mandate to be able to speak to that appropriately, and I try to say less as opposed to more when I’m unsure. I know timeliness is really important, but so is getting it right. I’m going to leave that, but thank you.
Senator Coyle: Fair enough. It’s just sparking all kinds of questions.
Ms. Moore Rattray: I have a lot as well, absolutely. This is a process. Thank you.
Senator Coyle: Thank you for that.
The Deputy Chair: Ms. Moore Rattray, we’re now at the time of the meeting for you to wrap up and say anything that you want to reiterate or any other comments you might have for the committee. You have ten minutes.
Ms. Moore Rattray: My goodness, if I had known I had ten minutes, I would have had a PowerPoint — no.
I want to thank you all for your time, your attention and for shining a light on this really critical and important issue. All of the Calls for Justice are important, essential and critical, but this is really one of the foundational pieces. If we can create an ombudsperson’s office, and do it right, that sets up a lot of the other Calls for Justice for success. It’s important and time sensitive.
One of the quick pieces that I touched on but we didn’t really have a chance to get into is around the evaluation piece and having an entity — having the ombudsperson’s office — able to really evaluate those services and programs.
Most programming and services for Indigenous, First Nations and Métis people in Canada are not delivered by Indigenous people. We can more effectively and efficiently use our resources if we are delivering those services to ourselves because we know what is needed. There are examples where non‑Indigenous organizations receive funding to support Indigenous peoples and then go to Indigenous organizations in the same community and say, “Hey, can you help me out? We don’t have any Indigenous people, we have just received this funding.” There are some issues with that.
If the existing mechanisms, systems and structures were working, we wouldn’t have an 11-year and growing gap in life expectancy in Manitoba between First Nations and all other citizens in Manitoba, and there are similar statistics across the country. You have a greater chance of growing up as a child in poverty in my territory than you do of graduating from high school in 2023. We wouldn’t see 75% of unsheltered people in Winnipeg being Indigenous people, or 81% in Brandon, our second-largest people — Indigenous people — homeless and unsheltered in a country as prosperous as Canada. And 94% of the unsheltered population in Thompson in northern Manitoba are Indigenous people. If our existing systems and structures were working, if somebody were holding those systems and structures accountable, we wouldn’t have those devastating statistics. That’s why I say this work is urgent.
There was another beautiful relative found last week in Manitoba in one of our neighbourhoods along the water. The vigils are weekly, and sometimes more than one a week in my community. I know there are similar situations across this country.
We need to work together, all of us, Indigenous and non-Indigenous. This is really what reconciliation is about. It’s about taking the more than 2,000 families and survivors who shared the worst moments of their life to be able to create the final report of the National Inquiry and share their truths with commissioners such as Senator Audette, and be able to turn that into something meaningful, because there is nothing more devastating than the loss of a beautiful life if it doesn’t mean anything, if change doesn’t happen.
I urge you, in your positions of power, to do everything you can to make this change, to make this happen. I know that there are so many people who want to make this happen, but it’s a matter of keeping focused attention on it. This is as urgent as anything else going on in the world right now, and this is the most important issue, I believe, in this country.
I thank you so much for your time and attention and for starting in such a beautiful way, by smudging, by making this space a sacred space. It is a sacred space. You are all in it. Thank you, and meegwetch.
The Deputy Chair: Thank you very much for your testimony here today, Ms. Moore Rattray. Good luck to you in the work that you are doing. If there is anything that you think should be brought to the attention of the Indigenous People’s Committee of the Senate during the course of your work, please feel free to contact the clerk and we’ll make the space to hear you on any issue that you think would be of importance for us to hear. All the committee members here join me in saying that we really wish you good luck in your work. It’s so important. Thank you very much for coming.
Ms. Moore Rattray: Thank you so much.
The Deputy Chair: Colleagues, on our second panel, we have from the Canadian Human Rights Commission, Charlotte-Anne Malischewski, Interim Chief Commissioner and Chief Executive Officer; Valerie Phillips, Director General of Complaints Services; Tabatha Tranquilla, Director of Policy, Research and International Relations.
Thank you for joining us here today, panel members. Ms. Malischewski, you have five minutes to give an overview in your opening remarks, and then we’ll invite senators to ask you and your colleagues questions. Thank you.
Charlotte-Anne Malischewski, Interim Chief Commissioner and Chief Executive Officer, Canadian Human Rights Commission: Good morning, honourable senators. Thank you very much for the invitation to appear before your committee.
I am joined here today by my colleague, Tabatha Tranquilla and Valerie Phillips.
We are humbled to gather on the traditional, unceded territory of the Algonquin Anishinaabe Nation who have nurtured and still nurture these lands and waters now known as Ottawa.
Improving the protection and promotion of human rights for Indigenous peoples have long been at the heart of the work we do at the commission. We have seen firsthand how access to a meaningful human rights process can be a powerful agent of change. We are also mindful of the gaps and barriers inherent in any colonial-based human rights system. One of the biggest barriers was included in our founding legislation. From the inception of the Canadian Human Rights Act in 1977, a clause known as section 67 prohibited people from filing a discrimination complaint related to any matter under the Indian Act. It meant that hundreds of thousands of First Nations people were barred from filing discrimination complaints about rules and systems that influenced their daily life. For years, we called for change and finally, in 2008, Parliament repealed section 67.
What followed over the next few years was a dramatic influx of new and complex complaints, many previously barred by section 67. Other cases resulted from greater awareness among Indigenous peoples of the human rights system, thanks in large part to the outreach work carried out around the appeal.
Since then, over 15 years, we have litigated and represented the public interest in complex cases that have raised systemic Indigenous human rights issues. For example, the Indian Act registration and band membership; the right to pass on one’s status to one’s biological children, adopted children or grandchildren; the right to adequate housing on reserves; the funding of First Nations police services; the funding of First Nations education; the safety and health of Indigenous women in prison; and, perhaps most notably, the rights of First Nations children to live safe and secure with their families.
Through it all, we kept learning, from the cases, from Indigenous peoples, from communities and from advocates. Between 2013 and 2014, the commission went across the country meeting with Indigenous women and the organizations who support them. In our report, Honouring the Strength of Our Sisters, we documented 21 specific barriers to human rights justice for Indigenous women articulated to us by the women themselves. Barriers such as cultural differences in world views, language, jurisdictional and legal confusion, lack of legal support, power imbalances and fear of retaliation.
We continue to make improvements to our processes, and these improvements are ongoing. The reality is that no single organization can ever be the perfect model, the perfect path to justice. A society evolves; so must human rights protections. Which is why, today, we are excited to be talking about another big step forward to improving human rights for Indigenous peoples in Canada.
Let me be clear. The Canadian Human Rights Commission fully supports the creation of human rights mechanisms for Indigenous peoples in Canada. We feel that any new independent mechanisms that advance decolonization and self-determination are welcome and long overdue.
With that in mind, we have three main points for the committee’s consideration of this idea. One, that any new Indigenous human rights mechanisms must be developed and led by diverse Indigenous peoples and for diverse Indigenous peoples; two, that any new mechanisms must be designed to protect and promote the intersectional rights of Indigenous women in diverse populations, especially those in vulnerable situations; and, three, any mechanisms must have the power to address and remedy systemic issues.
To my first point: It is vital that any new mechanisms be developed and led permanently by diverse Indigenous peoples for diverse Indigenous peoples. This must include ensuring the mechanisms have sufficient resources and supports guaranteed to fulfill their mandates; ensuring the mechanisms are sufficiently independent from any government, federal, provincial, territorial, municipal and Indigenous; and ensuring that the mechanisms are easy to access, use and produce meaningful solutions and remedies.
To our second point for this committee: The commission believes it is equally vital that any new mechanisms protect and promote the intersecting human rights of Indigenous women and diverse populations, including those in vulnerable situations. Any new mechanisms must ensure that access to human rights justice is safeguarded for First Nations, Inuit and Métis women who have repeatedly had to fight against existing systems to have their rights and the rights of their children recognized.
In addition, any new mechanisms must address the rights of First Nations, Inuit and Métis people with disabilities, two spirited and other LGBTQQAI+ communities, Indigenous children, youth and elders and those living in poverty or who are experiencing homelessness. Any new mechanism must include all these voices in its development and in its operation.
This brings me to my final point: It is critical that any new mechanism has the power to address and remedy systemic issues. Meaningful and lasting change must be the ultimate goal of this pursuit.
I will conclude by saying that as various options are put forward, the commission will be pleased to share any expertise we can provide. We look forward to playing whatever role is envisioned for us by Parliament and Indigenous peoples. Thank you. We look forward to your questions.
The Deputy Chair: Thank you, Ms. Malischewski. You did some work and came up with the identification of 21 barriers that face Indigenous women in Canada, based on wide consultations. How successful have you been in implementing or diminishing those barriers? I would also like you to comment on the need for resources, because the lack of resources is probably directly related to the lack of having an Indigenous-led process to deal with breaches of the Human Rights Act. I wonder if you could speak to that.
The three issues you have identified are also important. I think the Canadian Human Rights Commission has a unique perspective on this, because I believe you would have suggestions and ideas about each one of those issues, particularly on the systemic issues and finding systemic remedies and mechanisms to support that.
Could you outline your comments on that overall question I have identified?
Ms. Malischewski: Thank you very much. Certainly, we have done work to identify those barriers and have been doing work to address them. I would be very happy to talk about the work that we have done.
I do want to start, though, with a point that I think is important and is at the heart of how we see all of this: Existing mechanisms must constantly evolve and improve, and we must do that at the commission.
That being said, human rights complaints and judicial processes are critical tools in driving change, but the wheels of justice turn slowly, and our experience has shown that our current system still has significant gaps and barriers and can’t address the full range of human rights for Indigenous peoples.
The Canadian Human Rights Act is but one of many instruments to drive change and promote equality in Canada, and we believe that meaningful change for Indigenous peoples in Canada is going to require action that exceeds the scope of the Canadian Human Rights Act. That’s why I wanted to start with this point, because Indigenous people have called for Indigenous-specific mechanisms. I want to be clear from the outset in answering your question that we support them in that.
On the question of what we have done, certainly we’ve had some great successes in terms of addressing barriers, and as the special ministerial representative alluded to — you did as well in your question — there is no doubt that with more funding we could do more. I certainly won’t deny that. I would welcome that. There have been times in the organization’s history when we’ve had no dedicated funding that allowed us to carry out specific work, for example, around the National Aboriginal Initiative, and it was five years of funding for that, which did sunset.
In terms of the work that we’ve done to address barriers, it is widespread across the organization, everything from representation among our staff, training for all staff, changes to our processes — that’s part of modernization — but also specifically addressing our system in light of concerns we have heard and also around assistance in navigation. That is around our complaints mechanism, but we also did a lot of work in litigation and in our advocacy work.
I will turn to my colleague, Ms. Phillips, on the complaints mechanism, litigation work and how we addressed barriers there.
Valerie Phillips, Director General of Complaints Services, Canadian Human Rights Commission: Thank you for your question. I am assuming, Senator Arnot, that you are referring to our report, Honouring the Strength of Our Sisters.
I will start with legal barriers. The first is our Constitution itself, the division of powers under sections 91 and 92, which was not a construct of Indigenous communities. That division of powers is a significant barrier to accessing human rights justice in Canada.
The commission intervened at the Supreme Court of Canada in the NIŁ TU,O Child and Family Services case, specifically to speak to the court about the barrier that this creates in accessing human rights justice.
We work with the Canadian Association of Statutory Human Rights Agencies, also known as CASHRA, and we developed in 2014 a best-practice guide that is based on Jordan’s Principle. The idea is that the first commission that receives the complaint accepts it and works with the other jurisdiction to try to reserve the issue, because there are a lot of grey areas of Indigenous organizations, particularly on-reserve.
I believe you are speaking with Mr. Jeremy Matson tomorrow, and I suspect he will speak about this. As soon as the rights were extended to Indigenous peoples, after the repeal of section 67, legal challenges started. The first was whether or not the Canadian Human Rights Act could be used to challenge sections of the Indian Act, specifically, the registration sections. This case went all the way to the Supreme Court. Again, commission lawyers were litigants in that action. It was found that only the Charter could be used to challenge non-discretionary laws, and that the passage of laws by Parliament is not a service within the meaning of the Canadian Human Rights Act. That is another barrier, and it has now been extended to Indigenous laws as well, particularly around election codes. There has been a decision that the Canadian Human Rights Act cannot be used to challenge election codes.
Next is the scope of the Canadian Human Rights Act. You’ve heard from other witnesses that it does not cover all of the rights envisioned in the UN Declaration on the Rights of Indigenous Peoples.
Costs are precluded currently under the Canadian Human Rights Act. That poses a barrier to a litigant who wants to hire counsel. They cannot get legal costs awarded to them at the end of the process.
We have a closed list of grounds under the Canadian Human Rights Act, unlike the Charter, where analogous grounds are possible.
You’ve heard from your previous witness about Indigenous identity, and some provincial codes do include that. We’ve also heard about Indigenous residency, people who are living off-reserve and what access to services and benefits they receive.
In terms of the Honouring the Strength of Our Sisters report, we did work with our CASHRA partners because education falls under provincial and territorial jurisdiction. The commission co-developed a number of positive tools for Indigenous communities. One was a plain-language guide on understanding rights under the Canadian Human Rights Act. One was a guide for First Nations respondents in what to expect when responding.
We also developed a tool kit for communities who wanted to develop their own dispute resolution mechanism and to try to deal with human rights within the community. Now, the commission does not have grants and contributions authority and could not fund those programs, but when we were developing that tool kit, we worked with a number of different communities and tried to co-develop an example of what a community-based dispute resolution mechanism would look like.
The Deputy Chair: Thank you very much.
Senator Sorensen: I’m sitting here thinking that I have been a senator for a year and a half, and I have come to the conclusion that the greatest gift of being a senator is the education we get to receive on so many diverse topics at committee, particularly from our witnesses. So thank you very much for everything you’ve had to say today. I’ve just learned so much in those 10 minutes.
Good news, Ms. Phillips; I am probably going down a bit of the same road, so you may get to elaborate even further. First of all, does the Canadian Human Rights Commission have jurisdiction over activities within First Nations communities? I think I heard yes, but I will have you elaborate on that. What I am asking is if there are jurisdictional issues that affect the ability of Indigenous people on-reserve to seek redress for human violations. How does the commission assist with lodging complaints and in navigating the process?
Ms. Phillips: Thank you for the question. Yes, jurisdiction is a huge barrier, particularly for Indigenous people in Canada. Does the commission have jurisdiction over Indigenous communities? I think that’s a complex answer.
Senator Sorensen: Okay.
Ms. Phillips: I think Indigenous peoples have inherent jurisdiction in Canada. Section 35 of our Constitution seeks to protect those rights. Unfortunately, in order for a lot of those rights to be realized, they have to be litigated through the Supreme Court, so the full content of those rights is not clear, although the UN Declaration on the Rights of Indigenous Peoples is certainly helpful in unpacking those.
If you look at the Constitution just very strictly, the Indian Act is federal legislation, and any services or benefits that are created under that technically fall within federal jurisdiction. However, as I mentioned that case of Jeremy Matson and Mr. Andrews that went to the Supreme Court of Canada, it was made clear that if it is non-discretionary law like section 6 of the Indian Act, which is the registration provision, the Canadian Human Rights Act cannot be used to challenge those sections.
We did originally focus on First Nations communities because section 67 was about the Indian Act. We focused primarily, but our work has expanded. On reserve, there are retail stores, gas stations, health services and schools. All those kinds of services are normally under provincial or territorial jurisdiction. There has been litigation for years about when it falls under federal versus provincial or territorial laws.
In terms of how we resolve this, we adopted that best practice guide with CASHRA, and we work closely with our provincial and territorial colleagues to try to take that burden off the back of individual complainants to resolve. We try to take that on. Our lawyers or intake people will call or email each other and try to resolve whose jurisdiction it is. We always encourage complainants to file in both jurisdictions if it is unclear.
Senator Sorensen: Thank you.
Senator Coyle: Thank you very much. As my colleague Senator Sorensen has said, it is such a privilege for us to have you with us and to learn from your valuable experience. Thank you for the work that you do with the Canadian Human Rights Commission. It is important to all Canadians.
I was happy and not surprised at all to hear your very clear endorsement and support for there being a national Indigenous human rights tribunal and your very thoughtful points on the various considerations that you feel are critical for the success of that without being in any way imposing or prescriptive in what you are recommending.
I was very interested in everything you had to say, but I would like to probe a little bit with your third point so that I can understand it further, recognizing, of course, that you are not trying to impose or influence, but you are identifying areas that you feel are very important to the success of such a tribunal. Obviously, your first point is that it be led by Indigenous in all diversity and that this will be accomplished.
I do want to understand your points of view wherein this tribunal would have the mandate, power and authority to address and remedy systemic issues. Did I hear that correctly? I would like, if you could, to go a little deeper into both why you feel that is important and how you think that could be undertaken.
Ms. Malischewski: Certainly. I think my colleagues would have more to add to this.
I would start by emphasizing that we know that the kinds of human rights mechanisms that currently exist — and we are certainly an example of it — put a fair burden on individuals or their representatives to bring complaints forward. The way in which parties bring cases through our complaints mechanism to the Canadian Human Rights Commission, and similarly at the province level, does require them to articulate the issues and to identify the ways in which they fall within our purview under the Canadian Human Rights Act.
We have taken it upon ourselves to really lean into our ability to work with parties to flesh out the issues and to identify systemic issues where the parties themselves may not have done so. That’s one of the things that we, as the commission, a screening body, is able to do, which is a little bit different from some of the other models that you may be familiar with at the provincial level, which is sometimes referred to as direct access, so they are just a tribunal.
In terms of what it looks like for systemic issues to come before us at the Canadian Human Rights Commission, I think the big case in the news these days around child family services is a great example of what can be accomplished when incredibly dedicated advocates like Cindy Blackstock make use of this mechanism. We have certainly been putting tremendous resources as the commission behind that litigation as well.
I think that’s a good example of the possibility of addressing systemic issues even in this more individual complaints mechanism model. I would point to that as a shining example, but, of course, you’ll know how long that case has been taking and how resource-intensive it has been. That’s also part of the story and part of what ought to be learned from that.
Our work at the commission is also quite a bit broader than just a complaints mechanism. On the advocacy side certainly, we are looking at systemic issues. I’m sure my colleague Tabatha can speak to that. I might turn to her on that particular piece first.
Tabatha Tranquilla, Director of Policy, Research, and International Relations, Canadian Human Rights Commission: Sure. Thank you for the question. This is a wonderful discussion so far.
One limitation of the system — and this is in no way unique to the Canadian Human Rights Act — is its inability to effectively deal with violations of economic and social rights. I know that’s something you’ve heard about from a number of witnesses, including Ms. Moore Rattray this morning.
When we are talking about economic and social rights, like the right to an adequate standard of living, housing and food security. These are fundamental human rights, and without access to these, our other rights really have very little meaning. Yet Canada’s approach to the fulfillment of these rights has traditionally been through the creation of policies and programs to provide funding or government benefits to address these. They are not generally justiciable in our legal processes, and there are no available remedies for violations of these rights.
When we speak about needing to grapple with the issue of how a new mechanism might be able to address and remedy a full range of human rights violations, this is something important to keep in mind. Certainly, as the commission, we are able to conduct advocacy in this area, and we do, but harkening back to Ms. Moore Rattray’s testimony this morning about needing some more teeth, I think that’s an important thing that needs to be considered in any future legislation.
Senator Coyle: Thank you. Very helpful.
[Translation]
Senator Audette: I will speak in French, as there are complicated words to say in English; I’m certainly not a lawyer, but I am very passionate about Indigenous women’s rights.
Thank you very much for your presentation, and thank you for referring to a 2013-14 report to which many Indigenous women’s organizations contributed, and which addresses the 21 barriers. Thank you for mentioning it.
I have a first question that you don’t need to answer today, but if you had a tool or a table for the average person, like myself — What is doable or not doable if I am an Indigenous woman and I want to file a complaint within my community or outside of it? That’s something that could happen in the next few weeks. I’m a visual person, so that would help me understand. The reason is that the Indian Act is federal, but registration, to my mind, is federal too.
You’re telling me that there’s something I can’t challenge. Not that I can’t challenge it, but I can’t knock on your door. I would like to understand that. Here’s why. Jurisdiction, whether it’s federal, provincial or Indigenous governements — In Quebec, there is a law that says that only French will be honoured and respected. I understand, I am half Quebecer. However, there are plenty of Indigenous nations that are still very much alive.
When we talk about jurisdiction, how can we suggest to a future ombudsoffice and to a future Indigenous tribunal the quickest, most important and best ways to ensure that you are protected with an Indigenous entity? Don’t tell them the same thing as the other side: “I don’t have the power, I don’t have jurisdiction over this, go somewhere else.” Because there is nothing else after that.
If you have any examples that you can provide later or share with us about the jurisdictional complexities, if you know of any successes in Canadian cases or with provinces that can be used as examples for the exercise taking place for an Indigenous tribunal and an Indigenous ombudsperson’s office — There’s an Indigenous language commissioner for Canada who says he can’t interfere with provincial law. This has a first-hand impact on my [Indigenous language spoken]. So we don’t come up with that — Thank you.
Ms. Malischewski: Thank you very much for the question. We would be happy to look into this request.
It would be quite a challenge, I must confess, to produce this in a table. It might be complicated, but it will give you an idea of all the complexities and where things are clearer and where they are less clear.
At the commission, we truly believe that it’s very important for there to be a good relationship with any new mechanism that is created. It will be very important to talk to each other, to make sure that the creation of other mechanisms does not make life more complicated for people. Instead, it helps to serve people in a way that existing mechanisms don’t. It’s about being able to do more and giving choices to Canada’s Indigenous people. It will depend on how this all plays out and precisely what mechanism is created. Jurisdictional issues will certainly be very important. It will be a major challenge, and it will be our challenge and our responsibility to work together to ensure that we do our best to provide people with access to the mechanism of their choice effectively and as simply as possible.
You mentioned the issue of Indigenous languages. I can think of something else that might be helpful, just to understand what we did at the commission. We prepared resources in Indigenous languages, to make sure that people who come knocking on our door understand the services that we provide in a language they speak.
[English]
Senator Audette: If I may, chair, I just want to clarify. When I mentioned the Commissioner of Indigenous Languages, it’s the one under the Indigenous Languages Act, not your office.
Ms. Malischewski: Okay.
Senator Audette: We knock on his door or that door, because the Quebec government legislation will have a huge impact on Indigenous people there, and the response was, “Sorry, I don’t have jurisdiction.”
Ms. Malischewski: Thank you.
Senator Audette: I want to make sure that we don’t take that same route in this exercise.
Thank you.
Ms. Malischewski: Yes, absolutely. Perhaps I might turn it over to my colleague Valerie Phillips on that really important question around, as I understand it, how we avoid this jurisdictional tug-of-war that might exist in the creation of a new mechanism.
[Translation]
Ms. Phillips: Thank you for the question. I will clarify something in English.
[English]
Indian Act registration is federal jurisdiction. It’s that the Canadian Human Rights Act cannot be used to challenge it. The Canadian Charter of Rights and Freedoms is the only instrument that can be used to challenge it, which is a court process and, some would say, much more onerous —
[Translation]
However, it must also be said that this process remains federal as well.
[English]
In terms of how we navigate the different jurisdictions between federal, provincial, territorial and Indigenous, our Constitution is the barrier, and so there is not an easy answer to that.
Ideally, and this is why we have CASHRA, or the Canadian Association of Statutory Human Rights Agencies, in terms of the federal commissions, is so that we have a place, at table, to come together and talk about overlapping issues, issues of interest and share resources.
I think in what’s being created, it would be helpful if there were some kind of national council that would allow for that kind of exchange and removal of barriers.
Senator Audette: Thank you very much.
Senator Tannas: Forgive me, but I just want to make sure I understand.
You keep mentioning the word, “mechanism.” Are you a mechanism? Is it fair to say that you are the mechanism, and you are not trying to somehow parse the idea of an Aboriginal tribunal, right?
Ms. Malischewski: Absolutely, and I think the reason we have been using the word “mechanism” is really to have the broadest sense possible, because we don’t necessarily know what Indigenous peoples will want this to look like.
Call to Justice 1.7 does have some parameters, but we wouldn’t want to be prescriptive. And sometimes when we use terminology like “commission” or “tribunal,” it brings to mind these mechanisms that already exist, and this is really an opportunity to think beyond the colonial construct.
It may, ultimately, be that the choice is that it be called a commission, that it be called a tribunal, but what I think we would put the emphasis on what that mechanism does and how it serves people, rather than what it’s titled.
Certainly, we don’t have any opinion on that.
Senator Tannas: You also mentioned, “choice.” Are you suggesting that if this mechanism was established that you wouldn’t back out, that you would somehow say, “Well, you could come to us,” or you could go to them?
I’m from the business world. A lot of this is up in the air for me, so I just want to make sure, because some day we are all going to have to stop talking and start doing, and I want to make sure that I understand what the goal is.
Do you see a world where an Indigenous person could decide which avenue they would like to approach about their complaint, if it’s with an Indigenous government, as we move down the continuum of time, or they still might come to a colonial construct to get their problem sorted out and that you would have some kind of jurisdictional ability to say to an Indigenous government, “You must do X.”
Is that how you see it?
Ms. Malischewski: Thank you very much for the question.
I would start, perhaps, by explaining that from the perspective of what currently exists, there are certainly some choices that already exist. There is the choice to go to a commission federally or to a tribunal or a commission provincially. There is the choice to go to court. There is the choice to find remedies within your community, to avail yourself of alternate forms of dispute resolutions.
Choice is something that does exist to some degree already. Certainly, we would anticipate that would continue to exist.
The question in terms of how the commission or the commission plus tribunal model under the Canadian Human Rights Act might interact with a new Indigenous mechanism really depends on what that new mechanism looks like and what it is empowered to do. Whether it is empowered to do some of the same things the Canadian Human Rights Act empowers us to do now, and then there would be perhaps concurrent jurisdiction — so choice in that respect — or whether it pulls out of the Canadian Human Rights Act certain powers and responsibilities and places them elsewhere.
At the moment, we certainly do receive complaints from Indigenous peoples. We certainly do receive complaints against the federal government, which is sort of the largest respondent in these kinds of complaints, but also against Indigenous governments as well.
In terms of the question around choice, we have certainly heard from our engagements that choice is desired. From our perspective, the most important thing is that Indigenous people are able to choose their path forward. If, ultimately, the new mechanism that is created does create some form of concurrent jurisdiction, then the responsibility — as I alluded to earlier — will be on us to ensure that that’s as seamless as possible.
The Deputy Chair: Are there any other questions by the senators on any of the issues?
Thank you very much, witnesses, for coming here today. It was really heartening to hear the three points that you have raised, and your idea of cooperating and working with the development of, perhaps, a new Indigenous human rights tribunal. It’s very informative.
I appreciate what you are doing. Your expertise could be very helpful. As we all know, the overlapping jurisdiction is one that has to be worked out, but it has to be done cooperatively and collaboratively. That’s the spirit that will get to a good result. I am happy that you are putting that forward.
Are there any other things that you would like to say before we wrap up this meeting?
Ms. Malischewski: I would focus on a thank you to all of you for undertaking this important work, and an invitation to please reach out to the commission should you feel that our experiences or expertise might be of use to this committee.
Today, we have had the opportunity to share with you just a little bit of what we’re doing. We certainly know there is a lot more work for us to be doing as well. We are committed to doing that work, to ensuring that we are best serving Indigenous people in Canada within the framework that we operate in.
Also, we do quite a bit of work on the international scene. Should there be questions that you might have about how this might interact, these new mechanisms might exist on that level, that would be something we could speak to.
Certainly, there may be other issues that come up from other witnesses as you continue your inquiry. I would really emphasize to you the three points we made during our speech at the outset that it’s really important to us that this be Indigenous-led and operated, and that it really serves the diversity of Indigenous peoples.
The mechanisms that we currently have at the federal level, and across Canada, simply aren’t enough to address the full range of human rights issues that Indigenous peoples face. This is a welcome opportunity to start to address that really important issue.
Thank you very much for the opportunity to be here and for your questions this morning.
The Deputy Chair: Thank you very much to the witnesses.
Senator Audette: Yes. I would like to have a few minutes with the senators to talk about an initiative related to one of the comments that the first witness mentioned.
The Deputy Chair: Thanks very much. We’ll go in camera to have that discussion.
Thank you to the panellists.
(The committee continued in camera.)