THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, November 21, 2023
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 9:01 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: Honourable senators, I would like to begin by acknowledging that the land on which we gather is on the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation and is now home to many other First Nations, Métis and Inuit Peoples from across Turtle Island.
I am Mi’kmaw Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the Chair of the Standing Senate Committee on Indigenous Peoples.
I will now invite committee members in attendance to introduce themselves by stating their names and province or territory.
Senator Arnot: Good morning and thank you. I’m David Arnot, a senator from Saskatchewan.
Senator Prosper: Good morning. My name is Senator P. J. Prosper from Nova Scotia, land of the Mi’kmaq people.
Senator Coyle: I’m Mary Coyle from Antigonish, Nova Scotia, Mi’kma’ki.
The Chair: Thank you, senators.
Today we are continuing our study into the effectiveness of the Canadian Human Rights framework in the promotion, protection and realization of the rights of Indigenous Peoples. Specifically, we are considering whether existing mechanisms could be improved or whether new ones are required, including Indigenous specific.
I would now like to introduce our witness from the United Nations Special Procedures of the Human Rights Council, José Francisco Calí Tzay, Special Rapporteur on the rights of Indigenous Peoples. Wela’lin. Thank you, Mr. Tzay, for joining us today. It’s great to see you again. I now invite Mr. Calí Tzay to give us his opening remarks of approximately five minutes, which will be followed by a question and answer session with the senators.
José Francisco Calí Tzay, Special Rapporteur on the rights of Indigenous Peoples, Special Procedures of the Human Rights Council: Thank you, Mr. Chair, honourable members of the Senate committee, Indigenous Peoples’ representatives, ladies and gentlemen.
I would like to start by thanking the Standing Senate Committee on Indigenous Peoples for the invitation to address the committee and for their study on Indigenous Peoples and the Canadian human rights framework, focusing on the implementation of the National Inquiry into Missing and Murdered Indigenous Women and Girls Call for Justice 1.7, which calls upon the federal, provincial and territorial governments, in partnership with Indigenous peoples, to establish a national Indigenous and human rights ombudsperson with authority in all jurisdictions, and to establish a national Indigenous and human rights tribunal focusing on the role of the federal government.
During my country visit to Canada this year, I received some concerning information about missing and murdered Indigenous women and girls. Numerous United Nations treaty monitoring bodies and special procedure mandate holders have commented on this epidemic, including with regard to the low number of cases reported to police, the insufficiency of shelters and other protective measures, the failure to effectively investigate, prosecute and convict perpetrators, and the lack of data collection.
The challenges faced by Indigenous peoples in Canada are all interconnected. The negative legacies of colonization and racial discrimination continue to cause displacement of Indigenous peoples and dispossession of their lands and resources, creating situations of homelessness, low educational achievement, unemployment, poverty, poor health and well-being outcomes. Indigenous peoples are often victims of racial profiling, arbitrary and discriminatory arrests, resulting in over-incarceration, as well as excessive use of force by law enforcement.
The Indigenous representative organizations in Canada have urged Canada to establish an independent Indigenous-led human rights tribunal and ombudsperson to monitor and enforce the state’s compliance with and progress in implementing the United Nations Declaration on the Rights of Indigenous Peoples Act. Accordingly, in Measure 19 of the federal action plan, the government commits to an “Indigenous rights monitoring, oversight, recourse or remedy mechanism …” The process of the establishment of the ombudsperson and tribunal must be conducted through meaningful consultations with the Indigenous peoples of Canada, ensuring their effective participation throughout.
The federal government of Canada must support an Indigenous-led process in establishing the national indigenous and human rights tribunal and the ombudsperson and should guarantee the right to free, prior and informed consent in the process, in accordance with the United Nations Declaration on the Rights of Indigenous Peoples and other relevant international standards. In the effective implementation of the Call for Justice 1.7, the ombudsperson and the tribunal must be given sufficient resources to fulfill their mandates.
In my report, I recommended that Canada set up an independent Indigenous-led human rights mechanism in compliance with the principles relating to the status of national institutions for the promotion and protection of human rights, the Paris Principles, to monitor and enforce the implementation by Canada of the United Nations Declaration on the Rights of Indigenous Peoples and the United Nations Declaration on the Rights of Indigenous Peoples Act.
The federal government must ensure the independence and impartiality of the ombudsperson and tribunal, which should have authority and mandate to receive complaints in relation to Indigenous and human rights violations, as well as a mandate to conduct thorough and independent evaluations of government services for First Nations, Inuit and Métis people and communities to determine compliance with human and Indigenous rights laws. The detailed provisions of the mandate and procedural points of each mechanism must be consulted with the Indigenous Peoples of Canada, who should participate meaningfully in the establishment process.
I would like to reiterate that the federal government must, without further delay, put into practice the calls issued by the National Inquiry into Missing and Murdered Indigenous Women and Girls, including Call for Justice 1.7. Implementation of these provisions is vital to gain the trust of Indigenous Peoples in Canada and to maintain constructive and collaborative dialogues. Canada has embarked on an important journey towards reconciliation that must dismantle the foundation of structural racial discrimination against Indigenous peoples, and the implementation of the Call for Justice 1.7 by the federal government is one important step towards this aim.
I thank you for your attention.
The Chair: Thank you, Mr. Calí Tzay.
I will now open the floor to questions from senators, and I will start. Based on your knowledge and experience, what should be the mandate, responsibilities and institutional framework of a potential Indigenous ombudsperson and tribunal in Canada? What are some potential models used in other regions of the world that could be examined for the design of these institutions?
Mr. Calí Tzay: As I said in my statement, I think it has to be independent. It must have the authority not only to receive evidence but also to act on an investigation. It must also be able to enforce and to bring all those cases to justice. If it is going to be only an investigative body, then it won’t be sufficient to regain the trust that Indigenous people must have to the state of Canada, so I think the independence is very important in this moment.
The Chair: Thank you for that.
Senator Arnot: Thank you to the witness for coming today. I really appreciate your comments here today, sir. I’ve got a couple of areas that I would like to explore, and I will just sit back and listen to what you have to say.
Drawing from your international experience and what you’ve witnessed in other countries, you are supporting the creation of a national Indigenous human rights ombudsperson and a national Indigenous human rights tribunal. My question is this: How do you insulate against adopting models that may well just replicate colonial practices? Any advice on that would be very important.
I am also anticipating that Indigenous people with the independence to create this new thing or these two new offices will likely come up with something that’s very much different than other models, so there’s going to be a resistance. I just wonder what advice you would have to bolster the recommendations to ensure that that resistance is diminished. One of the things I am wondering about is that, traditionally, colonial practices rely on litigation models, head-to-head advocacy, and that hasn’t worked well. I’m anticipating that there will be more of a problem-solving approach or more of a mediation-style approach that might come forward. You have a lot of experience. Is that assumption accurate? What would you say about how these new institutions should work and interrelate inside a colonial system which focuses mainly on litigation? Anything you can advise on that would be really helpful.
Mr. Calí Tzay: Thank you very much, senator.
There is not a recipe that is going to work everywhere. Canada has a very good initiative, and it will be the first one in the world. It is not that there is something else around the world. That’s why the world is watching you and what steps you are going to take.
Consistent with article 19 of the United Nations Declaration on the Rights of Indigenous Peoples, the national Indigenous and human rights ombudsperson should be set up in consultation with Indigenous peoples. That will be the difference. That’s why in my statement I said that this procedure has to be with the participation of Indigenous people. When I am referring to Indigenous people, I’m referring to First Nations, Métis and Inuit peoples. That will be the positive step but, again, not only the participation but the consultation and the consent of Indigenous people. I know that it will be difficult because there are many lines of work of First Nations in Canada, we might say, but with this consultation, you will strengthen this ombudsperson and the work of the office in Canada.
I have been seeing many issues around the world, but Canada is the example that we have to follow up on the creation of this kind of institution. As I said, there is not any recipe that I can tell you about. We take this step and then this step, but more important is the participation of Indigenous peoples.
Senator Coyle: Thank you very much to our witness. Your testimony was very clear and very helpful to us and really reinforces what we’ve been committed to here at this table, and we hope that the outcome of all this work will lead toward will be something that is of high quality. As you say, the world is watching us here. It would be nice if we had some models that we could draw from, but we don’t.
Given the absolute diversity within Canada of Indigenous cultures, Indigenous laws, Indigenous traditions — you’ve mentioned the Inuit, the Métis, the First Nations — and even among the Métis, even among the Inuit, even among the First Nations, there is incredible diversity, as you well know, can you perhaps provide a little bit of guidance on how to ensure at this early stage that that diversity would be well reflected in how the office of the ombudsperson and the tribunal itself are established? It is not just how those who are responsible for establishing this position and this tribunal undertake their work, but then how the tribunal and the ombudsperson themselves undertake their work, given that incredible richness of diversity that exists here in Canada.
Mr. Calí Tzay: As you said, senator, Canada is a unique country, with all the First Nations, Métis and Inuit people that you have in Canada. It is a very cosmopolitan society.
If we are going to have something like this, as I said, the participation of Indigenous people is at the base, we can say. That’s why I believe that the commissioners should be appointed directly by Indigenous people according to the determined procedures in compliance with articles 3 and 4 of the UN declaration.
More importantly, the tribunal should provide effective individual and systemic remedies, such as establishing the base in the principle relating to the status of national institutions for the promotion and protection of human rights. It is very important that we have a very clear establishment of the office of the ombudsperson that will have effective remedies individually and collectively. I think that will be one of the things that you have to take into account at this moment.
As I recommended to Canada in my official visit, it is needed that Canada set up an independent Indigenous-led human rights mechanism in compliance with human rights mechanisms — we can say the Paris principle — and that means independence and also finances to have the capacity of answering the needs of Indigenous peoples in Canada. I remember that in Latin America, for example, they said that if a commission of work doesn’t get a good budget, it is goodwill only. The ombudsperson’s office has to have a very clear mandate, an effective mechanism of receiving and also answering the needs of the Indigenous people of Canada, but also enough budget to work.
Those are my reflections on the question you asked me.
Senator Coyle: Thank you.
The Chair: Mr. Calí Tzay, can you tell us how UNDRIP can provide guidance to the structure of these new institutions?
Mr. Calí Tzay: Well, as is said in Article 46 of the UNDRIP, UNDRIP is only the minimum. It is the minimum or the base of the rights of Indigenous peoples. It is not the ceiling; it is the ground.
After that, if we take into account all the rights that are established in UNDRIP, we will have enough space, enough ground, to work, and enough space to cover respecting Indigenous people’s rights, especially if we respect the free, prior and informed consultation and consent and the participation of Indigenous people. After that, everything will come. We can use UNDRIP as the base for the work of the ombudsperson’s office. There is like a work agenda in the UNDRIP. I believe that it is very important to take into account.
The Chair: Thank you for that.
Senator Prosper: Thank you so much, Mr. Calí Tzay, for providing your testimony and also sharing your experience with us.
My question has two elements to it. You mentioned earlier that this is the first mechanism for Indigenous peoples that is being put forward. As you mentioned, other countries will be looking at Canada for the example that we set. Given the unique nature and being the first of its kind, I would like to draw upon your extensive experience. Given that this is something new, are there other mechanisms that you know of, whether it relates to a tribunal of this nature or even the office of an ombudsperson, that you think would be instructive or helpful in terms of us putting our minds to that? That’s my first question.
The second element is that, as you know, at times there is often an interplay between collective rights and individual rights that takes place within Indigenous communities, but also within the larger format of litigation and things of that nature. What insights can you offer on how that can be reconciled or accounted for in the purposes of this undertaking? Thank you.
Mr. Calí Tzay: Thank you very much. Those are very broad questions, and we would need all day to discuss all the elements that need to be taken into account to answer your question.
In Latin America, unfortunately, the history of human rights has been very negative. That’s also why, in Latin America, there are very good human rights ombudsman offices. They have very good offices. I think that probably one of the things that we have to start to see is which ones are beside the people, defending human rights, not only of Indigenous people but all of society in Latin America. There are very good examples. One of the good examples that I can mention in this moment that I remember is the Chile ombudsperson, also Argentina’s, Costa Rica’s and Colombia’s, and Mexico also has a very good ombudsperson’s offices working together with the people.
Speaking about Canada, I believe a national institution should be vested with the competence to promote and protect human rights of Indigenous peoples. A national institution should be given as broad a mandate as possible, and it should be clearly set in a constitutional or legislative text, specifying its composition and sphere of competence. I know that in Canada it will be a very long process if we want to have this in the constitution, but I think that with one law, we can give that competence to the national human rights ombudsperson’s office.
I also think also a national institution should inter alia have some responsibilities, for example, to submit to the government, to Parliament, to the Senate, as any other competent party on an advisory basis, either at the request of the authorities concerned or through the exercise of its power to hear a matter, without fear, their opinions. I think that is something that they have to have, as well as being able to recommend, propose and report on any matters concerning the promotion and protection of human rights, whether to you, to the government, or to a companion to the state when they are going to compile the national reports to an international institution like United Nations committees. That’s just an example. I’m thinking of examples. Also, promoting and ensuring harmonization of national legislation, regulation and practices with the national human rights instrument is another issue that this ombudsperson’s office has to play in Canada, because there is a very strong need to harmonize the national legislation with the international human rights legislation. Of course, after that, they should encourage ratification of the instruments of human rights that Canada has not ratified at the moment. It is very important. I know that Canada has ratified almost all the instruments of human rights, but sometimes they need to ratify other ones.
It is necessary that they have the right to express their opinion with due respect to their independence. I will focus on the independence of the ombudsperson’s office. The independence is very important in its creation. You have to give independence to this office, because if it doesn’t have independence, it will be another office that Canada has been creating, and many Indigenous people will continue with the mistrust of the state that they have at the moment.
I don’t know if I have answered both questions in all the comments I have given you.
Senator Prosper: Thank you. That’s a wealth of information that you have provided.
Drawing on your expertise and experience relating to that secondary matter of individual and collective rights, often collective can vary from community to community and nation to nation. It involves land, title to that land, and resources, whether it be through treaties or prior occupation. At times, that comes up against individual rights as well. Do you have any further insights on how those two things can operate together, collective versus individual rights?
Mr. Calí Tzay: That is the special characteristic of Indigenous peoples. Indigenous people enjoy individual and collective rights, according to international human rights law. That is a very important thing for Indigenous peoples. That’s why it is very interesting to have this office in Canada. Why? Because they will have a big task not to distinguish but to defend individual and collective rights of Indigenous peoples in Canada. I’m talking about defending because I am used to having this language in all the other countries where I have been travelling. The problem is that they have to defend their rights. Here, they have to practise their right that they have in Canada. I know there are many questions about whether or not Canada is respecting Indigenous peoples’ rights, but it’s different between Canada and the other countries in Latin America, Africa or Asia. That’s why it’s important to see what steps Canada will take in this moment.
The residential schools have been the big point of reference for Canada for about two or three years. What comes after that? I think that is the point. The point is that the creation of this office will be a positive step for Canada’s history and for regaining the trust of Indigenous peoples in the state. That’s why, as I said, it’s necessary to have not only a clear mandate but also a sufficient budget to work together with Indigenous people to seek justice for the past or the present violation of their human rights, including all the rights you mentioned: land, territory, resources and individual rights. There is a lot of work to be done at this time.
Senator Prosper: Thank you very much, Mr. Calí Tzay.
The Chair: Mr. Calí Tzay, we’ve heard from other witnesses that the cost to hire legal counsel is a barrier under the Canadian Human Rights Act as litigants cannot obtain an award for legal costs after the process is over. Would you agree that Indigenous peoples should have access to legal services and other supports when preparing a complaint to a potential ombudsperson and tribunal? Should free legal clinics be available for Indigenous peoples?
Mr. Calí Tzay: I think that the role of the ombuds office must be a companion to Indigenous people to seek justice but not to litigate on behalf of Indigenous people, because that will be another office. That’s why, in one of my answers, I said that the ombudsperson’s office has to have the power of investigation, but it must also be an independent party to investigate and to bring all the probes that will help Indigenous people — for example, to be not only independent but also an expert witness in court, not to litigate behalf of Indigenous peoples but to be the conscience of the state on the point of view of Indigenous peoples. I will say that I think Canada has to create an important office of legal accompaniment to Indigenous Peoples in this moment.
The Chair: Thank you for that.
I have another question for you. How can Indigenous laws be reflected within a human rights mechanism?
Mr. Calí Tzay: That’s a very important question. That must be one of the elements that this office takes into account.
Unfortunately, not only nationally but also internationally, they are asking Indigenous people, when they are applying their justice, to respect human rights. But what system is violating human rights when the Indigenous peoples’ legal system is to repair the damage that they have been creating, for example, for a crime or a felony? A national justice system is not reparation system; it’s a punishment system. When you have been declared guilty, you are taken to jail immediately. That means that you are going to leave your family by themselves. On the Indigenous peoples side of the law, you are responsible not only to be the companion for the family, but you are the one, if you’re declared guilty, to repair the damage that you are creating to your family, to your community or to others. I believe that Indigenous peoples’ law has to also be based on respect of human rights in the ombudsperson’s office in this moment.
The Chair: Thank you for that.
If I could ask you one more question, can you think about other institutions that have relied on Indigenous laws and processes in their policies and practices, perhaps outside of the human rights area?
Mr. Calí Tzay: Canada is a very important country to have as an example, as is the United States. You have Indigenous tribunals, Indian tribunals, Indian judges and Indian courts. You have already been practising that not only in Canada but also in the United States. That is something that we do not have in Latin America, Africa or Asia. You have a base where you can start taking those examples into the ombudsperson’s office. I think you have advanced a lot in having Native and Inuit judges. I think you also have Métis judges at this moment. I think you have a good example in Canada and also in the United States.
The Chair: Thank you for that.
The floor is still open for questions from senators. Do any senators have questions? I see no hands being raised.
Thank you very much, Mr. Calí Tzay, for joining us today. We really appreciate your testimony.
I’d now like to introduce our next witness, Madeleine Redfern, Chair of the Nunavut Legal Services Board of Nunavut. Wela’lin. Thank you for joining us today. Ms. Redfern will provide opening remarks of approximately five minutes, which will be followed by a question and answer session with senators.
Madeleine Redfern, Chair, Legal Services Board of Nunavut, Nunavut Legal Aid: Good morning. Thank you so much for the invitation.
I hail from Iqaluit, the capital of Nunavut, which is my home community.
Quickly, the Legal Services Board of Nunavut is effectively responsible for providing legal aid in the territory and is governed by a board of directors with representation from our three regional clinics, two members at large, a member from the Law Society of Nunavut and the Government of Nunavut. The Minister of Justice appoints all the Legal Services Board members for a three-year term. I’ve been with legal aid since 2007.
The delivery of legal services to eligible Nunavummiut occurs in the context of a partnership between the federal government and the Government of Nunavut. Legal Services Board provides legal aid in criminal, family law and civil. That’s actually fairly unique in this country, other than Northwest Territories. Under civil law, we provide support for residential and tenancy matters, labour and employment, human rights, poverty, police misconduct and occasionally some inquests. We also provide public legal education and information.
Legal Services Board, like most legal aid plans in Canada, is at arm’s length from the government and must be sufficiently independent as it relates to the provision of our services.
In Nunavut, there are a number of other important public and Indigenous organizations that include the Nunavut Human Rights Tribunal, but it is not a commission; the Qulliit Status of Women; the Nunavut Representative for Children and Youth; Nunavut Inuit Women’s Association, of which I am on the board and president; plus other Inuit organizations such as Nunavut Tunngavik Incorporated; and our three regional Inuit associations, one in the Qikiqtani, the Baffin region, the Kivalliq and the Kitikmeot. They all have responsibility for advocating or protecting the rights of Inuit members under the Nunavut Land Claims Agreement.
The challenge, however, is that for the majority of these non-governmental organizations, especially those set up and funded by the territorial government, their powers and authorities are limited to the advocacy usually, like the Qulliit Status of Women, or the Nunavut Representative for Children and Youth which, while it makes recommendations or findings, has no authoritative power. The two public agencies that are slightly different in these roles are the Nunavut Legal Services Board and the Nunavut Human Rights Tribunal, where we are able to use some legal mechanisms and avenues to support direct access to justice, including human rights violations.
Unfortunately, Nunavut does not have a Human Rights Commission. Nunavummiut can apply to legal aid to get assistance for civil law lawyers as long as they meet our financial eligibility requirement. Then, at that point, if they are deemed eligible, our civil law lawyer will assist the client in looking at their best avenues, whether that be the Labour Board, Labour Standards Compliance Office, Residential Tenancies Office or even supporting making a human rights complaint.
The challenge in making a complaint under the Nunavut Human Rights Tribunal is that the tribunal only has three staff, and they’re situated in a very remote part of Nunavut. There are also issues with the framework and the processes which also make it difficult for those staff or their own tribunal members and individuals in considering whether to make a formal complaint or those who have made one. The time it takes for a complaint to actually go through the process is years.
While there is value in having a national Indigenous ombudsman due to the fact that, under the Canadian Constitution, Indigenous people fall under the direct responsibility of the federal government, we live in provinces and territories where the majority of services are actually delivered by our provincial or territorial governments. This includes health care, education, housing, family services, child welfare and post-secondary education and training. It’s been very hard for most of our people to understand and navigate through the government even to obtain basic services. It’s even harder when there is historical and current systemic racism, and add sexism as an Indigenous woman.
When you’re already marginalized and vulnerable, it’s hard and even scary to consider trying to make any complaint or follow through with a complaint process to hold the government who has violated your rights accountable. This is especially true in a place with a small population, and it’s even harder when your or your family’s employment, benefits or services could be put further at risk. In Nunavut, the territorial government is the largest employer, and you’re lucky if your job comes with staff housing, but if you put your employment at risk, then you are also putting your housing at risk.
The provinces and territories that have ombudsmen are fortunate. We do not have such an office. The lack of an ombudsman or public agencies that have more autonomy or authoritative powers has meant that our people have been put at risk and harm without much recourse. Legal aid can and does provide some help, but our ability to help is limited due to the legislation, our shared workload and our prioritization to provide lawyers for criminal representation and family matters especially related to child apprehension, welfare, child custody and support.
There are other constraints that we have to live with, such as budget and subject matter expertise. I can tell you, we don’t have enough lawyers to handle many of the unique areas of law. Since COVID, we are catching up on matters that were suspended or delayed due to court scheduling, and that’s been our priority and focus for the last couple of years.
A national Indigenous ombudsman who can assist in assessing the state of existing provincial and territorial ombudsman offices to be adequately informed and trained to support and address systemic human rights violations would be good, most importantly in a jurisdiction such as Nunavut where we have no such ombudsman and where those public agencies struggle with such limitations, supporting in the advocacy for greater autonomy and powers to make real changes that would go a long way in reducing risk and harm stemming from systemic racism and systemic sexism, especially the intersection of these two, that put our Inuit families and especially our Inuit women and children at great risk.
Thank you.
The Chair: Thank you, Ms. Redfern, very much for your remarks.
Senator Arnot: Thank you, Ms. Redfern, for your advice and testimony this morning. It’s very helpful to us.
I have a few questions. I understand you’re supportive of the creation of both these institutions that are proposed, and I think we are too. I know you have a strong voice for the rights of women, particularly on sexual harassment. In my experience on human rights issues, where there’s evidence of one form of discrimination, there’s likely the existence of other forms of discrimination, like ageism, sexism and ableism. I’m thinking about the needs and rights of Indigenous women and children who have disabilities or belong to the LGBTQ2S community. There’s much intersectionality. You’ve talked about that. Can you describe how you feel that all of those issues, that array of needs, will be dealt with by these two new agencies that could come into being?
Ms. Redfern: In my experience, it’s incredibly useful to have an office that even just does research and determines where there are gaps. In Nunavut, because we don’t even have that ombudsman office, the gaps are very significant. There are very few avenues by which people can actually go and get support. If they do try to go to their mayor and council or to an elected official, in some cases that can be successful, and in other cases it’s not.
I live in a place where, unfortunately, I would say our government struggles with not only collecting and managing data, but the Auditor General of Canada recently did their third report on the Government of Nunavut Family Services, where the Auditor General reported that the government cannot even keep track of the children that it takes into state care or fails to do the criminal record check to make sure children are placed in safe places. We need to have an independent body that actually understands and recognizes how valuable the data is and whether the services are working appropriately. While we have the Office of the Representative for Children and Youth and they have done reports, in many cases, their last report was full of question marks. They have no ability to do more than highlight that there are problems and then leave it up to our legislative assembly members to deal with them or not.
On the intersectionality question that you raised, absolutely, depending on which report you’re looking at, we have anywhere between 30% to 80% of our people living in poverty. I actually think it’s the upper number, in part because when you have one out of four Inuit preschool children being food insecure, and most of our households have children, we have high rates of poverty, low levels of education, high rates of unemployment and overcrowded housing where you have two, three or four generations living in a house. Even if you are employed, there are very few employers, and with those employers, it’s scary to make a complaint or try to assert a right because your manager may not appreciate it, and that puts your employment at risk. Speaking out puts your employment at risk.
If you’re already very marginalized and vulnerable, the systemic discrimination, prejudice and biases are very pervasive. You know that by speaking out or even trying to get help, you could put a target on yourself. There are so many different ways in which to directly or subtly put someone even further at risk. I live in a place where we supposedly have the enjoyment of these human rights, both at the territorial level because of the legislation and the constitution, but we’ve also seen people who have spoken up and who have actually been subjected to loss of employment or loss of housing. The intersectionality in Nunavut is so high and pervasive that people usually don’t dare assert their rights. I know people who are Inuit lawyers who wouldn’t. I know I have definitely lost benefits by being someone who is prepared to speak out. That’s the reality that we live in.
Senator Arnot: With these two national bodies that may come into existence, from what you’re saying, do you think that there’s room to have the flexibility within these national bodies to deal with some of the unique circumstances in Nunavut, like the ones that you’ve just spoken about?
Ms. Redfern: It’s going to be very hard without an existing territorial ombudsman office to work with. That’s the truth. It’s going to be hard with a Nunavut Human Rights Tribunal which is not a commission and with a staff of three. It’s going to be hard even for Nunavut’s Legal Services Board because we’re so overwhelmed with our current workload, and adding more work to it — the fact that we don’t have enough resources at our level will make it an absolute challenge. I think that highlighting that is important.
Ideally, demonstrating to the territorial government the value and need for an ombudsman office, let alone one that actually focuses on Indigenous rights, I would hope would make the members of the legislative assembly recognize the value and the need to have a territorial ombudsman office. It’s doing that advocacy at the really high level. There is a big gap. It makes it hard for us to do this work. It would be great if there were a territorial ombudsman office, a general one, maybe not focused necessarily on Indigenous peoples, because while we’re 85% of the population, de facto, it’s supposed to.
Even with this national ombudsman office working with the other provincial and territorial ombudsman offices, scaling them up with cultural orientation and training, given the fact that they may not actually be well known right now by the Indigenous population, let alone perceived as a safe space, how do those provincial and territorial ombudsman offices work with their First Nations or Inuit community?
The second-largest Inuit community in Canada is here in Ottawa. People don’t even realize that. The first one is actually my hometown in Iqaluit. There is a lot of out-migration that is happening in our regions for a whole host of reasons, such as adequate medical care or addiction services, fleeing domestic violence, loss of housing, loss of employment, and even stemming from human rights violations where people feel that they can’t live and work in their own community and it’s not safe for them anymore. We’re seeing the need for an Ontario ombudsman to be aware not only of Indigenous rights but the reasons for how and why Indigenous people are leaving their reserves or their home regions. It is an important factor.
Senator Arnot: Thank you for that comprehensive answer.
Senator Prosper: Thank you so much, Ms. Redfern, for providing us with a very full perspective on some of the realities that exist within your territory and some of the implications that exist when you’re considering an office of this scope involving an ombudsperson and a tribunal for human rights and the interplay of that with the resources that exist, or lack thereof, within your territory. This is the great experience of sitting around a table like this and listening to testimony on some of the ongoing realities. I wasn’t aware of the second-largest community of Inuit people being here in Ottawa.
Looking at some of the repercussions that could potentially exist and, in fact, do exist when you bring issues forward that rightfully should be brought forward in the face of systemic barriers and things of that nature, one of the things I try to think about is what would be an important consideration to have when creating these two types of institutions. You talked about the reality of those mechanisms potentially creating further stress to the limited resources that already exist and the need to have a provincial counterpart. How would you view that sort of interrelationship? I know you provided a bit of testimony on that, but I’m quite curious about those linkages within your territory with these national institutions. Could you provide further detail on that?
Ms. Redfern: Thank you.
Often, our leaders just don’t know what they don’t know. To some extent, they are probably unaware that Nunavut is one of only two jurisdictions in Canada without a provincial/territorial ombudsman office and what that office can do. I think sometimes there is a fear, especially by bureaucrats, around creating another body, because we have so many. We have so many other institutions or agencies, and that should be sufficient. Yet, as residents, we know that it is not enough.
The Government of Nunavut has tried to set up many things, like a patient relations office when they have challenges around medical care. Many people don’t feel comfortable making that complaint there or, if they have tried to do so, it rarely goes anywhere. There is quite some criticism against our current Minister of Health’s response to a legislative member’s comment about there appearing to be systemic discrimination issues even for those who work within government. The minister’s response was, “Just work the process.” The response was, “But there are problems with the process because it is so baked into the system.”
While I appreciate a national Indigenous ombudsman or these other proposed entities, the big work is to understand the lay of the land and what is out there, what is working, what is not working and the value of scaling up the human rights tribunal and the need for a Nunavut human rights commission. They are complementary, but they are distinct roles. There is a need and value for a territorial ombudsman office. How would it fit and work? Where does it work well and in which provinces? What is the best model?
I’m a very pragmatic person. I’m usually not someone who is in great favour of establishing something else, but there are needs and values when you are seeing that there is a significant gap. How do we make it work best? I totally believe that when you do have agencies that can hold government or offenders of human rights violations accountable by just existing, then that can also make employers or entities a bit more hesitant about violating those rights. However, if there are no consequences to violating rights because the bodies have no powers other than sort of highlighting the problem, making recommendations and then seeing reports literally not making any significant changes, that is an issue. I strongly believe in not taking a strong hammer approach but one that can make our leadership, our government and our Inuit organizations aware that this is a good thing. How it has worked well and how it improves the lives of the citizens in those jurisdictions makes it worth doing.
Senator Prosper: Thank you.
The Chair: Ms. Redfern, can you tell me what types of services exist in Nunavut for Inuit women and children who may be experiencing violence?
Ms. Redfern: We have a small number of shelters, but not in every community. In Iqaluit, we have the benefit of having a shelter that has also expanded services into transitional housing. I have been glad to be if help toward that. Knowing how to access CMHC affordable housing and doing those applications has led to the creation of that. The problem is that many of our communities don’t have shelters. Post-COVID, we are in a situation where some of our health centres, which are usually staffed by an agency nurse who comes in and goes out, are not even open. People are living in communities where, at best, they can make a phone call. Yes, you have family services, and in many of those cases our shelter in Iqaluit takes women from other communities, especially where the police have determined that a woman and her children are so at risk that they can’t stay in their community. There is simply not enough, and they end up staying in abusive situations. We have the Family Abuse Intervention Act, which is supposed to allow victims to have the person who is causing harm removed from the home, but it is very hard to access and enforce.
Unfortunately, the vast majority of domestic violence usually happens when someone is under the influence of alcohol. When they are not in that state, they are loving individuals. It’s kind of like a Jekyll and Hyde scenario. It is hard when someone is sober because then they are homeless or you want them to be with you. We don’t yet have an addictions treatment centre. We are building one, but we can’t access that yet. This is an Inuit or Indigenous way of looking at things, but our men who are dealing with addictions, historical trauma and feeling disempowered — and those feelings get very exaggerated under the influence of alcohol especially, or other substances — often become very volatile, hurt and angry. They often lash out and hurt their loved ones. We also need to ensure that there are services for them because they are our brothers, our fathers, our sons, our cousins and our nephews. While I appreciate the natural inclination to focus on women and children, we’ve often heard our women, our mothers, our sisters and our daughters saying, “We need to help our men.”
The Chair: Thank you for that.
How can a national mechanism reflect the diversity of Indigenous laws? Can you provide Inuit-specific examples?
Ms. Redfern: That is a tough one. I’ve worked on quite a number of national bodies. There are many distinctions between First Nations, Inuit and Métis and even distinctions within Inuit regions and in Inuit communities. Nonetheless, one is to have representation on that national body and maybe even a sort of suboffice. That’s how it was dealt with, with the national reconciliation on residential schools. They had a subcommittee because there are regional and Inuit distinctions.
The only real distinction I have seen that has been formally legalized is Inuit custom adoption. I do understand that there are other Indigenous nations within Canada that have custom adoption as well. We’ve legislated it, maybe not as well as we could. We also have our treaties that have been signed, our land claim agreements, but they contain very little on social or cultural rights. They are land-based and resource-based.
On another issue, I was quite shocked and disappointed that my own land claim organization has decided that our rights are held as collective rights rather than individual rights. It is very hard for our members to get the help of our Inuit organization when our individual rights are being violated, such as employment. You can imagine what the body of Canadian law would be like if we chose to interpret Canadian rights under the Charter that way so that everyone or a huge collective must have their individual rights violated before they can put forward a claim. No. We enjoy many of the Charter rights because an individual took the government to court, and the court determined that not only were the rights of that individual violated but all our rights were put at risk. There have been huge adjustments in the way the police or the state must act because of the Charter decisions by the Supreme Court of Canada.
To get back to your original question, yes, we need to have representation on that national board. Suboffices are probably required.
The Chair: Thank you for that answer.
Senator Audette: [Indigenous language spoken]. That means “my chief.” It takes two pages to say it. It is a long expression or terminology. Thank you so much, Ms. Redfern. I follow you on Twitter and other places. It’s refreshing. It’s very interesting and good.
We don’t know what’s going to happen. Two reports are coming from the special rapporteur or special representative of the minister and this organization who had the mandate to work on the two Calls for Justice, 1.7 and 1.10. We are at the beginning of what the future could look like. I want to make sure that our paths will connect again, because your knowledge and expertise are very important. How we bring balance between individual and collective rights is something we always push — my mom, myself and other women in our nation — and we are promoting nonviolence with our men. We need them to protect us and protect the community. But at the same time, we have political organizations or advocacy organizations that are holding our rights. How do we find the balance? One day, we can present a bill or legislation on what this could look like. It is our mandate to do legislation or to amend or enhance or to stop it. We have that capacity, or passion, I would say, for me. It would be nice to bring you back way before that, of course, but when we get there, to make sure that we find that balance between the leadership in your people and the grassroots, the people who work every day to protect women and children and our men. I am impressed. Thank you very much.
Ms. Redfern: How you set up a framework or such an office is incredibly important because what usually happens is that it will function that way for a long, long time. We need to get it right because it is much harder sometimes to make the adjustments and changes once it is established. There is a real inclination — and I’ve been around a long time — to say, “This is how we do it and this is how we will always do it.”There is a value and also a need to be comfortable with the recognition that any such new entities need input from the people that it is trying to support and serve should adjust accordingly. Often, a lot of evaluations are just self-evaluations. I am always amazed and shocked how little governments will actually engage the people that they are serving as part of the evaluation process. It’s bizarre to me. If anything, that evaluation process is, “We’re doing a good job, and when we’re not doing a good job, it’s not our fault.” So much of it can be limitations by attitude or prejudice or bias.
Even when I look at something like the Gladue decision by the Supreme Court of Canada, which was an attempt to address systemic racism, it really then looks at the individual. Yes, of course, you are going to do that in sentencing with mitigation and aggravating factors, no matter who is in front of you, but I’m shocked that Gladue didn’t look at what we are supposed to do with the systemic racism within our police forces or in the Crown prosecutor’s office or in the legal system or in all the other systems that caused a person to get into trouble with the law. I’m still just absolutely baffled by the fact that that decision almost refuses to look at and address the internal systemic biases and prejudices that have caused someone, rather than to be successful, to get into trouble with the law, and therefore, the appropriate response is to potentially reduce their sentence. Yes, there are times where the sentences may be too long because of bias, but, again, the approaches are often just a refusal to do their really important self-reflections.
I’m saying in response to the senator that, even when you create such an entity, you have to be willing to recognize that you will not get it right or perfect and that you need to continuously do that self-evaluation with the people that you are trying to serve. An ombudsman’s office has such an important potential role, and you need that feedback. You really do. You need to be willing to recognize that you’re not always doing it right and to adjust and change accordingly.
The Chair: Ms. Redfern, should a future human rights body be able to make orders to impose a positive duty to protect the security of the person, like in the case of poverty or other? How can cultural and social rights be examined by a future office?
Ms. Redfern: The easy answer is absolutely yes. I look at Cindy Blackstock’s lawsuit. A lot of time and money was spent continuously even to get to the point where we then had the government prepared to accept the decision and to make the financial commitment to Jordan’s Principle to address the systemic discrimination that our Indigenous children have faced by not having adequate supports and not even the equitable supports that are available. I strongly believe — it’s been my experience and the research shows — that by investing at the front end, more often than not you will help individuals succeed and you will spend a lot more money at the back end in the criminal justice and health care systems.
For the most part, our Indigenous children and Indigenous people want what everyone wants. They want to feel safe. They don’t want to go to a doctor’s office or a hospital and be forgotten about in the waiting room or not believed that their symptoms are real because of, “Well, what you are really trying to do is get some drug to make you feel better.” If I am in pain, of course I want some drug to make me feel better. Everyone does. You are in pain. They want their underlying illness or injury to be appropriately assessed and treated.
If we can see that there are real risks and harms, then we need something similar to a court order that says, “Government, you must fix this. You must stop hurting and harming individuals.” If that requires a proactive, positive order, so be it. That’s what we do with the Charter. When someone goes to hospital and they are deaf or dumb, the court says they are entitled to an interpreter. They are entitled to be able to communicate with their doctor so that their doctor understands them and knows what their illness, ailment or injury is and to be treated. We have the court order that says that people with disabilities absolutely should have the ability to board a train. Positive orders are often the only way in which the party that is causing the harm is going to fix it. If it is just a question of perceiving that it is one individual at risk, maybe yes, providing them with individual compensation, but no one else should ever be exposed to the same type of risk and harm. It is not acceptable.
Senator Prosper: This has been a really informative dialogue, and I appreciate your sharing with us today.
You mentioned earlier, and just now in your response, the need to get things right when you are setting up a framework like this. I benefited from your comments with respect to reviews and how, at times, it is important, for example, for government to have those people to whom you are providing services to help evaluate the manner and type of service that’s being provided. Let’s face it; there is always room to approve.
Along the lines of an evaluation, this might be an unfair question, but I want to try. If we were to look through time and presume that things were established and set up — and if, in fact, through an evaluation, it was done right — what are some indicators, in your mind, that you would see percolate through the surface to say that these are the indicators that suggest to me that you are on the right track? Could you provide comment on that?
Ms. Redfern: One of the things that would be incredibly useful is, when you have done the orientation and training of the existing ombudsman offices about our Indigenous history and reality, making those institutions and offices much more accessible to Indigenous people, and if they are not accessible, being able to go to a national Indigenous ombudsman office and say, “I’m having a real problem.” God forbid, but maybe you’re finding that it is not indigenously accessible. That is an issue.
There is also sharing of resources so that you are not duplicating the existing 11 orientations and trainings. Yes, there may be some things that need to be Alberta-ized or made appropriate for the Yukon because they are their own distinct regions with distinct cultures and values. If and when you do have things that are working well — lessons learned from the provincial and territorial ombudsmen where Indigenous persons are coming and you need to determine where the systemic biases, discrimination and harms are happening — sharing this with the other provinces and territories is important.
I don’t want to describe this like a court system or necessarily a purely political system, but there is a need for and a value to this network. I don’t know how much of that network already interacts, but I suspect that some may have put their minds towards Indigenous reconciliation and some may not have. I am involved with many national organizations that are doing a whole bunch of different things, from housing to post-secondary education. We’re all struggling with what Indigenous reconciliation actually means in practice. How do we become more attuned and sensitive to that and adjust our work accordingly? Indigenous women took it all the way to the UN when our women were discriminated against because they lost their membership and status, which is a huge part of your identity, because of the Indian Act.
There is all this value and room to have mechanisms that ideally align but, where and when needed, are separate enough to be able to work on an issue where a particular province or territory level is not working as well as it could or should. These are complex, complicated and layered systems. It doesn’t mean that it is not possible or workable. We see them work in all sorts of wonderfully complicated ways. We look to what currently exists and what is working best.
When I helped to set up the Qikiqtani Truth Commission, we did a similar exercise. We cast our net wide in terms of the commissions, not just in Canada but also outside of Canada, that are Indigenous-specific, and we took what we thought were the best. We created our own unique commission as a result, and it has served its purpose well. Doing extensive initial research is important. Indigenous input, of course, will be incredibly valuable. This can’t be all things to all people, but it can possibly identify something to build upon and continues improvement on an annual basis, or probably a three-to-five-year work plan, making it manageable, scaling up and adjusting where we are not doing well. Maybe we need to do it differently so that the other existing provincial territorial ombudsman offices see value in it, because it really does have value. It’s doing something to help them understand how and why they are or aren’t serving their Indigenous residents. Those territorial and provincial ombudsman offices exist for a reason.
It would be interesting to know if any of those are tracking how many of our Indigenous people even approach them. If they make up 4% of the national population, what percentage is it in their own jurisdiction? Are they even meeting? I suspect that we’re seeing a lot more human rights violations of Indigenous peoples. The number of people actually going to an ombudsman is probably not even proportional to their population, but the harms that they are subjected to are great, even having Indigenous people saying, “I experience racism every day.” I was thinking about that driving in. My daughter does, my grandchildren do, and my brother and my sister do. It’s shocking how much of it there is. Some of it is low-level microaggressions or a low level of disrespect. Other times it’s really serious, and there are not many legitimate places someone can go. Going to the very government agency that is hurting you is tough. It’s tough to go that route.
I don’t know if I answered your question.
Senator Prosper: That’s great. Thank you.
The Chair: That’s a great answer.
Thank you, Ms. Redfern, for your testimony today. I don’t have anyone else on my list. We really got a lot out of your testimony. It was very informative. If you have any submissions you’d like to make to the clerk after this, feel free to do so within seven days.
That brings us to the end of our meeting.
(The committee adjourned.)