THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, November 22, 2023
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:50 p.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 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 Indigenous Peoples Committee. I will now ask committee members in attendance to introduce themselves by stating their names and province or territory.
Senator Arnot: I’m David Arnot. I’m a senator from Saskatchewan. I live in Treaty 6 territory.
Senator Hartling: Nancy Hartling, a senator from New Brunswick and Mi’kma’ki.
Senator Martin: Good evening. Yonah Martin from British Columbia.
Senator Sorensen: Karen Sorensen, Alberta, Treaty 7 territory.
Senator Coyle: Mary Coyle, 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 like now to introduce our witnesses: from The Native Women’s Shelter of Montreal, Laura Aguiar, Iskweu Project Coordinator; from the First Nations Child and Family Caring Society, Dr. Cindy Blackstock, Executive Director; and from the Indigenous Bar Association, Krysia Przepiorka, lawyer.
Wela’lin. Thank you to all for joining us. The witnesses will provide opening remarks of approximately five minutes, to be followed by a question and answer session with senators. I now invite Laura Aguiar to give her opening remarks.
Laura Aguiar, Iskweu Project Coordinator, The Native Women’s Shelter of Montreal: Good evening. My name is Laura Aguiar, and I am the coordinator of the Iskweu Project with The Native Women’s Shelter of Montreal. I am calling in from Tiohtià:ke, which is on unceded and unsurrendered Mohawk land and is home to many other urban First Nations, Inuit and Metis people. On behalf of the Iskweu Project and the women, girls, trans and two-spirit people and families that we work with, thank you for providing us with the time and space and for centring MMIWG2S+ in this work.
The Iskweu Project is a direct response to the MMIWG2S+ crisis in Montreal. We support Indigenous women, girls, trans and two-spirit people who are facing high lethality forms of violence, and we also respond in situations where an Indigenous woman, girl, trans or two-spirit person is missing or murdered in Montreal to ensure that police adequately respond. The reason why Iskweu exists is because of the repeated human rights violations of Indigenous women, girls, trans and two-spirit people in the context of justice and access to safety.
Through our work with survivors of violence and MMIWG2S+ families, the need for stronger protection mechanisms in all areas of human rights is extremely evident. All of the women, trans and two-spirit people we work with have experienced repeated human rights violations over the course of their lifetimes, which are the very conditions that deprive survivors of real opportunity and push people into situations of violence and exploitation. For example, most of the women we work with have experienced violence in childhood stemming from intergenerational trauma which often goes unreported and undetected, and then later on they may have experiences with the child welfare system resulting in forced displacement away from their community of origin followed by a harsh transition from the child welfare system to the streets when they turn 18.
These repeated human rights violations lead to a lack of opportunity and force women into positions where they must make an impossible decision — to risk their safety on the streets alone or to risk their safety with a pimp or abuser who may provide a place to sleep for the night and cover their basic needs. These repeated human rights violations send a message to Indigenous women, girls, trans and two-spirit people that it is normal to have your most basic rights violated.
The position that Indigenous women facing violence are placed in also forces them to have to worry about their survival on a day-to-day basis. When your most basic rights of access to food, safety, shelter and clothing are not being regularly met, there is often not enough space or time in the day to find recourse or justice for these violations that many human rights institutions would require. This is why any Indigenous-specific human rights institution must be low-barrier and easily accessible to the most marginalized.
An essential component of the work of an institution such as this would also be to denormalize violence against Indigenous women, girls, trans and two-spirit people, and the ongoing violation of human rights is yet another form of colonial violence. Having a process in place to seek justice for these violations would be an important way to provide a sense of justice and closure to people who so rarely receive this.
Families of MMIWG2S+ people often do not have adequate time or space to grieve the loss of a loved one as they must fight against systemic barriers and human rights violations in order to find some semblance of justice. Having an institution that is survivor-centred and accountable to communities is imperative, with the understanding that justice looks different for each family and survivor.
As with the broader MMIWG2S+ crisis and violence against Indigenous women, girls, trans and two-spirit people in general, there must be a prevention-based focus to the safeguarding of human rights. Much like how we cannot simply wait for another Indigenous woman to be murdered or go missing in order to take action, we should not wait for the human rights of Indigenous people to be violated in order to take action and seek justice.
Thank you.
The Chair: Thank you, Ms. Aguiar.
Cindy Blackstock, Executive Director, First Nations Child and Family Caring Society of Canada: Thank you, chair and members.
I have had a front row seat in one of the longest human rights cases in Canadian history about one of the most sympathetic groups. The question: Do we treat children fairly in the provision of public services, or do we give First Nation children less, even on the heels of the closure of residential schools? The answer by the Government of Canada was, “Yes, we treat them as if they are not worth the money.” After evidence and solutions were proposed and the government chose not to implement them — not failed but chose not to implement them — that led us to the door of the Canadian Human Rights Act. Through this experience, we’ve had a number of observations that I want to bring to the committee’s attention about accountability.
First of all, you cannot rely on the logic or the morals of a government or any other institution to hold up human rights. The Government of Canada from the outset argued the case on jurisdictional grounds. It tried to get it dismissed on eight different occasions using that argument, even though they knew in their own records that children were suffering and even dying. Whatever mechanism you set up has to take that strategy into account. It must not allow procedure and legal wrangling to usurp the merits of the actual case.
The Canadian Human Rights Act, through the tribunal, has achieved an enormous step forward in justice for First Nation children in this legal case, but it has done so because it had the courage to actually exercise good law within the constraints of the act. One of the things it did was it created non-compliance orders from the Canadian government. When the case was substantiated after a 72-day trial and the tribunal issued its ruling saying, “Stop the discrimination and prevent it from happening again,” most respondents would do that, but the government didn’t, and we have had 20 non-compliance orders since then. So whatever mechanism is there, first, it has to have teeth in order to order a remedy and, second, it has to have teeth to hold to account on a non-compliance procedure. In my view, an improvement to the Canadian Human Rights Act would be added sanctions to respondents who do not comply with legal orders.
The Canadian Human Rights Act ought to include funding for individuals to bring systemic complaints. You might have heard of the Matson decision that prohibited cost awards. In our case, we couldn’t get any legal funding to bring the case, and even when we were successful, we could not get costs against Canada. Yet, we see class action lawyers getting funds from bringing a class action against Canada, and those cases often don’t remedy the human rights injustice. In order to promote human rights work that remedies the problem and fixes the discrimination, we need to ensure there is access to justice within that system with adequate legal funding.
Another amendment to the Canadian Human Rights Act would be to update it to ensure the compensation provisions are increased. The current $20,000 value was set in 1998. Even if it were adjusted for inflation, it should be approximately $36,000 in today’s dollars. When you are dealing with a respondent for whom money is not much of an object, then there should be additional sanctions that are in keeping with the size and the level of the breach.
I would also say that one of your jobs is to safeguard that tribunal and safeguard the human rights system. I’ve seen it being gutted by various governments over the years by not appointing members, reducing its funding and doing all these things to disable this important point of access for Canadians, including Indigenous peoples, to be able to uphold their human rights. One of the major things is to hold the system as it is and then build that improvement.
Another point we saw at the tribunal is there needs to be opportunities for children’s participation in systemic cases. This was a right guaranteed to children under the United Nations Convention on the Rights of the Child. There are abilities for kids to testify in criminal proceedings and family court, but there is no such safeguard for children to testify in systemic cases. That’s something to think about in terms of your work. What is the way that children can feel safe and participate in these types of fora?
There also needs to be consideration of children and families themselves needing direct access to this. We find this at The Caring Society. Even though we made some gains with the government in terms of its compliance, there are still serious non-compliance problems on Jordan’s Principle. We have had families come to us and say, “Look, we can’t wait six weeks for the legal process to work its way through or to have an appeal or for the bureaucracy to do its work.” We have actually tapped into our own money to make sure, for example, that a family with a child in palliative care didn’t have to spend their last few days fighting with the government. You need that kind of compassionate resource and response so that people are not left waiting.
I would also argue for injunctive relief in whatever process you have. Even if we took the time when we filed this case in 2007 with the Assembly of First Nations to the judgment, that was nine years. That is a whole generation of kids. We were not able to change things for them during that time period. There obviously has to be injunctive relief during those periods of time.
The other point I would make is there needs to be protections against retaliation. Canada has one of the weakest protections against retaliation for persons who bring human rights complaints or are whistle-blowers. This is unacceptable. I myself experienced retaliation by the Government of Canada. This is not a matter of opinion; it is a matter of legal record. It has such a chill effect if particularly vulnerable communities don’t feel safe coming to the fora that are supposed to address their human rights or if witnesses who have to participate in that process somehow feel that the government or some other entity will cut their funding.
There is a great group called Front Line Defenders. I highly recommend that you reach out to this international organization to see how you can enfranchise in Canadian domestic law and in the human rights system itself safeguards for persons, prohibiting retaliation and allowing for injunctive relief.
In my own case, Canada was monitoring my online movements, following me, making notes about meetings I was at, et cetera, and this went on for many years, but the order didn’t come down for four or five years after that. In the meantime, there was nothing to stop Canada. Even when the order was made in the Canadian Human Rights Act, all they could do was award me compensation, not make an order for them to cease the behaviour. This is an important area of exploration for the committee.
A final point is on the importance of having clarity in access to what the procedure is. When we filed the case, the PR was, “Well, this is something that is citizen-friendly,” and I thought,“ Oh, good,” because at that time I didn’t have a law degree. I took one later, but at the time I didn’t have one. If you make the process too obscure, then people can’t participate in it. What is natural for lawyers to do is not necessarily natural for citizens. Canada will launch the largest law firm at you, which is the Department of Justice, and they are going to billow you down in all kinds of jurisdictional questions and procedural items and disclosure and all of these things. While due process is important, we need to find a way of making that accessible so that even a person who is not represented could actually access justice in that forum.
Most importantly, I would ask one thing for you not to do, and that is to launch another Trojan Horse or a paper tiger. I’ve seen far too many advocates with no teeth. They make recommendations that then sit on the books, and they never change people’s lives and never remedy the discrimination. The use of those kinds of official procedures to mask any kind of action has got to be rejected. If the answer is, “We will come up with somebody who will be there to go out and listen to people,” that’s not what we need. We’ve already done that work. We know what the solutions are. That’s where the National Inquiry into Missing and Murdered Indigenous Women and Girls have their Calls to Justice. What we need is someone who is prepared to launch systemic and individual litigation, if necessary, when governments don’t do better when they know better.
Thank you.
The Chair: Thank you, for that, Dr. Blackstock.
Krysia Przepiorka, Lawyer, Indigenous Bar Association: Good evening. My name is Krysia Przepiorka. I am a criminal defence lawyer out of Calgary, Alberta and a member of the Indigenous Bar Association.
The comments from the Indigenous Bar Association are that there is a concern of lack of engagement or consultation with the Indigenous Bar Association itself. The IBA has members across Canada over a wide scope of legal practices who are available for engagement, but thus far, the IBA feels there has been a lack of engagement in utilizing the legal services of their membership.
That’s our comments at this time. Thank you.
The Chair: Thank you, Ms. Przepiorka.
We will move to questions from senators. To help keep us on time and ensure equity to all, each senator will have five minutes for a question and answer exchange, and we will have a second round of questions if time permits.
I will start by asking a question of Dr. Blackstock and to anyone else who wants to jump in. We heard witnesses say that systems put in place by human rights institutions are not culturally relevant, nor trauma-informed. You also mentioned shortcomings with regard to the treatment and participation of children in such proceedings. In your perspective, what could be done to improve the way institutions work in these contexts?
Ms. Blackstock: We were fortunate. We filed this case in 2007. You may remember that the Canadian Human Rights Act at that point had a prohibitive clause that said you couldn’t bring any cases related to the Indian Act. That was only removed in 2009, so our case literally was the first one that ever made it to the tribunal. We were fortunate with the panel members who allowed space for ceremony, allowed space for elders’ testimony, adopted the Aboriginal guidelines from the Federal Court as regular practice and made space for children to participate. I know they are still sitting on the case, but to me, it’s worth studying that case to see how that panel adapted the courtroom to be welcoming to Indigenous peoples and children. It was not only First Nations children but children of all different diversities who came into that place and felt comfortable. I think that’s important.
The other thing I would say is that we were able to take that same spirit up to Federal Court. Some people say in this case that it’s a runaway human rights tribunal. I have seen the papers write about it that way. Well, the truth is that we have been to Federal Court seven times, and they have upheld their decisions every time. We’ve even been to the Federal Court of Appeal, and their decisions get upheld. So this is not a runaway group. This is a group making good law. Their practices were actually adopted by the Federal Court, so we were able to bring children into the Federal Court. We were able to bring ceremony into the Federal Court and into the Federal Court of Appeal. So there is definitely a way of being able to do that if you have an open mind in the judiciary and a welcoming space.
The Chair: Thank you, Dr. Blackstock.
Ms. Aguiar: In the context of our work at Iskweu, something we hear so often from families is what Dr. Blackstock was speaking to — this lip service of constantly having to tell your story and of people wanting to listen and talk to you. That can be quite damaging for people when there isn’t any follow-through or concrete action. I think it is extremely traumatizing or retraumatizing for families to have to do that. I think it’s really imperative that people can have some sense of closure or justice and that there is adequate accountability to ensure that happens.
The Chair: Ms. Przepiorka, do you have any comment?
Ms. Przepiorka: No. Thank you, sir.
Senator Arnot: Thank you very much to the witnesses for coming tonight. I think this is an excellent panel.
I would like each one of you to answer this question, if you can help me with this. When I look at the existing human rights system in Canada, I see it as a colonial model. I see litigation as a colonial model. I see the fact that litigators love to litigate. That’s what they do. In the case you’ve been involved in, Dr. Blackstock, I’ve used it as a textbook example of abject failure of the human rights system.
My question, then, is this: I think there is an opportunity here to create a national human rights ombudsperson and a national human rights tribunal separate and apart from the existing model of the Canadian Human Rights Act and the Canadian Human Rights Commission. It would be designed to ensure that it wouldn’t be a replication of colonial thinking and a colonial model where the only place you can go is a place of litigation and advocacy. I believe there is an opportunity to create mediation and use other problem-solving tools to deal with Indigenous issues in a much more effective and accelerated way and not stretch something out over some 15-odd years or so. I would be interested to know what you think.
Dr. Blackstock, I think you are probably the best person in Canada to tell us how to do things in a different way or how to create something that’s completely different, respectful and designed by Indigenous people to be applied to Indigenous people. I would just like your advice on that kind of thinking, because I see this as an opportunity to do something completely different. I think you are kind of saying that the existing system could be fixed if we do these 8 to 10 different things, and that may be an appropriate way to approach it as opposed to something that’s different. The thing that is different is that all these itemized issues are very much litigation-oriented — for instance, injunctive relief.
I just need the advice of all the witnesses about what they think this should be and how to protect it from being just another colonial model that doesn’t really serve Indigenous people well and actually doesn’t serve any Canadian well.
Ms. Blackstock: We had actually tried mediation. We tried circles. We tried reports. We sat with government. We developed the solutions with government. They chose not to implement it. Sheila Fraser, then auditor general, confirmed independently our findings of the inequality.
The question is this: If you are not going to litigate against a respondent who is choosing not to remedy the discrimination, then how else do you do it other than litigation? I think you are going to have to have litigation as a tool. In fact, in our case, we had tried for 10 years before we filed the case to actually bring Canada to a point of alleviating harms to children. However, when it was clear they were not going to do it, we owed it to the children to take up the litigation. Then there were several times throughout it that we went to mediation. Either Canada refused, or they were just paying lip service and wouldn’t comply. It led to that. That doesn’t mean it can’t include some other processes, but when you are dealing with a respondent who is dug in and does not want to do something, then talking circles will not work. Mediation will not work. Therefore, there needs to perhaps be a more holistic kind of menu of options that you can choose in given situations. That would be my advice.
Senator Arnot: So you could have a stream of some processes that would be completely different, but you would have a more friendly stream of litigation.
Ms. Blackstock: That’s right. I think we need to stand back and look at this. We’ve been able to achieve, through this piece of litigation, over three million services to First Nations kids that otherwise would have been denied. For the first time in history, there are big injections of moneys to keep First Nations families together. None of that came in the previous 150 years, even though there were recommendations on the books to remedy those inequalities.
The Chair: Ms. Przepiorka or Ms. Aguiar, do you have any comment?
Ms. Przepiorka: Yes, thank you, sir.
Perhaps I can address this more from a lower level. My area of focus is criminal. One of the things that Calgary has started since 2019 is the Calgary Indigenous Court. The function of that court is a therapeutic, holistic approach that takes individuals in the justice system out of mainstream court into a specialized courtroom. When you walk into that courtroom, it opens with a smudge and an elder’s prayer. The setting of the courtroom is such that everybody is at the same level — it is circular — so that everybody has the same voice, so to speak, within that court.
On the functional aspect of that court, there is a case management team that has been set up as a resource in the community that allows the participants of this particular court to work through therapy, whether it is trauma, addictions or traumatic PTSD. There are resources in the community that are linked to this. All of this is without government funding, but it was set up through the court itself. Really, it was to allow the participants to have a voice, and a voice that’s heard. They come to court. They speak what they are working through. They speak to the milestones they have achieved. Every two weeks, they come and update the courts.
What this court also offers is accountability circles, or peacemaking, and that’s part of the case management table with the resources. That also allows for the participant and what would, on file, be the complainant, whether it is domestic, intimate relation, familial or the community at large, the peacemaking or the healing aspect to grow larger than the participants themselves.
As well, there is an option available, if the complainant on a file does not want to participate, to allow the participant to continue down this path to becoming a meaningful, contributing member of society. They are able to find surrogates to step in and allow that process to take place.
So while this is on a small scale, some of this work has already commenced in our justice system, but it is still in the context of litigation. I don’t know if that was helpful, but that was the best example I could give. Thank you.
The Chair: Thank you.
Ms. Aguiar: From our work with MMIWG families and with survivors, again, folks we work with are really just trying to survive each day. At the most basic level, the most basic of their rights are not being met. It is really asking a lot of these people, these survivors with whom we work, to even sit down and do a mediation-type process or to even go to ceremony. A lot of times there are requests for people to be sober at ceremony, for example. A lot of the folks we work with are even excluded from cultural activities when they are probably the ones who need them the most. For the family member of someone who is missing or who has been murdered or is facing a lot of violence, or all of these things, instead of waiting for them to come forward, we need to start proactively addressing these violations so that folks don’t have to fight just to have their most basic needs met.
Something that we really try to do in our work at Iskweu is to centre the people who are facing the most types of marginalization, multiple intersecting forms of marginalization, and how can we give these individuals, the people who are the most excluded, access to their most basic human rights. That is a big question, and it’s hard to have the ability to engage in these processes when people are just fighting to survive every day.
We know very well what needs to happen for these folks in survival-type situations, facing high lethality situations of violence. The calls to justice are available. There needs to be greater accountability measures to ensure those are adequately implemented as well. Thank you.
The Chair: Thank you, Ms. Aguiar.
Senator Sorensen: My first question I will direct to Ms. Aguiar. I wanted to talk a little bit about the shelter that, as I understand it, you operate. If my notes are correct, you provide services exclusively to Indigenous women and their children?
Ms. Aguiar: Yes, The Native Women’s Shelter of Montreal is the organization with which Iskweu is run, but our service is more of an outreach-based service, so we don’t actually work at the shelter, but the shelter is presently the only resource in Montreal where Indigenous women and their children can go.
Senator Sorensen: I will ask my question in understanding that you may not work directly with that aspect of it. I am curious, when children end up in a shelter — it is traumatic for any mother and child — in the instance where Indigenous families are often not receiving the same services that other people might, what happens to a child that ends up in a shelter, especially if they had any special needs like health needs or educational special needs? Are children who live in a shelter able to access education and medical services? In the context of our conversation tonight, I mean Indigenous children.
Ms. Aguiar: Right. In the context of children in shelters, it’s extremely hard to even find a shelter that will take a mother with children.
Senator Sorensen: Right.
Ms. Aguiar: And that’s assuming she only has one or two children. If somebody has four, five, six children, then it is quite difficult to find a shelter that will take all those children in and also be able to respond to their cultural needs as an Indigenous family.
For example, in Quebec, survivors of domestic violence are subject to having their children removed for exposure to domestic violence. However, that mom wouldn’t be offered support in exiting that relationship, finding housing and finding financial stability in order to move her children to safety. Mothers are placed in quite an impossible position in securing shelter space to begin with.
Senator Sorensen: Thank you for that.
I will direct my next question to Dr. Blackstock. I do want to apologize for my ignorance on this history. I’m here to learn, so I will ask questions that I just don’t know the answers to. I loved your opening statement. I understand that there was a case that dates back to 2007. The notes that I have in front of me say it was landmark decision. I am gathering that whatever that decision was as to what to do about this case, it has not been followed through on.
Ms. Blackstock: Right.
Senator Sorensen: One other thing, and then I will let you go with that. I also note that you make reference to the government. Since that time, there have been different governments. What I’m hearing is that it doesn’t seem to matter what government, the solutions and responsibility and accountability have not been forthcoming.
Ms. Blackstock: That’s correct. If you are designing a good human rights system, it has to be effective regardless of who is in government.
Senator Sorensen: Right, removing the partisanship piece.
Ms. Blackstock: Exactly.
The case itself was where the Government of Canada was providing funding for public services for First Nations children and doing so at a far lesser rate than everybody else. That, along with the trauma of residential schools, was resulting in First Nations children being separated from their families at greater rates than in residential schools, six to seven times the rate of other children back then.
When we did that report in 2000, we had solutions that we crafted with the government to remedy it. They chose not to do it. They did another report. The inequality deepened, and so did the hardships for kids. That’s why we filed that legal case, to try and remedy that unequal funding that the government already acknowledged was on their books.
Senator Sorensen: In your last response, you made reference to funding. You used an amount of money. Where has that fit in?
Ms. Blackstock: The tribunal substantiated the discrimination in 2016 in a landmark ruling. It ordered the Government of Canada to stop —
Senator Sorensen: Sorry, in 2016 from 2007?
Ms. Blackstock: That’s right. It took us to 2016 to get the ruling. Since 2016, there were non-compliance orders forcing the government to remedy some of those inequalities. The three million services being provided to First Nations children, that’s a result of an order by the tribunal. It’s 2017 CHRT 35, and it is an order for the government to fully implement Jordan’s Principle as a non-compliance order, and that’s when they did it, from there.
Senator Sorensen: Thank you. Very helpful.
Ms. Blackstock: You are very welcome.
Senator Martin: I’m glad I’m following Senator Sorensen because that has helped me understand the context of the testimony.
Thank you to all of the witnesses.
My questions are for Dr. Blackstock, but first of all, thank you for the list of suggestions on how to improve the current tribunal system. In fact, it makes me think that, with your experience and expertise built over the years of being on this case, you would be a great advisor if not one of the architects of this proposed Indigenous tribunal. That’s just a comment and my observation.
You mentioned in your remarks, which I thought were packed with so much good information, Front Line Defenders? That’s not a Canadian organization? It’s an international organization? Can you talk a little bit more about that, and do we have an equivalent organization or something like that in Canada?
Ms. Blackstock: Thank you for your question.
Front Line Defenders is an international organization. My understanding is that it was started by folks in Amnesty International who were surveilling the international human rights system and saw human rights defenders being persecuted. Their motto, I think, is, “Protect One, Empower a Thousand”, and they are safeguarding peaceful and respectful human rights defenders, by the way, not just anybody who is out there complaining.
They provide training for human right defenders. They do advocacy with states about how to strengthen their mechanisms to avoid retaliation against human rights defenders. They’ll provide you with basic supports: for example, things like how do you make sure that if you’re being followed by a state or by a drug cartel or whatever it looks like around the world, how can you keep yourself and your family — and sometimes your colleagues in an organization — safe while you pursue the human rights issue? They have all kinds of great resources, and I personally have found them to be of a lot of support. They’re a well-respected organization. They are based out of Dublin.
There is no clear-cut Canadian equivalent. There are different organizations that advocate for whistle-blowers, but nothing of that nature.
Senator Martin: The work that you do at your First Nations Child and Family Caring Society of Canada is also providing the front line support to families. I was wondering how legal aid and other support services can be structured to ensure that Indigenous individuals, especially those in remote or underserved communities, have adequate access to these human rights institutions?
Ms. Blackstock: I think our friends at the Indigenous Bar Association would have some good advice on this one.
I would say that when you’re looking at access to justice in rural and remote areas, it’s really important that people have a variety of pathways to be able to access that, and it’s not just relying on Zoom. Our colleague Laura Aguiar was talking about the sensitivity of personal stories. It seems to me there are a lot of different actors who could seek justice through an accountability mechanism, but if it’s a personal story, you may well want to have that personal interaction. It’s important to be able to create mechanisms for travel for people, but also, like many of the courts do, go to some of these rural and remote communities and have the legal services there and train up community members to be able to provide peer support for those people as they’re going through the process.
My focus is more on the systemic cases, and a report that I can recommend to you is by Naiomi Metallic and her colleague Hadley Friedland. It’s, Doing Better for Indigenous Children and Families: Jordan’s Principle Accountability Mechanisms Report. It speaks to a kind of three-pronged system where there would be access to justice for children and families and young people, and then there’s another system that would deal with some of the systemic issues. It’s kind of a combination, tribunal and accountability, very much along the lines that you’re exploring now. I think her ideas that she’s documented in that report are certainly things that I really want to see implemented in Canada.
Senator Martin: Would Ms. Przepiorka wish to answer my question regarding legal aid and other support services?
Ms. Przepiorka: Thank you.
What I can say is — at least what I’m familiar with — within British Columbia there are the Indigenous Justice Centres that have numerous locations spread out across the province that allows the remote or more remote communities to have access to lawyers. They’re sort of leading the way in terms of access to justice with culturally competent representation at the earliest opportunities.
I can tell you Alberta has just started their pilot project in Calgary. Unfortunately, the focus right now is on criminal. I’m chairman of that board, and the focus is on criminal because that’s what I understand at this point. The idea is, once we are established, to branch out, because something that I have, at least, noticed throughout the years of my career is it’s not just access to justice but access to culturally competent representation in whichever area it is that you are requiring this representation. It’s been a slow change, but it is coming, and what I’ve noticed is British Columbia is leading the way with their Indigenous Justice Centres. It’s a long process. For us to set this up in Alberta, even just to focus on criminal right now, it’s taken us over a year, and we’re sort of the pilot project in Alberta. Again, this is without the support of government. We’ve had to go to outside agencies for these projects.
Senator Martin: Thank you.
The Chair: I’ll jump in with a question here for all three witnesses. 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? I’ll start with Dr. Blackstock.
Ms. Blackstock: Absolutely. They should be able to make orders as well as ascribe penalties for non-compliance with those orders.
The Chair: Thank you for that.
Would our other witnesses like to comment?
Ms. Przepiorka: I would just echo the comments, absolutely.
Ms. Aguiar: Yes, I would also echo the comments of Dr. Blackstock. Thank you.
The Chair: Thank you for that.
Senator Coyle: Thank you to each of our three witnesses that are here tonight. I actually have a question for each of you. Hopefully, I’ll have time to get them in.
Dr. Blackstock, one of the key things that you spoke about was the shimmy-shammying around jurisdictional grounds: “No, that’s not our jurisdiction; it’s their jurisdiction, and, therefore, don’t bother us.” How do you see this new Indigenous human rights tribunal and the associated ombudsperson setting things up in a way that that cannot be tolerated? Is there some specific advice you have? Obviously, there are going to be interjurisdictional issues. There are going to be specific jurisdictional issues. Just from your experience, what kind of guidance could you give to us?
Ms. Blackstock: It’s an important question, and I want to think more about it, but two things occur: There are two ways where jurisdiction really got in the way of justice for kids. The first is the government’s attack on the system itself, saying the Canadian Human Rights Act actually doesn’t have jurisdiction over this case, or — and this gets to the important comments by Senator Arnot — there are other fora that we should be going to instead of litigation. But we had already been to those fora, and they hadn’t acted on those fora. So I think you need to prepare for that and really look at any legislation so that for those types of challenges of the actual act to be able to hear the case, that those doors are closed as much as possible.
In terms of jurisdictional disputes between mechanisms, I think that Jordan’s Principle is really helpful there. I’m not a lawyer, but we have the benefit of having lawyers on this panel, so maybe there’s a way of being able to do that and allow for citizens and, maybe, organizations — whoever is bringing the matter forward — to have a choice of fora, and then that has to be respected, and the jurisdictional dispute about who gets to hear the case or whatever is resolved behind the scenes. I’m sure my colleague from the Indigenous Bar Association has some thoughts on that.
Senator Coyle: Thank you.
Ms. Aguiar, thank you so much for the work that you’re doing. Your insights are so valuable to us because we can tell you’re right there and right on the front line.
I would love, if you could, for you to tell us a little bit more. You talked about having a more prevention-based focus, and I believe you said something in answer to one of the questions about dealing with these violations proactively. Could you talk about both of those statements that you made and unpack them a bit more for us?
Ms. Aguiar: Absolutely, and thank you for asking that.
I have the feeling that it’s really asking a lot of someone who, again, is living in survival mode and who doesn’t have access to their basic needs. Those things should just sort of be a given. The way that we address preventing folks from winding up in these survival-based situations is — if we look at the number of, for example, Indigenous survivors of sex trafficking, the number of those survivors who have been through the child welfare system is extremely high. For human rights violations in the context of child welfare, if we look at addressing the child welfare system, it is preventing women from falling into these highly dangerous situations where it’s really hard to even think about what is going to happen in 15 minutes or what will happen in an hour if your needs are not being met right now. There is a base level of protection that is required that a lot of survivors just don’t have access to at this time.
Senator Coyle: I want to make sure I’m understanding what you’re saying. I thought I heard a couple of things there. One was more attention to upstream, if you like, efforts to prevent people from getting to the stage that you’re talking about, that extremely vulnerable situation, so investments at that level; and then, when they are at the level of vulnerability that you’re describing as adults, provide them with their basic needs and don’t — it’s not to say don’t expect a lot from them, but be cognizant of the importance of stabilizing that situation with that person. Is that what you’re getting at?
Ms. Aguiar: Yes, that is what I’m getting at. As well, looking at implementation of the Calls for Justice outlined by the inquiry is so imperative, and work in alignment with addressing the human rights violations of Indigenous women, girls, trans and two-spirit people and, again, preventing violence and preventing violations.
Senator Coyle: Thank you.
I do have another question, but I’ll probably need to go to the next round.
The Chair: We won’t have time, unfortunately.
Senator Hartling: Thank you to the witnesses for outstanding presentations tonight on all different levels, from people living in the shelters to working in the community and the legal aspects.
Do you have any specific examples of well-designed human right frameworks in any country that we could look to that would be a good example, a shining example? Has that been done? Is it happening? Any thoughts? Dr. Blackstock?
Ms. Blackstock: I focus again on a systemic case where you have a respondent resistant to addressing the discrimination. If the Canadian Human Rights Act had improvements that would have given the tribunal members more ability to stop the shenanigans by the government and deal with this as a procedural matter versus what was really a devastating human rights matter with clear solutions, that would have been an improvement.
We talked about retaliation earlier on. When we filed that case as a non-profit, we lost all of our government funding within 30 days, and the Assembly of First Nations got a very deep funding cut. Now, up until today, amazingly enough — and thanks to the communities and everybody else — we are still, at The Caring Society, the only national non-profit for First Nations, Métis or Inuit peoples that doesn’t get money from the government. Other than what it is court-ordered to pay us, we’re independent. There needs to be independent mechanisms to bring cases like this, because the communities themselves are so busy doing the important work of servicing community members. They are also vulnerable because many of them are receiving funding from Canada. When we were asked to bring this case, or discussing this with communities, they would say, “Well, if we raised a concern about Canada and we took them to court, then we may not get the funding we need for our domestic violence shelter,” or whatever it was.
It was the guidance of elders in creating The Caring Society that said you have to have an organization that can die in this litigation. You should never fall in love with The Caring Society, never fall in love with your business card, only fall in love with the children, because you might have to sacrifice both those things for them. And we did. We went all in. The reality is that not everybody can do that.
When you’re looking at setting up a system, there are examples like the U.S. Native American Rights Fund, where there’s this group of lawyers that is able to help with systemic cases and bring those forward so that it’s not up to the individual nation or a member to bring the case. You can bring it into an instrument that is arm’s length from government and can actually take those courageous stands. That’s really essential.
Senator Hartling: Thank you.
The Chair: I am going to Senator Coyle for the last question, and I’m going to ask our witnesses if they wouldn’t just mind putting their answers in writing due to time limits.
Senator Coyle: It’s a question for Ms. Przepiorka. You’re representing the Indigenous Bar Association, and you did not give a long statement at first. I think I heard you correctly saying that the big issue for you is that the members of the Indigenous Bar Association have not been sufficiently engaged. Could you, in your written response, explain in a little more detail what you mean by that and how you would see that looking, ideally? Maybe it’s like what you were suggesting, like the U.S. system. —
The Chair: I wish we had more time, but unfortunately we have witnesses waiting for our next panel, so our time for this panel is complete. I would like to again thank all witnesses for joining us today. If you do wish to make any subsequent submissions, please submit them to Andrea Mugny, our clerk, within seven days.
I would now like to introduce our next panel of witnesses: from the Heiltsuk First Nation, Maxwell Johnson, member, and Maria Martin, councillor with Heiltsuk Tribal Council. As well, from the Pekuakamiulnuatsh First Nation, we have Patrick Courtois, elected councillor of the Pekuakamiulnuatsh First Nation of Mashteuiatsh.
Wela’lin. Thank you for joining us today. Witnesses will provide opening remarks of approximately five minutes, to be followed by a question and answer session with the senators. I will now invite Maxwell Johnson and Maria Martin to give their opening remarks.
Maria Martin, Councillor with Heiltsuk Tribal Council, Heiltsuk Nation: Good afternoon. My traditional name is Q’umala. My English name is Maria Martin. I’m an elected member of the Heiltsuk Tribal Council and a member of the Heiltsuk First Nation.
Existing human rights mechanisms are inadequate as they do not consider Indigenous identity as a protected ground. This is what I am suggesting here. Indigenous identity needs to be included as a protected ground at the Canadian Human Rights Tribunal.
Our hope is that the testimonies we speak today of our lived experiences will be a witness that necessitates fair, equitable and just human rights for all Indigenous people. Indigenous peoples in Canada have a rich and unique history as the First Peoples of these unceded lands. Our human rights have been ignored and abused since colonization. This means that we cannot and do not live without discrimination and racism in today’s world. No matter where we are, it exists, and it is prevalent.
We were forced to live under a set of laws that governed where we live, how we live, how we can identify, what laws we can practise and what language we can speak under the Indian Act. Our children were taken away to Christian-based residential schools under the threat of the imprisonment of our parents. Our children and Indigenous families lost many aspects of their lives: culture, language, family relationality, traditions and laws. The children did not gain anything from attending residential schools. They were, in fact, institutions, and in no way education. They stripped every child of who they were. It was forced training and domestic and farm labour, and it included many atrocities that we are currently hearing on the news today. These institutions were meant to crush and diminish our identities. Note that some 154 children to date did not return home from these institutions. Further colonialism impacted the day school, the boarding school and the Sixties Scoop, which were all continued attempts to eradicate who we are as Indigenous people.
Our moral and legal rights were continually diminished by Canada and the Crown. We couldn’t vote; we couldn’t buy land; we couldn’t get a bank loan; we couldn’t hire lawyers; we couldn’t get a Western education — all under the Indian Act, a paternal and controlling document that continues to marginalize Indigenous peoples to this day.
These are just a few examples of the ongoing impacts of discrimination since colonization. In every system we encounter, our basic human rights are in disparity. The existing human rights mechanisms that have protected grounds of race, ethnic origin, colour or religion are inadequate for Indigenous people. They do not acknowledge the trauma and the intergenerational trauma that impacts most of us. They do not capture the terrible past that Canadian and colonial laws have forced upon us and the ongoing consequences of these laws, such as systemic racism. They also do not capture the unique relationship that Canada and the Crown have with Indigenous peoples and the obligations which Canada and the Crown owe to Indigenous peoples. There needs to be an additional protected ground based on Indigenous identity in every human rights mechanism in Canada. British Columbia already has this in place in its Human Rights Code.
I strongly encourage you to examine Expanding Our Vision,” a report by Madam Justice Ardith Walkem, which includes actions from the Truth and Reconciliation Commission, the MMIWG2S national inquiry and the United Nations Declaration on the Rights of Indigenous Peoples. It calls for incorporating Indigenous laws, increasing Indigenous staff and general involvement, public outreach and creating an Indigenous-specific complaint stream.
If Canada were to implement an Indigenous human rights mechanism, it would need to have the same role, power and privileges of the Canadian and provincial human rights commissions and tribunals. As Article 34 of the UN Declaration says:
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.
Since Indigenous nations have different protocols, mechanisms and laws for resolving issues, there is a need for nationwide consultation to incorporate Indigenous worldviews, customs and laws in a respectful and meaningful way.
To properly consider a national Indigenous human rights commission or tribunal, the Senate will have to undoubtedly do more consultation with all governing bodies in Canada to develop this sui generis programming. In the meantime, federal and provincial human rights tribunals and commissions can implement Indigenous identity as a protected ground.
Marginalized systems and processes continue to impede and have a place for Indigenous people. We stand before you today hopeful that our lived experiences and testimony mark movement for a better society which Indigenous people occupy.
Thank you.
The Chair: Mr. Johnson, do you have opening remarks you would like to provide?
Maxwell Johnson, Member, Heiltsuk Nation: Good afternoon. My official name is Walkesh, hereditary name passed on from my father, Matthew Johnson. My English name is Maxwell Johnson.
A few years ago, I took my granddaughter, who was 12 at the time, to BMO, the Bank of Montreal, to try and open a bank account for her in Vancouver. The people at the bank called the police because they thought our status cards were fake. They didn’t ask me any questions or tell me that they thought there was a problem. The police detained my granddaughter and me, and they handcuffed both of us. The human rights process ended in a settlement, and it was a step forward, but it was a very long process and the healing is not complete.
The Senate Committee asked if existing human rights protection mechanisms can be improved to better guarantee the fulfilment of Indigenous human rights, including basic rights. Yes, they must be improved. My experience with the VPD, Vancouver Police Department and the BMO was that I couldn’t open a bank account for my granddaughter. Instead, we were handcuffed.
I’m not alone. Lots of indigenous people have difficulty accessing basic services because of our identities. There’s a stigma around status cards. That was the problem with what happened to me and my granddaughter. A lot of non-indigenous people don’t understand how unsafe you can feel when you’re indigenous and trying to access services.
The human rights bodies I dealt with — the B.C. Human Rights Tribunal and the Canadian Human Rights Commission — don’t address the real impacts of discrimination and anti-indigenous racism. It’s about our culture and our community. When I was handcuffed, my whole community was impacted. It brought up painful memories of other times the police abused their power with Heiltsuk people. The Heiltsuk Nation and I wanted and needed a culturally appropriate resolution. In Heiltsuk’s legal tradition, if someone does something wrong, the wrongdoer is supposed to publicly apologize in front of the community. It’s a healing process.
There should be more room in our current human rights systems for indigenous laws and culturally appropriate resolutions to human rights complaints. New Indigenous-specific human rights institutions are required to guarantee the fulfilment of Indigenous human rights. Any new Indigenous human rights institution needs to really understand all the different Indigenous groups, legal traditions and cultures in Canada. I’m Heiltsuk, so what happened to me needed a Heiltsuk resolution, but someone from another nation might need a resolution from their own legal system. However a new system works, however it connects to human rights the way they are now, the focus should be on getting resolutions for Indigenous people who experience discrimination and human rights violations. It shouldn’t be another layer adding more barriers for Indigenous people.
The committee asked about federal and provincial jurisdiction and human rights. This is a big deal for me because I had to split up my case. A human rights complaint against a bank goes to the federal human rights commission. A human rights complaint against the Vancouver police goes to the B.C. human rights tribunal. To get any resolution with the specific police officers, that had to be in a discipline process under B.C.’s Police Act. These different jurisdictions — they don’t matter to me, and we shouldn’t need to work through all these different boxes. They’re not Heiltsuk boxes. They’re colonial boxes. The focus should be on how to best address the case when an indigenous person is harmed, not on which jurisdiction box to tick.
Walas giaxsixa. Thank you.
The Chair: Thank you, Mr. Johnson. We now go to Mr. Courtois for his remarks.
[Translation]
Patrick Courtois, Elected Councillor of the Pekuakamiulnuatsh First Nation of Mashteuiatsh: Kuei kassinu etshiek.
I’m Patrick Courtois, an elected councillor of the Pekuakamiulnuatsh First Nation of Mashteuiatsh.
On behalf of our First Nation, I want to acknowledge that I’m speaking this evening from Nitassinan, the territory bequeathed to us by our ancestors, over which we exercise our Indigenous rights and title, and which we’ve occupied for millennia and we still occupy today.
In recent years, we’ve had to take legal action, including before the Canadian Human Rights Tribunal, to show that our public safety service is underfunded by governments and that this amounts to discrimination.
The Canadian Human Rights Tribunal ruled in our favour in winter 2022. Despite a federal trial court decision in our favour, the case was appealed by Canada.
Our experience has shown us that, to this day, a colonial perspective permeates the human rights protection mechanisms in place.
By focusing on the individual, meaning individual rights, the current system fails to take into account the community, the key part of our nations.
The human rights protection mechanisms in place don’t cover reparations to the community. In a case such as ours, reparations should be made to the community as a whole. Our entire community suffers from the systemic discrimination that governments perpetuate by underfunding our public safety.
Furthermore, we find that cultural rights and the protection of these rights aren’t covered by the mechanisms in place.
We’re wondering whether we can rely on the services of a tribunal that focuses on the individual without taking into account the community, and that doesn’t include cultural rights. Jurisdictional issues with the provinces must also be considered. The tribunal’s decisions don’t systematically apply to the provinces at this time.
In our case, we’re also dealing with the issues resulting from the lack of staff at the Canadian Human Rights Tribunal. Even though the tribunal’s ruling in our favour has been appealed, no judge is currently available to hear the case at the Canadian Human Rights Tribunal. The lack of capacity is causing significant delays that affect our First Nation, which is still waiting for a satisfactory resolution to this case.
Even when staff shortages aren’t an issue, the delays are extremely long. In our case, we had to wait six years for a decision. This is a problem. During this time, our people continue to face discrimination and injustice.
We also believe that the people involved in Indigenous rights cases should receive specific training. Not all judges and prosecutors are respectful and aware of our realities.
We believe that mechanisms to protect Indigenous rights would benefit the First Nations, Inuit and Métis people across the country. However, these mechanisms should draw on Indigenous perspectives in terms of rights and reparations. The mechanisms should also ensure adequate and appropriate resources, including training for legal professionals.
Tshinashkumitnau. Thank you.
[English]
The Chair: Thank you, Mr. Courtois.
We will now move on to questions from senators, and to help keep us on time and ensure equity to all, each senator will have five minutes for a question and answer exchange. If we have time for a second round, we will go to that, if time permits.
Senator Arnot: Thank you, witnesses.
I have one question, and I will ask all the witnesses to address it. Do you believe an independent national Indigenous human rights ombudsperson and a national Indigenous human rights tribunal would be able to meet some of the rights-based justice needs for the people you represent and the experience your communities have had? That’s a generic question. You can answer it however you would like, but I would like to know the answer to that question, please. Thanks.
Ms. Martin: Yes, I believe that having an ombudsperson appointed is the start and a segue to addressing the discrimination and the injustice that continues to impact all Indigenous people, regardless of where we are. We are calling on you to partner with us and look to ways around addressing these systems that continue to fail and marginalize Indigenous people. I believe that’s one factor, an area that would be a meaningful start in implementation to address the disparity.
[Translation]
Mr. Courtois: I think that an ombudsperson and a tribunal that could exclusively handle Indigenous cases across the country may be a good idea. Of course, there’s a great deal of work to do, in my opinion. There’s the whole concept of collective versus individual rights.
The current legal system focuses on individual rights, whereas the legal system for First Nations should be based on collective rights. Obviously, I’m trying to figure out how to incorporate this concept into a legal system. So far, nothing of this nature really exists.
Cultural aspects must also be considered, of course.
Resources are needed. There’s a lack of resources just about everywhere, in every province at the moment, for each structure in place. It’s very difficult to address this shortcoming. We’re seeing this right now as we wait for the resolution of our public safety situation. The ruling was in our favour. However, we’ve been waiting for six years, and we still must wait, given the lack of capacity. No judge is available to hear the case on appeal.
In terms of a Canadian legal system, I wonder whether the system would be able to handle cases involving a dispute among a First Nation, a provincial government and the federal government. This applies to our current situation with regard to public safety. This concerns one of our cases. We’re funded by both the provincial and federal governments.
Once again, I’m trying to figure out how a Canadian Indigenous legal system could handle a situation that also involves provincial jurisdiction.
[English]
The Chair: Mr. Johnson, do you have anything to add?
Mr. Johnson: I call on — what is it? A person to — I can’t understand your writing.
Senator Arnot: Mr. Johnson, I want to acknowledge the shocking and traumatic nature of the incident you experienced. I can say, as a human rights commissioner in Saskatchewan, I have seen similar things. I had a case almost identical to yours in 2012, involving the Bank of Nova Scotia and the Saskatoon Police Service. It is a traumatic experience. You’ve been through the system. You’ve seen problems with it. I would like to know what you think worked, but more importantly, what can be done better and what would be done for an Indigenous human rights tribunal or an Indigenous human rights ombudsperson that would make your experience much more improved and that would acknowledge the trauma that you are saying is still not resolved?
Mr. Johnson: Thank you.
For me, having these two different tribunals was hard. Like, when we had the VPD piece, there were approximately three sitting in the meeting, and they didn’t introduce themselves until after I stopped the meeting. Having them come up and talk to me and tell me who they were would have been nice, instead of me stopping the meeting and asking who they were, so we could carry on. And me knowing more about the tribunal would have helped a lot.
Senator Arnot: Thank you for that. Is there anything else you want to add to that?
Mr. Johnson: No.
The Chair: I have a supplementary question for all three of you. Should access to free legal representation and other culturally relevant supports also be made available to Indigenous people who want to pursue a complaint through Indigenous human rights institutions? Ms. Martin, would you like to start on that?
Ms. Martin: Yes. I agree with having free legal supports in all levels, provincial and federal, to support any Indigenous injustice. We live in marginalized societies. Nothing comes easy. We have to always continue to do more for less. One example is regardless of how hard and committed one is in any position of employment, there’s a huge wage disparity, and having added costs and difficult circumstances may deter any pursuing of injustices around Indigenous rights. Just having that financial support is just one aspect that would alleviate a lot of stresses for any Indigenous person. Regardless of the system, federal or provincial, that would definitely be very beneficial in more ways than the financial aspect. Thank you.
The Chair: Thank you, Ms. Martin.
Mr. Johnson: Yes. I think they should offer that for people needing lawyers for a human rights complaint or any other complaint about the way they’ve been treated. Even though it’s been over three years from what happened to my granddaughter and myself, I still get messages on Facebook asking me how I got lawyers and to try to help them to find lawyers for themselves too, so I think it should be free for First Nations people to do what they need to do.
The Chair: Thank you, Mr. Johnson.
[Translation]
Mr. Courtois: We think that access to a free defence, for certain members of some First Nations, could be an attractive prospect, especially for many people or individuals and communities with insufficient funding or without the means to defend themselves.
However, this raises another issue. We’re comfortable with a free defence system for First Nations, as long as it doesn’t compromise the quality of that defence and it ensures that we receive proper representation.
[English]
The Chair: How important is it that the legal support available to Indigenous people is culturally relevant and trauma-informed? Ms. Martin, do you want to take that one on?
Ms. Martin: To be culturally informed —
The Chair: Culturally relevant to our culture and trauma-informed.
Ms. Martin: Culturally relevant and trauma-informed — I think that it’s a huge step in the right direction. All too often, the stereotyping in society has made it very difficult for all Indigenous people to navigate any systems, and advocacy is hard. To be culturally relevant and being trauma-informed in any circumstance, I believe, would make tremendous difference around the overall supports, the relationships and just the way society and systems deal with Indigenous people. Yes, that would be so ideal and positively impactful. Thank you.
The Chair: Thank you, Ms. Martin.
Mr. Courtois, you kind of touched on it in your answer. Could you comment a little more on that?
[Translation]
Mr. Courtois: Is this about the last question that you just asked?
[English]
The Chair: Yes.
[Translation]
Mr. Courtois: The legal system must take the cultural aspect into account. As in all countries, it’s a matter of showing respect for the people in the room.
It could be complicated, and we’re aware of that. There are a number of different cultures across the country. It can be a monumental task.
There may be a way to set up an entity responsible for determining the cultural attributes shared by all First Nations across the country, to ensure that everyone is included. If each First Nation expects recognition on the basis of cultural identity, this could pose significant challenges for legal institutions, given the variety of Indigenous cultures across the country.
However, I think that some progress can certainly be made towards the general recognition of a culture for all First Nations in the country.
[English]
The Chair: Thank you, Mr. Courtois.
Mr. Johnson, before we move on, do you have any comment?
Mr. Johnson: No.
The Chair: Thank you.
Senator Coyle: Thank you so much to our witnesses.
Mr. Johnson, I remember hearing about your case, and it must have been a really humiliating situation to be in, especially with your granddaughter. Thank you for being with us here, because you are a person who didn’t just take it. You came forward, and I think what you are doing for your own case is something that will bring value to other people. I want to thank you for that.
I have so many questions, but I think I will start, if I could, with Ms. Martin. I’m hearing two different things from you. One is advice on a national Indigenous human rights tribunal, which we are talking about here. I believe you said — maybe you can tell me if I am getting it correct — that such a tribunal would need to have the same role, power and privileges of our national and provincial existing human rights tribunals here in Canada, and it would be important for there to be a nationwide consultation in the development of it.
In addition to your advice on that tribunal, I believe your other recommendation is that we need to look at our existing Canadian human rights code and adjust that by adding an additional protected ground, which is Indigenous identity. You have said this is already in the B.C. Human Rights Code. Could you describe what the process was — if I have that correct — for getting that in the B.C. Human Rights Code? As well, could you confirm that it is a good thing to move forward on an Indigenous human right tribunal and ombudsperson, but at the same time you would recommend this other action related to our Canadian Human Rights Act?
Ms. Martin: Around the existing B.C. Human Rights Code, the declaration says that Indigenous people have the right to promote, develop and maintain institutional structures and distinctive customs, spirituality, traditions, procedures, practices, and, in cases where they exist, judicial systems or customs in accordance with international human rights standards.
Looking forward, we are hoping to see a process that is inclusive of what B.C. is leading the way on and have the tribunal begin to uphold the rights of all distinct First Nations in B.C. We have 203 different First Nations in B.C. alone, but we hear similar stories of the way in which injustices occur. There needs to be that added or incorporated consideration of human rights need in the system.
Senator Coyle: Thank you.
Mr. Courtois, you spoke about a number of things, in particular ensuring that individual and collective rights are well represented or considered in this new tribunal. You also spoke about the need for specialized training for judges and more adequate resources for staff so that justice is not delayed. Could you speak about that kind of specialized training? What do you see would be essential in that specialized training?
[Translation]
Mr. Courtois: The training mainly concerns the cultural aspect. It’s about taking a more Indigenous approach to the work involving people who may use this entity.
There are the cultural and social aspects. Various factors must be considered when talking to First Nations. It takes time to explain all this. A special approach is needed for people who aren’t fortunate enough to speak French or English. We need interpreters and judges who are more sensitive to this cultural aspect. If a senior speaks only their mother tongue, it’s very difficult for them to keep up. This slows things down. The person shouldn’t feel uncomfortable going to court or being there. The First Nations need special consideration.
These variables also differ from community to community and from individual to individual. Some people will find it easier to use this type of entity, while others won’t, because they don’t use a modern approach. On a cultural level, they won’t even think of using this type of entity. It will be vital to exercise a certain degree of sensitivity when it comes to the people involved in the legal system, including lawyers, judges and staff.
In my opinion, paying special attention to these small details concerning First Nations could make a world of difference in various cases.
Senator Coyle: Thank you.
[English]
Senator Prosper: Thank you to the witnesses for sharing your knowledge and experience in a wide variety of areas involving this area of study. I have three questions for each of you. I’ll try to be brief here.
First, Ms. Martin, I really benefited from your review of the history that Indigenous people have faced, from government policies to active acts of denial. You get into the point that racism is very prevalent, and you also talk about Indigenous identity as a protected ground. Part of what I heard you also discuss is incorporating Indigenous law. Could you get into that point of Indigenous law and recognizing Indigenous identity. Maybe later, with the chair’s permission, I can get into the other questions.
Ms. Martin: Around Indigenous law, it is incorporating our communities’ own hierarchy of leadership. I’ll use an example of our restorative justice system. It incorporates our culture, our customs and our traditions, and incorporating our identity and the manner in which we do things, whether it be a disciplinary or celebratory event. It really strengthens relationships and gives that historical context and awareness and knowledge of our identity. It changes a lot of relationships, it changes attitudes, and it really is a values-based process where there has to be a willingness to learn and be a part of the way in which we do things. That brings me to cultural competency. It’s different for all Indigenous people, but incorporating what that is going to look like in any process and involving Indigenous groups and leaderships brings full circle to accountability and really just making us a part of a process that is long overdue for Indigenous people. Thank you.
Senator Prosper: Thank you.
I could follow up with a question for Mr. Johnson. Thank you for sharing your story. I took note from Senator Arnot when he mentioned dealing with a similar matter. What I’m hearing from some of your testimony is the existing processes, typically, that deal with human rights-related issues are not holistic. It sort of fits within a colonial box, and there is really no culturally appropriate resolution process. You talked about your ways and the ways of your people, and you talked about that being a healing process. I’m curious if you could expand on this mechanism of a human rights tribunal. What are some of the things that it must do to incorporate your ways of knowing?
Mr. Johnson: Educating themselves about our ways of life. There are so many First Nations that have their own Ǧviḷ̓ás. That’s the word for laws in our language. Education is the most important thing for any institution to understand where they are and who they are dealing with. We have laws for our potlatches, and we have laws for our everyday life. I’m one of the cultural leaders for potlatches, and I’m one of the attendants that attend the dances. We have sacred dances, and there are laws for that.
I’ve been saying it to everyone since it began, education. Educate yourself on First Nations issues. The more you know about it, the easier life will be for everybody else. The apology ceremony we were supposed to have can’t be done because the two officers never showed up. In our way of life, we have to have everybody there to be accountable for what happened. It’s a healing thing for us.
I’ve been taught about our cultures since the early 1990s, and today I’m still learning about our culture. There’s a lot more to learn, and for understanding our way of life, I think the best anybody could do is just educate themselves.
Senator Prosper: I’ll be quick on this one, which is a question for Mr. Courtois. Thank you for your testimony as well.
One thing I would like to focus on is your mention that the system is quite colonial as it relates to human rights because it’s individualistic. You also mentioned — and I noted this — that community is central to our nation. I want to get your thoughts on that relationship or balance that you envision within a tribunal. How would you envision the balance between individual and collective rights within it?
[Translation]
Mr. Courtois: It all depends on the cases that the tribunal may handle. Of course, there are individual cases, because they concern individuals personally. However, there are also community cases, and Canada’s current legal system doesn’t necessarily take collective rights into account.
When it comes to a nation’s rights, the best example is land ownership. Our First Nation has never signed a numbered treaty. As a result, it has never ceded any land title. Some people in our First Nation think in modern terms. They believe that the hunting ground that they occupy as a territory is their individual property. However, from a technical perspective, our approach to maintaining the territory today is the same as it was before the arrival of the Europeans. Ownership of the territory is collective. It belongs to everyone at the same time, and so to one entity, one government. We must manage it as a community.
Unfortunately, the legal system doesn’t take this into account. It will take into account the rights of an individual, but not necessarily the rights of a group of people.
Honestly, I can’t give a specific answer. At this time, no legal system properly reflects the collective or non-individual aspect of Indigenous law, unfortunately. This could be a great doctoral topic for a future law student at one of the country’s universities.
[English]
Senator Prosper: Thank you.
The Chair: Thank you, Senator Prosper.
The time for this panel is now complete, and I wish to thank all our witnesses for joining us.
Thank you, Mr. Johnson. Your strength in speaking out has paved the way forward. It’s so troubling that so many First Nations people, including children, continue to experience persistent discrimination. This is also the case for the Mi’kmaq in Atlantic Canada, and I hope you find the support and justice you rightfully deserve and the situation improves for all of our First Nations people across Canada.
I would like to remind witnesses that if you’d like to make any subsequent submissions, please submit them to our clerk, Andrea Mugny, within seven days.
Thank you, senators, for being here tonight.
(The committee adjourned.)