Appearance before the Standing Senate Committee on Indigenous Peoples (APPA) on the Canadian Human Rights Framework - December 6,2023

Summary of Speeches

Professor Gunn briefly spoke to her research that has focused on implementing the UN Declaration on the Rights of Indigenous Peoples and other human rights standards. She outlined what she sees as challenges and opportunities for a new body that would provide oversight to the implementation of human rights. She described them as: 1) Clarifying that when this is being discussed, it needs to be discussed regarding international human rights standards such as the UN Declaration and the American Declaration on the Rights of Indigenous Peoples; 2) Ensuring that basic human rights standards are available to all people; 3) The current gap in human rights protections under the existing mechanisms given that none of the existing institutions have a specific statutory authority related to the UN Declaration, which leads to them being forced to interpret an international human rights instrument through their domestic enabling legislation which is the reverse of how things are meant to be done, and; 4) That Canada has not expressed support for, or implemented the American Declaration.

Professor Metallic spoke to her work which focuses on identifying the discrimination that exists in key services, one of the most notably being denial of the right to self-determination. She noted that her research was inspired by the National Inquiry on Missing and Murdered Indigenous Women and Girls (MMIWG) Call to Justice (CtJ) 1.7. Her research recommends that a National Indigenous Child and Family Advocate (an Ombudsperson) be created; that a Tribunal be established that could provide binding rulings over complaints when needed, and; that legal services be established so as to ensure Indigenous children and families have access to these new bodies. She said that to be truly effective, all three recommendations would need to acted on; that the bodies would need to be independent; that they would need oversee federal and provincial governments and service providers, and; that the bodies would need to be enabled by legislation. Similar to Professor Gunn, she noted that presently there are gaps in accountability as there is no federal ombudsperson or child advocate, even though the federal government is the primary provider of family and child services for Indigenous peoples. She also discussed how presently there is no body that can address both federal and provincial violations of rights in one place, and that given the history of treating Indigenous peoples human rights as a "hot potato", being passed between jurisdictions, this was a significant contributor to ongoing issues. She further recommended that similar to the Ombudsperson set up in Ontario, that specific Deputy Ombudspersons be appointed for specific areas, such as LGBTQ+. In closing, she said that while she is not opposed the establishment of the Council, set out in Bill C-29, that it is not a substitute to fulfill CtJ 1.7.

Ms. Hrick provided a background on the organization and expressed support for CtJ 1.7, noting that the organization had standing during the Inquiry. She provided support for the appointment of Jennifer Moore Rattray as the Ministerial Special Representative for this initiative and acknowledged the work of the First Nations Child and Family Caring Society of Canada in bringing these issues to the forefront. Ms. Shkopich-Hunter spoke to CtJ 1.7's call for both an Ombudsperson and Tribunal, noting that both are needed and both need to serve distinct functions. If implemented, the two bodies would work to provide oversight, accountability, and justice. She also said that funding and support would need to be provided to ensure the bodies could fulfill their roles. In closing, she said that for a long time Canada has been issuing reports and making recommendations, but not acting; and now was the time to act.

Key Questions

Senator Francis (PSG) asked how these new mechanisms would intersect with other bodies working in these jurisdictions. Prof. Metallic briefly touched on her report (which was provided to the Committee), and outlined how the Ombudsperson would provide a soft advocacy role on complaints, as well as systemic oversight of government activities, and to conduct own motion inquiries. She said that the Tribunal would be able to rule on complaints and provide substantial remedies. Lastly, the legal services would be needed to help people navigate this complex system. Currently, there would be no overlap federally as there is no federal ombudsperson. Provincially, when it comes to discrimination against children and families, she said that some provinces still refuse to adhere to Jordan's Principle, and the current bodies aren't adequately enforcing it. As a result, while there might be some overlap, there would not be very much given that the work that would be done by these new bodies is currently not being done. She also drew comparisons to the current regime of securities regulators, in that they exist at both levels of government and it works fine.

Senator Sorensen (ISG) raised issues that had previously been brought before the committee, the requirement to reapply for Indian Status, and the second-generation cut-off for Status. She asked if these issues would fall under Indigenous rights and if the witnesses believed the current second-generation cut-off was appropriate. She also asked if similar policies were in place in other countries. Prof. Gunn noted that under the UN Declaration, Indigenous peoples have the right to define themselves and determine who is a member of their community. With this in mind, what the government is doing is not appropriate. She said that in Canada she does not know of any groups that would define themselves using blood quantum, but that some Tribes might in the United States. That being said, she noted that this was not likely out of tradition, but out US colonialism and influence.

Senator LaBoucane-Benson (Unaffil) asked about Article 17 of the American Declaration and what kind of clarification it provides, above and beyond the UN Declaration. Prof. Gunn explained that this Article sets out the right to preserve, maintain and promote their own family system, and that the State needs to recognize and protect those defined family structures. It also clearly identifies that in all cases, generational and gender equity needs to be recognized. While this is similar to the intent of what is the UN Declaration, the American Declaration expresses it to a higher degree. She described this as a key distinction because there are challenges when the 'western perspective' of family is imposed on Indigenous peoples. She noted that in Cree, mother and father are verbs, not nouns, and that the implementation of this Article would recognize the connection of the individual child to collective group.

Senator Arnot (ISG) outlined his views on what the new bodies should look like and asked if witnesses agreed. Regarding independence, he asked if they agreed the bodies should have judicial independence; that the ability to render binding rulings was required; that the Ombudsperson should have a public education mandate, and; that to fulfill a comprehensive mandate, a comprehensive level of resources would be required. Prof. Metallic, on independence urged the committee to read her report, but agreed that the highest level possible should be sought. She noted that in the case of the Veteran's Ombudsperson, being created by the Executive and lacking teeth and power has limited its effectiveness. On rulings, she said that remedial powers are important, but that a supervisory role, such as the one that the Canadian Human Rights Tribunal has been playing in the Child and Family Services ruling is also key. She agreed with the need for the Ombudsperson to have a public education mandate. Lastly, regarding resources, she said that savings garnered by staying out of court by using these bodies could help fund them. Senator Arnot asked a similar question during the second panel. Ms. Shkopich-Hunter echoed the views of Profs. Metallic and Gunn.

Senator Tannas (CSG) asked if ultimately, these new bodies would apply to Indigenous governments. Prof. Gunn said absolutely, that Indigenous governments also need to be held to international human rights standards. She noted that there could be additional considerations that would need to be undertaken to make this transition, and that a colonial imposition of the bodies on Indigenous governments should be avoided. Prof. Metallic said that this was something they grappled with in her report. Indigenous governments have to be held accountable too, but that the real discrimination is happening at the federal and provincial levels. She urged for a co-development approach to expanding the authority.

Senator LaBoucane-Benson (Unaffil) raised the issue of increasing attacks on gay and trans people and drag art, particularly in the South but also present in Canada. She asked that since CtJ 1.7 was gender affirming, could this body develop expertise and be able to hear human rights violation cases on these groups. Ms. Hrick self-identified as a member of the LGBTQ+ community and agreed that there was a need for strong State mechanisms to deal with what the Senator had described, saying it was interesting to think about how this could relate to the mandate of the Ombudsperson and Tribunal called for under CtJ 1.7. While she said the bodies would need to center Indigenous rights and Indigenous communities in their work, it didn't mean there wouldn't be room to respond to these issues.

Senator Francis (PSG) asked if the existing Canadian human rights framework could be adapted to meet the needs being discussed, and if so, who should deliver the training required. Ms. Hrick said that while there was certainly room to improve things from where they currently stand, she did not think modifications to the current system would do enough. She echoed the points of Profs. Gunn and Metallic that the existing bodies don't center Indigenous rights and that there are too many barriers to access the current bodies. Ms. Shkopich-Hunter added that improving current systems would have been considered when writing the final report of the Inquiry, but the recommendation was to create new ones. As such, they supported the creation of new bodies.

Senator Sorensen (ISG) described the current levels of Indigenous women incarcerated in Canada as shameful and asked how it could be fixed. Ms. Hrick said that it was a result of systemic racism and colonialism, much of which has been brought to light through Bill C-5, and the Supreme Court case of R. v. Sharma. She said she hoped Bill C-5 would have a positive impact but didn't think it would do enough. She noted that she appeared at the Senate Committee that studied that Bill and advocated for the adoption of Senator Pate's amendment. Ms. Shkopich-Hunter drew attention to impact that the even more disproportionate respresentation of Indigenous women in maximum security facilities. Being in those facilities provides less access to rehabilitation programs and other services, making it more difficult to successful reenter communities upon release.

Summary of Speeches

Jennifer Khurana spoke to the work of the MMIWG Inquiry and the Calls for Justice, which is the basis of this meeting. She described the work, the independent role, and the reporting mechanisms of the Tribunal. She noted that most complainants don't have access to legal support during the process, whereas, often the organizations/institutions that they are alleging discrimination have legal teams. 140 complaints were received last year from the Commission, and this represents a continuation of year over year growth. She also described the role that the Tribunal plays in the mediation process whenever possible, with a significant proportion of claims being settled in this manner. She described the work being done to train on trauma-informed approaches and providing decisions in plain language so as to ensure they are more easily understood.

Amber Prince opened by speaking to the seminal report by Ardith Walkem, K.C., now Justice Walkem, who in 2020 published Expanding Our Vision: Cultural Equality & Indigenous Peoples' Human Rights, noting the report examines many of the questions the Committee is currently studying. She described the report as providing the BC HRT with truth and a roadmap to transform the Tribunal's processes into something that truly protects Indigenous rights and makes a real difference in the lives of Indigenous peoples. She outlined the creation, role, and make up o the Expanding Our Vision Implementation Committee which guides the implementation of the report's recommendations. She said that the EOV Committee offers the Senate Committee 5 recommendations:

• the work must align with the UN Declaration on the Rights of Indigenous Peoples;
• the Committee must work in consultation and collaboration with Indigenous peoples;
• the structure of consultation and collaboration must occur outside of a colonial process and demonstrate sincerity and respect for Indigenous people's laws, traditions and protocols
• the Senate committee must coordinate with other committees working in areas of Indigenous progress, such as education, housing, children and families and so on and not operate in a vacuum in order to appropriately respond to this call to justice, and;
• the Senate committee must ensure that they are accountable and transparent with information gathering, the interview process and a subsequent reporting of the Indigenous perspective on this issue

Patricia DeGuire expressed support for working with First Nations, Inuit, Métis and urban Indigenous peoples and organizations to address the failings of these systems to fulfill Indigenous peoples' human rights, speaking to a three days event done by the OHRC in 2018 on this. She recognized that there were "massive gaps in the system", between the needs of Indigenous peoples and services human rights systems provide. She explained that Human Rights Legislation does not recognize the unique status of Indigenous peoples or their constitutional status as First Peoples and that most tools used to resolve disputes are antithetical to most Indigenous worldviews. She said that the OHRC has received the following recommendations from Indigenous partners to improve the overall system. These include:

• Using the UN Declaration as the organizing framework for understanding and implementing Indigenous peoples' human rights;
• Amending human rights legislation to explicitly recognize the unique status of Indigenous peoples;
• Recognize collective rights and responsibilities;
• Require the appointment of Indigenous commissioners, adjudicators, mediators etc
• Permit the creation of an Indigenous-led Indigenous human rights division, and;
• Establish optional restorative justice processes and separate processes for dealing with systemic human rights complaints

Kathryn Oviatt explained that Indigenous has been a priority for the AHRC for decades, and that in 2021 they developed a comprehensive Indigenous human rights strategy, guided by an Indigenous advisory circle. She described one of the first actions under the strategy as being an organization-wide external review conducted by an independent Indigenous-owned third party. That review provided 23 recommendation specific to the AHRC. One of the major themes at the time was that while the AHRC was the correct institution to protect Indigenous human rights in Alberta, system reform was needed. She outlined five points for future reforms and initiatives:

• Any reforms for new processes need Indigenous-led initiatives;
• Indigenous diversity must be recognized;
• Reduce bureaucratic complexity and barriers;
• Address systemic discrimination, and;
• Increase financial resources available

Key Questions

Senator Francis (PSG) asked Ms. Khurana how an Indigenous ombudsperson or tribunal would intersect with the current mechanisms in place, such as the CHRT. Ms. Khurana said that it would be best to receive opinions and views from the people who seek to access these services.

Senator Patterson (CSG) asked Ms. Khurana about the percentage of complainants that come before the CHRT that are Indigenous. Ms. Khurana said that in 2022, the Canadian Human Rights Commission referred 140 new complaints to the Tribunal, and of those, 21% involved Indigenous people. She cautioned that this is based on self-identification. She provided a hypothetical example of Indigenous person making an allegation of discrimination by their employer on the basis disability, and they might not chosen to identify as Indigenous.

Senator Martin (CPC) asked what happens if an issue falls between jurisdictions and how someone navigates the system if this occurs. Ms. Khurana said that the Canadian Human Rights Commission is the first port of call for any complaints. For 2022, they received 763 complaints and that only those that are screened by the Commission can be directed to the CHRT. She said representatives of the Commission would be able to provide a more complete answer.

Senator LaBoucane-Benson (Unaffil.) asked if Ms. Khurana had any views on how the Committee could best study the Canadian Human Rights Act, given that it is a piece of legislation originally from 1985, and while updated since then, might require additional changes. Ms. Khurana noted the La Forest report which laid out some recommendations, and noted common areas where updates are recommended to the Canadian human rights system include: delays, accessibility, the filing process, and existing remedies.

Senator Audette (PSG) asked if the AHRC has any lessons that they can share regarding accountability for action on Calls for Justice, how does the AHRC see the Ombudsperson shaping up, and how can the provinces and territories collaborate and share best practices. Ms. Oviatt said they've learned a tonne since they launched the Indigenous Human Rights Strategy and that it is based off the Calls to Action and Calls or Justice. She noted providing navigation services as an important lesson and outlined the work they are doing to support complainants through the system. She also spoke about the work being done to ensure the AHRC does it's work with a trauma-informed lens.

Senator LaBoucane-Benson (Unaffil.) asked a series of questions to the second panel regarding the inclusion Indigenous workers in the process, citing the example of Indigenous court workers in the Alberta criminal justice system. Ms. Prince said this was an issue that Justice Walkem identified as well, and spoke to the work the BCHRT has done to increase Indigenous representative throughout the Tribunal. She described the change as transformational in terms of increasing the baseline understanding for everyone at the Tribunal. Ms. Nicolet said that prior to her time with the OHRC she worked with the Ontario Federation of Indigenous Friendship Centres as their policy director for over 16 years. While she said the court worker program is a good one, she added that it was a program conceived to reduce the over-representation of Indigenous people in the criminal justice system – and it has failed in that effort. She said that what is currently happening in BC is an approach with more rigour regarding decolonization.

Summary of Speeches

Jennifer Moore Rattray thanked the Committee for its work and commitment to ending the issue of Missing and Murdered Indigenous Women and Girls. She described the current situation as a state of emergency; an ongoing epidemic of violence against Indigenous women, girls, two-spirited, and gender-diverse people. She explained that there are currently large gaps across the country when it comes to protection of Indigenous human rights. She noted that there is no category of complaint specific to Indigenous people, no consideration of intersectionality for Indigenous women, and no body that has the authority to uphold the UN Declaration on the Rights of Indigenous Peoples. She also discussed how many Indigenous people across Canada have a lack of trust in the systems that exist, due to years of systemic racism and discrimination, that makes them less likely to seek remedies through those systems. She said that a new mechanism was needed to deal with both federal and provincial/territorial issues; that we need shift from reactive to proactive; that families want safe, independent, reporting mechanisms with wraparound supports, and; that there needs to be binding resolutions. She called for working to end the state of emergency.

Charlotte-Anne Malischewski explained how she was aware of the current gaps in the colonial human rights systems. For example, she explained that under the founding legislation of the Canadian Human Rights Commission, the Canadian Human Rights Act, originally had a provision, section 67, which expressly prohibited any complaint made under the Indian Act. Section 67 would not be repealed until 2008, and when this occured, the Commission received an influx of complex cases regarding the Indian Act. While stating that the Commission is continuing its work to evolve and improve their processes, she expressed that the Commission fully supports the creation of human rights mechanisms for Indigenous peoples in Canada, and that any institution working towards the deconstruction of colonialism is welcomed. With this in mind, she outlined the Commissions main three recommendations for any such body: that any new mechanism should be led by diverse Indigenous people, for diverse Indigenous people, permanently, and independent of any level of govenrment; that it must be designed to protect and promote intersectional rights of Indigenous women and diverse populations, and; that any mechanism must have the power to address and remedy systemic issues.

Key Questions

Senator Arnot (ISG) asked Ms. Moore Rattray what the Senate Committee could do to help her work, what her timeline was, and any comments she had regarding jurisdictional issues. Ms. Moore Rattray described this meeting as a great start, using the Committee's power and privilege to shine a light on this issue. She also discussed the need for family controlled 'red dress alert' systems, the need for universal basic income, and addressing the lack of affordable housing. Regarding timelines, she recognized the urgency in her work. She described the process before her as a consultation process, followed by a validation process, with interims recommendations to be made, prior to the release of a final report. This process would take her to December 2023. While she may have a little more time available, she expressed a desire to not make use of it. On jurisdiction, she said choice is important – that there needs to be the ability to select the jurisdiction.

Senator Sorensen (ISG) asked how they could ensure the Ombudsperson had teeth, and asked what role it should play in holding the government to account, as well as what powers an Ombudsperson and Tribunal would need to accomplish what has thus far been impossible. Ms. Moore Rattray noted that "teeth" came up in the first conversation she had with families. She described the need for any new mechanism to have the power to compel witnesses and documents, while noting that this role might be better filled by a Tribunal which was outside her mandate.

Senator Audette (Non-Affiliated) asked if Ms. Moore Rattray was thinking about where things would be in the future – seven generations from now, if there would be a distinctions-based lens to the work, and if there would be legislation attached. Ms. Moore Rattray agreed with the Senator that it would be important to acknowledge and respect distinctions, that there were many different Nations across First Nations people, and that she was also cognizant of the realities of urban Indigenous people, two-spirit, and gender diverse peoples. She believed that there will have to be legislation attached to the Ombudsperson, and that it would need to be permanent and properly funded.

Senator Tannas (CSG) asked what role the Ombudsperson would play regarding Indigenous governments, especially looking to the future as more authority, autonomy, and funding is shifted toward Indigenous governments. Ms. Moore Rattray said that Indigenous rights are human rights. Historically and presently speaking, when the perpetrators of human rights abuses are examined, it has been the federal, provincial, and territorial governments. She said that it was early in her mandate and that she would be having full conversations with a range of people and that it was currently too soon to say either way how things should or would look like.

Senator Arnot (ISG) asked about the other half of Call for Justice 1.7, the Tribunal, and if Ms. Moore Rattray was constrained in the ability to comment on that at all. He additionally noted her work on the Calls as a whole, and asked if she had any comments on 1.10, which was the reporting on the work of implementing the Calls. Ms. Moore Rattray outlined what she considered the small role she played in the Inquiry, giving credit to the work done by family members, survivors, and the Commissioners. She said that her mandate was the Ombuds Office. She said the despite this, in many of her conversations the Tribunal is raised. While this is outside her mandate, she is able to reflect that she is receiving those comments and the views being expressed. Regarding Call 1.10, she said that this was a separate piece of work that she understood to be being done by Innovation Seven.

Senator Sorensen (ISG) asked if the Commission had jurisdiction over activities in First Nations communities, if there were jurisdictional issues impacting First Nations people on-reserve, and how the Commission assists people in navigating the process. Ms. Phillip said there are huge barriers, and that jurisdictional questions had complex answers. While she noted Indigenous people have inherent jurisdiction, for these rights to be realized, they often have to be litigated. She explained that under the Constitution, the Indian Act is federal legislation, so anything under that would be federal jurisdiction, but if it is non-discretionary law, the Canadian Human Rights Act can't be used to challenge the law. She further described how there are jurisdictional issues on-reserve, such as education, retail, and health organizations/institutions on-reserve, which would fall under provincial authority.

Senator Coyle (ISG) asked Ms. Malischewski to elaborate on her third point (addressing systemic issues). Ms. Malischewski described how current systems put a burden on individuals and their represenatives to bring complaints forward, which requires a lot of work. She outlined how the Commission has been working to better lean in and collaborate with the parties to identify issues that might have been missed, or to better flesh out the issues. She provided the work Commission and the individuals involved did on the Child and Family Services complaint as an example of this, describign it as a great example of what can be accomplished when dedicated advocates make use of the mechanism.

Follow Up: The Committee went in-camera at the end of the meeting to further discuss a recommendation that Ms. Moore Rattray had put forward, at the request of Senator Audette.

Summary of Speeches

Mr. Matson briefly outlined how various court decisions in Canada have limited the types of complaints that Indigenous people can bring to the various human rights bodies in Canada. He also outlined some of the international declarations that have called on jurisdictions to improve access to human rights instruments and justice. Regarding a National Indigenous Ombudsperson, he said that the office must meet the Paris Principles, or it will just be another colonial construct and will result in Indigenous sovereignty continuing to be viewed as lesser. He noted that the UN Declaration on the Rights of Indigenous Peoples must be at the core of the process, and that there is an abundance of resources for the Committee to consult regarding the construction of human rights instruments. He also suggested that any new body should become a member of the Canadian Association of Statutory Human Rights Agencies (CASHRA).

Key Questions

Senator Arnot (ISG) asked what Mr. Matson's thoughts were regarding the construction of new instruments and what it could look like. Mr. Matson said that there is a lot of feedback available from international bodies, such as the UN Special Procedures and Treaty Bodies that have existing guidelines, some of which he's provided information in previously provided briefs to the Committee. He noted that some have criticized the approach of having 'one person at the helm' of the Office of the Ombudsperson, but said there were ways around that, such as adding in advisory committees and/or Deputy Ombudspeople for different sectors. He also provided the example of the BC Human Rights Commissioner and Human Rights code as something. He specifically noted the importance of the Office having the powers of inquiry processes.

Senator Audette (Non-Affiliated) asked if it were possible to find a hybrid approach to this instrument that would both incorporate an Indigenous perspective while adhering to colonial laws, and spoke to how colonialism is a root problem. Mr. Matson agreed and spoke to the various legislative efforts to reduce discrimination under the Indian Act. He added however, that when Bills such as C-31, C-3, and S-3 came into law, it was effectively the Government of Canada discharging people by granting status and they do not provide any community rehabilitation. He likened this to internally displaced people, and described how there is an international manual for the creation of an internally displaced persons human rights tribunal that could be examined.

Senator Sorensen (ISG) asked if Mr. Matson believed the federal government should have any role in the determination of status. Mr. Matson explained that the UN Declaration and other international laws/bodies are clear on this (no). He said that the all the discrimination under the Indian Act must first be cleaned up to meet the standards of the UN Declaration. Once that is completed, article 9 and 33 of the UN Declaration can be undertaken.

Senator Francis (PSG) asked about testimony the Committee had previously heard regarding the lack of awareness many Indigenous people may have about the human rights commissions/tribunals as avenues of recourse, and that even if they are aware, if financial means to access them represents a barrier. Mr. Matson described the Canadian Human Rights Commission as his voice during his complaint, saying that he wouldn't be where he is today without them and their good work. He said that an Ombudsperson would be a terrific voice to add. He was then cut-off due to technical issues.

Summary of Speeches

National Chief St. Pierre provided a brief overview of the role that CAP has played in advocating for urban and off-reserve Indigenous people in Canada for over 50 years. He described addressing the current crisis of Missing and Murdered Indigenous women, girls, two-spirit, and LGBTQQIA+ as a top priority of the organization, noting that he saw many MPs and Senators wearing emblems for Red Dress Day.

Elizabeth Blaney spoke to the Call to Justice for the creation of a Indigenous Ombudsperson and its role in being responsive to the MMIWG crisis. She discussed how most Indigenous people in Canada now live off-reserve and that their needs must be represented. She noted that another has passed since the release of the MMIWG Inquiry report, and that families are still saying that there is not enough being done. She said that existing institutions can do more to raise the voices of Indigenous peoples fighting for their rights, but that CAP supports the initiative for an Indigenous Ombudsperson. She said that such an institution must be resourced, permanent, have the authority to investigate and conduct research and collection, have barrier-free access, and that it must address matters in all jurisdictions to eliminate the current gaps in the system.

Dalee Sambo Dorough ordered her remarks based on questions the Committee had provided her in advance of the meeting. She discussed her participation in the MMIWG National Inquiry, where she testified on May 16, 2019. She spoke to the need for recourse, redress, and healing with Inuit peoples. She said that currently, there exists no human rights mechanism in Canada that is based on the distinct cultural context of Indigenous people. She outlined how measures to end discrimination in existing legal systems are needed, but currently, those adjustments do not seem to be happening; as a result, an Indigenous Tribunal is something she strongly supported and said was needed for individual and collective rights violations to be addressed. She described how the UN Declaration on the Rights of Indigenous Peoples did not provide any new rights, but affirmed existing rights and advanced justice. She discussed how presently, most human rights mechanisms operate through an individual orientation, and are therefore unresponsive to the collective dimension of Indigenous peoples and their specific, contextualized experiences. She described the UN Declaration as the clear framework for the new mechanism, but recommended that ILO Convention 169, the American Declaration on the Rights of Indigenous people, and the Paris Principles also be used. She said that the Tribunal should be able to adjudicate and provide education, and that is should be informed and be amenable to Indigenous legal traditions.

Key Questions

Senator Sorensen (ISG) asked if CAP was worried about not being included in consultations regarding the creation of the Ombudsperson, as in their opening remarks, they described experiencing that. National Chief St. Pierre said that was definitely the fear. He said that if his people were not allowed to be heard, it would be discrimination and racism. He reiterated that CAP has been around for over 50 years, but that for the last 7 years they have been largely left out of processes. He expressed thanks to the Committee for including them.

Senator Boniface (ISG) asked what CAP believed the new body should look like. Ms. Blaney said that they were working with their federal government partners and are meeting with Ministerial Special Representative this coming Friday to discuss this. She said that co-development of the body was key. She listed the following as important aspects for the body: trauma-informed; recognition of the unique rights and circumstances of Indigenous peoples; institutional power to look at discriminatory and exclusionary policies; adopts an Indigenous informed lens; cultural competency training is provided, and; a process to recognize collective grievances.

Senator Martin (C) asked if CAP could elaborate on the situation of overlapping jurisdiction leading to gaps and denial of service. She also asked what CAP envisioned as being in place to prevent this moving forward. Ms. Blaney spoke about how when Minister Miller attended the first roundtable to discuss the MMIWG Inquiry's Calls for Justice, he had said he wasn't previously aware of how the majority of the Calls were cross-jurisdictional. She said that this was an important remark and recognition, and that, especially for urban and off-reserve Indigenous people, dealing with cross-jurisdictional wrangling to obtain services and programs is a daily occurrence. She described accountability measures as being an important step forward and that identifying and informing the public on where these gaps were would be a key role for the Ombudsperson.

Senator Coyle (ISG) asked if there were lessons that Canada could learn from other countries regarding the reform of human rights bodies to better promote and protect Indigenous human rights. Ms. Dorough described Canada's passage of Bill C-15 as extraordinary and that Canada is the only democratic government presently engaged in a substantive effort to address the implementation of the UN Declaration. On the flip side, she noted that other countries are actively engaged in diminishing rights and perpetrating harms against Indigenous populations. She said that of the 190 plus members of the UN, there were only about 6 that have taken concrete steps to be responsive to the UN Declaration, so there wasn't much to compare Canada to.

Senator Francis (PSG), noting that Ms. Dorough had previously discussed the work of Valerie Napoleon, asked if she had any other recommendations for witnesses that the Committee should hear from on this topic. Ms. Dorough said that there were a growing pool of individuals are doing this work now, particularly Australian Aboriginal scholars like Dr. Megan Davis of the University of New South Wales. She also said that this work was being done in other venues, such as through the UN Framework Convention on Climate Change. She said that she would provide the Committee a list of people as a follow-up.

Senator Audette (Non-Affiliated) asked, regarding jurisdictional overlaps, what could be done if a specific province or territory refused to move forward with reforms or redress of a violation. Ms. Dorough described this as a troubling hypothetical to think about, but not unheard of. She outlined how the UN Declaration was the lengthiest negotiation of a human rights instrument that the UN has ever engaged in, and that was due to pushback from members. She expressed hope that should this occur, Canadian society as a whole, and the international community would respond and demand a change of course. She said that she hoped everyone would not just rely on "evolution" but instead would respond to this hypothetical objection to upholding Indigenous human rights.

Summary of Speeches

Councilor Neil Sharp Adze Jr. spoke about the encroachment of the treaty rights of Piikani communities, impacting traditional ceremonies and limiting their ability to harvest from the land. He added that Parks and Recreation has also posed a barrier to the Indigenous stewardship of the land. He concluded that, historically, there has been very limited success in the treaties signed, not meeting their intended needs.

Minor Chief Marsha Wolf Collar articulated the issues facing the Siksika Nation in regard to access to essential services, housing, and a lack of community safety. As the second largest land base in Canada, with a community of 8,000 members, she discussed Siksika Nation's move towards the establishment of a stand-alone agreement with Canada and Alberta. She concluded that the funding currently provided to the nation are both insufficient and unsustainable in addressing these issues.

Minor Chief Lou Ann Solway talked about policing forms in First Nations communities, and the harms of using a fear tactic approach to policing. She explained that this, in tandem with Canadian court systems, create data sets on Indigenous safety that are not mediated in a traditional community approach, making their potency and relevance questionable.

William Goodon (MMF) provided introductory remarks on the Infinity Women Secretariat (IWS) requests regarding the creation of a National Indigenous and Human Rights ombudsperson and tribunal. He introduced IWS, a nonprofit organization, and talked about invisibility of Metis women, who have been uniquely vulnerable to violence and lack of programs provide to them.

The Manitoba Métis Federation (MMF) and Infinity Women supports the creation of the National Indigenous and Human Rights ombudsperson. They would like to receive the insurance of a partnership with all Indigenous peoples, with meaningful engagement with MMF, and that the ombudsperson is not serving in another organization that would compromise their role. MMF supports the creation of a tribunal, with neutral tribunal members who work in a distinction-based manner and trauma-informed way.

Grand Chief Mandy Gull-Masty started her introductory remarks by mentioning the Grand Council of the Crees (Eeyou Istchee) and Cree Nation Government's work. She indicated that the creation of an ombudsperson and tribunal would be a step in the right direction as long as they add value and allow systemic change. Women and children experience significant barriers to accessing services and reporting violence, as they are turned away from mainstream services to underfunded Indigenous services. This cannot be the case with new Ombudsperson's role, which must also act as oversight body that is easy to access by Indigenous peoples. The new ombudsperson and the tribunal must reflect Indigenous values, must involve Indigenous peoples, must take a trauma-informed approach and operate within a culturally-safe framework. To improve accountability of existing services, it would also be appropriate for Indigenous governments to receive reports on the steps taken.

Key Questions

Senator Arnot (Deputy Chair) asked all panelists to describe their main concerns in adopting new mechanisms to respect Indigenous treaty rights. Additionally, he asked the panelists to note what they would like to see, and what the Senate should keep in mind. Minor Chief Marsha Wolf responded that the answer lies in how we can get more Indigenous involvement and inclusivity, particularly through grassroots organizing. She also spoke to the crucial role of elders and Indigenous ways of knowing in maintaining community connections. Councilor Neil Sharp Adze Jr. expanded that a big step forward would be if Canada implemented UNDRIP in its full entirety, allowing Indigenous communities to have unburdened, full access to land. He added that this may include the Blackfoot Confederacy representation at the UN.

Senator Sorenson (ISG) asked the panelists to speak about a complaint filed to Indigenous Services Canada by the Blackfoot Confederacy alleging systemic racism against adults living with disabilities on reserve. Do they sense that this is due to a lack of interest from disability issues in the government, or part of a larger pattern of underfunding Indigenous communities? Minor Chief Lou Ann Solway responded that from her experience she noticed, both within her family and the community at large, that those living with a disability experienced financial constraints to accommodate their needs. She added that as far as Siksika Nation goes, the disability funding was next to nil. Councilor Neil Sharp Adze Jr. spoke about the Assured Income for the Severely Handicapped (AISH), commonly used by Indigenous peoples living with disabilities. He added that many AISH recipients were children of residential school survivors. Councilor Neil Sharp Adze Jr. also expanded on the Residential Access Modification Program (RAMP) that helps disabled members of the community enter their homes. He concluded that this also points to larger issues of infrastructure that is lacking in communities. Minor Chief Marsha Wolf echoed those remarks adding that these unmet needs drive people to move outside of the community.

Senator Coyle (ISG) asked all panelists what they think the impact will be for the ombudsman and tribunal as a form of recourse, and how they can foresee it helping their communities. Minor Chief Marsha Wolf replied that representation through the ombudsman and tribunal can be a tangible way of addressing the issues mentioned in their remarks. She added that although the AFN does this on a bigger level, there is a need for smaller scale, more specific recourse. Minor Chief Lou Ann Solway added that before contact, there was a process that inclusive and democratic, and the turnaround period was immediate, and that is what we should move towards.

Senator Prosper (Non-Affiliated) asked if there is anything they can add with regard to establishing a guiding framework or principles that can be instructive in this process. Councilor Neil Sharp Adze Jr. responded that this the adoption of UNDRIP in its entirety with original intention, open dialogue, and taking the full spirit and intent should establish the principles of this process. Minor Chief Lou Ann Solway concluded that mediation is key, and that is the mechanism that is still used in the community to inform processes and protocols. This includes development towards Indigenous courtrooms and more traditional approaches to justice and policy.

Senator Arnot (ISG) asked Grand Chief Gull-Masty if she has further advice regarding a mediation approach versus litigation approach, and asked what should be the role of UNDRIP in implementing these new models. Grand Chief Gull-Masty indicated it's important to make sure the ombudsperson reflect Indigenous peoples. Regarding the role of UNDRIP, the importance of offering security to women and children, and the need to provide trauma services were highlighted.

Senator Sorensen (ISG) asked the panelists to speak to challenges to access education services, and how an ombudsperson might be able to improve access. Answers highlighted the need for a sense of community and that the ombudsperson can make available a space to build community and connection. Online University can be helpful although there should be an in-person component as well.

Senator Sorensen (ISG) also asked William Goodon to elaborate on how MMF made investments related to healthcare, housing and how an ombuds person would help with that.

Senator Coyle (ISG) asked several questions, related to the interaction between the position and different levels of government, the necessary steps to make sure the ombudsperson is accessible. She also asked about the accountability and reporting to the federal government and Indigenous governments – what should it entail? Grand Chief Mandy Gull-Masty answered that in addition to advice to Indigenous peoples, recommendations should be provided to the federal government.

Senator Audette (Non-Affiliated) asked a question about the collaboration with Provinces and Territories, and about relations with other organizations and relationships with Chiefs. Grand Chief Gull-Masty mentioned she'd like to see the creation of a discussion table with other departments, that will provide a recommendation to the ombudsperson.

Senator Hartling (ISG) asked how the ombudsperson would build trust for women and children, and what are some of the issues they need to be looking at. The challenges highlighted by the panelists in response were security and safe housing.

Senator Prosper (Non-Affiliated) mentioned education, the importance of establishing relationships, and asked a question about integrity. Grand Chief Gull-Masty replied there's been huge steps from the government lately. Key is integrity and measuring the results, which allows for the justification of costs, and shows Indigenous peoples that progress has been made.

Summary of Speeches

Anemki Wedom is originally from Kamloops and does a lot of work on Missing and Murdered Indigenous Women (MMIW). She talked about the violent death of her many family members. Current Human Rights laws don't respect Indigenous women. Canada hasn't followed UNDRI articles 22 and 44. Crown – Indigenous Relations (CIR) MMIW secretariat should be an independent commission and not in government. Talked about human trafficking of Canadian Indigenous women and girls into the northwestern United States. A federal task force is required similar to the ones in states in America. The opioids crisis is having a huge impact on Indigenous women in Vancouver.

Key Questions

Chair Francis (PSG) how can a national body draw on community expertise, Elders and restorative justice? Anemki Wedom human rights should be collective and not individual. Canada should follow international convention on elimination of discrimination against women.

Senator Sorensen (ISG) asked about her work with the YWCA in Vancouver and how nonprofits offer programs that Canada could follow? Anemki Wedom YWCA has a hotel as a social enterprise and it allows them to enhance services for women. Better connection is needed between CIR, Justice and Status of Women as there's been cuts to programs in federal departments.

Chair Francis (PSG) why haven't Indigenous human rights mechanisms not been established? Anemki Wedom generational genocide and colonialism. There is a lack of data and accountability on human rights' bodies. Canada should follow the government of BC's bill before their legislature.

Senator Hartling (ISG) what's the disconnect on gender based violence? Anemki Wedom lack of resources. There should be a special Crown prosecutor for MMIW. Colonial mindset must change in the Government of Canada. An Indigenous gender lens is required. Indigenous women are not even referenced in federal human rights reports.

Senator Dupuis (ISG) women's rights are not focused on, including a federal human rights review for complaints of First Nations individuals. A report in 2000 recommended to change this law? Anemki Wedom experts are required including Indigenous peoples. Women and girls are afraid to file complaints as there could be recourse upon them and their children. Different Indigenous cultures have unique practices and those should be included in service delivery.

Senator Dupuis (ISG) independent commissions should have analysis of each piece of legislation and its effect and discrimination of Indigenous peoples? Anemki Wedom talked about the universality of the Canada Health Act and how it's principals aren't applied for Indigenous women and girls.

Senator Audette (Non-Affiliated) thanked the witness and asked about the MMIW secretariat outside of the federal departments? What about all the cold cases in the US? How do we put the new mechanism in place? Anemki Wedom the Indigenous unit in BC deals with complaints but it's a new mechanism. Federal legislation is required to look at cold cases in Canada. The federal departments and employees must be accountable and not pass off responsibility to provinces.

Chair Francis (PSG) some witnesses said the mandate of the tribunal should be beyond domestic human rights? Anemki Wedom yes and the international convention on the right of the child and civil rights should be a part of any independent human rights framework.

Senator Martin (C) asked about accessibility for rural Indigenous communities? Anemki Wedom what's good in one region isn't always good in another. Isolation and remoteness must be addressed. Capacity is required for Indigenous peoples to engage. Forensic nursing needs Indigenous students.

Summary of Speeches

José Francisco Calí Tzay spoke about Call for Justice 1.7 of the Missing and Murdered Indigenous Women and Girls (MMIWG) Report, which called for the establishment of a National Indigenous and Human Rights Ombudsperson and a National indigenous and Human Rights Tribunal. He spoke about concerning information regarding MMIWG that he learned upon a pervious visit to Canada. He stated that there needed to be an oversight mechanism, meaningful consultation with Indigenous peoples, and an Indigenous-led ombudsperson and tribunal that acts impartially and complies with international human rights laws, and who has sufficient resources to meet the mandate.

Madeleine Redfern spoke about the Legal Services Board of Nunavut, including its criminal, family and civil law services. Services exist in partnership between the federal and territorial government, but is sufficiently independent under the Nunavut Land Claims Agreement, as are other important Inuit organizations. She spoke about the challenges that some of the other organizations face, as they can make recommendations but have no power. She also spoke about the challenges of making complaints under the Nunavut Human Rights Tribunal, as limited staff, years-long process times, racial discrimination and sexism, and risks to employment and housing make it difficult to navigate to get basic services. She mentioned that there an ombudsperson would make real change, as there aren't enough lawyers to deal with unique changes and there is backlog from Covid.

Key Questions

Senator Francis (PSG) asked about the responsibility and framework of an ombudsperson and human rights tribunal. José Francisco Calí Tzay responded that both must be independent bodies that have the authority to act on investigations and to enforce justice. He stated that a solely investigative body would not be sufficient.

Senator Arnot (ISG) asked about how to prevent adopting models that may recreate colonial practices and how to minimize potential resistance to models created by Indigenous peoples. He also asked how these models would work within a colonial system, which relies on litigation models. José Francisco Calí Tzay responded that there was no universal solution or step-by-step measures that have already been taken, especially given that other countries will be looking to Canada to see what steps it takes. He highlighted that under UNDRIP article 19, the ombud office needs to be set up with the consultation and consent of Indigenous people to strengthen the work that they do.

Senator Coyle (ISG) asked how to ensure that the diversity of Indigenous culture, laws, and traditions will be well-reflected in how the ombudsperson and tribunal are established, and how they themselves should undertake their work given this diversity. José Francisco Calí Tzay responded that the participation of Indigenous peoples needs to serve as the base for all of the work being done, including having the ombudsperson appointed by Indigenous people in compliance with UNDRIP articles. He also stated that the ombudsperson and tribunal need to provide both individual and collective remedies, and have both the mandate and budget to do the work. He spoke about the necessity of both bodies being independent with the capacity to answer to the needs of Indigenous peoples.

Senator Francis (PSG) asked about UNDRIP guidance to the structure of these new institutions. José Francisco Calí Tzay responded that article 46 of UNDRIP says that free, prior, and informed consent and consultation of Indigenous peoples is the minimum, and that more needs to be done to cover all of Indigenous peoples' rights.

Senator Prosper (CSG) asked about international ombudsperson and tribunal mechanisms that could provide helpful examples. He also asked about the interplay between individual and collective rights in Indigenous communities and litigation. José Francisco Calí Tzay responded that good ombudsman offices that help both Indigenous and non-Indigenous people are needed, as is seen with the ombudsperson in Chile, Argentina, Costa Rica, Colombia, and Mexico. In Canada, he specified that there needs to be a mandate set in a constitution or legislative text to show the competence and responsibilities of the institutions. He recommended that the institutions act independently, but also advise Parliament, promote harmonization of national legislation with international human right legislation, and ratify any human rights that haven't already been ratified by Canada. In response to the second question, he pointed out that the institutions must defend both individual and collective rights of Indigenous people, and that it will be important to see what steps Canada takes.

Senator Francis (PSG) asked if Indigenous people should have access to legal services and support when preparing a complain to an ombudsperson or tribunal, and if there should be free legal clinics available for them. José Francisco Calí Tzay responded that the ombudsperson should work with Indigenous people and advocate as expert witnesses, but not speak on their behalf. He stated that independent legal companionship for the office was needed to do the investigation and do litigation.

Senator Francis (PSG) asked how Indigenous laws can be reflective within a human rights mechanism. José Francisco Calí Tzay responded that this has to be one element taken into account by the office. The Indigenous system is about repairing damage from crimes while the justice system is a punishment system, so the Indigenous system needs to be the base of the ombudsperson's office.

Senator Francis (PSG) asked for examples of other institutions that have relied on Indigenous policies and practices. José Francisco Calí Tzay responded that Canada and the U.S. have tribunals, judges, and courts for Indigenous peoples, but that there are no international examples from Latin America, Africa, or Asia.

Senator Arnot (ISG) asked how sexual harassment and other forms of discrimination will be dealt with by the two proposed institutions. Madeleine Redfern responded that it would be beneficial to have an office that just does research into the gaps that exist in Nunavut, as there are few avenues that people can go to get help and the Nunavut Government struggles with collecting and managing data, leading to many reports that are filled with question marks. She spoke about how scary it can be to speak up because systemic discrimination and biases are very persistence, it puts a target on people, and it puts employment and housing at risk. Senator Arnot asked if the two national bodies that may come into existence would have the flexibility to deal with the unique circumstances she mentioned. Madeleine Redfern responded that it would be hard without an ombudsperson and with the current lack of resources. She stated that cultural orientation and training, familiarizing oneself with Indigenous communities, and becoming a safe space are all things that must be done. She advised that advocating the value and need of an Indigenous ombudsperson, or even an ombudsperson in general, to Nunavut would be beneficial.

Senator Prosper (CSG) asked for further details on the linkages between the two potential institutions and national institutions. Madeleine Redfern responded the institutions need to work together to address the problems that have been baked into the process. She stated that there needs to be work done to understand what is or is not working, finding best models, and showing leadership and organizations that the institutions work well and improve the lives of citizens. She also noted that the existence of institutions that hold people or bodies accountable will make them more hesitate to violate the rights of Indigenous people.

Senator Francis (PSG) asked about Nunavut services that helped women and children experiencing violence. Madeleine Redfern responded that there were only a small number of shelters and that they do not exist in every community, especially as some post-Covid institutions no longer have nurses or are not open at all. She highlighted that the Family Abuse Intervention Act was hard to enact and enforce, and there are no addiction treatment centers. She also spoke about the need to have institutions or bodies that helped the Indigenous men who exhibited violence.

Senator Francis (PSG) asked how national mechanisms could address the diversity of Indigenous, and specifically Inuit, laws. Madeleine Redfern responded that Indigenous people needed representation in both the national body and in sub-offices, which could deal with regional distinctions. She acknowledged her disappointment in land claim agreements failing to address social and cultural rights, as well as the difficulties in obtaining resources when individual rights are violated due to her own land claims organization deciding that rights are collective, not individual.

Senator Audette (Non-Affiliated) thanked Redfern for her comments and spoke about the importance of balancing Indigenous leadership and grassroots expertise with legislation and creating offices. In response, Madeleine Redfern noted that the framework for the ombudsperson office is very important as it will determine how it will function for a long time. She spoke about the need for self-evaluations and highlighted the need for input from the people that the office serves, so that the framework can be changed accordingly.

Senator Francis (PSG) asked if a future human rights body should be able to make orders to impose a positive duty to protect the security of a person in the case of poverty, etc. Madeleine Redfern responded yes, and spoke about the Cindy Blackstock lawsuit and investing more in the front-end, rather than back-end, to help more individuals succeed. She stated that proactive positive orders may be required to force harming bodies to fix the real harms and risks to Indigenous people.

Senator Prosper (CSG) asked about indicators that would suggest that the ombudsperson's office is on the right track. Madeleine Redfern responded that (1) offices need to be accessible and able to report issues to a national ombudsperson, (2) resources between offices need to be shared, (3) offices should have lessons learned that they can share with other offices, (4) creating an ombudsperson network to share ideas on reconciliation and adjust their work accordingly, (5) aligning mechanisms, but the ability to act separately when issues are not being solved at the provincial/territorial level, (6) looking at what currently exists and works to create its own unique commission, and (7) tracking how many Indigenous people actually access the office. She stated that extensive research would be required, and that these indicators would be measurable within 3–5-year time frames.

Summary of Speeches

Laura Aguiar works with the Iskweu Project which supports Indigenous women, girls, trans and two - spirit. Many of their clients had their human rights, including food and shelter taken away. Rights have to be for Indigenous women and girls. A Survivor Centre is required to provide additional support. There must be preventative based focus on Indigenous peoples human rights.

Cindy Blackstock noted her front row seat on the human rights of Indigenous children with their 9 year legal case. Used the Canadian Human Rights Act (CHRA) to challenge the negative status quo. Canada used the courts against First Nations children's rights. Since the initial decision there's been 20 non-compliance rulings against Canada. There must be teeth against groups that don't comply with legal orders. A challenge of getting no financial support in human rights cases. CHRA needs to be updated. Children must have safe guards to participate in the human rights processes. Protection against retaliation needs to be increased in Canada.

Maria Martin the existing human rights mechanisms are inadequate as they don't support Indigenous identity as a protected ground at the CHR Tribunal. British Columbia (BC) already has Indigenous identity in their human rights code. Fair human rights for all Indigenous peoples in Canada is required but has been ignored since colonization. An Indigenous human rights commission should have the same rights as the existing federal and provincial human rights tribunals.

Maxwell Johnson took his granddaughter to the Bank of Montreal to open an account and officials thought that their status cards were fake resulting, in both being handcuffed by police. Their human rights process ended in a settlement but they are still healing. A new Indigenous human rights institution is required that is culturally appropriate. Their case went to federal and provincial human rights' tribunals due to jurisdictions. The human rights system in Canada is still a colonial system.

Patrick Courtois noted that his First Nation had to take legal action regarding their underfunded public safety service and the CHR Tribunal ruled in their favor in 2022. Canada appealed the case. A lack of staff at the CHR Tribunal and currently there's no judge to hear their case. They waited 6 years for their original decision. Indigenous knowledge and training is required by those hearing cases. Individual rights are covered but there should be collective community human rights. Cultural rights are also not covered in the current mechanisms.

Key Questions

Chair Francis (PSG) what could be done in the current system from a culturally relevant angle to improve how human rights institutions work? Cindy Blackstock up until 2009, human rights tribunals could not cover matters related to the Indian Act. Space is required for Elders, children and ceremony. The same new processes shown at CHR Tribunal should be adopted by the federal court and the federal court of appeal. Laura Aguiar families keep mentioning having to repeat the same story, which causes trauma.

Senator Arnot (ISG) wanted thoughts on a new national human rights tribunal and ombudsperson. What would you like created that is different and designed by Indigenous peoples? Cindy Blackstock we tried mediation and talking circles in meetings with Canada. Litigation is a tool that has to be used at times. New influx of cash is required. Krysia Przepiorka noted that Calgary has an Indigenous court (which starts with a Elders prayer and smudge) taking those involved out of the normal court system. It's a circular court with case management and cross over services for Indigenous people.

Senator Sorensen (ISG) asked about the Iskweu Project in Montreal? Laura Aguiar said it is the only place for Indigenous women and their children. Hard to find a shelter that will take women with children and also support cultural needs.

Senator Sorensen (ISG) asked about Cindy Blackstock's opening statement and their long human rights process? Cindy Blackstock a good human rights system has to be effective no matter who's in Government. Canada provided services for First Nations children at a reduced cost compared to other children. In 2016 the tribunal ruled in their favor. From 2016 to 2023 noncompliance orders had to be rectified by Canada. The order from court was for Canada to implement Jordan's Principal.

Chair Francis (PSG) should a future human rights body be able to make an order to protect the security of a person? Cindy Blackstock yes with orders and penalties for non compliance.

Senator Martin (C) asked about Front Line Defenders? Cindy Blackstock it's an international organization, started by Amnesty International because of human rights defenders being persecuted. They provide support to keep people safe during human rights processes across the world.

Senator Martin (C) questioned what can be done on the front lines to support Indigenous people? Cindy Blackstock a variety of services and avenues are required and not always virtually. Traveling courts to Indigenous communities.

Senator Coyle (ISG) how should a new Indigenous human rights tribunal and ombudsperson set up so that jurisdictional challenges are reduced? Cindy Blackstock Canada should attack its own systems and know about previous processes of complaints. Jordan's Principal has been helpful on jurisdictional matters.

Senator Hartling (ISG) any examples of well designed human rights frameworks in other countries? Cindy Blackstock CHRA with improvements would've been able to stop the actions of Canada in the past. There must be an independent mechanism to bring cases forward. Many groups are getting funding from Canada and if they take the government to court could have funding cut. (like happened to her organization) The US Native Legal Defence Fund of independent lawyers brings cases forward but aren't funded by government.

Senator Arnot (ISG) do you support an Indigenous human rights Ombudsperson and a national human rights tribunal? Maria Martin having an Ombudsperson is a right first step. Partner with Indigenous groups to improve the process. Patrick Courtois yes and it should be dealing with Indigenous cases across Canada. It should cover all jurisdictions, Indigenous, Provincial and Federal. Maxwell Johnson noted two different jurisdictions was traumatic. Didn't know a lot about the HHR process before and during the hearing.

Chair Francis (PSG) should there be access to free legal representation and cultural appropriate support for Indigenous peoples making human rights complaints? Maria Martin yes but for all jurisdictions. Currently, financial capacity elevates stresses on Indigenous people making cases. Maxwell Johnson said he still gets questions now, three years after his case about how he funded it. Patrick Courtois supports the concept but it shouldn't reduce quality of legal support. Many different Indigenous practices across Canada and it would be a difficult task getting the required supports with a cultural appropriate approach.

Senator Coyle (ISG) asked for more information on the BC human rights code and specialized training for human rights commissioners? Maria Martin quoted from the BC human rights tribunal code and noted it's a inclusive process for First Nations across the whole province. Patrick Courtois must be Indigenous focussed. Specific approach on languages for Indigenous peoples. Sensitivity training is required.

Senator Prosper (CSG) asked about Indigenous racism and identity in the human rights process and the incorporation of Indigenous law? Maria Martin Indigenous communities have their own restorative justice system with cultural and traditional ways in doing things. Historical knowledge and identity will change attitudes. A values based process with a willingness to participate in the process.

Senator Prosper (CSG) asked about the human rights process that is culturally appropriate for Indigenous peoples. How will a human rights tribunal mechanism fit into Indigenous culture? Maxwell Johnson education is very important on Indigenous ways of life for human rights tribunals, in dealing with Indigenous peoples. For his apology ceremony the two officers didn't show up.

Summary of Speeches

President Natan Obed spoke about the Inuit Tapiriit Kanatami (ITK)'s views on creating an Indigenous Human Rights Tribunal and recognized that human rights-based solutions are required to resolve violence against Indigenous women and girls and called for MMIWG Call for Justice 1.7 to be implemented. He spoke about two ITK papers from 2017 that discussed creating a tribunal, and noted that the tribunal could provide redress and resolutions by Indigenous people. He stated that the tribunal would create a center of expertise that is rarely found in human rights mechanisms.

President Aluki Kotierk spoke about how an Indigenous Human Rights Tribunal would align with UNDRIP and implement Indigenous rights, and would need to be in line with Inuit culture and values in a trauma informed, culturally sensitive way forward. She called for the full implementation of UNDRIP and MMWIG Call to Justice 1.7. She stated that a body for recourse is important as the fundamental rights of Indigenous peoples are often subject to the whims of Canadian officials. She also spoke about other Indigenous issues that need to be addressed including: access to housing, quality health, mental health, substance use, health care gaps that force Inuit to leave communities to access, MMIWG, and the need for Inuit self-determination and government under UNDRIP articles 3 and 4.

Chief Negotiator Robert Morales spoke about the troubling lack of Indigenous human rights ratifications by the Canadian Government, including failing to ratify the human rights documents in the American Human Rights system, resulting in Canadians being denied access to the Inter-American Court on Human Rights. He spoke about the changing Government position on UNDRIP, the British Colombia's Gitxaała case, and the Hul'qumi'num Treaty Group case. He noted the challenges in relying on international human rights bodies, as Canada is the sole arbiter of deciding whether or not it has met their obligations.

Katherine Hensel spoke about the lives of Indigenous people being framed and defined by human rights violations. She spoke about a child care right breech recently being addressed, resulting in compensation to the children and their families, some corrections in resources available to Indigenous governing bodies, and a redefinition of the relationship with the Government because it clarified jurisdiction. She stated that the current Canadian Human Rights Tribunal system is complaint-driven, based on collective rights, adversarial, requires proof of discrimination, and underfunding barriers forced individuals or organizations to take on work that should have been taken on by the Government. She added that the ombudsperson and tribunal must begin with acknowledgement of human rights violations, focus less on need for colonial proof, start by qualifying and quantifying breeches, have a problem-solving mandate in way that is culturally fair and binding for the Government, and ensure Government accountability to Indigenous peoples.

Key Questions

Senator Francis (PSG) asked how an Indigenous Human Rights Tribunal or Ombudsperson should reflect Inuit, First Nations, and Metis laws, culture, and traditions. Natan Obed responded that a human rights framework would be the ideal place to start, but that it would be difficult to find impartial members who are not focused on politicizing the institution. He also noted that co-development and working with rights holders would be important places to start. Aluki Kotierk spoke about the importance of having a distinctions-based approach that looked at Inuit reality. She stated that this would require providing services to Inuit people, making members aware that Inuit everyday reality is different than that of non-Indigenous Canadians.

Senator Arnot (ISG) asked if the establishment of an Indigenous Human Rights Tribunal or Ombudsperson could contribute to the reconciliation process. He also asked if a dedicated Human Rights body could enhance Inuit representation and asked for examples of unique challenges faced by Inuit communities that could be better addressed by an Indigenous body. Natan Obed responded that there needs to be options to remedy, recourse, and redress as the basic foundations for holding up human rights. He noted that litigating human rights is costly, ineffective, and courts are unprepared to properly understand and guide a way for Indigenous rights to be upheld. He also stated that the tribunal would be a huge step towards reconciliation. For Arnot's other questions, he noted the significance of using a distinctions-based approach and that the tribunal would hopefully call attention to Inuit issues on an administration level. He listed a number of unique challenges, including deficits in administering housing, education, and infrastructure, as well as the lack of access to remedy and the justice system. Aluki Kotierk responded that Inuit people have consistently tried to bring attention to issues, but there have not been substantially moves to address them. The ombudsperson would add a credible voice that could bring great change by voicing these issues. She also stated that the tribunal or ombudsperson's office needs to be able to act on human rights violations and show communities that the lack of basic rights and services should not be normalized.

Senator Coyle (ISG) asked for President Obed to speak more about the protecting and embedding an independent center of expertise within the tribunal, as this center does not exist in other institutions. Natan Obed noted that there is a gap because not every Inuit jurisdiction has a corresponding human rights tribunal or commission, but some are shared with Canadian jurisdictions. Will David added that Inuit Tapiriit Kanatami released two papers on an Indigenous Human Rights Commission in 2017, that shows that it needs to align with the Paris Principle, give recommendations and guidance to communities, and resolve complaints and disputes to help cases be resolved on a case-by-case basis.

Senator Coyle (ISG) asked Kotierk to speak more about how the tribunal or ombudsperson could deal with the systemic violations and challenges that Inuit people face. Aluki Kotierk responded that the structure of the two bodies would highlight the issues and provide opportunities for Inuit-specific solutions, amplify Inuit voices and Inuit solutions, and remind governments of their obligations to uphold Indigenous human rights.

Senator Patterson (CSG) asked how the government should respond to people saying that the Canadian Human Rights Tribunal works by pointing to the 2019 $23.4 billion child welfare settlement as proof. Natan Obed responded that that was one of a few recent cases where the Canadian Tribunal has been helpful, but that in this time of reconciliation, exceptional mechanisms are needed to handle extraordinary problems. The new tribunal needs to focus specifically on Indigenous issues and have an expertise base that aligns Canadian federal law, UNDRIP, and the Constitution. Will David added that the tribunal is swamped with its case load and that an Indigenous tribunal would relieve some of that case load. He also noted that the Canadian tribunal framework only includes First Nations-based knowledge, not Inuit or Metis knowledge, leading to a reluctance for Inuit people to use the current tribunal.

Senator Patterson (CSG) also asked how the principles and mechanisms for a Indigenous-led tribunal in the 2017 Inuit Tapiriit Kanatami papers differ from what is in the current Canadian Human Rights Tribunal. Natan Obed responded that in line with the papers, the MMIWG inquiry, and UNDRA, the new tribunal needs to focus on recourse and remedy, while being more than a symbolic measure.

Senator Prosper (CSG) asked about signs that would show the tribunal was on the right track. Aluki Kotierk responded that there needed to be an awareness of Inuit reality before change is possible. She also stated that the tribunal should allow Inuit to feel comfortable and seen when they go to the institution.

Senator Francis (PSG) asked about best practices for a distinctions-based approach for policy or legislation. Natan Obed gave an example of the Inuit Nunangat Policy in April 2022 where the Canadian Government and Inuit communities came together to co-develop priorities and workplans to systematically close the gaps. He stated that he didn't know if litigation or other steps would be necessary to ensure the Government implements their own policies.

Senator Coyle (ISG) asked how to ensure that the tribunal and ombudsperson are set up for success and have moved to co-accountability mechanism. Natan Obed responded that the greatest challenge he foresaw was Government pushback or overthrowing rulings, as this could set cases back for years.

Senator Arnot (ISG) asked if the ombudsperson or tribunal should move away from litigation and focus on problem solving, mediation, and cooperation goals between the Government and Indigenous communities. Will David stated that the honour of the Crown if not just a moral standard but needs to be a legal obligation. He stated that litigation is a necessary tool because the legal system is not a decolonized environment. He also noted that friendly settlement solutions could be used by the tribunal, but they needed binding levers.

Senator Francis (PSG) asked about how witnesses could see the federal courts appealing to human rights mechanisms. Katherine Hensel responded that it would need to be statutorily prescribed in order to lead the court, and the statute would need to incorporate UNDRIP. Robert Morales added that the statute needs courts to move beyond precedence and take into account Indigenous systems in order to create enough flexibility to respond in Indigenous ways.

Senator Arnot (ISG) asked how the tribunal could add to reconciliation and overcome systemic barriers. Robert Morales responded that there was a reluctance for the Canadian legal system to consider international human rights as part of their decision making process. He highlighted the issue of relying on precedence, as Canadian courts spends years having legal battles to prove that Indigenous rights exist while international bodies immediately recognize those same rights. He noted that the system needs to be effective for Indigenous people, and pointed to the Inter-American Courts as an example of an independent tribunal.

Senator Arnot (ISG) asked about how to make the tribunal and ombudsperson distinct from existing colonial entities. He also asked if there should be an education component for the Canadian population and policymakers. Katherine Hensel responded that the starting point would be to give the entities a mandate for public inquiry through hearings, studies, and research and to remedy these issues. She noted that education for non-Indigenous people in the legal system is crucial.

Senator Hartling (ISG) stated that Cindy Blackstock recommended to the committee that there needs to be children's participation in the human rights process and asked about the merits, challenges, and ways to protect children during participation. Katherine Hensel responded to avoid using children as visual aids, and don't place the burden on them. She noted that the perspective of kids' lived-experiences is meaningful and can provide insights that can't come from elsewhere, so the approach needs to be culturally grounded and culturally competent approach to prevent the burden being placed on the children.

Senator Prosper (CSG) asked about the mechanism that should exist to support the tribunal. He also asked how the tribunal would interplay with provincial jurisdiction. Katherine Hensel responded that tribunal decisions that are federally mandated but under provincial jurisdiction will not work unless the provinces agree or are compelled. She noted that this could leave Indigenous people in certain provinces more vulnerable, that constitutional amendments should be avoided, and the need to develop protocols and carve out characterizations of rights in relation to divisions of power. Robert Morales added that there was an issue of political will and pushback in implementing law and negotiating agreements.

Senator Francis (PSG) asked if legally blinding compliance orders or sanctions would be required in any existing or new human rights systems. Robert Morales responded that there is a need to establish the foundation for tribunal's jurisdiction and duties and to examine political commitments and compliance. He noted that the public needs more education in human rights and Indigenous human rights so that the political system makes it a priority. He pointed out that the Supreme Court rulings are not always implemented and the reluctance of the Government to implement them. Katherine Hensel added that Indigenous laws need to be legally binding, and that non-Indigenous bodies needed to have mandatory subjection to Indigenous laws.

Senator Prosper (CSG) asked if the Inuit Tapiriit Kanatami's proposed dispute-resolution mechanism in the tribunal would change the adversarial nature of the legal system. Katherine Hensel responded that ideally this would work, but Canada is not there yet. She recognized that while adversarial tools are inherently harmful, wasteful, and ineffective at achieving justice, they are sometimes a necessary tool.