A New Dawn: Dialogue Shift in indigenous Rights

Day One: Conference on Indigenous Peoples and Human Rights

21 February 2018

The Ontario Human Rights Commission (OHRC) and Osgoode Hall Law School invited a representative from the Native Women’s Association of Canada to participate in a three-day conference on Indigenous rights at the Native Canadian Centre of Toronto (NCCT). The purpose of the conference was to explore Indigenous perspectives on human rights, how federal and provincial human rights institutions can advance human rights for Indigenous peoples, and how the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) can be most effectively implemented. OHRC and Osgoode Hall brought together human rights and indigenous law experts from across the province to participate in the dialogue.

The dialogue at the Conference took place at a pivotal moment in the history of Canadian Indigenous-state relations. The Honourable Romeo Saganash MP, has tabled a Private Member’s Bill (C-262) seeking to conform Canadian law with the UNDRIP. The Private Member’s Bill has received support from the governing Liberals. Prime Minister Justin Trudeau has also committed to a new legal framework that guarantees the rights of Indigenous people in Canada be respected.

This apparent dawn for a new era for Indigenous rights is emerging from a very long and dark history that continues to impose immense barriers and burdens on Indigenous peoples in Canada.

This country’s slow march to reconciliation is laden with the greatest social and economic issues of our time: Generations of survivors of residential schools continue to experience lasting trauma from numerous and severe abuses; an epidemic of violence against indigenous women and girls deprives these women and children of their right to security; colonial legislation designed to eliminate First Nation identity exacerbates social and psychological trauma for individuals, families and communities; and systemic and overt racism continues to deny individuals and communities the educational and employment opportunities needed to break the relentless cycle of poverty.

This supposed new dawn is inspiring hope for those who have endured the greatest violations of their human rights by the state. The hope is fragile and people are rightly sceptical, but there is no doubt that if ever there was a time to hope for a shift to a new, respect-based era of nation-to-nation relations, that time is now.

During the first day of the Conference we heard from Indigenous leaders, legal experts and respected scholars. While there is clear disagreement on some concepts, such as the legal character of the UNDRIP or how the human rights of Indigenous peoples can best be protected, there is consensus that major changes are needed for the government’s actions to meet its rhetoric. Whether those changes demand a complete reconstruction of the Canadian governance framework, or whether strategic changes can produce the requisite comprehensive reforms are issues that call for further discussions.

The dialogue taking shape at the NCCT on Indigenous Peoples and Human Rights is an important early step in the new dawn of Indigenous rights in Canada – if only for the purpose of discovering if we may have entered a new place and a new march has begun.

Dark Dawn: The Long Shadow of Injustice Persists

Day Two: Conference on Indigenous Peoples and Human Rights

22 February 2018

Important discussions were had about the path toward human rights systems that respect the rights of Indigenous peoples at the second day of the Indigenous rights conference hosted by the Native Canadian Centre of Toronto (NCCT) and organized by the Ontario Human Rights Commission (OHRC) and Osgoode Hall Law School.

While it is not the purpose or expectation of the conference to solve all the immense human rights issues confronting Indigenous peoples in Canada, the conference is certainly a valuable exercise in identifying the roots of the issues and defining some potential prescriptions to correct these wrongs.

But while the presentations by, and discussions with, exceptionally well-qualified and brilliant scholars, legal professionals and community leaders inspired confidence that this conference could produce some valuable results, the verdict delivered at a Winnipeg courtroom 2,000km away reminds us of the intimidating scope of this challenge.

The Raymond Cormier not guilty verdict in the death of 15-year-old Tina Fontaine comes only two weeks after an all-white jury in Saskatchewan acquitted Gerald Stanley in the shooting death of 22-year-old Colten Boushie. The failure of the criminal justice system to deliver justice for Indigenous peoples is a stark contrast to the discussions at the NCCT on the high rates of incarceration of Indigenous peoples and the need for traditional justice programs. While the criminal justice system continues to operate to undermine the unique place of Indigenous peoples in Canada, these decisions evidence the failures of the system to deliver results for Indigenous victims of crime.

We had the privilege of hearing Romeo Saganash (NDP – Abitibi-Baie James – Nunavik – Eeyou) speak about his work on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and his Private Member’s Bill C-262 which will see the full implementation of the UNDRIP domestically.

The great potential for real change inspires hope. The rhetoric from the government that a new framework to ensure Justice for Indigenous peoples incites optimism; however, the continued violence against indigenous women and girls – the unfathomable reality that little girls can be murdered without consequence – should make us shutter in disgust and shame.

This is the bipolar nature of justice for Indigenous peoples in this country. The weight of unrelenting oppression often depresses hope until a new sign of coming reconciliation and decolonization emerges. This gives rise to near-manic excitement for change, until the inevitable return of the dark shadow of systemic marginalization and overt racism sharply curb the tide of optimism.

Empty gestures and dishonest consultations pave the road of Indigenous-State relations in Canada. Unfortunately, the continued failure of the government to back up the promises of reconciliation with meaningful action will ensure our society continues to be afflicted by reprehensible racism that claims the safety and lives of Indigenous women and girls across the country.

The second day of this conference on the rights of Indigenous peoples inspired hope. Reminders of injustice persist.

Indigenous Human Rights Institutions and the Pathway to Justice

Day Three: Conference on Indigenous Peoples and Human Rights

23 February 2018

The Raymond Cormier verdict was a point of passionate discussion and tears during the last day of the conference on Human Rights and Indigenous Peoples. Despite the anger, sadness and frustration resulting from the verdict, the conference continued to explore important principles and concepts for the transition to human rights systems that respect Indigenous rights.

The principle theme of the third day of the conference centred on human rights institutions. A major conundrum that faces human rights bodies in Canada is reconciling the Western nature of important bodies like the Canadian Human Rights Commission and Tribunal and the provincial counterparts with the need for self-governance and self-determination. While the human rights commissions are technically arms-length from government, they are certainly a component of the state apparatus. Regardless, many first Nations, Metis and Inuit communities cannot, in good conscious, accept the authority of non-Indigenous bodies over the governance of human rights in the community.

While there is justified scepticism of non-Indigenous human rights organizations in traditional communities, there is no doubt a pressing need for institutions to advocate for and protect the human rights of Indigenous peoples in their communities.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) must be implemented in accordance with international law and without discrimination. Ensuring the traditional and human rights of Indigenous individuals are respected by Indigenous governments requires third party oversight, as is the case with all governments. The issue is not whether Human Rights institutions are needed in traditional communities, but how these bodies ought to be constituted.

There was a general consensus that, while the non-Indigenous human rights institutions should not, themselves, have a mandate of investigating and adjudicating human rights disputes between indigenous peoples and their governments, there is a supportive role for these institutions in the development and operation of indigenous human rights institutions.

Ultimately, new Indigenous institutions are necessary to provide third party oversight as we transition increasingly toward self-governance models. These institutions will play an important role in promoting education and understanding of the binding nature of human rights at the traditional government level while resolving human rights disputes.

Indigenous women face significant barriers to the free and liberal exercise of their rights as a result of the intersection between their Indigenous status and their sex. Overcoming these challenges to equality requires access to efficient and effective human rights institutions in their traditional communities and in non-Indigenous communities.

This conference was a valuable exercise in exploring the issues and remedies that confront Indigenous peoples in the context of a period of an apparent new dawn for Indigenous rights in Canada. It is important to recognize that this is just the beginning of the dialogue. A long journey remains before Canada arrives at any place resembling a just society, but in the long shadow of colonization, there is hope again.

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