Before
being elected Prime Minister, Justin Trudeau told Canadians and First Nations
that there was no more important relationship to him than the one with
Indigenous peoples. To this end, he promised to engage with First Nations on a
Nation-to-Nation basis where free, informed and prior consent means a veto. Once
elected, he reiterated his promises:
(1)
Engage
in a Nation-to-Nation relationship with First Nations;
(2)
Lift
the 2% cap in First Nations education;
(3)
Review
and repeal all the legislation former Prime Minister Harper imposed on First
Nations without their consent;
(4)
Implement
all 94 Calls to Action from the Truth and Reconciliation Report, which includes
implementing the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP); and
(5)
Complete
a national inquiry on murdered and missing Indigenous women and girls.
True
to his word, Trudeau’s first order of business was to mandate Indian Affairs
Minister Carolyn Bennett, Justice Minister Jodi Wilson-Raybould and Status of
Women Minister Patti Hajdu to develop an approach and mandate for an inquiry
into murdered and missing Indigenous women and girls to find justice for them. By mid-December 2015, the
first engagement sessions were held with the families of murdered and missing
Indigenous women and girls, Indigenous women and their representative organizations,
Indigenous leaders, and human rights experts to determine the scope and process
of the inquiry. While these meetings were ongoing, Canada accepted written
submissions and also engaged in an online survey regarding the scope and
process for the inquiry.
It
is important to note that both the pre-inquiry engagement process and the
inquiry itself were to be done within a new political context - one which focused
on openness. Trudeau promised to “bring new leadership and a new tone to Ottawa”
and “set a higher bar for openness and transparency in government”. In fact, he
went so far as to say that “Government and its information should be open by
default.” His reasoning for doing so was to ensure that Canadians can trust
their government and that government remains focused on the people it is meant
to serve. All of these promises come straight from the Ministerial mandate
letters.
As
promised, the government posted the dates and locations of meetings; posted overviews
of each session online; and issued a summary report of what they had heard once
the pre-inquiry sessions had ended in March 2015. Out of respect for what
seemed to be a mostly positive process, most leaders and advocates held back
their commentary in hopes that the next stage would soon follow.
In the months which followed, none of the mandated Ministers reported on what was happening
with regard to the inquiry. Some of us were wondering when they would establish
a table to begin jointly drafting the Terms of Reference based on the input
from these sessions and begin the process of jointly choosing the commissioners
for the inquiry. Such a table was never established. Instead, we only found out
that the Terms of Reference were in fact being unilaterally drafted by federal
and provincial governments when they were leaked to the press. Shortly thereafter,
the names of the Commissioners were also leaked. This is when it became very clear
that the government reverted to its old secretive ways and had no real
intention of working on a Nation-to-Nation basis with First Nations. It was
clear Trudeau’s commitment to openness, transparency and working in partnership
with Indigenous peoples had ended.
http://www.theglobeandmail.com/news/national/missing-murdered-indigenous-women-inquiry-unlikely-to-have-mandate-to-review-police-conduct/article31020957/
Despite
Trudeau’s personal promise made at the Chiefs in Assembly that the “process by
which it [inquiry] is established will be fully inclusive”, numerous requests
to be a part of the drafting process, and be provided direct updates and
briefings from the INAC Minister’s office, were either met with silence or
commitments cancelled at the last minute. It was obvious that the
government was playing politics with one of the most urgent issues ever to face
Canada – the very lives of Indigenous women and girls. The renewed
Nation-to-Nation relationship with Indigenous peoples was supposed to be based
on “recognition of rights, respect, co-operation and partnership”. Trudeau had
mandated these and other Ministers to work to gain the trust of Indigenous
peoples and Canadians by demonstrating “honesty and willingness to listen”.
Clearly, these Ministers have lost their way in regards to the national
inquiry.
Being
completely excluded from the drafting of the Terms of Reference and choosing
the Commissioners was bad enough, but to face the wall of silence and exclusion
made things much worse. Some of the families started to lose faith; Indigenous
leaders were forced to speak out; and some Indigenous and allied advocates
were pushed to raise their concerns publicly, since the direct route had been
cut off. To make matters worse, the content of the draft Terms of Reference
that were shared by the media, was a real slap in the face to many of those who
participated in the engagement sessions, who made written submissions and/or who have tried to work very hard with various Ministers’ offices. The
Terms of Reference did not reflect what was recommended by various United
Nations human rights bodies, human rights organizations, legal experts, Indigenous
leaders, Indigenous women’s organizations, Indigenous experts, or by the
families.
While
there are many concerns with the draft Terms of Reference that were leaked by
the media, the following is a brief overview of the main concerns as expressed
by a variety of Indigenous women, families, leaders, experts and human rights
allies:
(1)
Police: There is no specific
mandate to investigate police conduct, specifically racism & sexualized
violence within police forces towards Indigenous women & girls, their
families and First Nations;
(2)
Evidence: There is no
specific authorization for the inquiry to compel federal, provincial, and
territorial documents, especially from police forces;
(3)
Human Rights: The inquiry is
not structured within a human rights framework which is a major weakness given
Canada’s failure to protect the domestic and international human rights of Indigenous
women and girls has been cited as a root cause of the crisis;
(4)
Jurisdiction: There is no
specific authority for the national inquiry to deal with matters that some provinces may feel are within their
exclusive jurisdiction, like the critical issue of child and family services.
Similarly, there is no explicit legal clarity around cross-jurisdictional
sharing of information that will be required in the inquiry.
(5)
Participant
supports:
There is no specific provision to provide protection from police for witnesses
who bring forward information about police abuse. There are also no specific
supports for travel, legal counsel or language translation.
My
primary concern is related to the lack of specificity around racialized and
sexualized police violence committed upon Indigenous women and girls and
how police racism and misogyny impacts their decisions to investigate murders and disappearances or not,
and the quality of those investigations.
As
it stands now, there is no specific mandate to investigate failures by police
forces to investigate murdered & missing Indigenous women & girls including
both solved and unsolved cases, misnamed cases (murders deemed accidents),
failures to file reports, failures to protect Indigenous women & girls; police
facilitation (direct or indirect) of child prostitution and human trafficking, and the
treatment of families and First Nations by police.
This
is made all the more problematic by the fact that the draft Terms of Reference specifically
directs the Commissioners NOT to investigate anything that could interfere with
ongoing investigations – which would include cold cases not touched for over 20
years. Even more shocking is that Commissioners are instructed to send Indigenous
families back to the same police forces that abused them, mistreated them or discriminated
against them in the first place. Offering “navigators” akin to native court
workers to help families deal with police processes is no replacement for a
fulsome investigation of police failures and abuses, or the elimination of discriminatory
police processes.
Even
if one could argue that the current Terms of Reference does not need a specific
mandate to review legislation, policies and oversight processes relating to
policing and the justice system, the commissioners’ inability to compel police,
their notes, or other police-held evidence under current laws and policies
would make this implied power useless. These laws have resulted in a high impunity rate for police. If police officers who murdered unarmed
racialized men in front of witnesses and on video can’t be compelled to
cooperate with their own legislated Special Investigations Unit or share their
notes and other evidence, what makes Trudeau think that some non-specific
wording in the Terms of Reference will be able to do so? Canada is once again
asking us to have faith in justice processes that protect police and harm Indigenous peoples. That
is not what trust and partnership is about.
But
Trudeau doesn’t have to take my word for it. Minister Bennett’s own report on
the engagement sessions noted that not only should the inquiry be done in a
human rights framework, but that the inquiry must address law enforcement –
over and above systemic issues within the justice system. Families and experts
from all over Canada said they want police accountability, independent reviews
of cases, analysis of police racialized and sexualized conduct towards Indigenous women and girls, and the sexual
exploitations of Indigenous women and girls.
Trudeau
himself promised that the national inquiry would investigate “uncomfortable
truths” and seek concrete actions related specifically to law enforcement.
While the uncomfortable truth about police racism and sexualized violence,
abuse and corruption has been in the public eye lately through media exposing the extensive nature of police abuses - Indigenous peoples have long
known about this problem. We need this national inquiry to shine a light on
this dark and uncomfortable truth for all to see, so we can put an end to it.
Prime
Minister Trudeau, you made a promise to us. It’s up to you to force your
Ministers to fulfill that promise. Convene a table this week so that Indigenous
peoples can jointly draft the Terms of Reference and pick the Commissioners.
Nothing less will live up to your Nation-to-Nation commitment. It’s never too
late.
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