Monday, May 15, 2017

Inquiry into Murdered and Missing Indigenous Women and Girls Fatally Flawed

(Originally published in Lawyer's Daily on May 15, 2017)

It looks like those who advocated for the long-awaited national inquiry into murdered and missing indigenous women and girls will be waiting a little while longer.

Despite the promise from Liberal Prime Minister Justin Trudeau that the national inquiry would be his first order of business, it has been 19 months since his election and the inquiry hasn’t held a single day of hearings. Although the commissioners held two soft launches in September 2016 and February 2017 promising to launch the hearings soon, the inquiry has not started, nor will they hear from the families until fall 2017.

Given that the commissioners were given exceptionally limited time to conduct the inquiry, the fact that they have already used up nine of the 26 months allocated to them is a major concern. At this point, the commissioners have very little to show for either the time used or the money spent to date — more than 10 per cent of its $53 million budget.

Given the lack of communication from the commissioners to date, we are all left wondering what is going on.

Equally concerning are reports that the federal government has been behind some of the delays by refusing to share its lists of potential witnesses with the commissioners or advance adequate funding to allow much-needed staffing to occur.

The long list of Indigenous families, leaders and advocates raising public concerns has been met with extended periods of silence. Recent cancellations of scheduled meetings of the inquiry have led to increased criticism by the same indigenous families and advocates who originally pushed so hard for the inquiry. There are even calls for the inquiry to be “reset” both in terms of the panel of commissioners and the inquiry format itself.

But, as problematic as all this administrative mess is — and it could very well unravel the inquiry — it is relatively minor in comparison to the fact that the inquiry, legally speaking, is fatally flawed.

Even if the federal government had ensured the inquiry started earlier in Trudeau’s term, and even if the commissioners had been able to quickly launch hearings, neither of these conditions could save the inquiry from its flawed Terms of Reference.

The Terms of Reference lack the two areas of inquiry that were most important to indigenous families, leaders and advocates: (1) a review of all the known police case files of murdered and missing Indigenous women and girls and (2) a comprehensive review and investigation of police behaviour, specifically racism, abuse and sexualized violence of Indigenous women and girls by police forces. Yet, these two things are specifically exempted or protected from review in the terms, forcing witnesses who want to give evidence about these issues, to go back to the very same police forces that committed the flawed investigations of their missing or murdered loved ones, or the same police forces that failed to act on abuses by their officers.

There is no way to save this inquiry from such fatal flaws. The provinces and territories all passed orders-in-council to allow the inquiry to proceed in their jurisdictions based on the terms as drafted — in other words, based on these two exemptions. Yet this flies in the face of what Indigenous women, leaders and advocates have long requested and what the minister heard in the national engagement sessions leading up to the drafting of the terms.

Despite the Human Rights Watch report about police officers sexually abusing Indigenous women and girls in British Columbia with impunity; or the police officers in Val D’or, most of whom will not face charges for allegations of ongoing sexualized abuse of indigenous women and girls in Quebec; or the rampant sexualized violence and discrimination within the RCMP as evidenced by the class action by its female members — none of this will be open for examination.

At best, the commissioners might be able to look at systemic discrimination within policing policy — but nothing that gets to heart of why so many Indigenous women fear police, and why so many of their investigations, or lack thereof, have been challenged by the families. This poses a real risk that we will end up with an inquiry that is more damaging than helpful. We could end up with a report like that of commissioner Wally Oppal from the Pickton inquiry which hints at generalized police failures in investigations but doesn’t shine a light on the darker side of policing.

One of the worst outcomes would be a report that presents a general historical overview of colonization, a recap of the well-known socioeconomic problems plaguing First Nations or one that represents the voices of so few indigenous witnesses that it misses the root problems altogether.

The inquiry terms are already biased toward violence in general and best practices related to violence prevention and safety. This has already led many commentators to focus on domestic violence, which is part of the issue, but by no means the whole issue. Such an unstructured inquiry means we could end up with a report on the already well-documented research on domestic violence but have nothing about police violence for example.

Given that the terms also focus the inquiry on the “vulnerabilities” of Indigenous women and girls as opposed to failures of federal, provincial and municipal governments and service agencies to protect the human rights of Indigenous women and girls — the inquiry risks missing the whole point. The fatal flaws of the Terms of Reference are reason enough for a reset of the inquiry.

There is no shame in learning from the lessons of the Truth and Reconciliation Commission’s reset and making sure that the thousands of murdered and missing Indigenous women and girls, their families and communities get the inquiry they asked for and the justice they deserve.

Nation to Nation Relations Need Repeal of Paternalistic Laws

(Originally published in Lawyer's Daily on April 17, 2017)

Prime Minister Justin Trudeau swept the Liberals into power on Oct.19, 2015, with the support of Indigenous peoples who voted in record numbers. Trudeau’s election platform consisted of core promises made to the Chiefs in Assembly on July 7, 2015, which would include the review and repeal of legislation unilaterally imposed on First Nations by former Conservative Prime Minister Stephen Harper. Trudeau confirmed his government’s commitment at a subsequent meeting of the Chiefs of Assembly on Dec. 8, 2015.

This was a significant commitment for First Nations since the unilateral imposition of these laws by the Harper government had inspired the largest social movement in Canada’s history: Idle No More. Indigenous peoples took to the streets for nearly a year protesting Bill C-45, an omnibus bill that would remove protections for various waterways; Bill C-27 First Nations Financial Transparency Act; Bill S-2 Family Homes on Reserve; Bill S-6 First Nation Elections; Bill S-8 Safe Drinking Water; and Bill C-428 Indian Act Abolishment. All of these bills involved some form of increased government control, something First Nations were not willing to accept. In addition to protests, First Nations decided to tackle these unconstitutional laws head on in the courts.

Mikisew Cree Nation won their initial case in Federal Court challenging Harper’s failure to consult on two omnibus Bills C-38 and C-45; and Onion Lake Cree Nation won their federal court battle against Bill C-27.

While Idle No More activities on the ground eventually subsided, First Nation discontent with federally imposed legislation continued to grow throughout Harper’s mandate. There was significant opposition and protests against Bill C-51, the Anti-Terrorism Act, which targeted the political activities of Indigenous peoples.

The situation came to a head when Assembly of First Nations (AFN) National Chief Shawn Atleo publicly supported Harper’s Bill C-33 First Nation Control of First Nations Education Act without informing or consulting First Nations. The resulting widespread cries for Atleo’s removal led to his resignation and put a serious strain on an already fragile relationship between First Nations and the federal government. Trudeau’s election promises offered a welcome path forward.

However, Trudeau’s first budget was a major disappointment not only for failing to address the many overlapping crises in First Nation social conditions, but also for completely ignoring his promises to repeal Harper’s legislation. The resulting First Nation criticism is likely what led to this year’s announcement that Trudeau’s government has created a ministerial working group to review all laws and policies related to indigenous peoples. The working group consists of the ministers for Indigenous and Northern Affairs, Fisheries, Justice, Health, Families and Natural Resources and will be chaired by Justice Minister Jody Wilson-Raybould.

On its face, the announcement appears to be an indication of the Trudeau government moving in the right direction in the promised nation to nation relationship. However, we do not have either a specific budget for this work or a terms of reference that specifies who will be engaged in the review, the time frame for completion, or the ultimate objectives.

The worst thing that could happen is yet another government committee struck to review its own laws, with its own legal interpretations of what does and does not violate the Constitution, cementing it firmly in its own colonial and paternalistic mindset.

Most will recall that Trudeau’s father, former prime minister Pierre Elliott Trudeau, struck out big time with his 1969 White Paper on Indian Policy calling for the elimination of Indian status, reserves and treaty rights. This ministerial review committee risks the same fate without First Nation leaders and experts at the table. Another core concern is that the scope of this review has been enlarged so much that this committee could spend years reviewing hundreds of laws and policies instead of repealing the handful that Trudeau promised to repeal.

Therein lies the other problem with Trudeau’s legal review committee — it is based on a nation to nation relationship that begins and ends with the AFN. This comprehensive legal and policy review must be done in partnership with the actual Aboriginal and treaty rights holders themselves; i.e., First Nations and treaty signatories, not the AFN. This is a critical first step before Trudeau’s vision of “a complete renewal of Canada’s nation to nation relationship with indigenous peoples” can be realized. It will require Trudeau’s working group to negotiate the terms of reference with representatives of the rights holders on a nation basis, like the Mi’kmaw Nation, or on a treaty basis, like engaging with all First Nations in Treaty 4, for example. It is possible for regional and other representative organizations to participate, so long as it is the rights holders themselves who mandate them to engage in this process.

To date, Trudeau has not asked how our nations want to be represented or engaged in this legislative review. First Nations in Canada are not the mythical race of “Indians” created by the Indian Act. They do not have one culture, one language or one set of laws. First Nations are part of larger Indigenous nations with laws, governments, histories and politics as varied as those found in the United Nations.

If Trudeau is serious about transforming the relationship with indigenous peoples, he will have to abandon the colonial requirement that all First Nations speak with one voice. Canadians don’t speak with one voice, nor do the provinces and territories. To expect more of First Nations is an adherence to racist stereotypes of the past which have no place in a multinational, democratic Canada that is truly committed to reconciliation, reparation and renewal. The terms of reference will be the real indication as to whether Trudeau is serious about a renewed relationship.

See also my recent video explaining Trudeau's proposed federal legislative framework and its potential impact on First Nation rights: