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.
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