June 18, 2018

Fast talk on indigenous economic, social and cultural rights in Canada 2018

Publication Type

Research Reports

Subject Matter

Human Rights

Summary and key takeaways from the experts

Recourse and Remedies:

It is imperative that economic, social and cultural rights (ESC rights) are recognized as justiciable and are capable of receiving redress or remedy.
It is crucial that solutions for addressing Indigenous ESC rights do not take a one-size-fits-all approach.
As allies, non-Indigenous people in Canada have a responsibility to eradicate ongoing racism in Canadian society and to address the systemic racism that persists within legislation, policy and practices.
Indigenous peoples have the right and jurisdiction to design, deliver and implement the kinds of services that are going to work best for their communities and lead to positive outcomes. Canadian society must partner with Indigenous peoples and follow their lead in the articulation of Indigenous and treaty rights.
Better investments in skills and training for Indigenous peoples, as determined by Indigenous communities, would help to break the cycle of social issues that Indigenous communities continue to face as a result of ongoing colonialism.

Alternative Frameworks and Mechanisms:

By translating ESC rights-related issues into legal claims, it is often less likely that the resulting outcome will include the type of transformational change that is necessary to remedy the issue.
Rights – including ESC rights – are pre-packaged within concepts that are individualistic, hetero-normative, capitalistic, and based on concepts such as the nuclear family – all frameworks that Indigenous peoples do not necessarily fit within.
Many Indigenous peoples operate under the framework of community and collective responsibility.

Indigenous Language and Identity:

Language and identity are inextricably intertwined, and much of Indigenous identity preservation exists within Indigenous language preservation and recovery.
A robust and inclusive education system where Indigenous languages are protected, preserved and promoted must be implemented, and educational curricula – from kindergarten to grade 12 and for both Indigenous and non-Indigenous youth in Canada – should include Indigenous history and discussion about the ongoing issues of colonialism for Indigenous peoples in Canada. It is also critical for the development and delivery of such an education system to have Indigenous leadership at all stages.
If the right to Indigenous language is to be recognized through an Indigenous Languages Act, there needs to be a remedial framework and something more substantive in terms of protection.

International and Regional Bodies/Mechanisms:

Groups at both the international and domestic level have repeatedly urged the Government of Canada to create some kind of joint federal-provincial-territorial monitoring body, with non-governmental organization (NGO) and Indigenous membership on it, whose main function would be to monitor and report on Canada’s compliance with its international human rights obligations, particularly as such obligations pertain to ESC rights.
De-briefing on findings from international treaty bodies will continue to be unhelpful until there is some kind of ongoing coherent process for monitoring the implementation of recommendations.
The United Nations Declaration on the Rights of Indigenous Peoples must become a guiding foundation document in the articulation of Indigenous and treaty rights in Canada.
NGO involvement within international human rights mechanisms provides an important and unique perspective, which is why it is imperative that NGOs receive adequate funding for the human rights work that they do at the international level.

Short, Medium and Long-Term Goals for the CHRC:

A number of short, medium and long-term goals were suggested. Short-term goals include: ensuring that the Canadian Human Rights Commission’s (CHRC) complaints inventory is well managed, conducting public education activities, and ensuring CHRC collaboration with similar rights protection mechanisms and institutions that already exist. Medium-term goals include: conducting studies and issuing reports, ensuring Indigenous representation within the CHRC, and addressing deficiencies with the CHRC’s redress mechanisms. Long-term goals include ensuring NGO presence in both regional and international human rights mechanisms, providing socioeconomic training and skill building for Indigenous youth, and ensuring federal-provincial-territorial coordination.

Background

The Canadian Human Rights Commission (CHRC) has identified economic, social and cultural rights (ESC rights) as a key area of concern requiring further knowledge development. As part of this exercise, the CHRC hosted a Fast Talk on Indigenous ESC rights in Canada to help frame, explore and refresh its thinking on this issue.

A “Fast Talk” is a mini-roundtable consultation that brings together a small group of experts via teleconference on a given subject.

The experts invited to the Fast Talk on Indigenous Economic, Social and Cultural Rights in Canada were asked to answer the following four policy questions in writing ahead of time:

What systemic changes, remedies or solutions are most needed now, to improve economic, social and cultural rights for Indigenous peoples in Canada?
What do you see as the CHRC’s role in these solutions? What practical tools or strategies would you see as most helpful?
What role can the CHRC play in ensuring that Canada lives up to its international human rights obligations as they relate to Indigenous peoples, including the economic, social and cultural rights embedded in the United Nations Declaration on the Rights of Indigenous Peoples?
As we move forward, what approaches or strategies are key to ensuring successful CHRC engagement with Indigenous peoples facing economic and social disadvantage in Canada?

The written responses from the experts were compiled and distributed to both the experts and CHRC staff in advance of the Fast Talk discussion. The CHRC and experts then participated in a 3 hours teleconference on June 18, 2018, to discuss and elaborate on the written responses. The Fast Talk was moderated by Sherri Helgason, Director of the Equal Access Division at the CHRC and Tabatha Tranquilla, Senior Policy Advisor at the CHRC. Key CHRC staff involved in ESC rights-related issues were in attendance as observers during the Fast Talk, both in person and through teleconference.

Expert participants

The following experts participated in the Fast Talk (see Appendix for biographies):

Will David, Legal Advisor, Inuit Tapiriit Kanatami
Teresa Edwards, Executive Director and In-House Legal Counsel, Legacy of Hope Foundation
Niigaan Sinclair, Professor in Native Studies, University of Manitoba
Maggie Wente, Partner, Olthuis, Kleer, Townshend LLP
Margot Young, Professor, Allard School of Law – University of British Columbia

Fast talk discussion

Opening thoughts and key points

Second Tier Rights:
Many experts were troubled by the discourse surrounding ESC rights, and the tendency to consider these rights as “second order” human rights. It was suggested that there is a proclivity for governments to view ESC rights as more “discretionary” than other rights, such as civil and political rights. In addition, many of the experts emphasized that if ESC rights are to be treated as legal rights, they must also have the ability to be remedied in some fashion.

Interconnectedness of Rights:
The experts emphasized the importance of recognizing that human rights are interrelated, interdependent and indivisible. In addition, it was stated that in order to properly understand the relationship and interconnectedness of these rights – in application and in redress – it is imperative to have a substantive core of expertise on both ESC rights and Indigenous rights.

Solutions:
It is crucial that solutions for addressing Indigenous ESC rights do not take a one-size-fits-all approach. Experts discussed how both problems and solutions vary from nation to nation, and can be very different depending on whether one is looking at Inuit, Metis, or First Nations communities. It was suggested that one expert couldn’t purport to have all of the solutions or actions necessary to remedy or implement ESC rights fully for all Indigenous peoples. In other words, Indigenous and treaty rights must take into account cultural and geographical specificities.

In addition, any solutions that are to be explored need to take into account the many challenges that Indigenous peoples have faced and continue to face, in particular the ongoing and inter-generational impact of the residential school system.

One expert also stressed the importance of taking into account the circumstances of Indigenous women in Canada when considering different solutions. Indigenous women are often more marginalized than Indigenous men, a reality which is further exacerbated if they live in remote communities. Further, a high percentage of young Indigenous women are single mothers living in poverty. Therefore, addressing the socioeconomic inequalities of this group requires a complex intersectional approach that recognizes the interaction of many dimensions of identity, such as Indigeneity, gender, family status, and, often, age.

One expert suggested that, as a part of addressing the issue of violence against Indigenous women and girls, it is essential that young Indigenous men be empowered. It was stated that young Indigenous men are often disenfranchised and forgotten about; however, if they were truly supported in healthy ways, many may not end up in prisons where they become trapped in cycles of shame, violence and poverty – issues they often end up bringing home and introducing to families and communities.

Experts also discussed the importance of looking at solutions that involve non-Indigenous Canadians, and what they can do to become better allies to Indigenous peoples in Canada. This includes helping to implement the ESC rights of Indigenous peoples in Canada. It was stated that, as allies, non-Indigenous people in Canada have a responsibility to eradicate ongoing racism in Canadian society and to address the systemic racism that persists within legislation, policy and practices. For instance, experts stated that systemic racism is still embedded in the Canadian education system, criminal justice system, child welfare system, and in specific clauses of the Indian Act.

Indigenous and Treaty Rights:

“You can have all of the Aboriginal rights and all of the lands in the world, but if we don’t have healthy communities and we don’t have people to inhabit those lands and exercise their rights, then the project is moot.” – Expert Participant

Several experts discussed section 35 of the Constitution Act, 1982, and how, from the outset, it has become a fairly empty recognition of Indigenous and treaty rights. One expert stated that they are continually shocked at how concepts of land and notions of territory – principles that embody Indigenous community and clan systems – are unrecognizable and poorly understood within Canadian courts and federal systems. There is an incommensurability of concepts around rights that are used in mainstream settler Canadian law, and these concepts are not always culturally appropriate or rich enough to capture the kinds of perspectives that Indigenous peoples would be able to lend to this conversation themselves. These are crucial parts to consider in the articulation of section 35 and must be a part of any legislative changes – particularly in the upcoming Indigenous rights legislation proposed by the federal government.

Another expert noted that there is an interrelation between Indigenous and treaty rights, and equality rights in programs and services. It was further noted that since the First Nations Child and Family Caring Society decision, there has not been a rush by the Canadian government to equalize other social program areas in which First Nations peoples are treated unequally. It was stated that this has yet to happen on any other program and is arguably not fully happening on the child welfare services case either.

One expert expressed that Indigenous rights and human rights (as they are articulated in Canadian society) are not the same thing. It was argued that human rights laws in Canada can sometimes interfere with or be diametrically different from Indigenous concepts and what are considered to be Indigenous and treaty rights.

Recourse and remedies

Indigenous Peoples Human Rights Commission:
One expert suggested the establishment of an Indigenous Peoples Human Rights Commission, which would function and serve as a national human rights institution, and would operate in a manner that is consistent with the Paris Principles. This would mean that it would be capable of providing redress, initiating complaints or conducting investigations, and, above all, would be fully controlled by Indigenous peoples.

Justiciability of ESC Rights and Self-Government:
It is imperative that ESC rights are recognized as justiciable and are capable of receiving redress or remedy. However, it was suggested that it cannot be a form of redress to simply suggest that there are funding gaps in the delivery of government services or programs between Indigenous peoples in Canada and non-Indigenous Canadians. It was suggested that in order to ensure that ESC rights are justiciable, a clear link should be made between ESC rights and the dignity interest of the human being. Therefore, solely addressing funding gaps was viewed as being an incomplete solution or remedy; a more complete solution or remedy would be to look at outcomes in Indigenous peoples’ lives, and to use this as a basis for determining whether or not ESC rights are being violated.

Additionally, with respect to funding, experts emphasized that it would be a failure and a misstep to provide additional funding for programs and services that are not culturally- appropriate or are clearly not meeting the needs of Indigenous peoples. It was stated that Indigenous peoples have the right and jurisdiction to design, deliver and implement the kinds of services that are going to work best for their communities and lead to positive outcomes. For instance, there are many Indigenous communities that say they don’t need or want child welfare agencies created by the government, and that they instead wish to deal with these issues in their own manner. However, the ways in which they do so may not necessarily be cognizable to mainstream systems, which is a very difficult concept for non-Indigenous people to understand. As a result of various agreements between the government and certain Indigenous communities or nations across the country, there are some Indigenous communities or nations that have greater control over certain kinds of social areas or programs and services. However, Canada’s imagination with respect to what this looks like in practice is quite limited. It was stated that federal and provincial governments don’t necessarily want to fund self-governing nations to assume those responsibilities, and that the majority of Indigenous peoples – which are those who fall under certain treaties or within the purview of the Indian Act – have to rely on the federal and provincial governments to cede control through self-governing agreements.

Investments in Skills and Training:
One expert suggested that better investments in skills and training for Indigenous peoples, as determined by Indigenous communities, would help to break the cycle of social issues, such as poverty or unemployment, that Indigenous communities continue to face as a result of ongoing colonialism. For instance, this expert stated that investments made in Indigenous women in particular have been shown to have a great return back into the community and back into society writ large. These investments must also be proactive by supporting Indigenous women in their communities before emergency situations arise. It was stated that although headway has been made with respect to investments in education for Indigenous women, these investments are not translating into economic outcomes and that the social crisis that Indigenous communities continue to face with respect to poverty will continue to exist until Indigenous women begin to benefit from economic investments. In a similar vein but requiring specificity, it was also suggested that investments must be made in Indigenous men.

It was also suggested that rather than providing Indigenous youth with social benefits – which breeds a sense of hopelessness and dependency – it would be more beneficial to invest in skills and training programs for Indigenous youth, which will allow them to have the support and inspiration needed to enter the workforce. These skills and training must include cultural content and community specificity, for these are essential to mental well-being and for healthy identities to function in Canadian society.

One expert noted that it is important not to explicitly or implicitly introduce programs in a way that allows blaming Indigenous peoples for their current disadvantages. This expert stated that it must be made clear that these programs are in response to situations brought about and maintained by colonialism, and therefore the cause lies not in the peoples themselves, but in the systems in which they have been historically and are currently embedded.

Child Welfare System:
Experts emphasized the completely backwards nature and structure of the current child welfare system. The many Indigenous children who are apprehended from their families end up going to non-Indigenous families or Indigenous families that are not within their own nations or communities. At the same time, Indigenous families lack the proactive supports to ensure their children don’t enter the child welfare system. Instead, it was stated that families who take in Indigenous children are receiving thousands of dollars and various kinds of supports. In addition, the westernized philosophy and framing of what constitutes a family and what is acceptable as a family is imbedded in the child welfare policies that are currently in place. This further imposes western ideologies on Indigenous peoples and contributes to decisions that result in the removal of Indigenous children from their homes. Providing alternative remedies for this kind of on-the-ground systemic issue would produce a substantive shift in the lives of Indigenous families.

Alternate frameworks and mechanisms

Substantive Equality:
One expert emphasized the important framework of substantive equality, and how this framework is imperative for grasping what’s really at the heart or the soul of ESC rights. It was suggested that more time needs to be spent articulating exactly what substantive equality is and what its distinctive features are. It was stated that the term is used frequently, but very little time is spent unpacking it. This results in a lot of rhetoric committing Canada to substantive equality, but very little in the way of achieving concrete outcomes. It was suggested that the CHRC could serve an important role in providing public education on what substantive equality really means.

Law and Judicial Review:
It was stated that the current legal system is one of the key accountability mechanisms that we disproportionately rely on in Canada for addressing ESC rights. It was also mentioned that translating ESC rights-related issues into legal language and into legal claims often dilutes complex contextual issues and reduces complaints to a simple win-lose formula. However, it was stated that there is a reluctance to give up on law and judicial review as an accountability mechanism for various reasons. For instance, ESC rights activists or social justice activists have had limited avenues for recourse other than the courts because of the kind of check they represent to political power in our system of constitutional democracy. It was also stated that it is important to realize that by translating ESC rights-related issues into a legal claim, it is often less likely that the resulting outcome will include the type of transformational change that is necessary to remedy the issue.

Monitoring and Reporting:
It was stated that groups at both the international and domestic level have repeatedly urged the Government of Canada to create some kind of joint federal-provincial-territorial monitoring body, with NGO and Indigenous membership on it, whose main function would be to monitor and report on Canada’s compliance with its international human rights obligations, particularly as such obligations pertain to ESC rights. It was stated that the involvement of Indigenous NGOs in the monitoring process would be critical, and that adequate state funding of these NGOs should be a prerequisite to such a process in order for it to have any kind of legitimacy. This would remove the organizational logistical barriers that inadequate resources present, which often excludes many NGOs – including Indigenous NGOs – from participating in these types of processes.

Pre-packaged Rights and Frameworks:

“Indigenous people have to fit themselves into a box. These rights are already pre-packaged and are always individualistic, always based in capitalism, always based in units like the nuclear family, and Indigenous people just don’t fit within those frameworks.” – Expert Participant

Some experts emphasized that rights – including ESC rights – are pre-packaged within concepts that are individualistic, hetero-normative, capitalistic, and based on concepts such as the nuclear family – all frameworks that Indigenous peoples do not necessarily fit within. Experts noted that it’s not that Indigenous peoples don’t have use for these concepts, but it’s that there seems to be no room for dialogue on alterative frameworks closer to Indigenous concepts. It was stated that many Indigenous peoples operate under the framework of community and collective responsibility. The concept of responsibility is ultimately what denotes one’s role, gender and existence in relationship with the world around them. One expert expressed the view that Indigenous concepts are more about responsibilities and often not about rights at all (in the way that Canada positions them).

One expert emphasized that claims of human rights violations are at their core anthropocentric, framing humanity as the only thing that matters. This can be a foreign concept for Indigenous peoples. For example, one expert explained that in New Zealand, many governmental decisions involving land and territory have someone present within the framework of that conversation to speak on behalf of that land and territory. However, land and territory as entities requiring consideration is not a concept considered or included in decisions in Canada. Therefore, one expert compared the way in which human rights conversations begin in Canada to building blocks, where the very first block that gets put into place does not include Indigenous peoples in the conversation. Indeed, precedents in the law – most of which treated the land as terra nullius and Indigenous peoples not as nations or even human beings – continue to operate in this fashion. This was stated as being the most fundamental problem with respect to rights discussions with Indigenous peoples in Canada.

Indigenous language and identity

“I can tell you that the number one way to deal with feelings of atrophy and loss amongst young people is to teach them the language.” – Expert Participant

Preservation of Language and Identity:
Experts emphasized that language and identity are inextricably intertwined, and that much of Indigenous identity preservation exists within Indigenous language preservation and recovery. In addition, it was suggested that, as you begin to understand Indigenous languages and the meaning behind different words, your relationship with the land itself shifts and begins to grow, and in some cases, may influence how you interact with the land. It was stated that Indigenous languages define a number of complex Indigenous systems, such as: legal systems; systems of trade, systems of governance; systems of strategizing; and systems of settlement. Indigenous languages are intertwined with how Indigenous peoples think, live and act, and are often coupled with a sense of empowerment. One expert suggested that, as a result, for Indigenous communities in which there is a strong Indigenous language present, there is less likelihood that individuals will have feelings of atrophy and loss in relationship with the land, with the people around them, and with life itself. This expert claimed evidence that language preservation and recovery results in less youth violence, poverty and suicide, which is why it may be key to the well-being of Indigenous communities into the future.

Education:
It was stated that forcing a province’s education system onto an Indigenous community is something that clearly hasn’t been working, and that it should be up to Indigenous communities to control for themselves what is happening to their youth and how to empower them. For instance, the legacy of residential schools provides a clear example of how the imposition of education on Indigenous peoples does not work. Moving forward, it was suggested that it is unhelpful to be in a system where there is no protection of Indigenous languages or there is limited opportunity for Indigenous languages to be taught within schools that serve Indigenous children. Implementing a robust and inclusive education system where Indigenous languages are protected, preserved and promoted will also ensure the protection, preservation and promotion of Indigenous identities. However, while this may happen in Indigenous communities, the responsibility for revitalizing Indigenous languages should not solely be held by Indigenous educational authorities, who are already coping with chronically under supported and underfunded educational systems. Canadian society must have a role in the revitalization of Indigenous languages.

It was also suggested that educational curricula – from kindergarten to grade 12 and for for both Indigenous and non-Indigenous youth in Canada – should include Indigenous history and discussion about the ongoing issues of colonialism for Indigenous peoples in Canada. It was stated that it would be critical for the development and delivery of such an education system to have Indigenous leadership at all stages. It is important for youth to learn about the treaties that were signed between Indigenous peoples and the Crown, what they mean, and what the rights and responsibilities flowing from them are. It is also crucial that non-Indigenous youth understand how their identities and society are framed and shaped by the historical and ongoing contributions of Indigenous peoples. It was suggested by one expert that there is especially a need for this education in Quebec, given its focus on the protection of the French language and Quebec culture and, as a result, promotion of Indigenous language and history may be seen as threatening. The expert expressed the view that both need to be taught, promoted and protected concurrently.

Section 35:
One expert expressed the view that it is difficult to understand how Indigenous languages could not be a central part of section 35, as Indigenous rights and treaty rights could have only been articulated within Indigenous languages. However, it was suggested that Indigenous languages are continually treated as afterthoughts in Canada, at the whim of political parties, without any long-term deliverables. For instance, Indigenous languages in Canada have no permanent infrastructure and presence within legislatures or parliament. It was suggested that the CHRC should take a hard stance in the protection of Indigenous languages.

Indigenous Languages Act:
Several experts made reference to a proposed Indigenous Languages Act. One expert noted that with respect to linguistic protection federally, there is a need to move beyond the idea of federal funding for programs and services to revitalize languages, or for programs and services to teach individual languages. This isn’t to say that these programs and services wouldn’t actually be necessary components of the legislation; rather, it’s to say that they are not the sum total. This goes back to the notion that if a right is going to be recognized, such as the right to language, there needs to be a remedial framework and something more substantive in terms of protection. It was also suggested that the CHRC should support the Indigenous Languages Act by engaging in consultations on the Act and articulating the importance of language to key concepts such as equality and justice.

International and regional bodies/mechanisms

Multiplicity of Mechanisms:
It was suggested that having a multiplicity of means or mechanisms to pursue claims is extremely helpful, particularly when ESC rights are involved, and that this also provides opportunities for further articulation of what ESC rights mean, including in an Indigenous context. Becoming familiar with other mechanisms and what they’re saying or how they are ruling on certain issues can also be extremely beneficial for law reform.

Domestic Monitoring:
There is very little domestic monitoring and reporting going on in terms of being able to consolidate the recommendations made by different international treaty bodies, getting Canada to respond to these recommendations, and engaging civil society and Indigenous peoples in the process. It was suggested that it would be extremely helpful to have some kind of an orderly and independent-of-government means to facilitate this, and that, as Canada’s National Human Rights Institution, the CHRC would be an appropriate body to take on this role. It was also suggested that the CHRC play a role in articulating what Canada’s international human rights obligations entail, as well as providing public education on the international treaty body monitoring process.

One expert expressed frustration with having to go back to international treaty bodies with the same recommendations every cycle. However, it was stated that doing so is necessary as there is currently no coherent means to follow up on these recommendations in Canada. It was suggested that this could be particularly critical with respect to ESC rights because so much of the reporting that relates to these issues has to do with government funding in these areas. Therefore, it is critical to follow up on the government’s spending to see exactly where the money has been allocated or reallocated and whether or not the money spent was sufficient in addressing the issue.

United Nations Declaration on the Rights of Indigenous Peoples
Experts suggested that the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) must become a guiding foundation document in the articulation of Indigenous and treaty rights in Canada. Additionally, it was stated that many of the rights and standards articulated in the UN Declaration could be classified as ESC rights, consistent with the International Covenant on Economic, Social and Cultural Rights.

NGO Involvement:
One expert expressed that for local groups, being able to articulate ongoing injustices in the language of human rights and within an international sphere is both an empowering and educational experience. For these groups, international human rights systems allow them to assert their claims and concerns within a framework and format that is really effective in conveying both legitimacy and seriousness. It was stated that NGO involvement within these systems provides an important and unique perspective, which is why it is imperative that NGOs receive adequate funding for the human rights work that they do at this international level.

However, one expert discussed a growing complication with NGO involvement at the international level. This expert stated that there is now a multitude of different NGO groups at these international human rights mechanisms, often with very distinct and important agendas. This makes for a busy and complex conversation, with many voices and perspectives present. While this is important, and indeed signals the success Canadian NGOs in particular have had at the United Nations, issues of cross group coordination can occur. Were funding to be provided, this could facilitate coordination between groups in determining what the issues are, what the priorities are, and ultimately how these issues and priorities should be framed. Similarly, funding is necessary to ensure that the most marginalized groups, with a high need to access these important human rights mechanisms, have the means to do so.

Short, medium and long-term goals for the CHRC

Short-Term Goals:

CHRC’s Perspective
One expert stated that they would be interested to know what the CHRC’s perspective is on the potential to expand the jurisdiction of the Canadian Human Rights Act (CHRA) in ways that can be relevant to Indigenous peoples and the social and economic injustices that they continue to face. It was suggested that a part of this could include expanding the prohibited grounds of discrimination in the CHRA to include social condition, which was recommended by the La Forest report back in the year 2000.

Complaints Inventory
It was suggested that if the CHRC hasn’t done so already, it should address its complaints inventory and ensure that it is well managed. This is to ensure that cases with very serious and complex human rights violations, such as those relating to Indigenous ESC rights, are not left at the bottom of the complaints inventory due to the amount of resources that would be needed to address these types of complaints. Experts indicated that having a well-managed complaints inventory is critical to ensure that both Indigenous complaints and ESC right complaints can actually be taken in, possibly prioritized and are allocated the necessary resources for analysis.

Decolonization
It was stated that decolonization is effectively about removing state action and building enough space for Indigenous law to work. Although Indigenous law may or may not be compatible with traditional views of human rights in some cases, there are mechanisms within human rights systems that can be used to bridge this gap. It was stated that it is critical for the CHRC to identify that decolonization has profound impacts for Indigenous human rights and potentially for ESC rights in Canada, and that it may be necessary for the CHRC to do some kind of a gaps analysis in this regard.

Jordan’s Principle
It was suggested that the CHRC should continually remind the federal government of the necessity of adhering to Jordan’s Principle. It was stated that the situation involving young Indigenous peoples is an emergent situation that can no longer be denied, and that although momentum is beginning to shift very slowly, more headway needs to be made. Time and time again the federal government has been shown to contravene the Canadian Human Rights Tribunal’s orders in regard to the child welfare case, which is why experts suggested that pressure from the CHRC be put into place.

Proactive Role
It was suggested that the CHRC take on a more proactive role or leadership position by not simply waiting to address issues as violations occur or as complaints come in. It was suggested that the CHRC be participants within the creation and the articulation of Indigenous rights, or in the articulation of what reconciliation or justice for Indigenous peoples requires. This would help to ensure that Indigenous peoples see the CHRC as a place in which they can articulate Indigenous rights and in a broader sense, articulate who they are.

Speak Out
It was suggested that the CHRC keep speaking out on the disparities and problems with government-provided services and programs for Indigenous peoples, including the current education and child welfare systems, as well as the lack of control that Indigenous peoples have over these different services and systems.

Education

“I’d like to think that – and I always go back to this – that if Canadians knew the truth or knew the facts about Indigenous peoples and the disparities and discrimination we continue to experience, that they would behave differently and I think the outcome would be different.” – Expert Participant

It was stated that the CHRC could provide education to the public about the character of ESC rights and their indivisibility from the more traditional rights that people have less trouble recognizing, such as civil and political rights. It was further stated that the full recognition of ESC rights as distinguishable from civil and political rights is needed not just with respect to Indigenous peoples, but for everyone who experiences social injustices. Issues such as childcare, adequate housing and access to drinkable water, are all aspects of a socially-just state that will benefit not only Indigenous people, but a range of people in Canada who are marginalized.

Providing education about the key role that linguistic autonomy plays was also suggested as a short and medium-term goal for the CHRC. It was suggested that the CHRC act as a watchdog or as an accountability mechanism with respect to how the government proceeds in addressing Indigenous languages. In particular, it was suggested that the CHRC link the critical nature of language to more traditional notions around human rights, to provide more of an impetus for the government to take action.

It was also suggested that the CHRC provide education to Indigenous peoples on both the role of the CHRC and how the CHRC can help them. It was suggested that this could be done through a public and outreach education campaign. First, however, it was suggested that the CHRC must consult with and listen to how Indigenous peoples want the CHRC to help. The CHRC must recognize and respond appropriately to the possibility that the kinds of help requested will be various and diverse, given the diversity of Indigenous peoples and their situations.

One last suggestion that was made in regard to education had to do with educating the general public about Indigenous peoples and Indigenous history. This would include providing education on the rich contributions that Indigenous persons have made, as well as the traumas that they have experienced and continue to experience in all facets of their lives. The Truth and Reconciliation Commission’s 94 Calls to Action – most of which frame education as the key to reconciliation – is crucial in this regard. The CHRC should advocate for the full adoption and integration of these calls in their fullest form. It was stated that this would help to build an acknowledgement and sense of empathy from the general public, as well as a change in action and decision-making by police, judges, educators, government workers, and those who provide additional services. It was suggested that this could, in the very near future, make a difference in the services that Indigenous peoples receive from governments across Canada. Additionally, in the long-term, the education provided to police and judges could result in less racism within the criminal justice system, potentially resulting in less imprisonment and less Indigenous representation in the criminal justice system.

Increase Understanding
It was suggested that the CHRC increase its knowledge base and understanding of the communities that it serves. This would include increasing the CHRC’s understanding on what people’s aspirations and issues are, as well as what the individual problems are across Canada.

Collaboration
It was suggested that the CHRC identify and collaborate with similar rights protection mechanisms and institutions that already exist. For instance, it was stated that the CHRC is well placed to provide information to the Correctional Investigator for federally-sentenced offenders, who may or may not have a lot of expertise on human rights and particularly the human rights of Indigenous peoples. It was also stated that the Correctional Investigator may or may not be aware of what the Committee Against Torture has said in regards to Canada’s treatment of Indigenous prisoners, which is also where the CHRC could provide further information.

It was also suggested that the CHRC collaborate with relevant House and Senate Committees and see if they require any support. It was stated that most Members of Parliament generally do not have a bastion of expertise on the state of play of human rights domestically or internationally, particularly where it relates to Indigenous peoples, and in instances where they are inclined to address such issues they would benefit from having some kind of support.

Medium-Term Goals:

Indigenous Representation
It was suggested that the CHRC ensure that Indigenous peoples have a presence within the organization, and more specifically, that they are at the decision-making table involving the higher-up workings of the organization.

Studies and Reports
It was suggested that there be regularly conducted thematic studies and reports, whether it be for Parliament, Indigenous peoples, or for Canadians writ large, where a human rights lens is used to look at the various aspects of racism against Indigenous peoples in this country, or alternatively, to look at the enjoyment of ESC rights in this country.

Domestic Monitoring
It was suggested that in the medium-term, there should be some kind of coherent means of monitoring the recommendations made to Canada by international treaty bodies.

Redress Mechanisms
It was suggested that a medium-term goal would be for the CHRC to address the deficiencies with the redress mechanisms available through its complaints process. In other words, it was stated that the scope of the jurisdiction under the CHRA would need to be substantially expanded, and that the redress opportunities within this would need to be expanded as well. This could potentially give the Canadian Human Rights Tribunal a greater opportunity to compel actions and changes from the government.

Long-Term Goals:

Recognition
It was suggested that the CHRC take a leadership role in recognizing the foundational and seminal contributions of Indigenous peoples in Canada, as well as what Indigenous peoples’ cultural frameworks have offered to this country. It was stated that this would help to move the conversation with respect to Indigenous peoples beyond relevance, to recognizing that Indigenous peoples are the foundational building blocks of this country.

NGO Presence
It was suggested that it would be important to ensure the presence of NGOs in both regional and international human rights mechanisms.

Skills and Training
It was suggested that long-term investments in socioeconomic training and skill building for Indigenous youth would ensure their participation in the economy, as well as reduce the long-term effects of imprisonment and incarceration.

Federal-Provincial-Territorial Coordination
It was suggested that a long-term goal would be to have some kind of coherent system between federal and sub-national jurisdictions on human rights. It was suggested that there be greater cooperation through the Canadian Association of Statutory Human Rights Agencies, or that there be relatively unified understandings and unified or integrated remedial mechanisms at the federal, provincial and territorial levels. This would ensure that human rights are being recognized and implemented consistently in different Indigenous communities across the country.

Conclusion

The Fast Talk on Indigenous Economic, Social and Culture Rights in Canada provided a depth of knowledge that will continue to support the work of the CHRC. The different reported ideas from the experts will inform the CHRC as it plans its short, medium and long-term goals for addressing the current state of economic, social and cultural rights for Indigenous peoples in Canada. The experts invited to the Fast Talk provided many valuable insights that the CHRC can use to strengthen its role in approaching this issue in the future.

Appendix

Biographies of Experts

Will David – Legal Advisor, Inuit Tapiriit Kanatami

William David (Mohawks of Akwesasne) is currently the Legal Advisor with Inuit Tapiriit Kanatami. Previously, he has held positions with the Assembly of First Nations, the Department of Justice, the Indian Law Resource Centre, and Mohawk Council of Akwesasne. Mr. David is currently a part-time Professor of Law at the University of Ottawa and founded the Indigenous Rights Centre, a not-for-profit advocacy organization to advance the rights of indigenous peoples. His areas of expertise include law reform, public policy and intersections between human rights and indigenous rights. He holds a SB in environmental engineering science from Massachusetts Institute of Technology, an LLB from the University of Ottawa and a graduate certificate in Mining Law from Osgoode. Mr. David is licensed to practice law in Ontario and New York.

Teresa Edwards – Executive Director and In-House Legal Counsel, Legacy of Hope Foundation

Teresa Edwards is Mi'gmaq First Nations and her ceremonial name is Young Fire Woman. Teresa has worked for 30 years to improve the socio-economic conditions for Indigenous Peoples in Canada, striving for equality, through research, and by working to change laws and policies, including trying to eliminate sexual exploitation and sex trafficking of Indigenous women and girls. She is an International Human Rights Lawyer, a writer, researcher and advocate who has worked within Government, National Indigenous Organizations and her own legal practice. Teresa is now the Executive Director and In-House Legal Counsel at the Legacy of Hope Foundation, a national Indigenous-led, charitable organization with the goal of educating and raising awareness about the history and many impacts of the Residential School System and with the mission to educate towards creating just and equal relationships of Reconciliation and healing for all Canadians. She also works for the Elizabeth Fry Society where she helps Indigenous women coming out of prison to add to their life skills, cultural connections and to promote their healing and well-being.

Niigaan Sinclair – Professor in Native Studies, University of Manitoba

Niigaanwewidam James Sinclair is Anishinaabe (St. Peter’s/Little Peguis) and an Associate Professor and Graduate Program Chair in the Department of Native Studies at the University of Manitoba. He is an award-winning writer, editor and activist who was named one of Monocle Magazine‘s “Canada’s Top 20 Most Influential People” and is currently a columnist with The Winnipeg Free Press. He has written national curriculums for Indspire and the Assembly of First Nations and is a former secondary school teacher who has trained educators and students across Canada. He is also the co-editor of the award-winning Manitowapow: Aboriginal Writings from the Land of Water (Highwater Press, 2011) and Centering Anishinaabeg Studies: Understanding the World Through Stories (Michigan State University Press, 2013). His first book on Anishinaabeg literary traditions will be coming out with the University of Minnesota Press in 2019.

Maggie Wente – Partner, Olthuis, Kleer, Townshend LLP

Maggie Wente, a member of Serpent River First Nation, of Anishinaabe and settler descent, works exclusively with First Nations and their related entitles advising on treaty and aboriginal rights in litigation and negotiation, Indian Act matters, reserve land management, First Nations peoples’ equality rights, and First Nations governance. Maggie also provides employment, labour, and human rights advice to the firm’s clients. Maggie is particularly interested in assisting First Nations with developing and maintaining strong governments which reflect their legal traditions and structures and in advancing First Nations’ peoples’ equality rights. Maggie has appeared in trial and appeal courts in Ontario, Newfoundland and Labrador, and the Federal Court, in commercial and employment arbitrations and adjudications, and in Coroner’s court. Maggie is the past president of the Board of Directors at Aboriginal Legal Services and was a Commissioner at the Ontario Human Rights Commission from 2006 to 2015. She is called to the Ontario Bar in 2003 and the Newfoundland and Labrador Bar in 2015. Twitter: @maggie_wente

Margot Young – Professor, Allard School of Law – University of British Columbia

Margot Young is a Professor in the Allard School of Law, University of British Columbia. She teaches and researches in the areas of constitutional law, equality law and theory, and social justice. She is active with a number of community groups, currently sitting on the boards of the David Suzuki Foundation and Justice for Girls. She is co-editor of the Law and Society Review and active in a number of equity policy issues at the university level.