A Human Rights Violation Requires A Human Rights-Based Inquiry
The Canadian Human Rights Commission (CHRC) applauds the Government of Canada’s decision to hold a national Inquiry into missing and murdered Indigenous women and girls. It also welcomes the Government’s pre-Inquiry activities to consult survivors, family members and loved ones, National Aboriginal Organizations, non-governmental organizations and provinces/territories regarding the design of the Inquiry itself.
It is in the spirit of constructive engagement that the CHRC wishes to bring to the attention of the Government of Canada the following recommendations with regard to the approach, scope, leadership and format of the Inquiry.
Violence against Indigenous women and girls is a human rights violation and the Government of Canada needs to treat it as such in order to find lasting solutions. Therefore, the position of the CHRC is that the Inquiry must use a human rights-based approach.
A fundamental premise of this approach is that Indigenous women and girls should not be treated solely as victims but as independent human rights holders. As a result, the participation of Indigenous women and girls who are survivors of violence is integral to both the goals of the Inquiry and the credibility of its process.
A human rights-based approach would be a critical element in efforts to bring about a paradigm shift in Canada’s relationship with Indigenous peoples, particularly Indigenous women and girls. This is because such an approach would reframe issues of importance related to Indigenous women and girls as a “denial of rights” instead of “unfulfilled needs”. Exposure to violence would then be seen as a systemic violation of the rights to gender equality and non-discrimination requiring broad structural changes (i.e. policing practices, judicial), instead of a symptom of service gaps requiring temporary solutions.
This approach would reaffirm Canada’s commitment to uphold and to promote the human rights of people in vulnerable circumstances. It would also constitute a significant step towards the implementation of Canada’s obligations enshrined in international human rights conventions and declarations (e.g. the Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Elimination of all Forms of Racial Discrimination, and the United Nations Declaration on the Rights of Indigenous Peoples). These obligations were further outlined in the recommendations made by various international bodies, such as the Committee on the Elimination of All Forms of Discrimination Against Women and the Inter-American Commission on Human Rights.
A human rights-based approach requires that the Inquiry consider human rights in both how it assesses issues and how it is conducted. The following two sections address these separately but should be read together.
A. How A Human Rights-Based Inquiry Assesses Issues
i. It examines the situation comprehensively and holistically
Assessing the situation in light of applicable domestic and international human rights law would allow the Inquiry to examine the issue of violence against Indigenous women and girls in an holistic and remedial manner. Such a comprehensive assessment would explore all political, economic, cultural and social dimensions of violence in an equal and non-hierarchical manner; extending beyond common frameworks, such as criminal law. It also identifies and includes those who are in particularly vulnerable circumstances or are most marginalized in society.
In applying a human rights lens, the Inquiry would take into account the following principles:
- human rights rely upon each other; the fulfilment of one particular right may be critical to the realization of another right (e.g. the fulfilment of an Indigenous youth’s right to adequate food is critical to the realization of her right to life);
- the fulfilment of an individual’s rights is not achieved in isolation, but rather might influence and, in turn, be influenced by the fulfillment of the rights of other family and community members (e.g. the realization of the rights of a mother will bolster the rights of her children); and,
- each individual is complex and multi-faceted. An individual’s distinct combination of identities, intersecting characteristics and unique personal history may result in additional challenges in accessing his/her human rights (e.g. a single Indigenous mother who has a visual disability may face greater challenges when appearing in court).
ii. It reveals barriers to equality and identifies their root causes
Using this assessment, the Inquiry would identify which domestic and/or international human rights are at play and the governments’ relevant obligations to Indigenous women and girls. It would discover gaps where Indigenous women and girls are limited in realizing these human rights.
It would then go further and identify the root causes of these gaps, along with their breadth and depth, using agreed upon qualitative and quantitative indicators1. This analysis of barriers would reveal and map out systemic patterns of discrimination that prevent Indigenous women and girls from fully enjoying the human rights to which they are entitled.
1For example, see Office of the United Nations High Commissioner for Human Rights, Human Rights Indicators - A Guide to Measurement and Implementation (New York and Geneva: 2012), available from www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf
iii. It recommends lasting solutions and establishes a way to monitor these
A human rights-based approach entails the creation of mechanisms of accountability for the monitoring and enforcement of recommendations emerging from the Inquiry’s assessment.
This mechanism provides a way to ensure lasting solutions. Therefore, once the root causes are identified through the Inquiry, it would clarify which specific governmental or public institution must take action to eliminate these gaps and what actions must be taken and in what timeframe. In this way, a human rights-based approach could identify and track the federal, provincial and local interventions needed to build the knowledge and capacity of both those who are claiming their rights and those who are obligated to protect them.
To implement this approach, the CHRC recommends the following:
Recommendation 1: that the Inquiry be given a broad mandate to:
- determine the circumstances of and the context surrounding the violence that Indigenous women and girls experience, including its political, economic, cultural and social dimensions;
- examine and consider recommendations previously made to government from various international and domestic human rights organizations;
- identify the relevant domestic and international civil, political, economic, social, cultural, and collective human rights as well as taking into account their interdependency, and Canada’s related legal obligations;
- assess the human rights violations and analyse systemic barriers and their impacts, including intersectional discrimination, and implementation gaps that prevent the fulfillment of those rights; and,
- based on this assessment, recommend concrete and preventive steps for governments and other public and private institutions to take in order to remove barriers, meet their human rights obligations, and ensure Indigenous women and girls can assert their human rights.
The CHRC would be ready to lend its expertise to all parties to help strengthen and maintain a focus on human rights.
Recommendation 2: that, in order to ensure accountability for the recommendations of the Inquiry, a national body be appointed to monitor implementation, issue regular reports on progress to Parliament, and identify issues or concerns. The CHRC could play this role given its human rights mandate, its independence from government, and its membership in a federal, provincial and territorial association of human rights commissions.
B. How A Human Rights-Based Inquiry Is Conducted
i. Scope of the Inquiry
In Canada, protecting human rights is a shared responsibility among federal and provincial jurisdictions. In order to address the issue of violence against Indigenous women and girls, the Inquiry should cover federal, provincial, and territorial matters.
The cooperation or coordination of all jurisdictions is critical to an holistic human rights-based approach.
Recommendation 3: that the Inquiry be national in scope, and be given the authority to consider and make recommendations pertaining to any jurisdiction.
Recommendation 4: that governments assign and support a specific body to ensure cross-jurisdictional coordination and ministerial leadership during the work of the Inquiry.
ii. Leadership of the Inquiry
In a human rights-based approach, an appointment process for Inquiry members should be clear and transparent. It should also ensure that the Inquiry is led by diverse and impartial experts. Because of the nature of this Inquiry, selection of members must seek to ensure equitable representation of women.
Recommendation 5: that a panel be appointed rather than a single Inquiry head, to ensure a diversity of views and interdisciplinary perspectives.
Recommendation 6: that the panel consist of a majority of Indigenous women.
Recommendation 7: that the appointment process be guided by the following criteria and principles:
Panel members should have:
- a proven record of impartiality;
- recognized competence and experience in international and/or domestic human rights law, including women’s rights and Indigenous rights; and,
- substantial knowledge of human rights fact-finding and investigation principles and methods, including complex systemic cases.
iii. Practices of the Inquiry
Equality and Non-Discrimination
Principles of equality and non-discrimination mean that everyone has the right to be treated with dignity and respect and to have their needs accommodated.
Thus, a human rights-based Inquiry should be conducted without any bias or prejudice.
Recommendation 8: that the Inquiry ensures accessibility at every stage of its process. This means planning for inclusivity by, for example, ensuring that buildings where hearings are held are fully accessible. This also means accommodating individual needs upon request by, for example, providing interpretation services or tools and technology to accommodate people with disabilities.
Recommendation 9: that the Inquiry reduce potential bias or prejudice by educating Inquiry members and support staff about human rights, especially on the principles of equality and non-discrimination applying to Indigenous women and girls. The CHRC could participate in identifying sources for such expertise.
Participation and Empowerment
The Inquiry should do no harm. It should embrace methods that empower Indigenous women and girls, especially those who are in particularly vulnerable circumstances or who are most marginalized. The Inquiry should create a safe space for victims and families to share their stories without fear or shame by taking steps to avoid re-victimization and retaliation.
To ensure a comprehensive assessment of the situation, the Inquiry should ensure the participation of other groups who may be affected. However, it must maintain a clear focus on Indigenous women and girls, who are at the centre of this issue to ensure that existing power imbalances are not exacerbated.
Recommendation 10: that Inquiry establish procedural protections for witnesses which may include alternative methods to participate (e.g. providing written testimony, anonymity or a note-taker on-site).
Recommendation 11: that the Inquiry resource culturally and contextually appropriate supports, including mental health support workers, inmate advocates, and lawyers.
Recommendation 12: that the Inquiry establish methods to reach out to the poorest, the most marginalized groups and the hardest to reach. For example, engage with community organizations that support homeless Indigenous youth or Indigenous women fleeing domestic abuse.
Recommendation 13: that the Inquiry either travel to remote locations to hold hearings and/or provide funding to cover travel expenses for witnesses to ensure meaningful participation.
Recommendation 14: that the Inquiry encourage the participation of other groups, such as family members and other loved ones, children of missing and murdered Indigenous women, Elders and grandparents, and including men and boys. It may also include the voices of community groups, police agencies and government officials.
Transparency means that the Inquiry must be open about all information and decision-making processes. People must be able to know and understand how the Inquiry will run, and how it will make decisions or recommendations.
Transparency also means that the Government of Canada would have to ensure that the Inquiry has access to all information it needs to conduct its assessment of the situation.
Recommendation 15: that the Inquiry regularly provide information about its mandate, composition, activities, and recommendations to the public.
Recommendation 16: that the Government of Canada cooperate and provide all information required by the Inquiry in order for it to fulfill its mandate.