Indigenous Peoples and human rights dialogue: Chief Commissioner's remarks

The Ontario Human Rights Commission (OHRC), in collaboration with Indigenous knowledge keepers, Elders, academics and organizations, the Canadian Race Relations Foundation, Osgoode Hall Law School of York University, and the University of Toronto Faculty of Law, hosted “Indigenous Peoples and human rights: A dialogue” at the Native Canadian Centre of Toronto from February 21-23, 2018.

OHRC Chief Commissioner Renu Mandhane’s remarks (check against delivery) were delivered at the opening of the three-day dialogue on Wednesday, February 21st:

Thank you for joining us today, and sharing three days of your valuable time with us.

I want to start by thanking the Elders for their opening – for your guidance, your willingness to share your teachings with us, and for helping us start this conversation in a good way.

Thank you also to Nancy Rowe for welcoming us to your territory, and for all the wisdom that you have shared with the Commission over the past year.

Looking around the room, I see many people who have taught me so much, and many from whom I still have a lot to learn. I am personally grateful to each of you.

I also extend welcome to the Honourable Justice Mandamin, and to Leonard Gorman, the Executive Director for the Navajo Nation Human Rights Commission in Arizona.

Over the next few days, we hope to move forward together towards greater understanding and respect for First Nations, Métis and Inuit peoples’ world views around justice and equality, and towards reconciling these with Western understanding of human rights.

Why are we here?

At the Ontario Human Rights Commission, we envision an inclusive society where everyone takes responsibility for promoting and protecting human rights, everyone is valued and treated with equal dignity and respect, and human rights are a lived reality. We know that we have much work ahead to achieve this vision, especially as it relates to Indigenous peoples.

Discrimination based on Indigenous ancestry is persistent and systemic. For generations, Canada’s official policy towards Indigenous peoples was one of cultural genocide. The forcible destruction of Indigenous culture and society has led to intergenerational trauma with lasting negative impacts.

Through visiting, listening and hearing from Indigenous peoples in communities across Ontario, we have slowly begun to understand the disconnect between Indigenous world views and constitutional orders, and the rights protected in human rights legislation.

There is also a disconnect between the human rights system, the Canadian Constitution, and the rights protected in the UN Declaration on the Rights of Indigenous Persons.

That’s why we are encouraged that a private member’s bill that would incorporate the UN Declaration into Canadian law passed second reading in Parliament. And we are pleased to welcome the Honourable Romeo Saganash, the force behind this bill, at tomorrow’s session.

The rights protected in the UN Declaration are fundamental, expansive, and go far beyond the right to live free from discrimination.

The UN Declaration includes the rights to:

• The right to self-determination
• The right to free, prior, informed consent about legislative or administrative measures affect Indigenous peoples
• Freedom from forced assimilation
• The right to establish and control their own education systems
• And the right to traditional land, territories, waters and resources.

Tonight we will hear from James Anaya, the Dean of Colorado Law School and the former UN Special Rapporteur on the Rights of Indigenous Peoples, who will reflect on the promise of the Declaration and the work that lies ahead.

Some of this urgent work has come into clearer focus for many Canadians over the past few weeks.

Mainstream institutions in the business of delivering “justice” need to make sure that their idea of justice reflects the needs and realities of diverse Indigenous peoples.

We are conscious of the fact that human rights institutions, including the Ontario Human Rights Commission, are part of the system that administers justice in this country, and that is why this dialogue is so important.

We are committed to working with Indigenous peoples to advance their unique perspectives and realities in ongoing reforms to the criminal justice system – whether in law enforcement, the administration of justice, corrections or community release.

And the events of the past two weeks have made us even more determined to contribute to – and where we can, compel – meaningful change.

We acknowledge the pain felt by Colten Boushie’s family and community.

We know that it takes incredible strength for the community to keep engaging with the government in the aftermath of tragedy, and in fact, to engage even more decidedly.

I know how important it is to understand how these tragic events, including the investigation of Mr. Boushie’s death and the trial of Gerald Stanley, reflect systemic discrimination.

Mobilization around this case must propel us forward to finally deal with ongoing systemic discrimination in the criminal justice system, including the lack of First Nations representation on juries. Failure to do so will further undermine trust in public institutions and ultimately their very legitimacy.

This is why we are looking forward to Ontario’s release of the Final Report of the Deb-we-win Jury Review Implementation Committee, and, most importantly, action to end the use of pre-emptory challenges during the jury selection process.

Beyond juries, we must support broader transformative change, both at the national and provincial level.

In this regard, the work of the Indigenous Justice Division of the Ministry of the Attorney General is promising, as is the Feathers of Hope initiative out of the Office of the Provincial Advocate for Children and Youth.

Last week, Prime Minister Trudeau made some big promises.

And there is understandable skepticism based on years of “recommendations” and “promises” without effective implementation or follow through.

That said, the Prime Minister’s commitment to developing an Indigenous Rights framework, including legislation, is the furthest we have come to dismantling the Indian Act – a law that promotes segregation and was the model for apartheid in South Africa.

The Prime Minister said that a new approach, to be developed in partnership with First Nations, Métis and Inuit peoples, is needed to tackle the many challenges facing their communities, including:

• Overcrowded housing
• Unsafe drinking water
• And high rates of suicide among Indigenous youth.

The government committed to reforming the criminal justice system, including changing the rules around jury selection to make sure that First Nations, Inuit and Métis people are better represented.

Some of this work will involve us, and you – and some of it will not. Some of it will be transformational, and some of it will not. But as a government institution, the Commission needs to seize a new moment for action and resist the temptation to retreat into cynicism.

So, that brings us to our time together over the next three days.

For our part, we want to start by acknowledging that the Human Rights Code is also a product of the colonial approach that has shaped most laws and government institutions.

This approach is based on the belief that an “all-powerful” government must decree what is a “right” and what is a “remedy” for all the people who live on this territory we call Ontario.

I know that there is a deep disconnect between this idea of individual rights and many Indigenous belief systems.

That is not to say that the human rights system must be abandoned in its entirely.

It can be a useful tool for Indigenous peoples. 

Cindy Blackstock’s tireless advocacy on behalf of Indigenous children before the Canadian Human Rights Tribunal is a contemporary example of the power of human rights laws.

And the work of our sister-agency, the Human Rights Legal Support Centre, to offer culturally-responsive legal services to help Indigenous people fight discrimination is inspirational in terms of what is possible when we work in partnership with community.

But we know that the low rates of applications made to the Human Rights Tribunal do not match the lived reality of discrimination against Indigenous peoples across Ontario. And we know that our individual-rights based system is not set up to deal with some of the biggest issues facing Indigenous communities, including clean water or child welfare.

That’s where the Commission’s mandate to focus on systemic discrimination comes into play.

Inspired by the Truth and Reconciliation Commission’s Calls to Action, we have committed to making Reconciliation a focus of our work going forward.

We used our statutory mandate to launch a public inquiry into the over-representation of Indigenous and racialized children in Ontario’s child welfare system, and will make our report public in April.

And we have made a concerted effort to understand the impact of cultural appropriation, especially on Indigenous youth who are struggling to cultivate a strong identity in the aftermath of cultural genocide.

We intervened in a Human Rights Tribunal case involving the use of Indigenous-themed mascots in minor league hockey, with the goal of creating space for Indigenous youths’ perspectives.

And finally, we have spent time building relationships based on trust with many Indigenous people and communities.

We have travelled far and wide – from Windsor to Sioux Lookout – to hear directly from Indigenous people about their daily challenges.

This culminated in the signing of a cooperation agreement with the Ontario Federation of Indigenous Friendship Centres, which commits us to work together to address systemic discrimination.

By hosting and engaging in this dialogue, we want to get at the heart of the disconnect between the government’s human rights system and that of Indigenous peoples, and to expand our concept of human rights to more closely match Indigenous world views.

Part of reconciliation must be disrupting the power dynamic and the colonial systems that relegate Indigenous peoples to the sidelines.

We’re hoping to hear your thoughts on how we can…

• Change our human rights system to better reflect your current reality and understanding of rights
• Alter the way we work to tackle some of the bigger systemic issues and maximize our effectiveness
• And build our collective capacity to develop Indigenous human rights frameworks, consistent with the right to self-determination.

At the Commission, we know that Indigenous peoples are not just another equity-seeking group.

We know that you are the original inhabitants of this land and that our relationship must be rooted in a nation-to-nation approach.

We will need to strike the right balance between taking up our responsibilities for reconciliation through concrete action, and amplifying and making space for Indigenous voices.

As we pursue these parallel goals, we know that we will make mistakes, but we want to be instructed about and learn from them.

Putting events like this together is always a challenge, and I would like to thank the many partners who worked with us.

Thanks go to:

• Osgoode Hall Law School
• the President’s Office at York University
• the Canadian Race Relations Foundation
• the University of Toronto Faculty of Law
• the Ontario Federation of Indigenous Friendship Centres
• Chiefs of Ontario
• the Métis Nation of Ontario
• And the Indigenous Justice Division of the Ministry of the
• Attorney General.

I also thank the members of our organizing committee who contributed their wisdom every step of the way.

Thanks to:

• Karen Drake
• Jeffery Hewitt
• Juliette Nicolet
• Nicole Richmond
• And the OHRC team.

And most of all, thanks to all of you for trusting us to facilitate these conversations over the next three days.                                       

I am sure many of you are wondering how your knowledge and wisdom will inform our work, and how it will be used to benefit diverse Indigenous communities.

We don’t have firm idea of what will come next, and I don’t want to make a promise that I cannot keep.

The steps we collectively take will depend on what you have to say and will be guided by our Commissioners, including Karen Drake and Maurice Switzer, by the organizing panel for this event, and by our partners at the OFIFC.

And we will make sure to be transparent in whatever we decide to do.

For now, I encourage you to make the most of our three days together.

Thank you and Megwetch.