Expanding Our Vision: Cultural Equality and Indigenous Peoples’ Human Rights – Summary of Recommendations
- Guiding Recommendations
- Immediate Procedural Steps
- Incorporate Indigenous Laws
- Increase Indigenous Involvement within the BCHRT
- Public Outreach to Indigenous Communities
- Co-ordinating Human Rights Responses across Jurisdictions
- Addressing Systemic Racism
- Creating an Indigenous Stream within the BCHRT
- Trauma-Informed Approach
- Clarify Special Exemption
- Gate-Keeping Function
- Plain Language
- Time Limits
- Need for Legal Representation
1.1 Broaden the concept of human rights to incorporate international human rights principles as reflected in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and Indigenous legal traditions, in the Code and BCHRT operations and practice.
1.2 Advocate to add Indigenous identity as a protected ground to the Code. Current grounds of discrimination under the Code (including based on race, colour, ancestry or religion) do not adequately address the discrimination Indigenous Peoples report experiencing. This would send a message of inclusion and reflect the individual and collective nature of Indigenous human rights.
1.3 Increase the number of Indigenous Peoples at all levels of the BCHRT, including staff, tribunal members and contractors.
1.4 Create education materials and training: a. For Indigenous Peoples, about the Code and BCHRT processes; b. Within the BCHRT, to develop cultural competency and safety among BCHRT staff and tribunal members; c. For the general public, through a proactive campaign to highlight specific areas of discrimination faced by Indigenous Peoples.
1.5 Identify and remove procedural barriers within the BCHRT.
1.6 Increase the training for and number of lawyers available to support Indigenous Peoples in bringing human rights complaints, with an emphasis on Indigenous lawyers.
2.1 Consider these recommendations remedial measures, and implement active and concerted efforts to address the underrepresentation of Indigenous complainants accessing the BCHRT. Create an affirmative access program for Indigenous Peoples.
2.2 Create a staff/tribunal committee tasked with developing the Expanding Our Vision Implementation Plan. Indigenous lawyers and cultural leaders or academics with knowledge of human rights should be recruited to join these efforts. The Expanding Our Vision Implementation Plan should include immediate steps to be taken in the first 6 months, and then be renewed on a yearly basis.
2.4 The BCHRT should report on the Expanding Our Vision Implementation Plan in their annual report.
3.1 The BCHRT should actively engage with Indigenous Peoples, working with the Office of the Human Rights Commissioner, Indigenous lawyers, and law schools, to incorporate Indigenous laws into a renewed human rights process which reflects Indigenous approaches for protecting human rights.
3.2 The BCHRT, working in concert with the Canadian Human Rights Tribunal, could approach other human rights agencies to institute an Indigenous ombuds office across jurisdictions, per the recommendation of the MMIWG2S Inquiry.
4.1 Priority should be given to hiring or appointing Indigenous staff and tribunal members.
4.2 Audit the current HR process to identify why Indigenous Peoples are not being recruited or hired. Provide specific training to HR staff on how to actively recruit and fairly assess Indigenous applicants. Seek specific mentoring advice from other organizations with higher Indigenous staff ratios about how to address this underrepresentation. The BCHRT should set yearly hiring targets for the first five years, and report on success in meeting those targets in annual reports.
4.3 Audit the tribunal appointment process to identify why Indigenous Peoples are not applying or being appointed as tribunal members. Set specific recruitment and appointment goals for BCHRT Indigenous tribunal members.
4.4 Implement options for part-time appointments to qualified Indigenous tribunal members, who may not be available full-time. This could provide a way to reflect Indigenous adjudicative and dispute resolution traditions within the tribunal’s expertise.
4.5 Offer human rights clinics in remote regions (going back regularly) to both teach about human rights and to assist with filing claims. Approach law schools for options to work jointly in providing these clinics regionally and to create regional expertise.
5.1 Create a public education campaign for Indigenous Peoples which addresses human rights from an Indigenous perspective: a) Make materials easily accessible at Band offices, Métis organizations, Friendship Centres, Indigenous political organizations, and universities. b) Emphasize cases where Indigenous individuals have successfully brought human rights claims.
5.2 Create a step-by-step process for Indigenous applicants, which includes: what you can ask for; outline what help or resources are available; and what adverse impacts may look like for Indigenous Peoples. 5.3 Create videos or fact sheets to talk about cases that have been successful to assist Indigenous Peoples in situating their experiences as discrimination within the BCHRT framework.
6.1 The BCHRT, partnering with the Office of the Human Rights Commissioner, should create public education and awareness about micro-discriminations against Indigenous Peoples. The focus of the education would be to bring unconscious and pervasive bias to light so that it can be addressed.
7.0 Coordinating Human Rights Responses Across Jurisdictions
7.1 The BCHRT should discuss with the Canadian Human Rights Commission (CHRC) a coordinated process for sorting jurisdictions between the federal and provincial bodies when Indigenous Peoples bring a human rights complaint. An agreement to triage claims between the CHRC and BCHRT would assist Indigenous complainants.
8.1 Develop a baseline of information and understanding of the racism that Indigenous Peoples experience so that individual complainants are not put to a process of proof again and again. Advance research or statements about common areas of discrimination experienced by Indigenous Peoples. This would operate similar to judicial notice of facts that are beyond dispute, as encouraged by the Supreme Court of Canada in cases such as Williams, 18 Gladue,19 and Ipeelee. 20
8.2 Develop guidelines and education about the intersectional discrimination Indigenous Peoples may face. Intersectional discrimination may be even more difficult to make out, and guidelines and education for how to do this should be provided.
8.3 Empower the ability for Indigenous organizations to file collectively, to advance claims on behalf of individuals, similar in context to a “human rights class action.”
9.1 Offer specialized training to BCHRT staff and tribunal members, starting with recommendations of the TRC, to reduce and eliminate procedural barriers that Indigenous Peoples face in accessing BCHRT services. The goal should be to develop cultural competency and safety.
9.2 Create the position of Indigenous Advocates or Navigators to help guide, support and coach Indigenous Peoples through the BCHRT process, and to help them address administrative barriers.
9.3 Create an Indigenous stream for following through with Indigenous Peoples’ complaints, from intake through to hearing.
9.4 Amend BCHRT forms to contemplate Indigenous Peoples, including Indigenous names, where a delay may be reflective of historic trauma, or to allow for exploration of options to resolve an issue, as required by Indigenous protocols.
10.1 Adopt a trauma-informed practice overall, including for assessing and accommodating delays or requests for extensions. The BCHRT staff and tribunal members should be provided with training on how trauma may impact Indigenous Peoples’ actions or interactions within the BCHRT system.
11.1 Educate employers about s. 42. Education should highlight where a fair consideration of Indigenous applicants (for example, strongly weighing Indigenous knowledge and experience) does not require an exemption.
12.1 Include Indigenous dispute resolution models, mediators and peacemakers in BCHRT mediation or settlement discussions. Consider use of co-mediation or joint processes involving Indigenous Peoples.
12.2 Track and report upon instances where Indigenous Peoples settle complaints, and interview them after several months about their reasons for settling and their satisfaction with the resolution.
13.1 Track and report on claims made by Indigenous Peoples that are rejected at the application stage or under s. 27, or sent back for further detail and not pursued. An analysis of the claims that are procedurally weeded out may reveal where further action or training is necessary.
13.1 Institute an internal process for screening at first filing, and in s. 27 applications, by staff specifically trained in the issues Indigenous Peoples face as an immediate remedial measure, as so few Indigenous complaints are filed or advance.
14.1 Use plain language, easily understood by the average person with a grade five education, when communicating with complainants. Review communications, including forms and template letters, to ensure that they use plain language.
15.1 Provide public education for Indigenous Peoples that complaints should be filed at the same time that a complainant is pursuing internal or informal processes because the BCHRT time limits are strict.
15.2 Assess time extension requests with a trauma-informed lens and consider any circumstances Indigenous applicants raise tied to Indigenous traditions or ways of approaching conflict (such as attempts at relationship repair or restoration).
16.1 Hold hearings in spaces that are culturally safe for Indigenous complainants. Though appropriate spaces will vary by Indigenous cultures, examples could include Band offices, friendship centres, cultural spaces at universities, or land-based venues.
16.2 Ask participants what culturally appropriate practices they would like to include in hearings, such as smudging the room, swearing on an eagle feather, or sitting in a circle.
16.3 Ask if there are cultural supports that are needed during the hearing process. This could include elders, witnesses, or other culturally relevant people which may vary according to the culture of the applicant.
16.4 Incorporate Indigenous Peoples (as tribunal members or as coappointed decision-makers).
16.5 Ask participants if there are any Indigenous protocols for how information or evidence may be offered or shared that they would like to incorporate.
17.1 Develop a website using plain and easily accessible language to provide Indigenous Peoples with information and to guide them through stages of the application process. The website should feature case-based examples, specific to Indigenous Peoples; short videos to illustrate the BCHRT process; and a guide to help people through the BCHRT process.
18.1 Advocate, perhaps with the Office of the Human Rights Commissioner, Indigenous political organizations and legal advocacy organizations, for legal representation at the filing stage through to resolution, for Indigenous claimants.
18.2 Explore options to support greater access to justice for Indigenous Peoples in this area, including Indigenous human rights legal aid funding, administered by the Legal Services Society or a similar organization, to support Indigenous Peoples in making and advancing claims.
18.3 Partner with other organizations (such as the Office of the Human Rights Commissioner, CLEBC, law schools, Indigenous and legal organizations) to provide bootcamps and other training opportunities for lawyers or law students about Indigenous Peoples’ human rights. This case-based education should address the different elements in bringing a case: What is discrimination on prohibited grounds? Where are examples of evidence? Does the fact that no one witnessed an event mean that no case for discrimination can be brought? Training should include systemic features and intersectionality of the discrimination that Indigenous Peoples experience based on race and gender, geographic and socio-economic status, etc.
18.4 Provide student opportunities, such as articling or summer jobs for Indigenous law students to increase practitioners in this area.
18.5 Encourage the creation of regional, or circuit, human rights clinics to both educate and assist Indigenous Peoples in filing and carrying through human rights claims. Explore options for clinics or workshops that operate regionally over time so lawyers can stick with a case, including potentially working with the three BC law schools. Clinics should be led by leading Indigenous counsel and provide representation to Indigenous Peoples, individually and collectively.