Consultation and Process as Elements of Effective Systemic Remedies

a collective one and should include federal government representatives, the provinces and a wide-ranging representation of Indigenous Peoples. Here, in some ways, the Kelowna Accord is instructive though not new in its call for the inclusion of Indigenous Peoples in

429 _{Hughes v. Elections Canada, 2010 CHRT 4.} 430 _{Ibid, at paras. 79-80.}

the resolution of complicated problems. With respect to socio-economic issues, such as First Nation child welfare, Indigenous Peoples are part of the solution, not the problem. Indeed, in her 1984 Royal Commission Report, Report of the Commission on Equality

and Employment, Justice Abella stated:

The central issues for native people are their exclusion from relevant decision- making, the fragmented and uncoordinated programming, the problem of uncoordinated policy approaches, the absence of federal/provincial/municipal coordination of service delivery systems, and the constant sense that they are forever subject to the discretion of people who do not understand their culture. .431 Justice Abella highlights the typical relationship between Canada and Indigenous peoples, one in which the federal government tells First Nation governments what to do. In contrast, the approach adopted in the Kelowna Accord was different. A round-table process was created to promote dialogue and allow direct Canada-Indigenous engagement.432 _{It involved 147 representatives at the round-tables, federal government,} ten representatives from the provinces and the remaining participants were Indigenous, representing twenty-seven different Indigenous organizations433 Overall, in the more global Roundtable-to-Kelowna process, there were over a thousand participants. The vast majority were Indigenous but the group also included provincial Premiers and the then Prime Minister Paul Martin.434

The Tribunal cannot compel the Prime Minister let alone the Premiers to a table to solve the First Nations child welfare crisis. But if the Tribunal is as courageous as it once was when it compelled CNR to hire more women to numbers established by the Tribunal,

431 _{Justice R. Abella, Report of the Commission on Equality and Employment (Ottawa: Minister of Supply and Services} Canada, 1984), at 38.

432_{C. Alcantara and J. Nelles, "Indigenous Peoples and the State in Settler Societies: Toward a More Robust Definition} of Multilevel Governance," Publius: The Journal of Federalism 44.1 (2014), 183-204.

433 _{L. Patterson, Aboriginal Roundtable to Kelowna Accord: Aboriginal Policy Negotiations, 2004-2005 (Ottawa:} Parliamentary Information and Research Service, 2006), at 2.

creating a process by which systemic discrimination against Indigenous Peoples and setting practical expectations is not outside the Tribunal’s purview. The elements of Kelowna are what matters here – such as direct engagement with Indigenous Peoples, and engagement of the political will of the Crown, full participation of all key stake-holders and senior decision-makers with authority to make commitments. These could be replicated by the Tribunal vis-à-vis a systemic order. This model of direct engagement is the most effective way by which the socio-economic gap might be closed because it draws upon First Nation solutions with Canada’s support – financial and political.

The Tribunal can start by ordering Canada to work with First Nations, including Indigenous child welfare agencies across the country, in open roundtable dialogues. To that end, like the Kelowna Accord, a roundtable allows for Indigenous representatives to “sit down on the same side of the table, as partners.”435 As partners, here is another place where room can be made for Indigenous legal orders relating to children and family. Not only does such a process hold potential for sustainable resolution to the First Nation child welfare crisis at the centre of the Complaint but also holds promise for systemic resolution by fundamentally altering the status quo and working toward reconciliation, founded on the principle of equality and mutual respect.436 Indeed, such an Order would be consistent with the Crown’s constitutional duty to meaningfully consult and accommodate Indigenous Peoples,437 which is also included in all stages of high-level decision-making438 – such as at a round-table series with the appropriate representatives of Canada with the power to enter into agreements on First Nation child welfare and

435 _{Government of Canada, Roundtable Report, 19 April 2004, 28-34; Canada-Aboriginal Peoples Roundtable and} Sectoral Tables, 2004-2005, http://www.aborigianlroundtable.ca/index_e.html.

436 _{R. Van der Peet, [1996] 2 SCR 507, para. 50; see also remarks of the Right Honourable Beverley McLachlin, P.C.} Chief Justice of Canada, Ottawa February 5, 2013 and Toronto, May 28, 2015.

437 _{Beckman v. Little Salmon Carmacks First Nation, [2010], SCR 103.} 438 _{Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010], SCR 650.}

make change. Consultation has constitutional value for both Canada and Indigenous parties as already set out by the Court. These precedents should offer the Tribunal some comfort with respect to the inclusion of consultation as part of a systemic remedial order. Right now, it seems like in the story of Coyote and the Old Woman of the Sea, Indigenous families are standing in a long meandering line and one by one they are being strapped onto a board and thrown away. A well-structured systemic remedy meant to address the gap is a strong step toward destroying the colonialist pattern of Canada knowing what is best for First Nation children. Now is the time for the Tribunal to be brave.