Brenda Gunn is an associate professor of law at the University of Manitoba.
After years of calls for an inquiry into missing and murdered indigenous women and girls, the federal government has released the terms of reference for the inquiry. It is a time of mixed emotion. Many people are hopeful that the inquiry will address the systemic racism, sexism and colonialism at the root of the violence, and hope that the government will implement recommendations to address the situation. But many others are frustrated and angry that the terms of reference do not refer to key issues raised during the pre-inquiry consultations.
I am trying to be optimistic, to trust the commissioners to do their best in the difficult work ahead. The terms of reference are broad and leave much discretion to the commissioners to identify and examine the systemic causes. The terms include to "inquire into and report on systemic causes of all forms of violence – including sexual violence – against indigenous women and girls in Canada, including underlying social, economic, cultural, institutional and historical causes contributing to the ongoing violence and particular vulnerabilities of indigenous women and girls in Canada." Given the flexibility, it will be critical that the commissioners are guided by the pre-inquiry consultations.
We may not know all the systemic causes of the violence, but the pre-inquiry process clearly identified policing as one root cause. Indigenous women are over-policed, criminalized and incarcerated which contributes to the violence and vulnerability they experience. But indigenous women are also under-policed in terms of protection. There are too many accounts of police not taking appropriate action when indigenous women disappear or are murdered.
Given the strong legal background of the commissioners, I expect the role of the legal system (from child welfare, to policing, to prisons) will be a key consideration in their analyses of systemic causes. The damage done by the Canadian legal system cannot be understated. The inquiry must engage indigenous law to address the violence of the Canadian legal system and be informed by international human rights standards. International human rights law sets out Canada's duty of due diligence to prevent, investigate, prosecute, punish and compensate for missing and murdered indigenous women and girls.
At some point, for the inquiry to do justice, closed or "cold" cases must be reopened. When evidence arises of failure to follow proper protocols in investigating cases, effective action must be taken to rectify these wrongs. It is hoped that these reviews would happen sooner than later because the families have already waited too long.
The inquiry must build on the many studies and reports mentioned in the terms of reference. But much more research must be done, drawing on various expertise, including that within indigenous communities. The inquiry must also draw on the knowledge and experience of sex workers and their organizations, and academics from various disciplines to address underlying social and economic inequalities that contribute to violence.
And of course, families of missing and murdered indigenous women and girls must continue to inform and be involved throughout the process. And support must be in place before, during, and after the inquiry to help them with any trauma they experience.
There are high expectations that this inquiry will lead to change. But for effective action to result, there must be political will. To ensure the national impact of the results of the inquiry, there must continue to be co-operation between the federal and provincial governments and institutions. Given the amount of information and recommendations that already exist in reports already undertaken, Ottawa could demonstrate the will by beginning to implement existing recommendations. There is no need to wait until the end of this inquiry to begin taking steps to address the number of missing and murdered indigenous women and girls.
To the commissioners, I wish you all the best in fulfilling the responsibilities you've undertaken with honour and integrity. I trust you will use your discretion to conduct an inquiry that leads to effective change, provide the families with justice, and promote reconciliation in Canada.