By Alexandra Flynn, Estair van Wagner, Heidi Kiiwetinepinesiik Stark

Encampments are a vivid illustration of the failure of governments in Canada to meet their human rights obligations to ensure everyone has access to adequate housing. The 2020-2022 point-in-time count showed a 20% increase in homelessness overall and an 88% increase in unsheltered homelessness from 2018. The right to housing is inherently linked with the fulfillment of other human rights and with basic human dignity. Thus, where the right to housing is violated, other human rights are often violated. Advocacy for the human rights of encampment residents then necessarily implicates a wider set of human rights. Legal advocacy is therefore a necessary part of a broader movement to realize human rights for all people. Canadian jurisprudence has centered on the right to life, liberty and security of the person protected by section 7 of the Charter of Rights and Freedoms, interpreted as freedom from government actions such as encampment removals. However, the rights involved draw from other sources of laws, including Indigenous and international legal frameworks. In this report we focus on the existing case law and legal strategies. Our objective is to identify arguments used to date, as well as opportunities for future legal advocacy on the issue of encampments.

Given the context of colonial dispossession and the vast overrepresentation of Indigenous Peoples in the unhoused population we highlight the relationship between the right to housing and Indigenous rights, both from a colonial Canadian legal perspective and from an Indigenous legal perspective. While we point to opportunities to engage with legal tools within the Canadian colonial legal system where they may be strategic and useful, we acknowledge the limitations of these tools. Therefore, we also highlight opportunities to connect advocacy about encampments with Indigenous legal orders and jurisdiction, including work being done by groups engaged in or considering litigation or advocacy on encampments. While there is limited research on the role of Indigenous law in encampments at present, in our view, this is an urgent area of advocacy to find long-term, sustainable, and human rights-compliant solutions to homelessness.

This report starts from the recognition that encampment residents are rights-bearers and must be centered in discussions on how to move forward. While it does not include testimony from those with lived experience it is informed by the long history of advocacy inside and outside of courtrooms by people unhoused people themselves and in partnership. This is critical in the context of encampments: when unhoused people claim public or private space to meet their basic needs it is essential that we acknowledge and respect their dignity and agency. Encampment residents are experts in their own lives. As we explain, meaningful engagement is the foundation of any human rights-based response. This includes respecting the structures of decision making that emerge in encampments, the trusted advocacy relationships developed with those around them, and principles of fairness that guarantee particular rights.

This report has been drafted to help inform legal practitioners and advocates about the state of jurisprudence in Canada relevant to homeless encampments. It highlights some of the limitations of jurisprudence to date and points to opportunities for future legal advocacy, highlighting the need to integrate Indigenous legal traditions.

Part One provides a background on the meaning of a human rights approach and the regulation of encampments in Canada.

First, we detail the connections between the right to housing and encampments in the Canadian context. We define what we mean by adequate housing, where the progressive realization of the right to housing comes from under Canadian and Indigenous legal frameworks, and provide a three-part framework for considering the right to adequate housing.

Second, we outline the current system of regulation of encampments in Canada. We explore the regulation of encampments based on international and domestic laws, highlighting that jurisdictionally fractured set of rules each seek to govern encampment residents, exacerbating their vulnerability. In this section, we distinguish between constitutional protections, legislation and bylaws that protect encampment residents, and those that seek to displace them.

Part Two sets out advocacy and litigation strategies in relation to encampments.

Third, we outline advocacy efforts in relation to encampments. In this section we explain the many ways in which advocates are seeking change in local policy-making, law reform, and enforcement. These efforts may - but do not always - rely on court decisions, and legal challenges are but one tactic used to advance the interests of encampment residents.

Next, we set out the case law concerning encampments, explaining the different approaches that have been taken since the seminal case, Adams v Victoria, was decided in 2009 setting out the current framework used by the courts. We explain court decisions in relation to injunction applications mainly brought by municipalities, Charter arguments, judicial review applications, shelter standards, public private property distinctions, and challenging enforcement. These cases were all decided between Adams and 2022.

We conclude by summarizing the legal framework related to encampments, with the gaps and opportunities for realizing a right to housing for those experiencing the most profound violation of that right, homelessness.

Ottawa: Office of the Federal Housing Advocate, Canadian Human Rights Commission, 2024. 56p.

By Nicole MartinRogers

The Missing and Murdered Indigenous Women Task Force was created to examine the root causes, systemic problems, and potential solutions to violence against indigenous women and girls in Minnesota, including members of the two spirit community. Established by the Minnesota Legislature and signed into law by Governor Tim Walz in 2019, the task force includes representatives from 11 tribal nations, community and advocacy organizations, legislators, law enforcement, and the legal field. Wilder Research assisted the task force, conducting extensive research and facilitating public hearings and comment sessions across Minnesota.

The report includes 20 mandates in five key areas from the task force for the Minnesota Legislature, state agencies, tribes, and other stakeholders to address the MMIW injustice:

• Address systemic causes

• Collect and report data on violence against Indigenous women and girls

• Address policies and practices in institutions that impact violence against Indigenous women and girls

• Reduce and eliminate violence against Indigenous women and girls

• Help Indigenous women and girls who are victims/survivors, their families, and their communities

St. Paul, MN: Amherst H. Wilder Foundation, 2020. 163p

Canada Privy Council Office

The National Inquiry’s Final Report reveals that persistent and deliberate human and Indigenous rights violations and abuses are the root cause behind Canada’s staggering rates of violence against Indigenous women, girls and 2SLGBTQQIA people. The two volume report calls for transformative legal and social changes to resolve the crisis that has devastated Indigenous communities across the country.

The Final Report is comprised of the truths of more than 2,380 family members, survivors of violence, experts and Knowledge Keepers shared over two years of cross-country public hearings and evidence gathering. It delivers 231 individual Calls for Justice directed at governments, institutions, social service providers, industries and all Canadians.

As documented in the Final Report, testimony from family members and survivors of violence spoke about a surrounding context marked by multigenerational and intergenerational trauma and marginalization in the form of poverty, insecure housing or homelessness and barriers to education, employment, health care and cultural support. Experts and Knowledge Keepers spoke to specific colonial and patriarchal policies that displaced women from their traditional roles in communities and governance and diminished their status in society, leaving them vulnerable to violence.

Ottawa, Canada Privy Council Office, 2019. Vol. 1a: 2019, 728p. Vol. 1b, 2019. 352p.

Canada Privy Council Office

The National Inquiry’s Final Report reveals that persistent and deliberate human and Indigenous rights violations and abuses are the root cause behind Canada’s staggering rates of violence against Indigenous women, girls and 2SLGBTQQIA people. The two volume report calls for transformative legal and social changes to resolve the crisis that has devastated Indigenous communities across the country.

The Final Report is comprised of the truths of more than 2,380 family members, survivors of violence, experts and Knowledge Keepers shared over two years of cross-country public hearings and evidence gathering. It delivers 231 individual Calls for Justice directed at governments, institutions, social service providers, industries and all Canadians.

As documented in the Final Report, testimony from family members and survivors of violence spoke about a surrounding context marked by multigenerational and intergenerational trauma and marginalization in the form of poverty, insecure housing or homelessness and barriers to education, employment, health care and cultural support. Experts and Knowledge Keepers spoke to specific colonial and patriarchal policies that displaced women from their traditional roles in communities and governance and diminished their status in society, leaving them vulnerable to violence.

Ottawa, Canada Privy Council Office, 2019. Vol. 1a: 2019, 728p. Vol. 1b, 2019. 352p.

By Emily J. Hanson

Across many countries and in the United States, Indigenous peoples—women and girls in particular—are disproportionately affected by violence. In the United States, for example, 84% of American Indian and Alaskan Native (AI/AN) women and 82% of AI/AN men reported experiencing violent victimizations in their lifetime. Studies have also shown that Native American children are more likely to experience abuse and trauma than their non-Native peers. Additionally, as of June 2023, 3.5% of the missing persons included in the National Missing and Unidentified Persons System (NamUs) were identified as AI/AN, which was more than three times their percentage in the U.S. population (1.1%). Advocacy by Native American and other Indigenous communities has brought increased attention to experiences of violence in Indigenous communities using the terms Missing and Murdered Indigenous People (MMIP) and Missing and Murdered Indigenous Women and Girls (MMIWG). This report provides an overview of recent research and commonly cited barriers to addressing MMIP, background on legislation and programming to improve data collection and criminal justice services for Native Americans, and selected policy issues Congress may consider when conducting oversight or considering legislation related to MMIP. In recent years, the federal government has made efforts to address MMIP and the high rate of violence experienced by Native Americans. This report provides background on these issues, including an in-depth review of major sources of data on missing Native Americans and violent victimizations. Data sources include the Federal Bureau of Investigation’s (FBI’s) Uniform Crime Reporting (UCR) Program, as well as federal databases tracking missing persons. These data sources present a consistent picture of high rates of violent victimization of Native Americans. The report then discusses three common barriers to the federal government’s and criminal justice systems’ ability to fully understand and address MMIP. The first potential barrier is the relative lack of culturally specific services for Native American crime victims who live outside of tribal lands. Second, complicated jurisdictional overlaps between federal, state, local, and tribal law enforcement can lead to confusion regarding responsibility for investigations and prosecutions of crimes that occur on tribal land and can lead to loss of time and inefficient use of resources. The third barrier concerns gaps in the criminal justice data about MMIP. The report next discusses federal legislation and initiatives related to MMIP, including alerts for missing persons, efforts to encourage collaboration across federal agencies and with tribal governments, and efforts to improve data collection. This section covers Operation Lady Justice, which was created by Executive Order 13898, and the recently launched U.S. Department of the Interior Missing and Murdered Unit. Recent federal legislation to address MMIP is also discussed, including Savanna’s Act (P.L. 116-165) and the Not Invisible Act of 2019 (P.L. 116-166). The report concludes with a discussion of MMIP issues policymakers might consider when conducting oversight or considering legislation.

Washington, DC: Congressional Research Service, 2023. 43p.