Legal Insights / Civil Litigation / Racism in British Columbia: death by a thousand cuts to Indigenous Peoples

Racism in British Columbia: death by a thousand cuts to Indigenous Peoples

Jun 9 2020

In the wake of COVID-19, another pandemic is sweeping the globe: racism. Since the horrific police slaying of George Floyd, Black Lives Matter protests have taken place in major cities across the world, including Abbotsford.

At its core, racism is the belief that race is a primary determinant of behavioral traits and that racial differences produce an inherent superior (or inferior) race. While, sadly, there is no shortage of examples of blatant racism, a more pervasive form of racism takes place in daily, seemingly “normal” interactions. This form of racism is particularly damaging and difficult to address as it has seeped into the very fabric of our institutions and society over the course of generations such that inferior treatment is unconscious.

The BC Human Rights Code has the express purpose of fostering a society in which there are no impediments to full and free participation in the economic, political and cultural life of British Columbia, and to provide redress for individuals who have been discriminated against contrary to the Code. The Code specifically protects British Columbians from discrimination on the bases of race, ancestry, or place of origin (as well as other characteristics) in such areas as: accommodation, service, purchase of property, tenancy, and employment. The BC Human Rights Tribunal (the “BCHRT”) is responsible for enforcing the Code by assessing complaints.

In January 2020, the BCHRT released a 52-page report, Expanding our Vision: Cultural Equality and Indigenous Peoples Human Rights. According to the Chair of the BCHRT, it was commissioned to gain a better understanding of why indigenous peoples are disproportionately not using or filing complaints with the BCHRT and to seek ways to facilitate their engagement in the future (the “Report”). Input was received from 102 Indigenous BC residents.

The Report makes numerous recommendations. This blog post strives to further to just one of them:

6.1 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.

what is “micro-discrimination”, also known as “microaggression”?

It is defined in the Report as “events involving discrimination, racism, and daily hassles that are targeted at individuals from diverse racial and ethnic groups.’ Microaggressions are chronic and can occur on a daily basis.” It includes the following:

  • Microinsults: “communications that convey rudeness and insensitivity and demean a person’s racial heritage” (i.e. eye rolling);
  • Microinvalidations: “communications that exclude, negate or nullify the psychological thoughts, feelings, or experiential reality of a person of color” (i.e. “I don’t see colour” which denies the experiences of racialized people, or asking if someone is “really Indigenous”); and
  • Microassaults: “explicit racial derogation[s] characterized primarily by a verbal or nonverbal attack meant to hurt the intended victim” (i.e. avoiding people of a particular race, associating Indigenous Peoples with aggressive imagery, alcohol use or theft).

The difficulty with microaggression is that no one example may rise to the level of actionable discrimination, and yet the collective effect can be devastating to a person’s wellbeing and self-esteem. The Report refers to this as “death by a thousand cuts”.

Some common examples given by respondents to the Report are being served after others, followed or stopped by security guards, commonly denied rental opportunities, being targeted by police and receiving poor treatment in the healthcare system (often involving an assumption relating to alcohol abuse). Many of the respondents had never heard of the BCHRT or felt the discriminatory treatment was so common that it was simply a way of life.

A problem with filing a complaint is how do you prove that it is because of your race that a waitress took your order last? How do you prove that the reason you were not promoted at your job, or you were not a successful applicant for a tenancy related to the colour of your skin?

It can be nearly impossible.

Often the discriminator has no idea he or she is motivated by bias so no direct proof exists (like an email that says an applicant has been denied because he/she is Indigenous). If asked, a landlord or manager would likely offer an alternative reason for the inferior treatment. The majority of British Columbians would not consider themselves racially motivated.

The BCHRT has said it is not necessary to show that someone intended to discriminate or that they specifically made a racist remark. Racism can be shown through circumstantial evidence and inference, which is about overall conduct. An example of circumstantial evidence could be the very fact that an Indigenous employee is paid less than his or her colleagues who perform the same work or is passed over for a promotion by a more junior colleague. The burden rests with the complainant to prove their case and the Report recognizes this is often not possible.

What’s the solution?

A number of recommendations are offered including recruiting more Indigenous staff to the BCHRT, incorporating traditional Indigenous laws, creating a separate branch for Indigenous complaints and empowering Indigenous organizations to file collectively on behalf of individuals.

The truth is there is no easy fix.

As a society and as individuals, we have a responsibility to educate ourselves so that we can acknowledge and fight against our own biases to support the free and equal participation of visible minorities in general, and, Indigenous Peoples in particular, in British Columbia.

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