Tuesday, October 10, 2017
*Originally published in Lawyer's Daily on October 10, 2017
There is a long list of items that U.S. President Donald Trump has put on his “to kill” list, including Obamacare, Planned Parenthood, the Department of Education, immigration and most recently, NAFTA. Trump called the North American Free Trade Agreement the “worst trade deal ever made” in U.S. history and indicated he may have to kill the deal.
Canada’s Prime Minister Justin Trudeau and Mexico’s President Enrique Pena Nieto, on the other hand, are scrambling to renegotiate with Trump in order to save NAFTA. But why the mad rush to feverishly save NAFTA? It’s not like it has widespread support among the people of those three countries and I am sure if the planet had a vote — it would be a resounding no.
So what’s the big deal about NAFTA? NAFTA is a legal agreement that came into effect on Jan. 1, 1994, to eliminate most of the tariffs on trade between the three signatory countries with the intention of encouraging trade on a massive scale. However, it is important to note that Canada and the U.S. already had massive trading relations prior to NAFTA and would continue to trade on a large scale, even if Trump kills NAFTA.
Although NAFTA is clearly a trade deal, the promise made to the citizens of all three countries was that it would improve the standard of living for all. While it is hard to analyze NAFTA’s impact on the Canadian economy in isolation from many other factors — by many accounts, NAFTA has not been the economic saviour it was originally touted to be when it was first signed.
More recent studies have concluded that there have been minimal, if any, positive impact on welfare in the three countries. In fact, Canada’s welfare shows an actual decline of 0.06 per cent. Some experts have argued that NAFTA has created more economic instability than actual benefit as millions have lost their jobs, wages have stagnated generally and decreased in Mexico. Similarly, while Canada’s trade increased by 11 per cent during NAFTA, its terms of trade (relative price of imports to exports) decreased by 0.11 per cent. This doesn’t even take into account the true cost of environmental destruction or the localized impacts on Indigenous peoples in all three countries.
Some have referred to NAFTA as the end result of negotiations between self-interested transnational corporate elite largely benefitting corporations — not people or the planet. Numerous civil society organizations in all three countries have rallied against NAFTA 2.0 unless there are substantive amendments — including many thousands protesting in the streets in Mexico. First Nations in Canada, tribal governments in the U.S., and Indigenous peoples in Mexico have been left in the dark and have no meaningful say in whether NAFTA goes ahead and if so, on what conditions. Here in Canada, the negotiations themselves are taking place in relative secrecy and there are no widespread consultations with Canadians, civil society organizations, experts and no legal consent by First Nations.
The important question is whether we want to save NAFTA at all costs and what are those costs?
We have a great deal to worry about after all. Remember former Canadian Prime Minister Harper’s secret Trans-Pacific Partnership negotiations? Just like Trudeau’s process, there were no widespread consultations with First Nations for the TPP either. The draft TPP agreement was eventually leaked and revealed that there were no real protections for human rights, First Nation’s rights, the environment or women. There is a very real concern that Canada’s negotiators are relying on similar TPP wording for NAFTA — so as not to rock the trade negotiations.
While we are all distracted with NAFTA, the TPP negotiations we thought were dead — continue under the radar. On Sept. 30, Canada announced a 30-day consultation period regarding its ongoing TPP discussions with other nations including Australia, New Zealand, Japan, Peru and Singapore and others (minus the U.S.).
First Nations and Canadians alike have a great deal to worry about. While welfare has decreased for Canadians since NAFTA, socioeconomic conditions have decreased to crisis levels for First Nations. NAFTA has had other devastating impacts. Many Mexicans have lost their farms and were subjected to substandard working conditions. There has been significant environmental destruction in all three countries and current NAFTA rules undermine attempts to address climate change by states. Indigenous women and girls suffered increased violence at the hands of the extractive industry bolstered by NAFTA — think about the thousands of murdered and disappeared in Canada-U.S.-Mexico near mining projects or man-camps. To make matters worse, there are no concrete legal protections, enforcement mechanisms or redress for violations of Indigenous rights, human rights or the environment under NAFTA.
If that were not bad enough, Investor-State Dispute Settlement — known as ISDS — leaves the decision-making for all disputes in the hands of a couple of trade lawyers. The relevant laws considered in their decision-making are rooted within NAFTA and laws relating to human rights, Indigenous rights and environmental protections are not factored in. Under NAFTA’s controversial ISDS provisions, Canada has earned the “most-sued country” title having paid out hundreds of millions of taxpayer money to large corporate investors who have sued Canada under ISDS. While the U.S. has yet to lose a single case under ISDS, Canada stands to potentially lose billions more — not including the millions in legal fees.
The perceived benefits of NAFTA are far outweighed by the significant harms to people and the planet. If Trump kills the deal, the world would not end. Trade between the three countries would continue. We must keep in mind that this deal impacts the lands, waters, resources and safety of First Nations in Canada and legally, this deal cannot go ahead without their free, prior and informed consent. That is, assuming Trudeau meant what he said at the United Nations General Assembly last month when he said Canada accepts the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) without qualification. Article 19 is very clear that Canada must obtain the free, prior and informed consent of Indigenous peoples before adopting any measure that may affect them.
So, perhaps the solution lies with First Nations? NAFTA is dead without First Nation consent anyway — so, Trudeau ought to start the good faith consultation process before his negotiators make promises they can’t keep.
Link to the article as originally published in Lawyer's Daily on Oct.10, 2017:
Wednesday, August 23, 2017
Canada's Ongoing Racial Discrimination Against Indigenous Women and Children Discussed at United Nations
On August 14th and 15th, 2017, Canada appeared before the United Nations (UN) Committee for the Elimination of Racial Discrimination (CERD) to account for its efforts to eliminate racial discrimination in Canada. As part of this process, Indigenous groups and non-government organizations (often referred to by the UN as "civil society") are permitted to submit "shadow reports" on Canada's racial discrimination record. These reports do not form part of Canada's official report to the UN, but UN committees, like CERD, use these shadow reports to get a more informed picture of what is happening in Canada.
CERD is a treaty body which meets to review state parties progress or lack thereof under the Convention for the Elimination of All Forms of Racial Discrimination. This Convention was passed by the United Nations General Assembly in 1965 and came into force in 1969. Canada signed on to this convention in 1966. Therefore, Canada appears before CERD to account for its practices in relation to the convention before committee members from all over the world.
In this convention, state parties, like Canada, have agreed to core principles including: "universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion". The convention also includes statements that the United Nations:
- "condemned colonialism and all practices of segregation and discrimination";
- "affirms the necessity of speedily eliminating racial discrimination throughout
the world in all its forms and manifestations";
- "any doctrine of superiority based on racial differentiation is scientifically false,
morally condemnable, socially unjust and dangerous, and that there is no
justification for racial discrimination, in theory or in practice, anywhere"; and
- "convinced that the existence of racial barriers is repugnant to the ideals of
any human society".
The convention goes on to define racial discrimination as follows:
"In this Convention, the term "racial discrimination" shall mean any distinction,
exclusion, restriction or preference based on race, colour, descent, or national
or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other
field of public life."
Knowing that Canada would promote itself in a positive light and gloss over its deplorable human rights record in relation to Indigenous peoples, especially the dual disadvantage of racial and gender discrimination experienced by Indigenous women and girls specifically, several of my colleagues in solidarity agreed we needed to ensure these crisis issues were highlighted for the CERD committee.
To this end, I partnered with several organizations that do a great deal of work advocating against injustices for Indigenous women and girls, to submit a shadow report on "racial discrimination" in Canada. Our collaboration included the Feminist Alliance for International Action (FAFIA), the Canadian Association of Elizabeth Fry Societies (CAEFS), the Ontario Native Women's Association (ONWA), and myself as Chair in Indigenous Governance at Ryerson University.
One of the downsides to these formal processes, is the very limited nature of these reports, in that we cannot canvass all issues completely. Knowing this, we decided to focus on some of the most urgent issues, knowing that other urgent issues could not be highlighted. We also took into account that Cindy Blackstock of the First Nation Child and Family Caring Society would be submitting her own report specific to First Nations children in care.
There were many other written and oral submissions from Indigenous groups which highlighted other issues related to free, prior and informed consent, Indigenous land rights and the impact of development on Indigenous peoples and lands. So we tried as best as possible to avoid any duplication. These reports can be accessed at the United Nations Human Rights website:
It was good to work with the late Art Manuel's family members and Indigenous colleagues while in Geneva. It reminds me of the importance of Art's lifelong work at the international level on Indigenous rights, land title and self-determination.
When I attended at the United Nations in Geneva, Switzerland there were so many groups who had traveled there to present to CERD, that we were only afforded 2-3 minutes maximum to make an oral presentation. As a result of so many presenters, the committee was not able to ask many questions. What follows is my oral presentation to the committee, keeping in mind we made more fulsome presentations at informal meetings and we referred them to our much more detailed written submission:
ORAL PRESENTATION (2-3 minutes):
Kwe, my name is Pam Palmater from the sovereign Mikmaw Nation and I am speaking on behalf of FAFIA, CAEFS, ONWA, RU on racial discrimination against Indigenous women and girls in Canada.
Canada has long targeted us as the primary means to eliminate our Nations to free up land for settlement. Therefore, our experiences are unique as Indigenous peoples and should not be compared to racialized settler groups.
Canada’s Indian Act created rules to banish Indigenous women and our children from our Nations – some of which are still in effect and found by UN human rights bodies to be a root cause of racial and gender discrimination.
Our children were stolen by Indian agents only to become victims of physical and sexual abuse in residential schools.
We were and are also targeted for forced/coerced sterilizations to reduce the population of our Nations.
The Truth and Reconciliation Commission report found all of this to be evidence of cultural, physical and biological genocide.
The direct result of this racialized and gendered discrimination is deteriorating socio-economic conditions for Indigenous women and girls:
- Indigenous peoples are only 4% population but 50% of all kids in foster care are Indigenous;
- 60% of Indigenous children live in poverty and the majority of their homes are headed by single Indigenous mothers;
- Indigenous women and girls often lack of access to proper healthcare, education and the basics of food and water;
- There is an 8-15 year reduced life expectancy and we suffer some of the highest suicide rates in the world;
- There are thousands of murdered & disappeared Indigenous women and girls;
- Indigenous girls are over-represented in human sex trafficking, where traffickers often taken straight from foster care;
- Numbers of Indigenous women in prisons has increased by 83% since 2003 and the majority were victims of residential schools, foster care and/or sexual abuse;
- 90% Indigenous women in jail now have their children forced into foster care where they are sexually abused at disproportionate rates;
None of these grim statistics is due to any defect in Indigenous women, girls, their families, communities or Nations - they are not the authors of own misfortune.
Our report shows the direct link between Canada’s racialized and gendered discrimination as the root cause of poverty, which is the primary reason Indigenous children are stolen and placed into foster care; which acts as a direct pipeline to human sex trafficking, over-incarceration in prison, and high rates of murders and disappearances.
(1) Implement UN (CEDAW & CERD) recommendations to eliminate sex discrimination from the Indian Act by ensuring that in Bill S-3, currently before the Canadian Parliament, Indian women and their descendants, born prior to 1985, are entitled to the same 6(1)(a) status as Indian men and their descendants;
(2) Urgently provide adequate needs-based funding to all First Nation social programs (for all First Nation people on and off-reserve) at least on par with provincial levels with extra to account for historical under-funding (realizing that these programs are resourced from Indigenous lands and resources);
(3) Restrict the use of prison for Indigenous and racialized women and girls and implement existing legislation to de-carcerate them (especially those with disabling mental health issues);
(4) (a) Implement the recommendations of the CEDAW Article 8 Inquiry into the murders and disappearances of Indigenous women and girls, while at the same time take immediate steps to actively protect Indigenous women & girls from violence by all parties – including state parties and their police forces;
(b) Direct Canada to ensure the national inquiry (i) reviews all individual cases of murdered and disappeared Indigenous women & girls and (ii) investigate police racism, abuse and sexualized violence against Indigenous women & girls (all within a human rights framework).
We have tried our best to build upon the foundations built by lifelong Indigenous women's advocates like Sharon McIvor, who have helped educate UN committees on the ongoing crisis for Indigenous women and children in Canada in the hopes they will pressure Canada to finally take action.
(Sharon McIvor and I at the UN before a different committee)
Tuesday, August 8, 2017
*(Originally published in the Lawyer's Daily on August 8, 2017- edited)
When the draft terms of reference of the National Inquiry into Murdered and Missing Indigenous Women and Girls were leaked to the media in the summer of 2016, many families, advocates, experts and communities were upset that there would be no investigation of the police — either their mishandling of individual files or their behaviour.
This omission was a shock to most since police racism and abuse was raised at every pre-engagement session conducted by Indigenous Affairs seeking input into the inquiry’s mandate. Families and advocates immediately responded by writing open letters calling on the federal, provincial and territorial governments to ensure that police handling of individual files and police behaviour would be included in the final terms of reference. Despite their strenuous advocacy, the final terms of reference specifically excluded any review of individual files or police conduct.
Since the launch of the inquiry in September 2016, it has been in slow motion implosion. The inquiry has been criticized for its numerous and lengthy delays, its failures to communicate with the families and its continued failure to provide information about schedules, logistics, process, or budgets. The Native Women's Association of Canada raised the issue that their phone calls to the inquiry were not answered or returned and were instead redirected to Indigenous Affairs — leading some to question the objectivity of the inquiry.
Then, one by one, the inquiry saw the resignations of some of its most senior staffers, including Michèle Moreau, the executive director; Chantale Courcy, director of operations; Tanya Kappo, manager of community relations; and Sue Montgomery, director of communications (the first, Michael Hutchinson, had been terminated). Several former staffers, speaking under condition of anonymity shared their concerns that the inquiry was lacking leadership and direction, and egos and power struggles have left it dysfunctional.
The recent resignation of one of the commissoners, Marilyn Poitras, makes chief commissioner Marion Bulller’s strenuous denial of significant problems in the inquiry, look blatantly detached from the seriousness of the situation. This is especially true when her own fellow commissioners are resigning, admitting they haven’t done their jobs and that the inquiry is in “crisis mode.”
To this end, an open letter was sent to the inquiry by a collective of Indigenous women, advocates and impacted family members calling for action and offering assistance. Others tried phone calls, e-mails and in-person meetings to try to get the inquiry back on track, with little obvious impact.
The continued lack of action on the part of the inquiry led many prominent advocates, Indigenous leaders and concerned families to call for a hard reset of the inquiry — which included calls for new commissioners, extended timelines, additional budget and improved terms of reference.
Manitoba Keewatinowi Okimakanak (MKO) Grand Chief Sheila North Wilson, representing northern Manitoba First Nations, called for the current commissioners to resign and let the inquiry reset for the benefit of the families — a call shared by many. A hard reset is not without precedent as the Truth and Reconciliation Commission also struggled in the beginning and was reset with new commissioners and it was better for it. The issue of residential schools deserved a proper inquiry just as the issue of murdered and missing Indigenous women and girls deserves a competent, independent fulsome inquiry that has the time and resources necessary to address the core issues — which includes a review of individual files and police conduct.
The issue of a hard reset also divided the chiefs at the most recent Assembly of First Nations (AFN) annual general assembly in Regina. Numerous family members attended the AFN assembly to plead with the inquiry’s commissioners to resign and reset the inquiry. The chiefs were deeply divided on the issue of reset but all seemed to agree that the inquiry was plagued with problems and recommended numerous improvements.
Commissioner Buller’s statements prior to the chiefs’ vote that she would not resign regardless of the outcome of the vote, arguably created an adversarial relationship between Indigenous peoples and the inquiry. Many family members are saying that the inquiry has “already failed” and this division among the leaders and families on how to fix the broken inquiry is itself evidence that the inquiry lacks the trust it needs to do its job.
Equally as concerning were the developments at the AFN assembly, where chiefs and families who wanted to address their concerns about the inquiry met with or spoke to Indigenous Affairs Minister Carolyn Bennett. Bennett was also quick to support the chiefs at the AFN in their calls for a soft reset of the inquiry.
This inquiry is supposed to be independent of the federal government, yet by all appearances it is the federal government pulling the strings. The inquiry itself then scrambled to put together a press release on the very same day that families were calling for a hard reset of the inquiry claiming they will now review police conduct and individual files.
This release has caused greater confusion because the inquiry is both empowered and limited by the terms of reference agreed to by the federal, provincial and territorial governments which specifically excluded the review of open or ongoing individual files (which for murdered and missing Indigenous women and girls are many) and police misconduct. Any information related to these matters must be referred back to police — the very same institutions that did not handle the files properly to begin with or that failed to take action against racist, abusive or sexually violent police officers. Misleading the families this way in order to avoid more calls for a hard reset is a huge injustice to the many families and communities who are relying on this process in good faith.
What is clear despite all the confusion and dysfunction, is that a hard reset is required or it risks becoming like Wally Oppal’s Missing Women Commission of Inquiry where large numbers of witnesses pulled out of the inquiry and the resulting report lacks any credibility. The Ontario Native Women's Association has already pulled out of the inquiry and many others may follow suit if the inquiry is not addressed. Canada owes the families and communities better if the prime minister meant what he said that there is no relationship more important to Canada than the one with Indigenous peoples.
*The link to the article as originally published in the Lawyer's Daily is: https://www.thelawyersdaily.ca/articles/4358
Wednesday, June 21, 2017
(Originally published in Lawyer's Daily on June 21, 2017 - edited)
Although there have been many amendments to the act over the years, the federal government, through the Indian Registrar, retains exclusive authority over the legal criteria for determining who is an Indian. Unfortunately, self-declared feminist Prime Minister Justin Trudeau’s elite feminist team of ministers is actively working against gender equality amendments for the Indian Act’s discriminatory registration provisions.
Under previous versions of the act, Indian women who married out (married a man not registered as an Indian) lost their Indian status, as did her children. Indian men who married out kept their Indian status and their non-Indian wives and children gained Indian status as well. This created a deep inequality that has been carried forward through successive generations despite the many human rights protections enacted in Canada over the same time period.
Many Indigenous women fought against these discriminatory provisions, including Jeannette Corbiere-Lavell and Yvonne Bedard, who lost their case at the Supreme Court of Canada in Lavell v. Canada (Attorney General)  S.C.R. 1349. Sandra Lovelace (now Sen. Sandra Lovelace Nicholas) won her human rights claim against Canada at the United Nations Sandra Lovelace v. Canada, Communication No. R.6/24, U.N. Doc. Supp. No. 40 (A/36/40) at 166 (1981) requiring Canada to amend the Indian Act in 1985.
However, the 1985 Bill C-31 amendments did not go far enough to remedy the ongoing gender inequality between Indian men and women and their descendants in the transmission of Indian status, so Sharon McIvor was forced to bring a s. 15 Charter challenge against Canada (The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11). Her win on appeal McIvor v. Canada (Registrar, Indian and Northern Affairs) 2009 BCCA 153 forced Canada to amend the act once again in 2010 with the Bill C-3 amendments, but Canada’s reluctance to remedy all gender discrimination led to the current case underlying the 2017 Bill S-3 proposed amendments in Descheneaux v. Canada 2015 QCCS 3555.
At issue in all of these cases was the federal government’s staunch refusal to once-and-for-all remedy all remaining vestiges of gender inequality between Indian men and women in the transmission of Indian status.
What is unique about the proposed Bill S-3 An Act to Amend the Indian Act (elimination of sex-based inequities in registration) is not so much the need to address the Descheneaux decision (which declared various discriminatory sections of the Indian Act inoperative); but the stark political differences between the Senate and the House on the fundamental question of whether Indigenous women and their descendants deserve gender equality under the Indian Act.
After hearing the passionate testimonies of Indigenous women lawyers and experts, First Nation organizations and other legal witnesses; the Senate unanimously supported an amendment to Bill S-3 intended to grant the same status to Indian women and their descendants as that held by Indian men and their descendants, referred as the “6(1)(a) all the way” amendment.
The importance of gender equality for Indigenous women united Liberal, Conservative and independent senators alike. Minister Carolyn Bennett’s refusal to accept the amendment pitted the Senate against the House, whose Aboriginal Affairs Committee rejected the gender equality amendment and Parliament will likely vote to send the bill back to the Senate with a new title to respond to Descheneaux and not fully eliminate sex-based inequities.
The fact that Indigenous women must continue to battle Canada for equality is shocking in 2017 given that the Charter’s section 15 guarantee of equality between men and women has constitutional status. The Charter’s well-established case law on substantive equality and Aboriginal rights leaves little doubt about Canada’s legal and constitutional obligation to remedy gender inequality for Indigenous women — but it is by no means the only legal protection against sex discrimination in Canada.
Section 3(1) of the Canadian Human Rights Act R.S.C., 1985, c. H-6 prohibits discrimination on the grounds of race and gender. Section 35(4) of the Constitution Act, 1982 ensures that Aboriginal and treaty rights are guaranteed equally as between males and female persons.
The United Nations Declaration on the Rights of Indigenous Peoples: resolution/adopted by the General Assembly, Oct. 2, 2007, A/RES/61/295 (UNDRIP), which Trudeau has specifically promised to implement into law in Canada, includes article 44 which ensures that all the rights and freedoms contained in UNDRIP are guaranteed equally to male and female Indigenous peoples.
It must be remembered that cabinet ministers were directed by Trudeau to fulfil their mandates based on the principle that there is no relationship more important to Canada, than the one with Indigenous peoples.
It was therefore refreshing to hear former Minister for the Status of Women Patti Hadju acknowledge the “long-standing, systemic discrimination that Indigenous women and girls experience in this country”; that “intersection of racism and sexism greatly increases the vulnerability of Indigenous women” and that the “racism brought on by colonization has had devastating impacts on Indigenous women’s power, their status, their role in their communities and their economic situations.” Yet, the current Minister for the Status of Women, Maryam Monsef, is silent on the issue of Bill S-3 and Justice Minister Jody Wilson-Raybould and Indigenous Affairs Minister Bennett continue to actively obstruct the Senate amendments to fully remedy gender discrimination in the Indian Act. Minister Bennett and Minister Raybould-Wilson are responsible for creating this standoff over equality in the Senate and House.
No one wanted it to come to this, but here we are with the fundamental equality rights of Indigenous women in the balance. It is now up to the Senate of Canada to stand firm in its original stance defending both the Charter’s integrity and the equality rights of Indigenous women.
The next steps may be hard and they may be political uncomfortable — but for Indigenous women, it is a matter of life and death. Discriminatory exclusion under the Indian Act is one of the root causes of murdered and missing Indigenous women — it’s up to the Senate now to stand with the Charter and defends gender equality.
The link to the original article as published in Lawyer's Daily can be found here:
Tuesday, June 6, 2017
The Parliamentary Standing Committee on Indigenous and Northern Affairs (INAN) is currently studying Bill S-3 An Act to Amend the Indian Act (elimination of sex-based inequities). As its title suggests, this bill should eliminate the remaining gender discrimination contained within the Indian Act’s registration and membership provisions – but it does not. The Indian Act’s registration provisions are already a complex mess of rules intended to legislate Indians out of existence – and the government’s version of the bill does not make it any better.
However, the Senate heard from First Nations, Indigenous and women’s advocacy organizations, Indigenous women, and legal experts during their initial study of the bill and agreed with the consensus opinion that the government’s bill falls short of eliminating gender discrimination. They introduced an amendment that addresses the bulk of the remaining discrimination – only to find the government fighting them all the way.
Bill S-3 is now being studied in the House and the government continues to defend their discriminatory version of the bill. We must continue to put pressure on Canada to address this long-standing injustice against Indigenous women and our children.
What follows is a chronology that will help provide context for how we got here:
1968 – Mary Two-Axe Early (Kahnawake), formed the Indian Rights for Indian Women to advocate for gender equality in the Indian Act. Mary had married a non-Indian, lost her status, and her band attempted to evict her as a result.
Under older versions of the Indian Act, Indian women who married non-Indian men lost their status, as did their children. By contrast, Indian men who married non-Indian women kept their status and their non-Indian wives gained status – ensuring their children also had status.
Mary’s advocacy help gain media attention on the issue and the concurrent Royal Commission on the Status of Women included recommendations to amend these discriminatory provisions.
1973 – Jeanette Corbiere-Lavell (Wikwemikong) and Yvonne Bedard (Six Nations) lost their case at the Supreme Court of Canada which challenged the marrying out provisions of the Indian Act. The Court held that the Bill of Rights, which guaranteed equality before the law, couldn’t invalidate the Indian Act;
1974 – Native Women’s Association of Canada was formed to advocate for the rights of Indigenous women including their exclusion from registration and band membership due to Indian Act’s discriminatory "marrying out" rules (loss of Indian status/registration when an Indian woman marries a non-Indian man);
1981 – Sandra Lovelace (Tobique) [now Senator Sandra Lovelace-Nicholas] won her human rights complaint at the United Nations against the discriminatory Indian Act rules;
1982 – Former Prime Minister Pierre Elliot Trudeau helps patriate the Constitution, enacting the Charter of Rights and Freedoms, which includes section 15, an equality rights guarantee;
1985 – Bill C-31 amends the Indian Act in response to the Lovelace case to restore Indian status and band membership to Indigenous women who lost it through marrying out, but the women were re-instated under section 6(1)(c), instead of full 6(1)(a) status and thus their entitlement to transmit status was more restricted than their Indian male counterparts. They could transmit status to their children [albeit only half status under section 6(2)] but not their grandchildren;
Section 6(1) status means you can pass on status to your children regardless of who you marry/partner; section 6(2) status means you cannot pass on status on your own - you must parent with another status Indian or your children have no status.
1985- 2010 – Sharon McIvor (Lower Nicola Indian band) challenges the ongoing (residual) gender discrimination in the Indian Act registration provisions and both trial and appeal level courts agree it is discrimination. The Supreme Court of Canada refuses to hear an appeal.
2010 – Bill C-3 amended the Indian Act in response to the McIvor case to remedy some aspects of gender discrimination, but leaves much of the discrimination unaddressed. This failed remedial legislation inspired more litigation.
2010 – Sharon McIvor immediately files a human rights petition in 2010 to the United Nations Human Rights Committee because of Canada’s failure to remedy all gender discrimination in Indian registration.
2015 – Stephane Descheneaux, Susan Yantha and Tammy Yantha (Abenakis of Odanak) win their discrimination claim at the Quebec’s Superior Court against the Indian Act’s registration provisions that continue to discriminate between the descendants of Indian women and Indian men.
2016 – Bill S-3 is introduced in the Senate with the stated intention of “eliminating sex-based inequities” from the Indian Act. Consensus from the First Nations, Indigenous women, advocacy organizations and legal experts called as witnesses before the Senate Committee on Aboriginal Peoples (APPA) is that Bill S-3 does not eliminate all sex-based inequities.
While Indian and Northern Affairs Canada (INAC) and Justice Canada (DOJ) claim that the bill is Charter compliant (i.e., there is no more gender discrimination), the expert witnesses highlight that the core of the gender discrimination is not addressed by the bill.
As a result, the Senate suspended consideration of the bill and instructed INAC to seek an extension from the court so it could draft a bill which did the job it claimed to be doing.
April 2017 - Lynn Gehl wins her discrimination complaint against INAC on the issue of unknown/unstated paternity which forces INAC to come up with additional amendments to Bill S-3 to address this as well;
2017 – Study of Bill S-3 continues in the Senate and the same witnesses express the same concerns that INAC did not use the court extension to draft amendments to eliminate all gender discrimination in the Indian Act.
One of the core areas of concern is the failure of the previous amendment (Bill C-3) to remedy gender discrimination for Indian women born prior to 1951 – an issue INAC referred to as “complex discrimination” best left for Phase 2 i.e., future discussions.
Having little faith in the many Phase 2 promises from past amendments, Indigenous women asked the Senate to amend Bill S-3 to address all gender discrimination. To this end, Senator Marilou McPhedron tabled the suggested amendment, referred to as “6(1)(a) all the way” which would make entitlement to registration for those born prior to April 17, 1985 equal as between Indian men and Indian women and their descendants – including those born pre-1951.
Key myths and facts about Bill S-3:
Bill S-3 is Charter compliant and addresses all known gender discrimination.
Every time the federal government claims the Indian Act is Charter compliant, it has been proven wrong in court. Furthermore, although their initial claim was that Bill S-3 addressed all known gender discrimination, Minister Bennett later admitted that “we are not doing the whole thing in terms of discrimination”.
It should also be noted that the current Liberal Justice Minister Jodi Wilson-Raybould defends this bill, yet when she was the Regional Chief of the BC Assembly of First Nations she wrote a letter to government saying that pre-1951 cut-off date was discriminatory and should be removed. It was also the former Liberal government that introduced the "6(1)(a) all the way" amendment during debate on Bill C-3 study. They agreed with removing all the discrimination then, but not now.
Minister Bennett claims millions of new Indians will be registered if this amendment passes.
There are less than 900,000 registered Indians in Canada. Remedying gender discrimination for Indian women who married out pre-1985 and entitling descendants of women to status on the same footing as descendants of Indian men, could not possibly result in 2 million new registrants. Many will have passed away already, many will not apply and many already have status – they would only be getting a higher level of status,but not adding new numbers. Every time the Indian Act has been amended, INAC has grossly over-estimated the numbers to manufacture fear and dissent. Sadly, but predictably, the AFN is also engaged in fear-mongering along the same lines as INAC.
No one cared about registration numbers when Indian men and white women were being registered – it only seems to be an issue now because its Indian women.
All these new registrations will cost too much money.
Canada adds 800,000 new Canadians every year from new births and new immigrants – all of whom are entitled to the full range of social programs and benefits at double or triple what is paid to First Nations for the same services. A one-time addition to the Indian register will not break the bank. More importantly, everyone is Canada is entitled to gender equality – regardless of any potential costs. Further, INAC already testified before Senate that they do not expect costs to increase for First Nations as the majority of new registrants will live off reserve.
Canada needs time to consult with First Nations about whether to amend the Indian Act to eliminate gender discrimination.
The issue of gender discrimination in the Indian Act (and how to remedy it) is not a new issue. First Nations and Indigenous women’s organizations have been engaged with INAC for many decades on how to amend the Indian Act. Consultations, engagement sessions, information sessions and various discussion tables have been ongoing since before the 1985 amendments. Even if more than forty years of consultation had not already taken place, and it has, the government cannot legitimately consult on whether to continue to discriminate against Indigenous women. It has a constitutional and fiduciary duty not to discriminate.
This government has no choice legally but to remedy the discrimination.
This government has no choice legally but to remedy the discrimination.
It is ok to leave the issue of gender discrimination for another day.
Section 15 of the Charter of Rights guarantees equality between men and women.
Section 35(4) of the Constitution Act, 1982 guarantees equality between Indigenous men and women with regards to Aboriginal and treaty rights.
Section 3 of the Canadian Human Rights Act prohibits discrimination in the provision of federal programs and services on the basis of gender.
Article 44 of the United Nations Declaration on the Rights of Indigenous Peoples guarantees equality between Indigenous men and women for all the rights included in the Declaration but specifically with regards to belonging to one’s Indigenous Nation.
Various international human rights bodies have long recommended that Canada once and for all eliminate gender discrimination in the Indian Act and even noted that it is one of the root causes of murdered and missing Indigenous women and girls.
It is long past time that Canada finally amend the Indian Act and eliminate gender discrimination in Indian registration. They do not need more court cases, UN reports or a national inquiry to justify taking action.
At this point, it's simply a matter of political will.
Please use the following link to a template letter to support these amendments.
Monday, May 15, 2017
(Originally published in Lawyer's Daily on May 15, 2017)
It looks like those who advocated for the long-awaited national inquiry into murdered and missing indigenous women and girls will be waiting a little while longer.
Despite the promise from Liberal Prime Minister Justin Trudeau that the national inquiry would be his first order of business, it has been 19 months since his election and the inquiry hasn’t held a single day of hearings. Although the commissioners held two soft launches in September 2016 and February 2017 promising to launch the hearings soon, the inquiry has not started, nor will they hear from the families until fall 2017.
Given that the commissioners were given exceptionally limited time to conduct the inquiry, the fact that they have already used up nine of the 26 months allocated to them is a major concern. At this point, the commissioners have very little to show for either the time used or the money spent to date — more than 10 per cent of its $53 million budget.
Given the lack of communication from the commissioners to date, we are all left wondering what is going on.
Equally concerning are reports that the federal government has been behind some of the delays by refusing to share its lists of potential witnesses with the commissioners or advance adequate funding to allow much-needed staffing to occur.
The long list of Indigenous families, leaders and advocates raising public concerns has been met with extended periods of silence. Recent cancellations of scheduled meetings of the inquiry have led to increased criticism by the same indigenous families and advocates who originally pushed so hard for the inquiry. There are even calls for the inquiry to be “reset” both in terms of the panel of commissioners and the inquiry format itself.
But, as problematic as all this administrative mess is — and it could very well unravel the inquiry — it is relatively minor in comparison to the fact that the inquiry, legally speaking, is fatally flawed.
Even if the federal government had ensured the inquiry started earlier in Trudeau’s term, and even if the commissioners had been able to quickly launch hearings, neither of these conditions could save the inquiry from its flawed Terms of Reference.
The Terms of Reference lack the two areas of inquiry that were most important to indigenous families, leaders and advocates: (1) a review of all the known police case files of murdered and missing Indigenous women and girls and (2) a comprehensive review and investigation of police behaviour, specifically racism, abuse and sexualized violence of Indigenous women and girls by police forces. Yet, these two things are specifically exempted or protected from review in the terms, forcing witnesses who want to give evidence about these issues, to go back to the very same police forces that committed the flawed investigations of their missing or murdered loved ones, or the same police forces that failed to act on abuses by their officers.
There is no way to save this inquiry from such fatal flaws. The provinces and territories all passed orders-in-council to allow the inquiry to proceed in their jurisdictions based on the terms as drafted — in other words, based on these two exemptions. Yet this flies in the face of what Indigenous women, leaders and advocates have long requested and what the minister heard in the national engagement sessions leading up to the drafting of the terms.
Despite the Human Rights Watch report about police officers sexually abusing Indigenous women and girls in British Columbia with impunity; or the police officers in Val D’or, most of whom will not face charges for allegations of ongoing sexualized abuse of indigenous women and girls in Quebec; or the rampant sexualized violence and discrimination within the RCMP as evidenced by the class action by its female members — none of this will be open for examination.
At best, the commissioners might be able to look at systemic discrimination within policing policy — but nothing that gets to heart of why so many Indigenous women fear police, and why so many of their investigations, or lack thereof, have been challenged by the families. This poses a real risk that we will end up with an inquiry that is more damaging than helpful. We could end up with a report like that of commissioner Wally Oppal from the Pickton inquiry which hints at generalized police failures in investigations but doesn’t shine a light on the darker side of policing.
One of the worst outcomes would be a report that presents a general historical overview of colonization, a recap of the well-known socioeconomic problems plaguing First Nations or one that represents the voices of so few indigenous witnesses that it misses the root problems altogether.
The inquiry terms are already biased toward violence in general and best practices related to violence prevention and safety. This has already led many commentators to focus on domestic violence, which is part of the issue, but by no means the whole issue. Such an unstructured inquiry means we could end up with a report on the already well-documented research on domestic violence but have nothing about police violence for example.
Given that the terms also focus the inquiry on the “vulnerabilities” of Indigenous women and girls as opposed to failures of federal, provincial and municipal governments and service agencies to protect the human rights of Indigenous women and girls — the inquiry risks missing the whole point. The fatal flaws of the Terms of Reference are reason enough for a reset of the inquiry.
There is no shame in learning from the lessons of the Truth and Reconciliation Commission’s reset and making sure that the thousands of murdered and missing Indigenous women and girls, their families and communities get the inquiry they asked for and the justice they deserve.
(Originally published in Lawyer's Daily on April 17, 2017)
Prime Minister Justin Trudeau swept the Liberals into power on Oct.19, 2015, with the support of Indigenous peoples who voted in record numbers. Trudeau’s election platform consisted of core promises made to the Chiefs in Assembly on July 7, 2015, which would include the review and repeal of legislation unilaterally imposed on First Nations by former Conservative Prime Minister Stephen Harper. Trudeau confirmed his government’s commitment at a subsequent meeting of the Chiefs of Assembly on Dec. 8, 2015.
This was a significant commitment for First Nations since the unilateral imposition of these laws by the Harper government had inspired the largest social movement in Canada’s history: Idle No More. Indigenous peoples took to the streets for nearly a year protesting Bill C-45, an omnibus bill that would remove protections for various waterways; Bill C-27 First Nations Financial Transparency Act; Bill S-2 Family Homes on Reserve; Bill S-6 First Nation Elections; Bill S-8 Safe Drinking Water; and Bill C-428 Indian Act Abolishment. All of these bills involved some form of increased government control, something First Nations were not willing to accept. In addition to protests, First Nations decided to tackle these unconstitutional laws head on in the courts.
Mikisew Cree Nation won their initial case in Federal Court challenging Harper’s failure to consult on two omnibus Bills C-38 and C-45; and Onion Lake Cree Nation won their federal court battle against Bill C-27.
While Idle No More activities on the ground eventually subsided, First Nation discontent with federally imposed legislation continued to grow throughout Harper’s mandate. There was significant opposition and protests against Bill C-51, the Anti-Terrorism Act, which targeted the political activities of Indigenous peoples.
The situation came to a head when Assembly of First Nations (AFN) National Chief Shawn Atleo publicly supported Harper’s Bill C-33 First Nation Control of First Nations Education Act without informing or consulting First Nations. The resulting widespread cries for Atleo’s removal led to his resignation and put a serious strain on an already fragile relationship between First Nations and the federal government. Trudeau’s election promises offered a welcome path forward.
However, Trudeau’s first budget was a major disappointment not only for failing to address the many overlapping crises in First Nation social conditions, but also for completely ignoring his promises to repeal Harper’s legislation. The resulting First Nation criticism is likely what led to this year’s announcement that Trudeau’s government has created a ministerial working group to review all laws and policies related to indigenous peoples. The working group consists of the ministers for Indigenous and Northern Affairs, Fisheries, Justice, Health, Families and Natural Resources and will be chaired by Justice Minister Jody Wilson-Raybould.
On its face, the announcement appears to be an indication of the Trudeau government moving in the right direction in the promised nation to nation relationship. However, we do not have either a specific budget for this work or a terms of reference that specifies who will be engaged in the review, the time frame for completion, or the ultimate objectives.
The worst thing that could happen is yet another government committee struck to review its own laws, with its own legal interpretations of what does and does not violate the Constitution, cementing it firmly in its own colonial and paternalistic mindset.
Most will recall that Trudeau’s father, former prime minister Pierre Elliott Trudeau, struck out big time with his 1969 White Paper on Indian Policy calling for the elimination of Indian status, reserves and treaty rights. This ministerial review committee risks the same fate without First Nation leaders and experts at the table. Another core concern is that the scope of this review has been enlarged so much that this committee could spend years reviewing hundreds of laws and policies instead of repealing the handful that Trudeau promised to repeal.
Therein lies the other problem with Trudeau’s legal review committee — it is based on a nation to nation relationship that begins and ends with the AFN. This comprehensive legal and policy review must be done in partnership with the actual Aboriginal and treaty rights holders themselves; i.e., First Nations and treaty signatories, not the AFN. This is a critical first step before Trudeau’s vision of “a complete renewal of Canada’s nation to nation relationship with indigenous peoples” can be realized. It will require Trudeau’s working group to negotiate the terms of reference with representatives of the rights holders on a nation basis, like the Mi’kmaw Nation, or on a treaty basis, like engaging with all First Nations in Treaty 4, for example. It is possible for regional and other representative organizations to participate, so long as it is the rights holders themselves who mandate them to engage in this process.
To date, Trudeau has not asked how our nations want to be represented or engaged in this legislative review. First Nations in Canada are not the mythical race of “Indians” created by the Indian Act. They do not have one culture, one language or one set of laws. First Nations are part of larger Indigenous nations with laws, governments, histories and politics as varied as those found in the United Nations.
If Trudeau is serious about transforming the relationship with indigenous peoples, he will have to abandon the colonial requirement that all First Nations speak with one voice. Canadians don’t speak with one voice, nor do the provinces and territories. To expect more of First Nations is an adherence to racist stereotypes of the past which have no place in a multinational, democratic Canada that is truly committed to reconciliation, reparation and renewal. The terms of reference will be the real indication as to whether Trudeau is serious about a renewed relationship.