This blog represents my own personal opinions, thoughts and ideas, and should never be relied on as legal advice. My goal is have a national discussion with the grass roots citizens to see where we can affect the changes we want for our families, communities, and Nations. We owe it to our ancestors to protect our cultures and territories for our future generations.
*Originally published in Lawyer's Daily on November 6, 2017 (edited to include links)
integrity of Canada’s policing and corrections system has been called into
disrepute from the sexualized violence committed by its police and corrections
officers against Indigenous women and girls, female prisoners and even their
own female colleagues.
officials at Edmonton’s maximum security prison suspended seven employees —
including managers — for allegations of sexual harassment and sexual assault.
The male guards are now under investigation not only for the sexual harassment
and assaults but also for their retaliatory actions against their female
colleagues who tried to report the harassment. In some cases, it is alleged
that protocols were breached risking the safety and security of the female
prison guards including using inmates as weapons of intimidation.
many would like to believe that this is an example of “a few bad apples,” the
number of similar complaints across the country points to a much deeper problem
in corrections. Earlier this year, in another maximum security prison in
Agassiz, B.C., the sexual assault of a female prison guard by her male
colleague was actually caught on camera. Far from an isolated incident, the
union representing various locals in B.C. say they regularly assist female
corrections employees in similar harassment cases.
widespread sexually abusive actions by corrections officers is not limited to
female colleagues. In 2012, prison guards at Ontario’s Grand Valley Institution
for Women were accused of sexual abuse of female prisoners by trading tobacco
and drugs for sexual acts. This was not news to the Correctional Service of
Canada (CSC). The Canadian Association of Elizabeth Fry Societies, which
represents women and girls in the justice system, has filed many reports on
such incidents calling for an external review and for the CSC to stop using
male guards in women’s prisons.
advocates also made calls for surveillance cameras in all institutions after
surveillance videos captured numerous incidents of prison guards beating
prisoners in Ontario and Quebec prisons in 2013. Several videos depict
prisoners cowering in fear in what some lawyers have referred to as absolute
“terrorism” committed by prison guards. The Office of the Correctional
Investigator responded that not only that video surveillance procedures failed
70 per cent of the time, but that “it’s probably not a coincidence that some
alleged prison beatings occur in spots where there’s no surveillance cameras.”
The importance of surveillance cameras cannot be overstated. It was
surveillance footage that showed Vancouver police dragging an unconscious
Mi’kmaw man, Frank Paul, out of a jail cell and into an alleyway where he died
of hypothermia in 1998.
are the arrested, detained, or imprisoned supposed to call when they have been
beaten or sexually abused by corrections officers? There is a major power
imbalance between corrections and prisoners, and the police are part of the
same abusive system that protects its own before protecting those in their
charge. The RCMP have been inundated with class actions and public complaints
about their long-standing racism, sexism, abuse and harassment against the
public and its own members.
not admitting any wrongdoing, this year, the RCMP recently settled a class
action suit against it for the long-standing sexual harassment and assault of
thousands of female RCMP members. In 2016, a second class action suit against
the RCMP — this time male members — allege harassment and bullying. Also in
2016, another complaint alleges RCMP bullying and unwanted sexual touching and
nudity at their own police college run by the RCMP in Ottawa. This is all on
top of the 2014 report which documented hundreds of cases of corruption,
involving hundreds of officers in the RCMP.
deep-rooted problem of racism, sexism and abuse in policing and corrections is
not new in the male-dominated system. The Royal Commission on Donald Marshall
Jr.’s wrongful imprisonment highlighted police racism back in 1989. The 1991
Report of the Aboriginal Justice Inquiry was instigated at the failure by
police to properly investigate the sexual assault and murder of Indigenous
woman Helen Betty Osborne and the police shooting of unarmed Indigenous leader
J.J. Harper. The report highlighted the fact that the police do little to
protect Indigenous peoples, especially women and girls.
2012 Missing Women Commission of Inquiry from B.C. found “blatant failures” and
systemic bias against the victims and their families, many of whom were
Indigenous. One of the most damning reports comes from Human Rights Watch in
2013 on abusive policing in B.C. which documented reports of RCMP physical and
sexual abuse of Indigenous women and girls.
CSC and RCMP have both been implicated in the bullying, harassment, physical
assaults, sexual assaults and/or deaths of female officers, female civilian
employees, fellow male officers, male and female prisoners, and Indigenous
women and girls. The class actions against the RCMP should have been a wakeup
call for Public Safety Minister Ralph Goodale to take immediate remedial
action. The 2017 CSC survey which reported that 40 per cent of CSC had been a
victim of workplace harassment — 60 per cent of cases from their own CSC
co-workers. The survey also showed that the problem is getting worse — having
increased by over 30 per cent since 2014. Even the Canadian Human Rights
Tribunal has noted that sexual harassment “continues to take place in
organizations with a historical male dominance.”
very fact that the terms of reference for the national inquiry into murdered
and missing Indigenous women and girls excludes a review of police conduct is
yet another example of the resistance of Canadian officials to address the
problem. The knee-jerk reaction of governments to protect their police forces
at all costs, may well cost them the loss of public confidence in policing and
fact that the federal government chose a commissioner, Qajaq Robinson, for the
national inquiry whose husband is a RCMP officer who pleaded guilty to beating
Indigenous prisoners in 2009, begs the question as to whether PM Trudeau and
his cabinet had any real intention of getting at the truth — which so far, all
points directly at racism, sexism, abuse and corruption in policing and
would have thought with a self-professed feminist prime minister and an
experienced minister like Ralph Goodale, there would have been some immediate
and substantive actions over the last two years since they took office. But,
much like the perpetually absent Minister on the Status of Women Maryam Monsef
— there are very few federal voices willing to tackle the monumental problem of
racism, sexism, abuse and corruption in policing and corrections in Canada. It
is hard to imagine a minister on the Status of Women as willfully blind on such
high profile incidences of sexism and sexual abuse as Monsef.
those entrusted to serve and protect serve only their own interests and abuse
those in their care, the system will inevitably start to unravel — becoming a
national crisis. Trudeau ought to use the revelations about sexual abuse in the
Edmonton’s maximum security prison to dismantle this broken system of male
dominance and sexualized violence in government institutions and restore public safety.
*Link to the article originally published in Lawyer's Daily on November 6, 2017:
published in Lawyer's Daily on October 10, 2017
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.
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.
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.
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.
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.
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.
important question is whether we want to save NAFTA at all costs and what are
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
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.).
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.
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.
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.
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.
to the article as originally published in Lawyer's Daily on Oct.10, 2017:
(Photo by NWAC of ONWA, CAEFS, myself and NWAC at UN)
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
- "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,
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
fundamental freedoms in the political, economic, social, cultural or any other
field of public
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.
(Art Manuel and I in Geneva at a different committee)
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):
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.
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.
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.
children were stolen by Indian agents only to become victims of physical and sexual abuse in residential schools.
were and are also targeted for forced/coerced sterilizations to reduce the
population of our Nations.
Truth and Reconciliation Commission report found all of this to be evidence of cultural,
physical and biological genocide.
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;
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
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.
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;
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);
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
(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;
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)
SPECIAL THANK YOU Welal'in to Ryerson University's Aboriginal Education Council for supporting my travel to the United Nations so that we could do this important work.
*(Originally published in the Lawyer's Daily on August 8, 2017- edited)
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
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.
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.
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.
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.”
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.
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.
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.
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
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.
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.
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.
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
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.
(Originally published in Lawyer's Daily on June 21, 2017 - edited)
Shortly after Confederation, the federal government used its jurisdictional powers over “Indians and lands reserved for the Indians” in s. 91(24) of the Constitution Act 1867, to enact the Indian Act, 1876 — making it nearly as old as “Canada” itself. For well over a hundred years, the Indian Act has included provisions intended to legislate Indians out of existence — a form of forced assimilation — that primarily targeted Indigenous women and their descendants for enfranchisement (loss of status as an “Indian” and removal from the reserve as a member).
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 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. http://www.pampalmater.com/category/bill-s-3/
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
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.
follows is a chronology that will help provide context for how we got here:
– 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;
– 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);
Sandra Lovelace (Tobique) [now Senator Sandra Lovelace-Nicholas] won her human
rights complaint at the United Nations against the discriminatory Indian Act rules;
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.
– 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.
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.
–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 Gehlwins 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
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.
Letters of support for
this amendment have poured into the Senate and Minister’s office by First Nations,
First Nation organizations, women’s groups, individuals and families. Minister
Bennett responds by fear-mongering saying that this amendment could entitle 2
million people and insists that the government cannot act without consulting First Nations.
Key myths and facts about 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.
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.
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.
(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.
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.
the lack of communication from the commissioners to date, we are all left
wondering what is going on.
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.