Wednesday, June 21, 2017

Why is Trudeau Government Opposing Charter Equality for Indigenous Women?

(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) [1974] 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:

Please see my related video on my Youtube channel:

Tuesday, June 6, 2017

Bill S-3 Amendments to the Indian Act and the Never-Ending Battle for Equality for Indigenous Women

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- 2010Sharon 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.

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:

MYTH #1:
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.

MYTH #2:
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. 

MYTH #3:
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.

MYTH #4:
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.

MYTH #5:
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.