It’s time to be ambitious on climate action: NWAC engages with IPCC in support of the latest report on climate change

8 October 2018

The Intergovernmental Panel on Climate Change (IPCC) released its latest special report (SR1.5) on Monday detailing the scientific community’s best understanding of the impacts of 1.5°C global warming, and the results are staggering.

Over the last week, NWAC joined Canada’s delegation with other members of the IPCC in Incheon, South Korea for the panels 48th Session (IPCC48). The primary task of the members at IPCC48 was to review and approve the details of SR1.5’s summary report for policy makers (SPM). The SPM is designed to clearly explain to all levels of government around the world the unequivocal scientific consensus that failure to take meaningful and immediate actions to address climate change will cause painful and irreversible impacts on natural and human systems.

The IPCC is the international body responsible for providing the international community with the latest, most reliable science on climate change. Hundreds of climate scientists contributed to the SR1.5 report which reviewed thousands of studies. The SPM is a very brief summary of the SR1.5 and while the vast majority of the world’s population will likely never read the SPM, they should.

According to the IPCC’s latest report, without significant actions to reduce net anthropogenic (human induced) global greenhouse gas (GHG) emissions by about half before 2030 and then further reducing net GHG emission to zero by 2050, global warming will not be contained to 1.5°C. Beyond reducing GHG emissions to zero by 2050, measures to remove as much as 1,000 gigatonnes will also have to be undertaken to limit global warming to 1.5°C. To put that in perspective, global energy-related carbon emissions hit a record high of 32.5 gigatonnes in 2017.

Failing to contain global warming to 1.5°C will result in extreme weather events, including heat waves, heavy precipitation, drought, major losses to biodiversity, continued ocean acidification (and coral bleaching), and water and food insecurity for hundreds of millions of people.

While the IPCC has previously released reports that spoke to the heightened vulnerability of persons of intersecting marginalization to climate change, this latest report has not addressed the issue. Indigenous women are particularly vulnerable to the effects of climate change due to their indigeneity and their gender. Further research is needed to better understand these effects and measures must be taken to help protect Indigenous women from these effects and to include them in low-carbon economic activities.

The federal, provincial and local governments must do much more to meet Canada’s GHG emission reduction targets  of 30% below 2005 levels by 2030 under the Paris agreement, and this is nothing compared to the transformative metamorphosis of the global economy that will have to take place to transition to a net zero economy by 2050. While Canada’s delegation team skillfully and vociferously advocated on behalf of science and cooperation throughout IPCC48, this report is clear that the scope of the climate challenge domestically and internationally is a mammoth one – perhaps the greatest and most significant challenge of shared human history.

It is time to be ambitious.

 Find out more about the IPCC report at: IPCC REPORT

A new deal, a new day: What the USMCA means for the rights of Indigenous women

 

The United States, Mexico and Canada have reached a provisional agreement (the USMCA) on a new trade deal to replace the North American Free Trade Agreement (NAFTA). NWAC is encouraged by the inclusion of Article 32.5 of the new USMCA, an exception provision that will ensure that the agreement will not undermine the ability of the parties to fulfill their legal obligations to Indigenous peoples.

NWAC congratulates the Government of Canada in successfully negotiating for the inclusion of this provisions, as trade can have serious implications for the rights and interests of Indigenous peoples, particularly Indigenous women and children.

But, while the Indigenous Rights Exception is an important component of a progressive trade agenda that respects and supports Indigenous peoples, it is not enough. The recognition by the parties to the USMCA that the agreement must not impede a state’s obligations to Indigenous peoples must be understood in the context of Bill C-262 and Article 21.2 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Bill C-262 is a private members bill introduced by Romeo Saganash and supported by the government, which will recognize UNDRIP as a human rights document with domestic application in Canada and require the conformity of Canada’s laws with the document. Article 21.2 of UNDRIP requires states to take effective and special measures to improve the economic and social conditions of Indigenous peoples, particularly Indigenous women and children.

NWAC encourages the Government of Canada to take full advantage of Article 32.5 of the USMCA and respect its obligations under Article 21.2 of UNDRIP. This requires more than ensuring Indigenous women are no longer disproportionately negatively affected by international trade agreements, but that Indigenous women are provided with meaningful opportunities to equally and fully participate in economic opportunities that flow from trade and to ensure that these economic activities meaningfully and substantially ameliorate the socio-economic condition of Indigenous women and children.

 

Un nouvel accord, un nouveau jour : ce que signifie l’AEUMC pour les droits des femmes autochtones

Les États-Unis, le Mexique et le Canada ont conclu un accord provisoire, l’Accord États-Unis-Mexique-Canada (AEUMC), pour remplacer l’Accord de libre-échange nord-américain (ALENA). L’AFAC est encouragée par l’inclusion du paragraphe 32.5 du nouvel AEUMC, une disposition d’exception garantissant que l’accord ne minera pas la capacité des parties à respecter leurs obligations juridiques envers les peuples autochtones.

L’AFAC félicite le gouvernement du Canada d’avoir négocié et obtenu l’inclusion de cette disposition, puisque le commerce peut avoir des implications graves pour les droits et les intérêts des peuples autochtones, particulièrement les femmes et les enfants autochtones.

Mais, si l’exception relative aux droits des Autochtones est une composante importante d’un programme commercial progressiste qui respecte et soutient les peuples autochtones, ce n’est pas suffisant. La reconnaissance par les parties à l’AEUMC du fait que l’accord ne doit pas entraver les obligations d’un État envers les peuples autochtones doit être comprise dans le contexte du projet de loi C‑262 et du paragraphe 21.2 de la Déclaration des Nations Unies sur les droits des peuples autochtones (DNUDPA).

Le projet de loi C‑262 est un projet de loi émanant d’un député, déposé par Roméo Saganash et appuyé par le gouvernement, qui reconnaîtra la Déclaration des Nations Unies à titre de document sur les droits de la personne ayant des implications sur le plan national au Canada et nécessitant la conformité des lois du Canada à ce document. Le paragraphe 21.2 de la DNUDPA exige des États qu’ils prennent des mesures efficaces et spéciales pour améliorer la situation économique et sociale des peuples autochtones, en particulier celle des femmes et des enfants autochtones.

L’AFAC encourage le gouvernement du Canada à tirer pleinement parti du paragraphe 32.5 de l’AEUMC et respecter ses obligations en vertu du paragraphe 21.2 de la Déclaration des Nations Unies. Celui-ci exige plus que de garantir que les femmes autochtones ne soient plus disproportionnellement affectées négativement par les accords commerciaux internationaux, mais que les femmes autochtones aient des possibilités véritables de participer pleinement et de façon égale aux occasions de développement économique qui découlent du commerce et de garantir que ces activités économiques améliorent véritablement et considérablement la situation socioéconomique des femmes et des enfants autochtones.

NWAC advocates for gender equality and Indigenous rights at CETA forum in Brussels

La traduction en français suivra.

 

Today in Brussels, NWAC participated in the first meeting of the joint Civil Society Forum under the Comprehensive Economic and Trade Agreement (CETA) – the Canada-European Union free trade agreement. This trade agreement presents an important opportunity for a shift toward sustainable development and climate action that will either further marginalize Indigenous women, or ensure they equally and fairly share in the benefits of a low-carbon, sustainable economy.

This meeting of civil society delegates from organizations throughout the EU and across Canada was convened to build dialogue on the sustainable development aspects of CETA. The constituent civil society organizations in attendance at today’s meeting represent a diverse range of sectors including labour, business, animal protection and nature conservation. NWAC’s participation focused on drawing attention to the disproportionate impacts trade can have on Indigenous women and to advocate for an interpretation of sustainable development that recognizes the importance of gender equality and respect for Indigenous rights.

Throughout the CSF meeting and in a discussion with Canada’s Ambassador to the EU, Daniel Costello, prior to the meeting, NWAC brought attention to the numerous international documents recognizing the international community’s commitments to sustainable development and the fact that all these documents refer to the importance of gender equity and Indigenous rights.

The International community has, through international declarations and common objectives, consistently recognized the important role of women and gender diversity as well as Indigenous rights, to the goals of sustainable development. The Rio Declaration on Environment and Development, Agenda 21 on Environment and Development, the Johannesburg Declaration on Sustainable Development, and the Plan of Implementation of the World Summit on Sustainable Development all recognize the importance of women and Indigenous peoples to sustainable development.

CETA contains chapters which compel the EU and Canada to promote trade that respects the environment and works toward the objectives of Sustainable Development. Such commitments, if respected, will create economic shifts toward renewable energy technologies in order to address climate change. Such a shift from fossil fuels to renewables will create demand for the minerals and metals needed for solar, wind and battery products. Canada has massive reserves and processing capacities for many of the resources needed for the shift to renewable energies, including 14 of the 19 minerals and metals required for the manufacturing of solar panels.

So, while the shift toward sustainable development and low-carbon energy will present a significant opportunity for Canada’s mining industry, the question remains what impact this shift will have on
Indigenous women.

Indigenous women tend to suffer the greatest negative effects of trade liberalization and industrial projects, such as mining, while simultaneously being excluded from the positive effects of trade and industrial activities. This must stop.

The commitments by Canada and the EU to work toward sustainable development demands recognition that Indigenous women have a unique and particular interest in these processes and outcomes. Canada’s domestic policies must be coherent with its international commitments to sustainable development, in both declarations and binding trade agreements, and this requires greater effort as to ensure that the environmental effects of CETA are positive and that the socio-economic opportunities that result from the agreement are shared equally and fairly with Indigenous women.


 

L’AFAC plaide en faveur de l’égalité des sexes et des droits des Autochtones au forum de l’AECG, à Bruxelles

À Bruxelles, aujourd’hui, l’AFAC participait à la première assemblée commune du Forum de la société civile aux termes de l’Accord économique et commercial global (AECG) – l’accord de libre-échange Canada-Union européenne. Cet accord commercial présente une importante opportunité de glissement vers le développement durable et des mesures relatives à la lutte contre les changements climatiques qui auront pour effet de marginaliser davantage les femmes autochtones ou de faire en sorte qu’elles partagent également et équitablement les avantages d’une économie durable à faibles émissions de carbone.

Cette assemblée de délégués de la société civile issus d’organisations de toute l’Union européenne et de partout au Canada a été convoquée pour engager un dialogue sur les aspects de l’AECG relatifs au développement durable. Les organisations constituantes de la société civile qui ont participé à l’assemblée d’aujourd’hui représentent une diversité de secteurs : travail, commerce, protection des animaux et conservation de la nature. La participation de l’AFAC avait pour but d’attirer l’attention sur les répercussions disproportionnées que le commerce peut avoir sur les femmes autochtones et de plaider en faveur d’une interprétation du développement durable reconnaissant l’importance de l’égalité des sexes et le respect des droits des Autochtones.

Pendant toute la durée de ce forum de la société civile et en conversation avec l’ambassadeur du Canada auprès de l’Union européenne, Daniel Costello, avant l’assemblée, l’AFAC a attiré l’attention sur les nombreux documents internationaux qui reconnaissent les engagements de la communauté internationale relativement au développement durable et sur le fait que tous ces documents parlent de l’importance de l’égalité des sexes et des droits des Autochtones.

Par des déclarations internationales et des objectifs communs, la communauté internationale reconnaît constamment l’importance du rôle des femmes et de la diversité des genres ainsi que des droits des Autochtones pour atteindre les objectifs du développement durable. La Déclaration de Rio sur l’environnement et le développement, le programme Action 21 sur l’environnement et le développement, la Déclaration de Johannesburg sur le développement durable et le Plan d’application du Sommet mondial pour le développement durable reconnaissent tous l’importance des femmes et des Autochtones dans l’optique du développement durable.

L’AECG comprend des chapitres qui obligent l’Union européenne et le Canada à promouvoir le commerce de manière respectueuse de l’environnement et à travailler à l’atteinte des objectifs du développement durable. S’ils sont respectés, ces objectifs entraîneront un glissement économique vers des technologies énergétiques renouvelables pour résoudre les problèmes que posent les changements climatiques. Ce glissement des combustibles fossiles vers des combustibles renouvelables entraînera une demande de minéraux et de métaux nécessaires à la production d’appareils qui fonctionnent à l’énergie solaire, éolienne et à piles. Le Canada a des réserves massives et des capacités de traitement pour beaucoup des ressources nécessaires à ce glissement vers les énergies renouvelables, y compris 14 des 19 minéraux et métaux requis pour la fabrication de panneaux solaires.

Ainsi, même si le glissement vers le développement durable et l’énergie à faibles émissions de carbone présente une opportunité considérable pour l’industrie minière du Canada, la question des répercussions de ce glissement sur les femmes autochtones demeure.

La tendance démontre que les femmes autochtones souffrent des principaux effets négatifs de la libéralisation du commerce et de la réalisation de projets industriels comme l’exploitation minière, tout en étant simultanément exclues des effets positifs du commerce et de l’activité industrielle. Il faut que ça cesse.

Les engagements du Canada et de l’Union européenne de favoriser le développement durable exigent la reconnaissance du fait que les femmes autochtones ont un intérêt particulier dans ces processus et ces résultats. Les politiques internes du Canada doivent être en accord avec ses engagements internationaux à l’égard du développement durable, dans les déclarations et les accords de commerce contraignants, ce qui exige un effort plus considérable pour assurer que les effets environnementaux de l’AECG soient positifs et que les femmes autochtones partagent également et équitablement les occasions de développement socioéconomique qui résultent de cet accord.

Inherited Discrimination: The Legacy of the Indian Act

 

Discrimination is unfortunately not a light that we can turn off with just one flick. Despite the Canadian government’s numerous attempts at cleaning up the Indian Act, discrimination still runs rampant throughout it. Even more insidious, new and more pervasive forms of discrimination have emerged over the years.

When the Indian Act came into being in 1876, it stripped Indigenous women of their status and benefits when they married non-status men. Indigenous men, on the other hand, who married non-status women not only kept their status and benefits but even managed to pass these along to their wives and children.

In response to the enfranchisement of women who “married out”, the government brought forth Bill C-31 in 1985 and re-instated these women with 6(1)(c) status. The problem here is that a 6(1)(c) status tells the community that these women married out. To some, they are viewed as traitors. They are seen as “lesser” Indians or “not Indian enough”. Their children often suffer the same discrimination.

What’s more, 1985 amendments recognized that bands have the right to determine their own membership. Because of this, there have been many cases where Indigenous women and their children already living on reserves have lost benefits or have been denied membership. This is perhaps due to bands waiting for new membership codes to pass or perhaps because of discriminatory screening practices which deny women far more often than they deny men.

This stigma would certainly be enough on its own, but both the Inter-American Commission on Human Rights and the United Nations Committee on the Elimination of Discrimination Against Women have found that sex-based inequities within the Indian Act have contributed to the crisis of missing and murdered Indigenous women in Canada. If these women are regarded by the government as second class citizens, a devastating precedent is set: these women are disposable.

The MMIWG crisis has also paved the way for new bureaucratic challenges, as now parents of missing and murdered women are the ones to apply for status on their grandchild’s behalf. Because one must be the parent or legal guardian of a child applicant, grandparents face further red tape.

This is not the only issue Indigenous parents and grandparents can run into when applying for status on behalf of their child or grandchild. For years, unknown parentage has made it incredibly difficult for parents to navigate the already murky process of status registration. In cases of unknown parentage, there was a legal presumption that the unknown parent was non-status. A small victory came forth in 2010, thanks to Sharon McIvor’s hard work; now, an applicant must supply “relevant evidence” of their child’s unknown parentage to be given status.

What’s worse, this burden often falls on the mother’s shoulders as she must prove the paternity of her child; rarely is maternity unknown or questioned. In cases of incest, abuse, rape and prostitution, this makes the process all the more difficult and traumatic.

Indeed, discrimination against Indigenous peoples is not a light switch; it has trickle down effects that last for years, despite seemingly progressive legislation seeking to right what has been wrong.

But don’t lose hope. There is a solution.

NWAC is hopeful that after full-bodied national consultations regarding Bill S-3, the federal government will completely remove all discrimination from the Indian Act to make way for a brighter future for our Indigenous sisters and their descendants.

 

 

A Short History of Sex-Based Inequities in the Indian Act

It has long been known that since its creation, the Indian Act has discriminated against women. For 116 years, a status woman who married a non-status man would lose her status along with treaty rights, health benefits, property rights and the right to reside on reserve. Status men, on the other hand, who married non-status women not only kept their status and rights but actually passed these onto their wives and children.

Naturally, Indigenous communities – particularly women – were angry. Something had to be done.

Baby steps were taken to clean up the Indian Act. In 1970, the Royal Commission on the Status of Women pointed out that there were indeed sex-based inequities embedded in the Indian Act and that legislation should be put in place to repeal these sections. Little more was done.

With the repatriation of the Canadian Constitution in 1982, the tides began to turn and so began consultations and negotiations to bring the Indian Act in line with the new Constitution and the Charter’s sections on gender equality.

Bill C-31 came out of the woodwork three years later, intending to reverse this discrimination; however, it added new levels of discrimination by creating different categories of status.  Women whose status was reinstated through this bill were given second class standing in the form of 6(1)(c) status, while men retained their 6(1)(a) status.

Thus, descendants of reinstated women faced more red tape, more convoluted legislation to decipher and more discrimination, both legislatively and socially. In fact, a 6(1)(c) status tells the community that these women have “married out” or that one’s mother or grandmother has married out, which presents even more opportunity for discrimination.

Almost 30 years later and after more than twenty years of litigation, another piecemeal reform passed, hoping to address the problems in Bill C-31. Bill C-3 was the result of a battle hard won by Sharon McIvor and her son, Jacob Grismer, after the Supreme Court of British Columbia found that the restrictive and discriminatory registration provisions faced by descendants of reinstated women were unconstitutional and violated section 15 of the Canadian Charter of Rights and Freedoms.

As its solution, Bill C-3 gave 6(2) status to the grandchildren of women who regained status under Bill C-31. However, grandchildren who trace Indigenous ancestry through the maternal line are still denied status if they were born before September 4, 1951; thus, Bill C-3 continues the Indian Act’s tradition of legislated sex-based inequities by maintaining both this cut-off date and the status hierarchy put in place in 1985.

As evidenced by the numerous amendments, countless reports and years of exhausting litigation, it becomes clear that the Indian Act is riddled with flaws and discrimination that narrowly focused legislation simply isn’t solving. Experts continue to condemn it as a blatant human rights abuse; the Act has even been described by some as a form of apartheid. So why does it still exist? Efforts to abolish the Indian Act have been met with great resistance, largely due to the rights – albeit limited rights – it gives First Nations and because of the full and proper consultation that would be needed.

Bill S-3 is yet another piecemeal reform put forth by the government as it tries to make sense of the Indian Act in this day and age. The Native Women’s Association of Canada is hopeful that following the Phase 2 consultations taking place this year, the federal government will finally remove all discrimination from the Indian Act and put an end to centuries-long injustice.

Indigenous Human Rights Institutions and the Pathway to Justice

 

 

 

Day Three: Conference on Indigenous Peoples and Human Right

23 February 2018

The Raymond Cormier verdict was a point of passionate discussion and tears during the last day of the conference on Human Rights and Indigenous Peoples. Despite the anger, sadness and frustration resulting from the verdict, the conference continued to explore important principles and concepts for the transition to human rights systems that respect Indigenous rights.

The principle theme of the third day of the conference centred on human rights institutions. A major conundrum that faces human rights bodies in Canada is reconciling the Western nature of important bodies like the Canadian Human Rights Commission and Tribunal and the provincial counterparts with the need for self-governance and self-determination. While the human rights commissions are technically arms-length from government, they are certainly a component of the state apparatus. Regardless, many first Nations, Metis and Inuit communities cannot, in good conscious, accept the authority of non-Indigenous bodies over the governance of human rights in the community.

While there is justified scepticism of non-Indigenous human rights organizations in traditional communities, there is no doubt a pressing need for institutions to advocate for and protect the human rights of Indigenous peoples in their communities.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) must be implemented in accordance with international law and without discrimination. Ensuring the traditional and human rights of Indigenous individuals are respected by Indigenous governments requires third party oversight, as is the case with all governments. The issue is not whether Human Rights institutions are needed in traditional communities, but how these bodies ought to be constituted.

There was a general consensus that, while the non-Indigenous human rights institutions should not, themselves, have a mandate of investigating and adjudicating human rights disputes between indigenous peoples and their governments, there is a supportive role for these institutions in the development and operation of indigenous human rights institutions.

Ultimately, new Indigenous institutions are necessary to provide third party oversight as we transition increasingly toward self-governance models. These institutions will play an important role in promoting education and understanding of the binding nature of human rights at the traditional government level while resolving human rights disputes.

Indigenous women face significant barriers to the free and liberal exercise of their rights as a result of the intersection between their Indigenous status and their sex. Overcoming these challenges to equality requires access to efficient and effective human rights institutions in their traditional communities and in non-Indigenous communities.

This conference was a valuable exercise in exploring the issues and remedies that confront Indigenous peoples in the context of a period of an apparent new dawn for Indigenous rights in Canada. It is important to recognize that this is just the beginning of the dialogue. A long journey remains before Canada arrives at any place resembling a just society, but in the long shadow of colonization, there is hope again.

 

Dark Dawn: The Long Shadow of Injustice Persists

Day Two: Conference on Indigenous Peoples and Human Rights

22 February 2018

Important discussions were had about the path toward human rights systems that respect the rights of Indigenous peoples at the second day of the Indigenous rights conference hosted by the Native Canadian Centre of Toronto (NCCT) and organized by the Ontario Human Rights Commission (OHRC) and Osgoode Hall Law School.

While it is not the purpose or expectation of the conference to solve all the immense human rights issues confronting Indigenous peoples in Canada, the conference is certainly a valuable exercise in identifying the roots of the issues and defining some potential prescriptions to correct these wrongs.

But while the presentations by, and discussions with, exceptionally well-qualified and brilliant scholars, legal professionals and community leaders inspired confidence that this conference could produce some valuable results, the verdict delivered at a Winnipeg courtroom 2,000km away reminds us of the intimidating scope of this challenge.

The Raymond Cormier not guilty verdict in the death of 15-year-old Tina Fontaine comes only two weeks after an all-white jury in Saskatchewan acquitted Gerald Stanley in the shooting death of 22-year-old Colten Boushie. The failure of the criminal justice system to deliver justice for Indigenous peoples is a stark contrast to the discussions at the NCCT on the high rates of incarceration of Indigenous peoples and the need for traditional justice programs. While the criminal justice system continues to operate to undermine the unique place of Indigenous peoples in Canada, these decisions evidence the failures of the system to deliver results for Indigenous victims of crime.

We had the privilege of hearing Romeo Saganash (NDP – Abitibi-Baie James – Nunavik – Eeyou) speak about his work on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and his Private Member’s Bill C-262 which will see the full implementation of the UNDRIP domestically.

The great potential for real change inspires hope. The rhetoric from the government that a new framework to ensure Justice for Indigenous peoples incites optimism; however, the continued violence against indigenous women and girls – the unfathomable reality that little girls can be murdered without consequence – should make us shutter in disgust and shame.

This is the bipolar nature of justice for Indigenous peoples in this country. The weight of unrelenting oppression often depresses hope until a new sign of coming reconciliation and decolonization emerges. This gives rise to near-manic excitement for change, until the inevitable return of the dark shadow of systemic marginalization and overt racism sharply curb the tide of optimism.

Empty gestures and dishonest consultations pave the road of Indigenous-State relations in Canada. Unfortunately, the continued failure of the government to back up the promises of reconciliation with meaningful action will ensure our society continues to be afflicted by reprehensible racism that claims the safety and lives of Indigenous women and girls across the country.

The second day of this conference on the rights of Indigenous peoples inspired hope. Reminders of injustice persist.

 

A New Dawn: Dialogue Shift in indigenous Rights

Day One: Conference on Indigenous Peoples and Human Rights

21 February 2018

The Ontario Human Rights Commission (OHRC) and Osgoode Hall Law School invited a representative from the Native Women’s Association of Canada to participate in a three-day conference on Indigenous rights at the Native Canadian Centre of Toronto (NCCT). The purpose of the conference was to explore Indigenous perspectives on human rights, how federal and provincial human rights institutions can advance human rights for Indigenous peoples, and how the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) can be most effectively implemented. OHRC and Osgoode Hall brought together human rights and indigenous law experts from across the province to participate in the dialogue.

The dialogue at the Conference took place at a pivotal moment in the history of Canadian Indigenous-state relations. The Honourable Romeo Saganash MP, has tabled a Private Member’s Bill (C-262) seeking to conform Canadian law with the UNDRIP. The Private Member’s Bill has received support from the governing Liberals. Prime Minister Justin Trudeau has also committed to a new legal framework that guarantees the rights of Indigenous people in Canada be respected.

This apparent dawn for a new era for Indigenous rights is emerging from a very long and dark history that continues to impose immense barriers and burdens on Indigenous peoples in Canada.

This country’s slow march to reconciliation is laden with the greatest social and economic issues of our time: Generations of survivors of residential schools continue to experience lasting trauma from numerous and severe abuses; an epidemic of violence against indigenous women and girls deprives these women and children of their right to security; colonial legislation designed to eliminate First Nation identity exacerbates social and psychological trauma for individuals, families and communities; and systemic and overt racism continues to deny individuals and communities the educational and employment opportunities needed to break the relentless cycle of poverty.

This supposed new dawn is inspiring hope for those who have endured the greatest violations of their human rights by the state. The hope is fragile and people are rightly sceptical, but there is no doubt that if ever there was a time to hope for a shift to a new, respect-based era of nation-to-nation relations, that time is now.

During the first day of the Conference we heard from Indigenous leaders, legal experts and respected scholars. While there is clear disagreement on some concepts, such as the legal character of the UNDRIP or how the human rights of Indigenous peoples can best be protected, there is consensus that major changes are needed for the government’s actions to meet its rhetoric. Whether those changes demand a complete reconstruction of the Canadian governance framework, or whether strategic changes can produce the requisite comprehensive reforms are issues that call for further discussions.

The dialogue taking shape at the NCCT on Indigenous Peoples and Human Rights is an important early step in the new dawn of Indigenous rights in Canada – if only for the purpose of discovering if we may have entered a new place and a new march has begun.

 

 

Dark Dawn: The Long Shadow of Injustice Persists

Day Two: Conference on Indigenous Peoples and Human Rights

22 February 2018

Important discussions were had about the path toward human rights systems that respect the rights of Indigenous peoples at the second day of the Indigenous rights conference hosted by the Native Canadian Centre of Toronto (NCCT) and organized by the Ontario Human Rights Commission (OHRC) and Osgoode Hall Law School.

While it is not the purpose or expectation of the conference to solve all the immense human rights issues confronting Indigenous peoples in Canada, the conference is certainly a valuable exercise in identifying the roots of the issues and defining some potential prescriptions to correct these wrongs.

But while the presentations by, and discussions with, exceptionally well-qualified and brilliant scholars, legal professionals and community leaders inspired confidence that this conference could produce some valuable results, the verdict delivered at a Winnipeg courtroom 2,000km away reminds us of the intimidating scope of this challenge.

The Raymond Cormier not guilty verdict in the death of 15-year-old Tina Fontaine comes only two weeks after an all-white jury in Saskatchewan acquitted Gerald Stanley in the shooting death of 22-year-old Colten Boushie. The failure of the criminal justice system to deliver justice for Indigenous peoples is a stark contrast to the discussions at the NCCT on the high rates of incarceration of Indigenous peoples and the need for traditional justice programs. While the criminal justice system continues to operate to undermine the unique place of Indigenous peoples in Canada, these decisions evidence the failures of the system to deliver results for Indigenous victims of crime.

We had the privilege of hearing Romeo Saganash (NDP – Abitibi-Baie James – Nunavik – Eeyou) speak about his work on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and his Private Member’s Bill C-262 which will see the full implementation of the UNDRIP domestically.

The great potential for real change inspires hope. The rhetoric from the government that a new framework to ensure Justice for Indigenous peoples incites optimism; however, the continued violence against indigenous women and girls – the unfathomable reality that little girls can be murdered without consequence – should make us shutter in disgust and shame.

This is the bipolar nature of justice for Indigenous peoples in this country. The weight of unrelenting oppression often depresses hope until a new sign of coming reconciliation and decolonization emerges. This gives rise to near-manic excitement for change, until the inevitable return of the dark shadow of systemic marginalization and overt racism sharply curb the tide of optimism.

Empty gestures and dishonest consultations pave the road of Indigenous-State relations in Canada. Unfortunately, the continued failure of the government to back up the promises of reconciliation with meaningful action will ensure our society continues to be afflicted by reprehensible racism that claims the safety and lives of Indigenous women and girls across the country.

The second day of this conference on the rights of Indigenous peoples inspired hope. Reminders of injustice persist.

 

Indigenous Human Rights Institutions and the Pathway to Justice

Day Three: Conference on Indigenous Peoples and Human Rights

23 February 2018

The Raymond Cormier verdict was a point of passionate discussion and tears during the last day of the conference on Human Rights and Indigenous Peoples. Despite the anger, sadness and frustration resulting from the verdict, the conference continued to explore important principles and concepts for the transition to human rights systems that respect Indigenous rights.

The principle theme of the third day of the conference centred on human rights institutions. A major conundrum that faces human rights bodies in Canada is reconciling the Western nature of important bodies like the Canadian Human Rights Commission and Tribunal and the provincial counterparts with the need for self-governance and self-determination. While the human rights commissions are technically arms-length from government, they are certainly a component of the state apparatus. Regardless, many first Nations, Metis and Inuit communities cannot, in good conscious, accept the authority of non-Indigenous bodies over the governance of human rights in the community.

While there is justified scepticism of non-Indigenous human rights organizations in traditional communities, there is no doubt a pressing need for institutions to advocate for and protect the human rights of Indigenous peoples in their communities.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) must be implemented in accordance with international law and without discrimination. Ensuring the traditional and human rights of Indigenous individuals are respected by Indigenous governments requires third party oversight, as is the case with all governments. The issue is not whether Human Rights institutions are needed in traditional communities, but how these bodies ought to be constituted.

There was a general consensus that, while the non-Indigenous human rights institutions should not, themselves, have a mandate of investigating and adjudicating human rights disputes between indigenous peoples and their governments, there is a supportive role for these institutions in the development and operation of indigenous human rights institutions.

Ultimately, new Indigenous institutions are necessary to provide third party oversight as we transition increasingly toward self-governance models. These institutions will play an important role in promoting education and understanding of the binding nature of human rights at the traditional government level while resolving human rights disputes.

Indigenous women face significant barriers to the free and liberal exercise of their rights as a result of the intersection between their Indigenous status and their sex. Overcoming these challenges to equality requires access to efficient and effective human rights institutions in their traditional communities and in non-Indigenous communities.

This conference was a valuable exercise in exploring the issues and remedies that confront Indigenous peoples in the context of a period of an apparent new dawn for Indigenous rights in Canada. It is important to recognize that this is just the beginning of the dialogue. A long journey remains before Canada arrives at any place resembling a just society, but in the long shadow of colonization, there is hope again.

 

Blog 2 S-3: Making Sense of “6(1)(a) All the Way”

 

Can you imagine being only “half” Canadian? Imagine your father is Canadian, but your mother had emigrated from another country. Upon birth, you are assigned half of a Canadian citizenship. Your children’s potential Canadian citizenship hangs in the balance, dependent entirely on the person with whom you choose to parent.

Does this even make sense?

Would you be surprised to learn that Indigenous peoples in Canada have faced similar barriers in passing status onto their children? Would you be disheartened to find out that it is predominantly women who have been given “lesser” status because of a hierarchy imposed in 1985 which grants 6(1)(a) status to Indian men, yet a less conferrable 6(1)(c) status to women?

What this means in practice is what is referred to as the second generation cut-off rule: after two generations of a status parent having children with a non-status parent, their descendants lose status. The first generation enjoys 6(1) status, while the following generation is bumped down to 6(2) and finally, the third generation is bumped out entirely.

Bill S-3, while initially working to remove all sex-based inequities within the Indian Act, completely overlooks this unfortunate differentiation.

The “6(1)(a) All the Way” amendment remedies a complex, overwhelming and confusing distinction that has plagued Indigenous peoples, especially Indigenous women, for far too long. Essentially, the amendment looks to extend 6(1) status to all individuals who can trace their ancestry to at least one person who is or would ever have been entitled to be a registered Indian before 1985. The Senate put forth Bill S-3 in May 2017 with this amendment, but Minister Bennett stripped it shortly after.

The amendment is not a new idea; the Liberals proposed it in Opposition in 2010. When the former Conservative government committed to a second round of consultations in amending the Indian Act by way of Bill C-3 in light of Sharon McIvor’s case, Liberal MP Todd Russell proposed the amendment to rectify issues caused by the 1951 cut-off date. It was quickly ruled inadmissible by the Speaker of the House as “being beyond the scope of Bill C-3”.

Once again, the government chose to write the bill in a way that responded solely to the ruling in McIvor’s case, pushing the problem onto a future to-do list, as even Russell stated that “hopefully in the future we will be able to deal with these matters.” That time is now.

NWAC is engaging in national consultations to get your input on Bill S-3 and to tell our government to remove all discrimination from the Indian Act right now. Let’s end the tired tradition of telling indigenous peoples “tomorrow” without actually following through.

 

Delayed Justice, a Bandage Solution and the Gaps in Bill S-3

 

The year is 1876. Queen Victoria is head of state; women can’t vote and the Indian Act – a unanimously paternalistic, racist and colonial piece of legislation – is created with the purpose of assimilating and eliminating “Indians”.  O Canada.

The year is now 2018. Our Prime Minister has declared himself a feminist; women are better represented in our legislatures and yet, the Indian Act remains fixed in Canadian law, having now been the subject of numerous piecemeal reforms because of the gross amount of sex-based discrimination within it. O Canada, indeed.

Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada, is one of those piecemeal reforms. Having passed in December 2017, the bill aims to eliminate the long-standing discrimination Indigenous women face in applying for Indian status and yet falls tragically short of its intended purpose.

Granted, the bill will extend status eligibility to individuals with unstated or unknown parentage; it addresses the differential treatment between cousins due to their grandparent’s sex and children who lost status because of their mother’s remarriage to a non-status person. Its amendments also grant status to women who were born out of wedlock between 1951 and 1985 and denied status as a result. That’s an estimated 28,000-35,000 additional Canadians.[1]

Not only does this leave thousands of Indigenous persons in limbo, but the bill also neglects to address several other forms of legislated sex-based discrimination: the existing hierarchy between men with 6(1)(a) status and re-instated Bill C-31 women with less conferrable 6(1)(c) status as well as issues related to sperm donors, surrogacy and adoption, such as a child adopted into an Indigenous family who receives ‘higher’ status than an Indigenous child born into an Indigenous family. Unstated paternity is still problematic, as it requires the applying individual to supply a number of documents that are difficult to access; band membership rules leave the opportunity for communities to discriminate against women as they see fit and the 1951 cut-off is still in place.

But don’t worry – the government will be engaging in consultations with Indigenous groups to discuss barriers and discrimination related to status registration. That is to say, the government is consulting Indigenous peoples on just how much discrimination against them is acceptable.

A popular recommendation regarding the rampant sex-based discrimination inherent to the Indian Act is the “6(1)(a) All the Way” amendment, which would entitle all status women and their descendants to 6(1)(a) status on the same footing as their male counterparts.

Another approach is to develop a full-scale realization of the nation-to-nation relationship for which the Liberal government heavily campaigned. This would mean dismantling the Indian Act entirely, in favour of a new relationship between the Canadian government and Indigenous peoples.

The Native Women’s Association of Canada is hopeful that after Phase 2 Consultations, the federal government will remove all discrimination from the Indian Act to make way for a new horizon of Indigenous sovereignty and self-determination.

[1] Canada. Office of the Parliamentary Budget Officer. Bill S-3: Addressing sex based inequities in Indian registration. [Ottawa]. 5 December 2017. http://www.pbo-dpb.gc.ca/web/default/files/Documents/Reports/2017/Bill%20S-3/Bill%20S-3_EN.pdf

Protesting Mistakes: Gender and Culture in the Review of Indian Register Decisions

 

The convoluted and confusing pathways to “Indian” status under the Indian Act are made even more difficult by the lack of clarity many people experience in decisions on their applications for status. Indigenous women face disproportionate hurdles when challenging Indigenous and Northern Affairs Canada (INAC) decisions because they are some of the most marginalized people in Canada and are often tasked with amassing genealogical evidence and navigating complex administrative processes to ensure their children have access to services in their community.

The Registrar is the INAC officer responsible for maintaining the Indian Register and Band Lists and making determinations on status applications.

When the Registrar makes the wrong call on “Indian” status, the Act provides an opportunity to challenge those decisions – but the clock is ticking.

If an individual is denied status or granted the wrong category of status as a result of a mistake by the Registrar, that person or their representative can “protest” that decision (Section 14.2 Indian Act).  This protest, however, must be made within three years of the decision and the Individual has the responsibility of proving that the decision is wrong.

Once a protest is made, the Register must conduct an investigation and make a decision. If the individual disagrees with the decision on the Protest, they have a window of only six months to appeal the decision in court.

Indigenous peoples in Canada face widespread discrimination as well as socio-economic disadvantage. The complex and often discriminatory processes for applying for status under the Act creates unnecessary and additional challenges for Indigenous peoples to gain access to the housing and services to which they are entitled.

Indigenous women are disproportionately burdened by the complexities of the registration processes as they are often the parent that assumes the responsibility of acquiring status for the children.

Understanding the complex and convoluted pathways to status under the Act requires a great deal of research and energy. Challenging decisions of the Registrar on the accuracy of these decisions requires significantly more time and energy and appealing Protest decisions in court almost certainly requires the costly services of a lawyer.

While the there technically exists legislative mechanisms for challenging the correctness of the Registrar’s decisions, asking some of the most marginalized people in society to navigate these complex, non-Indigenous procedures is insensitive and arduous.

The Protest and appeal processes for challenging these decisions should consider the social, cultural and gender realities of the persons and families affected by these decisions. When Indigenous women and their children are denied their status on the basis of convoluted and illegible legislation they, at the very least, deserve access to a just and accessible review process.

 

Balancing the Scales of Justice: Bill C-262’s implementation of UNDRIP is a necessary step toward reconciliation

 

NDP MP Romeo Saganash – Abitibi, James Bay, Nunavik, Eeyou – introduced his private member’s bill, Bill C-262, to the House of Commons on April 21, 2016. Bill C-262 is one of the most important Bills before Parliament, and the fate of this proposed legislation will have far-reaching impacts on Canada’s reconciliation efforts.

The Bill, which will require conforming Canada’s legislation with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), is a tall order. Among other things, UNDRIP: C

  • Calls for the recognition of the indigenous right to self-governance and the right to withhold consent for state actions that may impact on indigenous rights or interest;
  • Prohibits acts of genocide and assimilation;
  • Requires the state to take measures to protect Indigenous women and children from violence; and
  • Affirms that Indigenous rights are guarantees equally to men and women.

The UNDRIP, therefore, requires Canada to recognize and respect the unique places and circumstances of Indigenous peoples in Canadian society and government.

Free, prior and informed consent is a powerful right that will affect the authority of the state to make decisions that may impact Indigenous peoples. How decisions are to be made in an UNDRIP-conforming governance structure is unclear. Ending the cultural genocide requires extensive legislative amendments and the establishment of many modern treaties. Protecting Indigenous women and children from violence will likely be costly and require systemic changes to state institutions new and old.

Implementing UNDRIP and ensuring that the laws of Canada respect the Declaration will be a long and difficult road, but this is a necessary road on the way to reconciliation. That these processes will at times be painful, adversarial and expensive is no excuse to shy away from the demands of justice and human rights.

Bill C-262 is one step on a long journey toward a better Canadian society – a society in which respect for the sphere of traditional government is on par with federal and provincial spheres. Taking on this défi national requires conviction and strength and it is a challenge that the political leaders in Canada may not have the character to wrestle honestly; however, in the approach to Bill C-262, it is vital that Parliament appreciate the weight of these matters.

Full implementation of UNDRIP will constitute one of the greatest leaps toward reconciliation in Canadian history and significantly address the multitude of mechanisms that marginalize Indigenous peoples and that subject Indigenous women and children to poverty and violence. Denying Indigenous peoples the rights to which they are entitled at international law will perpetuate the marginalization of First Nations, Inuit and Métis peoples in Canada and obstruct the fair allocation of weights on the scales of Canadian justice for generation to come.

 

Toward UNDRIP: Bill C-262 and Partisan Attacks on Indigenous Rights

Parliament is debating a Private Member’s Bill introduced into the House by Romeo Saganash (NDP) in April of 2016. The proposed legislation, Bill C-262, would require the conformity of all of the laws of Canada with the United Nations Declaration on the Rights of Indigenous Peoples. While the Government was initially opposed to the Bill, they committed in November of 2017 to support the legislation.

On second reading of the Bill on February 7, 2018, the House voted in overwhelming majority to support the proposed legislation, except every single Conservative Party of Canada MP, all of whom voted against.

The UNDRIP, itself, is a non-binding international legal document; however, most of the principles expressed in the UNDRIP are binding principles of international law, such as the rights of all peoples to self-determination and the right to be free from genocide. The Saganash Bill essentially takes this codification of Indigenous rights at international law and requires the strict conformity of Canadian legislation with these rights. So why would anyone oppose conforming domestic law with Indigenous rights?

You’d better take a moment to stretch, because there is some serious contortion involved here.

During the House’s February 5, 2018, MP Mark Strahl (CPC) argued that there are principles under UNDRIP, particularly the right to give or withhold free, prior and informed consent (FPIC), that are simply incompatible with Canada’s domestic law. According to Mr. Strahl, the Canadian courts and Parliament have spent decades developing law on state-Indigenous matters, and that implementing the UNDRIP would be inconsistent with this law.

Mr. Strahl went on to argue that the UNDRIP would give Indigenous peoples a “veto” over state decision making that other groups do not have and that more time is needed to understand what the UNDRIP principles really mean in application in Canada.

While the Conservative position that there is uncertainty in the way some principles of the UNDRIP can and should be implemented in Canada is true, that argument misrepresents what Bill C-262 actually does, and the position that FPIC is inconsistent with domestic law is entirely misleading. There is, after all, nothing in the constitution which would prohibit Parliament from ensuring greater guarantees for Indigenous rights than those provided under the Constitution.

As Linda Duncan (NDP) pointed out in the House debate, Bill C-262 requires that any legislative reforms for the implementation of the Declaration be undertaken in consultation and collaboration with aboriginal peoples. The reason Parliament cannot exactly define every UNDRIP principle and its application domestically is because the principles cannot be applied uniformly. Indigenous peoples in Canada are not one harmonious group and the application of UNDRIP must respect that diversity.

Bill C-262 is the beginning of the process. It is a legislative commitment to conforming Canada’s laws with Indigenous rights and sets out consultation, collaboration and reporting requirements to achieve this goal.

The Conservative Party of Canada is working hard to distort the issues around the implementation of UNDRIP, but the reality is that opposition to Bill C-262 is not a defence of domestic law; it is an attack on the basic international principles of Indigenous rights.

UPDATE – On May 8, 2018, Bill C-262 was passed by the Standing Committee on Indigenous and Northern Affairs.

Consulting and Colonizing

Has the Government pre-determined its response to consultation on discrimination in the Indian Act registration provisions?

On December 4th, Parliament passed Bill S-3, An Act to amend the Indian Act in response to the Superior Court of Quebec in Descheneaux c. Canada.

This Bill continues to perpetuate discrimination in the Indian Act on the basis of age, sex and marital status and exposes an apparent lack of sincerity on the part of the government in promised further consultation.

Bill S-3 makes no effort to conform the registration provisions of the Indian Act with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and contains provisions that suggest the government has per-determined its response to consultations with Indigenous peoples on these matters. If this government has already determined the actions it will take following consultation, this casts significant doubt on its intention to engage in these consultations in good faith.

Over the years, the courts have struck down some of the registration provisions in the Indian Act that violate Indigenous people’s equality rights under section 15 of the Charter, yet the government limits these legislative amendments strictly to the discrimination found in each case. Despite valiant efforts by some parliamentarians to include clauses to Bill S-3 that would effectively remove all discriminations from the Indian Act registration provisions – commonly referred to as “6(1)(a) all the way” – the Bill passed the House of Commons without these amendments.

Under Bill S-3, the government will continue to determine who does and does not qualify for “Indian” status.

Recently, the Government has changed its initial opposition to Romeo Saganash’s Private Member’s Bill, Bill C-262. Justice Minister Wilson-Raybould announced in November that the government now supports the Bill, which requires the conformity of all of Canada’s laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) – including the Articles 33 right of indigenous peoples to determine their own identity and membership. How the government intends to reconcile Article 33 of UNDRIP with the provisions of the Indian Act which vest the authority to decide the status of indigenous peoples with the federal government is, at best, unclear.

Bill S-3 contains layered coming into force provisions that will see amendments to Indian Act registration provisions in two stages. The first stage amendments will address only that discrimination which the Court found to be unconstitutional in Descheneaux; whereas the second stage amendments will address a broader range of discrimination under these provisions, though not all discrimination.

If Bill S-3’s second stage amendments are, in fact, the government’s intended response to coming consultations on discriminatory registration provisions, this suggests that the government may have already decided how it will respond to the consultation processes, regardless of what it learns. Is this what the government considers to be meaningful consultation?

Removing all discrimination from the Indian Act is clearly the right thing to do. Consultation in achieving this objective is only laudable if that consultation is done meaningfully and in good faith. The government must not undermine the value and importance of consolation by using it as a stall tactic.