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Pam Palmater

Tag: Sharon McIvor

  • Federal Budget 2019: Indigenous Women and Children Left Behind – Again

    Federal Budget 2019: Indigenous Women and Children Left Behind – Again

    As expected, the Assembly of First Nations was first out of the gate offering glowing praise for this Liberal government’s federal budget, followed shortly thereafter by the Metis National Council and Inuit Tapiriit Kanatami – the three male-dominated national Aboriginal organizations. Their organizations have seen substantial increases in funding for their political organizations in recent years. Meanwhile, the Native Women’s Association of Canada – the only political organization representing Indigenous women at the national level – issued its own press release criticizing the government for failing Indigenous women. They accused the federal government of, once again, ignoring the pressing needs of Indigenous women and in so doing, not only hampering reconciliation but breaching their core human rights. NWAC is especially aggrieved about this lack of funding for Indigenous women and families, given the urgent need to address murdered and missing Indigenous women and girls.

    The exclusion of Indigenous women and girls as a priority in this federal budget is a glaring example of the ongoing racism and sexism that is so deeply embedded in Canada’s laws, policies, practices and institutions – the very same racism and sexism the Liberal government claims to be against. When the federal government announced the National Inquiry into Murdered and Missing Indigenous Women and Girls in 2016, former Liberal Minister for the Status of Women, Patty Hadju, spoke of the urgent need to address the longstanding racism and sexism embedded in Canada’s institutions.  Yet, this urgent policy objective is not reflected in any substantive way in federal budget 2019. In fact, there are no funds allocated for a comprehensive plan to address violence against women generally, and no funds for a targeted comprehensive of plan of action to address violence against Indigenous women and girls specifically. Indigenous and women’s organizations have called on Canada to take comprehensive action now to implement recommendations from the United Nations treaty bodies to reduce murdered and missing Indigenous women and girls before the national inquiry’s report is released.

    http://fafia-afai.org/en/press-release-coalition-calls-for-urgent-action-to-stop-violence-against-indigenous-women-and-girls-%EF%BB%BF/

    The National Inquiry’s report is due out in less than a month and there is no budget set aside to implement whatever recommendations come from that report either. The limited funds for commemoration seems not only inadequate, but also premature given that the crisis has not abated. Where is the urgent and sustained help for the many families deeply impacted by the abuse, exploitation, trafficking, disappearances and murders of thousands of Indigenous women and girls?

    A particularly shocking exclusion from the budget is the lack funding for First Nations child and family services to address the crisis of First Nations children in foster care. Former Minister of Indigenous Services, Jane Philpott called the staggering statistics related to First Nation kids in care a “humanitarian crisis” – comparing it to the residential school system. She pledged to work with First Nations to address the critical need for funding to prevent apprehensions and address the root causes of over-representation, which include conditions of poverty. This glaring omission from the budget is confounding given the fact that Parliament had previously committed to targeted funding to accompany Bill C-92 An Act respecting First Nations, Inuit and Metis children, youth and families, which already been introduced in Parliament. Although the federal government promised significant funding to support Bill C-92 – there is no specified funding either in the bill or the budget. Not a single dollar has been allocated to support First Nations develop their own laws and institutions specific to child and family services, hire and train staff, as well as provide the much-needed wrap around social, educational and health services to families in need as advocated in the Spirit Bear Plan.

    https://fncaringsociety.com/sites/default/files/Spirit%20Bear%20Plan%20%28EN%29.pdf

    Dr. Cindy Blackstock, the head of the First Nation Child and Family Caring Society welcomed the additional funding for Jordan’s Principle, however explained that it does not go far enough and many children – like non-status Indian children are still excluded. Jordan’s Principle is a child-first principle which aims to ensure First Nation children can access all public services in a culturally-appropriate way, without any delays or hurdles because they are First Nations. The federal budget pledges $1.2 billion over three years. However, the flat funding does not take into account population growth over the funded years, or the rising cost of inflation. There are also no additional funds to address the thousands of First Nation children who will be newly entitled to Indian status as a result of Bill S-3 An Act to Amend the Indian Act (elimination of sex-based inequities in registration) or from the revised unstated paternity policy in relation to registration. Both of these issues are the result of the federal government losing two court cases (Descheneaux and Gehl) on discrimination against First Nations women and children.

    Yet, despite the legal obligation to provide funding, none has been identified in this budget. This limited funding is not an act of reconciliation. The federal has been dragged to this point – kicking and screaming – by the Canadian Human Rights Tribunal, with no less than five non-compliance orders for failing to end discrimination in funding of First Nation children in care. So, while the extra funding is welcome, it is not a “gift”.

    A particularly disturbing omission is the lack of targeted funding for First Nation women and their descendants who would newly entitled to Indian status under Bill S-3. The bill has been in place for a year and will add thousands to the registration list, yet no new funds have been identified for education, health or housing for individuals or First Nations. This is despite the fact that the United Nations just agreed with Sharon McIvor that the Indian Act still discriminates against the descendants of First Nations women who married-out, and directed Canada to provide full reparation. This means registering them and providing much-needed social programs. Similarly, there is no targeted funding to address the increase in registration due to Lynn Gehl’s successful court case against Canada for it’s discriminatory unstated paternity policy. At every turn, First Nations women and children are forced to wait for justice and are denied their basic human rights and access to the same programs and services available to their fathers, brothers and uncles.

    One of the most under-served categories of First Nations are those living off-reserve. Approximately 33% of First Nations live off-reserve in Canada, and a disproportionate number of families are headed by single Indigenous mothers. Metis and Inuit don’t live on reserves at all – therefore the majority of Indigenous peoples live off-reserve. The amount allocated in the budget is a mere $60 million over 5 years to help fund off-reserve organizations like native friendship centres. That is barely $10 million a year – nowhere near what is needed to address urgent housing, education, and health needs for more than 800,000 Indigenous peoples living off-reserve – let alone the growing homelessness crisis plaguing Indigenous peoples. Niigaan Sinclair reports in the Winnipeg Free Press that the chronic under-funding is made worse by the fact that federal bureaucrats and other consultants and contractors, suck up nearly 50% of all funding appropriated by Parliament for First Nations. With three departments now directly responsible for Indigenous and Northern Affairs, who is to say whether First Nations will see much of this funding at all, let alone Indigenous women and children.

    https://www.winnipegfreepress.com/opinion/columnists/new-dollars-sure-but-same-political-game-507393892.html?fbclid=IwAR3jyFhBNuvatzHwVlW-JLWn28sw4MWAdhaGPfD2_strkkdgeiRGRJ0nQsU

    While there are many other problems with federal budget 2019, the most glaring omission is the exclusion of Indigenous women and children. Back in 2016, the Liberal government promised a gender based analysis for future budgets. Yet, this budget lacks a gender-based, human rights-based and Indigenous rights-based analysis that focuses on not just policy objectives like reconciliation, but concrete domestic and international legal obligations. There is no mention of returning lands and resources back to First Nations, no mention of a financial plan in relation to treaty implementation or how the federal government will ensure Indigenous women’s voices are at the many negotiating tables they fund. This budget is a disgrace and does little to address any of the pressing Indigenous issues impacting Indigenous women and children like kids in care, murdered and missing Indigenous women, over-incarceration, homelessness, unequal access to Indian status, poverty and poor health outcomes. Trudeau makes good use of flowery speeches and tearful apologies to Indigenous peoples,  but has left Indigenous women and children far behind – again.

    Perhaps Prime Minister Trudeau should give some Indigenous women a call and figure out how to amend the budget so it better reflects the law in this country. At least, that’s what a feminist Prime Minister would do.

    APTN Panel discussion on Federal Budget 2019 and what it means for Indigenous Peoples:

    https://tinyurl.com/y689zmyh

  • What You Need to Know About Sharon McIvor’s Major UN Victory on Indian Status

    What You Need to Know About Sharon McIvor’s Major UN Victory on Indian Status

    (Picture of Sharon McIvor and I at the United Nations in Geneva)

    Sharon McIvor has won yet another landmark legal victory for First Nations women – this time at the United Nations Human Rights Committee (UNHRC). On January 14, 2019, the UNHRC released their decision which found that Canada still discriminates against “Indian” women and their descendants in the registration provisions of the Indian Act. Despite the fact that Sharon had already proven her discrimination case at trial and on appeal here in Canada, the federal government refused to eliminate all the remaining sex discrimination from the Act. This meant that Sharon and her descendants still have lesser or no Indian status as compared to her brother and his descendants – simply based on sex. Sharon was therefore forced to bring a human rights claim to the UNHRC under the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). The UNHRC found Canada had violated Sharon’s human rights and directed Canada to provide an effective remedy for Sharon McIvor, her descendants, and others who have suffered the same discrimination.

    It is important to note that Canada is bound by this decision. The ICCPR came into force for Canada on August 19, 1976 and Canada has agreed to be bound by the jurisdiction of the UNHRC to make decisions on matters coming before it. This means that Canada has chosen to be bound by the rights contained within this Covenant for the benefits of all those in Canada. In this case, the UNHRC found that Canada had violated Sharon’s human rights under articles 3 and 26, read in conjunction with article 27 of the ICCPR.

    Article 3 guarantees the equal right of men and women to enjoy the rights contained in the ICCPR. Article 26 provides that all people are equal under the law and specifically prohibits discrimination on the basis of race, sex, birth or other status. These two articles were considered in conjunction with article 27 which provides that ethnic minorities within States shall not be denied their right to enjoy their culture in community with other members of their group. The UNHRC found that Canada had violated Sharon’s rights under all three articles and directed Canada to do make “full reparation” to Sharon, her descendants and others in her position. Canada was directed to:

    (1)   Register all those like Sharon and her descendants, under section 6(1)(a) of the Indian Act;

    (2)   Take steps to clean up any residual discrimination within First Nation communities arising from sex discrimination in the Indian Act; and

    (3)   Take any additional steps necessary to avoid similar violations in the future.

    The federal government has been given a 180 days to inform the UNHRC about how it will implement this decision. The good news is that the federal government has the capacity to comply with the first part of the decision this month. The federal government already drafted amendments to the Indian Act’s registration provisions in Bill S-3 that would remove the remaining sex discrimination raised by Sharon McIvor’s case. The problem is that Parliament didn’t enact those provisions into force. While all the other amendments contained within Bill S-3 were brought into force in 2018, they purposely left our remedy for sex equality for “someday” – a hypothetical right that we can only hope is fulfilled someday. First Nations women deserve better than this.

    While the Indian Act’s registration provisions have a long, complicated history, and the various amendments made over time, including Bills C-31, C-3 and the most recent S-3 have created a complex mess of criteria almost impossible to understand; the core issue is simple. Indian women who married non-Indians and their descendants have lesser or no status compared to Indian men who married non-Indians and their descendants. Sex discrimination in federal legislation, like the Indian Act, is against Canadian law as well as international human rights laws to which Canada has agreed to be bound. There is simply no legal justification for continuing to deny the basic right of sex equality to First Nation women and children. To do so makes the federal government an outlaw – both in Canada and internationally.

    The question now is whether the self-professed “feminist” Prime Minister Justin Trudeau and his Liberal government will abide by the UNHRC decision or continue to violate the core human rights of First Nations women and children. Reconciliation with First Nations demands immediate implementation of this decision, but the Liberal (and Conservative) record is very poor when it comes to respecting the human rights of First Nations women. They have the power to do it – but it always has been, and always will be, a matter of political will.

    Sharon has sacrificed more than 33 years to this battle to protect the rights of First Nation women and our children. It is because of Sharon that I have a political voice as a First Nations woman. Implementing this decision will not only mean that my children will finally be able to be registered and included as members of my First Nation, but Sharon and I, and thousands of others like us, will finally be treated equally with our First Nation brothers.

    Canada cannot claim to stand as a champion of human rights in the global context while continuing to deny First Nations women and children basic human rights. Reconciliation requires shedding the hypocritical rhetoric and taking action to do what is morally right and legally required.

    The world is watching Canada. Here is our press conference calling on Canada to abide by UN decision and end sex discrimination: https://youtu.be/gy9evq7a6hg

    Link to the UNHRC decision.

    Link to CBC article about the case: https://www.cbc.ca/news/indigenous/indian-act-sex-discrimination-un-committee-1.4982330

  • 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. 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 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.

    http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/bird1970-eng/bird1970-eng.htm

    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;

    https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/5261/index.do

    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;

    http://hrlibrary.umn.edu/undocs/session36/6-24.htm

    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;

    http://laws-lois.justice.gc.ca/eng/Const/page-15.html

    1985 – Bill C-31 amends the Indian Act in response to the Lovelace case to restore Indian status and band membership to Indigenous women who lost it through marrying out, but the women were re-instated under section 6(1)(c), instead of full 6(1)(a) status and thus their entitlement to transmit status was more restricted than their Indian male counterparts. They could transmit status to their children [albeit only half status under section 6(2)] but not their grandchildren;

    Section 6(1) status means you can pass on status to your children regardless of who you marry/partner; section 6(2) status means you cannot pass on status on your own – you must parent with another status Indian or your children have no status.

    1985- 2010 – Sharon McIvor (Lower Nicola Indian band) challenges the ongoing (residual) gender discrimination in the Indian Act registration provisions and both trial and appeal level courts agree it is discrimination. The Supreme Court of Canada refuses to hear an appeal.

    2010 – Bill C-3 amended the Indian Act in response to the McIvor case to remedy some aspects of gender discrimination, but leaves much of the discrimination unaddressed. This failed remedial legislation inspired more litigation.

    2010 – Sharon McIvor immediately files a human rights petition in 2010 to the United Nations Human Rights Committee because of Canada’s failure to remedy all gender discrimination in Indian registration.

    http://www.fafia-afai.org/wp-content/uploads/2015/02/6-McIvor-Petition-to-Human-Rights-Committee-2010.pdf

    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.

    https://www.canlii.org/en/qc/qccs/doc/2015/2015qccs3555/2015qccs3555.html

    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;

    http://www.oktlaw.com/dr-gehl-wins-appeal-in-indian-act-sex-discrimination-case/

    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.

    FACT:

    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”.

    https://www.theglobeandmail.com/news/politics/senators-amend-legislation-aimed-at-removing-sexism-from-indian-act/article35110342/

    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.

    https://www.theglobeandmail.com/news/politics/senators-amend-legislation-aimed-at-removing-sexism-from-indian-act/article35110342/

    FACT:

    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.

    FACT:

    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.

    FACT:

    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.

    FACT:

    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.

    http://fafia-afai.org/en/send-a-letter-to-federal-ministers-encouraging-them-to-support-indigenous-womens-equality-and-the-61a-all-the-way-amendment/

  • Bill C-3: Senate Considerations More About Blood "Purity" and "Benefits" than Equality

    This blog will serve as an update as to the current status of Bill C-3 – Gender Equity in Indian Registration Act. It will also serve to highlight the disturbing considerations that are being made by Senators and the Minister of INAC in passing this bill. Here is the quick and dirty of the Bill’s treatment to date: (1) Bill C-3 passed first and second reading in the House; (2) It was studied by the Standing Committee on Aboriginal Affairs and Northern Development (AAON) where numerous Aboriginal witnesses testified that it did not address all gender discrimination or even that found in McIvor’s case; (3) I appeared as a witness and gave oral and written testimony against the Bill; (4) The AAON voted on amendments to make the Bill more inclusive (at this point the Liberals, NDP and Bloc were all supporting the Aboriginal witnesses); (5) These amendments were ruled out of scope; (6) The House passed a new amendment to include back in the bill, section 9 which tries to insulate Canada from liability; (7) The bill passed through the House (the Liberals, NDP and Bloc all flip-flopped and sided with conservatives); (8) The bill was sent to Senate for consideration and passed first and second reading quickly; (9) It was sent to Senate Standing Committee on Human Rights to study; (10) Only two days were set aside to hear a small list of witnesses (Nov.29, Dec.6); (11) I was invited by Senate to appear as witness and then disinvited at the last minute; (12) The bill passed through the clause by clause quickly. So that is where the Bill stands now. It will pass through both report stage and third reading fairly quickly as the conservatives are the majority in the Senate and we have seen what they will do when they like or dislike a bill. This bill will then have to receive Royal Assent and the Order in Council process takes about 6 weeks or so. Therefore, I fully expect that this Bill will become law before the court imposed deadline in January of 2011. So that is the technical stuff. I have written previous blogs about my concerns about this bill, but I will summarize the main issues here: (1) The new section 6(1)(c.1) will create a new form of discrimination between those with children and those without. Under this section, the only people entitled to section 6(1)(c.1) status are those currently registered under section 6(2) who have non-status Indian children. Anyone with status children or no children will not get the gender remedy. (2) This bill does not address all gender inequality in the Indian Act. Canada argues it only addressed the inequality between double mother clause reinstatees and section 12(1)(b) reinstatees in the McIvor appeal case. Unfortunately, it does not even do that. The descendants of Indian men will still have better status than the descendants of Indian women. (3) Canada has chosen to try to insulate itself from liability for the gender discrimination it imposed on the descendants of Indian women in section 9 of the bill. Indian women and their descendants will be the only group in Canada who have been discriminated against and for whom Canada refuses to allow them a Charter remedy. There are many, many other concerns I have about the Bill, but anyone can read my past blogs to find out more. As you may have gathered from other blogs I have written on Aboriginal political issues, I am concerned about our National Aboriginal Organizations (NAO’s) like the Congress of Aboriginal Peoples (CAP), the Native Women’s Association of Canada (NWAC) and the Assembly of First Nations (AFN) actions on this issue. These NAO’s all claim to represent some segment of the Aboriginal population in Canada, but their recent flip-flops should be cause for great concern by us grass roots folks. Even the National Association of Friendship Centres (NAFC) a non-political organization has weighed in. First of all, the Senate only had two half-days of hearings and only heard from a handful of witnesses, most of whom were political in nature, compared to the AAON who had 6 days of hearings and heard from numerous witnesses with various expertise on the subject matter. Several witnesses, including myself were officially invited to appear before the Senate on Bill C-3 but were later disinvited at the last possible moment. You will remember that in the House, all of the Aboriginal witnesses were unanimous in their opposition to Bill C-3 as it was written – yes, including CAP. The Liberals, NDP and Bloc all agreed that the Bill did NOT fully address either the gender discrimination found in McIvor or the larger gender discrimination issues. They all supported the amendment of this Bill to finally address gender discrimination once and for all. However, since Parliament recessed for the summer, CAP, NWAC, Native Women of Quebec and others all flip-flopped on their original positions and decided that “something was better than nothing” and supported the bill. When we all got back to business in the fall, the Liberals, Bloc and NDP all flip-flopped and said they would now support the bill out of concern for those who wanted to be registered as soon as possible. Keep in mind also that INAC has been saying all along that the NAO’s would ONLY receive funding for the joint process to discuss the other registration and band membership issues IF Bill C-3 passed. This means no money if the NAO’s did not play ball. The NAO’s are not what they used to be – although they were all born out of the Indian political struggles of the early 1900’s which culminated in the 1970’s in response to the White Paper, their leadership of late has been described as “co-opted”. Back then, the NAO’s stood for what was just and not what was “just” in the best interests of the organizations they headed. Now, their concerns over funding to staff their organizations far outweighs any remaining concerns for what is best for our people. It should be no surprise then that on Monday, Dec.6, 2010: (1) the CAP did not even appear as a witness on Bill C-3 in Senate; (2) the AFN testified that “the bill, with or without amendments must proceed“; (3) the NAFC’s main concern was to ask for money to train their staff and to be compensated for answering questions to their clients; (4) the NWAC said registering those under Bill C-3 would be acceptable to “our chiefs, our communities and our families“; Despite vigorous questioning from Senator Sandra Lovelace (the woman who took Canada to the UN on this issue and won) about the real issues at stake for Aboriginal peoples: full gender equality, the right to decide who we are, and compensation for discrimination, NONE of the NAO’s would back down from their support of the bill. This made Senator Patrick Brazeau’s job much easier. INAC Minister John Duncan’s testimony on Nov.29, 2010 seems confirm what is happening here: “the department has invited and received proposals from national Aboriginal organizations in preparation for the possible launch of a separate exploratory process on these broader issues. This will move forward if Bill C-3 is passed.” “With five different national Aboriginal organizations … the department will provide the appropriate funding for the process.” “the national Aboriginal organizations will be running the process.” Sharon McIvor’s testimony pointed out what is really happening here – we are being offered a joint process without any mandate or commitment for future changes in exchange for NOT addressing the full issue of gender discrimination in the Indian Act. Specifically she said: “what is being offered in exchange for the non-recognition of our basic human and equality rights… An exploratory process, so others – many of who will not be affected directly – have a say in whether our basic human and equality rights are recognized. To my mind, it is totally bizarre.” She also pointed out the disrespect of Justice Canada (DOJ) and INAC in dealing with her case. They keep referring to Sharon’s “hypothetical brother” to do comparisons on charts, but in actual fact her brothers are real, living human beings with families of their own. It was all because of Sharon’s quest to seek equality for Indian women and their descendants that her brothers even got registered and when they did, they all got better status than Sharon. How is that for irony? She also pointed out the very disturbing position our NAO’s have put us Indian women in – that we must fight this battle alone. Sharon explained the current situation very well: “The Assembly of First Nations, the Native Women’s Association of Canada, other groups, will get huge chunks of money. We women on the ground have done all of the groundwork. I can tell you I have done all of the work to get here. The Assembly of First Nations did not help me, and for the most part the Native Women’s Association of Canada did not help me, and CAPP did not help me. I brought it this far, and now they have all jumped on board and they said, okay, whatever little piece of legislation you want to put through because of the time frame, we agree with that. You can go ahead and do it, but give us the money. I am outraged, as you can tell. I am outraged about what has been going on.” She went on to explain that many, many descendants of Indian women will be missed in Bill C-3 including: anyone born pre-1951, and the illegitimate daughters of Indian men, children of status women who have unstated paternity. There are many more who will be missed. Gwen Brodsky who presented after Sharon made the point that gender equality in Canada is NOT something that should only be brought about incrementally – i.e. through small amendments gradually over time. It is a basic human right that requires immediate implementation. It has been over 150 years of legislated gender inequality for Indian women – how much longer should they wait? It cost Sharon over $250,000 and no one was there to help her. Discrimination is not a matter for debate or consultation – it simply needs to be remedied even if people want to continue discrimination. Despite all of this, it was more than apparent that racist and sexist stereotypes and ideologies are what ruled the ultimate decision to pass this Bill. Here are a few examples of the questions and considerations made during these meetings: (1) Senator Kochar to Sharon McIvor: “How far do you think your status can go?” “Senator Brazeau is my mentor when it comes to Indian Affairs, although I am more pure Indian than he is.” “If pure Indian marries a non-Indian… how far do you think you can take the status?” “Nevermind about gender equality.” (2) Senator Brazeau to Gwen Brodsky: “I think it is important to distinguish between a wish list… and the specific decision” (3) Minister Duncan to Senator Brazeau: “we probably would not be having any of this discussion if it were not for the fact that status confers certain benefits” “There has not been as much debate and discourse of this area of the Indian Act as there should be.” Seriously?? Has INAC not read all the studies, research, articles, theses, books and reports on the subject? What an irresponsible thing to say – but it serves to justify funding NAO’s to do more repetitive research. Canada denies that financial considerations are a main issue in their control of status when they appeared before the courts in McIvor, yet their own motivations are admittedly financial. Even the evidence at court showed that Canada’s interest in having a limited “1/4 blood” rule was primarily for financial reasons. Why is it that when men are registered under the Act, they are considered the true Indians, but when women want to be registered they are characterized as gold diggers? We are not in this for money – we are in this for our equality and the rights of our children and grandchildren. If anyone should be questioned about their financial interest, it is not Indian women and their excluded descendants who must fight these legal battles on their own and at their own cost. I think the grass roots people ought to be asking their NAO’s what the hell they think they are doing with the future of our children and grandchildren? No study, staff position or research project is worth the exclusion of even a single child from their birthright and community. I have been told that politics is about compromise and maybe I should give these NAO’s a break. If that is the case, then perhaps these NAO’s should get out of the business of politics and get back to the business of advocating for our people and standing up for what is just. Bill C-3 is a discriminatory piece of legislation that appeals to Canada’s desire to limit how much they have to share our resources with us; appeals to co-opted NAO’s who see dollar signs in the joint process; and appeals to those colonized Aboriginal peoples who care more about their own individual interests than that of their communities, Nations, and most importantly, the futures of their children’s children seven generations into the future. Shame on Canada and shame on AFN, NWAC, CAP, NAFC for buying in. I can only hope that the UN addresses Sharon McIvor’s long-standing fight for our rights.

  • The Illusion of Justice in Canada – The Conservatives Conditional Support of UNDRIP

    I was having a hard time deciding between several important issues that I wanted to write about in my blog this week. I was really struggling between the injustices against our Indigenous peoples noted in Howard Saper’s Corrections report, the fact that Sharon McIvor is forced to take the plight of Indigenous women to the United Nations or Canada’s hollow endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). All of these issues are important and deserve far more critical attention than they are getting. That is when I realized that these issues are part of a shameful pattern on the part of the Conservatives. The Conservatives have created an illusion that they are addressing justice issues faced by Indigenous peoples here in Canada by promoting their pretend platform on human rights and equality. Some readers might think this is an overly critical assessment of what seems to be a very progressive agenda – but I would ask those readers to look beyond the media hype and dig deeper to what is ACTUALLY being promised and what is not. I have to start with UNDRIP because Canada’s alleged “endorsement” of it is the biggest illusion of all. As we all know, Canada was one of 4 states that refused to sign UNDRIP along with the USA, Australia and New Zealand. These are some of the countries with the largest Indigenous populations who suffered greatly under the colonial laws, rules, and policies implemented by these States. Their collective refusal to endorse UNDRIP sent a strong message to Indigenous peoples that their colonial rule would continue for some time to come. Australia subsequently changed its mind and decided afterwards to issue a conditional Statement of Support for UNDRIP and New Zealand soon followed suit. That left Canada and the United States on the hot seat, so to speak, and their failure to endorse UNDRIP a major political impediment to Indigenous-Crown relations. Therefore, the Conservative government made a commitment in its speech from the throne in the spring of 2010 to endorse UNDRIP: “A growing number of states have given QUALIFIED RECOGNITION to the United Nations Declaration on the Rights of Indigenous Peoples. Our Government will take steps to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and laws.”(emphasis added) It is now November 2010 and we are only just getting the alleged “endorsement” now. I say “alleged” because words mean everything in the world of politics. We know from our collective experiences with treaty making and implementation, that the Crown does not always act honourably in its dealings with Indigenous peoples. In a letter from T. Bannister to the Council of Trade and Plantations, one European colonist wrote about the shameful ways in which treaties were being “negotiated” with Indigenous peoples: “Their quarrels and wars were not for ambition, empire or bloodthirstiness but to defend their property and bounds… Their injuries have been very great, as divesting them of their land by force or fraud, first making them drunk and then to sign what they knew not what… Ad to this our inhumanity to them … We vilify them with all manner of names, and opprious language, cheat abuse and beat them, sometimes to the loss of limbs, pelt them with stones and set dogs upon them … too often an Article of Peace has run in one sense in English and quite contrary in Indian, by the Governor’s express order…”. I would like to think that Canada has moved past some of its double-dealings of the past, but this limited endorsement of UNDRIP by the Conservatives proves otherwise. From one side of their face they promise to make changes to address our issues and from the other side, they rally public support against us and find creative political spin to keep from acting on their promises. Canada did not truly, in letter and spirit, endorse UNDRIP – they issued a “Statement of Support” that does not change Indigenous rights (or lack thereof) in Canada. This is not my own personal opinion that I am espousing; I am taking this straight from the horse’s mouth. What follows is a summary of Canada’s “Statement of Support”: (1)”The Declaration is as ASPIRATIONAL document…” (the definition of “aspirational” is a “cherished desire”; something for which one “wishes”) (2)”the Declaration is a NON-LEGALLY BINDING document that does not reflect customary international law NOR CHANGE Canadian laws” (emphasis added) (3)”Canada placed on record its concerns with various provisions of the Declaration, including provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, States and third parties. THESE CONCERNS ARE WELL KNOWN AND REMAIN.” (emphasis added) (4) “We are now confident that CANADA CAN INTERPRET THE PRINCIPLES expressed in the Declaration in a manner that is consistent with our Constitution and legal framework.” (emphasis added) Those are the highlights of what Canada ACTUALLY signed. These are the limits under which it “supports” UNDRIP – i.e., so long as it has NO legal affect in Canada. For those who might think that I am somehow misinterpreting what Canada means by their conditional support, INAC’s own press release again clarified that: (1) “the Declaration is not legally binding” and (2) they are only endorsing it as “an aspirational document” and NOT as a legally binding document. For those who have any further questions about what this all means, INAC also provides a section entitled “Frequently Asked Questions”. In answer to the question of whether a State which originally voted against UNDRIP can change its mind, INAC very clearly says “There is no official way for a State to change its position on a declaration“. All it can subsequently do is issue a Statement of Support. Canada knew this when it originally voted against UNDRIP. In answer to the question of what UNDRIP means: “The UNDRIP is a non-legally binding aspirational document“. I am not sure how much clearer they could have made their position. So, at the end of the day, all Canada has done is publicly support the cherished wish list of Indigenous peoples but that wish list will not have any legal application or effect in Canada. Regardless of this striking fact, one might argue that Canada could still make significant and substantive changes to its relationship with Indigenous peoples and take transformational action to address serious social, economic, political, cultural and legal issues impacting on the well-being of Indigenous peoples, the majority of which it caused through its colonial laws and policies. Sure….Canada “could” do that – the question is will it? Well, let’s see what Minister of INAC John Duncan had to say: http://aptn.ca/pages/news/2010/11/12/canada-finally-backs-un-indigenous-declaration/ You will note in the above interview with APTN, that Minister Duncan re-affirms that UNDRIP is an “aspirational” document only that has NO legal application in Canada. Furthermore, on whether Canada’s endorsement of UNDRIP will bring about significant changes for Indigenous peoples in Canada, Minister Duncan responds that Canada has its “own agenda” and as a result does not “anticipate any significant change”. So, once again I am still asking myself what the heck is everyone so excited about? Why on earth would the Assembly of First Nations celebrate this announcement? Why would First Nations leaders appear in the media and praise Canada for making such a significant commitment to the rights of Indigenous peoples? Did anyone take the time to actually read what the Statement said or what INAC said its alleged “endorsement” means? Here is a brief overview of the state of Indigenous peoples in Canada right now: (1) Indigenous peoples have the lowest socio-economic conditions of all groups in Canada – meaning the lowest education and employment rates coupled with the highest disease, poverty and violence rates; (2) Funding for essential social services like post-secondary education, drinking water infrastructure, and child welfare are all so grossly underfunded and unequal when compared to non-Indigenous funding, that even Canada’s Auditor General has criticized Canada for its lack of action in addressing it; (3) Indigenous women in Canada do not enjoy even BASIC equality rights that are enjoyed by non-Indigenous women and now Sharon McIvor is being forced, after 25 years of litigation and struggle, to seek redress at the United Nations for Canada’s lack of action; (4) Hundreds of land claims remain unresolved despite Canada’s promise years ago to bring about “revolutionary” change to the ways in which claims were handled; and (5) Our people are homeless on their own traditional territories, our women are murdered and missing at alarming rates, our children are taken from our families and communities at rates as high or higher than during the 60’s scoop, our men and women are incarcerated at a higher rate that non-Indigenous people, and racism is still prevalent within our justice system and leads to deaths while in custody, starlight tours, and utter neglect. If Minister Duncan is right and Canada will not make any significant changes to how it deals with Indigenous issues and will simply continue to advance its own agenda, then what good does their conditional support of UNDRIP do for us? Why would our political leaders be so quick to praise Canada for agreeing to do literally nothing on our behalf? At this rate, our reserves will be turned into private property and sold to big business by the Flanagan-Jules plan; those remaining reserves will all be occupied by non-Indians through Bill S-4 MRP laws; and if anyone remains after that, they will all be legislated out of extinction by Bill C-3’s discriminatory status provisions. The Conservative’s conditional support of UNDRIP creates an illusion of justice in Canada – it is our choice whether we stand beside them and accept it. If our leaders won’t stand up for us then it is time that the people told their leaders to step aside and let our people stand up for themselves.