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Amendment to Bill S-3

#Rematriation

 

Please support the immediate implementation of the amendments to Bill S-3 that have been adopted by the Senate Committee on Aboriginal Peoples (‘the 6(1)(a) all the way amendment), which were passed by the Senate of Canada on June 1st, 2017.

ONWA has created an online petition calling on the Government of Canada to end gender discrimination in the Indian Act. This petition requires 500 signatures to be presented to government, please sign and share widely.

Help us end gender discrimination in the Indian Act by signing the petition here: https://tinyurl.com/y9ddo3hg

 



A Letter to the Prime Minister, Minister, and Chair of Senate Committee

May 29, 2017


The Senate of Canada
Ottawa, ON
K1A 0A4


RE: Gender discrimination in the Indian Act


Dear Senators:

The time for consultation and discussion has passed. On May 17th, 2017 Bill S-3 was amended in the Senate Committee on Aboriginal Peoples in order to remove the long-standing discriminatory treatment of Indigenous women. ONWA is in full support of the amendment and its immediate implementation. Furthermore, Indigenous women’s children, regardless of their paternity, must have the same equality and recognition as if they were to receive status from the male lineage.

The Ontario Native Women’s Association’s (ONWA) mandate is to empower and support all Indigenous women and their families in the province of Ontario through research, advocacy, policy development and programs that focus on local, regional and provincial activities. Our vision is to be a unified voice for equity, equality and justice for Indigenous women through cultural restoration within and across Nations. Ending violence against Indigenous women and ensuring equal access to justice, education, health and economic development, sit at the cornerstone of the organization.

In 1970 the Report of the Royal Commission on the Status of Women in Canada identified the discrimination of Indigenous women under the Indian Act and provided the following recommendation: “The Indian Act be amended to allow an Indian women upon marriage to a non-Indian to (a) retain her Indian status and (b) transmit her Indian status to her children.” Nowhere within this recommendation did the Royal Commission propose that the reinstatement of a woman’s Indian status be lesser than her male counterpart.

In 1985 Bill C-31 came into effect, as the result of the notable leadership of Indigenous women like Jeannette Corbiere-Lavell, Sandra Lovelace and Mary Two-Axe Early. But Bill C-31 did not fully address all forms of discrimination and human rights violations. Indigenous women who "married out" and lost their status were reinstated but they were only granted a lesser category of status than Indian men who never lost their status. Subsequent generations of descendants of Indian women were then denied status. And so the discrimination caused by the preferential treatment accorded to Indian men and their descendants for more than 100 years continues today. This ongoing discrimination towards Indigenous women is unacceptable, and violates the human rights of Indigenous women and children.

We also know that the discrimination against Indigenous women in the Indian Act is connected to the crisis of violence.

The United Nations Committee on the Elimination of Discrimination against Women and the Inter-American Commission on Human Rights have both investigated the crisis of murders and disappearances of Indigenous women and girls in Canada. Both concluded that the continuing gender-based discrimination in the Indian Act is a root cause of the violence. This state sanctioned violence towards Indigenous women continues today and is the foundation of the high rates of violence suffered by Indigenous women and children within Canadian society. Until the human rights of Indigenous women are recognized and respected they will continue to be dehumanized thus increasing the risk that they go missing, be murdered, sexually exploited, and/or human trafficked.

When our identity as Indigenous women is not recognized in law, we are vulnerable to others defining us, and others have defined us as 'disposable.' Furthermore, the ongoing delay in the process of correcting the discrimination continues the human fights violations rooted in the Indian Act.

ONWA reminds Senators of Canada's commitment to Truth and Reconciliation and a renewed relationship with Indigenous women, families and communities. For Indigenous women, a renewed relationship requires immediately eliminating the sex-based inequities in the Indian Act,.Acknowledgement of the excluded Indian women and their descendants, and eliminating the discrimination against them is the first step in reconciliation.

Indigenous women are universally supported in the recommendations adopted within the United Nations Declaration on the Rights of Indigenous Peoples, specifically stated by Article 33.1 Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions., and Article 22.1. 2. States parties shall ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

Even with global support for Indigenous women’s rights, and the Government of Canada’s commitment to Truth and Reconciliation, Indian Act policies continue to subject generations of Indigenous women, children, and their families to a legacy of discrimination, and it has continued to do so despite piecemeal amendments made over the past forty years.

Prime Minister Justin Trudeau made headlines around the world when he created gender parity within his cabinet and, explaining “because it’s 2015”, also pushed for gender equality at the UN Women’s Conference. We trust that in 2017 Prime Minister Trudeau's government will also support the Senate Committee's crucial amendment to Bill S-3 and support the humanization of Indigenous women.

On behalf of the Ontario Native Women’s Association we are pleased that the Senate Committee on Aboriginal Peoples recognizes the importance of the issue. We urge all Senators to support the “6(1)(a) all the way” amendment to Bill S-3.

When Mary Two-Axe Early was advocating for rights for Indian women so many years ago, she said “please search your hearts and minds, follow the dictates of your conscience, set our sisters free”. We ask the same today. We ask all Senators to support the Senate's amendment that will remove the two-tier hierarchy of status, which is the central problem in the registration provisions. This is paramount to achieving justice for Indigenous women, and will be a foundational step taken on the journey towards reconciliation.

 

Meegwetch,

Dawn Lavell-Harvard
President
Ontario Native Women’s Association

 

Cc: Prime Minister, Justin Trudeau
The Honourable Jody Wilson-Raybould, Minister of Justice
The Honourable Carolyn Bennett, Minister of Indigenous and Northern Affairs
Charlie Angus, MP
Board of Directors, Ontario Native Women’s Association

 



Position Paper

Ontario Native Women’s Association - Senate Committee on Aboriginal Peoples

Amendment to Bill S-3

 

Introduction - ONWA

The Ontario Native Women's Association (ONWA) is a not for profit organization that empowers and supports Aboriginal women and their families in the province of Ontario. Affiliated with the Native Women’s Association of Canada (NWAC), ONWA encourages the participation of Aboriginal women in the development of federal, provincial, and municipal/local government policies that impact their lives and ensures issues affecting Aboriginal women and their families are heard at key government tables.

ONWA is committed to providing services that strengthen communities and guarantees the preservation of Aboriginal culture, identity, art, language and heritage. Ending violence against Aboriginal women and their families and ensuring equal access to justice, education, health services, environmental stewardship and economic development, sits at the cornerstone of the organization. ONWA insists on social and cultural well – being for all Aboriginal women and their families, so that all women, regardless of tribal heritage may live their best life.

ONWA delivers culturally enriched programs and services to Indigenous women and their families regardless of their status or locality. ONWA, as an organization, is a Provincial Territorial Organization comprised of Indigenous women governed by a Board of Directors - all working together to achieve equality and justice for Indigenous women, their families and communities. Our VISION is to be a unified voice for equity, equality and justice for Indigenous women through cultural restoration within and across Nations. The MANDATE of the Ontario Native Women's Association is to empower and support all Indigenous women and their families through research, advocacy, policy development and programs that focus on local, regional and provincial activities.

ONWA is a not for profit organization that was established in 1971 to empower and support Indigenous women and their families throughout the province of Ontario. Our membership consists of fifty-two (52) Local membership organizations that provide Indigenous women the support, capacity building opportunities, and visibility they need to further enhance their lives. Membership also provides opportunity for Indigenous women within Ontario to influence both national and provincial policies and legislation as it relates to their lives. The ONWA Board of Directors consists of sixteen (16) members, including four (4) Directors, one of which is a Youth Director, from each of our four regions. ONWA also has a Grandmother’s Council, comprised of one Grandmother from each region. ONWA’s head office is located at Fort William First Nation and has nine (9) satellite offices located across the province that provide proven, culturally sensitive, holistic services through its numerous programs in order to meet the needs of Indigenous women and their families. ONWA also has an established Research and Policy Department that focuses on influencing legislative change to address the systemic barriers that Indigenous women face.

This report has been prepared by ONWA to address Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration). ONWA is in full support of the amendment to Bill S-3 made by the Senate Committee on Aboriginal Peoples on May 17, 2017 [“6(1)(a) all the way”]. This amendment reads:

That Bill S-3, in Clause 1, be amended by adding:

(a.1) that person was born prior to April 17, 1985 and is a direct descendant of the person referred to in paragraph (a) or of a person referred to in paragraph 11(1) (a), (b), (c), (d), (e) or (f) as they read immediately prior to April 17, 1985.

(a.2) The purpose of this provision is to entitle to registration under s. 6(1)(a) those persons who were previously not entitled to registration under s. 6(1)(a) as a result of the preferential treatment accorded to Indian men over Indian women born prior to April 17, 1985, and to patrilineal descendants over matrilineal descendants born prior to April 17, 1985.

The amendment will effectively eliminate the two-tier system of status which has relegated Indian women and their descendants to a lesser category of status, with more restrictions on their entitlements to obtain and transmit status. The amendment will provide equality under the law for Indian women and their descendants born prior to April 17, 1985 and Indian men and their descendants born prior to April 17, 1985. The ongoing Canadian state violence against Indigenous women under current Indian Act legislation must stop.

 

Background

Canada has a long history of legislative gender-based discrimination against Indigenous women. Indigenous women have been forced to advocate for equal treatment since the inception of the Indian Act in 1876 with its discriminatory clauses. Successive versions of the Indian Act have specifically targeted women and robbed them of their leadership and esteemed positions within Indigenous societies, turning them into the property of men, and lesser human beings:

1869 – Indian women who married non-Indian men lost their status, including the ability to transfer status to their children. Indian men marrying non-Indian women could not only preserve his Indian status but conferred it to his non-Indian spouse and children.

1906 - The Indian Act defined an Indian as "a male Indian, the wife of a male Indian, or the child of a male Indian". Indian women did not have status in their own right or the ability to transmit their status to a child. There was a one-parent rule for transmitting status and the parent was male. The differential treatment of transmittal of status on marriage to a non-Indian continued, with Indian men bestowing their status on non-Indians wives, while Indian women lost their status and could not transmit it to their children.

1970 - The Royal Commission of the Status of Women in Canada, supported by Indian women, recommended, “Therefore, we recommend that the Indian Act be amended to allow an Indian woman upon marriage to a non-Indian to (a) retain her Indian status and (b) transmit her Indian status to her children.”

1982 – Canadian Constitution enshrines Aboriginal and Treaty Rights.

1982 – Canadian Charter of Rights and Freedoms is enacted. Section 15(1) states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

1985 – After years of court cases and political advocacy of Indian women, such as Jeannette Corbiere-Lavell, Irene Bedard, Sandra Lovelace, and Mary Two-Axe Early, and with the prospect of the equality rights section of the Charter coming into force, the Charter before it, the Government of Canada introduced Bill C-31, which had the effect of re-instating the status of women who had lost status through "marrying out." However, Bill C-31 also codified the pre- existing discrimination because it returned the "reinstatees" to a second-class lesser status. Bill C-31 assigned all those who had status prior to April 17, 1985 to full 6(1)(a) status and assigned the re-instatees to the lesser 6(1)(c) status. A new two-parent rule for transmitting status was imposed on the female line. This rule applied to the reinstated women immediately, but was delayed for the 6(1)(a) male line.

2010 – In McIvor v. Canada, Sharon McIvor successfully claimed that Canada continued to discriminate against Indian women and their descendants by limiting their ability to pass on Indian status, as compared to Indian men and their descendants. McIvor challenged the two- tiered system of Indian status. The Government's response to this ruling was Bill C-3, Gender Equity in Indian Registration Act. This Bill had the effect of extending transmittal of status to another generation for some Indian women affected by the 6(1)(a) - 6(1)(c) distinction.

2014 – The Inter-American Commission on Human Rights in its report: Missing and Murdered Indigenous Women in British Columbia, Canada stated that the “roots causes” of this violence “are related to a history of discrimination beginning with colonization and continuing through inadequate and unjust laws and policies such as the Indian Act.”

2015 Stéphane Descheneaux successfully claimed Canada discriminated against descendants of Indian women in this case, his grandmother. The case centered on his inability to transfer his Indian status to his three daughters because his Indian descent came from his grandmother, who lost her status when she married a non-Indian man. Had his Indigenous grandparent been a man, Mr. Descheneaux would have been able to keep his status and to pass it on to his wife, their children and grandchildren. The current Bill S-3 stems from this court case.

2015 The Truth and Reconciliation Commission releases its final report in Ottawa. It issues 94 Calls to Action. State violence in the form of Missing Murdered Indigenous Women and Girls and a commission are mentioned in Call to Action 41.

2016 – Canada removes its official objector status to the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, specifically stated by Article 33.1., and Article 22.1. 2., which declares the following:

Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.

Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.

Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.

States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

2016 – The United Nations Committee on the Elimination of Discrimination against Women urged Canada to act on the high rates of gender-based violence against Indigenous women and girls. The report stated that “insufficient measures” are being taken to guarantee that all cases of missing and murdered Indigenous women and girls are properly investigated and prosecuted.

2017 – Lynn Gehl and her lawyer successfully argued that the Ministry of Indigenous and Northern Affairs Canada (INAC) policy on unknown and unstated paternity was applied in a manner that was unreasonable, which resulted in denying her Indian status.

 

The Government of Canada's Proposed Bill S-3

In October 2016, the Government of Canada introduced Bill S-3, An Act to amend the Indian Act (elimination of sex-based inequities in registration). Despite this promising name, the Bill proposed by the Government of Canada does not eliminate gender-based inequities in registration. It is designed to cure the specific inequities identified in Deschenaux v. AG Canada, but it re-enacts the central piece of the gender discrimination in the Indian Act, the preference for Indian men and their descendants over Indian women and their descendants, which was codified in the gender-based hierarchy between s. 6(1)(a) and s. 6(1)(c) in Bill C-31 in 1985. Gender-based discrimination must be removed from Canadian federal law.

For this reason, the amendment to Bill S-3 which was proposed by independent Senator Marilou McPhedran and passed by the Senate Committee on Aboriginal Peoples on May 17, 2017 is crucially important to Indigenous women and their descendants. This amendment to Bill S-3 has the effect of eliminating the central distinction between the descendants of Indian men and Indian women born prior to April 17, 1985, whether they married out, or did not marry at all. This suggested amendment would remedy the discrimination that Indigenous women have been struggling to end for more than 100 years.

 

Considerations

If this Senate amendment is ignored or removed, the result will be that Indian women and their descendants will continue to be denied equality in Canada and continue to be, in many cases, denied registration for themselves and their descendants, and participation in their communities and nations.

When the status of Indigenous women is not recognized, they are vulnerable to what others define them as, and others have defined Indigenous women as disposable persons in Canada. The overwhelming number of missing and murdered Indigenous women and girls is a direct physical manifestation of the dehumanization of Indigenous women and girls. Labeled disposable, Indigenous women continue to fight for safe, affordable, and accessible services to regain their rights and assert their roles in their families and communities. This gender-based discrimination and subsequent societal struggle has resulted in an overwhelming number of Indigenous children and youth been taken from their families and communities. The amendments to Bill will aid in healing this long-standing human rights violation which have only served to compound inter-generational historical traumas, and further sever Indigenous women and children from their culture, identity and traditional lands.

The United Nations Committee on the Elimination of Discrimination against Women and the Inter-American Commission on Human Rights have both investigated the crisis of murders and disappearances of Indigenous women and girls in Canada. Both concluded that the continuing gender-based discrimination in the Indian Act is a root cause of the violence. This state sanctioned violence towards Indigenous women continues today and is the foundation of the high rates of violence suffered by Indigenous women and children within Canadian society. Until the human rights of Indigenous women are recognized and respected they will continue to be dehumanized thus increasing the risk that they go missing, be murdered, sexually exploited, and/or human trafficked.

Bill S-3, without the Senate Committee's amendment, will just be a continuation of second-class treatment of Indigenous women and their descendants. It will demonstrate that treating Indigenous women as though they do not matter and are disposable is acceptable. We further ask how anyone can justify the gender discrimination that perpetuates this violence.

INAC Minister Bennett justifies this ongoing discrimination and violence as acceptable because there may be ‘unknown consequences’ from the removal of this discrimination. But there are known consequences of this discrimination and they are deadly. Minister Bennett also says that as a result of removing gender discrimination in the Indian Act, there will be “hundreds of thousands, or even millions, of new Indigenous people” (Globe and Mail 2017). Minister Bennett's projection that there will be two million new Indigenous people is "fear-mongering" as Senator Sinclair pointed out in the Senate Committee hearings. There are, however, we believe, thousands of Indian women and their descendants who are rightfully entitled to Indian status, and that entitlement should be granted in law immediately.

Prime Minister Justin Trudeau has made headlines around the world when he created gender parity within his cabinet and his notable quote “Because it’s 2015”, along with pushing for gender equality at the UN Women’s Conference. Surely in 2017 the Trudeau government should support the Senate Committee's amendment and agree to pass legislation that will eliminate the gender-based inequities in the Indian Act.

 

Conclusion

ONWA stands to remind Canada of its commitment to reconciliation and a renewed relationship with Indigenous women, families and communities. This relationship can only start on a new footing if it begins by eliminating gender-based inequities in the Indian Act. Acknowledgement of this violation of Indigenous women's human rights under Canadian law by the Canadian government is the necessary first step in reconciliation.

Non-action by our Canadian government to implement Bill S-3 [“6(1)(a) all the way”], will demonstrate that violence against Indigenous women is acceptable. One only needs to look at the case of Cindy Gladue, the acquittal of the man that killed her was as a result of her being dehumanized, and we ask you, how someone can consent to being murdered. We further ask, how you can justify gender discrimination that perpetuates this violence. Ms. McPhedran’s amendment to Bill S-3 is intended to eliminate any remaining distinctions between the descendants of men and women who married non-Indians before the Charter. This amendment would in practice turn back the clock to the creation of the Indian Act in 1876.

The effect of the amendment to Bill S-3 made by the Senate Committee on Aboriginal Peoples on May 17, 2017 is to eliminate the two-tier system of status which has relegated Indian women and their descendants to a lesser category of status, with more restrictions on their entitlements to obtain and transmit status. The amendment will provide equality under the law for Indian women and their descendants born prior to April 17, 1985 and Indian men and their descendants born prior to April 17, 1985. Canada must stop the ongoing systemic violence against Indigenous women legitimized under current Indian Act legislation.

 

Related Sources

https://www.pressreader.com/canada/the-globe-and-mail-bc-edition/20170525/281578060608967

http://www.cbc.ca/news/politics/trudeau-indigenous-law-review-committee-1.3994227

https://www.theglobeandmail.com/news/politics/quebec-judge-gives-ottawa-more-time-to-fix-indian-act/article33713042/

https://www.theglobeandmail.com/news/national/united-nations-report-urges-canada-to-address-gender-equality-barriers/article32952539/

http://www.oas.org/en/iachr/reports/pdfs/indigenous-women-bc-canada-en.pdf

 



Media

 

ONWA: June 19, 2017

ONWA supports the Senate’s Amended Bill S-3 and boycotts federal strategy announcement

The Ontario Native Women’s Association was not in attendance for the federal government strategy announcement to prevent and address gender based violence. ONWA cannot participate and celebrate a gender based strategy when our own federal government won’t make the same commitment to our Indigenous mothers, grandmothers, sisters, and aunties. The Canadian Feminist Alliance for International Action (FAFIA) supports ONWA.

image Read More (PDF)

 

Feminist Alliance for International Action (FAFIA)/l’Alliance Féministe pour l’Action Internationale (AFAI): Ottawa, June 15, 2017

Indigenous Women Leaders Challenge the Government on S-3: Ask For Meeting

Indigenous women are entitled to equality under s. 15 of the Charter, s. 35(4) of the Constitution, a number of international treaties that Canada has signed, and Article 44 of the United Nations Declaration on the Rights of Indigenous Peoples.  Leading Indigenous activist, Sharon McIvor has argued repeatedly the government cannot legitimately consult on whether she and other Indigenous women should be granted equal status with Indigenous men.

Read More here: http://fafia-afai.org/en/indigenous-women-leaders-challenge-the-government-on-s-3-ask-for-meeting/

 

Anenaki Press Release: Odanak, June 18 2017

Minister Jody Wilson-Raybould Gives Up On Eliminating the Discrimination Against First Nations Women That Chief Jody Wilson-Raybould Denounced

Federal Justice Minister Jody Wilson-Raybould no longer wants to fix all sex discrimination in the Indian Act registration rules, even though in 2010, Chief Jody Wilson-Raybould told Parliament “to eradicate discrimination wherever and whenever possible.”

image Read More (PDF)

 

MEDIA ADVISORY / MEDIA INTERVIEW OPPORTUNITY: June 18, 2017

Government Refuses To Eliminate Sex Discrimination from the Indian Act: But Court and Senate May be Gamechangers

Following passage of Bill S-3 in the House of Commons on Thursday June 15, the Government of Canada still has not eliminated the sex discrimination from the Indian Act, and despite espoused commitments to women's equality, it has chosen not do so now, citing a judge's deadline of July 3rd as a reason. Bill S-3 - minus the Senate's sex equality amendment - returns to the Senate on Monday.

image Read More (PDF)

 

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