United Nations Human Rights Committee Critiques Canada's Human Rights Violations of Indigenous Peoples

Today, the United Nations Human Rights Committee released its Concluding Observations on Canada's sixth report in relation to Canada's compliance with the International Covenant on Civil and Political Rights (advanced unedited version). While it commended recent legislation adopted by individual provinces in relation to human rights, there was no overall commendation for Canada. In fact, the majority of the report expressed numerous concerns about Canada's failures in relation to the basic human rights of Indigenous peoples.

The United Nations Human Rights Committee directed Canada to "widely disseminate" this report among judicial, legislative and administrative authorities, civil society, non-governmental organizations and the general public. It is not likely that Canada will do so, therefore, here is a summary of some of their concerns and key recommendations specific to Indigenous peoples:

GENDER EQUALITY

Concern: "persisting inequalities between women and men" including "high level of the pay gap" which is more pronounced for Indigenous women and the "underrepresentation of women in leadership positions in the public and private sectors";

Recommendations:
(a) guarantee equal pay for equal work, with special focus on Indigenous women;
(b) promote better representation of women in leadership;

VIOLENCE AGAINST WOMEN

Concern: "continued high prevalence of domestic violence in the State party, in particular violence against women and girls, that mostly affects indigenous and minority women" as well as insufficiency of shelters and failure of police to investigate and prosecute;

Recommendations:
(a) make efforts to "firmly combat" domestic violence against women in all forms, especially Indigenous women;
(b) investigate all reported cases and follow through with prosecutions;
(c) increase shelters and support services;

MURDERED AND MISSING INDIGENOUS WOMEN AND GIRLS

Concern: "indigenous women and girls are disproportionately affected by life-threatening forms of violence, homicides and disappearances" and Canada's "failure to provide adequate and effective responses" and failure to provide information about their investigations, prosecutions and punishments of those responsible;

Recommendations:
(a) conduct a national inquiry on murdered and missing Indigenous women and girls in consultation with Indigenous women's organizations and families;
(b) review its legislation to prevent further murders and disappearances;
(c) investigate & prosecute offenders & provide reparations to victims;
(d) address the root causes of violence against Indigenous women and girls;

EXCESSIVE FORCE DURING PROTESTS AND POLICE ACCOUNTABILITY

Concern: "excessive use of force by law enforcement officers during mass arrests in the context of protests at federal and provincial levels, with particular reference to indigenous land-related protests" as well as concerns about "complaints not always promptly investigated and the lenient nature of sanctions imposed";

Recommendations:
(a) ensure all allegations of ill-treatment and excessive use of force by police investigated;
(b) need strong independent oversight bodies with adequate resources;
(c) those responsible are prosecuted and punished with appropriate penalties;

INDIGENOUS LANDS AND TITLES

Concern: "potential extinguishment of indigenous land rights and titles" and the number of years of unresolved land disputes places financial burden on Indigenous peoples and "Indigenous peoples are not always consulted" on legislation that impacts our lands and rights;

Recommendations:
(a) seek free informed and prior consent for legislation and actions that impacts our lands and rights;
(b) resolve land and resource disputes.

INDIAN ACT

Concern: "slow" pace at which Canada is removing gender discrimination in the Indian Act thereby preventing Indigenous women and their descendants from transmitting Indian status equally with men

Recommendation:
(a) remove all remaining discriminatory effects of Indian Act for Indigenous women and children so they enjoy rights of Indian status on equal footing with men;

OVERREPRESENTATION OF INDIGENOUS PEOPLES IN JUSTICE SYSTEM

Concern: "disproportionately high rate of incarceration of indigenous people, including women, in federal and provincial prisons across Canada"

Recommendation:
(a) prevent excessive use of incarceration of Indigenous peoples;
(b) wherever possible use alternatives to detention (including serving sentences in communities);

SITUATION OF INDIGENOUS PEOPLES

Concern: "risk of disappearances of indigenous languages", "lack of access to basic needs", lack of funding for child welfare, and not all students of residential schools have been given redress;

Recommendations:
(a) implement and reinforce programs to provide basic needs;
(b) programs to preserve Indigenous languages; and
(c) provide child and family services on reserve with sufficient funding;
(d) implement TRC recommendations;

Canada should be ashamed that it has such a poor record on protecting the basic human rights of Indigenous peoples - especially in relation to Indigenous women and children. It is a disgrace that Canada sits with other countries, like Mexico, for the continued murders and disappearances of Indigenous women and girls. Even after decades of litigation, Canada has still has not addressed Indian Act gender discrimination which excludes thousands of children of Indigenous women. Canada has no defense for its discriminatory under-funding of First Nations children in care which causes hardship for our most vulnerable. The extreme poverty, over-representation of our people in prison, dying languages, and Canada's continued failure to respect our Indigenous rights and title have all been noticed by the United Nations as violations of our basic human rights.

It is long past the time for Canada to address these long-standing human rights violations of Indigenous peoples - this is not the Canada anyone envisioned - including our mutual ancestors who signed peace and friendship treaties.

My Brief for the Human Rights Committee's Concluding Observations of Canada: Clarifications Related to Canada's Testimony

Corporate Social Responsibility

In the review, Canada stated that international treaties ratified by Canada are not binding law in Canada. Canada also stated that Canadian companies doing business abroad are expected to demonstrate Canadian values and follow applicable human rights laws. However, if the State does not consider ICCPRapplicable law in Canada, then its corporate entities would have no reason to respect the human rights contained therein. 

I would thus recommend that the Committee both clarify the UN’s position in this regard and recommend to Canada to specifically implement the ICCPR into domestic law.

Gender Equality

In the review Canada stated that it is committed to gender equality and claimed that women make 91% of what men make. In fact, the national wage gap in Canada is 18%, much higher than other countries. In some provinces like Ontario, that gap can reach 31%. The gap is significantly higher for Indigenous peoples at 30% compared to average Canadian, and in some areas of Canada, the gap is as high as 88%. 

I would recommend that the Committee recommend that Canada undertake specific measures and develop specific targets and measures to address sex discrimination generally and the wage gap specifically.

The Federal Court of Appeal in McIvor case confirmed gender discrimination, but Canada enacted Bill C-3 without consulting with First Nations, and which specifically denied any compensation for Indigenous women impacted. Indigenous women and descendants are the only group in Canada that has ever been denied compensation for a Charter right violation. 

The Committee should also recommend that Canada negotiate a compensation package for all the Indigenous women and their descendants reinstated by Bill C-3 for loss of services (education, housing, health benefits, training). 

Violence against Indigenous Women

Canada stated that one measure to combat violence against Indigenous women are the 40 shelters on reserve. It should be noted that there are 633 reserves in Canada, which means there are shelters in less than 6% of on-reserve communities. Canada also portrayed the crisis of murdered and missing Indigenous women as one of crime, when domestic and UN reports have confirmed the root causes are in Canada’s discriminatory laws and policies, the culture of violence against Indigenous women, and the chronic and discriminatory underfunding of essential human services, like food, water, housing, education and health. 

I would recommend that the Committee support the recommendations of the Special Rapporteur on the Rights of Indigenous Peoples, IACHR and CEDAW to develop a national action plan to address the socio-economic conditions which result in the disproportionate vulnerability to violence in partnership with Indigenous communities and Indigenous women’s organizations and commit to a national inquiry.

Indigenous Children in Care

Canada submitted that it does not know what factors are at play to explain the gross over-representation of Indigenous children in state care. 50% of all children in care in Canada are Indigenous, despite being only 4% of the population and represent 90% of children in care in provinces like Manitoba. Canada’s own studies have shown that the root causes are poverty, the chronic underfunding of child and family services for First Nations on reserve, inter-generational trauma from residential schools and state discrimination. 

I would recommend that the Committee recommend that Canada fund Indigenous Child and Family Services at levels no less than provincial levels, with extra funding to address the backlog and volume of cases and for additional Indigenous staff, training, and infrastructure for CFS services on reserve with a focus of keeping children in their families, communities and cultures.

Indian Act Sex Discrimination

Canada stated in its response to the List of Issues at para.125 that: “the Indian registration provisions in the current Indian Act do not discriminate against women”. When questioned by Committee about unresolved sex discrimination in the Act, it responded that Bill C-3 was “a step forward” and “no one sees it as anywhere near being concluded”, but that Canada prefers an “incremental approach”. This is not a good faith application of either domestic or international law obligations in relation to gender equality. Practically, this means Canada prefers to defend lengthy and costly law suits which take upwards of 25 years to reach the Supreme Court of Canada. There is no justifiable reason for Indigenous women and their descendants to wait 139 years for the Actto be slowly amended to eliminate gender discrimination. 

Indigenous women and their descendants are already impoverished and without Indian status, miss out on health benefits, post-secondary education, and other social programs critical to their health, safety, and well-being; which we already know makes them vulnerable to violence. Canada also stated that they have a “Special Rapporteur” that is currently “consulting” with First Nations on how to clean up the Indian Act discrimination. This is simply not true – and if it has done so, they have not informed anyone. 

I would recommend that the Committee recommend to Canada that it amend the Indian Act to eliminate all sex discrimination in the Indian Act’s registration provisions and it could start by immediately by amending the registration provisions as follows:

(a)    remove the 1951 cut-off and ensure that all direct descendants on the female Aboriginal line, born prior to April 17, 1985, are accorded the same 6(1) status as the descendants on the male line;

(b)   ensure that no one born prior to April 17, 1985 who is entitled to status is consigned to s. 6(2) status;

(c)    ensure that entitlement to 6(1) status is extended to the female child of the status man and non-status woman who were unmarried; and

(d) all administrative barriers are removed so that unmarried status Indian women are able to transmit their Indian status to their children, even if the father is unstated.

Police Misconduct

In responding to various concerns raised in Committee related to sex discrimination, violence against Indigenous women, and police misconduct, Canada failed to mention the major class action suit filed against the RCMP by female staff and officers for sex discrimination. It failed to mention the Human Rights Watch report which documented instances of RCMP sexually and physically assaulted Indigenous girls. It also did not mention the Donald Marshall Inquiry, Manitoba Justice Inquiry or Ipperwash Inquiry which all found that racism against Indigenous peoples in Canada’s police forces is a major problem that has yet to be addressed. 

I would recommend that the Committee recommend that Canada develop a more robust and transparent oversight mechanism for all police forces that is completely independent from both political and police interference which a specific focus on and Indigenous ombudsperson for Indigenous peoples.

UNDRIP

In the review, Canada did not orally respond to the question in committee about whether Canada has changed domestic law and policy to align with its endorsement of UNDRIP. In Canada’s Statement of Support it states: (1) it is an aspirational document (2) it’s not legally binding in Canada (3) it does not reflect customary international law (4) it does not change Canadian law. When former Minister of Indian Affairs John Duncan was questioned on the impact of UNDRIP, he responded that Canada has its "own agenda" and as a result does not "anticipate any significant change". Canada’s endorsement of UNDRIP is not done in good faith or with intention to have any practical effect. 

I would thus recommend that the Committee recommend to Canada that Canada implement the UNDRIP in good faith.

Indigenous Languages

In the review, Canada stated that the reason for Indigenous language loss included migration and the media. The real cause of language loss stems from Canada’s assimilatory laws and policies, like residential schools, which tortured, abused and shamed children for speaking their languages. Indigenous languages were literally beaten out of many generations of Indigenous children. Canada admitted this in its residential school apology: “The government now recognizes that the consequences of the Indian Residential Schools policy were profoundly negative and that this policy has had a lasting and damaging impact on Aboriginal culture, heritage and language.”

Immediately after this apology, Canada cut funding to Indigenous languages further exacerbating the problem. Canada’s legal and economic promotion and support of English and French has not been extended to the same degree for Indigenous languages and they have no data to show that their minimal efforts in this regard have increased language use. In fact, Canada’s $5 million/year language budget amounts to less than $5 per Indigenous person in Canada annually. It is simply impossible to save languages at this token level. 

I would recommend that the Committee supports the recommendations of the Truth and Reconciliation Report and recommend that Canada provide immediate and significant funding to First Nations on par with funding that supports English and French languages, to ensure immersion and adult programs in every First Nation in Canada.

Submitted by Dr. Pamela D. Palmater, Mi'kmaw Nation, sponsored by Franciscans International, on July 9, 2015 in Geneva, Switzerland.

 Note:

                              (Some of the NGOs in Geneva Switzerland)

After hearing a great deal of misinformation and non-answers from Canada during the United Nations Human Rights Committee's review of Canada's obligations under ICCPR (International Covenant on Civil and Political Rights); some of the NGO's (non-governmental organizations) that attended asked if we could submit clarifications to the committee before they conclude their review. We were given permission to do so, and some of us submitted briefs which were to be no longer than one page. My original submission contains footnotes and links to sources not provided here.

Some of the other NGO's (like FAFIA and Amnesty International), made clarifications and recommendations related to various issues, some of which included:

- addressing homelessness as part of the right to life;

- insufficient review and oversight of security and law enforcement under Bill C-51; 

- the need to support unanimous recommendations by all international human rights bodies recommending a national inquiry and action plan on murdered and missing Indigenous women; 

- need to Canada to respect laws related to free, informed and prior consent of Indigenous peoples for land use, including extractive industries;

-  removal of sex discrimination from the Indian Act registration provisions; and 

- clarifications around the skewed RCMP statistics which try to paint a discriminatory picture of Indigenous peoples.

Canada was given 48 hours to submit written material to supplement their oral testimony. The Committee's conclusions are due July 23, 2015.

My Submission to United Nations Human Rights Committee on Canada's Human Rights Violations

Statement of Pamela Palmater

to the

114th Human Rights Committee Session:

Formal Briefing on Canada

(July 6, 2015 Geneva, Switzerland)

Kwe, n’in teluisi Pam Palmater. I am from the sovereign Indigenous Nation of the Mi’kmaq in Mi’kma’ki, Canada. I am here as an impacted Indigenous individual thanks to the support of Franciscans International. Today I would like to testify to three urgent situations related to Canada’s obligations under the Covenant which are also raised in the joint submission presented by the NGO Mining Working Group in response to the List of Issues which I fully support:

First, the criminalization of Indigenous peoples in Canada for our human rights advocacy and defense of our lands.

Federal and provincial laws and regulations have criminalized Indigenous peoples’ traditional occupations and trade economies by making it illegal to hunt, fish, gather or use our natural resources within our traditional, treaty, title, trapping or reserve lands. Engaging in Indigenous rights advocacy or defense of the environment to protect the health of our lands, waters, plants, animals and people also results in our public vilification, beatings, arrests, imprisonment, and/or deaths.

The incarceration rate for Indigenous peoples is 10 times higher than the national average. Since 2000, the Indigenous inmate population has increased by over 56% and in some prisons, represent as much as 65% of the inmate population. The Government’s own studies have consistently concluded that it is the result of racism in Canada’s justice system.

The recently enacted Anti-Terrorism Act (C-51) threatens to treat peaceful Indigenous activists as potential terrorists. There are several examples in which Canada’s Ministers, military, and RCMP have already labelled First Nations as “insurgents”, “eco-terrorists” and “threats to national security.” Given this context, we feel that we will be targeted under this law if we continue our traditional practices.

Second, the Committee ought to emphasize the growing crisis of poverty and discriminatory treatmentof Indigenous peoples.

Despite being less than 4% of the population, Indigenous children make up nearly 50% of all children in state care (90% in Manitoba). 73% of all water systems in First Nations are at high risk – for those that have running water. The majority of houses on reserve are in need of major repair and/or overcrowded (upwards of 25 people to a home). Indigenous peoples suffer higher rates of ill health, accidents, and injuries and have some of the highest suicide rates in the world. Indigenous women and girls are over-represented in those that are murdered or missing – 16% nationally, but as high as 55% in provinces like Saskatchewan. Indigenous peoples have lower rates of education and employment and live 7-20 years less than Canadians.

As different UN mechanisms have consistently found, this crisis is particularly jarring in a wealthy and highly developed country like Canada - especially since the majority of the wealth comes from Indigenous lands.The situation is aggravated by the Government’s failure to protect Indigenous peoples’ rights, to remedy harms, and to properly fund Indigenous institutions.

Third and finally, I emphasize Canada’s failure to consult with Indigenous peoples regarding legislation and actions impacting Indigenous lands and waters.

Despite decisions from the Supreme Court of Canada directing Canada to consult, accommodate, and obtain the consent of Indigenous peoples, Canada has unilaterally limited debate and refused to consult with Indigenous peoples on legislation which impacts our inherent, Aboriginal and treaty rights.

Peaceful civil actions by Indigenous peoples to protect lands and waters from clear-cutting, mining, hydro-fracking or pipelines are met with heavy RCMP intervention. State law enforcement is used to protect state subsidized corporations to engage in the extraction of Indigenous lands, waters and resources without our consent, to our social and economic detriment, to the destruction of our lands and waters and in violation of our human rights.

Together with the NGO Mining Working Group, I urge the Committee to consider the following recommendations for Canada:

(1) Repeal Bill C-51 Anti-Terrorism Act and all recent legislation unilaterally imposed on Indigenous peoples and start a comprehensive study and consultative process in partnership with Indigenous peoples;

(2) Develop independent and more robust oversight, reporting, and redress mechanismsfor Canada’s national security activities, law enforcement, and surveillance of Indigenous peoples and other environmental and human rights defenders;

(3) Take all measures necessary to ensure that all domestic and international extractive activities by Canadian corporations comply with human rights obligations, including obtaining the free, informed and prior consent of Indigenous peoples;

(4) Provide adequate funding to Indigenous peoples to address the multiple, over-lapping crises in education, health, housing, food, water, infrastructure, flooding;

(5) Take emergency action to address structural discrimination especially the over-representation of Indigenous children in care; murdered and missing Indigenous women and girls; and the over-incarceration of Indigenous peoples; and

(6) Implement treaties, address outstanding claims of lands and resources; and develop a more equitable revenue sharing structure in partnership with Indigenous peoples.

(    Note: 

      

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

      

The Committee only allows 3 minutes to present. Therefore, all presenters had to pick only 2 or 3 core issues to discuss. I could not read the entirety of even this small submission, so I hit the highlights of the issue and read the recommendations. Sharon McIvor was there to make a submission on two issues: murdered and missing Indigenous women and sex discrimination against Indigenous women and their descendants in the Indian Act registration provisions. Art Manuel presented on self-determination and Canada's failures in this regard. Amnesty International spoke on a variety of issues, one of which was Bill C-51 and recommending its repeal.
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