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Thirty Years Since the Charter’s Equality Provisions and LEAF’s Founding. Where is Equality Now?

By Elizabeth Shilton

Women’s rights activists and advocates worked hard during the pre-Charter constitutional negotiations to gain broad equality rights provisions in the 1982 Charter of Rights and Freedoms. When those provisions came into effect on April 17, 1985, the Women’s Legal Education and Action Fund opened its doors to ensure that they would be given real meaning by the courts.

In its initial cases, LEAF addressed such relics as laws that prevented women from retaining their birth names after marriage. LEAF then quickly moved to tackle the pervasive problem of sexual violence. In the 1988 Canadian Newspapers Co. v. Canada (Attorney General) case, LEAF intervened to ensure that sexual assault victims would have a right to prevent publication of their names. Since then, LEAF has appeared before the courts many times to advocate for women who have been sexually assaulted. LEAF helped to convince the Supreme Court that silence does not mean consent (M(ML), 1992) that rape myths have no place in Canadian courts and that consent must be affirmatively communicated (Ewanchuk, 1999), that survivors of residential school sexual assault should be compensated (Blackwater v. Plint, 2005), that women sexual assault complainants with intellectual disabilities deserve equal access to justice (R. v. D.A.I., 2010), that unconscious women cannot consent (R. v J.A., 2011) and that women should not be deterred from reporting their assaults because they wear a niqab (R. v. N.S., 2012).

LEAF also went to court  to ensure that women’s past sexual history (Seaboyer, 1991) and medical records (O’Connor, 1995) were not fair game in sexual assault trials for defence counsel seeking evidence of sexual history or mental health problems to impugn their credibility. I was co-counsel in both these cases. In O’Connor, LEAF intervened in coalition with the Aboriginal Women’s Council, the Disabled Women’s Network of Canada (DAWN) and the Canadian Association of Sexual Assault Centres. We argued that the counselling records of women alleging sexual assault should not be accessed by lawyers defending Bishop O’Connor, a priest and former residential school principal subsequently convicted of rape. In our view, the records sought had no relevance either to the facts of the case, or to the credibility of the witnesses. Although we were unsuccessful in court in both these cases, our courtroom advocacy formed the basis for our law reform work which resulted in legislative protections in the Criminal Code to prevent courtroom violations of women’s privacy from compounding the violations of their bodies from sexual assault.

But law reform on issues involving sexual violence is still very incomplete, as we have recently been reminded by the horrendous death of Edmonton woman Cindy Gladue and by the treatment her death received at the hands of the law. The Crown’s extraordinary and unprecedented introduction of the most intimate of a woman’s body parts into evidence in that trial, along with arguments from defence counsel that Ms. Gladue died because she consented to the “rough sex” that resulted in a mortal wound to her vagina, show us how far the criminal justice system still has to go before women are respected and protected by its processes.  The jury verdict in that case, acquitting the man who inflicted that wound, reinforces a harsh reality of which we are already well aware in a country where over 1100 Indigenous women and girls have gone missing or been murdered since the Charter became part of our constitution – the reality that women cannot count on the law to protect them from sexual violence either inside and outside the courtroom.

I became involved with LEAF in its heady early days when the Charter was new and the winds of change seemed to carry the promise that women’s equality was just over the horizon. Some gains have indeed been made over the three decades since the Charter’s equality rights provisions came into effect, but not for all women in Canada and certainly not for Cindy Gladue. There are very few national feminist organizations in Canada, and fewer still that fight in the courts to ensure women’s equality rights are considered when legal decisions are made. I believe that LEAF’s work is more necessary than ever. Until women like Cindy Gladue and their families are treated by the law with respect, compassion and equality, we must continue that work.

Elizabeth Shilton is a Senior Fellow with the Centre for Law in the Contemporary Workplace at Queen’s University and an Adjunct Professor at Queen’s Law.  Prior to returning to school to complete her doctorate in law, she was the long-time managing partner of the Toronto law firm of Cavalluzzo Hayes Shilton McIntrye & Cornish, where she practiced labour/employment and equality law. While in practice, she represented LEAF and other equality-seeking organizations before the Supreme Court of Canada in a number of cases.  In the late 1980s and early 1990s she served as a board member of both LEAF and the LEAF Foundation, and twice co-chaired LEAF’s National Legal Committee. In 2010, she was among the “lawyers who have made a difference” honoured by LEAF as part of its 25th Anniversary celebrations.

This piece was originally published at leaf.ca, and appears here with permission.

 

By |May 17th, 2015|Blog|

Beijing+20 – a gathering of the decades for the 2015 Commission on the Status of Women

By Lara Koerner Yeo

2015 marks the 20th year anniversary of the 1995 Beijing Declaration and Platform for Action: the seminal outcome document of the Fourth World Conference on Women in Beijing. The Platform, commonly recognized as the blueprint for women’s equality, outlines actions to be undertaken by States to end gender discrimination and achieve gender equality in twelve key areas, including education, health, participation in public and political life, access to media and telecommunications technologies, and State response to all forms of violence.

In an op-ed for International Women’s Day on March 8th, Executive Director of UN Women, Phumzile Mlambo-Ngcuka, makes clear that while there has been progress towards gender equality, there remains an enormous gap in implementation across the world and a need for renewed political will to combat gender discrimination. The statistics Mlambo-Ngcuka shares are a sobering reminder: in 1990, twelve women were Heads of State; in 2015, there are fifteen. Eight out of ten parliamentarians in the world are men, and given the rate of women entering the salaried workforce around the world, we are more than eight years away from gender parity in the workforce and more than seventy-five years away from equal pay for equal work between the sexes.

International Women’s Day this year served as a gateway to the fifty-ninth Commission on the Status of Women in New York, held from 9-20 March. The gathering is recognized as CSW59/Beijing+20, and had the specific mandate to review the implementation of the Platform for Action and the outcome documents of the twenty-third special session of the General Assembly.

Notably, there is no Fifth World Conference on Women this year after UN Member States failed to pass a resolution for another conference in 2012. Many feminists were opposed to another conference: fearing that Member States would backtrack on Beijing commitments if the document were to be reopened for debate; noting that the focus must remain on continuing to implement what is in the Platform for Action now, given how far Member States still need to go to achieve gender equality; and wanting the financial resources that would be spent on a conference to be allocated to other endeavours to support women’s equality work. World conferences, however, remain a vital tool to galvanize movements and refocus international and domestic efforts on complex issue areas. While there are many who support and continue to push for another World Conference on Women, for now, State delegations, including a Canadian delegation, and women’s rights advocates and professionals have gathered in New York for CSW59/Beijing+20.

Federal Minister on the Status of Women Kellie Leitch, led the Canadian delegation. Prior to the start of the fifty-ninth session, Minister Leitch released a statement on the occasion of International Women’s Day. The statement highlights that the “Government of Canada is committed to taking actions that promote economic opportunities for all Canadians, including women… and has also committed to keeping our communities safe for all Canadians”. Canada’s National Review for the Commission includes actions by Canadian governments to achieve gender equality under ten of the twelve key issue areas identified in the Platform for Action, omitting review sections on Women and the Economy and an Institutional Mechanism for the Advancement of Women.

While a reading of Status of Women Canada statements and Canada’s National Review provide a reader with a sense that Canadian governments are taking concrete , comprehensive action to achieve gender equality—international gender indexes when compared over time provide contrast. Canada ranked 19th in the 2014 Gender Gap Index, slightly improved from 2013’s 20th ranking, though a downward departure from 2006‘s 14th ranking. Canada ranks 8th in the 2014 UN Human Development Index; while an improvement from 2013’s 11th ranking, it is a notable plummet from Canada’s 1st placed ranking throughout much of the 1990s.

Representatives of Canadian civil society, including the Canadian Federation of Univeristy Women, and the Canadian Labour Congress (CLC), submitted non-governmental organization statements to the Commission. The CLC statement provides an overview of key findings from the Canadian Centre for Policy Alternatives (CCPA) shadow report on the status of Canada’s implementation of the Beijing Declaration and Platform for Action. The CCPA, read alongside Canada’s National Review, presents a more realistic review of the challenges that continue to bar gender equality in Canada. The report notes the low rates of access to child care for Canadian families; the disproportionate burden on women to provide unpaid childcare work; the uneven access to abortion services across Canada; the relatively stagnant rate of change on women’s poverty and the gender gap in the workforce; a lack of gender analysis across government policies and programs; the disproportionate negative impact upon women following State austerity measures in the advent of the financial crisis; and the persistent barriers to women’s political representation.

Status of Women Canada notes that they consult and engage with women’s organizations throughout the National Review. While the CCPA report clearly articulates that there are lost opportunities for substantive partnerships between government and Canadian civil society stemming from changes to the SWC mandate, gender-blind policies, and funding cuts to organizations that conduct research, policy analysis, and advocacy on women’s equality and human rights issues in Canada.[1]

Indeed, in Canada today there have been funding cuts and an advocacy chill felt by social justice and environmental organizations, including charities and women’s organizations that conduct policy research and advocacy. There has also been the loss of the long form census, which has had negative impacts on data analysis, including gender data analysis.[2] Further, the Canadian government has made clear that there is inconsistent race-disaggregated data collected across the criminal justice system.[3] In sum, there is uneven access to sex- and race-disaggregated data across data indicators, which is a critical tool to understanding the nuances and intersections of sex and racial discrimination and working towards gender equality for all.

We have much to celebrate as women and men, boys and girls, in Canada. As a country, we have the human, institutional, and financial resources to achieve gender equality. However, we’re not there yet. As we celebrate the 20th anniversary of the Beijing Declaration and Platform for Action, take a moment to consider how we can take action in support of women’s equality and human rights in Canada.

One easy action includes supporting a national dialogue on gender equity and justice issues, such as that advanced by the Up for Debate campaign. Up for Debate represents a coalition of over 150 organizations in Canada calling for a national leaders debate in anticipation of the 2015 federal election on issues such as women’s economic inequality, violence against women, and the lack of support for women’s leadership and organizations. One can also choose to financially support organizations, such as the CCPA, that continue to conduct civil society policy research to augment government reporting and inform policy discussions. And one can stay tuned to on-going women’s rights controversies that arise, such as the current attack on Muslim women’s rights in Canada. In response to such occurrences, one can choose to take action in solidarity by speaking out in support of women’s equality and rights, signing petitions, and calling political representatives to state one’s position—small actions that can create substantial change when magnified by millions of similar small actions across the country.

[1]    Canadian Centre for Policy Alternatives, Progress on Women’s Rights: Missing in Action A Shadow Report on Canada’s Implementation of the Beijing Declaration and Platform for Action, October 2014, at 85, online: CCPA <https://www.policyalternatives.ca/publications/reports/progress-women%E2%80%99s-rights-missing-action>.

[2]    Ibid at 82-3.

[3]    Ibid at 45; Committee on the Elimination of Discrimination against Women, Observations of the Government of Canada on the report of the inquiry concerning Canada of the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/OP.8/CAN/2, 6 March 2015, at para 40, online: OHCHR <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CAN/CEDAW_C_OP-8_CAN_2_7644_E.pdf>.

By |May 10th, 2015|Blog|

The Responsibility to Protect Turns 10

By Logan St. John-Smith

This year is the tenth anniversary of the 2005 World Summit, which brought together more than 170 Heads of State and Government at the United Nations (UN) Headquarters in New York.

One of the most important developments to come out of that historic meeting is encapsulated in paragraphs 138-140 of the 2005 World Summit Outcome Document, where the UN General Assembly endorsed what is known as the Responsibility to Protect (R2P), and made a commitment to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.  Should national authorities fail in their duties to protect their citizens, and peaceful means of achieving this goal be inadequate, collective military action may be authorized through Chapter VII of the UN Charter and the Security Council.

The Responsibility to Protect doctrine was first articulated in the Report of the International Commission on Intervention and State Sovereignty in December 2001 as the result of an initiative sponsored by the Government of Canada. To its supporters, R2P represents a significant normative development and a foundational step for greater protection for human rights globally. To its detractors, R2P represents a violation of the principles of state sovereignty and a license for war.

For both sides of this debate, the 2011 NATO-led intervention in Libya that ousted Muammar Gaddafi is a watershed moment. UN Security Council Resolution 1973 authorized member states to take all necessary measures to protect civilians under threat of attack in Libya, leading to an eight month bombing campaign that culminated in the death of the Libyan leader. This explicit invocation of the Responsibility to Protect doctrine in justifying military action is viewed today both as the vindication of the principles endorsed at the 2005 World Summit, and as the proof of its potential for abuse.

The Secretary General’s Sixth Report on the Responsibility to protect was released in August 2014. Produced annually since 2009, these reports are part of an informal dialogue at the UN General Assembly regarding the further implementation and entrenchment of the Responsibility to Protect. Noting that the doctrine is being tested by the unfolding crises in Syria and elsewhere, the Secretary General this year called on member states to use the 10th anniversary of the 2005 World Summit to craft an ambitious vision for the future of the Responsibility to Protect.

 

By |May 4th, 2015|Blog|

Remembering the Rwandan Genocide

By Jessica Thrower

This month we commemorate the twentieth anniversary of the Rwandan genocide – an appalling atrocity where an estimated 800,000 to 1 million Rwandans were murdered in a three-month period that began April 7th, 1994. What are some of these lessons learned from the Rwandan genocide?

  1. It starts with words

One of the first lessons learned from the Rwandan genocide is that these events occurred as a result of state-sanctioned incitement to hate. The media conducted an orchestrated dehumanization and demonization of the minority Tutsi population, calling the Tutsis “cockroaches”. A private radio station, Radio-Television Libre des Mille Collines, later helped conduct the genocidal onslaught by giving specific orders on how to carry out killings, including identifying individuals to be attacked and where specifically they could be found.

Although Rwandans and international observers deplored the media campaign conducted against the Tutsis early on, no one intervened to stop the calls of hatred or the promotion of violence. In an attempt to prevent genocides before they happen, the international community must ensure that they are prosecuting individuals that are trying to incite genocide (as it is a crime under the Genocide Convention) and work to jam airwaves to prevent organized killing campaigns.

  1. Violence used against vulnerable populations

The second lesson learned is the consistent use of violence targeted at vulnerable populations. During mass atrocities, women, children, and refugees are often the first victims of oppression and brutality. The evidence presented at the International Criminal Tribunal for Rwanda showed that sexual violence and rape are regularly used as a weapon of war and a means to ensure the continued degradation, humiliation, and torture of the population.

  1. Danger of indifference and consequences of inaction

The third lesson learned is the danger of indifference and the consequences of inaction. The Rwandan genocide not only occurred because of state-sanctioned violence, but also because of international idleness regarding the establishment of an arms embargo, the stopping of aid, and use of military intervention.

In the Rwandan genocide, soldiers, the national police, and militia used small arms, grenades, and mortars. They attacked churches, schools, hospitals, and other regular gathering points for Tutsis, killing thousands of individuals. After this first wave of assaults, the survivors were then further terrorized by a second wave of attacks from civilians that wielded machetes or homemade weapons. Although the UN Security Council eventually established an arms embargo against the country, this occurred too late to prevent further genocide. Had the UN Security council imposed an embargo earlier, it would have led to fewer arms being available in the country, making attacks less effective.
In addition to establishing an arms embargo, international actors should have sent a clear condemnation of genocidal government and that they would stop aid if further violence occurred. The Rwandan regime was heavily dependent on aid and the government could not operate for long without it. If the international community announced that direct foreign assistance would be denied, it would have further called into question the legitimacy of the government and its long-term viability. This might have made it harder for the génocidaires to persuade Hutu elite and Rwandans to go along with their plans and follow their directives.

In some cases, the international community must also be willing to use force to end the killing. At the beginning of the crisis, the UN peacekeepers did not have the mandate or the personnel required for effective action. If the mandate had been broadened to allow for offensive action and had the peacekeepers received support from international troops, such as the French, Belgian, and Italian troops that were sent to evacuate their citizens, the combined forces could have saved the lives of many people and limited the number of civilians killed.

Critical reflection

In remembering the Rwandan Genocide, the international community must recommit to preventing and protecting human rights and the victims of mass atrocities. Although some of the results since Rwanda have been encouraging, such as the eventual NATO intervention in the Balkans, British troops in Sierra Leone, UN peacekeeping and French-led European troops in the Congo, the international community must continue to learn and become more effective in responding to violence. The international community must show that the pleas and concerns coming from Syria and most recently the Central African Republic are not falling on deaf ears.

By |April 26th, 2015|Blog|

Holocaust Remembrance Day 2015: enduring lessons 70 years on

By Adam Edgerley

This year, Holocaust Remembrance Day takes place on April 15. Seventy years after the end of the Second World War, the memory, consequences and lessons of the Holocaust remain powerful and distinct.

Commemorating the Holocaust has particular significance this year. In Canada, Ottawa unveiled its plans for the nation’s official Holocaust monument last May, ending Canada’s status as the only Allied country without such a memorial.[1]

Towards a National Monument

Parliament unanimously passed the National Holocaust Monument Act in 2011,[2] which established a council to create a national Holocaust monument by the end of 2015. The monument was to be placed in the heart of the government district in Ottawa, adjacent to the Canadian War Museum, a short walk from Parliament Hill.[3]

After narrowing the proposals to a shortlist of six designs, the council announced the selected bid on May 12 of last year.[4] The winning design was produced by a team led by museum planner Gail Dexter Lord, consultant to both Winnipeg’s Museum for Human Rights and New York’s 9/11 Memorial, as well as Canadian architect Daniel Libeskind, designer of the Jewish Museum of Berlin and the Royal Ontario Museum’s Crystal in Toronto. The final plan, evocative of the Crystal, is designed as a “journey through a star” comprised of many large, angled and overlapping concrete triangles that, from the air, resemble an elongated Star of David. Its shadowy interior suggests the darkness and confusion of the Holocaust, with a symbolic, ascending exit towards Parliament’s Peace Tower.

Tim Uppal, the MP who introduced the memorial private-members bill, described the monument as aiming “to promote a better understanding of the historical events of the Holocaust and how these events affected Canadian history.”  Canada’s memorial will join other well-known sites including the US Holocaust Memorial Museum in Washington, the sprawling and recently-unveiled Memorial to the Murdered Jews of Europe in Berlin, and Yad Vashem in Jerusalem.

In Canada, political support from all parties has been strong since the bill was tabled in 2010, backed by the Conservative government, and mirroring a contemporaneous Liberal private-member bill. “The idea is so simple that we have to ask why no one thought of it before?” said then-deputy NDP-leader Thomas Mulclair in 2010. “It is never too late to do something good.”[5]

Canada and the Holocaust

The Holocaust touches Canada in a number of ways. A tenth of the population enlisted in the nation’s armed forced during the Second World War, totaling over one million Canadians. They formed part of the Allied invasion of Europe that ended the War in 1945. My own grandfather witnessed the carnage of recently-liberated concentration camps in Germany as a Canadian paratrooper, while more distant relatives were deported from the Baltics and murdered.

After the War, 40,000 Holocaust survivors settled in Canada, and they and their descendants form a significant share of Canada’s Jewish population today.[6] Yet any appraisal of Canada’s response to the crises faced by the Jews in Nazi Germany and German-occupied Europe is blackened by years of callously anti-Semitic immigration policies that barred thousands of desperate Jewish refugees from Canada’s shores. Immigration officials and cabinet ministers right up to Prime Minister Mackenzie King rejected all but a tiny fraction of Jewish refugees fleeing the Third Reich, a response far short of even the apathetic policies of many other Allied nations.[7] Most infamously, in 1939, the federal cabinet refused entry to the 937 German-Jewish refugees aboard the ship MS St. Louis after the ship had similarly been blocked from Cuba and the United States.[8] Upon the ship’s return to Europe, some passengers were able to find refuge but one in four were ultimately murdered in the Holocaust.[9]

The Holocaust and Our World

The Holocaust was a period of unprecedented oppression and violence spanning Nazi Germany and German-occupied Europe. Six million Jews were murdered, alongside — depending on what wartime murders are included — another six million Slavic, Roma, gay, and political victims. The world is still learning about the Holocaust. A landmark report released in 2013 identified over 42,000 Nazi ghettos and camps across Europe, more than five times what was previously thought.[10]

While Canada’s steps towards a national monument signify a resolve to learn from and remember the Holocaust, the past year of political economic and even military instability has shown that this commitment is not universal. Greece’s overtly neo-Nazi Golden Dawn party receives rising support; France’s far-right National Front has won the country’s European Parliament elections; and Russia couches violent infiltrations into southeastern Ukraine in propaganda misappropriating the legacy of Nazism and anti-Semitism. Deadly terrorist attacks at the Jewish Museum of Brussels and the Hypercachet kosher market in Paris have left some European Jews questioning their physical safety on the continent.

Nor was the Holocaust an end to industrialized mass murder. In the Syrian civil war, over 100,000 civilians have been killed and five million forced from their homes. The Syrian government’s use of chemical weapons prompted an Israeli cabinet minister to chillingly note “it cannot be that less than 100 kilometers from Israel, children are being gassed to death and we let the world remain silent and ignore it.”[11]

Holocaust Remembrance Day is an important time to reflect upon a tragedy that is at once entirely singular, and yet also indicative of mankind’s lasting capacity for extreme cruelty. Preventing racism, hatred, war, and genocide are ongoing projects for the world. Remembering the Holocaust is essential in 2015, as we in Canada and around the world work to build societies that are more tolerant, more peaceful, and free.

[1] National Holocaust Monument. The National Holocaust Monument Development Council. 3 Apr 2015. http://holocaustmonument.ca/#council

[2] Department of Justice Canada. National Holocaust Monument Act. 25 Mar 2011. http://laws-lois.justice.gc.ca/eng/annualstatutes/2011_13/page-1.html

[3] Mills, Carys. “National Holocaust Monument finalists unveiled.” Ottawa Citizen 21 Feb 2014. http://ottawacitizen.com/news/local-news/national-holocaust-monument-finalists-unveiled

[4] Bozikovic, Alex. “National Holocaust Monument design unveiled.” Globe and Mail 12 May 2014. http://www.theglobeandmail.com/life/home-and-garden/architecture/national-holocaust-monument-design-unveiled/article18613725/

[5] Open Parliament. Thomas Mulcair on National Holocaust Monument Act. 8 Dec 2010. http://openparliament.ca/debates/2010/12/8/thomas-mulcair-2/only/

[6] Citizenship and Immigration Canada. News Release — Canadian Chair Year of the International Holocaust Remembrance Alliance Ends: Holocaust Awareness and the Fight Against Anti-Semitism Continue. 25 Feb 2014. http://www.cic.gc.ca/english/department/media/releases/2014/2014-02-25.asp

[7] None Is Too Many: Canada and the Jews of Europe 1933-1948. Abella, Irving and Harold Troper. Toronto: University of Toronto Press, 2012.

[8] Ontario Human Rights Commission. S.S. St. Louis and human rights. 10 Mar 2014. http://www.ohrc.on.ca/en/living-rights-and-creed/ss-st-louis-and-human-rights

[9] United States Holocaust Memorial Museum. Voyage of the St. Louis. 20 Jun 2014. http://www.ushmm.org/wlc/en/article.php?ModuleId=10005267

[10] United States Holocaust Memorial Museum. Encyclopedia of Camps and Ghettos, 1933-1945. 20 Jun 2014. http://www.ushmm.org/research/publications/encyclopedia-camps-ghettos

[11] “Israeli intelligence seen as central to US case against Syria.” The Times of Israel 27 Aug 2013. http://www.timesofisrael.com/israeli-intelligence-seen-as-central-to-us-case-against-syria/

By |April 13th, 2015|Blog|

Canada in Violation of International Human Rights Law – Pressure mounts to hold national inquiry

By Lara Koerner Yeo

On Friday, 6 March 2015, the United Nations Committee on the Elimination of Discrimination against Women (CEDAW Committee) released an unprecedented report. The report finds Canada in violation of articles 2, 3, 5, 14, and 15 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).[1] The CEDAW Committee states that Canada has failed to take sufficient action to respect and protect the human rights of Aboriginal women, including their rights to life and personal security. Thus, by omission, Canada is in contravention of its obligations under the Convention to eliminate all forms of discrimination against women, including the obligation to equally protect Aboriginal women under the law and provide effective remedies when they are subject to violence.

This is the first time an international human rights expert body has found Canada to be in contravention of international human rights norms. The report has been recognized as “extremely important” for Canada, and an “embarrassment for Prime Minister Stephen Harper’s Conservative government.”

The report is the result of a summer 2013 inquiry undertaken by CEDAW members Niklas Bruun and Barbara Bailey into the situation of violence against Aboriginal women and girls in Canada. Canada gave its permission for CEDAW Committee members to investigate in spring 2013, two years after the Canadian Feminist Alliance for International Action (FAFIA) and the Native Women’s Association of Canada (NWAC) requested a CEDAW Committee inquiry into missing and murdered Aboriginal women under article 8 of the Optional Protocol to CEDAW.

For those who devote their professional lives to the advancement and domestic implementation of international human rights law, this kind of report is game changing. As Shelagh Day, a long-standing, outspoken advocate on the issue at the UN and Inter-American Commission on Human Rights writes, “for those of us who have been working on equality rights law for a long time, this decision includes analysis and findings that we have been seeking since section 15 of the Charter was introduced.” Day highlights three key ideas that the report brings to the fore: the interconnectedness and indivisibility of economic, social, cultural, political and civil rights for the practical realization of women’s human rights; systemic discrimination, including the finding that State actors and institutional mechanisms can be engaged in, and thus perpetuating, such discrimination; and that the failure of a State to act can be the violation. Such explicit recognition of these things, and their role in connection to States’ violations of women’s rights, is norm-advancing.

National Aboriginal Organizations, including NWAC and the Assembly of First Nations (AFN), have been quick to respond to the report release. Dawn Harvard of NWAC, in a joint NWAC-FAFIA press release, questions, “What more does Canada need?” The AFN affirms that the issue of violence is “a Canadian issue,” and the particular findings of the CEDAW report “cannot be ignored.” The Union of BC Indian Chiefs writes that Canada is in “DENIAL” about the efficacy and comprehensive nature of its current response to the situation of violence against Aboriginal women and girls; and both Amnesty International and Human Rights Watch responded to the release with statements critiquing Canada’s response to the report.

The responses by these Aboriginal and human rights organizations both highlight the great need for improved state response, and reflect the general sentiment of civil society in Canada today. Myriad public and private actors, policy and civil society stakeholders, call for a national inquiry into violence against Aboriginal women and girls. In a recent Angus Reid poll, almost three-quarters of Canadians supported a national inquiry.

While the CEDAW Committee report recommends that Canada launch a national inquiry, Canada rejected the three recommendations regarding a national inquiry and action plan.[2] Canada disagrees that it has violated the Convention,[3] and did not make any comment on how it would proactively change its current policy and programmatic response on the issue to better align with its human rights obligations.

The CEDAW Committee report recommendations will be the newest set of recommendations to be added to the compendium of report recommendations on the subject amassed by the Legal Strategies Coalition. The Coalition’s study, recently released in late February, found that only a few of the over 700 recommendations on improving State response to violence against Aboriginal women in Canada have been implemented by Canadian governments. The Coalition reviewed fifty eight reports, studies and inquiries and found that there is a consensus among reports on the systemic nature of the root causes of violence and a need for a national inquiry—something the CEDAW Committee report unequivocally reaffirms.

The release of the Legal Strategies Coalition report, on 26 February 2015, was followed by the national roundtable on missing and murdered Aboriginal women on, 27 February 2015. The roundtable was framed as a “beginning” – a way to start dialogue between provincial, territorial, and federal ministers, and with representatives from affected Aboriginal families. The outcome led to no substantive change on the federal government’s position vis-à-vis an inquiry—a position that unsurprisingly mirrors Canada’s response to the CEDAW Committee report.

The federal government is set to roll out its Action Plan to Address Family Violence and Violent Crimes Against Aboriginal Women and Girls on 1 Apr 2015. Of concern, however, is how federal leadership continues to frame the issue and response initiatives. Amnesty International Canada has characterized Federal Status of Women Minister Kellie Leitch’s framing of aspects of the issue, such as the perpetrators of violence, as “incorrect and dangerous.” The Action Plan—something that bears no evidence of being comprehensive and national in scope, but instead a plan that maintains a “piecemeal and fragmentary” status quo—does not heed the recent Inter-American Commission on Human Rights, Legal Strategies Coalition and CEDAW Committee report recommendations for a comprehensive national inquiry and/or a national action plan.

Advocates maintain that the February 2015 roundtable, Action Plan, and decision to hold another roundtable before the end of 2016, do not lessen the need for an inquiry. There is no question that Canadian governments are taking action, Ontario serving as an example; however, in light of the current findings by the CEDAW Committee, there is legitimate cause to question the adequacy of regional responses, rather than a comprehensive, national inquiry and/or action plan. The federal government remains opposed to such national action—a stance in perpetual opposition to the provinces, territories, key Aboriginal and non-Aboriginal civil society stakeholders, and international and regional human rights expert bodies.

[1] Committee on the Elimination of Discrimination against Women, Report of the inquiry concerning anada of the Committee of the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination, CEDAW/C/OP.8/CAN/1, 6 March 2015, at para 211, online: OHCHR <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CAN/CEDAW_C_OP-8_CAN_1_7643_E.pdf>.

[2] Committee on the Elimination of Discrimination against Women, Observations of the Government of Canada on the report of the inquiry concerning Canada of the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/OP.8/CAN/2, 6 March 2015, at para 122, online: OHCHR <http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CAN/CEDAW_C_OP-8_CAN_2_7644_E.pdf>.

[3] Ibid at para 6.

Lara Koerner Yeo is a first year student at the University of Toronto, Faculty of Law. She was a research assistant in the women’s rights division of Human Rights Watch and worked on the report, “Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada.” She currently works with the Canadian Feminist Alliance for International Action.

By |March 31st, 2015|Blog|

Is CETA the Iron Curtain to freedom of movement between Canada and the European Union?

By Ashli Pinnock 

In an increasingly globalized economy, the Comprehensive Economic and Trade Agreement (CETA) currently in negotiations between Canada and the European Union seems to be a match made in heaven. This is the biggest bilateral initiative for Canada since the North American Free Trade Agreement (NAFTA) and has been in the works since 2007.

From a Canadian perspective the benefits of CETA are straightforward. As Prime Minister Harper urges that Canada’s top priority is to create jobs and opportunities for Canadians in every region of the country, Canadian citizens are likely to stop their inquiry there. However, the influence this agreement has had on international human rights is counterintuitive to the advancement of international human rights from a Canadian standpoint. Inevitably, the opening markets for Canadian goods and services that the agreement aspires to opening political borders as well. With this comes the free flow of people. Instead of asking how this trade agreement may benefit all Canadians perhaps it’s time to ask how this trade agreement will continue to affect people beyond our borders?

Although Canada has often been seen as a world leader among host country for refugees seeking asylum, nearly five years ago Canada implemented visa restrictions for a number of European countries as a means of deterring the number of “bogus” Roma asylum claimants. Was this amendment to the refugee system Canada’s way of skirting a limitation on freedom of movement or freedom from fear? Diplomats and economists explained this move as a way of ensuring that the free-trade agreement did not collapse as a result of the introduction of a visa program for Roma people – one of Europe’s most persecuted populations.

Accordingly, with the solidification of the agreement, the Canadian government has since lifted these restrictions and refurbished the system for considering asylum cases. This was spurred by the suggestion that many European nations with restricted access to Canada as a result of the visa requirements would not ratify CETA. Most recently citizens of the Czech Republic were granted travel access to Canada for up to six months without a visa. What does this mean for the Canadian refugee system?

History has shown that the Canadian response to refugees is not always based on a general policy to refugees through the Immigration and Refugee Protection Act, rather it is often contingent on the relation Canada has towards a particular nation. Is this the best way to regulate the refugee system? Obviously the decision as to whether or not access should be granted to refugees should focus on international human (i.e. on genuine principles outlined in The Convention relating to the Status of Refugees) Canada’s decision to shun the ongoing and longstanding violence faced by the Roma people living in the European Union brings into question the unclear trade-offs between economic prosperity and human rights. Has human rights been forgotten in the discourse of the CETA?

By |March 19th, 2015|Blog|

What’s IHRL Got to Do with It?

International Human Rights Law & the Charter of Rights and Freedoms

By Jena McGill

Early in the life of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada recognized international human rights law (IHRL) – including “declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms” – as a “relevant and persuasive” source for interpreting the rights and freedoms guaranteed by the Charter.[1]  Chief Justice Dickson concluded, “[t]he Charter should be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.”[2]  More recently, the Supreme Court has expanded the scope of relevant IHRL sources beyond Canada’s formal commitments, confirming that the Charter should be interpreted in light of “the current state of international thought on human rights” more generally.[3]

The use of IHRL, broadly defined, is now a mainstay in the interpretation of Charter rights; indeed, the general principle that that the Charter should be interpreted, where possible, in a manner consistent with IHRL is widely accepted.[4]  Nevertheless, using IHRL to breathe life into Charter guarantees has proven easier said than done.

For starters, judicial reliance on IHRL in Charter interpretation is an entirely discretionary exercise.  In some circumstances, a court may refuse to consider IHRL sources, even where relevant documents or principles exist.  For example, in Gosselin v Quebec, the Supreme Court was faced with the question of whether Quebec’s provision of very low levels of social assistance to young adults, insufficient to meet their basic needs, infringed the section 7 Charter right to “security of the person.”[5]  In interpreting “security of the person”, the majority of the Court declined to rely on the International Covenant of Economic, Social and Cultural Rights, and in particular its right to an “adequate standard of living…including adequate food, clothing and housing”. [6]  Why the majority of the Court found it unnecessary to address this clearly relevant IHRL source in interpreting section 7 is left unexplained.[7]  When will IHRL be “relevant and persuasive” to the interpretation of Charter rights? What criteria should a court use to determine relevancy and persuasiveness in this context?

Even where IHRL is found to be “relevant and persuasive” to interpreting a Charter guarantee, it is unclear exactly how a court should make use of that source in a principled manner.  This difficulty comes into sharp relief in circumstances of competing IHRL sources or in situations where the scope of an IHRL right is narrower or more expansive than a Charter right.

In Canadian Foundation for Children, Youth and the Law v Canada, the Supreme Court had to assess whether a Criminal Code defence to assault related to the corporal punishment infringed children’s “security of the person” rights guaranteed by section 7 of the Charter.[8]  The Court divided on which IHRL sources were most compelling.  The majority relied on the fact that the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child (CRC)[9] do not “explicitly require state parties to ban all corporal punishment of children” to conclude that the corporal punishment defence was not a violation of section 7.[10] Justice Arbour, in dissent, was persuaded by the Concluding Recommendations of the Committee on the Rights of the Child, which stated that parties to the CRC ought to prohibit physical punishment of children.[11]  Should the language of formal treaties “trump” the opinions of monitoring bodies in Charter interpretation?  How should a court resolve inconsistencies between treaty language and treaty interpretation?  Does it matter that monitoring bodies like the Committee on the Rights of the Child are political, not legal entities?

To be sure, the realization of Chief Justice Dickson’s presumption of consistency between IHRL and the Charter is a highly complicated exercise, requiring courts to engage important considerations including the compatibility between IHRL and Canada’s unique constitutional order and the inherently political, often contentious, nature of the international human rights system and the various IHRL agreements born of that context.

What’s clear, however, is that the current approach to using IHRL in interpreting Charter rights leaves too many questions unanswered.  While IHRL has been an important, if inconsistently utilized, interpretive aid in Charter jurisprudence to date, the time has come for the development of a more principled, systematic approach to engaging IHRL in the Charter context.  Only then might we realize the full potential that lies at the intersection of IHRL and the Charter.

[1] Reference re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313 at para 57 (Dickson CJ, dissenting).  International law is also relevant to assessing limits on Charter rights under section 1: Slaight Communications Inc v Davidson, [1989] 1 SCR 1038 at 1056-57.

[2] Public Service, ibid.  More recently, see Divito v Canada (Public Safety and Emergency Preparedness), 2013 SCC 47.

[3] Ontario (Attorney-General) v Fraser, 2011 SCC 20 at para 92, citing Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391 at para 78.

[4] Slaight Communications at 1056.

[5] Gosselin v Quebec (Attorney General), 2002 SCC 84.

[6] International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 11.

[7] Gosselin at para 93.

[8] Canadian Foundation for Children, Youth and the Law v Canada (Attorney-General), 2004 SCC 4.

[9] International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[10] Canadian Foundation for Children at para 33.

[11] Canadian Foundation for Children at para 187-88 (Arbour J, dissenting).

By |March 12th, 2015|Blog|

Missing and Murdered Aboriginal Women and Girls: A Documented Human Rights Issue in Canada

By Lara Koerner Yeo

Aboriginal women and girls are disproportionately impacted by violence in Canada. They are more susceptible to disappearance and homicide than non-Aboriginal women and girls, and some reports indicate that police are less efficient in responding to the crimes that victimize them.[1]

Violence against Aboriginal women and girls, as well as the lack of police action in effectively addressing these issues, is well documented by international human rights bodies. Numerous United Nations treaty bodies, including the Human Rights Committee (HRC),[2] the Committee on the Rights of the Child,[3] the Committee on the Elimination of Racial Discrimination,[4] the Committee on the Elimination of Violence against Women (CEDAW),[5] and the Committee Against Torture,[6] have issued reports recommending that Canada improve its response to racialized and sexualized violence against Aboriginal women and girls. In addition to the core human rights treaties monitored by these committees, there are a number of human rights instruments used to reinforce a normative framework, which imposes a positive obligation on Canada to address the issue of violence against women.[7] Canada is thus obliged by international law to “exercise due diligence to prevent, investigate, prosecute, and punish acts of violence against women and girls.”[8] These documents provide further guidance on how to interpret and implement treaty standards to better realize women’s right to security and bodily integrity.

Aboriginal and women’s organizations in Canada, among other human rights and social justice organizations, have been advocating for improved State and police response to violence against Aboriginal women and girls for over a decade. The Native Women’s Association of Canada (NWAC) and the Canadian Feminist Alliance for International Action (FAFIA) have advocated before UN treaty bodies for seven years on this issue.[9] They have also initiated and participated in two thematic briefings on this issue in 2012 and 2013, at the Inter-American Commission on Human Rights (IACHR).[10] As a member of the Organization of American States, Canada has agreed to respect and protect the rights set out in the American Declaration of the Rights and Duties of Man and respond to any rights violations under the Declaration.

In 2013, IACHR Commissioners, and the CEDAW Committee, both visited Canada to investigate the issue of violence against Aboriginal women and girls. The IACHR released a groundbreaking report on January 12, 2015, which was the first report by an expert human rights body to address the issue of missing and murdered Aboriginal women.[11] The report pointed “to Canada’s history of colonization, long standing inequality, and economic and social marginalization as the root causes of violence against Indigenous women.”[12] The CEDAW report is forthcoming.

Canada will be reviewed by the HRC, the Committee on Economic, Social and Cultural Rights, and CEDAW in 2015 through 2017. The reviews will focus on years 2006 to 2014. The upcoming reports and concluding observations flowing from these reviews are expected to be instructive and include the issue of violence against Aboriginal women and girls.

What do domestic stakeholders say?

There is an overwhelming call for a national public inquiry into the violence against Aboriginal women and girls. Many public stakeholders — such as Premiers, the Federal Ombudsman for Victims of Crime, the Canadian Human Rights Commission, National Aboriginal Organizations, and other social justice and human rights organizations— have called for a national inquiry. Domestic stakeholders are in agreement with the former UN Special Rapporteur on Indigenous Peoples, James Anaya, who also called on Canada to conduct an inquiry.

Many organizations have also advanced the need for a national action plan to complement the findings and recommendations of an inquiry. The creation of National Action Plans on Violence Against Women by UN member states by 2015 is one of the five key goals of the UN Secretary General’s UNiTE to End Violence against Women campaign. While the Canadian government has recently established an Action Plan to Address Family Violence and Violent Crimes Against Aboriginal Women, this plan does not serve as a comprehensive national-level plan.[13] The IACHR report echoes the call of advocates by strongly supporting the creation of a national-level action plan or inquiry.[14]

What is the government response?

The federal government stands by its 2014 Action Plan, and other related initiatives, such as: the special parliamentary report on the issue; the spring 2014 Royal Canadian Mounted Police report; and the on-going Civilian Review and Complaints Commission for the RCMP public interest investigation into allegations of police abuse in northern British Columbia.

Stakeholders hope that the February national roundtable on the issue of missing and murdered indigenous women will initiate a national dialogue; however, given the federal government’s current position, it is unclear whether or not this meeting, or subsequent ones, will result in substantial policy change. Time will tell.

Lara Koerner Yeo is a first year student at the University of Toronto, Faculty of Law. She was a research assistant in the women’s rights division of Human Rights Watch and worked on the report, “Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada.” She currently works with the Canadian Feminist Alliance for International Action.

For more information see:

-The Native Women’s Association of Canada Sister’s in Spirit initiative: http://www.nwac.ca/programs/sis-research.

-The Human Rights Watch report, “Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada,” for a comprehensive discussion on Canada’s human rights obligations to respond to violence against women: http://www.hrw.org/reports/2013/02/13/those-who-take-us-away (see section V. Canada’s Obligations Under International Law at 77).

-Amnesty International Canada’s Stolen Sisters report and advocacy: http://www.amnesty.ca/our-work/issues/indigenous-peoples/no-more-stolen-sisters.

-The Canadian Feminist Alliance for International Action’s Campaign of Solidarity for Aboriginal Women, for information on the NWAC and FAFIA IACHR submissions: http://www.fafia-afai.org/en/solidarity-campaign/.

-The Canadian Network of Women’s Shelters & Transition Houses report on the need for a national action plan on violence against women in Canada: http://endvaw.ca/NAPonVAW.

-The Canadian Centre for Policy Alternatives report, “Progress on Women’s Rights: Missing in Action,” https://www.policyalternatives.ca/publications/reports/progress-women%E2%80%99s-rights-missing-action (see the section on Violence Against Aboriginal Women and Girls, p 43).

To follow this issue on social media, popular hashtags include: #mmiw, #mmaw, #AmINext, #ImNotNext, #HwyofTears, #itstartswithus.

Footnotes:

[1]                      Vivian O’Donnell and Susan Wallace, “First Nations, Métis and Inuit Women,” Women in Canada: A Gender-based Statistical Report, Statistics Canada Catalogue no 89-503-X, July 2011, at 42-3, online: <http://www.statcan.gc.ca/pub/89-503-x/2010001/article/11442-eng.htm>; Royal Canadian Mounted Police, “Missing and Murdered Aboriginal Women: A National Operational Overview,” Catalogue no PS64-115/2014E-PDF, 2014, at 3, online: <http://www.rcmp-grc.gc.ca/pubs/mmaw-faapd-eng.pdf>; and, Human Rights Watch, Those Who Take Us Away: Abusive Policing and Failures in Protection of Indigenous Women and Girls in Northern British Columbia, Canada (New York: Human Rights Watch, 2013), at 78, online: Human Rights Watch <http://www.hrw.org/sites/default/files/reports/canada0213webwcover_0.pdf> [Human Rights Watch].

[2]                      UN Human Rights Committee, “Consideration of reports submitted by states parties under article 40 of the Covenant Concluding observations of the Human Rights Committee Canada,” CCPR/C/CAN/CO/5, April 20, 2006, at para 23, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/CAN/CO/5&Lang=En>.

[3]                      UN Committee on the Rights of the Child, “Consideration of reports submitted by States parties under article 44 of the Convention Concluding Observations Canada,” CRC/C/CAN/CO/3-4, October 5, 2012, at paras 48, 49(b), online: OHCHR http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fCAN%2f3-4&Lang=en>.

[4]                      UN Committee on the Elimination of Racial Discrimination, “Consideration of reports submitted by States parties under article 9 of the Convention Concluding observations of the Committee on the Elimination of Racial Discrimination,” CERD/C/CAN/CO/19-20, March 9, 2012, at para 17(b), online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/CAN/CO/19-20&Lang=En>.

[5]                      UN Committee on the Elimination of Discrimination against Women, “Concluding observation of the Committee on the Elimination of Discrimination against Women Canada,” CEDAW/C/CAN/CO/7, November 7, 2008, paras 32, 53, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/CAN/CO/7&Lang=En>.

[6]                      UN Committee against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, “Consideration of reports submitted by States parties under article 19 of the Convention Concluding observations of the Committee against Torture Canada,” CAT/C/CAN/CO/6, June 25, 2012, at para 20, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT/C/CAN/CO/6&Lang=En>.

[7]                      UN Committee on the Elimination of Discrimination against Women, “General Recommendation No. 19: Violence against women,” (Eleventh session, 1992), paras 24(a), (t), online: UN <http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19>; UN Human Rights Committee, “HRC, General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties: general legal obligation on states parties to the Covenant,” U.N. Doc CCPR/C/21/Rev.1/Add 13, (Eightieth session, 2004), at para 8, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.13&Lang=en>; UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, A/HRC/7/3, January 15, 2008, at paras 30-32, online: UN <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/101/61/PDF/G0810161.pdf?OpenElement>; UN Declaration on the Elimination of Violence Against Women, December 20, 1993, GA res 48/104, 48 UN GAOR Supp (No 49) at 217, UN Doc A/48/49 (1993), Art 4(c), online: UN <http://www.un.org/documents/ga/res/48/a48r104.htm>; Fourth World Conference on Women, Report of the Fourth World Conference on Women (“Beijing Declaration and Platform for Action”), Beijing, 4-15 September 1995, A/CONF.177/20, October 17, 1995, at para 124 (b), online: UN <http://www.un.org/womenwatch/daw/beijing/pdf/BDPfA%20E.pdf>; see Human Rights Watch, supra note 1 at 78.

[8]                      Human Rights Watch, supra note 1 at 78.

[9]                      FAFIA, “Campaign of Solidarity with Aboriginal Women CEDAW Inquiry,” 2014, online: FAFIA <http://www.fafia-afai.org/en/solidarity-campaign/#reports>.

[10]                    FAFIA, “Campaign of Solidarity with Aboriginal Women, The Inter-American Commission on Human Rights,” 2014, online: FAFIA <http://www.fafia-afai.org/en/solidarity-campaign/#the-inter-american-commission-human-rights>.

[11]                    “Murders and disappearances of Indigenous women caused by inequality, marginalization – Canada must act to prevent violence: Inter-American Commission on Human Rights”, PR Newswire (12 January 2015), online: <http://www.prnewswire.com/news-releases/murders-and-disappearances-of-indigenous-women-caused-by-inequality-marginalization—canada-must-act-to-prevent-violence-inter-american-commission-on-human-rights-288271071.html>.

[12]                    Ibid.

[13]                    Inter-American Commission on Human Rights, Missing and Murdered Indigenous Women in British Columbia, Canada, OEA/Ser.L/V/II, Doc 30/14, 21 December 2014, at paras 295-7, online: OAS <http://www.oas.org/en/iachr/reports/pdfs/Indigenous-Women-BC-Canada-en.pdf>.

[14]                    Ibid at para 309.

By |March 5th, 2015|Blog|

2014 Year in Review – Tsilhqot’in Nation v. British Columbia: A Landmark Decision from the Supreme Court of Canada

By Lara Koerner Yeo

On June 26, 2014, the Supreme Court of Canada (SCC) released a landmark decision on Aboriginal title in Canada. In Tsilhqot’in Nation v British Columbia,[1] the Court establishes Aboriginal title for the first time in Canada, recognizing the Tsilhqot’in Nation as a holder of Aboriginal title across a swath of land in northwestern British Columbia. The decision further clarifies the test for determining Aboriginal title and the scope of the rights that flow from it. In addition, the Court describes the obligations of the Crown, and third parties, when these entities seek to infringe upon Aboriginal title.

Decision provides further clarity on the test for establishing Aboriginal title

Central to this decision is its determination that First Nations can legitimately hold title over large swaths of land. The ruling overturns the BC Court of Appeal “small spots” or site-specific framework for assessing Aboriginal title claims.

The Court reaffirmed and clarified the three-pronged test for Aboriginal title set out in Delgamuukw v British Columbia, which requires proof of sufficient, continuous, and exclusive occupation. An Aboriginal First Nation must illustrate: (1) that it maintained a presence over the land in such a way that a third-party would, and can, recognize that presence; (2) that it was present on the land prior to Crown sovereignty; and, (3) that it exercised exclusivity over the land.[2] Canadian courts are obliged to consider an Aboriginal title claim in a culturally sensitive way, recognizing the group’s specific custom and law, when deciding whether or not a claim satisfies the test.[3]

The Court further elaborated on the bundle of property rights flowing from Aboriginal title in the Tsilhqot’in decision. Property rights flowing from Aboriginal title include: “the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”[4]

The decision further clarifies Crown and other third-party obligations when approaching use of Aboriginal title lands

The Tsilhqot’in decision changes how Aboriginal First Nations, the Crown, and third parties are required to act in regard to land use projects on Aboriginal title lands. If the Crown or third parties want to make use of Aboriginal title lands, they must seek the consent of the Aboriginal title interest claimant,[5] irrespective of whether the title claim has been recognized by the courts.[6] If the Aboriginal title claimant refuses consent, parties must have a “compelling and substantial” objective to infringe upon the lands, which must conform to the spirit of reconciliation with Aboriginal peoples in Canada and align with the State’s fiduciary duty.[7]

Canada breaches its fiduciary duty if an infringement would deprive future generations of the ability to benefit from the land and if the gravity of the infringement is not proportional to the benefits enjoyed by the Aboriginal titleholders and the public at large.[8] Courts must consider both Aboriginal and non-Aboriginal worldviews and find the party’s objectives to be consistent with the Crown’s fiduciary duty to the Nation claiming title.

A win for the realization of Aboriginal title rights in Canada

The doctrine of terra nullius, which asserts that no individual or group held title to land before European sovereignty, is not a recognized way of justifying territorial acquisition in human rights law. The Economic and Social Council of the United Nations has called for the doctrine to be “eradicated from modern legal systems;”[9] moreover, the United Nations Permanent Forum has called for a special mechanism to investigate historical land claims.

The Tsilhqot’in decision supports the call to extinguish land claims made by asserting terra nullius. Chief Justice McLachlin, writing for the unanimous Court, asserts that the doctrine never applied in Canada and can never be used as a legal foundation to establish title.[10]

Human rights treaties, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and other normative human rights instruments, establish an international framework for Indigenous rights law. This is a unique area of law within the human rights system that recognizes a differentiated set of rights for indigenous peoples, including the right to occupy and use traditional lands. United Nations treaty review bodies have recommended that Canada not infringe upon the realization and development of Aboriginal rights, including title, in Canada.[11] More recently, the former UN Special Rapporteur on Indigenous Peoples, James Anaya, recommended that Canada continue to improve the land claim process in a way that does not restrictively interpret Aboriginal rights.

The UNDRIP is the principal authority on Indigenous rights in the international human rights system. The Declaration promotes harmonious relations between States and Indigenous peoples and enshrines, in article 26, Indigenous peoples’ rights to their traditional lands and resources, including the rights to own, use, develop, and control such lands. Furthermore, Article 27 establishes that there should be a “fair, independent, impartial, open and transparent process…to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources” in a culturally sensitive way that embraces Indigenous custom, law, and worldviews.

The Supreme Court has moved the law forward on Aboriginal title in a way that better aligns with the aforementioned aspects of Indigenous rights law. The decision affirms the importance of Aboriginal custom and worldviews and strengthens Canada’s commitment to realizing Aboriginal title rights in domestic law and practice.

Footnotes

[1]                      Tsilhqot’in Nation v British Columbia, 2014 SCC 44, online: <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14246/index.do> [Tsilhoqt’in Nation].

[2]                      Ibid. at para 25.

[3]                      Ibid at para 41.

[4]                      Ibid at para 73.

[5]                      Ibid at para 76.

[6]                     Ibid at para 78.

[7]                      Ibid at para 84.

[8]                      Ibid at paras 86-7.

[9]                      United Nations Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States, UN Doc E/CN.4/1989/22, 8 Feb 1989, para 40(b) at 10.

[10]        Tsilhqot’in Nation, supra note 1 at para 69.

[11]                    UN Committee on the Elimination of Racial Discrimination, “Consideration of reports submitted by States parties under article 9 of the Convention Concluding observations of the Committee on the Elimination of Racial Discrimination,” CERD/C/CAN/CO/19-20, March 9, 2012, at para 20(b), online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CERD/C/CAN/CO/19-20&Lang=En; and, UN Human Rights Committee, “Consideration of reports submitted by states parties under article 40 of the Covenant Concluding observations of the Human Rights Committee Canada,” CCPR/C/CAN/CO/5, April 20, 2006, at para 8, online: OHCHR <http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/CAN/CO/5&Lang=En>.

For more information see:
The Torys LLP Aboriginal Bulletin, “The Supreme Court of Canada’s Historic Aboriginal Title Case”

By |March 5th, 2015|Blog|