Aboriginal

  • Home
  • Tag: Aboriginal

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|
Read More

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|
Read More