World Declaration on the Rights of Indigenous Peoples in the Canadian Context: A Study of Conservative Government Rhetoric and Resistance

Abstract

Canada promotes itself as a nation of peacemakers concerned with justice. However, in its dealing with Indigenous peoples the reality does not reflect the rhetoric. Despite pressure from both within and outside the country, Canada initially would not sign the UN Declaration on the Rights of Indigenous Peoples. When it finally signed in 2010 the government explained to the Canadian public that the document’s goals and recognitions are “aspirational” (and not legally binding). My chapter addresses the Conservative government’s justifications for delay and denial, as well as the ways in which its eventual adoption of the Rights document misappropriates the document’s language and intent. Specifically, I argue that the Declaration’s objectives, to protect/enshrine the rights of Indigenous peoples and ensure processes of participation, cooperation , and consultation between governments and Indigenous peoples have been co-opted and re-directed against Canada’s First Nations communities. This chapter examines the legal challenges of Indigenous women against such discriminatory legislation. I conclude that for peacebuilding to be real and meaningful, Canadian governments must transform rhetoric into reality and vigorously protect (rather than resist) Indigenous rights through law.

K.J. Verwaayen is Associate Professor in Women’s Studies and Feminist Research, and Chair of Graduate Studies in Centre for Transitional Justice and Post-Conflict Reconstruction, The University of Western Ontario, Canada: Email: kjverwaa@uwo.ca. She works in the areas of contemporary Canadian women’s literature, feminist literary theory, and Indigenous women’s writing; trauma and testimony studies; global and Indigenous feminisms. She is currently co-editing (with Wendy Pearson, Ernie Blackmore and Renée E. Bedard) First Women and the Politics of Looking: Gender, Indigeneity and Representation in Canada. She has recently published in Contemporary Women’s Writing; Canadian Literature; a/b: Auto/Biography Studies; British Journal of Arts and Social Science, among others.

Canada has numerous examples of internal unpeacemaking (Calliou 1995).

The consistent feature of policies considered, established, and maintained by Canada with respect to Indigenous peoples has been our termination (Chrisjohn and Tanya 2009).

Invasion is a structure not an event (Patrick Wolfe, in Cannon 2014).

1 Aspirational Versus Actionable: The Ties that (Do not) Bind

September 13, 2015, marked the eighth anniversary of the adoption of the Declaration on the Rights of Indigenous Peoples¹ by the United Nations General Assembly . Canada played a significant role in the drafting of the Declaration, yet the election of the Harper Conservative government in Canada ’s 2006 federal vote was a critical factor in Canada’s opposition to, and delay in, signing the Declaration, including the country’s encouragement to other UN member nations to oppose it.² The Harper government, as a member of the CANZUS coalition (composed of Canada, Australia , New Zealand, and US), and the sole eligible voting CANZUS member; attempted unsuccessfully to defeat the Declaration first presented before the United Human Rights Council in 2006, and all four member countries united to block its adoption in the UN General Assembly (Benjamin et al. 2010: 63), only relenting in 2010 after amendments were made to protect their centralised sovereignty . The actions of the Canadian government follow a historical pattern of raced and sexed discriminatory laws and policies in contravention of international human rights encouragements, obligations, and legal requirements.

In November 2010, “Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples” was issued online by the federal government (Aboriginal Affairs and Northern Development Canada [AANDC] 2010). The statement endorsed the government’s “opportunity to reiterate our commitment to continue working in partnership with Aboriginal peoples in creating a better Canada,” but reminded the public that Canada’s participation in the tenets of the Declaration is not legally binding (AANDC 2010). Indeed, the semantic deceit here, when read against the broader context of government—Indigenous relations in Canada, might appear to be an undercutting of support in its articulation. One of the primary issues of concern is the discrepancy between how the Conservative government understands “Canada” and a “better Canada” and its commitment to partnership and the rights of Canada’s Indigenous peoples . This criticism is perhaps best encapsulated by The Truth and Reconciliation Commission of Canada’s assertion in its Final Report of 2015 that, “we believe that the provisions and the vision of the Declaration do not currently enjoy government acceptance” (188).

Central to this discussion are Canada’s objections in September 2014 to the “Outcome Document” adopted by the UN General Assembly at the World Conference on Indigenous Peoples (WCIP) to facilitate Implementation of the Declaration. Canada, the sole dissenter, filed an objection around the issue of “free, prior and informed consent” for Indigenous groups/communities, which, it argued:

could be interpreted as providing a veto to Aboriginal groups and in that regard, cannot be reconciled with Canadian law, as it exists … [and] would risk fettering Parliamentary supremacy… [T]he Crown may justify the infringement of an Aboriginal or Treaty right if it meets a stringent test to reconcile Aboriginal rights with a broader public interest. (“Canada’s Statement on the World Conference,” 2014; emphasis added).

The Statement concluded with the government’s commitment to “improve the well-being of Aboriginal Canadians, based on our shared history, respect, and a desire to move forward together”. However, the determination to deny Indigenous communities the right to prevent development on their own lands shows the exercise of a form of state-centred neo-colonialism.

The Conservative’s revisionist position can be traced to Prime Minister Stephen Harper’s 2009 fantastical statement on Canada’s benevolent history of liberal democracy:

We are one of the most stable regimes in history. There are very few countries that can say for nearly 150 years they’ve had the same political system without any social breakdown, political upheaval or invasion. We are unique in that regard. We also have no history of colonialism (Aaron Wherry, cited in Henderson/Wakeham 2009: 1).

Challenges to the Prime Minister’s attempt to erase Canada ’s colonial history³ and the violence perpetuated against Canada’s Aboriginal peoples through European colonisation , as well as its legacy of racially-grounded discriminatory policies and actions and the complexity of their intergenerational effects are increasingly recognised. While Canada can be said, in its preliminary public accounting of governmental wrongs, to have entered the “age of reconciliation” in the 21st century, scholars have begun to examine how the acknowledgment of state-generated trauma and the culture of redress can serve particular symbolising functions that perform a reversal of a state’s rhetoric of intention.⁴ In earlier work (2013) I have addressed this as the government’s consumptive and substitutive trope of hearing for healing —for taking and taking in, but not the ethically accountable action of taking up.

The official government webpage which functions more like a publicity campaign than a genuine attempt to acknowledge the gaps between the Declaration’s mandate and Canadian federal practices, states:

Under this government, there has been a shift in Canada’s relationship with First Nations , Inuit and Métis peoples, exemplified by the Prime Minister’s historic apology to former students of Indian Residential Schools, the creation of the Truth and Reconciliation Commission, the apology for relocation of Inuit families to the High Arctic and the honouring of Métis veterans at Juno Beach. These events charted a new path for this country as a whole, one marked by hope and reconciliation and focused on cherishing the richness and depth of diverse Aboriginal cultures (AANDC 2010).

The characterisation of the government-as-explorer “chart[ing] a new path for this country” is a telling colonial metaphor. While on one hand I do not mean to diminish these and other actions undertaken by the federal administration, nor especially the tireless work of Indigenous individuals and groups toward real and meaningful action-change (including participation in these and other government ‘events’), on the other hand, Canada’s Aboriginal peoples are increasingly suspicious of government rhetoric of reconciliation as an alibi for material action, perhaps best encapsulated in the rising movement Idle No More.⁵ Again, the problem is not so much that the government page ‘spins’ its involvement in self-enhancing ways but rather that, weighed against a number of government actions and inactions with material consequences for the dignity, health, safety and respect of Indigenous peoples in this country,⁶ these claims, intentions, and actions become suspect through context and pattern. There is a critical breach in the public trust.

Thus, while the Harper administration has moved to formulate some constructive changes, there also have been legal challenges launched against Indigenous rights and dignity, some of which I will now discuss, with specific attention to raced and sexed discrimination of Indigenous women in Canada and their descendants.

2 Canada’s Indian Act, Its History of Raced and Sexed Discrimination, and Ongoing Colonisation

Since at least 1876, Canada’s Indigenous peoples —that is, those established as ‘Indian’ under Canadian law—have been governed by federal legislation known as The Indian Act , recognised since its inception as a legislative impetus toward (cultural) genocide and which institutionalised gender inequality in Canadian law. The Act defined ‘Indian’ as male; while women and children were seen as dependent extensions of husbands and fathers. Indeed, by 1951, European patriarchal and patrilineal values were formally codified in the Act under Section 12(1)b, the “marry out” clause: a woman registered with status under the Act who married a non-Indian (that is, non-status) man would lose her status—along with its attendant entitlements, like traditional hunting and fishing rights, the right to reside on her reserve, inherit property there, and be buried in her community; and to collect treaty annuities and access federal programs, among other rights and services negotiated or established by treaty. Because a man’s status determined those of his wife and children, a registered Indian male would retain his status and also would transmit status to his non-Indian wife and to their children.

There is a long record of various forms of resistance by Indigenous women in Canada against this gendered institutional violence , with parallel history of government resistance and blockage against these efforts. The case of Sandra Lovelace is illustrative. Lovelace, a Maliseet woman originally from the Tobique reserve had married out, lost status, and moved away with her husband; her marriage dissolved, she divorced, and sought to return to her reserve. But because of the “marry out” punishments of 12(1)b, Lovelace was not entitled to housing or band services. She was without status and, it appeared, legal remedy. Since Canada’s highest domestic court had already ruled against Indigenous women’s complaint of sexism and racism,⁷ Lovelace took her case to the United Nations Committee on Human Rights (UNCHR). The UNCHR decided, in 1981, in Lovelace’s favour, citing, in particular, that “the major loss to a person ceasing to be Indian is the loss of the cultural benefits of living in an Indian community, the emotional ties to home, family, friends and neighbours, and the loss of identity ” (UNCHR, “Lovelace v. Canada” 1981).

Embarrassed, and compelled by international law (and by 1985, with the domestic establishment of Section 15, Canada’s equality rights section in the Charter of Rights and Freedoms) Canada made legal remedy. But the amendment implemented by the government, C-31: The Act to Amend the Indian Act (1985) assured to some extent the re-instatement of gender inequality rather than its removal. On the one hand, from 1985 forward, the Act ostensibly treats female and male individuals with status “the same” in terms of registration.⁸ On the other hand, the amendment inscribes residual and generational discrimination through “the second-generation cut-off rule,” since the grandchildren of a woman who “married out” prior to 1985—unlike the grandchildren of a man—would be ineligible for status and (thus, likely) band membership. The effects of discriminatory policy are mapped through matrilineal heritage. The Royal Commission on Aboriginal Peoples (RCAP) denounced the 1985 Indian Act’s perpetuation of sex discrimination. Also the International Covenant on Civil and Political Rights (ICCPR), the Committee on the Elimination of Discrimination Against Women (CEDAW ), and the Committee on Economic, Social and Cultural Rights (CESCR) have all criticised Canada ’s persistent registration discrimination against Aboriginal women (“Sharon McIvor and Jacob Grismer V. Canada” 2010: 16).

3 Compulsive Repetitions and the Dishearteningly Familiar: Further Inequality for Indigenous Women

In protest against legislation meant to redress gross discrimination against Indigenous women under the Act, Sharon McIvor (member of the Lower Nicola First Nation, law professor, human rights activist, and feminist) initiated action. Ineligible for status prior to 1985, post C-31 she petitioned the Registrar and was informed she would be granted 6(2) status but could confer no status to her son, Jacob Grismer. Later, the Registrar reconsidered her case and assessed her son would have 6(2) status but could not on his own confer status to his children. Simply: had McIvor been a man, her children and grandchildren would have status. McIvor and Grismer challenged C-31before the British Columbia Supreme Court , alleging discrimination contrary to S. 15 of the Canadian Charter of Rights and Freedoms.⁹ Decision was reached in June 2007 and established a resounding victory for the plaintiffs and indeed widely for Aboriginal women and their descendants. Madam Justice Ross declared the C-31 provisions unconstitutional and that:

the evidence of the plaintiffs is that the inability to be registered with full 6(1)(a) status because of the sex of one’s parents or grandparents is insulting and hurtful and implies that one’s female ancestors are deficient or less Indian than their male contemporaries. The implication is that one’s lineage is inferior. The implication for an Indian woman is that she is inferior, less worthy of recognition (qtd. in Barker 2008).

The trial judge struck down S.6 of the Act and required a remedy that would restore status to women under the same section as male Indians, and see their male and female descendants also entitled to registration under the same section (Cannon 2014: 32); too, their grandchildren would be entitled to status. Reaction was inevitable, as Cannon (2014: 32) explained,

The McIvor decision stood at trial to increase the status of the Indian population, a prospect that has never been in the vision of the coloniser. Not surprisingly, then Minister of Indian Affairs Jim Prentice was quoted as saying that his government would appeal the decision just one week after it was delivered (Cannon 2014: 32).

The appeal case was scheduled before the B.C. Court of Appeal approximately 4 months after the federal government’s residential schools’ apology (of June 11 2008)—an apology hailed as inaugurating Canada ’s era of reconciliation and which recognised, it said, Canada’s perpetration of deep harm in removing Aboriginal children “from [their] rich and vibrant cultures” (AANDC 2008).

In October 2009, the B.C. Court of Appeal in the McIvor v. Canada case rendered its decision, significantly stripping the earlier judgement of its broad implications for justice.¹⁰ The Court of Appeal ruled, as the McIvor and Grismer (2010) complaint contends, that “Canada can continue discriminating in favour of male lineage descendants so long as their superior status was merely preserved by the 1985 Act and not improved” (“Sharon McIvor and Jacob Grismer V. Canada”: 73).¹¹

In response to the Appeal ruling, McIvor and Grismer sought leave to the Supreme Court of Canada, the last domestic resort for appeal. On November 5, 2009, this petition was refused, without explanation (“Sharon McIvor and Jacob Grismer V. Canada” 2010: 29).

Bill C-3 is the legislation established by the federal government of Canada in response to the 2009 Appeal decision (which, while narrowing the victory established by the trial ruling nevertheless determined aspects of Canada’s registration provisions in violation, on the basis of sex, of Section 15 of the Canadian Charter of Rights and Freedoms). C-3 received royal assent in December 2010; note the temporal relationship between the legislation becoming law and Canada’s signing onto the Declaration.¹²

Although the short title of C-3 is “Gender Equity in Indian Registration Act ,” the bill’s full title is, more tellingly, the “Act to Promote Gender Equity in Indian Registration by responding to the Court of Appeal for British Columbia Decision in McIvor v. Canada.” The full title belies the ‘equity’ of its shorthand and more commonly referenced nomenclature and, too, of government discourse on the bill’s intentions and effects. In fact, the full title reveals that the bill’s intention is neither to address systemic discrimination nor to achieve gender equity. It sets out only to ‘respond’ to the watered-down legal requirements determined by the appellate court with a goal to merely ‘promote’ gender equity not necessarily achieve it. This demonstrates a rhetorical performance mirroring the government’s insistence on the Declaration as an aspirational-only document.

In fact, C-3 continues to support rather than eradicate sex discrimination in registration; examples of unjust exclusion include, as McIvor and Grismer indicate, “the grandchildren of status women and non-status men who were unmarried; the female child of a status man and a non-status woman who were unmarried; and the grandchildren born prior to September 4, 1951 (the date of the double mother rule) who are the descendants of women who married out” (“Sharon McIvor and Jacob Grismer V. Canada ”, 2010: 30). Perhaps most starkly, “C-3 will only grant s. 6(2) status, and never s. 6(1)(a) status to the grandchildren of Aboriginal women who married out, notwithstanding that grandchildren born prior to April 17, 1985 to status men who married out are eligible for s. 6(1)(a) status” (“Sharon McIvor and Jacob Grismer V. Canada” 2010: 30). As Cannon outlines, C-3 “does not eradicate the ‘second generation cut-off.’ It merely suspends it for one generation, so that it is now the great-grandchildren of out-marrying women (but not of men) who face ongoing legal assimilation” (Cannon 2014: 26). Further, as Cannon argues, “for any child of an out-marrying woman to become a Section 6(1) Indian today…he or she must have children…This part of the new legislation is not only troublesome in light of the history of institutionalised heterosexism, it is also puzzling” (2014: 35). Pam Palmater, too, writes of the lived consequences of C-3 in relation to longer histories of government policy:

The state continues with its policy of assimilation by taking our children from us on many different levels. They take them from us physically through child welfare agencies, overrepresentation in prisons, and they take them from us legally and politically through the Indian Act’ s exclusionary status and membership provisions. This sends a clear signal to our children that they are not a part of their community or Nation and that they are not equal even within their own families. This often has the effect of removing them from their cultural context and source of meaning for life. Under Bill C-3, my own children, Mitchell and Jeremy, are denied Indian status and thus their band membership not because they are less Indigenous than their cousins, but because my grandmother was a woman. On some First Nations , no band membership means you can’t live on reserve and will be evicted. In that way, our brothers and sisters and children could even be physically prevented from being with their family…. We cannot continue to allow our children to be the casualties of this war to assimilate us (2013).

In response to federal opposition and the foreclosure of protection under Canadian law, Sharon McIvor and Jacob Grismer, with the Council of Gwen Brodsky their principal attorney, took their case against C-3 to the UNCHR . Their 2010 petition contends that “The State party has thus been aware for many years of the concerns of human rights treaty bodies regarding continuing sex discrimination in its registration scheme. The State party can have no doubt that the current legislative scheme is incompatible with its international human rights obligations” (Sharon McIvor and Jacob Grismer V. Canada 2010: 44). Indeed, there is a compulsive repetition of traumatic colonial histories: their appeal invokes the very same ICCPR articles as the Lovelace case launched 3 decades ago:

Article 26, which enshrines the right of all persons to equality before the law and to the equal protection of the law without any discrimination on the basis of sex; Articles 2(1), 3 and 27, which together guarantee the equal rights of men and women to the enjoyment of their culture, without discrimination based on sex; Article 2(3)(a), which guarantees the right to an effective remedy for violations of rights recognised in the ICCPR (Sharon McIvor and Jacob Grismer V. Canada 2010: 6).

4 Conclusions: What’s ‘Missing’ in Government Systems of Conferral, Consultation and Collaboration

Five years later, the UNCHR has not arrived at a decision on the McIvor case. Meanwhile, violence against Indigenous girls and women in Canada has reached epidemic levels. Recently the RCMP identified these numbers at approximately 1224 missing and murdered Indigenous women since 1980 (Smith 2015). This demography of violence is grossly disproportionate and is not only interpersonal but connected to institutional-structural apparatuses: the structural violence against Indigenous girls and women through intersecting operations of racism and sexism, including through government laws and practices around status provisions and concomitant dislocation from Indigenous communities by status denial¹³ and dispossession from community networks and culture. Despite calls from the UN, First Nations leaders and women’s groups, the government’s opposition parties,¹⁴ and, the TRC Final Report, the government continued to refuse a national inquiry. Less than a year ago (17. 12. 2014) Harper said in an interview that “it isn’t really high on our radar.” In another interview, in an insensitive turn of phrase, he stated that: “the issue has been studied to death” (qtd. in Onstad).

The mythological story Canada writes of itself as a nation of peace, rights, and fairness¹⁵ must be juxtaposed with its historical and ongoing practices of profound structural discrimination—and ultimately what must be urged is movement away from aspirational-only goals and objectionable actions to actionable objectives and materialised realities, in a legal, social, cultural, political ‘accounting’ that allocates appropriate resources, redresses historical wrongs with fair and just restitution, and establishes future policy in line with international human rights standards. As stated in TRC’s Final Report: “A critical part of this process [for reconciliation, peace, justice] involves… following through with concrete actions that demonstrate real societal change” (2015: 16; emphasis added).