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Faculty of Law University of Ottawa

Partricia Monture
 DR. MONTURE, PATRICIA ANNE It is with great sadness that Patricia's family shares the news of the loss of their strong and courageous mother. She passed on Wednesday, November 17. Patricia was only 52 years old and a full Professor in the Department of Sociology at the University of Saskatchewan and academic coordinator of the Aboriginal Justice and Criminology Program. Patricia Monture is Mohawk from the Six Nations Grand River Territory. She will be remembered as a passionate Haudenosaunee mother, lawyer, activist, educator, writer and scholar.  She was also a good friend and a passionate warrior.
 http://www.fngovernance.org/challenge /index.htm

A History of Manifest Discrimination
 Contemporary circumstances and marginalization of Aboriginal women  Compounded race and sex discrimination  Historical role of men and women  Impact of the Indian Act
 Objectives  Matrimonial Property  S.12(1)(b)

 Bill C-31 (A Pandora's box)
 Continued sex discrimination (McIvor)  Bill C-3

Traditional Roles of Women
 Indigenous societies varied across North America as to

the nature of gender relations.  Many were Matrilineal in nature and in some cases only women could appoint (vote) for leaders. (Haudenosaunee Confederacy).  Women and Men had different roles, but neither gender was devalued. Many Indigenous societies held to a social structure of gendered complimentarity.

Introduction of Paternalism and gendered racism.
 Unfortunately, the colonial attitudes about women have been internalized by their own communities:
 In Canada, 1 in 10 women are abused by her partner. For

Aboriginal women it is closer to 3 out of 10.  Some Aboriginal communities have internalized differential treatment against women to the point that they argue that such treatment is a “traditional” custom of their community. (Sawridge)

 Unlike European societies, many Aboriginal societies were matrilineal.

Compounded Racism and Sexism
 The English Victorian era of women’s status

incorporated into Indian Affairs policy.  Enfranchisment provisions introduced whereby an Indian women who married a non-Indian man lost her status (including children of marriage)  Victimization due to racial/sexual stereotypes

 Given the historical and contemporary manifestation

of Aboriginal women’s discrimination in Canada, you have a formula for devastating levels of Aboriginal women’s marginalization and abuse.

Contemporary Circumstances
 Aboriginal people much less likely to be part of the

paid workforce. 41% of Aboriginal women were part of the paid workforce versus 53% of non-Aboriginal women and 66% of non-Aboriginal men.  Aboriginal women much more likely to be single parents. 32% of Aboriginal children (twice the rate of non-Aboriginal children, 16%) were in single parent homes.  Aboriginal women account for 23% of female inmates.

Prevalence of Aboriginal Victimization
 According to a national

survey 35% of Aboriginal People reported being a victim of crime compared to 26% of nonAboriginal people.  Aboriginal people are 3 times more likely to be victims of violent crime compared to nonAboriginal people.

Chart 2: Violent Victimization Rates
250.00 200.00 150.00 100.00 50.00 0.00 Canada Aboriginal per 1000 population

General Characteristics
 Aboriginal victimization disproportionately affects

vulnerable groups within Aboriginal communities: women, children and those with disabilities.  Aboriginal offenders tend to victimize within their own communities and the majority of victims know the offender.  Even in urban centers, the majority of Aboriginal victims of crime reported they were victimized by an Aboriginal offender (59% of such incidences

included at least one Aboriginal offender).

 Normalization of Violence  Studies have found that for some Aboriginal people, heightened violence and abuse is common place and viewed as “normal”.  In some communities, domestic violence and sexual abuse is so prevalent that it has become an accepted part of life.

This leads to whole communities experiencing transgenerational cycles of abuse as children exposed to such violence in turn become the abusers or passive victims.

 Under-reporting of victimization a serious concern. However, rates of under-reporting may be higher in Aboriginal communities than non-Aboriginal communities
 In one study, 74% of victims of family violence in

urban centers did not report such incidents.  Reasons for this include:

 

Lack of confidence in the ability of agencies or community leaders to stop violence. Fear of being charged for their own use of drugs/alcohol. Fear of criticism or alienation from community or family members. Fear of the consequences of using a racist system of justice that over-polices and incarcerates Aboriginal men.

Sexual Assault of Aboriginal Women and Children
 Sexual assault rates of Aboriginal women and children are as much as five times higher than Canadian rates.
 One study reports that, given the incarceration statistics of Aboriginal sex offenders, they are responsible for 20-25% of all 600,000 sexual offences in Canada each year. In other words,

120,000-150,000 offences each year (the great majority against Aboriginal women and children).

Violence Against Aboriginal Women
 Homicide rates almost seven times higher (1997-2000)  3.5 times more likely to experience violence  Rates of spousal assault more than 3 times higher

 More severe and potentially life-threatening forms of

spousal violence (54% versus 37% of non-Aboriginal women)  When the effects of all other factors are controlled, Aboriginal peoples are still three times more likely to experience violence

Domestic Violence
 Domestic violence against Aboriginal women is three times higher than nonAboriginal women.
Chart 3: Risk of Spousal Violence
30% 25% 20% 15% 10% 5% 0% Non-Aboriginal Women Aboriginal Women

Percentage of women who experienced violence by a current or former spouse in past 5 years.

 These national statistics can be misleading. In

some Aboriginal communities, rates of sexual assault and domestic violence are epidemic.  For example in one study 75% of Aboriginal girls (under 18) reported being sexually abused. Another study found that 80% of girls under the age of 8 had been victims of sexual abuse.

Sisters in Spirit

 http://vodpod.com/watch/989273-missing-aboriginal-

women-sisters-in-spirit?pod=womennewsnetwork

No National Data Sources on Missing Persons
 Saskatchewan Association of Chiefs of Police (SACP) the only policing organization known to report on missing persons  Almost 59% of missing women and girls in Saskatchewan are of Aboriginal ancestry (17 of 29 cases)

 Aboriginal peoples represent only 15% of the population in Saskatchewan

Most Information Known About Cases in the Last 10 Years
Figure 2: Year of Incidents in SIS Database, 2010
180 160 140 120 100 80 60 40 20 0 1969 and earlier 1970s 1980s 1990s 2000 to date (includes 2010) Missing Murdered Suspicious death Unknown

Nearly Half of Murder Cases Remain Unsolved

Impact of the Indian Act
 Paternalistic policy contributes to unequal treatment under the law which reinforces social and economic inequality.  Unequal treatment
 Matrimonial Property  Derickson v Derickson  Enfranchisment of Status under s.12(1)(b)

Matrimonial Property
 The Supreme Court of Canada held in Derickson v Derickson that the matrimonial property provisions of the Family Relations Act are laws of general application which must be read down as they apply to the core of federal power dealing with the possession of reserve lands unless saved by s.88. (@ 745)  However, the division of matrimonial property provisions concerning land conflict with provisions of the Indian Act dealing with Certificates of Possession and therefore are not saved by s.88. (@ 750)

Implications and Reforms
 Proposed Legislative Reform (Bill C-8), Now Bill S-4

An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves.

 http://www.ainc-inac.gc.ca/ai/mr/nr/m-a2010/23385-

eng.asp  http://www.nwachq.org/en/documents/PressReleasereMRPlegislation Mar4-08.pdf  http://www2.parl.gc.ca/Sites/LOP/LEGISINFO/index. asp?Language=E&query=5670&Session=22&List=ls

Gender Discrimination Redress Attempts
 Failure of Lavell, 1974
 Embarrassment of Lovelace, 1981  Bill C-31, 1985  Continued sex discrimination  Second generation cut-off rule  McIvor [2009] 2 C.N.L.R. 236 (B.C.C.A.)  Bill C-3 (before Senate)

Impact of s. 12(1)(b)
 Gender discrimination
 Loss of Identity (notwithstanding the disconnect

between the Indian Act definition of Indian and identity based on cultural affinity and ethnicity).  Loss of benefits  Loss of ability to maintain culture and community connection.

Mobilization of Aboriginal Women
 Resistance experienced from both government and

own communities and Aboriginal organizations to changing the Indian Act.  Why?

The Lavell case
 Relied on Federal Bill of Human Rights  Justice Ritchie, for the majority, found that the s. 12(1) (b) did not violate the equality protection under the Bill.
 What arguments did he make and how did he

distinguish Drybones?

 Justice Laskin, for the minority, wrote a strong and very critical dissent holding that the Bill did render s.12(1)(b) inoperative.
 What counter arguments did he raise?

Going to the International Human Rights Commission
 Lovelace v. Canada 36 U.N. GOAR, (1981)  Found that s.12(1)(b) had the indirect effect of violating Article 27 (@ 779)  Why did the court not deal with the sex discrimination issue?  Decision a serious embarrassment to Canada’s

international image.  Note the distinction between status and identity made by the tribunal.
 The relationship between Indian status and Identity is a

complex matrix of historical, social, economic, psychological and legal factors. (@ 780)

Impetus for Change Built Up
 Lovelace
 Charter of Rights and Freedoms (s. 15 – 1985)  Status of Women Commission Report  Public Awareness and Political mobilization

Bill C-31
 Provided for the reinstatement of women and children that lost status.
 Provides for Bands to determine Band membership subject to certain limitations such as requiring certain categories of reinstated status Indians to be band members (mainly women who lost status under 12(1) (b) can’t be excluded from

band membership codes).  Created new categories of Indians and confusion

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Persons entitled to be registered 6. (1) Subject to section 7, a person is entitled to be registered if (a) that person was registered or entitled to be registered immediately prior to April 17, 1985; (b) that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act; (c) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (d) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions; (e) the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, (i) under section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject-matter as that section, or (ii) under section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject-matter as that section; or (f) that person is a person both of whose parents are or, if no longer living, were at the time of death entitled to be registered under this section. Idem (2) Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1). ... Persons not entitled to be registered 7. (1) The following persons are not entitled to be registered: (a) a person who was registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and whose name was subsequently omitted or deleted from the Indian Register under this Act; or (b) a person who is the child of a person who was registered or entitled to be registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and is also the child of a person who is not entitled to be registered. ...

Creates second-generation Cut-off Rule
 Women who lost status under s.12(1) (b) regain status

on application and band membership.  However, a women who regains status under s. 6(2) will not be able to pass on their status to her grandchildren under certain circumstances but a man under s. 6(2) can.

Continuing Discrimination
 Impact of the second generation cut-off rule on

communities. (@ 788)  Continuing residual sex-discrimination
 McIvor- British Columbia Court of Appeal held that the

residual sex-discrimination is a violation of s 15 and 28 of the Charter.

Impact of Bill C-31

McIvor
 B.C. Court of Appeal held that the gender

discrimination inherent in the status provisions s. 6(1)(a) and s. 6(1)c) of the Indian Act, are null and void as violating s. 15 of the Charter as of April 6, 2010.  Decided the issue on very narrow grounds.

Bill C-3
 http://www2.parl.gc.ca/HousePublications/Publicatio

n.aspx?DocId=4340270&Language=e&Mode=1&File=3 0
 One way to address the residual residual remaining

discrimination is to deem a s.6(1)(c)(c.1) derivative s.6(2) Indian a s.6(1)(a) Indian under a new s. 6(1)(c)(c.2) provision.

Challenge to Bill C-31
 Sawridge Band Case  Argued that the mandatory provisions of the Indian Act forcing the band to accept certain reinstated status Indians (women who lost status) was contrary to their Treaty and Aboriginal right to selfgovernment (namely the right to determine Identity and citizenship).  Is there a solution to the dilemma raised in this

case if we believe in both equality and selfgovernment?

Judicial Bias
 Few judges are so blatant in their animosity towards

the recognition of special rights for Indigenous peoples as Justice Muldoon.  Is it racist for Aboriginal people to have legal rights, polices and benefits that other Canadians do not have or can’t access?

A Final Message
 Although I teach a course about applying the

doctrine of Aboriginal rights and title as it is currently understood, I have done so with the greatest of hesitation because of a growing critical perspective of the jurisprudence surrounding this field of law and the fact that by uncritically applying Aboriginal rights doctrine I am indirectly supporting an inequitable legal regime. I have often assumed, for the purposes of this course, that the current state of the law regarding Aboriginal rights and title in Canada is legitimate, even though I know it not to be. Please don’t forget this.

The End
 Thank you for a very enjoyable class!
 Have a wonderful holiday season!