Local Peterborough Woman Thanks Leading Women’s Organizations on Women’s Rights

By Lynn Gehl, Ph.D, Algonquin Anishinaabe-kwe

I was happy to learn that CEDAW’s concluding observations about Canada’s violations against women and girls addressed the matter of unknown and unstated paternity and the Indian Act. As many know this has been an issue that I have taken on for over 30 years now. Through a freedom of information request, I learned Indigenous and Northern Affairs Canada (INAC) has wasted more than $750,000 defending a practice that denies Indigenous children Indian status and subsequently their treaty rights when a father’s signature is not on their birth certificate. This INAC policy and practice applies in situations of sexual abuse such as rape, and also in situations where a man refuses to acknowledge his child.

gwen-broadsky-sharon-mcivor%2c-shelagh-day-june-2010

Left to right: Gwen Broadsky, Sharon McIvor, Shelagh Day, 2010

Follow the Turtle Through Eight
Steps of Analysis

 

First: What is CEDAW

The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted by the United Nations in 1979. CEDAW is also known as the International Bill of Rights for Women. CEDAW consists of a preamble, 30 articles, defines what constitutes discrimination against women, and sets the agenda for national action to end such discrimination.

 Second: What is the Optional Protocol?

caitlyn-kasper%2c-audrey-huntley%2c-lynn-gehl%2c-christa-bigcanoe-october-2014

Left to Right: Caitlyn Kasper, Audrey Huntley, Lynn Gehl and Christa Big Canoe

Canada agreed to CEDAW on Dec. 10, 1981 and ratified what is known as the Optional Protocol on Oct. 18, 2002 which recognises CEDAW as the regulatory body. The Optional Protocol contains 21 articles, where article 8 allows a CEDAW committee to initiate an investigation if a reliable complaint regarding violations against women has been received.

Here is the link to the Optional Protocol:   http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCEDAW.

 

Third: A Complaint is Made

In 2011 the Native Women’s Association of Canada (NWAC), and the Canadian Feminist Alliance for International Action (FAFIA) filed complaints and requested a CEDAW Inquiry.

Fourth: A CEDAW Inquiry Report is Released

 On March 30, 2015 a CEDAW committee acting on reliable complaints compiled an Inquiry Report regarding Canada’s lack of compiance with CEDAW. In this report item number 24, the matter of unknown and unstated paternity and the Indian Act, was specifically addressed: 

 “…pursuant to the 1985 amendments, children of unstated paternity born to mothers registered under section 6 (2) of the Act cannot be eligible for registration. Given the high rates of unstated and/or unrecognized paternity, aboriginal women are more adversely affected by non-registration and non-membership than men and, as a result, they are denied access to the rights and benefits conferred by registration and membership for their children.”
 
Here is the direct link to this inquiry report:

http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CAN/CEDAW_C_OP-8_CAN_1_7643_E.pdf

Fifth: As Part of the CEDAW Inquiry, Women’s Organizations Offer Reply Submissions

law-society-of-upper-canada-panel-discussion-june-2005

Law Society of Upper Canada Panel Discussion 2005

On Oct. 20, 2016 The Canadian Association of Elizabeth Fry Societies (CAEFS), the Chair in Indigenous Governance, Pamela Palmater of Ryerson University, and FAFIA submitted a report which included issues of sex discrimination against Indigenous Women and girls. In this report the matter of unstated paternity and the Indian Act was specifically addressed. On page 2 of the submission it is argued:

“… in order for a child of an Indigenous woman to be recognized as having full status, the administrative policy is that the identity of the father must be declared and the signatures of both parents must be presented, otherwise it will automatically be assumed that the father is non-Indian. This sex discrimination was not addressed by Bill C-3.”

The full report can be accessed here at this link: 

Sixth: CEDAW Offers Its Concluding Observations of the Inquiry
On Nov. 18, 2016 CEDAW’s concluding observations included paragraphs 12 and 13 specifically on the matter of unknown and unstated paternity and the Indian Act:
 
“The Committee notes the various constitutional, legislative, statutory, administrative and policy provisions promoting gender equality and defining sex as a prohibited ground of discrimination. It further notes that a new Bill amending the Indian Act is currently being developed. However, the Committee remains concerned about continued discrimination against indigenous women, in particular regarding the transmission of Indian status, 

preventing them and their descendants from enjoying all the benefits related to such status.”

“The Committee recommends that the State party remove all remaining discriminatory provisions of the Indian Act that affect indigenous women and their descendants, and ensure that aboriginal women enjoy the same rights as men to transmit status to their children and grandchildren.”

 

Seventh: Section 15 of Canada’s Charter of Rights and Freedoms states: 

“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

My legal representatives of Aboriginal Legal Services of Toronto (ALST) holds the position that INAC’s unstated paternity policy is a section 15 Charter violation based on sex and marital status. The Department of Justice holds the position that the matter was an issue of unknown paternity where INAC’s unstated paternity policy is administratively applied equally with not discussion of substantive equality issues.
 
On Oct. 19-21, 2014 the matter of Gehl v Attorney General of Canada was heard in the Superior Court of Justice. Unfortunately, the judge ruled on the isolated matter of unknown paternity which she determined was not an enumerated or analogous ground as per section 15 of the Charter, and further that the policy is equally applied to all applicants. This of course denies the reality that women are disproportionately impacted by the INAC policy and further lacks appreciation of issues of substantive equity. Equality must mean more that the administration of a law. Equality also includes what is the outcome of the law.

 Eighth: The Matter Is Heading to the Court of Appeal for Ontario

mary-eberts%2c-lynn-gehl-june-2005

Mary Eberts, left, and Lynn Gehl

Rooted in two errors of law, we are now moving forward to the Court of Appeal of Ontario on December 20, 2016. As we move to the court of appeal, ALST and The Law Office of Mary Eberts are my legal representatives.

The Women’s Legal and Education Action Fund (LEAF) has been granted leave to intervene by the Ontario Court of Appeal.

  
Read LEAF’s leave to intervene factum:
 

To learn more visit: www.lynngehl.com

Here is a link to a facebook event: https://www.facebook.com/events/178774785921072/

Here is a link to a fundraising item:

http://www.lynngehl.com/a-fundraising-effort-for-unknown-and-unstated-paternity-and-the-indian-act.html

Here is a fundraising group where several items are sold:
 

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