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.
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?
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
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:
Fifth: As Part of the CEDAW Inquiry, Women’s Organizations Offer Reply Submissions
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:
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.”
Eighth: The Matter Is Heading to the Court of Appeal for Ontario
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.