Committee on the Elimination of Racial Discrimination considers report of Canada

23 February 2012

The Committee on the Elimination of Racial Discrimination today considered the combined nineteenth to twentieth periodic reports of Canada on how that country is implementing the provisions of the Convention on the Elimination of All Forms of Racial Discrimination.

Introducing the report, Catrina Tapley, Associate Assistant Deputy Minister, Strategic and Program Policy Sector, Department of Citizenship and Immigration, said that Canada was a multicultural society with more than 200 ethnic origins. In the 2006 census, over 1.1 million people had self-identified as aboriginal while over 5 million people had identified themselves as members of a racial minority group. Canada had one of the highest per capita rates of permanent immigration, and was proud that approximately 85 per cent of immigrants eventually would become Canadian citizens. The long standing presence of First Nations, Inuit and Métis people, their cultures, traditions and values were fundamental to Canada’s history. The Government had established a results-driven framework for action on aboriginal issues covering economic development, education, empowerment and protection of the vulnerable, resolution of land claims and reconciliation, governance and self-government. The State had allocated more than Canadian Dollars 10 million annually for programmes across 34 ministries and federal bodies to support aboriginal peoples. The Gender Equity in Indian Registration Act ensured that eligible grand-children of women who lost their Indian status as a result of marrying non-Indian men, could now receive Indian status.

During the discussion, Experts asked about funding for First Nations programmes, services in Saskatchewan province, land and water rights, the new Refugee Act, human rights training for judiciary and the police, and the law on racist violence. Experts cautioned against using the term ‘visible minorities’ which blurred different types of racial discrimination minorities experienced, and asked how Canadian-registered transnational corporations were held accountable for their actions outside of Canada that impacted adversely on the enjoyment of the rights of indigenous peoples. A connection between unresolved land and title issues with higher rates of poverty was noted, as were the high numbers of indigenous peoples and people of African descent in prison. The State party was encouraged to redouble efforts to improve service provision to aboriginal communities, as well as child welfare, education, and the way the contribution of indigenous people and people of African descent to Canada was portrayed in school history books.

In concluding remarks, Anwar Kemal, Country Rapporteur for Canada, stressed the importance of providing disaggregated data in the report and reiterated a concern about using the term ‘visible minorities’. The Committee supported the Government’s efforts at truth and reconciliation but remained concerned by the growing socio-economic disparity between indigenous communities and the broader population.

Catrina Tapley concluded that Canada took its responsibilities under the Convention with the utmost seriousness. Multiculturalism in the Canadian context was neither restricted to assimilation nor mutually exclusive of integration. All levels of government, civil society and stakeholders played an important role in combating racial discrimination. Canada was evolving and the Government recognized the need to create a background in which all citizens, regardless of ethnicity, could prosper and benefit.

The delegation of Canada consisted of representatives of the Department of Citizenship and Immigration, the Department of Aboriginal Affairs and Northern Development, the Department of Justice, the Department of Public Safety, the Department of Canadian Heritage, the Ministry of Foreign Relations and the Permanent Mission of Canada to the United Nations Office at Geneva,

The next public meeting of the Committee will be at 3:00 p.m. on Thursday 23 February, when it will consider the combined sixth to eight periodic reports of Turkmenistan (CERD/C/TKM/6-7).

Report

The combined nineteenth to twentieth periodic reports of Canada can be read here (CERD/C/CAN/19-20).

Presentation of the Report

CATRINA TAPLEY, Associate Assistant Deputy Minister, Strategic and Programme Policy Sector, Department of Citizenship and Immigration, said Canada was a multicultural society consisting of over 200 ethnic origins. In the 2006 census, over 1.1 million people self-identified as aboriginal (North American Indian, Métis or Inuit) and over five million people, or 16.2 per cent of the population, identified themselves as members of a minority racial group. The Canadian Constitution guaranteed all citizens the right to equal protection and benefit of the law without unjust discrimination based on race, national or ethnic origin, colour and other grounds. Statutory protections included the Canadian Human Rights Act (of which Section 67 applied to First Nations living on reserves), the Multiculturalism Act, and the Employment Act which provided protection against invidious racial discrimination. Canada has one of the highest per capita rates of permanent immigration, 0.8 per cent in recent years, and had 250,000 permanent residents and over 200,000 temporary workers. In 2010, the Government introduced the Balanced Refugee Reform Act to reduce the long back-log of asylum cases and committed to increase the number of resettled refugees by 2,500 persons. Canada planned to welcome up to 14,500 refugees through its resettlement programmes by 2013. Each year Canada devoted 900 million Canadian Dollars for the provision of settlement services and was proud that approximately 85 per cent of immigrants eventually would become Canadian citizens.

To address migrant smuggling concerns, the Government strengthened its authority to detain illegal or irregular migrants until it could be determined whether or not they were legitimate refugees. In the workplace, the Federal Employment Equity Act was passed to remove barriers to the employment and upward mobility of four designated groups: women, aboriginal peoples, persons with disabilities and members of visible minorities. Together those groups accounted for at least 60 per cent of the Canadian workforce. Although the Committee had raised concerns about Canada’s use of the term ‘visible minority’, the Government believed those concerns were unfounded. Canada’s Racism-Free Workplace Strategy complemented the Employment Equity Act, as a federal initiative designed to keep workplaces free of unjust racial discrimination. The Criminal Code contained a number of provisions related to hate speech and hate-motivated crimes, including advocating genocide and intentionally promoting hatred against an identifiable group.

The long-standing presence of First Nations, Inuit and Métis people, their cultures, traditions and values were fundamental to Canada’s history. Canada endorsed the United Nations Declaration on the Rights of Indigenous People in 2010 and announced an investment of 10 million Canadian dollars over two years, to improve community safety and to ensure that the justice system and law enforcement agencies could better respond to cases of missing and murdered aboriginal women. Canada had established a results-driven framework for action on aboriginal issues, focused on economic development, education, empowerment and protection of the vulnerable, resolution of land claims and reconciliation, governance and self-government. A further 10 million Canadian dollars was allocated annually to programmes run by 34 ministries and federal bodies supporting aboriginal peoples. Canada continued to support land claims and self-government agreements. To date 25 self-government and comprehensive claims agreements covering 96 communities have been achieved. The Government was also engaged in 60 comprehensive land claim negotiation tables across the country. Finally, the Gender Equity in Indian Registration Act ensured that eligible grand-children of women who lost their Indian status as a result of marrying non-Indian men, could now receive Indian status. That act applied to 45,000 persons.

Questions from the Experts

ANWAR KEMAL, Country Rapporteur for Canada, said that the biggest challenge Canada faced was the widening gap between the haves and have-nots, which resulted in a disproportionate impact on indigenous peoples and visible minorities. Many institutions in Canada, including the Supreme Court and the Auditor General, had also identified that issue. The Committee had high expectations of Canada, but pointed out that many non-governmental organizations representing aboriginal peoples and peoples of African descent had presented a disparaging situation of the human rights situation in the State party. The only major omission in the report was a lack of tabulated statistics, and reference to an official website with detailed statistics had been cumbersome for Committee members to access.

Concerning the term ‘visible minority’, the Rapporteur referred to the Report of the Independent Expert on Minority Issues following his mission to Canada in October 2009, which drew attention to significant and persistent problems affecting persons of minority communities. Minority communities felt strongly that using a catch all terminology such as ‘visible minority’ had led to the neglect of specific identifies and situations and obscured the distinct experiences of minority groups. Canada had not accepted the recommendation to include an anti-discrimination clause in its anti-terrorism act. The Committee had received information from non-governmental organizations of First Nations and African Canadians which indicated that their people were profiled and subject to negative encounters with representatives of the justice system.

The delegation was asked how it had followed the Committee’s recommendation to address the discriminatory effects of the Indian Act on the rights of aboriginal women and children to marry, to choose one’s spouse, to own property and to inherit, and whether the Gender Equity in Indian Registration Act dealt with all of those issues.

No reference had been found in the report to a recommendation that the State party should hold transnational corporations registered in Canada accountable for actions that impacted adversely on the enjoyment of the rights of indigenous peoples in territories outside of Canada. What measures had been taken by the Government to prevent Canadian based multinationals, such as Goldcorp and Barrick Gold, from discriminating against indigenous people outside of Canada?

The Committee was concerned by the high rates of imprisonment of people from minority groups. For example, over half of the people incarcerated in Saskatchewan province were indigenous peoples. The African Canadian population accounted for only 2.5 per cent of the general population but made up 10 per cent of the prison population. Why was there an overrepresentation of persons of African descent in the prison system? What alternatives to imprisonment had the State party put in place for aboriginal peoples and people of African descent, and what training existed for local judges and police officers on people of African descent?

The Rapporteur noted that funding for First Nations programmes had been curtailed to two per cent annually, while the population on Indian reserves was growing at a faster rate. The United Nations Special Rapporteur on the Rights of Indigenous Peoples expressed his deep concern about the dire social and economic condition of the Appawapiskat First Nation, who had insufficient access to potable drinking water, housing, education and child welfare services. The aboriginal communities had, in negotiations with the Federal Government, insisted that original treaties were not being observed, notably a Treaty with Queen Victoria of the United Kingdom. Could the delegation explain the requirement of extinguished rights?

The report stated that Canadian federal and provincial states permitted expropriation of land for specific public purposes, but the underlying assumption in that statement was that the State had the right to own land belonging to Indian indigenous peoples, said an Expert. There was a need to provide indigenous peoples with additional rights, as current legislation had not effectively addressed the full scope of discrimination they faced. Structural discrimination had led to generations of poverty among indigenous people, and an Expert urged the State party to redouble efforts to narrow the gap between recognizing the rights of indigenous people and implementing measures to protect those rights. An Expert asked why the Rapporteur on the Rights of Indigenous People had not been invited to Canada.

What was the Government’s action plan for implementation of the United Nations Declaration on Indigenous People, and could the Declaration be applied in customary law? Concerning existing aboriginal and treaty rights, an Expert asked if any specific mechanisms were developed to oversee the implementation of treaty rights. There appeared to be a connection between unresolved land and title issues, with higher rates of poverty and incarceration among indigenous peoples. An Expert asked if aboriginal land titles could co-exist with other titles.

Canada was ranked sixth in the world for development indicators, but indigenous people in Canada ranked only sixty-sixth. The Committee had been told that there was no process of negotiation with indigenous people about land and water rights. The important principle of prior and informed consent should be applied to indigenous people, especially when major extractive projects such as tar sands impacted on the lands of indigenous people. Could the Free Trade Agreement between the United States and Canada on extractive industries hold potential negative consequences for indigenous people and those of African descent? Were there any legislative measures to force Canadian companies that operated abroad to uphold the rights of indigenous people and to protect the environment? The Nagoya protocol and established rights was raised; why was Canada was not willing to protect the genetic resources of aboriginals? There was a concern that multinational companies could register rights over aboriginal intellectual and genetic resources.

An Expert was shocked to hear that children from indigenous families were removed when their families did not have the means to raise them, and urged the State to find a different policy to make sure children were raised in their biological families, including by providing financial means. Given the recent rise in children being taken out of poor First Nations’ homes, what steps had the Government taken to ensure that the next generation of First Nations children were not taken from their homes because of poverty?

An Expert who had attended the Truth and Reconciliation Commission of Canada on the issue of Indian residential schools said the victims’ testimonies had sounded like genocide. What reconciliation was planned; how would those individuals be compensated for being separated from their local communities and for the violation of their human rights? Experts urged the Government to consider implementing redress, not only for the harmful policy of Indian residential schools but also for other discriminatory policies the Government had enacted.

The high numbers of indigenous women in prison were specifically referred to, and an Expert requested detailed information on the crimes those women had committed. Would the Government consider adopting the new International Labour Organization Convention on Domestic Workers, which prioritized the issues faced by migrant women workers? The empowerment of indigenous women and women of African descent was currently only supported by local programmes, and an Expert suggested a federal approach. Programmes for aboriginal women were fragmented and an Expert recommended that the State party adopt a holistic approach based on the most pressing needs of indigenous women.

An Expert expressed extreme concern about the portrayal by Government officials of Roma as scheming thugs, which had increased discrimination against Roma in Canada. What efforts had been made by the Government to celebrate historical achievements of African descendents which had benefited Canada? The State party should redouble its efforts to reduce disparities in the provision of education and housing for indigenous people.

What was the training programme in human rights for members of the Royal Canadian Mounted Police? The delegation was asked to explain the definitions contained in the criminal code of Canada which criminalized any incitement to hatred or breach of the peace.

Concerning new reforms to the Refugee Act, how would lists of safe countries operate and would persons from those safe countries be under disadvantageous terms of detention. Both the smuggler of irregular arrivals and the refugees themselves could be punished. What links would the Refugee Act have with security, terrorism, and safe guarding citizens, and what mechanisms were in place to ensure that those policy changes did not result in direct discrimination?

The Committee had in recent years focused on two important areas, the rights of indigenous peoples and the rights of people of African descent; could the State party explain how and why there had not been a stronger historical relationship and process of communication between indigenous people and the general population in terms of economic development and human rights. It was incumbent upon the State party to ensure that policy mistakes of the past were not be repeated, especially for indigenous peoples, and an Expert highlighted the important role education could play. How had the contribution of indigenous people and people of African descent been portrayed in school history books? Concerning people of African descent, an Expert raised a concern about the use of specialized schools for that group, which had limited their integration into main stream society. Was bilingual education provided throughout the country, not just in English and French but in other languages? What was Canada’s experience with regard to school drop-out rates and school exclusions among people of African descent?

In the Canadian penal code, racist violence was considered an aggravated element. Would the law be amended to explicitly include the criminalization of acts of racist violence, as required under article four of the Convention? Blacks and people of Jewish descent accounted for the majority of victims of hate crimes and requested an elaboration on how the Government would address hate crime.

Response by the Delegation

CATRINA TAPLEY, Associate Assistant Deputy Minister, Strategic and Program Policy Sector, Department of Citizenship and Immigration, said the term ‘visible minority’ was applied only in the Federal Employment Equity Act’s identification of four specific groups which were non-white in colour, and not Caucasian. After considerable analysis, the Government had decided to continue to use the term. Concerning using article 14 of the Convention, the delegation said that an existing range of international and domestic remedies for victims of racial discrimination were sufficient. Although there were complexities in the three levels of Government in the nation’s federal system, Ms. Tapley stressed that all levels of Government were aware of their international human rights obligations and had taken active efforts to implement the Convention.

The issues facing aboriginal people were complex and serious and the Government was committed to eliminating the gap that existed in socio-economic incomes between aboriginal and non-aboriginal people. Section 9124 of the Constitution, the Indian Act, had for over a hundred years given the federal Government legislative authority over Indians, including the ability to make laws that applied to Indians and their lands. The long history of the Indian Act meant it had firm roots in the legal system, but the Government had adopted new legislation to eliminate barriers to equality that had existed in the Indian Act, notably the Gender Equity in Indian Registration Act and the proposed Family Homes on Reserves and Matrimonial Rights Act.

Section 35 of the Constitution provided aboriginal people in Canada with aboriginal and treaty rights which were group and site specific; all levels of Government were obliged to respect Section 35 rights. Rights were not absolute and Canadian courts and Government were working to find the right balance between rights and obligations. Treaties were solemn agreements and were the highest respect of the relationship between the Crown and First Nations. In 2007 fundamental reforms to the claim process were implemented to improve and speed up land claims through an independent tribunal body which could make a maximum reward of up to 150 million Canadian dollars. Since 2007, 70 specific claims had been resolved for a total of 1.03 billion Canadian dollars.

A delegate explained that the surrender approach of rights over land use came about when aboriginal peoples were required to release their undefined rights to achieve new rights over land. Such an approach had been controversial, so the Government had implemented a modified rights model.

Canada had endorsed the United Nations Declaration on the Rights of Indigenous People in 2011 but the speaker noted that the declaration had no direct legal effect in Canada although the Courts would look to the declaration for guidance.

The Government mandated a strong consultative process with aboriginal communities on matters impacting their rights. On average, a legal duty to consult had been triggered over 100,000 times per year at the provincial level and over 500,000 times per year at the federal level. Guidelines on the consultative process were developed at the federal level, while several provinces had developed their own guidelines. Concerning free, prior and informed consent should be applied to foster partnerships with indigenous communities and, where appropriate, could cover development policies impacting their interests but should not be used as a veto against Government policy.

Aboriginal people faced lower health and socio-economic outcomes than the broader Canadian population. Access to safe and affordable housing was essential for improving the economic condition of First Nations peoples and the Government had invested annually 155 million Canadian dollars in housing-related initiatives. An action plan was currently being drafted to improve access to housing for First Nations peoples. A priority for the Government was to increase the use of market-based reserve housing, with a 300 million Canadian dollars credit-enhanced fund. Concerning the situation of housing in Saskatchewan, 22 homes had been provided. The Government was committed to improving the quality of water on reserves. In 2009, a national assessment surveyed over 90 per cent of waste water systems in First Nations communities, the results of which the Government would use for infrastructure improvement.

The Federal Government provided funding for child welfare services on First Nations reserves. In 2007 the Government had adopted a new approach, the Enhanced Prevention Focus, which enabled children to remain in homes and families where they were at risk of being taking out of. Six agreements had been signed with provinces to support the Enhanced Prevention Focus and the Government would aim to achieve agreements with all provinces by 2015.

Reconciliation work had arisen from the policy of Indian Residential Schools. The Government had apologized at the highest level for the policy, and had created the Indian Residential Schools Settlement agreement to compensate individuals. There were two compensation procedures: a common experience payment for all former students that had resided at the school and an independent claims assessment for sexual and physical abuse suffered at the schools. The common experience payment provided 10,000 Canadian dollars (CAD) for students who had attended the first school year followed by CAD 3,000 for each subsequent school year attended. As of 2011, 97 per cent of the 80,000 former students had been paid with an average payment of CAD 20,000. For independent claims assessments, close to 13,000 claims had had a hearing and the total number of claims was estimated to reach up to 30,000. Over 10,000 claims had had decisions rendered for an average payment of CAD 120,000.

Concerning racial profiling in Canada’s anti-terrorism act, the Royal Mounted Canadian Police had established a National Security Criminal Investigations Outreach Program to engage civil society and enhance communication during times of crisis. There were robust regional recruiting campaigns to expand aboriginal and other minority representation in the police force.

There were many reasons for aboriginal peoples’ high rates of contact with the justice system including poor social economic conditions, substance abuse, lack of education and poor employment opportunities. Demographic trends showed the aboriginal community were experiencing a higher population growth and had resulted in a youth bulge, which had led to their overrepresentation in the penal system. The Government had promoted the use of aboriginal liaison officers to ensure that the unique spiritual and cultural needs of aboriginal people would be provided. A database had been created to track disappeared indigenous women.

Canada criminalized acts of racist violence through various criminal laws and through the application of aggravating factors, which was in full compliance with article 4 of the Convention: and there was no need for additional amendments to the legal code. Canada was a leader in designing and maintaining a database on hate crimes. There were 762 hate crimes which accounted for less than one per cent of all crimes reported to police; African Canadians were the target of most hate crimes. Hate speech was combated through a combination of various measures. A proposed bill would strengthen provisions against hate speech by extending provisions to cover the national origin of groups.

The delegation noted that Canada would need to make revisions to domestic law if it was to ratify the International Labour Organization’s Convention on Domestic Workers. Concerning the Convention on the Rights Migrant Workers, the delegation stated that Canada’s refugee system was advanced and had already covered many of the provisions in the Convention. Canada operated is citizenship by both birth on soil and parentage, with an exception for children of diplomats born on Canadian soil. Parents of children born on Canadian soil and facing deportation could apply for citizenship based on humanitarian grounds. All refugee claimants had access to a full and fair hearing before an independent board and Canada remained dedicated to providing meaningful access to a fair refugee system. Canada was concerned by the large number of refugee claims from Europe and noted that in 2011 more than 20 per cent of refugee claims were made by European Union nationals. Hungary had become Canada’s top source for Hungarian refugee claims: of 2,400 global claims made by Hungary, 2,300 were made in Canada while the United States only received 32. The speaker highlighted that 62 per cent of asylum claims from Europe were abandoned or rejected, wasting taxpayer money and Government resources. The designated country of origin policy was meant to restrict refugee abuse and to accelerate processing times.

Canada would not address the extra-territorial activities of Canadian multinational corporations in the report because the delegation believed it was better addressed by other international human rights bodies, notably the Human Rights Council. In 2009, the Government enacted a Corporate Responsibility Strategy and said that voluntary initiatives put forward by the Organization for Economic Cooperation and Development’s guidelines were the most appropriate means to addressing the responsibilities of corporations.

Questions from Experts

In addition to First Nations indigenous people, there were two other categories of indigenous groups, Inuit and Métis, but in the next periodical report more information was needed on how the workings of the cooperative federalist structure in Canada impacted the conditions of Métis people, who were governed by provincial rather than federal statues.

An Expert asked about the economic compensation for children placed in Indian Residential Schools and asked how compensation was given for sexual and physical abuse, the requirements for proof and the traumatic way in which the process was handled. How many cases were accepted or rejected by Canadian courts on hate speech and had the
State party analyzed the causes of hate crimes against African descendants?

Many States faced the challenge of adopting the Convention on Domestic Workers into their domestic legislation and an Expert encouraged the State party to seriously overcome those challenges. Could the delegation address the possibility of creating a Treaty Commission to resolve land disputes, and were there any legal obstacles to establishing such a committee? An Expert raised the concern that the new census would no longer collect disaggregated data by race and ethnicity.

Response by the Delegation

Religion was indeed a basis for hate crimes and noted that section 430 of the criminal code made it a specific crime to damage property that was used principally for worship.

In 2010, a new voluntary household survey replaced the long form census, and the speaker said that the new voluntary component would have an impact on the quality of data. There was a good response rate in the 2011 census but further analysis would be required to determine how the change in the survey would impact the production of disaggregated data.

Based on the 2006 census, 3.8 per cent of the population was self reported as aboriginal - over one million persons. Of those 698,000 were First Nations, 300,000 Métis, and 50,000 Inuit.

Mining was the largest employer of aboriginal people, accounting for 7.5 per cent of the labour force. The Government had encouraged dialogue and partnerships between aboriginal people and the mining sector. Concerning the distinction of services off reserve and on reserve, the delegate said that an aboriginal person who moved off reserve would receive benefits from the province just like any other inhabitant of the province. The delegate said that there was a movement in provinces and First Nations communities towards a more preventive approach to child welfare. In reply to the proposal of a Treaty Commission to resolve land disputes, the Government could not provide an answer at the moment. There was input and consultation from First Nations on the independent assessment process and it had been handled with upmost care and respect for the victims.

A delegate added that Canada was keen to return to a balanced budget following the global economic crisis and a forthcoming budget review would determine how much resources were available to combating racial discrimination. A delegate added that

Concluding Remarks

ANWAR KEMAL, Country Rapporteur for Canada, stressed the importance of providing disaggregated data in the report and reiterated a concern about using the term ‘visible minorities’. The Committee supported the Government’s efforts at truth and reconciliation but remained concerned by the growing socio-economic disparity between indigenous communities and the broader population.

CATRINA TAPLEY, Associate Assistant Deputy Minister, Strategic and Program Policy Sector, Department of Citizenship and Immigration, said that Canada took its responsibilities under the Convention with the utmost seriousness. Multiculturalism in the Canadian context was neither restricted to assimilation nor mutually exclusive of integration. All levels of government, civil society and stakeholders played an important role in combating racial discrimination. Canada was evolving and the Government recognized the need to create a background in which all citizens, regardless of ethnicity, could prosper and benefit.

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