UN women’s rights committee urges Canada to amend transgenerational discriminatory Indian Act

GENEVA (3 March 2022) – The UN Committee on the Elimination of Discrimination against Women (CEDAW) has called on Canada to fully address the long-standing gender-based discrimination in the country’s Indian Act that continues to affect tens of thousands of descendants of indigenous women today.

In the findings published today, the Committee found that, by being prevented from passing their indigenous status onto new generations, J.E.M. and his children were victims of violations rooted in the discriminatory nature of Canada’s Indian Act, the primary law used to administer indigenous peoples.

J.E.M. is a matrilineal indigenous descendant from a long line of leaders of the Capilano Community. His grandmother was an indigenous woman, a member of the indigenous Squamish Nation in British Colombia, who was forcibly taken away from her community and placed in a residential school. The school aimed at assimilating indigenous children into Euro-Western culture by making them learn English and practise Christianity. She married a non-indigenous man and ceased to be considered indigenous, according to the Indian Act. 

Under the Indian Act, the “status Indian” registered with the federal Government, is a condition for gaining access to rights and benefits such as health-care services, financial support for education, the right to reside on indigenous territories and the rights to hunt and fish on indigenous traditional lands. 

Prior to 1985, the Indian Act contained explicitly discriminatory provisions against indigenous women which took away their status if they married non-indigenous men. Since then, despite numerous legal challenges, Canada has only amended the discriminatory provisions with piecemeal changes rather than ending the discrimination entirely.

As J.E.M. is a disenfranchised matrilineal indigenous descendant, he was denied his indigenous identity until 2011, when he could only recover limited status. It was not until 2019 that J.E.M.’s children were recognized as indigenous. Nevertheless, under the Indian Act, they won’t have the right to freely pass on their indigenous status to the next generation.

After multiple failed attempts to challenge the Indian Act in Canada, J.E.M brought his petition to the Committee. The Committee found that the provisions of the Indian Act are discriminatory to the descendants of indigenous women who had been disenfranchised.  

 “The entire issue stems from the disrespect of indigenous people’s fundamental right to self-identification,” said Committee member Corinne Dettmeijer. “It is further exacerbated by the unequal criteria by which men and women are permitted to transmit indigenous status and identity to their descendants.” 

“By comparison, descendants of indigenous Indian grandfathers would never have lost their status and have always been able to pass on their status to their children,” Dettmeijer added.

The Committee recommended that Canada provide appropriate reparation to J.E.M. and his children, including recognizing them as indigenous people with full legal capacity, and allowing them to freely transmit their indigenous status and identity to their descendants. 

It also called on Canada to amend its legislation to enshrine the fundamental criterion of self-identification, and to provide registration to all matrilineal descendants on an equal basis to patrilineal descendants.

ENDS

Background: 

The Committee on the Elimination of Discrimination against Women monitors States parties’ adherence to the Convention on the Elimination of All Forms of Discrimination against Women, which to date has 189 States parties. The Committee is made up of 23 members who are independent human rights experts in women’s rights drawn from around the world, who serve in their personal capacity and not as representatives of States parties. The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women allows the Committee to receive and examine complaints by individuals or groups of individuals under the jurisdiction a State party to the Optional Protocol, claiming to be victims of a violation of any of the rights set forth in the Convention. To date, 114 States have ratified or acceded to the Optional Protocol. The Committee’s views and decisions on individual communications are an independent assessment of States’ compliance with their human rights obligations under the Convention.