Women’s Human Rights on Indian Reserves

On Indian Reserves, women’s human rights can be violated without any legal remedy. NAWL’s working group on Aboriginal Women’s Rights urges the federal government to take immediate action to ensure that women’s matrimonial property rights are fully recognized and respected on Reserves.

Senator Shirley Maheu, Chair
Standing Senate Committee on Human Rights

Friday October 17, 2003

Madame Chair,

I am writing to you in the name of the National Association of Women and the Law, concerning the issue of matrimonial property on reserve. NAWL was planning on submitting our comments and recommendations to the Standing Senate Committee on Human Rights on November 17, but we understand that you will be considering an Interim Report next Monday, on October 20. Given the pressing nature of our concerns on the impact of the current federal laws and practices on women’s equality rights, we would like to share some of our thoughts in this letter, for your immediate consideration.

As most of the women who have testified before this Committee in the last few weeks have pointed out, and as several United Nations Committee have concluded, the living conditions on reserve are in a state of perpetual crisis: extreme poverty, lack of housing, unemployment and bad working conditions, violence and poor health. These hard living conditions are compounded by the pervasiveness of racism in the neighbouring communities, of ongoing discrimination in society at large and the legacy of oppression and exclusion engendered by colonialist laws, chief of which is the Indian Act itself.

Genocide and systemic violence and abuse have created a culture of abuse, destroying traditional egalitarian practices, values and legal custom. Women’s inequality on reserve is the result of social, economic, political and legal conditions that remain for the most part unchanged, and the reform of the matrimonial property regime on reserve will only address a small part of the problem, albeit an important one for women. For this reason, NAWL recommends that the Senate urge the federal government to look into long term solutions, that recognize the inherent sovereignty of First Nations peoples, engaging in a democratic and open process that includes the equitable participation of women and their political representation through organizations that represent their interests. The federal government must also invest all necessary resources in supporting healthy, strong, egalitarian and autonomous First Nations communities across Canada.

As several experts have already pointed out to this Committee, the legal framework imposed on First Nations Peoples in the XIX century, legislatively sanctioned women’s subordination and second class status in reserves across Canada. Historically, the federal government has shown a complete disregard for the human rights of women, and its current policies still reflect an almost complete lack of interest in promoting Aboriginal women’s equality rights. If it finally did change the reviled rule of s. 12 (1) b) of Indian Act, striping women of their Indian status if they married out of their community, it is only after years of litigation, the provision in 1983 of an additional guaranty for Aboriginal women’s equality rights in section 35(4) of Canada’s Constitution, followed by an explicit condemnation from the United Nations in the Lovelace case, in 1985.

However, Aboriginal women’s situation on reserve remains desolate. As Joyce Courchene, President of Nongom Ikkwe, the Indigenous Women’s Collective of Winnipeg testified before the Royal Commission on Aboriginal People: “Presently the women in our communities are suffering from dictatorship governments that have been imposed on us by the Indian Act. We are oppressed in our communities. Our women have no voice, nowhere to go for appeal processes. If we are being discriminated against within our community or when we are being abused in our communities, where do the women go?…The Royal Commission to date has not heard the true story of Aboriginal women’s oppression. The women are afraid to come out and speak in a public forum such as this. We are penalized if we say anything about the oppression that we have to undergo in our community.”

Federal government laws and policies have not only extinguished or imperilled Aboriginal women’s rights to Indian status and band membership, but it has placed most of the land it holds in trust for the benefit of Canada’s First Nations, in the hands of a few men. Indeed, DIAND officials have admitted that most certificates of possession to residential housing on reserve are in the possession or the control of men. Yet, there are no provisions in the Indian Act stipulating how men must share with women their interest in the matrimonial home. There is a complete legal vacuum on the issue, indicative of a complete disregard for the rights and interests of women on reserve. It is as if the legal regime on reserve has not evolved since 1876 when the Indian Act was first adopted, and men are still simply presumed to hold possession of the home, while women have no recourse or remedy, even in the worst cases of violence or abuse. Indeed, even when women have custody of the children, they will not have the right to live in the family residence if their spouse holds the certification of possession.

Federal government law and policies in effect have created geographic areas where women’s human rights can be suspended or violated without any legal remedy. This regime applies to Aboriginal women and non-Aboriginal women alike, as soon as they are not Band members and do not have a certificate of possession. The federal government has created this situation, and it is NAWL’s contention that it now has the responsibility and obligation to remedy the inequalities and injustices that have been engendered. Indeed, ongoing inaction by the federal government is providing a license for some Bands to violate women’s most basic equality rights.

For many years, the Native Women’s Association of Canada and Québec Native Women have been urging the federal government to respect and promote women’s equality rights on reserve, and in particular to remedy the problems caused by its legislative omissions on matrimonial property on reserve. NAWL has also denounced the federal government’s inaction on this issue in several fora, in particular before the United Nation’s Committee on Economic, Social and Cultural Rights in 1998, the United Nations Human Rights Committee in 1999 and in collaboration with the Feminist Alliance for International Action, the United Nations Committee on the Elimination of Discrimination Against Women in 2002. All of these instances have blamed Canada for its neglect of Aboriginal peoples most basic human rights. Last January, the CEDAW Committee expressed it’s concerns “that the First Nations Governance Act currently under discussion does not address remaining discriminatory legal provisions under other Acts, including matrimonial property rights, status and band membership questions which are incompatible with the Convention”. It urged Canada to “accelerate it’s efforts to eliminate de jure and de facto discrimination against Aboriginal women both in society at large and in their communities”.

Government inaction on this issue is simply no longer acceptable. NAWL joins our voice to NWAC, NWQ and other national and provincial Aboriginal women’s organizations requesting that the Federal government take immediate action to ensure that women’s interests in the matrimonial home be fully recognized and respected. We support NWAC’s call to “referentially incorporate provincial legislation that protects women’s rights upon marital breakdown”, as well as it’s recommendation that the Land Management Act “should be amended to require that Band Codes protect the matrimonial property rights of First Nations individuals to the same extent as individuals governed by provincial matrimonial laws”.
As NWAC has stated in its brief to this Committee, “the effect of not having equal matrimonial property rights is particularly severe for women living with violence”. NAWL supports the recommendations that have been made toward ensuring that interim measures be available in cases of violence against women. Aboriginal women face more violence in their lives than any other group. For example, the Native Women’s Association of Nova Scotia found in 1997 that over 75% of Mi’kmaq women had experienced violence in their lives. The Abbot report, that has been submitted to this Committee clearly shows most Aboriginal women who leave their reserve, leave on separation and usually because of domestic violence. The Royal Commission on Aboriginal Peoples also concluded that a majority of Aboriginal migrants to urban centers are women, and that the displacement of these women occurs most often due to physical violence or sexual abuse. RCAP also pointed out that the inability to stay in their matrimonial home is a “further complicating factor” for women when a marriage fails.
There is an immediate crisis that needs immediate attention, and there seems to be a strong consensus amongst Aboriginal women’s organizations that amending the Indian Act to referentially incorporate provincial family law is one way of addressing this crisis in the immediate. Ensuring that women have access to justice, and providing for emergency funding for the housing and other needs of women and their children are also priority actions that could be undertaken by the government.

Of course, long-term solutions will also need to be explored, to promote substantive, egalitarian change. Some of the issues that need to be addressed include the endemic housing crisis on reserve, ensuring women’s safety from male violence, addressing problems in membership codes and mobility issues, the granting of Indian Status to children. This will need to be examined in the context of a recognition of Aboriginal People’s inherent right to self-determination

I would like to thank you for your attention, and hope that you will agree with us that immediate action is necessary to respect and promote Aboriginal women’s equality rights on reserve.

Patti Doyle Bedwell

For the Aboriginal Women’s Rights Working group
National Association of Women and the Law