Thursday, August 9, 2007

First Nations Women Unfairly Discriminated

A Toronto Star acticle details how Indian women in Canada are widely discriminated against by the Indian Act, thanks to section 67 within the Canadian Human Rights Act. Section 67 was enacted in 1977 as a 'temporary' measure in order to enable consultation on how Indian women who marry non-Indians can maintain their Indian status. 40 years later... not much has happened and women and their families are still getting denied housing and other reserve resources in a system that relies on patriarchal lineages. As the Star writes...

In 2000, retired Supreme Court justice GĂ©rard La Forest urged the government to remove section 67. In 2003, Bill C-7, the First Nations Governance Act, would have done so but an interpretive clause requiring the Human Rights Tribunal to consider the needs and aspirations of an aboriginal community affected by a complaint as well as gender equality, was challenged by First Nations. They demanded more consultation, expressing concerns about its effects on their collective rights and whether they had the resources to deal with a flood of new complaints.

Bands have a right to be concerned about the financial implications of any changes. In housing, to give just one example, band councils allocate lands by issuing certificates of possession. Most go to men. The Canadian Human Rights Act prohibits discrimination in the provision of residential accommodation, but it doesn't apply because of section 67. The courts can't help women discriminated against – they've held that section 67 "immunizes" even the intentional violation of human rights from judicial scrutiny. Indian women have no rights under provincial matrimonial property laws either, because Indian lands fall within federal, not provincial, jurisdiction.

Once section 67 is removed, Indian women could well have the right to stay in reserve housing following divorce or during separation. But housing is limited. Where will their husbands live? And what funding will be provided to bands to deal with additional demands for housing from off-reserve members who claim discrimination as well? Bands may discriminate now, but how can they not do so when housing is so limited?

So far, no one has challenged section 67 for being inconsistent with section 15 of the Charter, which makes equality a constitutional right. But recently, a B.C. court held that provisions of the Indian Act that discriminate against the grandchildren of Indian women who "married out" breach Charter rights because they do not apply to the grandchildren of Indian men. Some of those people will want housing on reserves, too.

The opposition parties claim more consultation is needed, but that was why section 67 was passed in the first place. Instead, for 30 years, Indians, and particularly Indian women, have had fewer human rights than other Canadians. We should all be concerned.

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