Use of International Law by Indigenous People in Canada
A number of Indigenous groups in Canada have used international law to claim protection of their rights under several treaties of the United Nations as well as the Organization of American States.
Human Rights Claims to the United Nations
Under the International Covenant on Civil and Political Rights (ICCPR), which is part of the International Bill of Rights, claims by Canadian Indigenous groups have relied on Article 27, which states:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
In 1977, Sandra Lovelace filed a complaint with the UN Human Rights Committee, which heard complaints based on the ICCPR, claiming that the Indian Act was discriminatory on the ground of sex, contrary to the ICCPR. Ms. Lovelace was born and registered as a Maliseet Indian, but lost her rights and status as an Indian under the Indian Act when she married a non-Indian man. Under the same laws, men who married a non-Indian woman did not lose their status. The Committee determined that the Indian Act violated Ms. Lovelace’s rights under the ICCPR because it denied her the right to freely enjoy her culture. As a result of the ruling by the Human Rights Committee, Canada changed the Indian Act in 1985 to allow women to keep their status when marrying and to allow women to regain their status if it had been lost as a result of the provisions in the Indian Act.
Unfortunately, the amendments made as a result of the Lovelace case did not completely remedy issues of gender discrimination under the Indian Act. In fact, the result of the changes to the Indian Act were merely to postpone the effect of the discrimination for a couple of generations, because now women who married non-Indians and their children were granted status, but the women’s grandchildren were not. In contrast, the grandchildren of Indian men who married non-Indian women were entitled to have Indian status.
In 1985, Sharon McIvor launched a court challenge after she was denied Indian status for herself and her children under the new provisions in the Act. Both of McIvor’s grandmothers were status Indians, but her grandfathers were not. After 17 years, McIvor’s case finally reached the British Columbia Supreme Court (BCSC) in 2006. The BCSC agreed with McIvor that the Indian Act contravened the Canadian Charter of Rights and Freedoms as well as international conventions on human rights, women’s rights and children’s rights. The court ordered that the offending section (section 6) of the Indian Act to be of no force and effect, meaning that it was essentially void and not legally enforceable.
However, the Federal Government appealed the decision to the British Columbia Court of Appeal (BCCA), which ruled that although section 6 of the Indian Act was discriminatory, the majority of this discrimination was justified. In response to the ruling of the BCCA, Parliament has proposed changes to the Indian Act in Bill C-3, however the proposed changes fail to fully address the sex discrimination embedded in the Indian Act.
In 2009, McIvor appealed the BCCA decision to the Supreme Court of Canada, but her appeal was denied. In 2010, McIvor applied to take her case to the United Nations Human Rights Committee. She has stated: "Many people in Canada, Aboriginal and non-Aboriginal, recognize that this long-standing discrimination against Aboriginal women and their descendants is wrong and should end. Before me, Mary Two-Axe Early, Jeanette Corbière Lavell, Yvonne Bedard, and Sandra Lovelace all fought to end sex discrimination against Aboriginal women in the status registration provisions in the Indian Act. I will continue, with the same determination they had, until Aboriginal women enjoy equality." She presented her case to the Committee in 2011.
Organization of American States
Currently, the Hul’qumi’num Treaty Group (HTG), a coalition of six First Nations whose traditional territories are on Vancouver Island, have appealed to the Inter American Commission on Human Rights for recognition of the ongoing violations by Canada to Aboriginal rights to property, culture, religion and equality under the law. In particular, the HTG are seeking assistance in protecting forestlands that have been the subject of ongoing and unresolved treaty negotiations. In 2007 the Inter American Commission ruled that Canada’s land claims process did not meet international standards for justice, but has not yet ruled on the specific case of the HTG. In May of 2011, the HTG asked the Inter American Commission to call for the provincial and federal governments to suspend logging activities, property sales and development leases on the disputed lands until the case is resolved.
