Indigenous Women in Canada are Protected by International Human Rights Law

Wednesday, January 14, 2015

Indigenous Women in Canada are protected by International Human Rights Law

Angela Cameron

The Harper government had an opportunity to participate during the writing of the report on missing and murdered Indigenous women by the Inter-American Commission on Human Rights. One of the many careful steps of this thorough investigation allowed the Harper government to provide observations on an early version of the Commission’s findings.

In their response to the report the Harper government baldly claimed that international human rights law does not apply within Canada.

‘We give serious consideration to the views and recommendations of human rights bodies, but wish to emphasize that they are non-legally binding.’ [1]

This is not the first time the Harper government has made this claim in relation to Indigenous peoples.[2] In reply, the United Nations Special Rapporteur on Indigenous Peoples, James Anaya, called this ‘a manifestly untenable position.”[3]

In their report the Inter-American Commission dedicates approximately 23 pages to outlining how the Harper government's position is simply wrong at law. At the most basic level Canada became a full member of the Organisation of American States (OAS) in 1990, which affords us numerous advantages in trade, political relations and security. By becoming a member Canada also took on obligations. We gave the Commission, which is the human rights body of the OAS, jurisdiction to keep track of our human rights record, amongst other powers.[4] This report tells us that our record in relation to Indigenous women is shameful and we must do something about it.

 More generally the Commission  cites binding international legal instruments such as the Vienna Convention on the Law of Treaties[5], and the legal rule of customary international law[6] which basically state that if you endorse an international human rights instrument you must uphold your obligations under that instrument. These are straight forward rules that states must comply with.

The Commission is not alone in both condemning human rights violations against Indigenous women, and in asserting that international human rights law does indeed apply in Canada. This is not the first time the Harper government’s human rights violations have been noted by the international community.

 For instance in 2008 the United Nations body charged with upholding gender equality noted that Indigenous women in Canada were experiencing human rights violations due to poverty, violence, incarceration, and lack of legal protection. [7]  The United Nations body mentioned the phenomenon of missing and murdered Indigenous women specifically,[8] and asserted that international human rights are “… binding on all branches of Government.”[9]

All of this boils down to a simple idea: Canada as a nation signed onto these binding international human rights obligations because Canadians believe in upholding human rights. We spoke loudly of our commitment to the international community in endorsing these instruments. In denying the application of human rights instruments in Canada the Harper government is aligning itself with states whose human rights records are beyond appalling. That is not what Canadians want.

Angela Cameron is an Associate Professor at the University of Ottawa Faculty of Law. She is a Board member of the Feminist Alliance for International Action and the Canadian Journal of Women and the Law. 

[1] State of Canada, Response to the IACHR’s Report on the Situation of Missing and Murdered Indigenous Women in British Columbia, Canada. Note PRMOAS – 0232, October 30, 2014.

[2] In 2011 the Harper government made the same claim in relation to the United Nations Declaration on the Rights of Indigenous Peoples.

[3] United Nations Human Rights Council, 2010.

[4] Pursuant to Articles 18 and 20 of the Statute of the Inter-American Commission on Human Rights and The Charter of the Organization of American States, Articles 3, 16, and 51.

[5] Article 31(3) (c). Canada endorsed this treaty in 1970.

[6] For more on this legal rule see: Paul Joffe, “Undermining Indigenous Peoples’ Security and Human Rights” in Joyce Green Ed, Indivisible: Indigenous Human Rights (Fernwood: Halifax, 2014) 217 at 222.

[7] Committee on the Elimination of Discrimination against Women, Concluding observations of the Committee on the Elimination of Discrimination against Women, CEDAW/C/CAN/co/7.

[8] At pars. 31 and 32.

[9] At par. 10
Designed by Rachel Gold.