Canada Violates the Rights of Aboriginal Women and Girls
By: Shelagh Day
The Committee has found Canada in violation of 5 Articles of the Convention on the Elimination of All Forms of Discrimination against Women - Articles 2, 3, 5, 14, and 15. These are the core guarantees of equality in the Convention.
For those of us who have been working on equality rights law for a long time, this decision includes analysis and findings that we have been seeking since section 15 of the Charter was introduced. Our domestic courts have not attained this sophistication yet. . Here are the key features in the CEDAW Report that are crucial to the advancement of women’s human rights.
1) This decision, like the one by from the Inter‑American Commission on Human Rights (IACHR), pulls together economic and social rights and civil and political rights. This is extremely important because in women's lives they are so integrally connected. A woman who is poor, racialized and socially marginalized does not enjoy the same protection from the police, or the same ability to participate politically as one who is not. There is no equality before the law without equality in conditions of living. This is just fact.
2) This decision deals with systemic discrimination. That is, it is concerned with Aboriginal women and girls as a group - precisely the sociological phenomenon that Prime Minister Harper says does not exist. It recognizes the systemic discrimination against Aboriginal women and girls as a group in a number of ways - the systemic discrimination involved in Canada's colonial history, in the residential schools policy, in the Indian Act, in social and economic marginalization, in discriminatory police treatment, in discrimination in the justice system through overcriminalization, in discrimination in the child welfare system, in the discrimination inherent in the funneling of Aboriginal women and girls into prostitution. It is highly unusual to have a legal ruling on systemic discrimination that finds that governments are engaged in it, or are failing to address it and therefore perpetuating it.
3) This decision finds that the discrimination that Canada is guilty of lies in failures to act effectively. It has always been easier for courts - and ordinary people - to understand that there is a violation of a law if the government or an individual does something overt. A commission is easier to call a violation of law, than an omission, a failure to provide clean water, or adequate housing, or a justice system that protects Aboriginal women and girls. But it is these failures that cause equality violations ‑ the failures to take “all appropriate measures” as Article 3 of the Convention says, to advance the equality of women. That is what the CEDAW Committee has ruled: Canada violates the right to equality by failing to take the steps necessary to ensure that Aboriginal women and girls enjoy equality, equal protection of the law, and the right to life and security.
Shelagh Day is the Chair of the Human Rights Committee of the Canadian Feminist Alliance for International Action, and an expert on international human rights law.