Report by Inter-American Commission highlights institutionalized discrimination; judicial ineffectiveness; culture of inequality.
The Inter American Commission on Human Rights has released a 125 page report on the situation of “Missing and Murdered Indigenous Women in British Columbia, Canada.” The IACHR is the most significant human rights mechanism in the Americas; it is an arm of the Organization of American States.
The report refers graphically to the many and frequent realities among indigenous women of violence, murder, suicide, poverty, discrimination, marginalization, imprisonment, psychological harm, child apprehension, social and cultural deprivation, lack of housing, lack of education; and it overwhelms the imagination.
“Discrimination” is the root cause of disproportionately high incidences of murder and disappearance of Indigenous Women, according to the report’s findings. In fact, its key recommendation to Canada focuses on the resolution of that deadly discrimination:
“…This means addressing the past and present institutional and structural inequalities confronted by indigenous women in Canada. This includes the dispossession of indigenous lands, as well as historical laws and policies that negatively affected indigenous people, the consequences of which continue to prevent their full enjoyment of their civil, political, economic, social and cultural rights.”[i]
Discriminatory practices and norms of the colonial process are now firmly embedded in Canadian law; in Canadian institutions such as the RCMP and the public education system; have caused very recent historical harms; and permit prejudice in the mainstream culture and society. The Commissioners have focused on substantial evidence of these many kinds of endemic discrimination and the link it makes to “immunity” for those who commit crimes against indigenous women.
It’s the real and perceived lack of consequences for crimes against indigenous women which results in their being eight times more likely to be murdered than Canadian women. (p.49 #90)
The Commissioners referenced a dozen major United Nations human rights treaties in order to deal with Canada’s rejection of the IACHR report (pp.57-63). The Inter American Commission has jurisdiction to look into human rights issues which are covered in the American Declaration on the Rights and Duties of Man, a treaty applicable to every state member of the Organization of American States, but in making its formal observations on the IACHR’s report, Canada suggested it “is not bound by obligations contained in human rights instruments to which it has not consented to be bound.”
An array of secondary factors contributing to the exceptional vulnerability of indigenous women are caused by the same dominant theme of discrimination. These are not the front-line brutalities of homicidal racists, but social and economic problems created by state laws and policies which expose indigenous women, uniquely, to those murderers. In its study the IACHR report has shown a number of mechanisms, many of them organized and funded by the state, which churn indigenous women out onto the street and into desperate circumstances.
The IACHR report is so extensive in its documentation and findings that Canada will now finally have the international reputation it deserves.
The types of recommendations the Commission concluded its report with were so basic, such as police training to accurately receive reports of missing women and girls; and so consistent with the calls for action coming from Indigenous Peoples and indigenous organizations for the past twenty years, such as support for victims’ families to pursue justice, and a national inquiry; that the “discrimination” Canada is charged with is clearly an institutionalized, active, and meaningful – if not coordinated – attack.
The Commission notes many instances of failures to prevent violence against these women and failure to properly punish, or even find, the offenders – but those failures have carried on for decades and even generations. The situation appears less like a “failure” of justice and more like a “success” for Canada’s overarching goal to control all the lands and resources without interference from Indigenous Peoples. But that reality is not contemplated in the IACHR’s highly political report.
The report is dated December 21, 2014, and was produced over the last two years from data provided by sources in Canada, international conferences, and interviews conducted by Commissioners during an official visit to investigate the circumstances surrounding the internationally infamous magnitude of violence against indigenous women and girls in Canada. The Commissioners travelled to and held meetings in Vancouver, Prince George and Ottawa in 2013.
The report focuses on British Columbia
The number of cases in BC is the highest across Canada with 160 cases: 28% of the database compiled by the Native Women’s Association of Canada (NWAC). The province with the second most cases is Alberta with only a little more than half the number from BC: 93 cases, 16% of the NWAC total. As of 2010, NWAC had compiled a list of 582 women and girls missing or murdered in the past 30 years. NWAC’s funding to pursue that documentation was cut off by the government of Canada in 2010.
The RCMP has disclosed a number of cases of murdered indigenous women which is double that of the NWAC data. In May of 2014, the report “Missing and Murdered Aboriginal Women: A National Operational Overview,” showed 1,181 cases of indigenous female homicides across Canada between 1980 and 2012. 120 of those cases have not been solved. This number only includes files held by the RCMP, and not provincial or territorial police organizations.
When the Walk4Justice group crossed Canada on foot, annually, between 2008-2011, organizers believed they had collected the names of over 3,000 indigenous women who had been murdered or disappeared.
While BC has the most documented cases of murder and disappearance, the IACHR report says:
“This figure does not include the potentially large number of cases that have not been documented due to marginalization and fear of the victims, and deficiencies in the investigation.” (p.17, A. 3)
Discrimination: in law, institutions and mainstream culture
RCMP and Discrimination
“The kinds of irregularities and deficiencies that have been denounced and documented include: poor report taking and follow up on reports of missing women; inadequate proactive strategies to prevent further harm to women in the Downtown Eastside; failure to consider and properly pursue all investigative strategies; failure to address cross-jurisdictional issues; ineffective coordination between police; and insensitive treatment of families.” (p.12 #6)
Relying on testimonials from family members of victims, Commissioners described a stark picture of the experience of reporting a missing woman or girl at a police station. Many families of victims told the Commissioners that “police officers did not take their complaints seriously and frequently stereotyped the women as transient.” (p. 35, #55) Stunned by the response of the RCMP when he tried to find out the progress of investigations into his sister’s disappearance, Siam Moody told Commissioners in Prince George, “For years the RCMP did not do anything, like if there were different rules for her.” (p. 35, #55)
A family member who went to RCMP to report a relative missing from the Downtown Eastside was told by the officer, “whoever is doing this is cleaning up the streets.” (p. 35, #57)
While the State advised IACHR Commissioners in 2013 that there is no waiting time to report a missing person, testimonies by families of missing women and girls repeatedly included being made to wait 72 hours before being allowed to report a person as missing, even if that person was a child. (p. 35, #58)
A report prepared by Human Rights Watch in 2013 documented the regular assault of Indigenous women by RCMP in northern British Columbia, and this was referenced by the IACHR in their study.
Commissioners often assumed a defensive posture in framing their report. Presumably this is because Canada’s response to their report was an attempt to dismiss or undermine the status of outstanding human rights violations on their own part. However, “…the Canadian state is obliged to continue the investigation of unsolved cases… The authorities cannot justify the failure to complete an investigation or prosecution on insufficient proof if the reason for the insufficiency is deficiencies or irregularities in the investigation.” (p.13 #12)
One of the fifteen recommendations the IACHR made to Canada to help it solve the problem of high rates of murdered and missing indigenous women was development of policy for officials responding to a case of a missing person, in particular an indigenous woman. Another recommendation suggested oversight of officials involved in such investigations, and mechanisms to hold them accountable. Of all the irregular and questionable actions taken by police, at least those analyzed in the BC Missing Women’s Commission of Inquiry, no charges were pursued against those officers – because they had retired.
The state has an obligation to prevent violence, through all kinds of means such as public education; prohibitively effective sentencing for offenders; and even warning potential victims when a threat has become noticeable. (p.77 #171-177) The failure to prevent demands compensation, and an investigation into what caused the failure. The Vancouver police, the RCMP and Crown counsel could have taken a number of measures to prevent the death toll exacted by Robert Pickton. Today there are over 90 children of the deceased victims who are eligible for compensation for that failure.
The IACHR referred to a Human Rights Council resolution from 2010 regarding the state’s obligation to “exercise due diligence to prevent, investigate, prosecute and punish the perpetrators of violence against women and girls, and that the failure to do so “violates and impairs or nullifies the enjoyment of their human rights and fundamental freedoms.”” (p.72 #156) And, significantly, “…a state may incur an international responsibility for failing to act with due diligence to prevent, investigate, sanction and offer reparations for acts of violence against women, a duty which may apply to actions committed by private actors in certain circumstances.” (p.73, #158)
The connection between police and the fact that Pickton continued to murder for two decades bears closer scrutiny. The word on the street is that a sex worker went in to the Vancouver Police Department to report her assault the night before at “Piggy’s Palace,” as the Pickton property was known, only to see one of the men from the incident standing on the other side of the counter in VPD uniform. She did not carry through with the report. A more heavily documented connection has appeared in the form of Corporal Jim Brown who, at the same time as working in an official capacity for the Missing Women’s Commission of Inquiry, posed in a staged series of photographs: kidnapping a dark haired woman from the Downtown Eastside of Vancouver; removing her to an isolated area; caging her; threatening her with knives; and showing sexual satisfaction. Brown was based in the RCMP detachment in Coquitlam, the same city where the remains of 49 women were found at Pickton’s pig farm. The Missing Women Commission of Inquiry was examining why it took police so long to catch Pickton. Brown played a “minor role” during the investigation of Pickton, according to VPD. Those connections aren’t questioned in the IACHR report but they include that in his report on the Missing Women Commission of Inquiry, Commissioner Oppal “noted that there were allegations of conspiracy and cover-up on the part of the police forces.” (p.90 #207)
The State provided one example of positive developments between RCMP and local people, the E-PANA Task Force which connects RCMP and the Carrier Sekani Family Services, among others. The CSFS at least reported improvements in safety and a positive experience. The Force was focused on increasing the speed of communication between police and community members, public outreach and more, and its funding was all but discontinued last year. The E-Pana task force, an RCMP investigation into eighteen deaths along the Highway of Tears, produced one suspect but was unable to link him to any other murders, most victims were Indigenous women, since it started in 2006 and spent $25 million.
Canadian Law and Discrimination
The Indian Act, and Indian Status, is identified in the report as a major cause of psychological, emotional, cultural and economic harm to indigenous women, leading to their increased vulnerability to predators. Poverty and homelessness are two of the main impacts of Canadian law concerning Indigenous women considered in the report.
Until 1985, indigenous women who married had to transfer their Band membership to the man’s Indian Band. Returning home from a failed marriage would be difficult, as Band membership is connected to eligibility for housing, and housing is inadequate for current needs on the Reserves to the effect that some waiting lists are fifteen years long. Indian women who married non-Indian men lost their Indian Status, they had children who could not be registered as Status Indians, and they lost rights to whatever minimal economic benefits may have come from Band membership. Although changes have been made, since 1985, to reverse some of these exclusions, the Indian Act “fails to fully address remaining concerns about gender equality.” (p 41, #68)
The resulting homelessness has been a major factor in exposing indigenous women to assault. Homelessness also makes all kinds of personal development, including economic and social, unreachable.
Canada has a very large carpet especially designed for sweeping problems connected to Indigenous Peoples under. It stretches out between the power of the federal government concerning aboriginal people, or Indians, and the provinces’ power over matters which affect aboriginal people. Sometimes, as in the case of on-reserve social services, only the federal government is involved – and other times, for instance when enforcing laws of general application, the province is involved. When there is a problem, an issue, or even a crisis of these proportions being studied here, the two governments can both refuse responsibility on the grounds that the problem is within the other’s jurisdiction. The State’s use of this trick was identified many times as having played a part in the ongoing nature of murders and disappearances of Indigenous women across Canada.
The BC Committee for the Elimination of Discrimination Against Women summarized another of the substantial impacts of the legal gap this way:
“Aboriginal women continue to be denied essential forms of assistance and to receive piece-meal services because of the lack of clarity about legislative jurisdiction and the competing interests of federal, provincial and territorial governments regarding governments’ constitutional, moral and financial responsibilities for providing services to Aboriginal peoples. This issue was first identified over 35 years ago, yet little has been done to ameliorate the situation.” (p.86, #191)
The IACHR report recommends Canada solve that problem.
The Commission identified the “structural discrimination” which is the Indian Act. It noted that in cases where discrimination is actually part of a State’s legal structure, work must be done not only to remove the sub-standard laws but to promote those who were discriminated against back into a position of equality. (p.66 #132)
Canadian Courts and Discrimination
The report summarizes the terrifying crimes of serial killer Robert Pickton, who is thought to have murdered 49 women around Vancouver – most of them Indigenous women. The Pickton case was closed by the courts after he had been found guilty of six counts of second degree murder and sentenced with six terms of life imprisonment. Trial to determine the fate of the other women believed to have been murdered by Pickton was never held, as those proceedings ‘couldn’t increase his sentence.’ The failure of the courts to see that justice was done for the other victims, and their families, does not seem to have been a consideration for the courts and this is noted by the Commission.
The report remarked on BC Judge David Ramsay sexually assaulting four Indigenous girls who had all appeared before him in youth or family court. The judge’s crimes continued for two years after an RCMP investigation began in 1999.
Unfortunately the IACHR never quite identifies what it is about Canadian law that is at the center of the “discrimination” they have uncovered. Canadian law and its imposition and enforcement in Indigenous homelands where there are no treaties to legitimize that law is the original, essential violation of the human rights in question. It is that dehumanization of Indigenous individuals and the centuries long all-out assault on their people, national economies, cultures, spiritual life – all in a competition for control of the land and resources – which is the wellspring of unrelenting hate, violence and dismissal today.
There are dozens of references to recent IACHR cases which should be informing Canada’s response to the crisis. Violence against Indigenous women is a not unique to Canada – it is widespread throughout the Americas. Cases from South America in particular are very clear on the fact that “judicial ineffectiveness” is the same as impunity for offenders against Indigenous women (p.81 #184). And judicial ineffectiveness is also widespread when it comes to providing a climate of impunity for crimes against Indigenous individuals, and women, throughout the Americas – but it is not acceptable, and instead of incorporating the development of human rights available through the IACHR, Canada isolates itself and has to be found out and directly advised of the dozens of precedents which should be influencing Canadian judges and the entire court system.
“The Inter-American system has consistently found that a lack of due diligence that leads to impunity, and engenders further incidents of the very violence that was to be targeted, is itself a form of discrimination in access to justice. The Inter-American jurisprudence has established that States have the obligation to use all the legal means at their disposal to combat such situations, “since impunity fosters chronic recidivism of human rights violations, and total defenselessness of victims and their relatives.”” (p.81, #183. Quote from I.A. Court H.R., Loayza Tamayo Case Reparations, 1998.)
After the Missing Women’s Commission of Inquiry, BC, an advisory committee was appointed to oversee the province’s implementation of the recommendations. In May of 2013, the Honourable Steven Point resigned as Chair and has not been replaced. The IACHR “has not been informed who is currently chairing the Advisory Committee and what other steps have been taken to implement the recommendations…” (p.117 #291)
Commissioner Oppal’s report highlighted two urgent actions: a grant to the WISH drop-in center in the Downtown Eastside, which has been achieved by BC, and a public transit system on Highway 16, on which subject no tangible progress has been seen. Oppal made no legal findings of discrimination during the Commission. The Union of BC Indian Chiefs made a statement about how: “the failed inquiry, far from assisting Indigenous women from the Downtown Eastside, ironically reinforced their marginalization.” (p. 97 #226)
Cultural Enforcement of Discrimination
Indigenous women have major barriers to keeping housing in their home communities, because of the Indian Act, and lack of housing is directly connected to the violence in question. Victims had levels of education far below Canadian averages, but in keeping with the fact that as of 2006, 35% of indigenous women over the age of 25 had not graduated from high school. There is a direct link between lack of education and victims of violent crime – and lack of success in public schools by Indigenous students is exacerbated by the climate of aggressive cultural assimilation in the school cultures, text books and exercises there. In 2005, the median income for indigenous women was $15,654. This group has double the poverty rate of non-indigenous women – a direct result of BC and Canada’s ongoing legacy of dispossessing indigenous nations, refusing to recognize their human rights and criminalizing the people for accessing the natural wealth and resources of their homelands. Poverty is a general state of vulnerability notoriously connected to violence.
Lawyers’ Rights Watch Canada and the BC CEDAW group made a submission to the UN Committee for the Elimination of all forms of Racial Discrimination that remarked on “institutional racism towards Aboriginal people, and towards Aboriginal women and girls… with respect to the child welfare and criminal justice systems, and in the provision of education… and other essential services.” (p.76 #165)
Perhaps the most obvious expression of discrimination, representing the whole of Canadian society, is the state’s total public and institutional dismissal of these facts among indigenous women and the resulting crises in their homes and communities and nations. The report includes state acknowledgment that there is no accurate, comprehensive government data on this issue, although the high rate of missing and murdered indigenous women and girls across the country has been identified at the national and international levels. Police still do not consistently report whether a victim is indigenous. Police often fail to take or properly process reports concerning indigenous women.
Canada has failed, after 29 official inquiries in various places across the country since 1996, even to implement an incident processing policy that would collect the proper data needed to move in an informed direction.
And Prime Minister Harper recently told CBC television viewers that a federal inquiry into the preponderance of murdered and missing indigenous women “isn’t really high on our radar, to be honest. You know, our ministers will continue to dialogue, ah, with, ah, those who are concerned about this.” The PM went on to say that the government is taking action by punishing criminal activity, making “significant investments into, ah, preventative measures,” and to “try and enhance the legal and social status of women in aboriginal communities and reserves. You know, things like, basic things like having protections under the Human Rights Act, matrimonial property rights, these kinds of things that were not done in the past.”
Harper said action would be better than more investigations. The quality of Canada’s investigations into this subject has been found objectionable by women’s and Indigenous Peoples’ organizations, in particular Canada’s “All Party Committee” report in March 2014. Apparently it was the same as a report from 2011. (p.93, 216) The IACHR referred to almost a dozen reports prepared by the State on missing and murdered Indigenous women – and along with each reference the disappointment and rejection of Indigenous parties was quoted.
Indigenous leaders from all over northern North America, and indeed from around the world, have been calling for a national inquiry into the genocidal proportions of the assault against Indigenous women and girls. Tribal Chief Shane Gottfriedson, Shuswap Tribal Council, Secwepemc, to CFJC tv news, Kamloops: “…a lot of our families have lost loved ones to the missing and murdered women file.
“This has got to stop. We cannot have our women and girls subject to this kind of treatment,” said Chief David Walkem, Cook’s Ferry, Nlaka’pamux. Chiefs Walkem and Gottfriedson, along with Grand Chief Stewart Phillip, Union of BC Indian Chiefs, held a news conference calling for a federal inquiry. They held the conference to publicly add their names to a list of Indigenous leaders across Canada who have directly petitioned the federal government for an investigation. “We call on Prime Minister Harper to initiate a national public inquiry into this to allow a comprehensive investigation of all police services and all agencies involved in this issue across the country and get to the bottom of the reasons why this has been allowed to carry on.” The Assembly of First Nations has repeatedly called for an inquiry, most recently at their Annual General Assembly in Halifax last Fall.
The Native Women’s Association of Canada collected 23,000 signatures to a petition calling for a national inquiry. Other notable characters who have made formal recommendations to Canada to conduct a national inquiry include the UN Committee for the Elimination of all forms of Racial Discrimination, in 2012; the UN Human Rights Committee, in 2013, on the occasion of Canada’s Universal Periodic Review; and UN Special Rapporteur on the Rights of Indigenous Peoples, in his report on his official country visit, in 2014; and now the IACHR.
The IACHR report notes “Violence against women is not the root problem in most societies, violence against women occurs because other forms of discrimination are allowed to flourish.” (p.68 #68) The Canadian Panel on Violence Against Women stated in its 1996 report, “Racism is a major contributing factor in the continuing violence, oppression and systemic abuse that confronts Aboriginal women in Canadian society today.” (p.69 #144) Commissioners needed three pages in their report to refer to the connections between racism and violence against women. (pp.68-70)
When BC established the Minister’s Advisory Council on Aboriginal Women, the Minister selected the women to populate the Council. The IACHR recommends BC seek recommendations or appointments to that Council from Indigenous Peoples’ organizations.
Canada’s disinterest in the crisis is a failure to meet its international obligations. The Inter-American human rights system confirms appropriate state response to human rights violations: the obligations to prevent, investigate, punish, and to make reparations for human rights violations. (#153, p.71)
The “seven point plan” provided by Canada to the IACHR Commissioners during their visit does not include prevention, investigation and increased sentencing – instead it pertains almost entirely to coordinating online databases and giving money to Indigenous organizations to express themselves on the point of missing and murdered Indigenous women. The State’s plan is about as obvious as if they had dressed up Robert Pickton as Mrs. Doubtfire and put him in charge of a new public Missing and Murdered Women liaison office. But Pickton died in prison only months into his sentence. Perhaps he had accomplices who were happy to remain anonymous.
The Commission identifies in detail two past genocidal, or “discriminatory” – as the IACHR puts it, practices which have particularly affected the present day victims. They are Indian Residential Schools, and the invention of Indian Status and selective enrolment in that group according to whether a person is male or female. They note this latter practice has not been fully resolved by recent changes to the Indian Act, but they overlook the fact that Indigenous children would be seized from their families if those families refused to send them to the racist and assimilationist public schools today. The Commission does note, however, that the number of Indigenous children in state “care,” ie, having been forcibly removed from their families, is three times higher now than it was at the peak of the Indian Residential School era.
Canada’s withholding of Indian Status from women who married non-native men, and from children of those women, “creates a perception that certain subsets of Indigenous women are less purely indigenous than those with “full” status. This can have severe negative social and psychological effects on the women in question, even aside from the consequences for a woman’s descendants.” (#69, p. 42) This is of course also a serious violation of an Indigenous People’s right to self-determination and to guarantee membership to their own.
Indian Status on Reserve has also been a source of absolute sex discrimination, where women could not own property, cannot keep their birth Band membership once married, cannot leave an abusive relationship because of the lack of housing and certainty that their children would be apprehended if they did leave because they could not provide a house for their children independently.
State apprehension of Indigenous children by Canada and the provinces is so extreme that, “The IACHR is alarmed by the over representation of indigenous children and youth in the child welfare system.” (#86, p.47)
The IACHR quoted a report by the UN Committee on the Rights of the Child in respect of those many Indigenous children who are seized from their homes by the State, placed in homes far away and consumed by the so-called child welfare system. “The UN Committee noted that such children are often unable to preserve their identity, claim their rights, and make and maintain connections to their families, communities and culture.” (#86, p.47)
Discrimination or Genocide
“This persistence of longstanding social and economic marginalization has given rise to large numbers of indigenous women living in vulnerable situations, including homelessness, and abusive relationships. It has led to the disproportionate engagement of indigenous women in high-risk activities such as hitchhiking, drug use, gang activity, and prostitution… making it more difficult for these indigenous women to escape the vicious cycle of violence.” (#78, p.44)
“…the root causes of these high levels of violence against Indigenous women… are related to a history of discrimination beginning with colonization and continuing through laws and policies… These root causes have laid the foundations of pervasive violence against indigenous women, and have created circumstances that contribute to the risks these women face, through economic poverty, social dislocation, and psychological trauma.” (#93, p.50)
Although the Commission never literally says so in the report, it has made statements like this one which match the definition of genocide, as defined in the UN Convention. Genocide is defined as any of five actions, the third of which is: “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” What has not been studied by the IACHR is the impact of these deadly circumstances for women, rooted in state laws and policies, on the collectives of Peoples.
“Mental harm” is referred to repeatedly throughout the report in the way it is experienced by indigenous women: as “psychological trauma” and “crisis of identity” and “suicide” – rates are seven times higher among indigenous women than Canadian women. The entire report is a demonstration of the ways that Canada is “Causing serious bodily or mental harm to members of the group” – or facillitating the bodily and mental harming by squeezing Indigenous women out of their homes and communities and failing to penalize offenders.
“Forcible removal of children” from the group has its own chapter in the IACHR report and is broken down into the many ways the State has removed indigenous children to other groups; the statistical nightmare lived by those removed children; and the incredible proportion of indigenous versus Canadian children who are apprehended by the state: they are overrepresented by five times the proportionate ratio in Canada’s population, and that does not include numbers of children in provincial and territorial care. The report includes documentation that the children are ten times more likely to be removed from their homes by the State than Canadian children are.
And of course, the first definition of genocide is: Killing members of the group.
About the IACHR’s role
Next to the Inter American Court, the Inter American Commission on Human Rights makes studied recommendations to states on the subject of upholding human rights and also mediates communication between states and their victims, sometimes referring those disputes to the Court.
Canada rejected the IACHR’s recommendations on the situation of the human rights of missing and murdered indigenous women in BC. Formally responding to the Commission in its observations of the report, Canada stated: “Canada… is not bound by obligations contained in human rights instruments to which it has not consented to be bound. … We give serious consideration to the views and recommendations of human rights bodies, but wish to emphasize that they are non-legally binding.” (#106, p.58)
However, the obligation to comply with the human rights standards expressed by the Charter of the Organization of American States is implicit in the action of becoming a member state of the OAS. The American Declaration on the Rights and Duties of Man, flowing to the American Convention, is the document against which the IACHR compares State activities and practices.
The Commission followed Canada’s reply by reiterating its jurisdiction as a mechanism of the OAS to which Canada belongs; remarking that human rights must not only be protected from active violation but also ensured the capability of being practiced effectively, for instance, an indigenous woman should be able to exercise her right to equality; and that while the Commission cannot apply the American Convention on Human Rights to Canada, because Canada has not ratified it, the Commission must rely on the Convention in interpreting Canada’s obligations under the American Declaration. (* A Declaration establishes rights and freedoms or duties, while the Convention is a pact between the states as to the legalistic phrasing of the exact obligations a state has towards an individual, against which a state would be judged in Court.)
The Commission reviewed Canada’s obligations to protect Indigenous Peoples and individuals, noting the State’s national legal framework and its international obligations. Canada’s constitutional structure, requiring treaty with land purchase before colonization, was noted by the IACHR. (#113, p.60)
Other IACHR hearings leading to this study:
March 28, 2012, “The Situation of Aboriginal Women and Girls in Canada.” Requested by NWAC, the Canadian Feminist Alliance for International Action, and the University of Miami Human Rights Clinic. A second hearing on this subject on March 12, 2013.
[i] If you look at Canada’s Sixth Periodic Report to the United Nations Human Rights Committee on the International Covenant on Civil and Political Rights, you will see that Canada does not report on Indigenous Peoples’ land rights under Article 1 on self-determination but under Article 27 as minorities subject to the federal and provincial government. (Thanks to Arthur Manuel for this information.)