Human Rights, Women's Rights,
Aboriginal Rights: Indivisible and Guaranteed?

by Christine M. Goodwin

Guest Opinion

Christine Goodwin wrote this article when she was a 2nd year law student at the University of Calgary, Faculty of Law. Christine is a single parent with two children and a survivor of abuse. She is also of Ojibwe descent and a member of the Curve Lake First Nation in Ontario. Chris completed her LL.B. and articles for the Law Society of Alberta and is awaiting her call to the Alberta Bar.

Introduction

Violence against women is a serious issue. For most women who suffer the effects of domestic violence, it takes an average of 35 beating incidents before they actually seek help from a women's shelter or safe house. For Aboriginal women who suffer domestic abuse, the process can be significantly more complicated and in most cases results in simply enduring the violence. According to telephone interviews conducted with several women's shelters in Alberta in December 1999, approximately 60 to 70 percent of Aboriginal women who attend women's shelters return to live with their abusers.

Although the problem of escaping violence is not universal, it is widespread within Aboriginal communities. Aboriginal women are not all destitute, but it is more rare than common that these women have opportunities to utilize effective healing tools. The road to healing has numerous roadblocks and many Aboriginal women succumb to enduring life with abusers, which inadvertently advances the cycle on unsuspecting future generations.

Not only do Aboriginal women have to deal with the abuse but they are also expected to deal with significant obstacles regarding finances, housing, safety and community ostracism while in a "crisis" state. One specific problem experienced by Aboriginal women in Alberta is that they lose their houses on reserves after seeking help from off-reserve women's shelters. There are potential human rights law abuses in this practice -- under the Canadian Human Rights Act ("CHRA"), the Canadian Charter of Rights and Freedoms ("Charter") and international human rights law.

According to Rose Lamean and Andrea Silverstone, formerly of the Calgary Native Women's Shelter (CNWS), in the most extreme cases, a band council will confiscate a house, if it is vacant, after only ten days. Generally, when Aboriginal women go to a shelter, their spouses also leave the houses for a number of reasons. For a brief period, the houses appear to be abandoned. In rare instances, a woman will have been given notice by the band council that she has to give up possession of her house, but in the majority of cases, no notice is given. A significant number of CNWS clients has reported that upon returning home to their reserve after a 21 day stay at the shelter, the house that they previously occupied with their spouse has been taken back by the band council and given to another band member. When the women return to the reserve, they are homeless. Without an address, it is difficult to receive social assistance. To get another house on the reserve, women have to re-apply to the band council or housing committee which results in getting placed on a long waiting list. The only evidence available of this situation consists of personal accounts of women to whom this has happened -- several band councils were contacted but refused to comment regarding housing policies and practices. However band members throughout Canada who have applied for houses on reserves can attest to the long waiting lists and frustration surrounding the entire process (Shin Imae et al., Aboriginal Law Handbook (Toronto: Carswell, 1993) at 149).

A certificate of possession is required before an individual can be said to "own" the land and the house in which he or she lives on a reserve (Indian Act, sections 20, 60, and 81). According to the Aboriginal Law Handbook, one way for a band council to maintain absolute control over houses on reserve is to retain the possessory rights. Most band councils refrain from issuing certificates of possession. The Indian Act governs the lawful possession of reserve lands in subsection 20(1). Unless the band council decides that it will allot land to its members by issuing certificates of possession, band members only have usufructory rights (rights to use the land).

In order for a certificate of possession to be issued to a band member, a by-law must have been passed through a Band Council Resolution. Band councils with a by-law have a great deal of discretion when they are issuing certificates of possession under Indian Act section 81. Most certificates of possession are issued in the husband's name. If the husband chooses to "sell" the land-use right back to the band, he may do so without his wife's consent, depending on the individual policies in place for each band.

Whether or not the band has a certificate of possession by-law in place, the band council may still have control over reserve lands under the Indian Act (section 60). In these cases, band councils have wide discretionary powers to grant or repossess reserve lands without approval from Indian Affairs for each individual transaction. Thus, in the case of an unstable relationship, the band will have the discretion to re-delegate the house, especially since reserve housing is in such high demand. Poverty and housing shortages on reserves place tremendous pressures on band councils to ensure that housing resources are managed to provide maximum benefits for the community. Furthermore, underlying risks associated with domestic problems can create situations whereby houses may endure damage and become useless to anyone. The interests of the community may be best served by taking back the house, if the potential exists that the house may be destroyed. Once somebody else is living in a house previously occupied by an Aboriginal woman who has just exited a women's shelter, it is difficult for her to gather sufficient strength and resources to combat this situation.

Modern Changes to Cultural Values

Traditionally, Aboriginal communities solved internal problems through community consultation with the benefit of advice from the Eldersnot within a foreign justice system. Men who committed abuses against women in the community were ostracized and punished for their inappropriate activities. Offences committed against individuals were seen as offences committed against the entire community. Jennifer Koshan states that "traditional Aboriginal justice practices were grounded in the need to restore peace, balance, and harmony to the relations between offender and victim, their kin, and the community as a whole" ("Aboriginal Women, Justice and the Charter: Bridging the Divide?" (1998) 32 University of B.C. Law Review 23-54 at para.11). Colonization measures, including the implementation of the Indian Act, combined with insufficient resources, have aided the Canadian government in devising a system that permits Aboriginal community leaders to deny women the benefit of community support.

The influences of Anglo-Saxon ideologies have struck down the balance and harmony that used to be present in Aboriginal communities, including respect for women. Patricia Monture-Angus recalls an incident involving Yvonne Bedard, who, after separating from her non-status spouse, returned to Six Nations to reside in a house left to her by her parents. As she was no longer a registered band member, she was not legally allowed to be in possession of a home on the reserve. Monture-Angus notes that while the rule about property ownership was originally made to protect Indian lands from White encroachment, it is now used by Indians against Indians, indicating that the colonized have accepted their colonization ("A First Journey in Decolonized Thought: Aboriginal Women and the Application of the Canadian Charter" in Thunder in my Soul: A Mohawk Woman Speaks (Halifax: Fenwood Publishing, 1995) at 135). The Native Women's Association of Canada has also commented extensively on the impact colonization measures have had on a once equal and matriarchal society (Marilyn Buffalo, Aboriginal Law in Canada '99: Adapting to a Shifting Landscape (Keynote Speaker, The Aboriginal Law in Canada Conference, Vancouver: November 18-20, 1999).

In particular, the experiences of Aboriginal domestic abuse victims was an important topic for the Royal Commission on Aboriginal Peoples. The Commission noted that community ostracism is a significant issue facing Aboriginal women who are victims of domestic abuse. Often women are blamed for trying to have the new family that had moved into the "vacant" house leave. The abused women can be viewed as having caused the situation themselves by leaving.

The woman must commence court proceedings against a band council in order to get a remedy in this situation. When one's own community does not acknowledge who the real victim is, it becomes increasingly difficult for the Aboriginal woman abuse victim to seek justice outside of the community. It follows that if one's own community blames the individual victim, then an outside community (e.g., the court system) would too. Inaccessibility, mistrust in the justice system, loyalty to the community and the immediacy of the problem are all contributing factors that detract from women in crisis exercising this option.

Canadian Human Rights Act

There is an issue as to when the CHRA applies to the Indian Act. Canada's Constitution Act, 1867 provides that the federal government has legislative authority over "Indians and lands reserved for Indians" (s. 91(24)). Although this is a matter which comes within the authority of the federal Parliament as required under CHRA section 2, CHRA section 67 states that:

Nothing in this Act affects
any provision of the Indian Act
or any provision made under or pursuant to that Act.

The exercise of powers granted to band councils is derived directly from the Indian Act and the events take place on Indian reserves. The Federal Court of Appeal held that CHRA s. 67 immunizes the legislative provisions of the Indian Act, and those actions of the Minister and the Department of Indian and Northern Affairs under the Indian Act, whether done legally or illegally (Re Desjarlais, [1989] 3 F.C. 605 (C.A.)). However, it is possible to find discriminatory policies made under the Indian Act, which fall outside the contemplation of the legislature. In Mousseau v. Canada (A.G.) ([1993] N.S.J. No. 382), the Federal Court of Appeal held it would have to be decided on a case-by-case basis whether certain band council policies were indeed within the contemplation of the legislature when CHRA section 67 was passed. The court found that if every situation or policy created under the auspices of the Indian Act were to be immune from the CHRA, the legislature would have specifically included such wording within the Indian Act and s. 67 would therefore be unnecessary. Although this continues to be a problem, the proposed Governance Act seeks to address these very issues, but this remains to be seen.

Assuming that the CHRA does apply to the situation at hand, section 6 prohibits discrimination in the provision of residential accommodation. Although discrimination in the provision of residential accommodation is slightly different, section 6 should be equally applicable to the denial of a continuation of residency. CHRA, sections 2 and 3(1) prohibit discrimination on the grounds of marital status, disability, race and sex, among other grounds. Protections afforded by the CHRA can provide an Aboriginal woman with equal rights despite her marital status, disability (as a victim of domestic abuse), race and sex.

Given the effects of colonialism and the lack of respect Aboriginal women have had foisted on them for years, it is not surprising that no cases exist regarding the issue of band councils' discretionary powers to re-delegate houses of women suffering from domestic abuse. However, in the Mousseau case, band councils were taken to court about the abuse of discretion in unlawfully denying houses on reserves to certain band members on the basis of sex, race and marital status.

The basic human right that is being denied here is the right to shelter. The rights of the other band members to leave their homes at their leisure is of significant importance here. It is not unreasonable for women surviving domestic violence to have a need for equal opportunity in housing in line with that of other band members. Discrimination exists in the way that band councils differentially treat abused women from other band members who also leave their houses for ten days or more. For example, it is almost certain that a band council would not revoke the certificate of possession from a family that was on an extended vacation. Further, people leaving their homes vacant for a period of time cannot be disentitled to them without reason. What non-discriminatory policy could possibly be invoked to take away a house from a woman who leaves temporarily to seek help?

Charter of Rights and Freedoms

The Federal Court has been held to be the proper place to make applications involving the Indian Act (Mousseau). However, the Federal Court Trial Division sits infrequently in Alberta (FCTD Rules of Court, 34). Aboriginal women who find themselves homeless are in immediate need of a remedy. In order for the matter to proceed in the Federal Court, Aboriginal women would need impeccable timing, not to mention legal counsel, finances and emotional support. Thus, the avenues of justice often defeat the cause before it has a chance to be heard.

Assuming that an Aboriginal woman is able to surmount these hurdles, what sections of the Charter apply? Sections 7, 15 and 25 provide possible protection for Aboriginal women who lose their housing upon temporarily leaving their reserves.

Charter s. 7 provides that everyone has the right to life, liberty and security of the person and the right not to be deprived of these rights except in accordance with the principles of fundamental justice. It can be argued that the right to security is denied when the effect of exercising power by the band councils is to deny Aboriginal women the right to seek safety and other treatment through the assistance of women's shelters. There is also a denial of liberty when the right of Aboriginal women to live in their houses on their cultural lands is taken away from them without due process of law because of their decision to avoid domestic violence. In R. v. Morgentaler, the Supreme Court of Canada noted that liberty in a free and democratic society requires the state to respect personal decisions made by citizens. Also, the court stated that section 7 liberty rights are intricately connected with human dignity. Band councils who invoke punishment-like policies on reserve housing are in effect deliberately denying Aboriginal women who seek help the self-respect and contentment that they deserve as human beings. The SCC also held that the right to liberty "guarantees to every individual a degree of personal autonomy over important decisions intimately affecting their private lives." Aboriginal women should be able to exercise their personal autonomy in making the personal intimate decision to break free from domestic violence.

Principles of fundamental justice require that an individual be given notice and the opportunity to rebut or dispute accusations. The failure to give notice and the opportunity to defend in this situation is denied. Twenty-one days is not an unreasonably long period of time for a band council to wait for a woman to return from a stay at a women's shelter. For example, off of the reserve, it takes approximately three months for a foreclosure on a mortgage to be completed and the residents to be removed from the house.

Thus, the short period of time, the failure to notify, the consequences at stake and the denial of human dignity all constitute an infringement of Charter s. 7.

Charter s. 15 provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. There is evidence that Aboriginal women are being discriminated against. First, the practices of band councils are not consistent throughout Canada. For example, in Northern Alberta, one reserve has a women's shelter which is supported by the community and the band council. Women who wish to leave because of domestic abuse are not denied possession of their houses. In fact, the band council will ensure that women will maintain possession of their homes even if they require lengthy absence from the reserve in order to get education. Usually women will "lend out" their houses while they are gone (per telephone interview with Northern Alberta On-Reserve Women's Shelter, December 1999).

Second, the Indian Act governs property division on reserve lands. In the case of marriage breakdown, there is no joint division of the property in question; it belongs to the husband. However, non-Aboriginal women living off of reserves are subject to provincial laws, which protect them in the case of marital breakdown. Thus, section 15 could be breached by the policies.

Section 1 of the Charter permits an infringement of Charter rights if it can be justified in a free and democratic society. In general, the Indian Act and its purpose cannot be justified in a free and democratic society because it takes away democratic rights. The core right of democracy is freedom, which "Indians" are denied by the imposition of policies foisted upon them by a foreign government. Evidence that the provisions of the Indian Act are not "demonstrably justifiable in a free and democratic society" is there because the legislators found it necessary to exempt the Act from scrutiny under federal human rights law (CHRA, s. 67). Thus, although band councils need discretionary powers regarding local decisions affecting reserve lands, the Indian Act, and in particular, the practice of re-assigning houses, is not demonstrably justified and would therefore breach the Charter.

Finally, Charter s. 25 provides that Charter rights cannot be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms pertaining to the Aboriginal peoples of Canada. It can be argued that international treaties signed and ratified by the Canadian government should be considered "other rights" under Charter s. 25. Thus, customary international law may be relied upon to protect the basic human rights of Aboriginal women in Canada. Also, the Supreme Court of Canada's decision in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, supports Charter equality rights as between Band members, regardless of their residency.

International Human Rights Violations

International human rights declarations and treaties, such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, are enforceable against the Canadian government. Even international human rights norms recognized widely but not ratified as treaties by Canada -- customary international law -- apply, as Canada is a member state of the United Nations. As noted by the UN Committee on Economic, Social and Cultural Rights in Fact Sheet No. 16, "the right to live a dignified life can never be attained unless all basic necessities of life -- work, food, housing, health care, education and culture -- are equitably available to everyone." The violations discussed earlier in this article are worthy of international remedies if Canada does not provide appropriate redress under its domestic legislation.

Conclusion

Band councils have the discretion to take measures to ensure the safety, liberty and basic necessities of life equally for all Aboriginal women and may choose to uphold their daughters' human rights. Although Aboriginal women may seek remedies from the Federal Court, women who have been victimized by band council housing policies unfortunately often do not have the resources or the ability to endure the court process, because they have been abused. Band council support, community awareness and women's shelters on some reserves prove that there are workable solutions. Nevertheless, Aboriginal women's basic human rights are being violated and there is a need for improvement and healing within all communities nationwide.

Cleaning Up Our Streets: Anti-Panhandling and Squeegee Laws
Reprinted from LawNow June/July 2002

By Linda McKay-Panos, Executive Director, Alberta Civil Liberties Research Centre, with thanks to Kristen Read for her research assistance.

Imagine yourself as a tall, muscular male, spending all day helping your friends move into their new downtown apartment. It is late at night, and you are driving home exhausted and grimy. Your car suddenly runs out of gas. You have no cell phone. You head into the rainy, windy evening and spot a pay phone. You arrive at the phone, reach into your pocket and discover that you left your change in your other pants. A woman is using the phone. When she gets off the phone, you approach her and ask, "Could you lend me change for the phone? My car has broken down and I have no money." The person looks you over and reaches into her pocket; you are temporarily relieved. That is -- until your "saviour", an undercover police officer, arrests you for a contravention of the Safe Streets Act and tells you that you are subject to a fine of up to $500 if it's your first offence. Since you live in Ontario, this could happen to you. Other cities and provinces are considering passing or have passed similar laws.

The law applies to homeless teenagers, who have often left home because they were abused. While on the streets, they have to endure all kinds of dangers -- including abuse, violence, and, if they try to earn some money by cleaning a person's car windows with a squeegee, being arrested by the police.

In addition, the law applies to homeless elderly pensioners, who live on fixed incomes and cannot afford rent. It also prevents non-profit organizations from soliciting funds from passing motorists in fundraising events (Canadian Press, June 5, 2001, "Ontario's anti-squeegee law wipes out planned Lion's charity event").

Ontario's Safe Streets Act came into effect in 2000. Under this law, it is illegal to solicit in an "aggressive manner". "Aggressive manner" means a manner that is likely to cause a reasonable person to be concerned for his or her safety or security. The law also lists a number of activities, which are automatically deemed to be soliciting in an "aggressive manner". These include:

It is clear that most of these activities are already dealt with under current criminal law (for example, assault, harassment or public intoxication).

The Ontario law also lists places and situations where one cannot solicit. These include, soliciting a person who is:

Similar by-laws in other Canadian cities are less detailed. For example, in Calgary, it is an offence to solicit or sell merchandise of any nature by stopping or restricting pedestrians in the lawful use of a sidewalk (Bylaw 20M88). Vancouver and Winnipeg had laws similar to that of Ontario, but they were repealed by the cities because challenges from anti-poverty groups led them to believe that the more detailed legislation was unconstitutional (M. Aloian, "Beggars can be choosers: Winnipeg's National Anti-Poverty Association sets precedent for the rights of Canadian panhandlers" 1999 The Brock Press). Winnipeg's new by-law prohibits soliciting in an obstructive manner, removes all references to panhandling, and, as a result, does not stop "passive" panhandling.

Those who are in support of the squeegee and panhandling laws say that most people want anti-panhandling laws. They argue that the reason the law was written was because most people don't like people approaching their cars. They believe that soliciting money is like extortion and people feel threatened by it, even if they say "no" (D. Carrigg, "City may follow Winnipeg and repeal beggar bylaw," March 5, 2001, The Vancouver Courier.com). They say that streets are safer because of these laws.

Those who oppose these laws believe that they amount to "war on the poor". A disabled person said living on the streets affects a person's mind, body and spirituality, and anti-panhandling by-laws make a bad situation worse (C. Shimmin, "Activists protest squeegee law," November 23, 2001, Carleton News). Also, those who are living in poverty cannot afford to pay the fines, so many end up in jail. Thus, jails are becoming warehouses for the poor (Shimmin). One activist said that panhandling regulations amount to "genocide of what [people] see as the 'useless poor'" (Shimmin). The laws are being passed, while at the same time, social housing and welfare programs are being cut. Instead of looking for solutions to poverty, this legislation merely masks its effects. Finally, as many opposed to the law say, all one has to do is say "no" when asked for money.

Reports indicate that as of August, 2001, over 100 people had been charged with an offence under the Ontario squeegee legislation (C. Perkel, Canadian Press, Toronto, August 3, 2001).

In August, 2001, thirteen squeegee kids or panhandlers, who had been charged with offences under the Safe Streets Act, challenged the constitutionality of the Act. Among the challenges were:

Justice William Babe of the Ontario Court of Justice convicted the thirteen persons. He dealt with all of the constitutional arguments. First, he found that the Safe Streets Act was not unconstitutionally vague nor overbroad. Second, he held that the evidence did not establish that the Act affected the accused person's right to economic survival and found that Canadian law did not sustain the idea that Charter section 7 supports such a right. Third, he said that Charter section 15 was not infringed because the restrictions in the law do not only apply to the extremely poor; they apply to all people equally. Fourth, the provision that deems certain activities to be soliciting in an aggressive manner could be fixed if the words "in the absence of evidence to the contrary" were read into it. Thus, an accused person could avoid being convicted if he could introduce evidence that raises a reasonable doubt that in his particular situation, a reasonable person would be concerned for her safety.

Finally, Justice Babe found that the law did restrict people's freedom of expression under Charter section 2(b). However, he held that the law was saved by Charter section 1 because aggressive begging can jeopardize the short and long term health of urban areas and therefore the government is justified in legislating against it. People must feel safe and secure on the streets.

Poverty and civil liberties advocates have indicated that they will be appealing this decision. The questions this situation brings up include:

Call for Nominations - deadline November 25, 2002
Do you know an Albertan who has demonstrated outstanding leadership in promoting civil liberties and human rights through legal research, education or advocacy?

Please provide us with a letter, email or fax in which you provide details about why your chosen person should receive our Civil Liberties Award. The letter must be received by November 25, 2002.

The award will be given at a special ceremony on December 5th at the University of Calgary.

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Human Rights, Women's Rights,
Aboriginal Rights: Indivisible and Guaranteed?

Staff and Volunteers

Events

U of C Student's Union Non-Student Review Board

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Two Year Term

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For information: Email [email protected]

This web site © 1999-2004 Alberta Civil Liberties Research Centre, Calgary, Alberta, Canada. This page last updated on November 25, 2002 .

CENTREPIECE

Human Rights, Women's Rights, Aboriginal Rights: Indivisible and Guaranteed?

Staff and Volunteers

Events

U of C Student's Union Non-Student Review Board

Tribunal Member Needed

Two Year Term

Minimal time commitment

For information: Email [email protected]

This web site © 1999-2004 Alberta Civil Liberties Research Centre, Calgary, Alberta, Canada. This page last updated on November 25, 2002 .

Human Rights, Women's Rights,
Aboriginal Rights: Indivisible and Guaranteed?