The United Nations special rapporteur on the rights of Indigenous peoples is calling on the federal government to compensate the generations of First Nations women who were stripped of their Indian status, along with the associated rights, through discriminatory federal laws.
Speaking at the end of a 10-day trip to Canada on Friday, the special rapporteur, Jose Francisco Cali Tzay, said the government must create a “timely and accessible remedy” to compensate these women, along with their descendants, who were also made ineligible for status.
For more than 100 years, up until 1985, whenever a First Nations woman married a non-status man, her status was taken away.
The government recently rejected a recommendation that would have opened the door to compensation.
During his trip – the first to Canada in a decade of a special rapporteur focused on Indigenous rights – Mr. Cali Tzay said he witnessed the “enduring effect” of racial discrimination in Canada.
“I observed that the situation of access to economic, social, and cultural rights has not improved since the visit of my predecessor in 2013,” Mr. Cali Tzay said at a news conference in Ottawa. And despite some positive measures by the federal government, he said, “Indigenous people continue to face serious obstacles to achieving full enjoyment of their individual and collective rights.”
Mr. Cali Tzay, a long-time Indigenous-rights advocate who is a Mayan Cakchiquel from Guatemala, met with Indigenous organizations and leaders, as well as federal ministers. He travelled to five provinces, though said that the Government of Alberta declined his invitation to meet. He is set to complete a final report on his visit, along with recommendations, in September.
The special rapporteur examined a wide range of issues during his visit, including implementation of the UN Declaration on the Rights of Indigenous Peoples, or UNDRIP. And he referred to many of those issues during his remarks Friday, including lack of access to safe housing, violence against Indigenous women and girls, and the exceptionally high incarceration rates of Indigenous people in Canada.
He said he heard “disturbing reports” of growing denialism in the country in relation to the deaths of Indigenous children at residential schools and called for misinformation to be countered with education efforts.
Mr. Cali Tzay said the federal government’s practice of defining who is eligible for status – through the mechanism of the Indian Act – goes against the rights of Indigenous people.
“Each Indigenous community has the right to define who are their members,” he added in a brief interview.
Asked whether delays and complications in the government’s application process for status, which The Globe and Mail reported on this week, could be a contravention of UNDRIP, Mr. Cali Tzay replied: “Of course.” Article 9 of UNDRIP refers to the right of Indigenous people to belong to a community or nation.
The special rapporteur said some people expressed concern to him that Canada is “legislating their extinction, by eliminating First Nations status over time.” He was referring to what’s known as the second-generation cutoff. The Indian Act rule, which took effect in 1985, legislates that after two consecutive generations of mixed status relationships – where only one parent has status – children are no longer eligible for status.
During a 2013 visit to Canada, one of Mr. Cali Tzay’s predecessors, James Anaya, took issue with the second-generation cutoff and the classifications that lie behind it, saying they have “the practical effect of imposing different classes of First Nation citizenship, within a convoluted regulatory matrix.”
Like Mr. Anaya, Mr. Cali Tzay said the government must remove barriers to Indigenous self-governance – and allow nations their right to self-determination and to assert their own identity.
“Currently, the federal government has the authority to decide who has First Nations status, forcibly shaping the identities of thousands of Indigenous people,” Mr. Cali Tzay said.
Mr. Cali Tzay did recognize the government for the amendments made through Bill S-3, which, as of 2019, allows descendants of First Nations women who had their status taken away – as early as 1869 – to register for status.
But the question of compensating these women and their descendants, as Mr. Cali Tzay called for, is not new.
A June, 2022 Senate committee report recommended the federal government repeal a series of “non-liability clauses,” which currently prevent such compensation. In a written response last month to the report, the government said it would not do so.
Randy Legault-Rankin, a spokesperson for Indigenous Services Canada, said in an e-mail Friday that the department is launching a consultation process on the second-generation cutoff and “other remaining inequities” in 2023. After pointing out the harms of past sex-based discrimination in the Indian Act, the spokesperson said: “the government does not, however, commit to reparations.”