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Bill S-209 - An Act to amend the Department for Women and Gender Equality Act - Second Reading

Honourable senators, I would like to acknowledge the people that help me with the work that I do in my office: James Campbell, Anna Millest and the law clerks.

I rise today to move second reading of Bill S-209, An Act to amend the Department for Women and Gender Equality Act. I would like to begin by highlighting what this slight but powerful piece of legislation would accomplish. This bill would enshrine the requirement of the Minister for Women and Gender Equality to undertake a gender-based analysis for every future piece of government legislation.

This analysis or statement would flag any potential adverse impacts of the bill on women, particularly Indigenous women. Essentially, this analysis would indicate whether a given bill was GBA-compliant or identify the ways in which it falls short to meet that threshold as set out by the government’s own gender-based analysis framework.

This statement would be tabled in the house in which the government bill originated no later than two sitting days after the bill is introduced. Furthermore, this bill would also require a GBA to be undertaken by the minister for all private member’s bills, PMB, once they are referred to committee within their respective house of Parliament.

This stage of committee referral was chosen as the analysis trigger for PMB as an indicator that a bill is meaningfully progressing through its house. For PMB, the analysis must be tabled in the house of origin no later than 10 sitting days after a bill is referred to committee.

To close potential loopholes, the minister would be required to table additional analyses of amendments that are made to a bill, therefore ensuring it remains GBA-compliant from first reading to Royal Assent. This statement needs to be tabled within seven sitting days of the date upon which the amended bill is received by the other house. Of equal importance is the requirement of the minister to publish every statement on the departmental website, making them accessible to all Canadians.

The new responsibility bestowed upon the minister has recent precedent. Specifically, a similar clause is used in section 4.1(1) of the Department of Justice Act that requires the minister to ascertain whether any of the provisions of new legislation are “inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms . . .”

That minister is also required to report any such inconsistency to the House of Commons at the first convenient opportunity.

Colleagues, I would like to acknowledge the current government’s preliminary work on this matter so far. Currently, the memorandum to cabinet indicates that proposals for new bills must include gender-based analysis, or GBA. Although this is a positive step forward, it is insufficient for several reasons.

The first is that this analysis is not a statutory requirement, so this government or any future government can stop the practice at any time. Moreover, the results of this internal GBA are not public and there is nothing stopping cabinet from proceeding with a proposal for which the GBA is not positive or the analysis is not done at all, ill practices that may be happening now. Finally, this internal analysis, if done, is only being undertaken for government legislation and not PMBs at the present time.

Through the requirements of this bill, the undertaking of a gender-based analysis would be enshrined into law and not determined by the whim of the government, it would require that the analysis be made public and it would ensure an analysis was done for all legislation — government and private members’ bills alike.

This is a bill about gender equality, so understanding the difference between equality and equity is critical. They are not interchangeable, and continuing to apply equality solutions to issues of equity will never work; it will only increase inequity. Equity is giving everyone what they need to succeed, especially those operating from a position of inequality. Equality is giving everyone the same and, as such, can only work if everyone is starting from the same place. But not everyone is starting from the same place.

According to the World Health Organization, health inequities involve more than a lack of equal access to needed health resources:

They also entail a failure to avoid or overcome inequalities that infringe on fairness and human rights norms.

It goes to reason, then, that equity is first required to be able to achieve sustainable equality. This bill will help facilitate this goal by ensuring all future legislation carefully considers its impact on women, and particularly Indigenous women. Whether intentionally or unintentionally, women have historically felt the negative impacts of policies and legislation in a more profound way than men. It is 2020 and we are still fighting this fight — one in which I hope to chip away at with the passing of this bill.

Honourable senators, I feel it is now important to speak to you about the real-world application of this bill and the need for consistently applied gender-based analysis. It is my hope and belief that other women — and men, for that matter — within this chamber will add their voices to mine over the course of the debate on this bill and share their own stories and perspectives of why this bill is so crucial.

The perspective that I bring, colleagues, is that of a First Nations woman who grew up on the reserve system and whose life was controlled by the Indian Act. The cumulative, intergenerational and ongoing trauma of the deeply rooted systemic injustices I experienced while I was raised under this colonial domination are many and contributed to my belief that inequality was normal. This includes the perpetuation of First Nations, Métis and Inuit peoples’ oppression and marginalization that still exists today, including the harms currently being perpetuated at the hands of the resource industry.

Colleagues, the intersectionality in gender-based analysis for First Nations, Métis and Inuit women is particularly complex due to the unique historical and current injustices they face. These issues include inequities in health, education, cultural continuity, human and community development and infrastructure, employment, economic development, food security, environmental health, resource sharing, safety and security.

Underpinning these inequities are the issues surrounding terra nullius; the Doctrine of Discovery; land, including land claims; governance and sovereignty; natural resources; self-government; self-determination; consent; and human rights — issues that still remain unaddressed today. These many issues, which are avoidable and preventable, impact the quality of life and dignity in the physical, mental, emotional, psychological and environmental realms.

The need for GBA as an additional protection and oversight for all women in Canada is important. Within that context, First Nations, Métis and Inuit historical and current oppression is unique to Canada, hence the need to highlight the phrase “particularly for Indigenous women.” As our colleague Senator Boyer has stated in her 2007 document, entitled Culturally Relevant Gender Based Analysis and Assessment Tool, at page 4:

Section 35(4) of the Constitution Act, 1982 provides that notwithstanding any other provision, the Aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. This is a fundamental constitutional recognition of the equality of Aboriginal women, and we find a similar fundamental acknowledgment of that equality in the Charter of Rights and Freedoms. Section 25 of the Charter prevents the guarantees of the Charter from detracting from Aboriginal treaty and other rights and freedoms; section 25 is subject to section 28 of the Charter, which provides that all Charter rights are guaranteed equally to women and men. Thus, the Aboriginal rights protected by section 25, like those protected by section 35(1), must be made available on an equal basis to women. Not only do sections 35(4) and 28 protect the position of Aboriginal women within Aboriginal polities, but section 15 of the Charter guarantees that Aboriginal women cannot be discriminated against vis-à-vis non-Aboriginals. For Aboriginal women, the development of a culturally relevant gender based analysis is therefore a constitutional obligation.

Honourable senators, as politicians, we need to re-examine and challenge the ideal of equality and claims to fairness for all. Reframing this concept will help us, and all Canadians, to move away from fragmented, ahistorical conversations to ones that are rooted in a historical context and focused on meaningful action. This will keep history from repeating itself. We need to disrupt the ideas of a monoculture, including assimilation, as well as universality or pan-Canadian approaches as solutions. These approaches have never worked due to the lack of equity for those groups who require additional resources. When all women are treated as a homogenous group having homogenous interests, it contributes to the invisibility of Indigenous women and the marginalization of their concerns and voices.

Colleagues, there is no human failure greater than launching a profoundly important endeavour and leaving it half done. This is what Canada has done to First Nations, Métis and Inuit through its colonial systems. Countless policies and laws shook these groups loose from their old foundations. In the residential school system, the purpose was:

. . . to assimilate into mainstream society, mostly by forcing the children away from their languages, cultures and societies.

Reserves first appeared in the 1830s, and Indian forms of government were outlawed. In 1884, the Canadian government forced Indians to elect their leaders, and the effects of that are seen clearly in what is going on in B.C. today. In 1920, during debates in the House of Commons on planned changes to the Indian Act, Duncan Campbell Scott, the Deputy Superintendent of Indian Affairs, left no doubt about the federal government’s aims. He stated:

Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian department, that is the whole object of this Bill.

In 1969, Jean Chrétien, then Minister of Indian Affairs, said:

It is expected that within five years the Department of Indian Affairs and Northern Development would cease to operate in the field of Indian affairs . . .

Furthermore, the right to vote and status were closely tied to gender as well. In fact, Indigenous women were excluded from Canadian suffragette movement, which was dominated by middle and upper class white women. For all of their important work, leaders in the Canadian suffragette movement, specifically Nellie McClung and Emily Murphy, worked to keep female Indigenous voices out of that arena.

Canada has clearly and purposely excluded First Nations from meaningful involvement as part of Canadian society and can hardly ignore the forces they unleashed. There were many financial and human resources expended by government to marginalize First Nations, Métis and Inuit.

Honourable senators, I now want to take you on a journey, one which I lived and witnessed through those who travelled beside me — other First Nations, Métis and Inuit women who also continue to be excluded. As I indicated at the outset, my speech is from a First Nation woman’s perspective. As such, I will take you through the various stages of my life, a life lived and directed by federal government policies and laws, as well as those of the provincial government.

Girls and boys went to residential school where:

. . . violence was institutionalized as children were forced to adhere to rules and endure severe punishments that included physical, psychological and sexual abuse and neglect. . . . Many girls were subjected to extreme forms of sexual abuse and they often left the system having internalized the oppressive notions that to be an Aboriginal woman meant being a sexual object to be controlled and disciplined. These traumas have affected multiple generations of Aboriginal families.

This is from Blackstock, et al., 2004.

Through my First Nations spirituality, language, teachings and collective wisdom, I know that my education was being shaped before I was born, beginning when I was in my mother’s womb. My mother was Métis from the Red River area. Her family fled to Brochet during the upheaval of Métis life in Canada at the time. As I was told recently, “You were Métis before you were First Nations.” It highlighted the special role of women and the future they carry within them. The first environment of life is a woman’s body and that’s why a healthy, external environment is so critical and crucial to women. In that sacred space of the womb, I carried with me the blood memory of my ancestors. I carried into this world as a little girl, spirit, teachings, ceremonies, songs, stories and my Cree constitution.

That powerful reality was reflected by my daughter. When she was in university, my daughter decided she was going to begin drumming. She called me and said in a voice filled with wonder and awe, “Mom, I knew the songs,” even though she and the women around her hadn’t drummed before.

Colleagues, in 1952, a new and unilateral policy of medical services, now known as Indigenous Services Canada, forced my mother to go to The Pas to give birth to me in a hospital. I was the first in my family to be born in a hospital as my 11 brothers and sisters before me were born in Brochet with the help of a midwife. As they were born happy and healthy, that policy was not based on an issue of danger. The hospital was a cold, clinical and foreign setting without celebration of new life, without support of family, without skills to navigate the system, without language to give voice to my mother’s concerns or needs. That policy started the destruction of ceremonies of birth, kinship, social capital, collectivity, community and resilience, as well as the role of Indigenous women. The policy also started the erosion of the core concept of self-determination that is the ability to remain autonomous and continue to function as a strength-based society.

Honourable senators, I later worked as a dentist in my reserve in Brochet. On one occasion, I went out on the land with my family and a friend. As we were travelling on the lake, my friend asked my nephew Rod Clarke, Jr. why he didn’t get lost in the water system that had thousands of islands. Junior replied, “My dad taught me to ‘always look back’ to landmark so you see the islands from both sides because, when you head back, the land and waterway won’t look the same.” Landmarking is one of the many skills that is quickly learned and applied when you live on the land.

There are various interpretations and meanings for this saying, “Always look back.” One was about the immediate situation of navigating the waterway with a purpose of locating yourself. On a higher level, it is to look back at our history to see where we have come from so we don’t get lost.

I asked Junior for his interpretation of “Always look back” and he translated it as this:

Ka we tha we katch wa ne kis kie se e te ka ke o pe tas keen.

Never forget where you came from and how you were raised: from the Creator and raised by the land, the water, the teachings, environment, seasons, ecology, astronomy, community, family and kinship, values, traditions, and all our relations who are the four-leggeds, the two-leggeds, the winged ones and the sea creatures; that is, all biodiversity.

My people had a PhD in life and understood the significance of this web of life. After generations of living life on the land, they understood that everything is relational. The world my father and ancestors lived in had the solutions they needed. They were able to navigate change, as are we, the First Nations, Métis and Inuit of today, but it is now made more difficult due to the effects of climate change and resource extraction.

Honourable senators, the Cree phrase “Ka ke o pe tas keen“ is similar in essence to “world,” but it has a deeper and more complex meaning that takes into account what influenced and shaped us in our ways of knowing, our life course and destiny. That is our first constitution. All of us carry our own unique world within us wherever we go. We carry our constitution within us, which means we internalize our values, ethics, codes of conduct, teachings, kinship, web of life and connection to Creator or God, that make up our Indigenous way of knowing, being and acting. We model this constitution. We did not have much to do with the external world. We had all our needs around us. We were happy and grateful for that abundance and simplicity of life. I was. Slowly, that constitution was eroded over time as we moved toward a deficit model of life that was being shaped for us.

For most of my life, I didn’t understand the culture I was forced to adopt, but I put countless years into trying to live the life that Canada wanted me to live, forsaking my own culture and history. It took me over 30 years to realize that I would never be a white girl, no matter what I did, and that I would never be accepted as an equal. I lived this lie because policies and legislation paved my way.

I left residential school as a young woman without life skills, without critical thinking skills, without parenting skills, without budgeting skills and without a safety net or what it meant to be a human or a woman. I entered society as an easy target for predators, much like children in care today. The marginalization and vulnerability make it easier for others to commit violent acts towards Indigenous people without repercussion. Gender-based violence is intimately tied to gender-based analysis. Gender-based violence is a significant barrier to gender equality. Gender-based violence is a reality I first encountered in residential school and remains so prevalent in society today.

The education system for First Nations in residential schools had a specifically directed double purpose. First, it was to remove the Indian from the child; and second, to educate them with memory work rather than cultivating critical thinking skills which are crucial for development later in life. These children were sent to unsafe, unsupportive and culturally inappropriate settings where they lacked meaningful academic teaching and were robbed of their gender-based cultural roles in life.

This is explained by author Cynthia Wesley-Esquimaux within the book Restoring the Balance, which states on page 19:

As First Nations people became isolated from meaningful contacts with the externalized world, and increasingly cut off from inner traditional social meanings, their world views faltered and diminished. In effect, First Nations people began to walk backwards into the future, unarmed with the social and psychological strengths that would have been passed to their children if their societies had remained intact.

She continues on page 23:

For First Nations people, loss of their cultural identity was not an abrupt event, but continued in one form or another through centuries of pain and suffering, and so they were never able to reach a full stage of recovery in the cycle of grieving.

In the book Restoring the Balance on page 16, it says:

Native women were removed from their traditional roles and responsibilities and pushed to the margins of their own societies. The missionaries brought into the New World an old-European social hierarchy where “a woman’s proper place was under the authority of her husband and that a man’s proper place was under the authority of the priests.”

The inequities I learned — as a girl and a woman — did not arise randomly or by happenstance. They are tied powerfully and directly to the reshaping of my womanhood and my purpose in life, to the policies stemming from removing the Indian from the child. These inequities were at the intersection of policy, law, education, ethnicity, race, religion and class, and they persevere from generation to generation. The outcomes of federal policies are systemic problems; they will continue until systemic inequalities sprung from poor, inadequate and discriminatory policies themselves are addressed.

Colleagues, when I came out of residential school, I was not equipped to function as a woman in either my cultural role or in the Western role. Introducing this bill is one measure towards creating stability out of social and economic chaos for First Nations women. It is an attempt at creating a new social reality out of unfavourable circumstances that have been thrust upon us through policy and law.

From my perspective now as a senior citizen and a woman who is First Nations, when I look back at my life, we went from a strength-based autonomous peoples to a deficit-based collective when we entered residential school. We are presently on our journey back to reclaiming our strength-based societies. That’s what you’re witnessing with what is happening on the West Coast. Why were these atrocities allowed to happen to us and, for the sake of this discussion, why do the special strategies and attacks to dehumanize and marginalize Indigenous women, particularly, continue today?

In the book entitled Indigenous Gender-Based Analysis for Informing the Canadian Minerals and Metals Plan, Adam Bond and Leah Quinlan of the Native Women’s Association of Canada, NWAC, state on page 4:

Indigenous women have unique and more proximate social and cultural relationships with nature than non-Indigenous groups. The intersectionality of their gender and indigeneity equip Indigenous women and girls with special roles, knowledge and responsibilities, but also expose them to greater risks. The socio-cultural relationships of Indigenous women with nature and their physiology result in pronounced negative effects of local mining-related environmental impacts.

The purposeful exclusion of Indigenous women from community decision making, consultations, and negotiations with the private sector perpetuate the continued disproportionate negative environmental and social-economic effects of industrial activities on Indigenous women and girls. Consultation processes require good faith on the part of both the Crown and community. The marginalization of the voices and concerns of Indigenous women from these processes undermine the legitimacy of the ultimate decisions and agreements.

Sexual violence, harassment and discrimination are prevalent realities for Indigenous women that are often exacerbated by the presence of industrial projects. . . . The persistence of “rigger culture” in . . . work camps perpetuates a form of racism and misogyny that undermines the human worth of Indigenous women and exposes them to heinous and entirely intolerable acts of sexual violence and discrimination. . . .

I have gone across Canada and spoken to people and they tell stories about what has happened to them, as women living in community, but also as employees.

Whatever the positive economic effects of mining activities are or may be, the continued prevalence of these offences slides the scale firmly against the net socio-economic benefit for Indigenous women.

The failure of mining companies to exterminate rigger culture and the failure of governments to impose adequate administrative conditions and legislative and regulatory requirements to protect Indigenous women is not only a mammoth burden for Indigenous women to shoulder, it is a major obstacle for the industry to access a much-needed workforce and stands firmly in the way of developing trust-based relationships with local communities. Ultimately, so long as the presence of mining activities constitutes a threat of sexual violence, there cannot be a reasonable conclusion that the industry is a positive force for Indigenous women and girls. No community can ever be reasonably expected to support a project that puts their women and children at risk of rape.

This bill is about minimizing the deleterious effects while maximizing the benefits in the environmental, social, cultural and economic realms of exploration and resource activities.

This shows that capitalism is one of the areas that require these critical gender considerations to be applied in future federal policies and laws. While I use the example here of the impacts of the resource industry on Indigenous women, it is important to stress that there are many other areas — like health, law, geography, et cetera — that impact different groups of women in unique and complex ways. In some circumstances, the intersectionality of capitalism, health, geography and law, with identity, gender and indigeneity, affects people, as was heard in what I just spoke about.

In CRI-VIFF No. 6, January 2011, it states:

This means that girls and young women often find themselves at the crossroads (intersecting sites) of various systems of oppression such as patriarchy, capitalism and colonialism as they encounter different forms of violence related to these systems simultaneously.

Colleagues, the ever-changing relationship between governments and First Nations peoples, Métis and Inuit peoples, and between industry and these Indigenous groups makes it difficult to challenge the status quo. And what is the status quo? It is the continuing dependency of Indigenous populations and it persists in the face of concerted efforts to address it.

In her paper Separate but Unequal: The Political Economy of Aboriginal Dependency, Frances Widdowson states on page 1:

Despite the serious nature and pervasiveness of aboriginal dependency, the subject has not been an area studied extensively in Canadian political economy. Instead, most of the analysis of aboriginal marginalization and deprivation has occurred outside the discipline, where the expropriation of aboriginal lands by European settlers and the destruction of native traditions by the Canadian state are advanced as the dominant explanations. The focus is on the racist attitudes of Non-Aboriginals, rather than examining how the historical requirements of capitalism have influenced the current circumstances of aboriginal peoples.

She goes on to ask:

. . . why aboriginal peoples became marginalized after the fur trade, while the rest of the country developed. Since labour shortages existed in Canada during the 19th Century, why weren’t the natives proletarianized and integrated into the emerging economy, instead of being sidelined by workers from Europe?

Canada has succeeded and completed its breakthrough to modernization, but this breakthrough didn’t allow First Nations in their own territories and as title holders to be part of that process. Growth in education, farming, transport, industry, health, technology and service delivery areas were not developed on the reserve system created by the federal government, and because growth was not provided equally as with the rest of Canada, a gap was created. This inequity continues to grow wider today, both in growth of human potential and community infrastructure.

A complex and tragic division dominates Canada today. Canada has emerged on one side as a pattern of great and increasing wealth, but First Nations — especially First Nations women — have yet to attain this. Restrictive policies have cut them off before they could also go through the great movement of economic and social momentum. The gap between the rich and poor has become the most tragic and urgent problem in Canada today, and Indigenous women continue to be the hardest hit by this reality.

Colleagues, changes produced haphazardly by colonialism in Indigenous communities didn’t produce a new and coherent form of society as it did in other parts of Canada. The colonial impact introduced problems that offered immense difficulty in achieving any solutions. There was little general change among First Nations and a dual society was formed, First Nations that are caught between a world that had died and a new world that could not yet be born. This is a recipe for psychological and social strain.

Today, First Nations continue to be suspended between contradictory worlds of someone else’s making, all because of the land and her resources, the greatest asset Canada has. In resource-rich areas, First Nations remain in an apparently unbreakable deadlock. Breaking out of it would allow the forces of modernization to flow through its communities, yet being placed in a powerless position allowed industry to overwhelm First Nations communities when these communities were in the way.

Research has found mostly negative outcomes regarding social, economic, cultural and health impacts for Indigenous and non-Indigenous women when a resource development project is situated near their community. These include child care challenges; temporary low-skilled and low-paying jobs; increases in violence and harassment; increases in sex work, homelessness and affordability of housing; decreasing health resources due to the influx of workers; and so on. Again, this is but one facet of life where discriminatory policies result in excessive hardships for women to deal with.

Colleagues, as Susan Manning et al. state in the article “Why are we so afraid of gender-based analysis?”, GBA is “an important analytical tool that can help to identify gendered impacts and aid in the development of plans to mitigate the worst impacts on women . . . share in the benefits of resource extraction and to make it less likely that more marginalized members of communities, including women and girls and people with disabilities, will face more negative impacts than positive ones.”

Honourable senators, recognizing the extent of this problem and calling attention to it is only the most basic step toward actually addressing it. To stop here is an overt abuse of the privilege that creates and reinforces a flawed system. It is on us to go beyond this at every opportunity.

With that, I see the impacts of Bill S-209 as twofold. The first is creating equity amongst all Canadian women. The underlying issues and individual needs of underserved and vulnerable populations must be effectively addressed by ensuring policies do not discriminate against marginalized groups. This includes the unique needs of all women and girls; First Nations, Métis and Inuit people; LBGTQ2 and gender non-conforming people; those living in northern, rural and remote communities; people with disabilities; newcomers; children and youth; and seniors. I am sure women and men of different backgrounds and experiences can think of ways in which this bill would bring equity for these and other voiceless groups.

Alongside equity amongst all Canadian women, the second step this bill will take is to ensure equity of women to men. These two steps will naturally occur at the same time as every instance during which GBA is thoroughly applied to legislation, it ensures women from all walks of life will be further protected from any negative consequences, intended or not. Once these steps are taken and equities achieved, that is when we can begin to operate on a sustained level of equality amongst all Canadians. Equality is the foundation from which everyone can lead healthy, happy and fulfilling lives.

It is said that a rising tide lifts all boats. I view this bill as that rising tide that will inevitably work to lift all women and, by extension, all Canadians to new levels of equality and fairness, free of discrimination and individual and collective deficit.

Honourable senators, an ounce of prevention is worth a pound of cure. Let us prevent some of these avoidable, discriminatory, policy-based issues at the outset to avoid the need for future generations to correct our wrongs.

As First Nations, Métis and Inuit peoples, we want equality with other Canadians. There should be no place for inequity in this land of opportunity. Unfortunately, the sidelining of Indigenous peoples — especially Indigenous women — from economic activity, employment and culturally appropriate education is a reality that needs to be addressed.

I believe remedying this in part will be one of the many accomplishments of this bill. Senators, I urge you to join me in supporting Bill S-209 and the consistent application of gender-based analysis to all future legislation. Thank you.

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