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Bill S-218 - An Act to amend the Department for Women and Gender Equality Act - Second Reading

Honourable senators, I would like to begin by highlighting why this slight but powerful and timely piece of legislation is so critical. This bill would enshrine the requirement for the Minister for Women and Gender Equality to table a statement that sets out potential effects of the bill on women, and particularly Indigenous women. This gender-based analysis or statement would be a requirement for every future piece of legislation to assess the gender-specific impacts of policies, legislation and programs on women and men. This allows decision makers to consider gender differences.

You will note specific mention within this bill to Indigenous women. I have heard the concern of some in this chamber that this excluded other women of colour, the disability community, et cetera. That is not so. I would like to illustrate the importance of referencing Indigenous women by referring to an analogy from page 151 of Kimberlé Crenshaw’s Demarginalizing the Intersection of Race and Sex:

Imagine a basement which contains all people who are disadvantaged on the basis of race, sex, class, sexual preference, age and/or physical ability. These people are stacked — feet standing on shoulders — with those on the bottom being disadvantaged by the full array of factors, up to the very top, where the heads of all those disadvantaged by a singular factor brush up against the ceiling. Their ceiling is actually the floor above which only those who are not disadvantaged in any way reside. In efforts to correct some aspects of domination, those above the ceiling admit from the basement only those who can say that “but for” the ceiling, they too would be in the upper room. A hatch is developed through which those placed immediately below can crawl. Yet this hatch is generally available only to those who — due to the singularity of their burden and their otherwise privileged position relative to those below — are in the position to crawl through. Those who are multiply-burdened are generally left below unless they can somehow pull themselves into the groups that are permitted to squeeze through the hatch.

As parliamentarians, will our efforts facilitate the inclusion only of those who are positioned to squeeze through this hatch or those for whom it can be said that when those at the bottom enter, we all enter? What is the ceiling that, as parliamentarians, we need to pay particular attention to? Would applying a gender-lens analysis affect this ceiling for many? It is important to know, as this ceiling prevents many from getting to the upper room and thereby having the privilege of substantive equality in their lives.

Honourable senators, it is important to ask ourselves why this bill is necessary in the first place. Why do many of our ministers continue to shirk their mandates that require them to apply gender-based analysis to government bills? Why has there been inaction and presumed indifference to the equality of women, highlighted by the fact that the application of this analysis is anything but routine, timely and thorough?

Honourable senators, why do I concentrate particularly on Indigenous women in this bill? Gender-based analysis, as it is currently haphazardly applied, applies to citizens whose history and context are understood by Canadian society — non-Indigenous women who live in settings that normally do not generate further marginalization or interjurisdictional gaps. However, in looking at the bills that we have recently passed, Parliament continues to place marginalized people at a disadvantage socially, politically and economically.

On the ladder of marginalized people who want to get through to the top floor, First Nations women continually place at the very bottom, especially First Nations women who have multiple forms of disadvantage, some tied to legislation which only they toil under, such as the Indian Act. Why is that? Why do people resist the idea of removing the obstacles unique to First Nations women and their descendants? If we move one rung up, does it place First Nations women in a better situation? Or does the inherent intersectionality of these obstacles work in a concerted effort to prevent progress?

If society continues to leave Indigenous women without protection while it protects others through the current gender-based analysis, then what does that say about us as a society, especially after the recent report of the National Inquiry into Missing and Murdered Indigenous Women and Girls? What is the greatest obstacle for First Nations women? There are many: race, gender, disability, lack of education, unemployability, homelessness, violence in its many forms, loss of self-determination and self-government, loss of identity, lack of safe neighbourhoods, oppression through laws and policies bolstered by the Indian Act. Removal of one or even five of these obstacles would still leave Indigenous women sidelined by society.

These obstacles require political solutions, as they are politically engineered barriers. In the book Residential Schools and Indigenous Peoples: From Genocide via Education to the Possibilities for Processes of Truth, Restitution, Reconciliation, and Reclamation, edited by Stephen James Minton, one of the authors Dr. Natahnee Nuay Winder quotes a poem by Tanaya Winder entitled Extraction, 2018. This resonates with me as it represents a glimpse into the “felt” or emotional experiences of residential school.

Before I was born they tried to silence us,

pierced our tongues with needles then taught

our then-girls-grandmothers how to sew

like machines. Even then, they saw our bodies

as land, full of resources

waiting to be extracted and exploited. . . .

For as long as I can remember, we’ve been stolen:

from reservation to Industrial boarding schools

and today our girls, women, and two-spirit still go missing

and murdered. I could find no word for this.

But yáakwi is to sink or disappear. Where is it we fall?

When did we first start vanishing?

In the same book, Dr. Winder states that:

Residential schools were based on a model for the extraction and assimilation of Indigenous peoples from their communities, families, and traditional territories.

Dr. Winder goes on to say, as stated by an Anishinaabe writer, scholar and activist Leanne Betasamosake Simpson:

….[t]he act of extraction removes all of the relationships that give whatever is being extracted meaning. Extracting is taking. Actually, extracting is stealing – it is taking without consent, without thought, care or even knowledge of the impacts that extraction has on the other living things in that environment. That’s always been a part of colonialism and conquest.

Honourable senators, the challenges facing First Nations women require special attention. Why? I have previously spoken on the effects of residential school based on my first-hand experience and what was extracted from our lives. In the book From Treaty Peoples to Treaty Nation by Greg Poelzer and Ken Coates, the author states:

Consider the exceptionally large number of Aboriginal men incarcerated in the Canadian prison system, and then consider how much of the responsibility for family and community has fallen on the shoulders of wives, partners, daughters, aunts, and grandmothers.

They go on to say:

Women are the bedrock of those communities, even as they bear the brunt of the crises and social pathologies that affect Aboriginal populations. Women provide much strength to Indigenous peoples in Canada; they must play a pivotal role in laying out a strategy for the future.

Colleagues, healing is a continuous process for both Indigenous and non-Indigenous peoples who are doing the hard work to ensure that legislation no longer marginalizes Indigenous peoples, communities and particularly First Nations women, through assimilation and/or extraction.

As senators, we make decisions and amendments to these pieces of legislation that affect Canadians. All of the work we do, in reality, affects Canadians, and using a gender lens while we undertake this duty helps us to consider the full impact of federal bills and initiatives from the perspectives of diverse people and to identify potential challenges at an early stage.

It was through this lens that I saw the negative impacts that resource extraction specifically had on Indigenous women with Bill C-69. We all knew that the impacts of resource extraction did not affect everyone equally and that a certain segment of the population — the Indigenous women — were affected differently. It was our responsibility to know what barriers existed that impeded equality. It was also critical that we didn’t, and don’t, reinforce historical inequities.

With the reference “particularly Indigenous women,” this bill aims to mitigate some of the shortcomings of a single-axis perspective of disadvantage by facilitating the inclusion of those who stand at the intersection of multiple sources of disadvantage, and thereby include the voices which can best articulate the shortcomings and considerations that are relevant to their situation; in this case, First Nations, Métis, Inuit and non-status women.

The First Nations, Métis, Inuit and non-status women have been and remain inordinately affected by the social conditions in which they live because these social conditions were shaped and continue to be shaped directly or indirectly by the Indian Act. The social conditions that affect First Nations, Métis, Inuit and non-status not only include features of individuals and households such as income, educational attainment, family structure, housing and transportation resources, but also features of communities, both on and off reserve, such as the prevalence and depth of poverty, residential and geographic segregation, rates of crime, accessibility of safe places to play and exercise, availability of transportation for jobs that provide a living wage, welfare status, availability of good schools and sources of nutritious food.

As was evident through testimony on Bill C-69, countless resource extraction sites, toxic waste disposal and environmental degradation are situated near Indigenous communities. No other group has had to experience living with ongoing trauma from so many institutions. Martha Cabrera, who works on trauma recovery programs in Nicaragua, describes it best when she refers to her society as multiply wounded, multiply traumatized and multiply grieving after experiencing several decades of conflict. The ongoing collective multiplied trauma and grieving and grieving can be witnessed through the missing and murdered Indigenous women and girls, children in care, over-incarceration of Indigenous peoples, suicide, sex trafficking, environmental and climate degradation, increased cancers and mental health issues.

Honourable senators, in getting back to the bill itself, the statements generated by this bill would indicate whether or not there are potential effects of the bill on women, and particularly Indigenous women, and if so what those effects are.

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 gender-lensed analysis to be undertaken by the minister for all private members’ bills once they are referred to committee within their respective house of Parliament. This stage of committee referral was chosen as a statement trigger for PMB, as it is indicative 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 introduced.

To close any loopholes, the minister would finally be required to table an additional statement on amendments that are made to a bill, theoretically ensuring that any potential effects on women are identified from first reading to Royal Assent. Of equal importance is the requirement of the minister to publish every statement on the departmental website, making them accessible to all Canadians.

The enhanced responsibility bestowed upon the minister has recent precedent. Specifically, a similar clause is used in section 4.2(1) of the Department of Justice Act, which requires that 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.

It has previously been insinuated that this Charter Statement would encompass gender analysis for government bills, and this is incorrect. To be clear, Charter Statements do not list all of the possible implications of a bill, that a bill could have on the rights and freedoms described in the Charter. Rather, they focus on only the biggest and most immediately apparent impacts on Charter rights. An analysis under Bill S-219, in contrast, requires that a focus be put on how the proposed legislation impacts women and Indigenous women specifically, which could serve to ensure the rights of all groups, that all groups are not overlooked in broader analyses of proposed legislation. Moreover, since Aboriginal rights are not contained within the Charter, Charter Statements do not outline the impact a bill would have on these rights. Nor would Charter Statements necessarily address equality issues with respect to these rights that could be impacted by a bill.

Colleagues, I would now like to address why this bill does not mention any specific instruments through which to undertake this analysis. The bill does not expressly mention gender-based analysis, the Charter, the Beijing Declaration or any other tool: domestic or international. The reason for that is one of prudence. I wanted to ensure that this bill is protected against change, essentially rendering it future-proof. If a statute were to mention the government’s gender-based analysis and a new or better technique is developed, the statute would need to be amended to keep it current. The bill, in giving discretion to the minister, ensures that analyses undertaken do not fall out of step with trends in policy analysis. The minister will be expected to use the most current and relevant means of undertaking this gender-lensed analysis, whether that be other statutes, legislation, declarations, agreements, treaties and so on.

Any time you give discretion to the minister, there is a risk that a narrow-minded minister could interpret this provision in an under-inclusive way. However, that is where Parliament plays a role in questioning and pressing the minister on their statement if it becomes evident that they only engage in this responsibility in a half-hearted way.

Colleagues, in the 2015 Fall Reports of the Auditor General of Canada under Report 1 — Implementing Gender-Based Analysis, the finding was that:

Overall, we found that in the 20 years since the government committed to applying gender-based analysis (GBA) to its policy decisions, a GBA framework has been implemented in only some federal departments and agencies. In the departments and agencies that have implemented a GBA framework, we found that the analyses performed were not always complete and that the quality of the analyses was not consistent. This finding is similar to our finding in 2009.

The auditor continues:

However, the government did not make it mandatory for federal departments and agencies to conduct gender-based analysis and did not give authority to Status of Women Canada to enforce its application.

In the recommendation 1.61 the auditor states:

The Privy Council Office, Status of Women Canada, and the Treasury Board of Canada Secretariat, to the extent of their respective mandates and working with all federal departments and agencies, should take concrete actions to identify and address barriers that prevent the systematic conduct of rigorous gender-based analysis. Such actions should address barriers that prevent departments and agencies from taking gender-based analysis into consideration during the development, renewal, and assessment of policy, legislative, and program initiatives, so that they can inform decision makers about existing or potential gender considerations in their initiatives.

All three agreed.

In the recommendation 1.63 the auditor recommends that:

Status of Women Canada should assess the resources it needs to deliver its gender-based analysis mandate and assign sufficient resources to its periodic assessments of and reporting on gender-based analysis.

Status of Women Canada was in agreement.

In 2019, the Treasury Board of Canada Secretariat, in consultation with Women and Gender Equality Canada, developed Integrating Gender-Based Analysis Plus into Evaluation: A Primer (2019). The purpose of the document was to provide advice for evaluators, particularly those at the junior and intermediate levels, on how to integrate GBA+ into every stage of Government of Canada evaluations in order to support commitments and directions. The document is a general discussion of each key stage of an evaluation: planning, conducting and reporting.

Honourable senators, currently speaking, the memorandum to cabinet indicates that proposals for new bills must include a gender-based analysis. Although this is a positive step forward, it is insufficient for several reasons. The first is that this analysis in not a statutory requirement, so this 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 the 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 private members’ bills at the present time.

Through the requirements of this bill, the undertaking of a gender-lensed 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.

Colleagues, as our world views come from different contexts, I feel it is important to understand the real-world application of this bill. Equality and equity for Indigenous and other women means equality and equity in real conditions — including material outcomes — and therein lies the need for a consistently applied gender-lensed 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 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. I didn’t see the inequality and marginalization as something wrong. We were treated differently in residential school and on the reserve from the others who lived among us — teachers, nurses, nuns and priests — and I came to accept that inequality was the norm for us Indians and I didn’t challenge that.

The need for gender-lensed analysis as an additional protection and oversight for all women in Canada is important. Within that context, First Nations, Metis, Inuit and non-status historical and current oppression is unique in Canada, hence the need to highlight, particularly for Indigenous women.

As our colleague Senator Boyer has stated at page 4 of her 2007 document entitled, Culturally Relevant Gender Based Analysis and Assessment Tool:

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 acknowledgement 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 parliamentarians, we need to re-examine and challenge the ideal of equality and claims to fairness, and that this ideal applies to all Canadians. It doesn’t.

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 resources to overcome the barriers and challenges that have been placed in their way.

When all women are treated as a homogeneous group having a homogeneous interest, it contributes to the invisibility of Indigenous women and the marginalization of their concerns and voices.

The right to vote and status were closely tied to gender as well. “Indigenous women were excluded from the 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 the arena.

It should be noted that, historically, Indigenous women had a very different traditional role than their European counterparts. This is described, in part, by author Cynthia Wesley-Esquimaux within the book, Restoring the Balance, which states, on page 16:

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.”

In a policy paper 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 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 girls —

— and exposes them to heinous and entirely intolerable acts of sexual violence and discrimination. Whatever the positive economic effects of mining activities are or may be, the continued prevalence of these offences slides the scale firmly against a 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.

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

This shows that when capitalism is a major component in bills, those bills will require 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 other areas such as health, law, geography and so on 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 is shown in the above. In the 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, when it comes to resource-rich areas, First Nations remain in an apparently unbreakable deadlock. Breaking out of this deadlock would allow the forces of modernization to flow through First Nations, Metis and Inuit communities. Yet, being intentionally 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; 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.

There is a term used by Steve Lerner to describe places as “sacrifice zones.” These are low-income and racialized communities shouldering more than their fair share of environmental harms related to pollution, contamination, toxic waste and heavy industry.

In the Senate, do we create our own type of sacrifice zones, or support the existing ones, by not taking into consideration how legislation we consider and pass affects the marginalized and oppressed? How do we use the power and privilege we have been bestowed to address the disparities in environmental burdens? We need to take resistance by First Nations, Metis and Inuit seriously rather than treating the concerns and protests as merely obstructionist.

Honourable senators, recognizing the extent of the problem and calling attention to it is the most basic step toward actually addressing it. To stop there 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-218 as twofold. The first is creating equity amongst all Canadian women. How has privilege afforded equality to one group of women and why are certain other groups left behind? 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, Metis and Inuit people; LGBTQ2 and gender-nonconforming people; those living in northern, rural and remote communities; people with disabilities; newcomers; children and youth and seniors.

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 a gender lens 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 equity is 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 happy and fulfilling lives.

Honourable senators, an ounce of prevention is worth a pound of cure. It is time to act to prevent further avoidable, discriminatory policy-based and legislation-driven issues at the outset to avoid the need for future generations to correct our wrongs.

As First Nations, Metis, Inuit and non-status peoples — the most vulnerable — we want substantive equality and equity on par with other Canadians. There should be no place for inequity in this land of opportunity with a history of treaty relations. Unfortunately, the sidelining of First Nations, Metis, Inuit and non-status peoples — and especially the women — from economic activity, employment and culturally appropriate education is a reality that needs to be addressed. Remedying this, in part, will be one of the many accomplishments of this bill.

I urge you to join me in supporting Bill S-218 and the consistent application of a gender-lens analysis to all future legislation.

I just wanted to mention that I’m meeting with a group of women on Thursday, and they have developed their own Indigenous GBA. The women are doing this to protect themselves because nobody else is protecting them. Isn’t it egregious that they have to do that? We are trying to do our part in the Indigenous community to move forward. We are not just sitting there. I urge you to join me and support this bill. Thank you.

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