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UN Human Rights Committee Rules Indian Act is Discriminatory in McIvor Case

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On January 29, 2019

In Aboriginal, Human Rights, International Law

By: Elysa Darling and Drew Lafond

PDF Version: UN Human Rights Committee Rules Indian Act is Discriminatory in McIvor Case

Decision Commented On: Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2020/2010

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act and is not intended to carry any derogatory connotations in this post.

Introduction

In a decision released on January 14, 2019, the United Nations Human Rights Committee (UNHRC) determined that the Government of Canada violated the International Covenant on Civil and Political Rights (ICCPR) by discriminating against First Nations women and their descendants through Status requirements under the Indian Act, RSC 1985, c I-5. The decision was one that the claimants, Sharon McIvor and her son Jacob Grismer, had been waiting for more than a decade since their case was first heard by the British Columbia Superior Court in 2007.

To understand McIvor and Grismer’s complaint to the UNHRC and the litigation that preceded it, a review of their family lineage and the many amendments made to the Indian Act will be reviewed in this post. We will also briefly review the Status provisions of the Indian Act and the litigation and legislative amendments that have resulted from claims of sex discrimination under the Act, review McIvor and Grismer’s litigation, and summarize the arguments made to the UNHRC and the Committee’s final decision.

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Implementing UNDRIP: some reflections on Bill C-262

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On November 27, 2018

In Aboriginal, International Law

By: Nigel Bankes

PDF Version: Implementing UNDRIP: some reflections on Bill C-262

Bill Commented On: Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples

This post comments on Bill C-262 adopted by the House of Commons on May 30, 2018. The Bill is currently in the Senate awaiting debate in a very packed fall sitting. The post is based on a presentation that I made to the Conference on Indigenous Solutions to Environmental Problems held at the Banff Centre, Banff Alberta, November 9 – 12th 2018 on the Treaty 7 territory of the Stoney Nakoda First Nation.

Part I offers some preliminary comments on the United Nations Declaration on the Rights of Indigenous Peoples (Declaration or UNDRIP). Part II describes Canada’s bumpy road to the endorsement of the Declaration. Part III examines the subject of latest step in that endorsement, namely the government’s support of MP Romeo Saganash’s private member’s bill, Bill C-262.

My main conclusion is that the Bill strikes a judicious balance between affording the Declaration some immediate “application” in the laws of Canada, and the creation of a process that will, over time, give greater effect to the Declaration within the Canadian legal system and in doing so slowly decolonize Canadian law and the Canadian legal mind. My perception of the balanced nature of the Bill means that I do not share the views expressed by some (see, for example, Dwight Newman and Ken Coates here) to the effect that the Bill is overly simplistic and will shift a lot more power to the courts.

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Canada’s interpretation of the Hague Convention on the Civil Aspects of International Child Abduction – the influence of the new hybrid approach on a child’s objection to return

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On May 10, 2018

In Family, International Law

By: Rudiger Tscherning

PDF Version: Canada’s interpretation of the Hague Convention on_the_Civil Aspects of International Child Abduction – the influence of the new hybrid approach on a child’s objection to return

Cases Comment On: Office of the Children’s Lawyer v Balev, 2018 SCC 16; Erhardt v Meyer, 2018 ABQB 333; Husnik v Barbero Salas, 2018 ONSC 2627

Introduction

On November 9, 2017, the Supreme Court of Canada (SCC) heard the appeal in Office of the Children’s Lawyer v JPB and CRB (Supreme Court of Canada, Leave to Appeal (37250)) (Balev), a case which raises important issues about the interpretation of the Hague Convention on the Civil Aspects of International Child Abduction. For an overview of the background and issues arising from the Balev litigation, see my earlier posts at here, here, and here. The SCC rendered its decision in Balev on April 20, 2018.

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Anticipating the SCC’s Direction in Balev: The ABCA in Thompson v Thompson Emphasizes a ‘Child-centered’ Approach to the Hague Convention

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On October 16, 2017

In Family, International Law

By: Rudiger Tscherning

PDF Version: Anticipating the SCC’s Direction in Balev: The ABCA in Thompson v Thompson Emphasizes a ‘Child-centered’ Approach to the Hague Convention

Case Commented On: Thompson v Thompson, 2017 ABCA 299 (CanLII)

On November 9, 2017, the Supreme Court of Canada (SCC) will hear an appeal in Office of the Children’s Lawyer v JPB and CRB (Supreme Court of Canada, Leave to Appeal (37250)) (Balev), a case which raises important issues about the Hague Convention on the Civil Aspects of International Child Abduction. For an overview of the background and issues arising from the Balev litigation, see my earlier posts here and here.

The appeal in Balev involves the key issue of whether the habitual residence of a child can change for purposes of the Hague Convention during the period of a father’s time-limited consent (which permitted the children to attend school in Canada). If so, the mother in that case would not have wrongfully retained the children in Ontario within the Hague Convention’s prompt return mechanism. The appeal is likely to engage questions around how best to determine the habitual residence of a child. Should it be through a “child-centered” approach, a “parental intentions only” approach, or both?

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Does a US Entity Have a Cause of Action (Cognizable by the Federal Court) where a Downstream Road/Dyke in Canada Serves to Prevent Dispersion of the Natural Flow of a Transboundary Stream? Answer: No

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On June 12, 2017

In Federal Court, International Law, Water Law

By: Nigel Bankes

PDF Version: Does a US Entity Have a Cause of Action (Cognizable by the Federal Court) where a Downstream Road/Dyke in Canada Serves to Prevent Dispersion of the Natural Flow of a Transboundary Stream? Answer: No

Case Commented On: Pembina County Water Resource District v Manitoba (Government), 2017 FCA 92 (CanLII)

The Pembina River is transboundary stream. Its geography is as follows (at para 6 of the judgement):

The Pembina River originates in Manitoba and crosses into North Dakota. It then flows eastwards through North Dakota before joining the Red River, which flows northward back into Canada. Within North Dakota, part of the river is “perched” meaning that it is elevated above the level of the surrounding prairie. When the river overflows these elevated banks, as the appellants allege happens “virtually every year,” the water should naturally disperse.

The gravamen of the plaintiffs’ claim was that (at paras 5 and 6):

…. in the relevant areas of southern Manitoba, there is a 99 foot wide road allowance running parallel to the international border. In or around 1940, a raised road was constructed within this allowance. The road [blocks] the flood waters of the Pembina River from crossing into Canada.

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