January 21, 2013
Submission to Professor James Anaya, Special Rapporteur on the Rights of Indigenous Peoples for the United Nations Commission on Human Rights
Source: Dr. Lynn Gehl Ph.D
600 Little Street, #5
Peterborough, Ontario
Canada K9J 4C3
lynngehl@gmail.com
www.lynngehl.com
Victims and Community Affected: An estimated 25,000 Indigenous children and their mothers.
Perpetrators: Canadian Federal Government, Aboriginal Affairs and Northern Development Canada.
Summary of Events:
When the Indian Act was amended in 1985, the Government of Canada removed provisions that once protected children of unknown or unstated (also unreported, unnamed, unacknowledged, unestablished, and unrecognized) paternity. The Indian Act is now silent on the issue. Although the Indian Act is silent, Aboriginal Affairs and Northern Development Canada (AANDC) has developed an internal policy that they rely on when applicants for status have an unknown or unstated paternity in their lineage. This policy is referred to as “unstated paternity policy”.
Since 1985, registered status Indians are registered under either section 6(1) status or section 6(2) status. It is best to understand these two sections as “full status” and “half-status” respectively. Section 6(1) status is considered to be full status because it allows a parent to pass on Indian status to their children in their own right, while section 6(2), which is considered half status, does not. This means a 6(2) status parent must parent with another status Indian, either a 6(1) or 6(2), to pass on status registration. Appreciating this is necessary in understanding the sex discrimination that children or grandchildren with an unknown or unstated paternity in their lineage are faced with.
Due to AANDC’s unstated paternity policy, today when a child is born to a registered status Indian mother and for some reason the father does not sign the birth certificate, the Registrar of AANDC applies a negative assumption of paternity – meaning the Registrar assumes the child’s father is a non-Indian person.
There are two scenarios that result from this negative assumption of paternity:
Scenario One: A child born to a section 6(1) status mother, and a 6(1) or 6(2) status father who does not sign the birth certificate, is registered only under section 6(2) status (the lesser form of status registration which prevents these children from passing on treaty rights to their children in their own right).
Scenario Two: A child born to a section 6(2) status mother, and a 6(1) or 6(2) status father who does not sign the birth certificate, is not entitled to any status at all.
This negative assumption of paternity applies equally to situations where the parents are married or not, and occurs when the father, for whatever reason, does not sign the child’s birth certificate. Through AANDC’s unstated paternity policy it is estimated as many as 25,000 babies have been denied Indian status, First Nation Band membership, and their treaty rights. This policy also applies in situations of rape, gang rape, and prostitution where a mother does not know the paternity, as well as incest and sexual slavery where a mother does not want the father to have access to the child.
From 1985 to 1999, 13,000 children were born to mothers registered under section 6(2) of the Indian Act and were therefore denied status registration and consequently all rights conferred. Assuming similar birth rates births through 2012, it is estimated that as many as 25,000 babies who have been denied Indian status.
Actions taken:
Canada’s policy: Aboriginal Affairs and Northern Development Canada’s “Unstated Paternity on Birth Certificate: Quick Facts on documentation required.” This is attached.
Summary of Lynn Gehl’s court action:
In May 2001, Aboriginal Legal Services of Toronto (ALST) filed a section 15 Charter challenge on my behalf. This statement of claim was struck, appealed, and subsequently re-filed in October 2002. The discovery, affidavit, and cross-examination process is now complete. Further, the expert reports are in. Recently the case was dismissed because the timeline for the action had lapsed. On November 29, 2012 ALST filed a motion to set aside the dismissal. This motion has been adjourned and the Master assigned the file is seeking a deadline by which the matter must be heard before he approves and signs the order.
Additional Comments:
A baby born to a registered status Indian mother should receive the same Indian status registration as their mother, regardless of the father. Anything less perpetuates the long-time history of sex discrimination against Indigenous women by the Canadian government.
In 1943, Raphael Lemkin first birthed the term “genocide” and proceeded to define the term. Lemkin defined genocide as having two stages. The first involves the denial of an oppressed group’s national pattern; and the second stage involves the imposition of the oppressor’s national pattern. When the International Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations in December 1948, Lemkin’s definition was included within the definition. Article 2 of the Convention codifies five genocidal practices and states that any of these acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, constitutes genocide. These five practices are: Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intending to prevents births within the group; and, Forcibly transferring children of the group to another group. Clearly the last item applies in this situation as children are forcibly being transferred from their First Nation.
Documents Attached:
1. Quick Facts on Aboriginal Affairs and Northern Development Canada’s Policy on Unstated Paternity by Lynn Gehl
2. Unknown and Unstated Paternity and The Indian Act: How Indigenous People are Losing Their Status by Lynn Gehl
3. Aboriginal Affairs and Northern Development Canada’s Unstated Paternity Policy/Procedure. By Ontario Native Women’s Association
4. Gehl, Lynn. “‘The Queen and I’: Discrimination Against Women in the Indian Act Continues.” Canadian Woman Studies: An Introductory Reader. Ed. Andrea Medovarski and Brenda Cranney. 2nd ed. Toronto: Inanna Publications and Education Inc., 2006. 162-71.
5. Eberts, Mary. “McIvor: Justice Delayed-Again.” Indigenous Law Journal 9.1 (2010): 15-46.
6. Mann, Michelle M. “Disproportionate & Unjustifiable: Teen First Nations Mothers and Unstated Paternity Policy.” Canadian Issues Winter (2009): 31-36.
7. Mann, Michelle M. Indian Registration: Unrecognized and Unstated Paternity. June 2005. 6 May 2006 <http://www.michellemann.ca/articles/Indian%20Registration%20-%20Unrecognized%20and%20Unstated%20Paternity.pdf>.
8. McIvor, Sharon Donna. “Aboriginal Women Unmasked: Using Equality Litigation to Advance Women’s Rights.” Canadian Journal of Women and the Law 16.1 (2004): 106-136.
9. Aboriginal Affairs and Northern Development Canada’s “Unstated Paternity on Birth Certificate: Quick Facts on documentation required.” 15 Jan 2013 <http://www.aadnc-aandc.gc.ca/eng/1334234251919/1334234281533>.
Submission to Professor James Anaya, Special Rapporteur on the Rights of Indigenous Peoples for the United Nations Commission on Human Rights
Source: Dr. Lynn Gehl Ph.D
600 Little Street, #5
Peterborough, Ontario
Canada K9J 4C3
lynngehl@gmail.com
www.lynngehl.com
Victims and Community Affected: An estimated 25,000 Indigenous children and their mothers.
Perpetrators: Canadian Federal Government, Aboriginal Affairs and Northern Development Canada.
Summary of Events:
When the Indian Act was amended in 1985, the Government of Canada removed provisions that once protected children of unknown or unstated (also unreported, unnamed, unacknowledged, unestablished, and unrecognized) paternity. The Indian Act is now silent on the issue. Although the Indian Act is silent, Aboriginal Affairs and Northern Development Canada (AANDC) has developed an internal policy that they rely on when applicants for status have an unknown or unstated paternity in their lineage. This policy is referred to as “unstated paternity policy”.
Since 1985, registered status Indians are registered under either section 6(1) status or section 6(2) status. It is best to understand these two sections as “full status” and “half-status” respectively. Section 6(1) status is considered to be full status because it allows a parent to pass on Indian status to their children in their own right, while section 6(2), which is considered half status, does not. This means a 6(2) status parent must parent with another status Indian, either a 6(1) or 6(2), to pass on status registration. Appreciating this is necessary in understanding the sex discrimination that children or grandchildren with an unknown or unstated paternity in their lineage are faced with.
Due to AANDC’s unstated paternity policy, today when a child is born to a registered status Indian mother and for some reason the father does not sign the birth certificate, the Registrar of AANDC applies a negative assumption of paternity – meaning the Registrar assumes the child’s father is a non-Indian person.
There are two scenarios that result from this negative assumption of paternity:
Scenario One: A child born to a section 6(1) status mother, and a 6(1) or 6(2) status father who does not sign the birth certificate, is registered only under section 6(2) status (the lesser form of status registration which prevents these children from passing on treaty rights to their children in their own right).
Scenario Two: A child born to a section 6(2) status mother, and a 6(1) or 6(2) status father who does not sign the birth certificate, is not entitled to any status at all.
This negative assumption of paternity applies equally to situations where the parents are married or not, and occurs when the father, for whatever reason, does not sign the child’s birth certificate. Through AANDC’s unstated paternity policy it is estimated as many as 25,000 babies have been denied Indian status, First Nation Band membership, and their treaty rights. This policy also applies in situations of rape, gang rape, and prostitution where a mother does not know the paternity, as well as incest and sexual slavery where a mother does not want the father to have access to the child.
From 1985 to 1999, 13,000 children were born to mothers registered under section 6(2) of the Indian Act and were therefore denied status registration and consequently all rights conferred. Assuming similar birth rates births through 2012, it is estimated that as many as 25,000 babies who have been denied Indian status.
Actions taken:
Canada’s policy: Aboriginal Affairs and Northern Development Canada’s “Unstated Paternity on Birth Certificate: Quick Facts on documentation required.” This is attached.
Summary of Lynn Gehl’s court action:
In May 2001, Aboriginal Legal Services of Toronto (ALST) filed a section 15 Charter challenge on my behalf. This statement of claim was struck, appealed, and subsequently re-filed in October 2002. The discovery, affidavit, and cross-examination process is now complete. Further, the expert reports are in. Recently the case was dismissed because the timeline for the action had lapsed. On November 29, 2012 ALST filed a motion to set aside the dismissal. This motion has been adjourned and the Master assigned the file is seeking a deadline by which the matter must be heard before he approves and signs the order.
Additional Comments:
A baby born to a registered status Indian mother should receive the same Indian status registration as their mother, regardless of the father. Anything less perpetuates the long-time history of sex discrimination against Indigenous women by the Canadian government.
In 1943, Raphael Lemkin first birthed the term “genocide” and proceeded to define the term. Lemkin defined genocide as having two stages. The first involves the denial of an oppressed group’s national pattern; and the second stage involves the imposition of the oppressor’s national pattern. When the International Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations in December 1948, Lemkin’s definition was included within the definition. Article 2 of the Convention codifies five genocidal practices and states that any of these acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, constitutes genocide. These five practices are: Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intending to prevents births within the group; and, Forcibly transferring children of the group to another group. Clearly the last item applies in this situation as children are forcibly being transferred from their First Nation.
Documents Attached:
1. Quick Facts on Aboriginal Affairs and Northern Development Canada’s Policy on Unstated Paternity by Lynn Gehl
2. Unknown and Unstated Paternity and The Indian Act: How Indigenous People are Losing Their Status by Lynn Gehl
3. Aboriginal Affairs and Northern Development Canada’s Unstated Paternity Policy/Procedure. By Ontario Native Women’s Association
4. Gehl, Lynn. “‘The Queen and I’: Discrimination Against Women in the Indian Act Continues.” Canadian Woman Studies: An Introductory Reader. Ed. Andrea Medovarski and Brenda Cranney. 2nd ed. Toronto: Inanna Publications and Education Inc., 2006. 162-71.
5. Eberts, Mary. “McIvor: Justice Delayed-Again.” Indigenous Law Journal 9.1 (2010): 15-46.
6. Mann, Michelle M. “Disproportionate & Unjustifiable: Teen First Nations Mothers and Unstated Paternity Policy.” Canadian Issues Winter (2009): 31-36.
7. Mann, Michelle M. Indian Registration: Unrecognized and Unstated Paternity. June 2005. 6 May 2006 <http://www.michellemann.ca/articles/Indian%20Registration%20-%20Unrecognized%20and%20Unstated%20Paternity.pdf>.
8. McIvor, Sharon Donna. “Aboriginal Women Unmasked: Using Equality Litigation to Advance Women’s Rights.” Canadian Journal of Women and the Law 16.1 (2004): 106-136.
9. Aboriginal Affairs and Northern Development Canada’s “Unstated Paternity on Birth Certificate: Quick Facts on documentation required.” 15 Jan 2013 <http://www.aadnc-aandc.gc.ca/eng/1334234251919/1334234281533>.
Special Thank you to Jane Weeks for helping me write, compile the documents, and assuring that I fulfilled the United Nations submission requirements.
Dr. Lynn Gehl is an Algonquin Anishinaabe-kwe from the Ottawa River Valley. She has a section 15 Charter challenge regarding the continued sex discrimination in The Indian Act, she is an outspoken critic of the Ontario Algonquin land claims and self-government process, and she recently published a book titled Anishinaabeg Stories: Featuring Petroglyphs, Petrographs, and Wampum Belts. In her spare time she carves nickel-sized turtles. You can reach her at lynngehl@gmail.com and see more of her work at www.lynngehl.com.
