The Law of Consent – Indigenous

 

“Everyone has the right to live in dignity and safety to maintain and practice their identity and culture. Under international human rights law, states are obligated to do everything they can to ensure that rights essential to individual and collective well-being, such as the rights to education, health, livelihood, and the right to live free from violence, can be fully realized in the lives of all people without discrimination. ~ Amnesty International

John Horgan and the new BC NDP government recently made a long-awaited announcement informing citizens the government will be fully adopting and implementing the UNDRIP which makes their government the first province in Canada to implement its recommendations. “This is a priority for all ministers who are tasked to review all policies, programs and legislation to determine how to bring the principles of the Declaration to action in British Columbia. Indigenous people will be consulted to ensure decisions affecting land, air and water are legal and respectful.” says Horgan “The UN Declaration recognizes that Indigenous peoples – like all peoples – have the right to self-determination.”

In a recent Globe and Mail article it says “British Columbia has been at the leading edge of defining modern Indigenous rights, which are intertwined in almost every resource development in [the] province where the founding colonial government mostly overlooked the resolution of treaties – a failure that is felt today across the sectors of mining, forestry, and energy.” John Horgan, told The Globe’s editorial board this week that B.C.’s economy needs to be developed “so that we can all benefit from our natural resources and ensure the economic activity that flows from that benefits the Nations who have title to the land – or will, over time – and the UN declaration is a step along that road.”

John Horgan UNDRIP Site C

For far too long the indigenous communities have had their voices ignored and silenced while their land was taken from them and their way of livelihoods and way of living destroyed by the colonizer. It’s a simple principle if you want something – you ask allowing the owner the opportunity to say yes or no. It’s called consent. Consent is about respect – another seven letter word – and looks what it has done to a group of people who’ve been denied both the respect and opportunity to provide their consent to their bodies and their lands.

For decades into centuries, these for the most part aboriginal communities have been used and abused as they helpless watch a new nation form over their lands and waters. There are many groups of people who’ve been denied this at some point in time in our human history no ethnicity nor culture has escaped this fate – call it human nature. But to talk in present terms, in terms where you and I can directly relate, comprehend the grave misgivings and to some extent are responsible, we will first begin with a simple word called “consent”. This simple word that holds deep meaning has been the cause of so much strife and continuity among indigenous and non-indigenous people. In honor of October being Women’s Month, we will examine a two-part series on the topic of the “Law of Consent” and what that means for women and young girls.

DB03eYIUQAA4gknFall 2016, Amnesty International tabled a comprehensive report entitled “Out of Sight, Out of Mind” that provides details for what it is like for Indigenous women and young girls and the unusually high-level violence they face in resource development areas of North Eastern BC, specifically the hydroelectric project known as Site C.

The ability of Indigenous peoples to live on their traditional lands and maintain traditional harvesting practices is crucial to the fulfillment of a wide range of human rights, including the right to health to the right of children to grow up within their own cultures….In the report of its recent investigation into violence against Indigenous women and girls in BC, the Inter-American Commission on Human Rights (IACHR) stated that “special protection for the right of indigenous peoples to their lands and resources” is essential because the “economic, social, spiritual, and cultural development” of their communities as a whole depends on their relationship to the land.

Site C Dam Contruction aerial.
©Garth Lenz- Site C

The UN Declaration and a larger body of rulings and interpretative statements by UN and Organization of American States (OAS) human rights mechanisms are consistent in affirming that whenever there is a risk of serious harm to the cultures, well-being, and safety of Indigenous peoples, decisions should be taken only with their free, prior and informed consent (FPIC). The former UN Special Rapporteur on the Rights of Indigenous Peoples James Anaya said that states should generally presume that FPIC is required for any large-scale resource development project because of the inherently high risk of Indigenous land use and traditions.

So what exactly is the United Nations Declaration of Rights for Indigenous Peoples (UNDRIP); and why is it so special that John Horgan and the BCNDP government are implementing this province-wide program?

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UNDRIP is a set of declarations and provisions that set out as the minimum standards “for survival, dignity and well-being” of Indigenous peoples in every country. The UN Declaration recognizes that Indigenous peoples – like all peoples – have the right to self-determination. It calls on states to consult with Indigenous peoples and to cooperate and collaborate with them to “determine and develop priorities and strategies” for exercising the right to development (Article 23) and for use of their lands, territories, and resources (Article 32). It recognizes the right of Indigenous peoples to “own and control” their lands (Article 26) and requires the free, prior, and informed consent of Indigenous peoples for legislative or administrative decisions affecting their rights (Article 19), including for projects affecting their lands, territories, and resources (Article 32). The UN Declaration recognizes that confiscating, using or damaging the lands and territories of Indigenous peoples without consent is a violation of rights requiring redress (Article 28).

As such, the consent of free, prior, informed consent (FPIC) has been one of the most

Site C Dam contruction.
©Garth Lenz Site C Dam Construction

controversial aspects of UNDRIP throughout its negotiation and adoption process. Under UNDRIP, FPIC is a broad and inflexible concept, to “cooperate in good faith to obtain consent before adopting and implementing legislative or administrative measures that may affect them.” [Article 19] In fact, FPIC is referenced throughout UNDRIP, such as “prior to relocation of Indigenous Peoples” and “when dealing with storage or disposal of hazardous materials on the lands of Indigenous peoples.” UNDRIP also provides for redress with respect to indigenous lands and properties taken.

“The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), newly blessed by the federal Liberals after formal concerns lodged by the previous Conservative government, is one of the key dividing lines between the political parties. Its promise of free, prior and informed consent is the lens that the BC NDP would apply to every action taken by government – in step with Ottawa. However, the BC Liberals warn that UNDRIP could cripple the economy if consent turns out to be veto power.” [Globe and Mail, May 2017]

The concept of FPIC contained in UNDRIP is also problematic in the Canadian legal context because it does not refer to any sort of balancing mechanism, unlike s.35, to account for the rights of others, possibly suggesting that Aboriginal rights should always be interpreted to prevail over rights of others affected by it, individuals or groups. As presented in UNDRIP, FPIC could be interpreted as giving Aboriginal peoples a veto over legislative or administrative matters impacting them. This standard of consent is inconsistent with relevant Canadian jurisprudence.

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“In Canada, you are balancing individual rights versus collective rights, and [UNDRIP] has none of that…By signing on, you default to this document by saying that the only rights in play here are the rights of First Nations. And, of course in Canada, that’s inconsistent with our Constitution…[For example], in Canada,…you negotiate on [rights to lands and resources traditionally owned by indigenous peoples] …because [these rights] don’t trump all other rights in the country. You need also to consider the people who have sometimes also lived on those lands for two or three hundred years, and have hunted and fished alongside the First Nations.” ~ Minister of Aboriginal Affairs and Northern Developments

On November 12, 2010, Canada officially endorsed UNDRIP in a Statement of Support. However, in doing so, Canada reiterated its concerns with the “aspirational” non-binding document in the following way:

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These concerns are well known and remain. However, we have since listened to Aboriginal leaders who have urged Canada to endorse the Declaration and we have also learned from the experience of other countries. We are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework…This framework will continue to be the cornerstone of our efforts to promote and protect the rights of Aboriginal Canadians.”

“Out of Sight, Out of Mind”Amnesty International

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Daughters of the Vote

Remember Teena from Daughters of the Vote the courageous young woman who a great deal of passion about the plight of her people; her grandmothers, aunts, mothers, and sisters? Teena is from Skeena-Bulkley Valley in Northwestern BC, an area close to the Site C dam. She says, misogyny, sexism, racism, and discrimination against Indigenous cultures is a serious problem throughout Canada. For her people, indigenous women and girls, they face greater risks at the hands of their abusers bears a striking resemblance to the way we treat the earth and the destruction of the land. She made a plea; “we need to love our women, we need to stand up on behalf of our women, we need to protect our women and we need to do the same to our land – “a female entity” – Mother Earth.” This message goes out to both men and women in support of theirs sisters, mothers, Aunts and daughters. Perpetrators of abuse are committed by both men and women, especially if victims do not fit well within the “tribe” and most often sufferer from physical, emotional, sexual, financial [and the like] violence by other women.

canadian-womens-foundation-logoLet us first begin with some definitions. The United Nations defines violence against women and girls as: “Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” There are many classifications of abuse, anyone can suffer from either one or a combination of the following:

  • Physical Abuse: Slapping, choking, or punching her. Using hands or objects as weapons. Threatening her with a knife or gun. Committing murder.
  • Sexual Abuse: Using threats, intimidation, or physical force to force her into unwanted sexual acts.
  • Emotional or Verbal Abuse: Threatening to kill her (or to kill the children, other family members or pets), threatening to commit suicide, making humiliating or degrading comments about her body or behavior, forcing her to commit degrading acts, isolating her from friends or family, confining her to the house, destroying her possessions, and other actions designed to demean her or to restrict her freedom and independence.
  • Financial Abuse: Stealing or controlling her money or valuables (of particular concern to older women). Forcing her to work. Denying her the right to work.
  • Spiritual Abuse: Using her religious or spiritual beliefs to manipulate, dominate, and control her.
  • Criminal Harassment/Stalking: Following her or watching her in a persistent, malicious, and unwanted manner. Invading her privacy in a way that threatens her personal safety.

stolensisters-banner_600According to Canadian Women’s Foundation, violence against women happens in all cultures and religions, in all ethnic and racial communities, at every age, and in every income group. Within Canada, Aboriginal women and girls are especially at risk. Consider the fact that Aboriginal women are 2.5 times more likely to be victims of violence than non-Aboriginal women and that; Aboriginal women (First Nations, Inuit, and Métis) are six times more likely to be killed than non-Aboriginal women. According to the RCMP, between 1980 and 2012 in Canada, there were 1,181 cases reported of missing or murdered Aboriginal women. However, according to grassroots organizations and the Minister of the Status of Women, the number is much higher, closer to 4,000. The inquiry into MMIW commenced Spring 2016.

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In the report of its recent investigation into violence against Indigenous women and girls in BC, the Inter-American Commission on Human Rights (IACHR) stated that “special protection for the right of indigenous peoples to their lands and resources” is essential because the “economic, social, spiritual, and cultural development” of their communities as a whole depends on their relationship to the land. Persistent inequalities are, to a large degree, the legacy of colonial policies and practices that undermined Indigenous peoples; control over and ability to benefit from their traditional territories severely strained the social fabric of Indigenous communities, and subjected Indigenous women, men, and children to racism and discrimination in Canadian society.

At the same time, enormous work needs to be done to address and overcome the lasting harm of longstanding, deeply entrenched and institutionalized discrimination and oppression. Following an investigation on violence against Indigenous women in BC, the IACHR has called for action to address root causes of inequality and discrimination including improving women’s “enjoyment of economic, social and cultural rights” and public education to eliminate misogyny, racism and other prejudices to combat harmful stereotypes. It noted that prevention of violence requires specific attention to the social and economic situation of Indigenous women and girls. [Amnesty]

Consent – Sexual Assault

Sexual assaults account for about 33% of all crimes committed against Aboriginal women and 10% of all crimes committed against non-Aboriginal women.

The Canadian Women’s Foundation refers to sexual assault as the unwanted sexual activity, including touching and attacks, sexual harassment that can encompass discriminatory comments and behavior, and [unwanted] touch. Sexual harassment may take the form of jokes, threats, comments about sex, or discriminatory remarks about someone’s gender.

Gender-Gap-CartoonHyper-masculinity is the notion that masculinity is determined by strength and power – is damaging for men, women and everyone in between. It promotes violence and entitlement and devalues feeling and emotions. This creates a rationale for control, humiliation, intimidation, and abuse….“ both men and women receive many messages — both overt and covert — that it is natural for men to have more social power than women. But what it does, however, leads to the false belief that men have a right to control women, even violently, is common. This is not only wrong, it’s against the law. Couple those facts with the social tendency toward victim-blaming which reinforces the notion that abuse and assault are acceptable, which allows the perpetrator to defend and continue their actions.

Christy Jordan-Fenton, an educator living in Fort St. John told Amnesty International:

“one of the worst things that happened was the normalization of violence….Indigenous women left the schools and became involved in relationships where they felt comfortable – in situations that maintained violence because they didn’t know how else to live. That became their normal at an early age….Second, Indigenous boys were taught how awful and sinful women were. They had probably been abused, possibly sexually themselves. It made it difficult for those boys to become men who could support women, and for girls to become women who could uphold men, in traditional ways. The normal became violent patriarchal relationships. In some cases, when the survivors went back to their communities, they became perpetrators themselves.”

One of the ways to prevent sexual assault is by understanding consent and raising GR-20160917-SAG0801-309179977-AR-702x506awareness about its importance. Understanding consent plays a key role in understanding what constitutes sexual assault. Without consent, any sexual contact is sexual assault. Consent needs to be enthusiastic and ongoing. It is given with a clear “yes”, affirmative words, and positive body language. [emphasis added]

Canadian Tort Law says, “In the legal sense a “battery” is the intentional infliction of unlawful force of another person. Consent, expressed or implied, is a defense to battery. Failure to resist or protest is an indication of consent if a reasonable person who is aware of the consequences and capable of protest or resistance would voice his/her objection. However, the consent must be genuine; it must not be obtained by force or threat of force or be given under the influence of drugs.”

Like other forms of violence against women, sexual assault is rooted in gender inequality. It’s driven by the idea that the needs, feelings, or beliefs of one person/group are more correct or important than those of another person/group. Those who commit sexual assault perceive the victim as unequal. It’s important to consider that working toward gender equality benefits society as a whole. Rigid gender roles limit everyone, and they are a contributing factor to violence against women. Research indicates that gender equality is associated with more peaceful and stable societies, as well as overall economic growth.

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For First Nation and Metis people who spoke about their experiences working in the resource industry said their treatment varied enormously among companies at different work-sites. They described being made to feel unwelcome or even unsafe in some workplaces due to the attitudes of coworkers; this was especially acute for Indigenous women. “There’s an “old boys club” that controls hiring. After everything is in play, they invite the First Nations in for the shovel jobs, the grunt jobs.”

In our society, gender inequality is visible in many areas, including politics, religion, media, cultural norms, and the workplace. In fact, the Canadian Women’s Foundation commented on a 2015 study that suggests domestic violence can carry over into the workplace, threatening women’s ability to maintain economic independence. More than half (53%) of the respondents who had experienced domestic violence said that at least one type of abusive act happened at or near their workplace. Almost 40% of those who had experienced domestic abuse said it made it difficult for them to get to work and 8.5% said that they lost their jobs because of it”

Many women would never take a job that required them to stay in a labor camp. A highly stressful environment, physical isolation and the drug and alcohol abuse at some camps all create an environment that can be unsafe for women. “The kind of stuff we have to put up with as women, it would never be tolerated in an office,” she said. That’s the oil patch. Another told how supervisors often expected that female employees would be sexually available to them. A former industry worker told Amnesty International that there were expectations welders had if they had a female helper, of what those helpers were expected to do on the side.”

Racism in the oil patch is sometimes obvious but most of the time it is very subtle.359dd52d26ea65f1cff0d30c700b20c3 Probably because of this and other factors, there’s an assumption that if you’re an Aboriginal woman you’re an easy lay. Some oil patch men prey on Aboriginal women and I suspect this racial attitude plays an important part. Women spoke of how not only the job sites and labor camps, but also travel to and from work sites and camps, can be dangerous for female employees. Women spoke of how not only on the job sites and labor camps but also travel to and from work sites and camps, can be dangerous for female employees. Sometimes, particularly in winter, people cannot make the long commute on snow-covered or icy roads back home to Fort St. John and have to find a place to sleep. “And sometimes bad things happen when you crash,” one woman said, referring to sexual assaults that sometimes happen when female and male employees share insecure and informal accommodations.

According to a 2014 poll, 43% of women have been sexually harassed in their workplace.e327e88a7d127cb9f199e87b68a84f00--political-satire-political-cartoons Women were also more than twice as likely as men to say they had experienced unwanted sexual contact while at work (20% compared to 9%). Another reason women might not speak up about sexual assault or harassment is that the abuser is in a position of authority in their workplace, school, sports team, family, or community. Women may be afraid they won’t be believed and “that the voices of men with status will be believed over theirs”. Many fear that speaking up will jeopardize their goals, career or reputation.

One woman told Amnesty International of a co-worker who was sexually assaulted on a construction site and did not report the assault because she feared to lose her job. Another woman said that a co-worker who reported being sexually assaulted lost her job and could not find other work in the industry. One woman said that she did not report harassment to her supervisors because she was new to her job and did not want to jeopardize her reputation and future employment prospects. Of her male colleagues who witnessed her harassment, she said: “nobody stood up for me.”

Power Imbalances in the home – Barriers to women accessing high wage industry jobs in the northeast and low female workforce participation, combined with the overall high cost of living, can lead to women becoming highly dependent upon a male partner. This dependence can create an unequal power dynamic in relationships. Services providers in the region talked about “hyper-masculinity” and “hyper-femininity” in which harmful stereotypes of men as the breadwinner and women as the homemaker are played out in exaggerated extremes. Without access to social services, she cannot afford to leave her spouse. She described the situation as being an “economic hostage”.  One service provider told Amnesty International, “You’d be surprised how many women are just one argument with their spouse away from being on the streets. It can be a very precarious situation.”

Male partners may control how their wages are spent or use this power to exert pressureFemale managers still paid less than men. on their partner. If a woman leaves her male partner, she is at great risk of plunging into poverty. One woman told Amnesty International that her industry worker spouse comes home from camp and spends his pay bonuses on alcohol and at strip clubs. Their family income is such that if she left the relationship she would not qualify for social services. “It’s a terrible, terrible way to live for the women here,” said Connie Greyeyes. “They put up with a lot from their spouses. The ones that are in abusive relationships really don’t have much of an option. You stay, generally, because you can’t afford to. I’ve had people in my life who have men who I know who have said, ‘What’s she going to do? Nothing. She has to take it because I’m the one that makes the money.’”

One woman whose partner works in the resource industry said that when he returns from camp he wants to ‘blow off steam’, drink, visit strip clubs, and party with his friends. “How hard you work, how much you party, and how many toys you have – that’s oil patch culture,” she said “I don’t get hit, though I get a lot of emotional abuse. But some women get hit because their men hit the bar first. They come home, they come through the door and they explode.”

The Police and Legal System

Living in remote resource development areas where there are inadequate funding for healthy safety social nets and support services specifically puts indigenous women and girls in precarious positions often their safety and even their very lives are at risk — the most dangerous time for abused women is when she attempts to leave her abuser. [emphasis added] Physical and sexual abuse is often a common everyday occurrence to the point that it is normalized where women don’t even know the difference in terms of their rights to ‘life, liberty, and security’ as outlined in our Charter to even ask for the help that they need.

police shootingIn terms of [sexual] assault and battery; a person who intentionally commits a sexual act upon another person, even under the honestly held belief that the other person has consented, has committed an ‘intentional’ battery. Whether the belief was reasonable or unreasonable goes to the question of consent as a defense to the battery. Furthermore, the issue of consent goes not to the issue of whether the battery is “intentional” or “negligent”, but whether there is a defense to the intentional battery. But when trying to report such incidences to the proper authorities Indigenous woman and young girls have a particularly difficult time in getting their voices heard to receive the necessary protection and support.

Indigenous people seeking support from government services available in urban centers often face profound barriers because of continued racism in Canadian society. Public inquiries concluded that because of systemic racism within Canadian police services has often denied Indigenous peoples equal protection of the law and created a wide gulf of mistrust between police and Indigenous people in the communities they serve. Amnesty International reports that many police officers view Indigenous peoples not as individuals deserving their help and protection, but as a menace from which the rest of society must be protected, leading to a situation of Indigenous communities being “over-policed” but “under-protected”.

The UN Committee for the Elimination of Discrimination Against Women‘s (CEDAW)tape3.jpg.size.xxlarge.promo investigation into violence against Indigenous women and girls in Canada found “rampant” police bias “reflected in the use of demeaning or derogatory language towards aboriginal women and in stereotypical portrayals of aboriginal women as prostitutes, transient or runaways and of having high-risk lifestyles. The CEDAW investigation also found that police bias affected Indigenous women’s expectation of “whether the police would take their complaints seriously” and whether they would turn to the police for help.

Some women begin to feel re-victimized when they report sexual assault and go through the legal process: “Women often suffer secondary victimization when they turn to the police, social services, friends, or family if, as can happen, they are not believed, blamed or made to feel responsible for the violence, or subjected to callous or insensitive treatment, when police fail to take evidence, or when their cases are dropped arbitrarily. Women believe these threats for good reason—the most dangerous time for abused women is when she attempts to leave her abuser. Studies show that when women of color report violence, their experiences are taken less seriously within the criminal justice system.

  • In a Global/Ipsos Reid poll, the most common reason women gave for not reporting a sexual assault to the police was feeling young and powerless (56%);
  • Forty percent of respondents said they stayed silent because of the shame they felt;
  • 29% said they blamed themselves for the assault;
  • Others are worried that reporting would bring dishonor to their families, feared retaliation from their attacker, or said they didn’t have faith in the criminal justice system;
  • Of the survivors in the Global/Ipsos Reid poll who did report a sexual assault to police, 71% said the experience was negative.

“Institutional bias” was a critical factor leading police to “under-prioritize” the safety of women. The inquiry’s report stated that this “systemic bias operating in the missing women investigations was a manifestation of the broader patterns of systemic discrimination within Canadian society and was reinforced by the political and public indifference to the plight of marginalized female victims.

Amnesty International is unaware, however, of any examples of police engaging an independent review of the effectiveness of their efforts in changing police attitudes and behaviors towards Indigenous peoples.

Alcohol and Drug Problems

Amnesty was told how the free flow of money is often exploited by drug dealers, in host communities, who get women and men addicted to drugs and demand that drug debts be re-paid by selling drugs, sex or working as an enforcer – someone who forces other people to pay off their drug debts through threats and violence.

For example: A young Indigenous man who started working in the industry as a teenager told Amnesty International that he would return from camp with thousands of dollars in his pocket and did not know how to manage his wealth. He became involved in using and selling illicit drugs. “There are people who put money away, have a nice house, and stick with it. But there’s too few of them.” He told Amnesty. “I didn’t do drugs at first, but I bought a lot of nice stuff. You start drinking and this and that. It all gets out of hand very fast. That’s oil patch money for you. The young man eventually broke away from this lifestyle after serving a prison sentence for drug dealing. He has returned to work in the resource sector but said he stays away from drugs and alcohol and concentrates on work and his family.

Although there is not a specific reference to addiction in the definition of mental disorder, it would appear that broad definitions include addictions, since these are included in standard taxonomies of psychiatric disorders. It could also be argued that in specific definitions jurisdictions, people with alcohol or drug addictions are included in the definition of mental disorder. It has been argued that people with drug problems who get into trouble with the law, and those who are violent but do not have a treatable disorder, should not be involuntarily admitted to the health system  – it can do nothing for them and the admission is frequently counter-productive for the person and other patients.

There does not appear to be a need for any specific reference to alcohol and drug addiction in a specific definition of mental disorder unless the legislative intention is to include long-term rehabilitation treatment. The specific definition of mental disorder allows for a person to be admitted when in the grip of an acute delirium tremens or other symptoms that may lead to refusal of, or inability to, consent to voluntary treatment. While no Canadian jurisdiction has specific legislation for involuntary drug or alcohol treatment, there are divided views on the effectiveness of compulsory substance abuse treatment.

Medical Informed Consent

The process of applying the doctrine of informed consent has two steps:

  1. First, the court must decide whether sufficient information was provided to 'Human clinical trials start in six months. Sooner if we run out of mice.'the patient. Not only on the basis of what information was provided but whether the information was given in a manner that the patient understood. Questions of equality, even more so for indigenous peoples, intelligence and culture all come into play. If sufficient information was not given to the patient, then;
  2. The second stage of the process is to determine whether the patient would have agreed to the procedure, test or treatment had he or she had the information and whether any alternate procedure would have made any difference.

The legal test seems quite straightforward; inform the patient of the material risks of the treatment, any alternatives and their risks and the risks of doing nothing. Material includes probable risks and those risks that may only be possible but have grave consequences. However, the consent must be genuine; it must not be obtained by force or threat of force or be given under the influence of drugs.

Two kinds of situations can arise:

  1. First where both patient and doctor agree that certain information was not given to the patient;
  2. The second situation is when there is a disagreement about whether the patient was informed, especially true [for indigenous people] when there is a language barrier. [Medical Ethics, p. 110]

5175nR1pemL._SX331_BO1,204,203,200_To illustrate, the following is an excerpt from a book review entitled An Act of Genocide: Canada’s Coerced Sterilization of First Nations Women, by Karen Stote and the review, was conducted by Courtney Parker of Inter-contintental-cry.org. Despite we are talking about events that have transpired 50-60 years ago, you will soon see not very much has changed in the way of providing adequate health care services that are culturally sensitive to indigenous peoples especially in resource development areas where health care services are already scarce. The book reviews the work of Dr. Kim Anderson:

“According to Dr. Kim Anderson, First Nations women today are telling stories detailing events that took place in Canada as recently as the 1960’s and 1970’s. She went on to contextualize them in reference to a larger, more compounded strategy of genocide on Canada’s First Nations’ families. Rather systematic in approach, attacks against Indigenous’ family structure and even more specifically, “Indigenous mothering”, have been methodically inflicted going back to the first contact. Anderson painted a picture of deep socio-cultural wounds from strategic attacks that pierced the most sacred parts of Indigenous life; she described how this frightening history of oppression and abuse made the sterilization era all the more traumatic, in the context of Canada’s greater colonial grand strategy.

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Leilani Muir made history suing Alberta over forced sterilization. Photo: Leilani Muir is shown with her files that detail her sterilization at 14 years of age.

A universal legal definition of genocide was outlined in Articles II and III of the Convention on the Prevention and Punishment of Genocide in 1948. According to Article II, the two main elements of genocide are the ‘mental’ and the ‘physical’. The mental element considers the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”

The physical element is itemized into five parts: killing members of the aforementioned group, causing serious bodily or mental harm to group members of the aforementioned group; causing serious bodily or mental harm to group members; “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”; “imposing measures intended to prevent births within the group”; and, “forcibly transferring children of the group to another group.”

The practices of coerced and forced sterilizations of Indigenous women – and men – must also be understood in the context of both what appears to be this large-scale appeal for genocidal impunity, and as well within the violations of basic “consent”. The American Bar Association outlines a complex set of standards regarding a ward of the system’s ability to give consent in terms of biomedical practices and research. Indigenous peoples in some contexts – trapped in the cyclical patterns of settler violence and imperialistic intrusion upon their lives and culture – especially historically, were definitively unable to give “legal consent”, even when consent was sought – be it under the most pretentious of terms considering Indigenous peoples were veritable prisoners of war at this point in Canada’s history. Accordingly, an examination of historical documents by Stote revealed “problems: such as a lack of interpreters, … a lack of informed consent, [or] consent forms not being translated into the languages spoken by Indigenous peoples.” [emphasis added]

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Operation room for Leilani Muir. Raised by an abusive mother, wrongly diagnosed as a “moron,” then subjected to the forced removal of her fallopian tubes, Leilani O’Malley endured a life of pain, stigma and humiliation but eventually regained her dignity in a landmark lawsuit that exposed a dark chapter in Alberta’s history.

Considering the Catholic Church’s position on birth control, it might be assumed that their own actions in relation to Canada’s First Nations during this period would steer far and wide from the government’s unholy interventionism [of giving birth control pills to reduce the population and thus their monetary dependency on the government]. It is therefore especially confusing that they actually worked in collusion with the Canadian government in terms of these methodical strategies to wipe Canada’s First Nations off the face of the planet. This unholy alliance is perhaps most evident in Canada’s long-running policy of forcibly removing Indigenous children from their homes and families, and imprisoning them in residential Christian schools funded by the state:

The Canadian government pursued this policy of cultural genocide because it wished to divest itself of its legal and financial obligations to Aboriginal people and gain control over their lands and resources. If every Aboriginal person had been ‘absorbed into the body politic’, there would be no reserves, no treaties, and no Aboriginal rights.

According to Anderson, this is what makes Stote’s ongoing work so important. She also points to the need to collect the stories of Canada’s First Nation eugenics-era survivors, while they are still alive. She may even take on the latter task herself, having had a dream about it. Anderson further contextualized Canada’s history of sterilizing its First Nations women as being spawned from this broader eugenics movement that was born out of the writings of Francis Galton, cousin of Charles Darwin, who coined the term ‘eugenics’ in 1883. It was a movement, she points out, that Indigenous peoples were constantly targeted by.

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“What made Leilani important to Canadian history was that she was unwilling to have any settlements or court hearings to be secret or confidential. So Leilani’s gift to other eugenics survivors and to the history of Alberta was that she made her case public in the face of intense scrutiny.

Seven years before Nazi Germany passed the Nuremburg Race Laws that outlawed German Jews from having sexual or marital relations with anyone of German or mixed ancestry, Alberta passed ‘The Sexual Sterilization Act’ in 1928. The legislation outlined the conditions and procedures for sterilizing individuals who were deemed to have ‘undesirable traits.’ Five years later, in 1933, British Columbia passed a law of its own, ‘An Act Respecting Sexual Sterilization’. Like its eastern counterpart, British Columbia’s legislation outlined the who, the where, and the how in regards to sterilization of those who were considered wards of the state and possessed some sort of ‘undesirable trait’.

Even amidst the height of these draconian practices, most of the time the need for actual consent was at least legally recognized. In other words, it is possible that B.C. was breaking its own laws in regards to methods used to forcibly sterilize Canadian First Nations women. Documented survivor counts are accumulating among Canada’s First Nations community as well. According to Stote: “We know (according to other researchers, i.e., Christian, 1974 and Grekul, 2004) Indigenous peoples were targeted under Alberta’s eugenic legislation (1928-1972), making up 6-8% of those sterilized overall, despite only being about 3% of the population; although in later years (1969-1972), they made up over 25% of those sterilized.”

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“Nobody has the right to play God with other people’s lives. Nobody,” she told the court. She won her litigation in 1996 and was awarded $740,000, opening the door to financial settlements for hundreds of other survivors.

Stote’s own research – reviewing the first of three federal files she searched for all – uncovered sterilizations performed on Indigenous women at 14 different federally operated Indian Hospitals across Canada. Another set documented sterilizations on First Nations women from 32 different northern settlements; and, a third set detailed the experiences of women from the Baffin, Keewatin, Mackenzie, and Inuvik zones.”

While some are tasked to document grave errors of the past, a growing body of studies and reports in Canada and worldwide are tasked today to draw links between intensive resource development and negative social impacts in host communities. Despite the gap in time, it is quite apparent that themes of inadequate health care services for indigenous people are still prevalent down to this day.


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After her court victory, she changed her family name to O’Malley, to mark a break with her past, Ms. Fairbrother said. “It was a rebirth for her.”

The woman once labeled as a mentally defective troublemaker was a witty, articulate public speaker.Nevertheless, Ms. O’Malley kept busy as a human-rights advocate and found time to run as a New Democratic Party candidate for a seat in the Alberta legislature.

She also helped with the creation of the Living Archives on Eugenics in Western Canada, a comprehensive academic records collection on the policy that had marked her life.                 [Source: Globe and Mail]


This information is not new to local residents and service providers in Northern BC. Over the years there have been a number of studies authored by health and provincial agencies and front-line service providers all pointing to a need to address the negative social impacts, for indigenous people, of resource development in host communities. Increased economic activities in these areas drive up the cost of living for food, housing, and transportation as these transient/seasonal workers are paid healthy amounts for salaries while the locals themselves normally have to resort to [just above] minimum wage jobs to support themselves and their families.

Clearly, there is a need for specific health care services in these remote areas that cannature provide proper support and care that takes into account the unique lifestyles of indigenous people that also provides services in their preferred languages in order for them to make informed decisions about their health not only for themselves but for their families. This is what it means for self-determination, self-government, making informed decisions and consent to treatments and how a community can be brought together to facilitate this two-way process. Personal safety and security for indigenous women and girls promote improved health in mind (psychiatric), body (medical) and soul (earth-based spirituality/having access to their traditional land for healing), combined with adequate health care services provided by non-indigenous facilities and providers.


References:

Terms of Coexistence- Indigenous Peoples and Canadian Law, Sebastian Grammond, Carswell, 2013, Chapter II – Indigenous Peoples and the Law Throughout History, Section 3.4 – The Substance of International Indigenous Rights, p. 163

Aboriginal Law: Commentary & Analysis, Thomas Isaac, Purich Publishing, 2012, Page 64-66

Medical Ethics: The State of the Law, C. Adele Kent, Lexis Nexis Butterworth, 2005, p.110

The Canadian Law of Consent to Treatment, 3rd Edition, Lorne E. Rozovsky, LexisNexis Butterworth, 2003

Canadian Mental Health Law & Policy, p.112

Tort Law, 5th Edition, KLAR, Carswell 2012, (Assault p.43)

The Law of Human Experimentation, David T. Marshall, False Imprisonment (Page 40-41)

Canadian Tort Law, Cases, Notes & Materials, 14th Edition, Allen M. Linden, Lewis N. Klar, Bruce Feldthusen, Lexis Nexis Buttersworth, 2014

An Act of Genocide: Canada’s Coerced Sterilization of First Nations Women, Courtney Parker, December 17, 2015