OPINION
Monday, March 9, 2015 7
Missing, Murdered, and Forgotten
Canada’s Aboriginal Women
esther mendelsohn › staff writer
A
dom e st ic v iol e nc e issue: that is how
Aboriginal Affairs Minister Bernard Valcourt
characterized the crisis of missing and
murdered Aboriginal women. Implicit in
this characterization is that this is an Aboriginal
problem of which Canadians and the Canadian government can wash their hands. The very premise is
fallacious, and the consequences could not be more
dangerous.
Unlike non-Aboriginal women, Aboriginal
women are just as likely to be assaulted or sexually
assaulted by a stranger as by an acquaintance, partner, or family member. They are three times more
likely than non-Aboriginal women to be sexually
assaulted, and almost three times as likely to experience some form of violence.
Aboriginal women represent four percent of the
overall Canadian population, yet they account for
sixteen percent of the murder victims in Canada
each year. With 1811 Aboriginal women missing or
murdered already, at what point will we be prepared
to act?
It is shameful that the government has not
reacted more swiftly and decisively, despite the
urging of dozens of NGOs and stakeholder groups.
Indeed, even the roundtable held on February 28
resulted in little more than hand-wringing.
The government has a constitutionally-enshrined
fiduciary duty towards Aboriginal people, and the
case law suggests that this duty can extend beyond
land claims. Moreover, while fiduciary duties normally arise only where action has been taken, other
cases suggest that, generally, a duty and its correlative obligations can arise from the decision not to
act. Therefore, in neglecting to act, the government,
it can be argued, is in breach of its fiduciary duty.
Yet another suggestion that the government must
act comes from tort law. While true government
policy will usually be exempt from judicial scrutiny,
the operation of a policy does not enjoy the same
protection. It may be politically costly and difficult
to acknowledge the wrongs as well as make concrete
commitments, but it is morally wrong not to do so.
By denying its own complicity and leaving the
matter solely in the hands of band councils who
scarcely have the resources to deal with the problem, the federal government is making a statement
about the value it attaches to the lives of Aboriginal
women. To be clear, Aboriginal communities must
have a voice in the matter and should be deferred
to, but the government and its agents must also be
at the table—and we should not have to drag them
there.
Interestingly, the government’s very reason for
rejecting the need for an inquiry evinces its urgency.
The government cites the dozens of studies already
conducted and claims that now is the time for
action, not for further inquiries. However, with little
action and nearly all the recommendations from the
earlier studies left unimplemented, that excuse rings
hollow.
Among the recommendations not implemented
is better transportation along a stretch of road in
British Columbia referred to as the Highway of Tears,
where many Aboriginal women have been taken.
The highway remains a constant reminder of the
system’s failure to address this pressing issue.
Aboriginal communities know all too well why
their women are murdered or go missing. They do
not need an inquiry; we do. The rest of Canadian
society has yet to understand the roots of the problem and what can be done to solve it. The solution
will necessitate
political and societal will, and yes,
money. It w i l l
also require us all
to ask some very
u ncom for t able
questions.
Aboriginal women are born at risk. The abject
poverty which runs rampant in many Aboriginal
communities and is neglected by the federal government allows these cases to float under the radar.
Poverty, a dearth of adequate resources and services,
discrimination, and the ongoing legacy of colonialism all collude to deprive Aboriginal women of their
security.
Aboriginal women make easy prey for predators
like Robert Pickton, whose name sends a chill up my
spine as I write it. These women are often escaping
abuse or are forced by circumstance into “high risk”
lifestyles in order to survive. One should not, however, jump to the conclusion that all or even most of
these women were sex workers or addicted to alcohol or drugs. Helen Betty Osborne was studying to
be a teacher; she was sexually assaulted and murdered by four white men, only one of whom was
brought to justice sixteen years after the fact.
More importantly, their “lifestyles” are irrelevant. These women were human beings, and nothing can justify—legally or morally—what was done
to them. Their assailants tried to rob them of their
humanity, and every day without resolute action is
another day of complicity.
As future lawyers, we must examine the role
the justice system has played in perpetuating the
problem, and the role it can play in its solution.
Stereotypes of Aboriginal women are alive and
well in our jurisprudence; Justice Michael Bourassa
characterized sexual assault against Aboriginal
women as d i fferent from cases
involving white
women because
A b or i g i n a l
women were supposed ly more
likely to be “drunk or passed out,” and the perpetrator could not be blamed for “help[ing] himself”
to a “pair of hips.” Relying on prejudicial notions
of Aboriginal women (and women in gener