CEDAW/C/81/D/68/2014 behalf of his daughter and son, that they are all victims of violations in their capacity as descendants of an indigenous woman who lost her indigenous status and the right to determine her own identity, owing to gender inequalities in the Indian Act, which was unilaterally established by the State party. In that regard, the alleged violations stem from the gender of the author’s grandmother and would not have existed had the author’s indigenous status originated from his grandfather. The Committee notes that the author claims that he and his children are victims of the consequences of genderbased discrimination originally perpetuated against his grandmother. The Committee observes that, by having posthumously granted the author’s grandmother, Ms. Johnson, adjusted registration status under new paragraph 6 (1) (a.1), the State party has recognized the discrimination suffered by Ms. Johnson herself. The Committee is of the view that the historical gender-based discrimination against Ms. Johnson still affects her descendants, taking into consideration that they allege that they cannot enjoy their fundamental rights to be freely recognized as indigenous people and cannot freely transmit their status to their children. In that regard, the Committee is of the view that the descendants, women and men (such as the author and his children), of indigenous women who lost their indigenous status and the right to determine their own identity owing to gender inequalities unilaterally established by the State party, qualify as direct victims under the Optional Protocol, given that the harm invoked is a direct result of the gender-based discrimination against their matrilineal ascendants. 15 The Committee recalls that the transgenerational harm of some human rights violations perpetrated against women has been analysed in a joint statement of the Committee and the Committee on the Rights of the Child. 16 In the light of the foregoing, the Committee on the Elimination of Discrimination against Women considers that it is not precluded, by virtue of the requirements of article 2 of the Optional Protocol, from considering the present communication, not only in relation to the author’s daughter, I.D.M., but also in relation to the author and his son. 17.4 The Committee takes note of the State party’s initial argument that the communication should be declared inadmissible for lack of exhaustion of domestic remedies, given that the author’s complaint lodged in 2008 under the Canadian Human Rights Act was still pending. In 2015, the Canadian Human Rights Commission had applied for judicial review of the ruling of the Canadian Human Rights Tribunal, according to which it could not hear a complaint concerning the provisions of the Indian Act. The Committee observes that the Federal Court subsequently dismissed the judicial review, as did the Federal C ourt of Appeal, and that, in 2017, the Supreme Court of Canada granted leave to appeal but finally declined to rule on the case in 2018. The Committee notes that it took 10 years for the author’s complaint to reach the Supreme Court, which ultimately decli ned to rule on the case. 17.5 The Committee takes note of the State party’s claim that the author did not exhaust domestic remedies because he failed to also bring a constitutional claim of discrimination under the Canadian Charter of Rights and Freedoms, having the possibility of seeking pro bono legal representation or donations to fund his defence or to apply to a legal aid programme or the Court Challenges Program. Nonetheless, __________________ 15 16 22-03658 See, for example, International Criminal Court, Prosecutor v. Bosco Ntaganda, case No. ICC01/04-02/06, Reparations Order of 8 March 2021, para. 122: “children born out of rape and sexual slavery may qualify as direct victims, as the harm they suffered is a direct result of the commission of the crimes”; para. 123: “The Chamber notes that recognising children born out of rape and sexual slavery as direct rather than indirect victims is an acknowledgment of the particular harm they suffered and may constitute an adequate measure of satisfaction, in addition to other forms of reparations that may be awarded to them.” Committee on the Elimination of Discrimination against Women and Committee on the Rights of the Child, joint statement on ensuring prevention, protection and assistance for children born of conflict-related rape and for their mothers. See also CRC/C/OPAC/DZA/CO/1, para. 23. 13/19