The Year in Review
Full Human Rights Protection for Canada’s First Nations
New issues, new challenges
An important recent change to the Canadian Human Rights Act was a major focus of the Canadian Human Rights Commission in 2011.
As of this year, people governed by the Indian Act have the same rights to freedom from discrimination as everyone else in Canada. While one aspect of this change took effect immediately in 2008, when Parliament amended the Canadian Human Rights Act, a three-year transition period meant it did not take full effect until June 18, 2011.
When the Canadian Human Rights Act first became law in 1977, matters under the Indian Act were specifically excluded. This meant that the Canadian Human Rights Commission could not accept complaints from anyone who felt that they had been discriminated against in decisions or actions on many matters affecting their daily lives.
As a result, over 700,000 people, principally residents of First Nations, did not have the same access to human rights protections as everyone else in Canada. For example, if someone living on reserve believed they were unfairly prevented from participating in their community election, that person could not use the Canadian Human Rights Act to make his or her claim since First Nations elections are governed by the Indian Act.
When Parliament broadened the Canadian Human Rights Act in 2008 to include matters under the Indian Act, it gave First Nations governments three years to adjust. Complaints regarding the Government of Canada could be brought immediately. But people could only begin filing discrimination complaints against First Nations governments as of June 18, 2011.
This change to the Canadian Human Rights Act was overdue. In view of its significance, the Commission held a news conference to announce the full coming into effect of the Canadian Human Rights Act, on June 17, 2011. The news conference, broadcast live on the Internet from the National Press Theatre in Ottawa, generated over 150 stories in national and regional media, including television, print, radio, and online.
Since June 18, 2011, the Commission has seen a rise in the number of complaints from First Nations regarding matters under the Indian Act. Issues raised in these complaints are complex and deal with a new area of law. Many will be precedent-setting.
Building awareness
For the past three years, the Commission’s National Aboriginal Initiative has been working with First Nations and other Aboriginal stakeholders to raise awareness about the Canadian Human Rights Act and help communities adjust to their new obligations and responsibilities. The National Aboriginal Initiative team has been supported by every branch at the Commission. Altogether, Commission staff have participated in more than 130 meetings, conferences and other events with First Nations and other Aboriginal representatives.
During these meetings, the Commission learned that First Nations communities knew very little about the Canadian Human Rights Act. In some cases, people mistakenly believed they had no previous protection under the Canadian Human Rights Act at all. People also did not understand what this change would mean for over 600 First Nations governments or the people they serve.
Throughout 2011, the Commission continued working to raise awareness. Extending a rare honour and privilege to a non-Aboriginal person, the Assembly of First Nations invited Acting Chief Commissioner David Langtry to address its Annual General Assembly in Moncton in July. Later that summer, Acting Chief Commissioner Langtry addressed the Native Women’s Association of Canada Annual General Assembly.
Commission staff made important contributions to this work. As an example, National Aboriginal Initiative Director, Sherri Helgason, participated in the annual conference of the Indigenous Bar Association as well as a special one-day meeting of the Federation of Saskatchewan Indian Nations to discuss the impacts of this change on individuals and governments.
Other activities included:
- Preparation, publication and distribution of a guide to the Canadian Human Rights Act, with specific examples relevant to a First Nations context. With close to 10,000 copies in circulation, the guide has become one of the most widely distributed documents in the history of the Commission;
- Preparation, publication and distribution of a human rights handbook with examples designed to help First Nations governments and employers address human rights issues;
- Launching the do you know your rights? website (doyouknowyourrights.ca) to provide individuals and organizations accessible information on federal human rights protections; and
- Participation in webcasts for First Nations governments, in partnership with the Assembly of First Nations, to discuss their rights and responsibilities under the Act.
Challenges ahead
In June 2011, the Commission tabled a Special Report to Parliament entitled: Now a Matter of Rights: Extending Full Human Rights Protection to First Nations. The Report was informed by the Commission’s insights from three years of dialogue with First Nations and other Aboriginal representatives. It outlines many of the challenges ahead.
The report identifies a need for adequate resourcing of First Nations governments so they can meet their obligations under the Canadian Human Rights Act. First Nations face the task of sharing information about people’s rights and responsibilities, finding ways to deal with complaints in the community and addressing complex issues like accessibility of buildings.
One challenge in particular is that this is a new area of law. Important issues of interpretation will inevitably arise. A complaint brought by the First Nations Child and Family Caring Society is one critical test that is before the court. This was a complaint that the Commission had referred to the Canadian Human Rights Tribunal. The complaint alleges that the formula for funding First Nations family service organizations discriminates against these agencies on the basis of race. At the Tribunal, the Commission intervened on behalf of the public interest. The complaint was opposed by the Attorney General of Canada. When the Tribunal dismissed the complaint, the Commission applied for judicial review by the Federal Court. A decision is expected in 2012.
The Commission believes that if the Attorney General’s interpretation of the Canadian Human Rights Act prevails, it could nullify the intent of Parliament when it voted to give people living under the Indian Act the right to live free from discrimination. People governed by the Indian Act would have no recourse in many instances of discriminatory treatment affecting their daily lives.
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The origins of an injustice When the Canadian Human Rights Act was drafted in 1977, the federal government was in discussions with First Nations on reforming the Indian Act. During these discussions, the government promised to make no changes to the Indian Act before full consultations were completed. The government believed that the proposed human rights legislation had the potential to strike down provisions of the Indian Act, thereby changing it. In order to uphold their commitment to First Nations, legislators included a section in the Canadian Human Rights Act that explicitly prevented people from filing complaints that had to do with the Indian Act. It was meant to be a temporary measure. Although there were a number of attempts to remove the exemption from the legislation, the section was not fully repealed until 2011. |
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Changes in the law should help aboriginal youth by David Langtry, Acting Chief Commissioner, As published in the Globe and Mail on June 24, 2011. In convocation ceremonies this month, beaming young faces reflect Canada’s rich demographic fabric. With one exception: aboriginal youth. Aboriginal kids on reserves are six times less likely to graduate from high school than the rest of our population. There’s a better chance of ending up in jail. I believe the Canadian Human Rights Act can and should be pivotal in changing this. The Act was created to end racial and other discrimination once commonplace in our society. Excluding people living under the Indian Act from this law since 1977 was an injustice. That’s now changed. As of this month, people governed by the Indian Act are entitled to the same human-rights protections as everyone else. Chronic disparities in funding for health, education and social services for more than 700,000 First Nations people are the product of entrenched discriminatory policies. But the discriminatory thrust of such policies can be challenged now, under the Canadian Human Rights Act. Disparities in essential services to First Nations people are well documented. In her final report as Auditor-General, Sheila Fraser again noted her profound disappointment that, “despite federal action in response to our recommendations over the years, a disproportionate number of first nations people still lack the most basic services that other Canadians take for granted. In a country as rich as Canada, this disparity is unacceptable.†The Canada-First Nations Joint Action Plan, recently announced by the federal government and native leaders, promises new thinking. Since human-rights law is something new in the equation, it could help break with the past. Now we will see whether our human-rights law has the same power to bring positive change to natives as it has to the rest of society. As of June 18, people can file complaints against First Nations governments as well as the federal government if they believe they have been discriminated against in relation to services that affect their daily lives. This should translate into an onus on First Nations governments to ensure better accommodation of people with disabilities, for example, or to provide recourse for those denied the right to vote in band council elections on the basis of race, gender, sexual orientation or family status. Similarly, it puts an onus on the federal government to ensure that funding for essential services such as health, education and child welfare is equal to the levels of funding available off reserve. On this issue hinges the question of whether the Canadian Human Rights Act can be a catalyst for real change. It’s all coming to a head in a case before the courts. The First Nations Child and Family Caring Society of Canada and the Assembly of First Nations maintain that disparities in funding for child welfare services, which the federal government is required to provide on reserves, constitute discriminatory treatment. Simply put, the federal government puts up less money than the provinces and territories; on reserves, this translates into higher rates of foster care and poorer prospects of surviving a troubled childhood. Ottawa disagrees. The Attorney-General of Canada says the Canadian Human Rights Act does not apply to federal government funding for services. The Canadian Human Rights Commission opposes such a limitation on our jurisdiction, and we are saying so in court. If the Attorney-General succeeds, the federal government would get sweeping immunity from human rights law. Complaints about access to clean water, health and education would be turned away before they are even heard. This is critical for aboriginal youth – close to half a million strong, the fastest growing segment of Canada’s population. Even when a young aboriginal person can get into university, there’s often no money for it. Not only is this unfair and discriminatory, it’s a collective failure that may ultimately hurt Canada’s competitive advantage in tomorrow’s global economy. No one will forgive our failure. The Canadian Human Rights Act can make a difference for aboriginal youth, if we don’t stand in the way. |
Human Rights Accountability in National Security Practices
The human rights implications of national security measures have been the focus of research and investigative work by the Commission over the past decade. In November 2011, the Commission tabled a Special Report to Parliament: Human Rights Accountability in National Security Practices.
Ten years after the 9/11 attacks, national security and human rights continue to be a matter of public debate. The media regularly tell stories of air travellers who have experienced discrimination during security screening because of their race, religion or disability.
At the heart of the debate is the question of how to ensure our collective safety while respecting the rights of individuals.
The Supreme Court of Canada has confirmed that Canadian security organizations have two equally important responsibilities. The first is to ensure the safety of people in Canada. The second is to ensure that security measures do not discriminate against the people they are designed to protect.
A decade of research
Over the past ten years, the Commission has conducted extensive research on human rights and national security. It has consulted with the Canadian agencies responsible for national security. And it has analyzed court cases, inquiries into individual experiences, and the work of Parliamentary and Senate Committees.
The Commission learned that many organizations have policies designed to prevent discrimination, but few can demonstrate whether or not their policies are working. For example, national security institutions have stated that they do not use racial or ethnic profiling in their work. However, without methods to monitor and prove that profiling is not taking place, organizations will always be vulnerable to criticism. Good intentions alone will not be sufficient to defend their record.
Proposing solutions
In 2011, the Commission took two steps to address this issue. To begin with, it tabled a Special Report to Parliament to inform Parliamentarians of these operational challenges and provide recommendations.
The Commission’s Special Report to Parliament argues that governance and accountability frameworks are necessary to ensure that national security institutions consider human rights in every day operations, and that these are currently lacking. It explains that without an accountability structure, national security institutions have no credible way to show that they are consistently adhering to Canadian human rights standards.
The Report recommends that Parliament adopt legislation that requires national security institutions to track human rights-related performance. It also recommends that those institutions share their findings with the public.
As an additional step, the Commission collaborated with organizations responsible for national security to develop a guide entitled The Human Rights Impact Assessment. This guide will help organizations ensure that security standards, policies, and practices are both effective and respectful of human rights.
The cooperation that the Commission received from its partners in developing the guide demonstrates a shared respect for human rights and a shared commitment to find workable solutions to operational challenges.
The Commission believes that these approaches are necessary because Canadians expect human rights to be protected in the course of protecting national security. This expectation is anchored in the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and government policies.
Adherence to human rights should be reportable for all national security organizations. This would establish a consistent way for these institutions to document their performance and share that information with Canadians, thereby furthering their trust.
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Travellers must believe security treats them equally By David Langtry, Acting Chief Commissioner, As published in the Calgary Herald on December 1, 2011. As Canada heads into the busiest travel season of the year, let’s spare a thought for the thousands of people working hard to ensure our safety. Our holidays are their busiest time. While multiple organizations are involved in national security, nobody has as much direct contact with the public as airport screening officers. Theirs is not an easy task. The sheer volume of travellers screened in Canadian airports – about 50 million a year, schlepping more than 60 million pieces of baggage – is staggering. Of course, we all know that harried passengers can be a challenge. The constant evolution of security threats is an even greater one. Serious incidents, though rare, trigger sweeping, global responses. Plots to detonate explosives hidden in underwear or smuggled on board as liquids force security organizations to rethink procedures, update technology, rewrite rules. Every new threat seems to lead to a measure that is more intrusive. Travellers accept these impositions in the belief that it’s for the greater good, and what’s more, we’re all in the same boat. But do we really know if we’re all being treated the same? How can we be sure? Some members of Canada’s visible minority communities have their doubts. They believe travellers are singled out solely because of their race or ethnicity. Visible minority groups shared their concerns with the United Nations independent expert on minority issues during a mission to Canada two years ago. Yet all the organizations involved in national security are bound by the Canadian Human Rights Act, which prohibits discriminatory practices such as racial profiling. Security organizations are cognizant of their responsibilities and obligations under the act. Most have policies that reflect a commitment to balance respect for human rights with effective national security measures. But public confidence depends on the extent to which organizations can demonstrate that well-intentioned policies are actually put into practice. Make no mistake, public confidence is critical. It’s easier to enforce laws and other measures that keep us safe when people support them. Support depends on trust that rules are fairly and consistently applied. Over the past decade, the Canadian Human Rights Commission has conducted extensive research on national security and human rights. We have looked at the practices of organizations that provide national security to Canadians. We learned that while many security organizations have policies to prevent discriminatory practices, few can demonstrate with hard numbers and cold facts that their policies are followed. This is because there are no hard numbers. National security organizations are not required to collect data and account publicly for how they meet their human rights obligations. Without monitoring to transparently demonstrate that their human rights policies are effective, security organizations are vulnerable to criticism and the potential loss of public trust. The commission’s research has been distilled into a special report to Parliament, tabled on Monday. In it, the commission recommends that Parliament put accountability mechanisms into law. Parliament should require national security organizations to track their human rights performance and report back on it to the Canadian public. Effective security measures and respect for human rights are totally compatible. Indeed, one reinforces the other. To demonstrate this, the commission collaborated with a number of national security organizations to develop a tool kit for tracking human rights performance and preventing discrimination. We call it the Human Rights Impact Assessment for Security Measures, and it’s a companion piece to our special report, both of which are available on our website. There is a clear willingness on the part of national security organizations to ensure that Canadians can be confident in how they meet human rights obligations. All that is lacking is a legislated requirement to introduce governance and accountability frameworks to show that good intentions are translated into action. Such an enhancement to public policy would bolster public trust. If the people and organizations that work hard to ensure our safety are equally effective in respecting human rights, let’s ensure that Canadians know that and credit them for it. |