Now a Matter of Rights - Part 1 | Canadian Human Rights Commission

Executive Summary

On June 18, 2011, people affected by the Indian Act will have full access to Canadian human rights law for the first time in history.

In June 2008, Parliament repealed section 67 of the Canadian Human Rights Act. For over three decades, this section prevented people from filing discrimination complaints resulting from the application of the Indian Act. This meant that discrimination complaints about the Indian Act could not be made against the Government of Canada or First Nations governments. The Canadian Human Rights Commission (the Commission) had repeatedly called for this change.

When this change was made in 2008, people could immediately make discrimination complaints about the Indian Act against the Government of Canada. First Nations governments were given a three-year transition period to prepare for the change. June 18, 2011, marks the end of the transition period.

The purpose of this special report is to update Members of Parliament, First Nations governments, Aboriginal people and other Canadians on the steps the Commission has taken over the past thirty-six months to prepare for full repeal.

The Commission’s National Aboriginal Initiative has reached out to First Nations governments and other Aboriginal organizations to offer its expertise, and assist in developing their capacity to identify and address human rights issues. Through dialogue with First Nations and other Aboriginal stakeholders, the Commission has identified five principles that have guided its work and that it views as essential to successfully implementing the repeal of section 67:

Respect for self-government, particularly through the development of appropriate First Nations community-based dispute resolution processes.
Respect for Aboriginal and treaty rights, and giving due regard to First Nations legal traditions and customary laws.
Discrimination prevention through the promotion and protection of human rights, including education and training to help people understand their rights and responsibilities.
Freedom from discrimination on grounds such as sex, age, family status and disability, consistent with section 2 of the Canadian Human Rights Act.
Adequate resources for First Nations governments to fulfill their obligations under the Canadian Human Rights Act and increase their capacity to develop the necessary human rights protection policies and processes.

The activities outlined in this special report illustrate the many challenges to ensuring full access to human rights protection for Aboriginal people. These challenges include:

the requirement to balance the rights of the community with the rights of individuals;
the need to provide human rights redress in a manner that respects Aboriginal peoples’ inherent right to self-government;
the need to increase awareness among Aboriginal people and First Nations governments of human rights legislation and implement community-based dispute resolution processes;
the importance of ensuring that First Nations human rights systems are open and accessible to all; and
First Nations governments’ need for adequate resources to ensure their communities and organizations comply with the Canadian Human Rights Act.

These challenges exist within an already complex environment. Many of the complaints brought against the Government of Canada or First Nations governments will be the first of their kind and may require clarification from the courts.

The Commission will continue to fulfill its mandate to promote and protect the human rights of people throughout Canada. This includes engagement with First Nations and other Aboriginal stakeholders, and relevant Government of Canada departments. This year the Commission will also be conducting a study to identify inherent discrimination in the Indian Act.

Introduction

For more than 30 years, section 67 of the Canadian Human Rights Act prevented people from filing discrimination complaints resulting from the application of the Indian Act. During this time, complaints on those matters could not be brought against the Government of Canada or First Nations governments. The Canadian Human Rights Commission called for the repeal of the section in two of its Special Reports, A Matter of Rights (2005) and Still a Matter of Rights (2008).

Section 67 was repealed on June 18, 2008, when Parliament passed Bill Câ€“21¹ .The Canadian Human Rights Act was immediately applicable to Indian Act complaints against the Government of Canada. The Bill included a three-year transition period before complaints could be filed against First Nations governments and related institutions. June 2011 marks the end of the transition period.

The activities outlined in this special report illustrate the many challenges to ensuring full access to human rights protection for Aboriginal people. These challenges include:

the requirement to balance the rights of the community with the rights of individuals;
the need to provide human rights redress in a manner that respects self-government;
the importance of ensuring that First Nations human rights systems are open and accessible to all; and
First Nations governments’ need for adequate resources to ensure their communities and organizations comply with the Canadian Human Rights Act.

The Report also sets out what the Commission has heard and learned over the past three years and how its ongoing work has been influenced as a result.

The repeal of section 67 is an important milestone on the road to equality for all Aboriginal people. However, the repeal will not resolve the multitude of social, economic, lands rights and political issues confronting First Nations and other Aboriginal peoples. Many of these issues, though clearly human rights matters, fall outside the scope of the Canadian Human Rights Act.

The Attorney General of Canada is also challenging the Canadian Human Rights Act’s definition of a â€œservice.â€ If this challenge is successful it could seriously undermine First Nations peoples’ ability to file discrimination complaints in relation to the funding of services to First Nations communities.

In the long run, it will be up to First Nations governments, Aboriginal peoples, legislatures, the courts and civil society to make the kind of fundamental changes necessary to ensure Aboriginal peoples achieve the full equality they have long been denied.

The Readiness Review
Bill C-21 provided that the Government of Canada undertake "a study to identify the extent of the preparation, capacity and fiscal and human resources that will be required in order for First Nations communities and organizations to comply with the Canadian Human Rights Act"³. This study is to be carried out in cooperation with the appropriate Aboriginal organizations and reported to Parliament no later than June 18, 2011.

Bill C-21 did not require that the Commission be involved in the statutory readiness review. The Commission is tabling this report under its own authority pursuant to section 61(2) of the Canadian Human Rights Act, which states:

(2) The Commission may, at any time, prepare and submit to Parliament a special report referring to and commenting on any matter within the scope of its powers, duties and functions if, in its opinion, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for submission of its next annual report under subsection (1).

The Commission hopes that this report, along with the Government of Canada’s report, facilitates greater understanding about the repeal and its implementation over the past three years.

National Aboriginal Initiative
The Canadian Human Rights Commission’s National Aboriginal Initiative is responsible for leading the Commission’s activities relating to implementing the repeal of section 67.The purpose of the National Aboriginal Initiative is to ensure that the Commission, First Nations governments, Aboriginal peoples and other key stakeholders understand and are prepared to deal with the changes that come with the repeal of section 67. The Commission has been:

meeting with First Nations governments and other stakeholders;
developing policy and conducting research;
training First Nations governments and raising awareness; and
developing relevant guidance on investigative and community-based dispute resolution processes.

The Government of Canada allocated $5.7 million over the period 2009/10 to 2013/14 to fund the Commission’s engagement and implementation activities. With this funding the Commission has been able to carry out a number of projects and build its organizational infrastructure to be ready to respond to new demands after June 2011.

Listening and Learning
A key objective of the National Aboriginal Initiative is engagement with First Nations governments, their citizens and other key stakeholders. The Commission is committed to working with First Nations governments to incorporate the unique context of First Nations communities into the human rights redress system in a way that respects self-government.

In developing the two previous special reports to Parliament, the Commission spoke with the Assembly of First Nations, the Native Women’s Association of Canada, and the Congress of Aboriginal Peoples. The Chief Commissioner and the Deputy Chief Commissioner held a number of meetings with the leadership of these organizations.

Since the repeal, the Commission has been involved in a number of meetings with representatives of these national Aboriginal organizations and the Department of Indian Affairs and Northern Development Canada. These meetings provided the opportunity to identify potential areas of partnership and exchange information on implementing the repeal.

Since January 2009, senior Commission staff have participated in over 75 meetings, conferences and other events in First Nations communities and with First Nations and other Aboriginal representatives. At these events, Commission staff either:

provided an overview of the Canadian Human Rights Act and the changes resulting from Bill C-21;
discussed the Commission’s understanding of how the Canadian Human Rights Act will be applied in First Nations communities; or
trained stakeholders on human rights principles, such as the duty to accommodate.

These events were a two-way learning experience. The Commission has gained new knowledge that has been critical to the work of the National Aboriginal Initiative. The Commission is most grateful to all those who took time to share their knowledge. There is still much more to learn and the Commission’s engagement efforts will continue.

It is difficult to summarize everything that was heard and learned over the past three years. However, these are some issues that were raised:

Support for human rights: First Nations governments strongly support human rights protection. The concerns they have are focused primarily on how best to apply human rights in the unique circumstances of their communities and differing views on what human rights should include.
Disparities in knowledge and capacity: A number of First Nations governments already have established dispute resolution processes that could be adapted to also resolve human rights disputes. Many First Nations governments are anxious to improve their redress processes or to establish new ones. This will require adequate funding and training.
Self-government and sovereignty: All First Nations representatives that spoke with the Commission emphasized their inherent right to self-government. Some First Nations governments do not recognize the Commission’s jurisdiction and argue that as sovereign peoples, human rights should be an internal matter. Other First Nations governments are willing to work in partnership with the Commission to ensure that appropriate human rights protection is put in place.
Legal traditions and customary laws: The Commission met with many people, including Elders, who talked about the fundamental role legal traditions and customary laws play in the resolution of disputes in First Nations communities. The Commission heard about the need to be respectful in dealings with traditional knowledge keepers. The Commission also learned that there is a reluctance to share knowledge for fear that it may be misinterpreted or misused.
Prevention: First Nations governments acknowledged that prevention should be a critical part of a human rights redress process. Many would prefer to identify and address potential causes of discrimination, rather than deal with these issues through a complaint process.
Confusion about what was covered by section 67: First Nations governments have always been subject to human rights complaints for employment issues and for discrimination in services that were not related to the Indian Act. The Commission learned that many First Nations people mistakenly believed that they were not protected by the Canadian Human Rights Act at all.
Access for persons with disabilities: The repeal has increased First Nations’ awareness of their rights and responsibilities. Many First Nations leaders have expressed concern about the challenges associated with making their facilities and services accessible to persons with disabilities.
Colonialism: Many Aboriginal people spoke about the impacts of the Indian Act. Its effects have been pervasive and largely negative on the lives of Aboriginal people for more than a hundred years. The Indian Act has set a context of social and economic exclusion that has resulted in disproportionate hardship and generally lower levels of well-being.⁴
People who do not live in their First Nation: The Commission heard that although many Aboriginal people do not reside on their traditional territory, they continue to be connected to their people. This connection includes being involved in the affairs of the community and being eligible to receive benefits related to being a member of the community.
Amending the Canadian Human Rights Act: Some Aboriginal people spoke of the need for further amendments to the Canadian Human Rights Act with regard to how it applies to Aboriginal people. A repeated suggestion was that â€œAboriginal identityâ€ and â€œAboriginal residenceâ€ be added as prohibited grounds under the Canadian Human Rights Act.

Principles for Successful Implementation of Repeal

In its two previous reports, and in the course of the work carried out since, the Commission has articulated basic principles essential to the successful implementation of repeal. These principles are:

Respect for self-government: All Aboriginal peoples, including First Nations peoples, have an inherent right to self-government. The repeal of section 67 must be carried out in a manner that respects the ability of First Nations peoples to govern themselves.
Respect for Aboriginal and treaty rights: By virtue of their Aboriginal ancestry and as protected by the Canadian Constitution⁵ and recognized by the Supreme Court of Canada, the Aboriginal peoples of Canada have existing Aboriginal and treaty rights. In the implementation of repeal, these rights must be respected.
Discrimination Prevention: Human rights legislation aims to promote and protect human rights. It is intended to be corrective. Effective human rights processes include programs and measures to educate people about their rights and prevent discrimination.
Freedom from Discrimination: Section 2 of the Canadian Human Rights Act states that the purpose of the Act is to give effect:

. . .to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices.

Aboriginal peoples have the right to be free from discrimination based on grounds such as sex, age, family status and disability. Aboriginal peoples continue to experience discrimination. This is especially true for Aboriginal women and children.

Adequate Resources: First Nations governments require adequate resources in order to fulfill their obligations under the amended Canadian Human Rights Act.

Respect for Self-government

The Commission supports Aboriginal peoples’ inherent right to self-government. First Nations governments can, and should be encouraged to, develop their own human rights redress processes. Such systems might operate in conjunction with the Canadian Human Rights Act or under a self-government agreement, unique legislation, or other arrangements made between First Nations governments and the Crown.⁶

First Nations’ human rights redress processes that operate under self-government will develop over time. Bill C-21 was not intended to replace this process. But there are immediate needs. First Nations and other Aboriginal people have been denied access to human rights redress on decisions flowing from the Indian Act for over 30 years. Repealing section 67 was the first step to ensuring that this denial of rights will end.

This legislation is now Canadian law and the Commission has a duty to Parliament, and to First Nations governments and Aboriginal people to implement this legislation. The Assembly of First Nations acknowledged this in a resolution passed in 2010:

. . . that this legislation [Canadian Human Rights Act] is imposed on our Nations and is only applicable until such time as First Nations have developed and implemented their own Human Rights models according to their traditions and inherent authority, consistent with the United Nations Declaration on the Rights of Indigenous Peoples.⁷

Alternatives to the Commission’s Dispute Resolution Process
Under the Canadian Human Rights Act, alternative dispute resolution processes can be used to resolve human rights disputes without having to go through the Commission’s formal complaint process. Encouraging community-based dispute resolution is consistent with universal practices in human rights. If a complaint received by the Commission can be addressed by a community-based process, the Commission has the discretion to refer the complaint to that process.

There is no fixed model for First Nations community-based dispute resolution processes. First Nations peoples will develop systems that are suited to their particular needs and circumstances. This could include processes based on:

traditions and customs passed down from generation to generation;
a contemporary approach using tools such as mediation and arbitration; or
a hybrid approach that blends both traditional and contemporary approaches.

Guiding Principles for Developing Community-based Dispute Resolution Processes
Some First Nations governments asked the Commission for advice on the principles that should be at the foundation of a community-based dispute resolution process. In response, the Commission developed a set of guiding principles that take into account international human rights standards, such as those in the United Nations Declaration on the Rights of Indigenous Peoples, and Canadian law and jurisprudence. These principles will be refined as necessary⁸. These guiding principles are:

Make the process accessible.
Obtain community input about the process.
Make sure the decision-maker knows about human rights.
Ensure impartiality and independence.
Allow people to bring a representative.
Give people the opportunity to be heard.
Encourage people involved to share information.
Keep information confidential.
Give reasons for decisions.
Ensure the process is acceptable to everyone involved in the dispute.
No retaliation.

Representatives of Aboriginal women have expressed concern that negative attitudes toward women (and their children) may limit their ability to bring forward discrimination complaints. Concern has been expressed that in some communities intimidation and retaliation are a possibility. Similar concerns may apply to other vulnerable groups. Incorporating these guiding principles into community-based dispute resolution processes will help First Nations governments ensure that the process is accessible and fair for everyone.

The Commission is working with the Southern First Nations Secretariat in a pilot project to develop community-based dispute resolution processes. The results of the project will be developed into an educational guide to share with other First Nations wanting to follow the same path.