Now a Matter of Rights - Part 2

Respect for Aboriginal and Treaty Rights

The Non-derogation Clause

The Canadian Human Rights Act now includes a non-derogation clause1 that the Commission, the Canadian Human Rights Tribunal, and the courts are legally required to respect in all decisions. The non-derogation clause says that the Canadian Human Rights Act cannot change the “existing Aboriginal and treaty rights” recognized and affirmed by section 35 of the Constitution Act, 1982.

The Interpretive Provision

Bill C-21 also added an interpretive provision to the Canadian Human Rights Act that states: 

1.2. In relation to a complaint made under the Canadian Human Rights Act against a First Nation government, including a band council, tribal council or governing authority operating or administering programs and services under the Indian Act, this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality.

The interpretive provision has been an important focal point for the Commission in preparing for full repeal. It commissioned two research pieces to help inform how the provision should be applied:

The Commission also sought out the experience of First Nations and other Aboriginal people to help understand their perspective on the interpretive provision. This included:

  • meetings with a council of Elders;
  • discussions with national Aboriginal organizations;
  • a workshop at the Indigenous Bar Association’s annual general meeting; and
  • a special forum held at the Commission’s 2010 Discrimination Prevention Forum.

The knowledge shared, often through storytelling, gave the Commission an appreciation for the central role of customary laws and legal traditions in the daily lives of Aboriginal people. It also provided the Commission with a better understanding of some of the challenges that lie ahead. 

First Nations Legal Traditions and Customary Laws

The Assembly of First Nations described the interpretive provision as a "slender thread linking the Canadian Human Rights Act to Aboriginal legal traditions"4. Applying the Canadian Human Rights Act in a way that considers and incorporates First Nations legal traditions and customary laws will provide an opportunity for dialogue and greater understanding between Aboriginal peoples, the Commission, and other bodies interpreting the Canadian Human Rights Act.

Identifying and understanding First Nations legal traditions and customary laws may be a challenge for decision-makers interpreting the Canadian Human Rights Act. First Nations traditions and customs are not frozen in time and they vary between nations. They can evolve just like traditions in any society, and can change in response to circumstances and the will of the community. They may be oral or recorded in writing, depending on the choice and practice of each nation.

The Commission recognizes the need to develop useful and respectful approaches to gathering information on the existence and nature of First Nations legal traditions and customary laws.

Balancing Collective and Individual Rights

Collective rights are those that belong to a group as a whole. They are often important to preserving the group’s identity and culture. Individual rights are those that apply to an individual.   

In the Commission’s view, there is no fundamental conflict between collective rights and individual rights. However, at times there may be tension between the two. In such cases, it is important to find an appropriate balance that will respect both the rights of the individual and the collective.

Gender Equality

The interpretive provision states that due regard is to be given to First Nations legal traditions and customary laws to the extent that they are consistent with the principle of gender equality. Parliament’s intention was to ensure that any historical discrimination against women would not continue.5

This overriding respect for the principle of gender equality is found in both international and Canadian law. For example, the United Nations Declaration on the Rights of Indigenous Peoples states:

… all the rights and freedoms recognized herein are equally guaranteed to male and female Indigenous individuals.6

Similarly, section 35(4) of the Constitution Act, 1982, says that Aboriginal and treaty rights are guaranteed equally to men and women.

The Commission has been told by Aboriginal representatives that some cultures may have different concepts of gender equality. There are circumstances where men and women can be treated differently to obtain an equal result. The Commission will consider all relevant information when dealing with discrimination complaints.  

Operational Guidelines

Informed by discussions with First Nations governments and other stakeholders, the Commission has established some guidelines to ensure that the interpretive provision is applied consistently throughout its dispute resolution process. The Commission recognizes that these guidelines may evolve as the provision is applied and interpreted.

  • The interpretive provision is not a defence:7 It is clear from the legislative record that the interpretive provision was not intended to excuse actions that would otherwise be discriminatory under the Canadian Human Rights Act. Rather, it requires that the existing provisions of the Canadian Human Rights Act be interpreted in light of it.
  • Giving due regard is an obligation: The interpretive provision creates a positive obligation on decision-makers to consider First Nations legal traditions and customary laws. As such, the Commission will ask both parties to a discrimination complaint if a legal tradition or customary law is engaged in the complaint and, if so, for supporting information. Commissioners will consider this information as part of the decision-making process.
  • Gender equality must be respected in all cases: Relevant First Nations legal traditions or customary laws will be considered by the Commission in all cases, however the principle of gender equality may limit their application.
  • First Nations governments: The interpretive provision will be applied to all First Nations governments, regardless of whether they are an Indian Act band or a self-governing First Nation. The legal tradition or customary law must be relevant to the alleged facts of the discrimination complaint to be considered.

Discrimination Prevention

The Awareness Survey

In 2009, the Commission undertook an awareness survey of First Nations communities, and First Nations regional and national representatives. Fifty-four (54) organizations were surveyed. The purpose of the survey was to determine how familiar these organizations were with Bill C-21, the work of the Commission, the Charter of Rights and Freedoms and the United Nations Declaration on the Rights of Indigenous Peoples.

Highlights of the findings include:

  • Most respondents indicated that they had little or no contact with the Commission prior to the survey. Almost all expressed interest in receiving more information and training on human rights.
  • Survey respondents’ familiarity with the mandate and jurisdiction of the Commission was moderate and scored around 2.85 out of 5. This is understandable given the Commission’s limited previous involvement with First Nations communities. Confidence in explaining Bill C-21 and the Canadian Human Rights Act was somewhat lower.
  • 80% of survey respondents indicated they had never participated in a Commission information workshop or training session. This is also understandable given that the survey was conducted less than a year after Bill C-21 was passed.
  • 69% of those who indicated they had never participated in a Commission information workshop or training session stated they would be interested in participating in a future session.
  • 70% of the survey respondents reported that they did not provide human rights related information sessions to members or constituents.
  • First Nations organizations indicated that their ability to fulfill the requirements of the Canadian Human Rights Act is limited by a number of factors, including:
    • the legacy of the Indian Act system;
    • lack of funding and human resources;
    • the geographical isolation of many communities; and
    • the need for human rights information to be written in clear language.
  • In the future, the results of the Awareness Survey will serve as a baseline for measuring the Commission’s progress in increasing First Nations’ knowledge and understanding of the human rights system. 

Making Human Rights Accessible for Aboriginal People

The Awareness Survey made it clear that there was critical need for information written in language understandable to non-experts. In response to this need the Commission published Your Guide to Understanding the Canadian Human Rights Act.8 The Guide, developed in collaboration with the Native Women’s Association of Canada, is designed to be an introduction to human rights and the process for filing a discrimination complaint with the Commission. The Guide is available on the Commission’s website in English, French and a number of Aboriginal languages. It is also available in print by request. 

A second clear language guide was designed for First Nations leaders and administrators. The Human Rights Handbook for First Nations offers relevant human rights related information, with the goal of increasing First Nations capacity to address human rights issues.

The Handbook discusses:

  • human rights law;
  • how to prevent discrimination;
  • the Commission’s dispute resolution process;
  • how to respond to a discrimination complaint; and
  • how to develop community-based dispute resolution processes.

Making the Commission’s Dispute Resolution Process More Accessible

Clear language is important. So too is a clear and understandable process for filing and resolving discrimination complaints. Over the years, the Commission has worked to make its dispute resolution process easier to understand and more accessible.

This does not diminish the fact that a process that requires a person to file a complaint against their government, employer or fellow employee can be intimidating. This can be further complicated by factors such as the small size of many First Nations communities, and the strong family, employment and friendship ties that exist within these communities.

The Commission has reviewed all of its procedures to ensure they are able to address the specific needs and circumstances of Aboriginal people.

Human Rights Training

The Commission has already been involved in some human rights training with First Nations governments and other Aboriginal organizations. Through dialogue, presentations, and publications such as the clear language guides, the Commission has been working with First Nations governments to familiarize them with the requirements of the Canadian Human Rights Act and how it will apply.

It is also important to have formalized training for those who will be directly involved in a First Nations community-based dispute resolution process. Initiatives such as human rights training for trainers and investigation training for First Nations administrators would be beneficial. However, many First Nations governments have told the Commission that funding constraints limit their ability to get the training they need. 

Freedom from Discrimination

Discrimination Complaints

A major challenge, for both the Commission and First Nations communities, is identifying how many discrimination complaints will come forward after June 2011.

As mentioned earlier, despite the fact that only discrimination complaints stemming from the Indian Act were barred by section 67; many First Nations people believed that they were excluded from the Canadian Human Rights Act entirely. As a result, it is possible that the Commission will also see a rise in complaints against First Nations governments related to issues that were not part of the repeal. 

The Commission has some experience dealing with First Nations related complaints. For example, discrimination in employment matters has always been open to redress through the Canadian Human Rights Act.

Over the last five years, the Commission accepted an average of 29 complaints each year involving First Nations governments. Many of these (about 35%) were settled at an early stage, while 28% were dismissed, and 17% were referred to the Canadian Human Rights Tribunal for further inquiry. The breakdown of complaints is as follows: 

Number of complaints involving First Nations
2006 39
2007 22
2008 26
2009 20
2010 37
Total 144

The volume of inquires received by the Commission may provide some indication of the number of future complaints. The Commission receives many thousands of inquires each year. Phone calls asking about issues that could not be dealt with are treated as inquiries by Commission staff. In many cases, Commission officers are able to help callers resolve the issue without filing a discrimination complaint or by referring them to other agencies that can help. A relatively small proportion of inquires result in formal discrimination complaints to the Commission.  

The following table shows the number of inquiries that the Commission handled in 2009 and 2010 that dealt specifically with Aboriginal issues, followed by the number of those inquiries that the Commission accepted as complaints.  

Number of inquiries involving Aboriginal issues
  2008 * 2009 2010
Total inquiries 54 100 95
Accepted as complaints 20 13 40

* From June 18, 2008. 

The above numbers include inquiries and complaints against the Government of Canada, which were previously barred because of section 67. The Commission has also continued to deal with complaints involving First Nations governments that were not shielded by section 67.  

Our preliminary analysis indicates that after June 2011, the Commission’s caseload may rise by between 150 and 170 complaints per year.

The actual number of complaints that the Commission receives will depend on a number of factors including:

  • the extent to which people are aware of their rights under the Canadian Human Rights Act;
  • early efforts taken by First Nations governments to prevent discrimination and integrate respect for human rights principles into every day practice; and
  • the number of First Nations governments that already have suitable processes for resolving human rights disputes within their communities. 

Systemic Discrimination

The volume of discrimination complaints does not tell the whole story. Not all complaints are the same. Through the use of community-based dispute resolution processes and the Commission’s dispute resolution processes, it is likely that many complaints will be resolved quickly. Some complaints will be more complex and difficult to resolve.

This is particularly true with regard to systemic discrimination complaints. Systemic discrimination occurs when policies or practices that are part of the structure of an organization create or perpetuate disadvantage for individuals or groups based on one of the 11 prohibited grounds of discrimination.9  

Systemic discrimination complaints can establish important precedents for the future, as they deal with systemic problems rather than individual issues. These complaints often take time to resolve and sometimes require determination by the courts. For example, a decision ruling that a particular government policy or program is discriminatory would likely lead to a remedial order that ensures the discrimination does not re-occur. The following cases were recently considered by the Canadian Human Rights Tribunal and are illustrative.

Louie and Beattie v Indian and Northern Affairs Canada

The first decision of the Canadian Human Rights Tribunal following the repeal of section 67 was the case of Louie and Beattie v Indian and Northern Affairs Canada.10 In their complaint against Indian and Northern Affairs Canada, the complainants, James Louie and Joyce Beattie, alleged that the department’s policy requirements for leasing reserve land pursuant to section 58(3) of the Indian Act were discriminatory on the ground of national or ethnic origin.

Ms. Beattie and Mr. Louie made a business arrangement involving the development of a piece of land. Part of the arrangement involved Mr. Louie leasing the plot of land to Ms. Beattie for a nominal fee of $1.00. In return, the two entrepreneurs planned to share the profits from the development project.

This arrangement conflicted with Indian and Northern Affairs Canada’s policy that required Indians seeking to lease their land to do so at fair market value, or they must justify any deviation from fair market value rent to Indian and Northern Affairs Canada. The department’s position was that there is a special relationship between First Nations people who have rights to on reserve land and the Government of Canada. This, they argued, results from the fact that the title to the land remains with the Government of Canada and therefore the authority to establish rent lies with Canada. Indian and Northern Affairs Canada also argued that because it had a responsibility to protect the interests of First Nations people, it was required to perform careful review of the leasing details.

The Canadian Human Rights Tribunal found that Indian and Northern Affairs Canada had “. . . attempted to impose unilateral authority over every aspect of the proposed land transaction.” It described the department’s conduct as “paternalistic” and said that it “. . . demonstrated how the [Indian] Act has become an anachronism that is out of harmony with the guaranteed individual liberty, freedom, and human rights enjoyed by all Canadians.”

The Canadian Human Rights Tribunal also stated that the department’s process must recognize and accept Status Indians as “. . . personally responsible Canadians capable of making their own determinations of anticipated benefits to be derived from leasing their lands.” The failure to do so in this case, the Canadian Human Rights Tribunal ruled, amounts to a breach of the Canadian Human Rights Act.

The Canadian Human Rights Tribunal ordered Indian and Northern Affairs Canada to:

  • reconsider the lease applications;
  • cease its discriminatory practices;
  • take measures, in consultation with the Commission, to redress these practices; and
  • amend its land management manual and related policies.

While the Department of Indian Affairs and Northern Development Canada is challenging part of the Canadian Human Rights Tribunal’s decision in the Federal Court of Canada, it is working with the Commission to redraft its land management policies and programs. This is the type of collaboration that the Commission encourages with parties at every stage of the dispute resolution process.

First Nations Child and Family Caring Society et al v Attorney General of Canada

The Commission received a discrimination complaint from the First Nations Child and Family Caring Society of Canada and others. They allege that the formula for funding First Nations family service organizations is discriminatory on the basis of race, because First Nations child welfare organizations are underfunded compared to agencies serving non-First Nations children. As a result, First Nations child welfare agencies cannot provide the programs needed to assist First Nations families in crisis.

The Commission referred the complaint to the Canadian Human Rights Tribunal and represented the public interest in the hearings.

The Attorney General challenged the jurisdiction of the Canadian Human Rights Tribunal to hear the case arguing that the provision of funding to First Nations child welfare organizations is not a “service” as defined in the Canadian Human Rights Act. It also argued that it is not appropriate to compare Aboriginal children receiving child welfare services on reserve with children receiving such services off reserve.

On March 14, 2011, the Canadian Human Rights Tribunal ruled11 that it had insufficient evidence to determine that First Nations child welfare programs were not a “service” within the meaning of the Canadian Human Rights Act. The Canadian Human Rights Tribunal’s ruling went on to say that the government was correct in arguing that there was no valid comparator group and dismissed the complaint.

If followed, the ruling that there is no comparator group would make future discrimination complaints against the Government of Canada by Aboriginal peoples difficult to prove. That is because of the unique obligations of the Government of Canada under section 91(24) of the Constitution Act, 1867, which makes it responsible for “Indians and Lands reserved for Indians.”

The Government of Canada is often involved in the design, funding and delivery of services on reserve that are normally provincial services for other Canadians. Given the exceptional circumstances surrounding Aboriginal peoples and services delivered to them, there is no exact comparator group available in most circumstances. 

The Assembly of First Nations and the First Nations Child and Family Caring Society of Canada, and the Commission have requested that the Federal Court of Canada review this decision. A hearing is expected to take place in late 2011.

Discrimination Embedded in the Indian Act

The Indian Act is perhaps the only legislation in the world that rules and manages a people based on their race, and has remained relatively unchanged for 135 years. It is outdated and continues to be criticized for being discriminatory and paternalistic. A more modern approach to governance that recognizes First Nations’ inherent right to self-government is long overdue. Creating this approach will take time and can only be accomplished in consultation and collaboration with First Nations peoples.

In the meantime, the Commission plans to review the Indian Act from a human rights perspective. International human rights principles, such as those in the United Nations Declaration on the Rights of Indigenous Peoples, and the Canadian Human Rights Act will be used to identify discriminatory elements of the Indian Act.  

Adequate Resources

Building First Nations Capacity

Implementing a human rights redress process for First Nations peoples is a complex matter that will involve the ongoing commitment of First Nations governments, the Commission, the Government of Canada and other stakeholders.

Building capacity to protect and promote human rights in First Nations communities is critical to ensuring that these processes work effectively. As outlined in the preceding sections of this report, the Commission, in partnership with First Nations governments, has already taken significant steps in this direction. The Commission will continue to offer its expertise to First Nations governments as there is much more that still needs to be done.

The challenges that continue to be faced by First Nations governments because of the repeal of section 67 are many and daunting. They include:

  • Raising awareness: First Nations and other Aboriginal people still need accurate information about the repeal and its implications so they are equipped to participate in human rights redress processes.
  • Capacity building: First Nations governments already have heavy workloads. Many lack people trained in the investigation and resolution of human rights disputes.
  • Policy development: Few First Nations governments have human rights protection policies or procedures to prevent or deal with the human rights disputes. Many also lack the resources to review existing operational policies, practices and by-laws to ensure they respect human rights.
  • Accessibility for people with disabilities: First Nations communities have critical needs such as clean water and adequate housing, and as a result, many have not been able to make accessibility for people with disabilities a high priority. While the Department of Indian Affairs and Northern Development Canada does provide some funding for accessibility it is not clear that the amount is sufficient. As mentioned earlier in this report, many First Nations people are only becoming aware of their human rights now, because of the repeal. This means that discrimination complaints based on disability could rise, although this was not an issue previously shielded by section 67.  

The Commission understands the scale of challenges faced by First Nations governments and other Aboriginal organizations in implementing repeal. However, it is not in a position, nor would it be appropriate, to comment on the specific amount of financial and human resources required to do the job effectively. The Commission commends the Government of Canada and the Aboriginal organizations they have worked with for the report to Parliament that they have prepared together, in accordance with Bill C-21. The Commission hopes it will be given the careful consideration it requires.

Did you find what you were looking for?Yes No

Did you find what you were looking for?

Yes No