Legislation and Policies

Submission: Aboriginal Affairs

SUBMISSION OF THE CANADIAN HUMAN RIGHTS COMMISSION TO THE STANDING COMMITTEE ON ABORIGINAL AFFAIRS, NORTHERN DEVELOPMENT AND NATURAL RESOURCES

BILL C-7: FIRST NATIONS GOVERNANCE ACT

January 28, 2003

Table of Content

INTRODUCTION

INTERPRETATIVE CLAUSE

COMMUNITY LEVEL REDRESS

BILL C-31

PROVIDING SERVICES TO ABORIGINAL CANADIANS

CONCLUSION

INTRODUCTION

Since its creation in 1978, the Canadian Human Rights Commission has been statutorily barred from dealing with complaints relating to the Indian Act. Under Bill C-7 this bar, which arises out of section 67 of the Canadian Human Rights Act, will be lifted. This change will have important implications for First Nations, their citizens and the Commission.

The Commission's response to this legislative proposal is twofold. The Commission supports the repeal of section 67, a measure that it has long advocated. However, the Commission also has concerns with how the Canadian Human Rights Act will be applied to First Nations' issues, particularly with regard to the interpretative clause.

When the Canadian Human Rights Act was enacted in 1977, section 67, the last section of the Act was added as a temporary measure. Section 67 reads as follows: "Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act".

At the time, the issue of Indian Act discrimination against women was being contested in the courts and before the United Nations Human Rights Committee. The government of the day wanted to forestall complaints to the Commission pending discussion with the aboriginal leadership on how to amend the Indian Act.

In words that still ring true today, one Member of Parliament asked during the 1977 House of Commons debate of the Act: "What kind of human rights legislation is it in Canada when native women are not included? .... Human rights legislation to be worth its salt, must include groups which are clearly discriminated against."

Member of Parliament Gordon Fairweather, soon to be appointed the first Chief Commissioner, called on the government to immediately remove sex discrimination from the Indian Act rather than exempt the Act from human rights protection as was being proposed.

In 1982 the Charter became part of the Constitution. In 1985, Parliament passed legislation to remove sex discrimination from the Indian Act. The amendments were retroactive to April 17, 1985, the day the Charter came into force. But the "temporary measure", section 67, remains to this day.

Fortunately, section 67 did not completely close the door to the Commission dealing with complaints from First Nations' citizens. As a result of various judicial decisions, the scope of section 67 has been circumscribed and the Commission does proceed with about 50 complaints a year involving First Nations' governments. However, the Commission is forced to advise most potential indigenous complainants that the Commission is barred from accepting their complaints because they relate to actions arising under the Indian Act. Many more potential complainants do not even bother contacting the Commission because they know of the limits placed on Commission jurisdiction under section 67 or because they believe that First Nations' people are completely excluded from filing complaints.

Section 67 has created an objectionable situation: First Nations' people are the only citizens of Canada that do not have full access to a human rights complaints system to resolve complaints of discrimination. All citizens should have this right, it is part of our citizenship.

Members of First Nations' communities, like other people in Canada, encounter situations in which they believe their rights have been breached. Arguably denying the right to complain to the CHRC is contrary to the equal protection provision of section 15 of the Charter as well as international human rights standards such as the United Nations International Covenant on Civil and Political Rights.

INTERPRETATIVE CLAUSE

Clause 41 of Bill C-7 proposes that in addition to repealing section 67, the Canadian Human Rights Act be amended to include an interpretative clause. The proposed clause reads:

"In relation to a complaint made under this Act against an aboriginal governmental organization, the needs and aspirations of the aboriginal community affected by the complaint, to the extent consistent with principles of gender equality, shall be taken into account in interpreting and applying the provisions of this Act."

I need not remind the members of this committee of the special historic and constitutional status of the First Nations, including the inherent right to self-government. First Nations have a legitimate interest in the preservation of their communities, culture, languages and traditions.

Simply put, as the Commission reads it, the interpretative clause means that when the Commission or the Tribunal considers claims of discrimination against a First Nation, they must balance the needs of the community with those of the individual. If there is a conflict, individual claims do not trump collective claims, nor do collective claims trump individual claims. The objective is to find a middle path which will serve both interests.

The need for this type of balancing provision is already recognized in our laws. Our constitution recognizes this by providing that equality claims under the Charter of Rights and Freedoms are subject to such limits as are demonstrably justifiable in a free and democratic society. Many of the provincial human rights laws require that certain collective interests, for example the desire of a religious organization to maintain its doctrine, be balanced against the right of job applicants not to be discriminated against on the basis of their beliefs.

By requiring that the Canadian Human Rights Act be interpreted in light of the "needs and aspirations of the aboriginal community", the proposed interpretative clause is intended to serve a similar purpose. The Commission supports this objective.

The interpretative clause also includes a gender-equality guarantee, making it clear that in no case can the needs and aspirations of First Nations' communities be interpreted so as to discriminate against women. As well, the clause applies only to First Nations' governments. The federal government cannot use it to defend itself against claims of discrimination. Both these provisions are, of course, positive.

However, while we support the objectives of the interpretative clause, we do have a concern with the vagueness of the current drafting. What exactly is the scope of the term "needs and aspirations" of the community and how do these relate to the need to protect individuals from discrimination? The Commission's experience with the interpretation of the Canadian Human Rights Act by the Canadian Human Rights Tribunal and the courts leads us to believe that determining the correct balance between these two interests could lead to lengthy and costly litigation. Although some litigation is to be expected, greater clarity in the legislation would help minimize it and would ensure a more effective complaint resolution process.

The Commission does not have an instant solution as to how the balancing clause should be drafted and we are reluctant to suggest alternatives without first having heard the views of the other witnesses appearing before this committee.

There are a number of means of giving more clarity to the interpretative clause. One option might be the development of government regulations to flesh out its meaning. If this is the approach taken, the Commission would urge that there be consultations with First Nations, their citizens and other concerned parties on the wording of the clause as well as other issues relating to implementation. The Commission should have a direct role in such consultations. Other options include the development of interpretive guidelines or policy statements by the Commission to clarify the scope of the interpretative clause. Whichever means are chosen, the views of aboriginal peoples will have to be part of the process.

Bill C-7 provides that the repeal of section 67 will not come into effect until the regulations needed to implement the Bill are drafted and approved. This should provide a window of 18 months to two years to ensure that appropriate measures are implemented to clarify the meaning of the interpretative clause.

The Commission is also concerned with how the interpretative clause will be applied by the Canadian Human Rights Tribunal and the courts. As already explained, the Commission believes such a clause should be used to balance collective and individual rights. However, there is a possibility that a tribunal or a court could interpret the proposed clause as self-standing or independent defence against claims of individual discrimination. If that were to happen the interpretative clause might become a shield against complaints of discrimination rather than a means of balancing interests.

Former Supreme Court Justice Gérard La Forest cautioned against such an interpretation in his 2000 report on reforming the Canadian Human Rights Act. The Commission recommends that the Committee note this concern in considering possible changes to the proposed legislation.

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COMMUNITY LEVEL REDRESS

Whenever possible the Commission encourages the resolution of complaints within the workplace or community where they occur. Doing so often results in resolution of disputes, before positions get entrenched and anger and resentments are kindled.

Community or tribal-based redress mechanisms are close to the communities they serve. They are in the best position to understand the cultural and political context of complaints and to resolve them expeditiously. The Commission is, therefore, pleased that clause 11 of Bill C-7 requires First Nations to establish complaints and redress mechanisms to deal with certain types of complaints against First Nations and their officers. However, we are concerned that, in many cases, these redress bodies will only be able to order that First Nations' government or their employees reconsider their decision rather than ordering remedial measures.

When a complaint cannot be resolved at the community level, and the complaint involves human rights issues, complainants should have the right to file a case with the Commission. This is currently the case for complaints that are not resolved through similar mechanisms such as the labour grievance process.

BILL C-31

Section 67 had its origins in a desire by the government of the day to forestall claims of discrimination arising from the fact that the Indian Act discriminated against women who married non-Indians. Indian women in fact lost their status and all their privileges and benefits upon marriage to a non-Indian man. The same did not happen to men who married non-Indians. In their case, their non-Indian wives were granted status.

The 1985 amendments to the Indian Act, Bill C-31, did away with direct discrimination against Indian women and allowed people who lost their status to be reinstated and their children to be granted status.

This was a positive change.

However, the Commission and many others have expressed concerns that Bill C-31 may not have completely resolved the problem of discrimination in the Indian Act. This concern arises from the provisions of the Indian Act which limit the ability of the descendants of a C-31 woman to pass status onto their children. In effect, the grandchild of a C-31 woman only has Indian status if both his or her parents have status. On the other hand, the grandchildren of a man who married a non-Indian will always be entitled to status.

This may constitute discrimination both on the basis of sex and family status, but the Commission has not been able to deal with such claims of discrimination because the discrimination flows directly from the Indian Act and is therefore sheltered by section 67. With the repeal of section 67, this will no longer be the case.

The Commission complaints process, however, may not be the best means of resolving a problem that is essentially legislative in nature. Therefore, the Commission urges the Government to review the impact of Bill C-31 and take the appropriate legislative measures to ensure that the Indian Act does not discriminate.

Possible discrimination against C-31 women in their access to programs and services provided by First Nations must also be addressed. Over the years, the Commission has dealt with claims by C-31 women that either they or their children have been denied access to housing, schools and day care. In some cases, the Commission has succeeded in asserting jurisdiction and secured remedies. But in many other cases, potential complaints have been barred by section 67. With that bar lifted, hopefully, the Commission will be able to resolve more claims from C-31 complainants.

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PROVIDING SERVICES TO ABORIGINAL CANADIANS

The Commission is committed to ensuring that all complainants and respondents that have cases before the Commission have their cases resolved fairly, expeditiously and efficiently. This is part of our commitment to ensuring a high level of services to Canadians.

Repealing section 67 will create new services challenges for the Commission:

• As a result of the complaints chill caused by section 67, few First Nations' communities know about the Commission and those that do, are reluctant to bring their claims forward. The Commission will have to provide them with the information they need to make effective use of the Commission's complaints process.
• Complaints from First Nations' citizens will require us to adopt new approaches to investigations which may include visiting sometimes distant and isolated communities to interview witnesses and First Nations' officials.
• Both our policy work and litigation will have to be adapted to ensure that the interpretative clause is properly applied.
• First Nations' people will require information and training on how to reduce discrimination and ensure equity for all their citizens.

If the Commission is to carry out its additional responsibilities effectively with First Nations' communities, it is important to ensure that it has the resources to do so. The Commission is already operating with limited resources. Delays in processing complaints are too long. Policy and human rights education, as well as outreach to communities, are limited by lack of resources. The Commission has advised the Minister of Justice of these resources pressures and the Commission looks forward to working with the government to ensure the proper implementation of the new mandate.

The repeal will also impose new demands on First Nations' governments who will now be required to respond to human rights claims from their citizens. It is essential that they have the capacity to deal with these claims effectively and fairly.

CONCLUSION

The Commission has pressed for the removal of the section 67 exemption from the Canadian Human Rights Act for many years. We are pleased that Bill C-7 includes this important change to the Act. However, the Commission considers that in removing section 67, some clarity should be brought to the scope of the interpretative clause and that this can only be done with the participation of First Nations.

This proposed change to the Canadian Human Rights Act will go a considerable way towards providing First Nations with the human rights protections long afforded to every other Canadian. In saying this, however, the Commission is mindful that the specific case of C-31 women and their families continues to raise human rights concerns and the Commission would urge the government to review the impact of Bill C-31 and take appropriate legislative measures to ensure the Indian Act does not discriminate. Consideration must also be given to ensuring that both the Commission and First Nations have the resources required to ensure that all First Nations' citizens have full access to the protection of their rights.