An Interpretative Provision

In repealing section 67, it is important to ensure that the unique situation and rights of First Nations are appropriately considered in the process of resolving human rights complaints. One means of doing this would be to add a statutory interpretative clause relating to the application of the CHRA in a First Nation context. Such a clause would require the Commission and the Tribunal to consider complaints against First Nations in the context of their particular circumstances. This would ensure that, where warranted, individual claims to be free from discrimination are considered in light of legitimate collective interests.

Legal and constitutional precedents

This approach is consistent with Canadian law and human rights principles that require human rights codes to be interpreted and applied in a way that recognizes the individual circumstances and interests of both complainants and respondents. It also recognizes that no right is absolute and that flexibility is required when the rights of various groups conflict.

For example, section 1 of the Canadian Charter of Rights and Freedoms recognizes this idea by guaranteeing and affirming Charter rights while subjecting those rights to "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Given the importance of these entrenched Charter rights, the Supreme Court has developed strict rules for determining when a section 1 justification can be sustained.

Similarly, the CHRA allows for exceptions in carefully defined circumstances. A respondent in a human rights case can put forward a "bona fide occupational requirement" (BFOR) or a "bona fide justification" (BFJ) for why it treated an individual in a way that would otherwise be contrary to human rights law.²⁶ The Canadian Human Rights Tribunal applied this type of reasoning in the Jacobs case,²⁷ in which it recognized that the Mohawk Council of Kahnawake could make a BFJ claim to protect collective interests.

The Jacobs case involved Trudy and Peter Jacobs, who although brought up in the community of Kahnawake, did not meet the 50 percent blood quantum criteria that had been established for membership. The First Nation government argued that excluding the Jacobs was necessary to preserve the linguistic and cultural integrity of the community. The Tribunal accepted that such an argument could form the basis of a BFJ defence under the Act. However, the justification was in the end rejected because the Tribunal was not satisfied that the same objective could not be achieved in a manner that would be less harmful to the Jacobs.

It should also be noted that some Canadian human rights codes allow organizations to give preference in hiring to members of their particular group.²⁸

Section 25

It has been suggested that in order to protect the legitimate collective interests of First Nations, an interpretative provision should parallel section 25 of the Charter by explicitly stating that the CHRA must be interpreted so as not to "abrogate or derogate" from constitutionally protected rights. This is a legitimate concern. However, the Commission believes that such a provision would be redundant. Section 25 is part of the Charter and is constitutionally entrenched. All Canadian laws, including the CHRA, are subject to the Charter.

There is, nevertheless, a need to provide some guidance on how the CHRA will be applied in the First Nation context, if section 67 is repealed. This is in part because claims under sections 25 and 35 are difficult to prove to the standard required by the Supreme Court. Some interests and concerns of First Nation communities may not meet the strict criteria needed to assert a constitutional right, but are nevertheless worthy of consideration in resolving a human rights claim. This may be particularly true with regard to rights relating to language, culture and traditions. These types of concerns may more appropriately be dealt with under human rights legislation.²⁹

Key features of an interpretative provision

The Canadian Human Rights Act Review Panel³⁰ made recommendations for what might be included in an interpretative clause. The Panel recommended that an interpretative provision:

• ensure that the Aboriginal community's needs and aspirations are taken into account in interpreting the rights and defences in the Act;
• ensure that an appropriate balance is established between individual rights and Aboriginal community interests;
• operate to aid in interpreting the existing justifications and not as a new justification that would undermine the achievement of equality; and
• not justify sex discrimination or be used to perpetuate the historic inequalities created by the Indian Act.³¹

The Commission believes, in general, these are sound principles to guide the interpretation of the CHRA in its application to the First Nation context. The Review Panel did not make a recommendation for specific wording of an interpretative clause. One proposal³² for legislative wording that attempted to incorporate the principles recommended by the Panel reads as follows:

16.1 In relation to a complaint made under this Act against an aboriginal governmental organization,³³ 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.³⁴

In commenting on this proposed wording before a Parliamentary Committee, the Chief Commissioner endorsed the principle of an interpretative provision but expressed concern with some of the proposed language:

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.³⁵

Implementation of an Interpretative Provision

The proper formulation of an interpretative provision is an important matter, which must be carefully considered through a consultative process with First Nations. As important as it is, however, the process of formulating an interpretative provision should not be allowed to further delay the repeal of section 67. Therefore, the Commission recommends a two-step process. First, repeal section 67 immediately. And, second, initiate a process to develop an interpretative provision within a set period of time.

The repeal provision could include an enabling provision allowing for the federal enactment of an interpretative provision. Such an enabling provision might include reference to some of the key features of an interpretative provision discussed above, such as the need to ensure gender equality and to protect collective interests. Enactment could be carried out through the regulatory process. This might involve the Commission using its existing guideline-making authority³⁶ to develop an interpretative provision in consultation with First Nations.

As the interpretative clause will apply only to complaints filed against First Nations, the Act should apply to complaints regarding the Government of Canada immediately upon repeal.

In the Supreme Court decision in Corbiere,³⁷ which required that the right to vote be extended to off reserve First Nation members, the Court ordered a transition period of 18 months. The Commission believes a similar period should be provided for the development of an interpretative provision and other transitional preparations with an outside limit of 30 months.