First Nations Human Rights Redress

The Commission's primary objective is the immediate repeal of section 67. Doing so will ensure that First Nations people have the same access to human rights dispute resolution as other people in Canada. This matter of fundamental rights must be acted on quickly.

In this context, the underlying principles of the Act (the right to be free from discrimination and to have access to redress) must be distinguished from the institutional mechanisms that the Act establishes to resolve human rights complaints. While the Commission is firmly committed to the fulfillment of the principles of the Act, the institutional mechanisms to ensure this may differ from what is currently in place and may evolve. This may mean a diminished role for the Commission, as the direct administration of human rights resolution processes is devolved to First Nations. This could result from further amendments to the CHRA or from the enactment of special First Nations human rights legislation, if deemed appropriate.

The Commission believes that a detailed discussion of the mechanisms to be adopted would not be productive now and would likely distract from the urgent need to repeal section 67. Once section 67 is repealed, it will be necessary for the Commission, First Nations and other interested parties to work collaboratively to determine how the human rights principles at the heart of the CHRA could best be applied in the context of First Nation communities. A transitional period, such as that suggested for the interpretative provision, would allow for this important work to be carried out.

There are two issues that the parties will likely want to consider during the design phase: community-level redress and Commission-level redress.

Community-level redress

Discrimination can occur in a community, a particular workplace or a school. It can also be found within the substantive content or impact of a particular law or within the operations or policies of an employer or service provider. It often concerns organizational dynamics and interpersonal factors that are difficult for an uninvolved party to fully understand. Human rights disputes that are left unresolved harden positions and increase animosity and bitterness between the parties to the dispute. This is why human rights bodies such as the Commission are increasingly attempting to resolve complaints as soon as possible and as closely as possible to where they originated.

The need for a community-level response to human rights disputes is especially important for First Nations considering the diversity and special nature of First Nations. There are more than 600 First Nation communities, most of them rural or isolated, that would be affected by the repeal of section 67. They have diverse cultural and political values, languages, levels of support, knowledge of and interest in the CHRA, and levels of capacity to accommodate legislative and administrative change. For these reasons it will be important for First Nations to determine what mechanisms they wish to implement to resolve disputes before they become human rights complaints.

Ensuring that First Nations have adequate human and financial resources to design and implement viable human rights systems is of critical importance. Although the burden of setting up a human rights system should not be exaggerated, significant investment in capacity building will be required. It is essential that First Nations not be forced to divert resources from critical programs, such as housing and education, in order to fulfill statutory human rights obligations.

Commission-level redress

Those, hopefully few, cases that are not resolved locally may become formal Commission complaints. The Commission is mandated to ensure that it serves all respondents and complainants effectively, fairly and efficiently. In the case of First Nations, this will likely mean that the Commission will want to consider measures to ensure that complaints regarding First Nations are handled in a manner consistent with the particular situation of First Nations communities. This will certainly involve an ongoing dialogue between First Nations and First Nation people on how the Commission can best serve the needs of communities and individuals, in a manner consistent with the CHRA.

A First Nations Human Rights Act

The proposed interpretative provision and adaptations of the Commissions procedures would make the CHRA and the Commission more accessible to and consistent with First Nation needs and aspirations. This is an important step. However, in accordance with the constitutional rights of First Nations and the inherent right to self-government, it may also be desirable, if such is the wish of First Nations, to consider specific legislation to deal with human rights in First Nations communities.

There are various institutional models that could be considered, such as the creation of a national First Nations Human Rights Commission and an independent First Nation Human Rights Tribunal. These new institutions might operate in conjunction with the existing Commission and Tribunal or as separate institutions. Alternatively, there might be human rights institutions established in individual First Nations, in regional groups of First Nations or on some other grouped basis. These bodies might act independently or in conjunction with national institutions.