Conclusion and Recommendations
The Canadian Human Rights Commission recommends to the Parliament of Canada that:
1. Section 67 of the Canadian Human Rights Act be repealed immediately.
2. The repeal legislation include provisions to enable the development and enactment, in full consultation with First Nations, of an interpretative provision, which will take into consideration the rights and interests of First Nations. The interpretative provision will guide the Commission, and the Canadian Human Rights Tribunal, in the application of the Canadian Human Rights Act with regard to complaints against First Nations governments and related institutions.
3. The application of the Canadian Human Rights Act to First Nations, and related institutions, be suspended for a transitional period of between 18 and 30 months in order to allow for:
a) consultations on, and enactment of, the proposed interpretative provision;
b) preparatory actions to ensure that First Nations and the Commission have in place the measures necessary to effectively, efficiently and quickly resolve complaints.
4. The application of the Canadian Human Rights Act to the Government of Canada, with regard to matters previously shielded by section 67, take effect immediately on repeal with no transition period.
5. The Government of Canada and First Nations, when negotiating self-government or claims agreements, consider the inclusion in those agreements of special provisions dealing with human rights protection and promotion.
As explained in the report, this is a matter of rights. Rights that have been denied for twenty-eight years. They must not be denied any longer. The time to act is now. Failure to do so will result in a continuing blemish on Canada's reputation, both at home and abroad, as a defender of the fundamental rights of all.
The Commission looks forward to continuing dialogue with the Government of Canada, parliamentarians and First Nations as the process of repealing section 67 proceeds.
Footnotes
1 In this report "First Nations" is used, in general, to refer to First Nation governments operating under the Indian Act and which are statutorily recognized as "band governments". This is not meant to diminish the status of other Aboriginal Nations and communities including those of the Métis and Inuit peoples and others that operate outside the Indian Act.
2 These grounds are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
3 Thus, for example, the CHRA was used to successfully challenge provisions of the Unemployment Insurance Act because they discriminated on the basis of sex.
4 The Commission also opposes limitations with regard to mandatory retirement, pension plans created prior to 1977, and the fact that some federally incarcerated inmates cannot file complaints against the Correctional Service of Canada.
5 In May 2005 the Supreme Court ruled that, with limited exceptions, the CHRA also applies to employees of Parliament, Canada (House of Commons) v. Vaid, 2005 SCC 30.
6 By-laws enacted pursuant to the Indian Act can have wide applications covering many areas of activity.
7 Desjarlais (Re), [1989] 3 F.C. 605; (1989), 12 C.H.R.R. D/466; [1990] 1 C.N.L.R. 39; 102 N.R. 71 (C.A.).
8 Bill C-25: An Act to Extend the Present Laws in Canada that Proscribe Discrimination and Protect the Privacy of Individuals, 1977.
9 Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 10, 1977.
10 Then section 63.
11 Sandra Lovelace was a Canadian Indian who in 1970 lost her status on marrying a white man, per the Indian Act. Lovelace, having exhausted domestic remedies, took her case to the United Nations Committee on Human Rights. She alleged that the Act breached her rights under the International Covenant on Civil and Political Rights by denying her Indian status and the right to be part of her community and culture. In 1981 the Human Rights Committee ruled in her favour. They found that the Indian Act contravened section 27 of the Covenant, which states, "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language."
12 Standing Committee on Justice and Legal Affairs, May 25, 1977, page 45-46.
13 House of Commons Debates, June 2, 1977, page 6201.
14 Section 28 read, "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons."
15 Legislation to abolish section 67 was introduced in 1992 and again in 2001. However, in both cases, as a result of issues not related to section 67, the legislation was not enacted.
16 Winnipeg School Division No.1 v. Craton, [1985] 2 S.C.R. 150.
17 Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381.
18 [1998] 1 S.C.R. 493.
19 E/CN.4/2005/88/Add.3: Report of Rodolfo Stavenhagen, Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people - Mission to Canada. The reference in the last sentence to the government's 2003 agreement in principle to repeal section 67 refers to the inclusion of a repeal provision in an omnibus First Nations Governance Bill which subsequently did not proceed.
20 For a copy of the Accord see: http://www.afn.ca/article.asp?id=1218
21 Report of the Aboriginal Justice Inquiry of Manitoba, Chapter 13: Aboriginal Women, online: http://www.ajic.mb.ca/volumel/chapter13.html
22 Walking Arm-in-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property, Report of the Standing Committee on Aboriginal Affairs and Northern Development, June 2005. See: http://www.parl.gc.ca/InfocomDoc/38/1/parlbus/commbus/house/AANO/report/RP1906551/aanorp05-e.htm.
23 Evidence of the House of Commons Standing Committee on Aboriginal Affairs and Northern Development (hereinafter called Evidence), 12 April 2005.
24 Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73.
25 Vienna Declaration and Program of Action, World Conference on Human Rights, Vienna, 14-25 June 1993, A/Conf.157/23 See: http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/A.CONF.157.23.En?OpenDocument.
26 For example, an airline can refuse to hire a pilot who does not have the visual acuity required to safely fly an aircraft.
27 Jacobs v. Mohawk Council of Khanawake (1998), Canadian Human Rights Tribunal.
28 For example, section 24. (1) of the Ontario Human Rights Code provides:
The right under section 5 to equal treatment with respect to employment is not infringed where:
a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status, same-sex partnership status or disability employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment;
29 It should be noted that the Commission and Tribunal have neither the capacity nor the expertise to interpret sections 25 and 35.
30 Promoting Equality: A New Vision, Canadian Human Rights Act Review Panel, 2000.
31 This reflects section 35(4), Constitution Act, 1982:
Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
32 This wording was included in Bill C-7, the First Nations Governance Act, which died on the Order Paper when Parliament was prorogued in fall 2003.
33 The interpretative provision would be used only in relation to complaints against an Aboriginal government organization. This phrase excludes DIAND and other federal departments. It includes all Aboriginal government organizations and not just First Nation governments. Consequently, organizations such as school boards and hospital authorities would be covered by the clause.
34 While this wording makes specific reference to gender equality, it has also been suggested that reference also be made to other vulnerable groups such as persons with disabilities and two-spirited people (gays, lesbians, bi-sexual and transgendered people).
35 Submission of the Canadian Human Rights Commission to the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, January 28, 2003.
36 Under section 27(2) of the CHRA, the Commission has the authority to enact guidelines on how the Act should be applied with regard to a particular class or group of complaints:
27(2) The Commission may, on application or on its own initiative, by order, issue a guideline setting out the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act applies in a class of cases described in the guideline.
Guideline binding
27(3) A guideline issued under subsection (2) is, until it is revoked or modified, binding on the Commission and any member or panel assigned under subsection 49(2) with respect to the resolution of a complaint under Part III regarding a case falling within the description contained in the guideline.
Guidelines under the Act are "statutory instruments" giving them the same legal weight as regulations. The constitutionality of the Commission's guideline making power was affirmed by the Supreme Court in the case of Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884.
37 Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203.
38 The case of Azak v. Nisga'a Nation heard before the British Columbia Human Rights Tribunal considered the issue of whether a human rights complaint against an institution of the Nisga'a Nation should be heard by the B.C. Tribunal or referred to the Commission. The Tribunal found that institutions created by federal legislation under the Nisga'a land claims agreement came under the jurisdiction of the CHRA.
39 See: http://www.ainc-inac.gc.ca/nr/prs/s-d2003/wst_e.pdf.