Introduction

One of the key roles of the Canadian Human Rights Commission (CHRC) is to provide expert and objective advice and analysis to Parliament, government and stakeholders. It provides this advice based on its experience administering one of the most respected human rights statutes in the world.

The Commission encourages dialogue with all but it holds no brief for any particular group or viewpoint. As an independent, non-partisan, statutory agency, the Commission has only one aim: to advance equality for all Canadians.

It is in this spirit that the Commission has decided to issue a supplementary report to A Matter of Rights,¹ the special report it issued in October 2005, calling for the urgent repeal of section 67 of the Canadian Human Rights Act (CHRA).

Background

As a result of section 67, First Nations citizens are denied full access to human rights redress under the CHRA. In preparing A Matter of Rights, and after its release, the Commission met with members of Parliament, government officials and First Nations leaders to explain the need to protect the human rights of all Canadians. As a result, for the first time, the need to repeal section 67 became an issue of public attention and concern.

In December 2006, repeal legislation—Bill C-44—was introduced in Parliament.² The Chief Commissioner and senior officials appeared twice before the Standing Committee on Aboriginal Affairs to express the Commission’s support for repeal while stating strong reservations about various aspects of the proposed legislation.³

Virtually all of the witnesses who appeared before the Standing Committee supported repeal in principle. However, their ideas on how best to accomplish it differed significantly.

Bill C-44 died on the order paper when a new session of Parliament was convened. It was the fourth time that Parliament had considered but did not enact repeal legislation. In the Throne Speech of October 16, 2007, the government announced that it would reinstate legislation to guarantee to people living under the Indian Act "the same protections other Canadians enjoy under the Canadian Human Rights Act." On November 13, 2007 Bill C-21⁴ was introduced and deemed to be referred to the Standing Committee on Aboriginal Affairs and Northern Development. Bill C-21 is exactly the same as Bill C-44.

Early in 2008, the Standing Committee on Aboriginal Affairs was still considering Bill C-21. Although some progress has been made, the fact remains that, more than two years after the Commission’s first report, section 67 is still in place. First Nations citizens are still denied the protection from discrimination that other citizens take for granted. That is unacceptable in a free and democratic society that values fundamental human rights.

In 2005, the Commission introduced its call for action by stating:

It is time to repeal section 67 of the Canadian Human Rights Act. It’s a matter of rights.

It is still a matter of rights. The time for repeal is long past due.

The Role of the Commission

The CHRC operates within an important and specific statutory mandate. Parliament has entrusted the Commission with implementing the Canadian Human Rights Act, which is based on the principle that:

... all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on 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.⁵

Over the course of discussion about section 67, it has become clear to the Commission that many people do not clearly understand the way human rights redress processes work and their potential impact on communities and individuals. For example, critics have argued that the repeal of section 67 will have a significant destabilizing effect on First Nations communities. Some have compared it to the impact of the 1985 legislation that removed sex discrimination from the Indian Act (Bill C-31), while other critics said it would result in dismantling the Indian Act.

These misconceptions are troubling to the Commission because they may create unrealistic fears. The Commission is also concerned about unreasonable expectations about repealing section 67. Many have predicted that repeal will enable the resolution of a wide range of injustices and inequality not directly related to discrimination. The fact is that repeal will not be a panacea for all the issues Canada and First Nations face in coming to terms with the long history of Aboriginal dispossession, disadvantage and disempowerment. The Commission believes, however, that it will be an important step in that direction.

1. Canada, Canadian Human Rights Commission, A Matter of Rights: Special Report of the Canadian Human Rights Commission on the Repeal of Section 67 of the Canadian Human Rights Act (Ottawa: Canadian Human Rights Commission, October 2005).
2. This bill was re-introduced in the Second Session of the 39th Parliament as Bill C-21. See footnote 4.
3. Statements by Chief Commissioner Jennifer Lynch, Q.C., before the Standing Committee on Aboriginal Affairs and Northern Development on Bill C-44, An Act to Amend the Canadian Human Rights Act, April 19, 2007, and June 7, 2007.
4. Bill C-21: An Act to Amend the Canadian Human Rights Act, 2nd Sess., 39th Parl., 2007.
5. Canadian Human Rights Act, R.S.C.1985, c. H-6, s. 2, Purpose of the Act.