What we heard
Since A Matter of Rights was issued, the Commission has had the opportunity to discuss the repeal of section 67 with representatives of key First Nations organizations and governments; members of Parliament; and government officials. The hearings on Bill C-44, held by the Standing Committee on Aboriginal Affairs in spring 2007, provided an opportunity for many stakeholders to voice their views.6
The Commission has listened and learned. Listening and learning is, after all, key to building, designing and implementing an effective human rights system. Indeed, it is the only way it can be done.
The Commission has undertaken modest outreach activities on its own initiative, albeit with limited resources. The purpose of these meetings was to share information with organizations representing First Nations people across the country; provide our perspective on the need for repeal; and invite preliminary dialogue on the most effective methods of repeal. Our staff and commissioners have met with individuals and First Nations leaders. We have corresponded with more than 30 regional First Nations organizations, participated in conferences organized by First Nations women, and made presentations on repeal at gatherings of chiefs and in other fora. Some of our provincial counterparts have also engaged in talks with Aboriginal people on how human rights protections could be made more effective and accessible, and we have benefitted from this dialogue.
But all of these discussions are just a beginning.
In listening to our First Nations colleagues from coast to coast, we discerned broad themes. Taken together, they demonstrate both an ambivalence about being asked to comply with what some First Nations people have labelled an example of "colonialist oppression" and the absolute need to better protect the rights of people who are among the most disadvantaged in Canada.
The duty to consult
The perspective of many witnesses before the Committee, including the Assembly of First Nations (AFN), is that government has a clear duty to consult with First Nations on any matter that could affect treaty or Aboriginal rights, and that it is a matter of the honour of the Crown.7 Still others advised that consultation must be on a nation-by-nation basis, and that consultation with "anyone else claiming to represent us is invalid."
The Native Women’s Association of Canada (NWAC), among other groups of First Nations women, has long called for repeal of section 67. NWAC has noted, however, that acting on legislation without a meaningful process of consultation and without building needed community capacity could "lead to disaster."8 The majority of witnesses before the Standing Committee echoed the need for consultation, albeit for different reasons.
On the other hand, parties such as the Congress of Aboriginal Peoples (CAP), representing off-reserve Aboriginal people, assert that 30 years has been long enough, and that spending more time in discussion or dialogue is fruitless, as immediate action on repeal is needed.
As determined by the Supreme Court,9 the legal "duty to consult" on matters relating to treaty rights rests with the Crown. It is unclear whether the duty to consult extends to legislative actions. As an independent arm’s-length agency of the Government of Canada, the Commission does not represent the interests of the Crown and, therefore, cannot be involved in this type of consultation. The Commission is, however, committed to engaging First Nations in dialogue, to obtain input and to seek collaboration in implementing repeal. We deal with this issue in more depth in the section of our report regarding Principle 5, an adequate transition period.
Recognition of self-government and nationhood
Some First Nations leaders have opposed the repeal of section 67 on the basis that First Nations should be considered sovereign nations, with their own laws and customs, and that neither the CHRA nor other federal or provincial legislation has effect on First Nations territory. We have heard eloquent and moving testimony about the "nation to nation" treaties signed by our Aboriginal and non-Aboriginal forebears, and fears that government action could extinguish collective Aboriginal and treaty rights. These leaders resist the extension of human rights legislation not on the basis of resistance to human rights principles, but on the basis that this legislation is not their own and is therefore not consistent with section 35 of the Constitution Act, 1982, which recognizes and affirms Aboriginal and treaty rights.
Respect for collective rights
Many witnesses contended that Aboriginal and treaty rights are experienced collectively, and that First Nations people, having a unique legal and constitutional status, have the right to their customary laws and beliefs. Land can be held collectively by a First Nation, for example, and is not considered to be subject to the individual property ownership rules that exist in most Canadian municipalities. Similarly, Aboriginal people enjoy historical and legally recognized Aboriginal rights—such as the right to fish or harvest timber, and benefit from other natural resources—collectively. At least one First Nations leader compared repeal—without a mechanism to balance collective and individual rights—to "throwing a grenade into collective rights and into the Indian Act." Others thought the need to recognize individual rights and the need to protect the most vulnerable people were as important as collective rights and interests, which are already guaranteed by section 35.
A matter of trust
A number of First Nations representatives said government and its bureaucrats have treated their people unjustly: forcing them to move onto reserves; outlawing their customs and spiritual ceremonies; forcing their children into residential schools or a non-Aboriginal child care system; and putting at risk their traditions, languages, cultures and lifestyle. People we heard from recalled with sorrow Canada’s failure to implement the recommendations of the Royal Commission on Aboriginal Peoples, the unfulfilled promise of the Kelowna Accord and Canada’s vote against the United Nations Declaration on the Rights of Indigenous Peoples. All of these factors influence the degree to which First Peoples trust that action to extend human rights protection is truly in their interests.
The urgency to act
Some witnesses before the Committee said government should act immediately to repeal section 67, and that no additional delay or even transition period should be countenanced in considering the basic extension of human rights protections. Others thought First Nations organizations would need a minimum of 36 months to prepare for the effects of repeal. At least one witness said repeal should be postponed indefinitely, on the basis that the CHRA should have no application at all on First Nations territory. But the observations of one elder at a conference of First Nations women this summer was particularly striking. She opined that, "If our communities were perfect, we would not need this protection. But they are not, and we do."
Together, on a new path
In almost all of the Commission’s interactions with First Nations organizations, governments and individuals, it has become clear that, despite differences in vision—and differences of opinion on timing, implementation, and ways to balance individual and collective rights—there is a willingness to work together to improve the circumstances of, and access to human rights protections for, First Peoples.
Principles for First Nations Human Rights Redress
Building a First Nations human rights redress process is about much more than passing legislation. For human rights redress to be effective, First Nations, the Government of Canada and the Commission must work together to build a redress mechanism that will serve the unique needs and situation of First Nations and protect the rights of all citizens.
For its part, the Commission has continued to reflect on underlying principles it considers to be important to developing a successful redress process. In doing so, the Commission does not wish to be prescriptive. It is, as always, open to other perspectives.
In the Commission’s view, an effective system must incorporate the following key principles:
- freedom from discrimination;
- respect for Aboriginal and treaty rights;
- respect for self-government;
- adequate resources;
- an adequate transition period; and
- discrimination prevention.
6. For
transcripts of the hearings on Bill C-44 held between July 26, 2006, and March 22, 2007.
7. Standing Committee on Aboriginal Affairs and Northern Development, March 29, 2007.
8. NWAC President Bev Jacobs, Native Women’s Association of Canada, News Release (December 13, 2006).
9. Haida Nation v. British Columbia (Minister of Forests) and Weyerhaeuser, 2004 SCC 73 (“Haida”) and
Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 (“Taku”).