Principle 2: Respect for Aboriginal and Treaty Rights

Section 35(1) of the Constitution Act, 1982 is the constitutional foundation of Aboriginal and treaty rights in Canada:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

The importance of these rights is emphasized in section 25 of the Charter, which makes it clear that Charter rights:

...shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada...

Time and again, First Nations representatives have emphasized the importance of sections 35 and 25. They have done so with good reason. The Aboriginal and treaty rights granted by the Constitution are fundamental. As the courts have emphasized, the "honour of the Crown" rests on proper respect for the rights protected by section 35. The honour of the Crown is, of course, the honour of all Canadians. A successful human rights process cannot be built on the denial of the rights of others.

In the Sparrow case,¹¹ the Supreme Court held that section 35 should be given "a generous and liberal interpretation." The Court also noted that:

The fiduciary relationship of the Crown and aboriginal peoples also means that where there is any doubt or ambiguity with regards to what falls within the scope and definition of section 35(1), such doubt or ambiguity must be resolved in favour of aboriginal peoples.

Decisions of the Canadian Human Rights Commission or the Canadian Human Rights Tribunal are subject to judicial review by the Federal Court of Canada. This provision includes, of course, decisions on questions of infringement of existing Aboriginal and treaty rights or the Charter. Repealing section 67 will not limit the ability of First Nations to challenge the decisions of the Commission or the Tribunal on the grounds of section 25 or 35.

Some have argued that the very existence of section 35 means that the Canadian Human Rights Act cannot and should not apply to First Nations. The Commission does not agree with this viewpoint.

The Commission sees no fundamental conflict between the rights protected under section 35 and the provisions of the CHRA. In fact, almost all the comments and evidence reviewed indicate that most people who have studied this issue believe that the right to be free from discrimination is complementary to, and not in conflict with, section 35. To the extent that conflicts may exist, they can and should be resolved by tribunals and courts.

Human rights are called "human" because they apply to all human beings by virtue of our common humanity. The need for equality, dignity and respect is a common value of all the peoples of the world.

There is not, nor should there be, any hierarchy of rights. This notion was articulated in the UN’s 1993 Vienna Declaration on Human Rights:

All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic, and cultural systems, to promote and protect all human rights and fundamental freedoms.¹²

An interpretive clause

An interpretive clause is a section in legislation that provides direction to administrative or judicial bodies in interpreting and applying a statute. The inclusion of an interpretive clause in the CHRA, in conjunction with the repeal of section 67, would help to ensure that First Nations collective rights and interests are appropriately balanced with the right of individuals to be free from discrimination.

The use of interpretive clauses is well established in constitutional and human rights law. There are many such provisions in the Canadian Charter of Rights and Freedoms. For example, the Charter must be interpreted in a manner that is "consistent with the preservation and enhancement of the multicultural heritage of Canadians" (section 27); that respects gender equality (section 28); and that does not abrogate the right to denominational schools (section 29).

Likewise, sections 15 and 16 of the CHRA allow allegations of discrimination to be adjudicated in light of other legitimate demands, such as the effective operation of a business. The Commission and the Tribunal have extensive experience in balancing competing interests while resolving human rights claims.

In testimony before the Standing Committee, the Commission recommended the following legislative wording for an interpretive clause:

In relation to a complaint made under the Canadian Human Rights Act against an Aboriginal authority, the Act is to be interpreted and applied in a manner that balances individual rights and interests with collective rights and interests.13

Bill C-21 does not include an interpretive clause. The Standing Committee considered adding an interpretive clause to Bill C-21 during clause-by-clause consideration of the legislation in December 2007. However, the Chair of the Committee ruled that the proposed amendment went beyond the original purpose of the legislation, which was simply to repeal section 67. The proposed amendment was withdrawn.

There is an alternative to a statutory interpretive clause. The Commission has the power to make guidelines and issue policies on how the Act is to be interpreted and applied. Such guidelines and policies may possibly be used in place of a statutory provision to ensure the appropriate balancing of interests. In any case, the Commission is committed to working closely with First Nations and other stakeholders on an ongoing basis to develop the required policies and guidelines.

Non-derogation clause

During the discussion on repealing section 67, many interveners favoured including a clause in the legislation making it clear that the CHRA must be interpreted and applied in a manner that does not derogate from section 35.

As previously noted, the application of section 35 is not in question. All laws of Canada, including the CHRA, are subject to section 35. That will not change with repeal. Indeed, it could only be changed by amending the Constitution.

Previous laws passed by Parliament have included non-derogation clauses relating to Aboriginal and treaty rights. However, the use of such clauses has not been without controversy. Legal scholars and parliamentarians have raised concerns about the consistency between the various formulations used and their implications. As a result, the Senate Standing Committee on Legal and Constitutional Affairs undertook a lengthy and detailed study of this issue.

In its December 2007 report, Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights,¹⁴ the Committee recommended that all such non-derogation clauses included in federal legislation enacted since 1982 be repealed and replaced with a single non-derogation clause in the Interpretation Act. The Interpretation Act is the law that stipulates how all federal legislation is to be read. The proposed new provision in the Interpretation Act would read as follows:

Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.

On the day before the Senate Committee issued its report, the Standing Committee on Aboriginal Affairs passed an amendment to Bill C-21 adding a non-derogation clause to the Bill:

The repeal of section 67 of the Canadian Human Rights Act shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the First Nations peoples of Canada, including:

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763;

(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired; and

(c) any rights or freedoms recognized under the customary laws or traditions of the First Nations peoples of Canada.

The Commission is concerned that this amendment could in practice prevent the achievement of equality. The Commission notes in particular sub-paragraph (c), which refers to the customary laws and traditions of the First Nations. The scope of these concepts, unlike Aboriginal or treaty rights, has not yet been explored by the courts.

The Commission acknowledges and respects the customary laws and traditions of First Nations. Indeed, as detailed below, the Commission believes that the development of First Nations-created human rights institutions consistent with these laws and traditions should be welcomed and nurtured. The Commission is, however, concerned that sub-paragraph (c) might have the unintended consequence of shielding First Nations, in whole or in part, from legitimate equality claims, thus re-instituting section 67 in another form.

The determination of how customary laws and traditions should be applied with regard to equality claims from First Nations citizens will depend on the particulars of each claim and the history, traditions and practices of the particular First Nation involved. As such, it is the Commission’s view that such matters would be better dealt with by the Commission and the Tribunal on a case-by-case basis rather than by the application of a blanket provision in the CHRA.

The Senate report identified problems regarding the lack of consistency between the various versions of non-derogation clauses related to Aboriginal and treaty rights that are currently found in federal legislation— problems that the proposed non-derogation clause in Bill C-21 would only exacerbate. In view of those problems, the Commission agrees with the recommendation of the Senate Standing Committee on Legal and Constitutional Affairs that a non-derogation clause should be added to the Interpretation Act that would apply to all federal legislation, including the CHRA.

11. R v. Sparrow, [1990] 1 S.C.R. 1075.
12. Vienna Declaration and Program of Action, World Conference on Human Rights, Vienna, June 14–25, 1993, A/Conf.157/23.
13. Statement 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, June 7, 2007.
14. Canada, Standing Senate Committee on Legal and Constitutional Affairs, “Fifth Report,” 2nd Sess., 39th Parl., December 13, 2007.