Principle 3: Respect for Self-government

The inherent right to self-government

First Nations have an inherent right to self-government. This fact has long been recognized by the Government of Canada and has the Commission’s full support.

Some First Nations leaders have argued that the right to self-government automatically means that the CHRA should not apply to First Nations in any circumstance. They argue that First Nations should be allowed to implement their own human rights systems as they see fit, in a manner consistent with their customs and traditions.

The first thing that must be emphasized is that the Commission encourages all organizations it deals with to prevent and resolve human rights issues without recourse to the formal mechanisms and statutory provisions of the CHRA. In the context of the Commission’s usual work, that means resolving issues through informal workplace processes such as alternative dispute resolution or internal conflict management systems.

The need for First Nations to develop their own human rights systems is, of course, even more compelling—in fact, essential—given the inherent right to self-government. Human rights protection is an important function of government and, given the history of exclusion and discrimination suffered by First Nations and their citizens, must be part of any Aboriginal government system.

When repeal occurs, the Commission will work with First Nations so that they can develop their own systems for resolving human rights issues. To encourage development in this direction, the Commission issued a research study in 2007, Alternative Dispute Resolution (ADR) in Aboriginal Contexts: A Critical Review.¹⁵

The Commission supports the inclusion of anti-discrimination provisions in comprehensive self-government agreements and legislation. Parliament, in consultation with First Nations, may also wish to consider the eventual adoption of a First Nations Human Rights Act that would apply to all or a group of First Nations.

Such developments would be similar to the process followed in the territories. In its early years, the CHRC had jurisdiction over human rights issues in the Northwest Territories and Yukon. However, as the territories, including the new territory of Nunavut, passed their own human rights codes, responsibility was transferred from the CHRC to its new territorial counterparts.

The Commission is proud of the effectiveness and efficiency of its dispute resolution services. In recent years, a reorientation of its processes has placed greater emphasis on mediation and expedited complaints handling. As a result, most complaints are resolved quickly, often by means of a settlement between the parties. Few complaints require litigation.¹⁶

However, it is neither the purpose of the CHRA, nor the aim of the Commission, to impose one means of resolution for all human rights disputes. The purpose of the Act is to ensure that all Canadians can lead their lives without being discriminated against because of their age, sex, disability or any of the other prohibited grounds of discrimination. The statutory complaints process is a tool to ensure that citizens have a means to redress human rights complaints. However, other tools can also achieve that aim and should be used where appropriate.

Nevertheless, in most circumstances, First Nations citizens currently have no means of redressing human rights complaints through the Commission or through First Nations-specific resolution systems. That has been the case for 30 years. It is unacceptable and must be resolved urgently. Repealing section 67 will ensure that all First Nations citizens have a means of redressing human rights complaints.

Principle 4: Adequate funding

Throughout the discussions of repeal, there has been a debate about how much funding will be required to adequately implement the legislation. No matter how good a human rights system may appear on paper, it will not be effective unless adequate funding is provided to implement it properly.

The Commission does not have the resources to address the new demands resulting from repeal. At the moment, very limited resources are dedicated to addressing Aboriginal issues currently within our mandate. Current resources would not allow the Commission to fulfil its commitment to work closely with First Nations communities to implement the repeal—especially with regard to providing expertise to aid development of First Nations-run dispute resolution processes and of an interpretive provision.

The Commission has discussed its potential resource needs with the Government of Canada. The government has indicated that when legislation is passed, it will consider the Commission’s funding requirements.

The situation is also unclear with regard to the funding needs of First Nations. The government has acknowledged that additional funding will likely be required but has not been more specific. Given pressing social concerns, such as the need for adequate health services, housing, water and education, First Nations leaders are understandably concerned about finding the funding to deal with the impact of repealing section 67.

Until the final legislative scheme is clarified, the transition period confirmed and other implementation issues addressed, it will be difficult to assess the overall impact of repeal on First Nations or to determine the funds that will be required. Potential First Nations activities that may require funding include human rights training; measures to review policies or practices to gauge their compliance with human rights legislation; dialogue with the Commission on such issues as the balancing of collective and individual rights; and the development of internal human rights redress processes.

Another important issue is the potential impact of human rights settlements or Tribunal decisions. For example, if a First Nation is found to have discriminated against a person with a disability by not providing an accessible facility, where will the funds come from to make the facility accessible? These are all potential funding pressures that should be addressed.

Although the quantum of funding required cannot be ascertained at present, the Commission urges that the funding issue be kept in perspective. Repeal will require both the Commission and First Nations to expand their institutional capacities to ensure effective implementation. However, the overall cost of implementation, which will be spread over several years, should be relatively modest.

15. This paper examines several common challenges in Aboriginal and Western paradigms, including issues of power, cultural differences, language barriers, and the effects and impacts of colonialism. It examines differing world views in relation to dispute settlement, and conceptualizes the Aboriginal paradigms and Western paradigms based on these differences. By so doing, this paper adds to the literature that distinguishes between Aboriginal paradigms of dispute resolution and the "indigenization" of Western paradigms.
16. For more information, see Canadian Human Rights Commission, “Innovative Change Management: an alternative to legislative change”.