"Still a Matter of Rights"

A Special Report of the Canadian Human Rights Commission on the Repeal of section 67 of the Canadian Human Rights Act

Issue

The Commission is releasing the report Still a Matter Of Rights to support the repeal of section 67 of the Canadian Human Rights Act.

1. What is section 67?

Section 67 is the last section of the Canadian Human Rights Act. Section 67 states the following: "Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act." As a result, First Nations people, living both on and off reserve, are denied full access to the human rights complaint resolution system available to other Canadians.

2. Why does the Commission want to repeal section 67?

Section 67 restricts the ability of First Nations people living on or off reserve to file complaints of discrimination dealing with the Indian Act.

As a result of section 67, some actions carried out by the Government of Canada or a First Nation government (or by a related agency, such as a school board) can be exempt from human rights scrutiny. Given the broad scope of the Indian Act, which affects many aspects of the daily lives of First Nation people, the impact of section 67 is significant.

3. What are the main recommendations of the Report?

The report is a follow-up to A Matter of Rights, issued in 2005, and recommends that:

• Section 67 of the Canadian Human Rights Act be repealed immediately.

• Repeal legislation include a transition period of 18 to 30 months before complaints can be filed against a First Nation or a related Aboriginal authority.

• Repeal legislation not contain a non-derogation clause. Given that previous laws passed by Parliament have included non-derogation clauses that raise concerns about consistency between the various formulations used and their implications,the government consider the recommendation of the Senate Standing Committee on Legal and Constitutional Affairs that all such non-derogation clauses included in federal legislation enacted since 1982 be repealed and replaced with a single non-derogation clause in the Interpretation Act.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 government of Canada ensure that both the CHRC and First Nations have the resources necessary for effective and ongoing implementation of repeal.

4. What has changed since the first report was issued?

The Commission has heard opinions and ideas expressed by First Nations leaders, organizations representing First Nations people across the country as well as that of many witnesses before the Standing Committee on Aboriginal Affairs. These discussions have informed our thinking, allowing us to comment with more precision on things like an interpretive provision, activities to undertake during a transition period in preparation for repeal and the need to develop First Nation capacity to prevent and resolve human rights disputes internally.

5. Why has the Commission chosen this particular time to release Still a Matter of Rights?

The Commission saw this as an opportunity to inform the public dialogue on the question of repeal, while the Bill is still at the Standing Committee. We did not want it to lose momentum, as the removal of this exemption has already taken far too long. Issuing an updated report, that reflects on some of the key questions raised during the parliamentary process, can help set the stage for repeal and avoid the impasse that has plagued previous bids to repeal the exemption.

6. What are some of the impacts of section 67?

The impacts of section 67 can be better appreciated by considering some of the matters provided for under the Indian Act:

• registration or non-registration of someone as a First Nation member;
• use of reserve lands;
• occupation of reserve lands;
• wills and estates;
• education;
• housing;
• ministerial decisions with regard to incompetent individuals and guardianship; and
• the enactment of by-laws.

A further anomaly in the operation of this exemption is the fact that self-governing First Nations, operating outside the Indian Act, are subject to the CHRA.

7. What was the original rationale for section 67?

At the same time that the CHRA was being considered by Parliament, discussions were underway with First Nations leadership on how to remove sexual discrimination from the Indian Act. The government of the day thought it prudent to not apply the CHRA to the Indian Act until this matter was resolved. As a result, section 67 was added to the CHRA. The Indian Act was amended in 1985 to remove sexual discrimination but the CHRA has yet to be amended.

8. Has the Indian Act ever been amended in regard to human rights?

In 1985, pursuant to Bill C-31, Parliament amended the Indian Act to abolish sexual discrimination against women who married non-Indian men.

9. What are the redress mechanisms currently available to First Nations to deal with human rights issues?

The courts have interpreted section 67 narrowly. This allows the Commission to deal with some complaints from people living on-reserve. However, if a person wishes to file a complaint about a matter relating to the Indian Act, they are usually barred from doing so and have no other recourse available to them.

10. Is there a comparative situation elsewhere in the world?

No.

11. What role could the Commission play during a transitional period?

During the transition period the Commission would assist or lead in the development of an interpretive clause in consultation with First Nations and work on the development of the human rights infrastructure, both at the community and Commission level, needed to ensure an effective human rights system.

12. Will the Commission follow-up to ensure that actions are taken?

The Commission will continue to discuss the matter with the Government and First Nations until section 67 is repealed.

13. Is the CHRC able to deal with a potential increase in the number of complaints it could receive?

It is not possible at this point to estimate how many additional complaints will be received. The transition period will give an opportunity for the Commission to better gauge the potential impact of the repeal of section 67 and put in place measures to deal with it effectively.

14. What are the next steps?

The Commission will continue to urge Parliament to act on its recommendations.