Canada Corrects Historic Human Rights Injustice - But Legal Battles Could Thwart Parliament's Intent
A legislative gap long seen as a black mark on Canada's human rights record will finally be closed on June 18, 2011 when, for the first time in more than 30 years, First Nations and other Aboriginal people will have the same human rights protections as everyone else in Canada.
This means they will be able to take action against First Nations governments as well as the Government of Canada when they experience discrimination in decisions affecting their daily lives.
"The Canadian Government has taken an important step toward correcting this historic injustice," David Langtry, Acting Chief Commissioner of the Canadian Human Rights Commission said.
"The purpose of the Canadian Human Rights Act is to ensure equality of opportunity and freedom from discrimination for all people in Canada. The exclusion of people governed by the Indian Act from human rights law was discriminatory and contrary to democratic principles," he said.
June 18 marks the end of a three-year transition period that delayed the full application of Bill C-21. This law corrects the fundamental injustice of denying people governed by the Indian Act recourse against human rights violations. Over 700,000 people, primarily residents of First Nations communities, are affected by this change.
While C-21 was immediately applicable to the federal government, Parliament gave First Nations governments three years to prepare to meet their new obligations under the Canadian Human Rights Act.
On reserves, Ottawa funds health and social services that are usually provided by provinces and territories, such as education and child welfare. Extending the Canadian Human Rights Act to First Nations and other Aboriginal people means they can file discrimination complaints against First Nations governments as well as the Canadian government concerning the delivery of those services.
The exclusion of the Indian Act from the 1977 Canadian Human Rights Act under section 67 was intended to be temporary. However, attempts over the years to repeal that section were unsuccessful. The Canadian Human Rights Commission had repeatedly called for repeal, as did the United Nations.
When Parliament repealed section 67 in 2008, the Commission began assisting First Nations to build awareness and develop capacity to address human rights issues. The Commission summarized this work in a Special Report to Parliament. Legal challenges
Litigation currently underway could significantly affect the impact of including First Nations communities under the Canadian Human Rights Act.
A case currently before the Federal Court of Canada is an example. The First Nations Child Welfare case originated with a complaint to the Commission that federal funding for child welfare services on reserve is inequitable and discriminatory.
The Attorney General of Canada is arguing to dismiss the case on the grounds that the Canadian Human Rights Act does not apply to federal government funding for services to First Nations communities.
The Canadian Human Rights Commission is challenging this interpretation, as it would give the federal government sweeping immunity from human rights law while leaving First Nations governments solely accountable for breaches of the Act.
"Report after report, notably by the Auditor General, document the inequities of living conditions on reserve," Acting Chief Commissioner Langtry said. "Full access to human rights protection has the potential to be a catalyst for real, tangible, positive change," he said.
"However this could be nullified if the Attorney General succeeds in imposing such a narrow definition on the federal government's obligations," he said. "That would perpetuate discrimination, instead of ending it, as Parliament intended."MORE DETAILED INFORMATION AND LINKS
Section 67 of the Canadian Human Rights Act:
•Section 67 prohibited people from filing discrimination complaints about their treatment under the Indian Act against the Government of Canada and First Nations governments.
•When Parliament excluded the Indian Act from human rights law, it was meant to be a temporary measure. The government of the day had intended to reform the Indian Act and wanted time for consultations. That was back in 1977.
•In 2005 and 2008, the Canadian Human Rights Commission tabled special reports to Parliament urging the removal of this exemption from Canada's human rights legislation.
•In June 2008, section 67 of the Canadian Human Rights Act was repealed. Parliament made the change immediately applicable to the Government of Canada. First Nations governments were given a three-year transition period to prepare for the change.
•During the transition period, the Commission began raising awareness of the Canadian Human Rights Act within First Nations communities. This included strengthening the Commission's relationship with First Nations communities and providing information to First Nations governments as they prepared for their new responsibilities.
•Since 2008, the Commission has accepted 21 discrimination complaints against the Government of Canada related to the Indian Act.
•June 18, 2011, is the first day that the Canadian Human Rights Act will be fully applicable to First Nations governments.
•As of June 18, the Commission will be able to accept complaints against First Nations governments related to issues such as matrimonial property, band membership, gender rights and government accountability. Due to the Commission's awareness-building activities, many more complaints dealing with matters not related to the Indian Act (such as the rights of people with disabilities) may also come forward.
•Under the Canadian Human Rights Act, First Nations children should now have the right to the same quality of child and family support on reserve as they would everywhere else in Canada. Similarly, decisions about housing or about who can reside on land can now be challenged under human rights law. The Canadian Human Rights Act prohibits discrimination based on age, sex, race, family status and seven other grounds.
The Welfare of Children on Reserves
•The First Nations Child and Family Caring Society of Canada and the Assembly of First Nations filed a complaint with the Commission. In the complaint they stated that First Nations child welfare organizations receive less funding than agencies serving children off reserve.
•In 2009, the Commission referred the complaint to the Canadian Human Rights Tribunal.
•The Attorney General of Canada challenged the complaint, arguing that the provision of funding to First Nations child welfare organizations is not a "service" as defined in the Canadian Human Rights Act.
•The Commission disagrees with the Attorney General of Canada's position. The Commission represented the public interest before the Canadian Human Rights Tribunal, which dismissed the complaint in March, 2011.
•Given the potential impact of this case on the jurisdiction of the Canadian Human Rights Act , the Commission filed an application to Federal Court for judicial review, effectively appealing the Tribunal's decision.
•The documented impact of funding disparities on the welfare of vulnerable children on reserves makes this a humanitarian issue of national importance.
•Do You Know Your Rights (website): http://www.doyouknowyourrights.ca
•Your Guide to Understanding the Canadian Human Rights Act (2010): http://www.chrc-ccdp.ca/publications/naichract_loicdpina/toc_tdm-eng.aspx
•Now a Matter of Rights - Extending Full Human Rights Protection to First Nations (2011): http://www.chrc-ccdp.ca/proactive_initiatives/nmr_eqd/toc_tdm-eng.aspx