Jul. 05, 2011 - Issue #820: Bestest of Edmonton

A matter of rights

Winning rights is only the beginning

Nearly 40 years coming, the repeal of Section 67 of the Canadian Human Rights Act on June 18 means Aboriginal Canadians living on reserves can file human rights complaints against their local reserve governments.

"It helps an individual where they had no redress previously," says John Edmond, an Ontario lawyer specializing in Aboriginal issues. Previously, Aboriginals living on reserves couldn't file complaints with provincial human rights commissions because they didn't have jurisdiction. And they couldn't go to the federal human rights commission because it was prohibited by the Act, explains Edmond: "It's a big change for the individual."

Now individuals can file complaints based on discrimination in hiring practises, according to religion, age, sexual orientation and other grounds found within the Act. "It doesn't cost the individual to bring a complaint forward," says Edmond. "The commission evaluates it and if they determine it a valid complaint it moves forward and eventually could reach the tribunal."
The section originally exempted complaints from being filed with the Human Rights commission because the Indian Act was under review in 1977, and so certain sections of the Act could have been found discriminatory before the review even occurred.

"This final step in the repeal of Section 67 of the Canadian Human Rights Act ensures that First Nation people have the same human rights protections as all Canadians," said Aboriginal Affairs and Northern Development Minister John Duncan in a statement released on the day the section was repealed.

But Assembly of First Nations Chief Shawn Atleo was not as optimistic. "Currently, First Nations lack the capacity and resources to effectively implement the changes that come as a result of the repeal of Section 67 of the Canadian Human Rights Act," Atleo stated, just previous to the change taking affect.

Though the repeal received royal assent in 2008, implementation was delayed three years to help reserve governments and band councils prepare for its implementation, but Atleo believes there are still pieces missing, saying, "Clear commitments must be made in order for First Nations to be in a position to ensure respect for human rights."

Potential problem areas could include election procedures for band councils, leadership selection and band membership. According to the Congress of Aboriginal People, more than half of band councils use an election process different than that found under the Indian Act. If that election process is found to discriminate against participants according to any of the grounds found in the Canadian Human Rights Act, Aboriginal members now have grounds for appeal. Other potential problems could arise with publicly owned housing and buildings, which now have to comply with the Act, including meeting the needs of those with physical disabilities.

But complexities arise when considering ultimate responsibility for equality of conditions. Meeting the needs of those with physical disabilities is now a responsibility of the band council, but with public funding coming from the federal government at an unequal level than that in a provincial context, the band council itself may have a case of discrimination against the federal government.
"The band council would say, theoretically for the level of education, the per-student allocation here is x per student per year, whereas provincially it would be y number of dollars and so they would say that's a discrimination based on race and the federal government would say, 'Well, no, that's not in the [Canadian Human Rights] Commission's jurisdiction,' and then it would go to court," Edmond explains.

And the repeal doesn't solve the problem of the Indian Act itself being a discriminatory document. As the Congress of Aboriginal People National Chief Patrick Brazeau pointed out to a House of Commons committee considering the repeal, "The federal government has spent a great deal of time, effort and money trying to support the establishment of the modern fundamentals of good governance on Indian Act reserves. It has also spent an extraordinary amount of money and effort defending the Indian Act from court challenges. Much of this effort has stemmed from the Indian Act's outdated and inadequate direction on governance-related matters within the Act's band council governance system."

But Brazeau was quick to point out the Congress hoped for a speedy repeal of Section 67 in an attempt to change electoral procedures which may discriminate based on religion, marital status or residency. "Sadly, at this point in our history, we know that Canada has failed to address a significant source of real and potential discrimination against Aboriginal peoples in Canada," stated Brazeau. "Thankfully, the repeal of Section 67 from the Canadian Human Rights Act will begin to deal with this pressing issue."

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