Human Rights Act review underway

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The Canadian Human Rights Act Review Panel came to this city Oct. 27 and 28 to get public input into the effectiveness of the 22-year-old act. The panel conducted a roundtable for non-governmental organizations based on a consultation paper the Canadian Human Rights Commission released in July. Minister of Justice and Attorney General of Canada Anne McLellan announced the legislative review last April and gave the panel a year to submit recommendations for change to the government.

The review is supposed to make sure the act is in line with modern human rights and equality principles and determine whether the act is broad enough in scope and whether current exemptions should remain. The commission is also examining the present complaints-based model to see where or if it can be made to provide better protection against individual and systemic discrimination. Finally, it is looking at the powers and procedures of the Canadian Human Rights Commission and the Human Rights Tribunal.

Significantly, there were no Aboriginal people on the panel conducting the review. Several roundtable presenters from Native organizations, however, made oral submissions on a variety of matters and were asked to provide written briefs. They were granted anonymity unless it was their own wish to disclose. Media were restricted, except in the capacity of observers, at the roundtable.

The Native Council of Canada for Alberta (NCCA), was represented by Keith Chief Moon from Treaty 7 and NCCA Executive Director Richard Long. They presented a brief outlining suggestions for dealing with Section 67 of the Canadian Human Rights Act, which they say discriminates against treaty Indians because it omits them from the protection of the legislation. The section states "Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that act."

The offending section was up for review 10 years ago, and the fact that it remains, untouched, is a thorn in the side of NCCA. In 1990, the Canadian Human Rights Commission chairman Maxwell Yalden wrote the Native Council of Canada (now the Congress of Aboriginal Peoples) in Ottawa that the commission was recommending a parliamentary review of Section 67.

NCCA's present position is that both the Indian Act and Section 67 of the Canadian Human Rights Act are "anachronisms." They say Section 67 prevents the commission from getting involved in discrimination cases brought forward by treaty Indians. A big issue for NCCA is the lack of human rights protection for so-called "C-31 Indians" who are denied band membership and full status rights despite the 1985 Indian Act amendments that reinstated these provisions. According to the NCCA, 20 Alberta First Nations are denying eligible people band membership.

NCCA put forth three options for dealing with Section 67: the least favored is to leave it unchanged. Alternatively, delete 67 they say, replace it with nothing, and let "subsequent legal consequences fall where they may." The final option, which the NCCA is recommending to the review panel, the Minister of Justice and Parliament, is to replace 67 with "something new, reflecting 21st century realities, particularly the rights of individual Indian, Métis and Inuit peoples vis-a-vis Indian, Metis and Inuit collectivities."

Specifically, the NCCA wants an "Aboriginal Bill of Rights." To support their demands, they quote a federal policy document from August 1995, wherein Justice Minister Anne McLellan and former DIAND minister Ron Irwin stated, "Self-government agreements, including treaties, will, therefore, have to provide that the Canadian Charter of Rights and Freedoms applies to Aboriginal governments and institutions in relation to all matters within their respective jurisdictions and authorities."

Doris Ronnenberg, president of the NCCA, was contacted following presentation of the organization's brief. She said she has discussed the concept of an Aboriginal bill of rights in Nnavut, and one senator told her they would need "something like that to protect the individual rights of the people within their collectivity. So it has to work not only for Indian people on and off reserve, it has to work for other Aboriginal people like Métis and the Inuit. We felt," Ronnenberg said, "since Canadians have a Bill of Rights, and as self-government is progressing, we need something to protect the individual rights of people within the self-government process.

The mechanism the NCCA recommends to create an Aboriginal bill of rights is to amend Section 35 of the Constitution, which currently affirms "existing Aboriginal and treaty rights." They want 35 to explicitly protect "the rights of individual Indian, Métis and Inuit peoples from Aboriginal collectivities."

To get the bill enshrining individual equal rights protection for Native people passed, the Canadian government and a majority of provinces would have to agree. If passed, such a constitutional amendment would be the first since the Constitution was repatriated in 1982.

In the meantime, the NCCA states that if section 67 of the Canadian Human Rights Act is cut out prior to the creation of an Aboriginal bill of rights, "no real harm would ensue." They also say consultation with both Aboriginal and non-Aboriginal interested parties would have to be done to "harmonize" wording of the new bill with other sections of the Canadian Human Rights Act.

That's not the way Mel Buffalo of the Indian Association of Alberta, who was contacted regarding his published contrary viewpoint, wants to proceed.

"One of the main reasons [we object]," Buffalo said, "is the issue of collective rights versus individual rights, and the collectiveness of our culture and our people and the Indian-ness that I was trying to put forth in the rationale for that, and what the individual rights would do would be to undermine that process.

"We have had several court cases that have agreed with me on that point and we would now b speaking against that process if we were to proceed on the individual basis. And I think," Buffalo added, "there is ways and means of addressing the concerns of individuals without having to throw the baby out with the bath water ."

Buffalo was asked his opinion of a separate Aboriginal bill of rights.

"If it acknowledges and recognizes the fact of the collectiveness of our culture, our people - it has to have that. If it doesn't, then, yes, I would be opposed to it," he said. He said if an Aboriginal bill of rights is created it should be "acknowledged at the international level" as well, to make it stronger.

He says there are other means of dealing with problems such as the exclusion of C-31 Indians from band status.

"We have our circles, we have our cultural processes in place to deal with conflicts . . . and we've had those for centuries." He adds that although traditions fell into disuse for a time, they're now being revived and are working.