Human rights commissioner targets Indian Act

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The shield in the Canadian Human Rights Act (CHRA) that prevents those living under the Indian Act from filing human rights complaints is under attack from several directions.

Section 67 of the CHRA is one sentence long.

"Nothing in this act affects any provision of the Indian Act or any provision made under or pursuant to that act," it states.

Since 1977, that one sentence has meant the Canadian Human Rights Commission (CHRC) cannot hear human rights complaints against chiefs and councils, or against the federal government in some cases. Grassroots First Nation activists have long complained that they are not offered the same protections as other Canadians and are suffering as a result.

Chief Commissioner Mary Gusella opened her Oct. 26 press conference in Ottawa by calling the issue a "national and international embarrassment."

"This is a very important priority for me as chief commissioner. The fact that there is a hole in the fabric of human rights protection in this country, I think, is an unacceptable situation. That's why we want Parliament to address it on a priority basis," Gusella said. "This morning we are here to ask Parliament to act now to provide all First Nations people with the full protection of the Canadian Human Rights Act."

Mere days after Gusella made those remarks, the United Nations Human Rights Commission (UNHRC) weighed in on the same subject.

The UNHRC tabled its "concluding observations" on Nov. 2, following the review of Canada's fifth periodic report under the International Covenant on Civil and Political Rights. In its report, the UNHRC committee raised several issues regarding Aboriginal rights in Canada, including the fact that Section 67 allows discrimination as long as it can be justified under the Indian Act.

And the day before the CHRC issued its call, on Oct. 25, Senator Noel Kinsella tabled Bill S-45 in the Senate asking for the immediate repeal of Section 67. His stated reasons were almost identical to those of the CHRC.

On Nov. 1, the Minister of Indian Affairs and Northern Development, Andy Scott, said the government was "looking forward to reviewing the recommendations of the commission to determine the appropriate next steps required to address this issue."

The CRHC wants to phase in the legislative changes that will be required to get rid of the offending section.

Section 67 was included in the CHRA when it was first drafted in 1977. The reason given at the time was that it would give the government time to address the issues that led to an amendment to the Indian Act. That amendment, Bill C-31, sought to eliminate the sexual discrimination against Native women who lost their status after they married non-Indian men even though Native men did not lose their status when they married non-Native women. It was to have been a temporary measure.

"Twenty-eight years is far too long to wait for fundamental rights. First Nations people, like all other residents of Canada, are entitled to protection from discrimination; anything less is unacceptable," said Kelly Russ, who led the development of the special CHRC report on the subject.

The report is entitled "A Matter of Rights."

Russ, a member of the CHRC, is a Vancouver-based lawyer who works on Aboriginal rights issues. He's also a citizen of the Haida Nation.

The special report notes that it can easily be argued that Section 67 is contrary to the Canadian Charter of Rights and Freedoms, as well as several international human rights instruments to which Canada is a party.

The CHRC wants Section 67 repealed as soon as possible. The special report recommends that there be an 18- to 30-month transition period to allow the commission and First Nations to properly prepare for the application of the CHRA in areas from which it was previously excluded.

The special report states that human rights protection should be introduced in a way that respects the rights and interests of First Naions.

"An interpretative provision will be necessary," said Kelly Russ, "to guide the commission, the Human Rights Tribunal and the courts to apply the act in a way that appropriately respects the legitimate collective rights and interests of First Nations communities." During the proposed transition period, the CHRC recommends that the government carry out consultations with First Nations on interpretation issues.

"The report is the first phase. The next phase, once the repeal has occurred, will focus on implementation, but to make it happen First Nations will have to be fully involved at every step of the process," he added.

It may seem like a motherhood issue that human rights protection should be extended to First Nation reserves. But an academic with an extensive track record of watching how Ottawa deals with First Nations said repealing the offending section is not the only, or even necessarily the best way to do it.

"The report of the CHRC is very likely the impetus that led Senator Noel Kinsella to introduce Bill S-45 to repeal Section 67 of the Human Rights Act," said Michael (Mickey) Posluns, a Native studies professor at St. Thomas University in Fredericton who spent many years in Ottawa.

"What neither he nor they seem to appreciate is that their well-intentioned efforts will serve mainly to reinvigorate Canadian colonialism. Genuine self-government . . . would require each First Nation government to adopt its own human rights code. What the CHRC and Senator Kinsella are doing is making Canadian colonialism more palatable to those who are doing the colonizing."

The more First Nations are subjected to the control of Canadian authorities, the more distant the goal of self-government becomes, he added.

"Genuine self-government would require that Canada pass legislation that would keep provinces from intruding into First Nations matters and then, the hardest thing of all, it would require that Canada, in all its many facets, develop a prctice of 'no-policy,' i.e. not having federal policies in any of those fields that would properly belong to First Nations," Posluns said. "Just because something is a good idea does not mean that it is sound policy for a colonial power to inflict that good idea on a colony. If Canada really wants to support self-government then the government, the Opposition, both houses and even the Human Rights Commission will need to learn to stay out of legislative fields that properly belong to First Nations. Federal law does not apply to provinces. The same laws ought not to apply to those First Nations that choose to write their own constitutions and establish their own institutions."