Canadian Human Rights Act Applies to First Nation Governments on June 18, 2011
The Canadian Human Rights Act (CHRA) will apply to the Indian Act and First Nation governments as of June 18, 2011. This Bulletin provides an update on this change and what it means for First Nations.
The CHRA is a federal law that prevents discrimination in a number of categories such as race, religion, age, gender, disability and others. Section 67 of the CHRA was a specific section that stated the CHRA did not apply to the Indian Act.
In 2008, the Government of Canada announced it would repeal section 67 of the CHRA. When this decision was made, the Government of Canada was required to undertake a study “with the appropriate organizations representing the First Nations peoples of Canada” to identify the “extent of the preparation, capacity and fiscal and human resources that will be required in order for First Nation communities and organizations to comply with the CHRA” (under section 4). In other words, the Government was to work with First Nations to assess how First Nations would be impacted by this decision. The government had two years to do this work.
The Assembly of First Nations strongly urged the government to work directly with First Nations to take the necessary steps to ensure equality rights are protected on reserve lands in a manner consistent with the international human rights system.
Now that section 67 has been removed, the CHRA will apply to the Indian Act and to First Nations Governments. This will have implications for First Nation lands, facilities, buildings and programs in First Nation communities. First Nation governments will no longer be exempt from the CHRA.
Getting ready for the change
First Nations are rightly concerned about the implications of this change. First Nations fully support human rights and fully understand the importance of rights. First Nations have had to fight to protect our own inherent Aboriginal and Treaty rights many times in the past and continue to do so. The concerns are largely to do with the reality that First Nations governments do not have the financial and governance resources to respond effectively to this change. The federal government has not indicated that it will provide any support or assistance to First Nations governments to deal with this change.
The AFN has prepared an assessment of First Nations needs under the CHRA, which is part of a report being presented to Parliament. It is expected that the report will be tabled June 17 and will include the AFN’s report as a chapter as well as reports by the Native Women’s Association of Canada and the Congress of Aboriginal Peoples. The Canadian Human Rights Commission (CHRC) is tabling a separate report on the matter at the same time. The AFN assessment is also available on the AFN website as well as other resources, such as a “Frequently Asked Questions” document, to help First Nations understand the change.
The AFN is also working with the CHRC to provide information, awareness and tools to First Nations. The CHRC is producing a “Human Rights Handbook for First Nations” that will be available soon (AFN broadcast faxed information on the handbook to First Nations on June 10, on behalf of the CHRC). The AFN and CHRC plan to convene an online “webinar” (web seminar) on this issue to fully discuss the implications and actions related to the CHRA and First Nations. Arrangements are also being made to have a representative from the CHRC at the AFN’s upcoming Annual General Assembly in Moncton, New Brunswick July 14-16. This will be an opportunity to engage with CHRC representatives who have responsibility to uphold the CHRA. To be clear, though, the application of the CHRA to First Nations was a decision made by the federal government, not the CHRC. The CHRC’s interest, like the AFN, is to assist First Nations in dealing with the change.
What are the implications for First Nations?
The federal government has done a poor job of informing First Nations about the change and equipping First Nations to deal with it.
It is clear that First Nation governments will have new responsibilities to ensure compliance with the CHRA. For example, public buildings and housing owned by First Nations will have to comply with the CHRA, including meeting the needs of persons living with physical disabilities. Given existing and new challenges regarding capacity and resources at the community level, AFN will advocate that the Government of Canada address capacity, governance and financial issues to ensure First Nations are properly supported in complying with non-discrimination in all their operations, facilities and policies.
Additionally, the ongoing implementation of the CHRA as it applies to First Nations must be done in consultation directly with and in cooperation with First Nations. This is required in order for Canada to comply with and effectively implement its obligations under international human rights instruments as they apply to Indigenous peoples.
It should also be stated explicitly that the application of the CHRA will not prejudice Aboriginal and Treaty rights. Aboriginal and Treaty rights are guaranteed and affirmed in section 35 of Canada’s Constitution and there is a non-derogation clause that further protects these rights. The Constitution is the highest law in Canada’s legal system and is superior to basic federal statute law.
Next Steps
As noted above, the AFN will work to ensure First Nations have information about the change and how to deal with it. A clear commitment must be made by the federal government to support First Nation governments in dealing with this change.
Given the limited resources, one step that can be taken right now is for First Nations to undertake a review of their policies, procedures and practices to ensure compliance with non-discrimination. Secondly, First Nations can also consider developing local fair and impartial dispute resolution procedures as an effective way to resolve complaints.
AFN will continue its work to ensure First Nations are prepared and supported by appropriate capacities and resources through this transition. This includes raising community awareness about the CHRA, carrying out much needed capacity building and training for First Nations leadership and staff and developing First Nations human rights policies, mechanisms and institutions.
First Nations are encouraged to work directly with the Canadian Human Rights Commission to seek ways to ensure the CHRA in First Nations is managed properly.
Canadian Human Rights Act - draft FAQs
