First Nations Finally Receive Equal Rights . . . Well, Sort Of

Commentary, Aboriginal Futures, Joseph Quesnel

When the government introduced the Canadian Human Rights Act in 1977, it was acknowledged to be a glaring omission to exclude First Nations people (as defined in the Indian Act) from the Act’s protection. Section 67 was a scandalous clause that kept Aboriginal Canadians from accessing rights other Canadians take for granted.

Their inclusion arrived 30 years later with the final passage of Bill C-21. Canadians should applaud the government for extending human rights protections to First Nations people living on reserves.

Aboriginals who live in communities covered by the Indian Act will be able to file discrimination complaints against the federal government and their band governments if these bodies violate their rights.

The troubling aspects are that it includes provisions favouring First Nation governments, and it could be used to water down the individual rights of Aboriginals.

It favours First Nation governments by including a three-year transitional period before the bill affects them. Aboriginal leaders argued this grace period was necessary to allow their governments to build capacity at the local level, but this is strange given that governments had 30 years to think about it. Government, including the Canadian Human Rights Commission, had been calling for this change since the 1970s. Everyone knew it was coming.

The good news is indigenous people can file complaints against the federal government immediately. However, most discrimination is likely to occur at the band level. Ordinary band members can be denied access to housing, social assistance and post-secondary education aid from their band for political reasons. Band employment is often contingent on family ties. Band councils evict band members from reserves through Band Council Resolutions for asking too many questions. Our Aboriginal policy fellow, Don Sandberg, was evicted from his Manitoba reserve for this reason.

The government is telling First Nations they must wait three more years to access human rights. No other ethnic group in Canada had to face a humiliating transitional period to have their rights enforced.

As they say, justice delayed is justice denied, and this bill tells Aboriginals that three more years of injustice is not a big deal.

The pernicious aspect is the inclusion of a clause that provides direction to administrative or judicial bodies in interpreting and applying the statute. This forces these bodies to ensure “First Nations collective rights and interests are appropriately balanced with the right of individuals to be free from discrimination.”

The same thing occurs with a so-called “non-derogation clause” that says that nothing in this repeal affects “any rights or freedoms recognized under the customary laws or traditions of the First Nations peoples of Canada.”

This clause is not defined. So, in true judicial fashion we must wait until adjudicators with a bias toward government give this clause meaning.

It is fashionable in Canada to recognize rights but then to give governments the power to define them and limit them. Our Charter states that fundamental freedoms to opinion and expression, religion and association are subject to Section 1, which gives government the power to decide on “reasonable limits” to them. This allows courts to pass Draconian bans on ‘hate speech’ the government deems too dangerous as well as bans on tobacco and political advertising. Section 33 of the Charter gives governments the ‘right’ to suspend our rights temporarily.

This interpretive clause could achieve the same thing. Traditional Aboriginal governance structures and cultures do not always respect individual freedoms or women’s rights. If an individual launches a suit against his or her traditional government, what side will judicial bodies support? This clause obliges them to respect community (read government) interests.

First Nations members are frequently denied individual rights. Their Indian identity is defined by government. They were placed on government reserves.

As peoples subjected to past government mistreatment, we should not allow First Nation governments the same opportunity to oppress indigenous people. Oppression of Aboriginals by Aboriginals is still oppression. First Nations need a break from government. Period.

When asked about this bill, Chief Patrick Brazeau of the Congress of Aboriginal Peoples said, “Having something is better than the status quo.” He astutely observed that when a community claims collective rights, the onus is on that community to justify their denial of rights. He is right.

If this bill becomes a carte blanche for First Nation group oppression to continue, it should be revisited.