Overdue Human Rights Law Applies to Band Governments: Important issue is how law will be applied

Commentary, Aboriginal Futures, Joseph Quesnel


Human rights laws are a mixed bag at best, but sometimes they can be used to counter legitimate government discrimination.
As of June 18, 2011 we’ll begin to find out.
That’s the day the Canadian Human Rights Act comes into effect on Canada’s over 630 First Nations. In June 2008, the federal government passed Bill C-21, a piece of legislation that repealed a section in the Canadian Human Rights (Section 67 specifically) that excluded Natives under the Indian Act from human rights protection.
The exemption had been in effect since 1977, but the Conservative government got around to repealing it. The law applied immediately to the federal government, so band residents could file claims against Ottawa right away.
The kicker was the repeal did not apply to band governments or tribal councils until after a three-year transitional period. Well, that period is over come this June.
This is serious given that the repeal of section 67 will affect many areas of policy, band bylaws, regulations and behaviour. Thus, it could potentially revolutionalize band governance. Or at least it is hoped.
According to data from the Canadian Human Rights Commission, the repeal will likely affect band membership codes, band council elections, custom leadership selection codes, bylaws made under Section 81 of the Indian Act, management of moneys held in trust of bands, land management and allotment decisions, access to band programs and services (including housing, education, and social assistance), and finally, infrastructure decisions related to access for people with disabilities.
At the Frontier Centre for Public Policy where I work as a policy analyst, we will be closely watching as this law comes into effect and how it impacts reserve life.
One problem we identified with this legislative change was the existence of an interpretive clause attached to the law which would direct anyone deciding these human rights cases to balance individual rights with Aboriginal collective interests.
Our concern is this clause could easily be used to dillute individual protections in favour of band interests. The hope is the case law develops in favour of the individual. First Nations already have so many collectively-defined rights and identities, is too much to ask for one buffer against government power?
Our other concern is that the human rights protection does not evolve into entitlements on governments to provide for citizens. A concern with rights protected by judges and tribunals is the tendency to enlarge the state and create benefits for citizens that did not exist before. That would be a very negative and costly development.
One significant positive change would be the development of a sense among band residents that human rights now need to be respected because of the reality that claims can now be filed against band governments for violating human rights. Individuals would learn that elected leaders cannot do whatever they want and that recourse to a higher authority exists. This would inevitably lead to band leaders behaving differently politically.
Right now, First Nation citizens must wade through Indian and Northern Affairs Canada bureaucracy or file with the RCMP if there are concerns about governance problems or human rights abuses.
Average band members discovered that they often faced obstacles in accessing financial data, including chief and councillor salaries. They could not rely on the good will of politicians. Legislation (and the great work of the CTF on this file) eventually will lead to transparency by law.
The problem will likely be in educating band members about their new human rights protections. An internal study by the Assembly of First Nations (AFN) in March 2011 found that less than two per cent of band staff had good knowledge of the coming human rights legislation.
Not surprisingly, the same study mentioned a 2009 study that showed more First Nations were familiar with the United Nations Declaration on the Rights of Indigenous Peoples, a non-binding document that is largely symbolic.
This is because the AFN and other Aboriginal organizations have focused so much attention on the non-binding UN Declaration and have ignored this binding Canadian law that can actually change band governance.
Typical of the AFN and others to prefer symbolism over actual results. It’s also the case that the AFN and its representative chiefs stand to lose by introducing human rights legislation on First Nation communities.
Clearly, the task ahead will be for policy organizations like the Frontier Centre for Public Policy and watchdog groups like the Canadian Taxpayers Federation to let reserve residents know they have rights.
The AFN study mentioned above also argued that band governments lack capacity and infrastructure to accept all these complaints. This is understandable and Ottawa should help, but it should re-allocate existing monies better to accommodate the changes. The AFN should have also been educating band members about the changes instead of spending money attacking the government.
Regardless, let’s hope these changes improve band governance for the better.