1. Introduction

For over thirty years, Aboriginal peoples in Canada were the only people in Canada who did not have full access to the complaint mechanism in the Canadian Human Rights Act (“CHRA”).[Note 65] Passed in 1977, Section 67 of the CHRA prevented certain types of discrimination complaints against the federal government and band councils arising from the Indian Act[Note 66] from being brought before the Canadian Human Rights Commission (the “Commission”) and the Canadian Human Rights Tribunal (the “Tribunal”). In June 2008, the federal government finally repealed Section 67 of the CHRA, allowing Aboriginal peoples full access to the complaint mechanism under the CHRA to address discrimination. However, a three-year transition period was introduced with the repeal suspending full application of the CHRA to Indian Act band councils until June 2011.

The repeal legislation also imposed a requirement on the Government of Canada to study the needs of Aboriginal communities and organizations arising from the repeal of Section 67 (“the operational review provision”).[Note 67] The findings of that study are to be presented in a report to the Parliament and Senate no later than June 18, 2011 (the “Report”).[Note 68]

To CAP and its constituents, the full impact of the repeal of Section 67 cannot be appreciated without considering a number of contextual factors. These include the large (and growing) urban/off-reserve Aboriginal population, the unique needs and circumstances of the off-reserve Aboriginal population as recognized by the Supreme Court of Canada in the Corbière v. Canada (Minister of Indian and Northern Affairs) case,[Note 69] and the impact the Indian Act has historically had, and continues to have, on the off-reserve, status and non-status Indian population. A consideration of these factors leads to the inescapable conclusion that the repeal of Section 67 does not simply impact the on-reserve population. Although not living on reserve, off-reserve individuals are very much affected by decisions of Indian Act band councils and the Government of Canada / Indian and Northern Affairs Canada, including decisions with respect to Indian registration and band membership, voting rights, and eligibility for various programs and services.

Other contextual factors that inform the discussion and recommendations in this report are Canada’s commitment to a new relationship with Aboriginal peoples following the repeal of Section 67 and its endorsement of the United Nations’ Declaration on the Rights of Indigenous Peoples, and the Honour of the Crown. All of these contextual factors are reviewed in Appendix A to CAP’s report.

A description of the organizational make-up of CAP, its objectives, affiliates and accomplishments are set out in Appendix B to CAP’s report.

2. Methodology

With the end goal of providing a discussion and recommendations to Canada for its Report, the Congress of Aboriginal Peoples (“CAP”) undertook a multi-stage process:

1. In 2009/2010, we conducted a needs assessment to determine the impacts of repealing Section 67 of the CHRA on off-reserve, non-status and status Indians. The methodology employed for the needs assessment involved information and dialogue sessions carried out by our affiliate organizations. The purpose was to educate and inform our constituents, as well as gather opinions and suggestions to be included in this final needs assessment report. We researched and produced a workbook and questionnaire in both French and English, which were used in the dialogue and information sessions and posted on the CAP website. In total, 18 dialogue and information sessions were held across Canada with approximately 450 people in attendance, which are incorporated in this report and in CAP’s main report entitled Final Report on Needs Assessment Study: Post Repeal of Section 67 of the Canadian Human Rights Act.[Note 70]
2. Following the dialogue sessions, CAP prepared a report summarizing the main points raised during the sessions as well as key recommendations for the implementation of the CHRA to meet the needs and interests of CAP’s constituency.[Note 71]
3. Finally, CAP has authored this report, summarizing the main points and recommendations identified in the dialogue sessions and incorporating these into a larger discussion taking into account the contextual factors referenced above and reviewed in Appendix A to this report. From this arises 44 recommendations aimed at meeting the human rights needs of the off-reserve, non-status and status Indians set out herein.

3. The Scope of Canada’s Operational Review and Report to Parliament

The operational review requirement for Canada to undertake a study of needs and table a report to Parliament is set out in Section 4 of An Act to Amend the Canadian Human Rights Act, S.C. 2008, c. 30:

4. The Government of Canada, together with the appropriate organizations representing the First Nations peoples of Canada, shall, within the period referred to in section 3, undertake a study to identify the extent of the preparation, capacity and fiscal and human resources that will be required in order for First Nations communities and organizations to comply with the Canadian Human Rights Act. The Government of Canada shall report to both Houses of Parliament on the findings of that study before the expiration of the period referred to in section 3. [emphasis added]

On a plain language reading of the provision, the language is focused on undertaking a study to identify the needs of First Nations communities to comply with the CHRA. It therefore appears that the focus of the Section 4 Study is the needs of Indian Act band councils as respondents. While it is obviously important to study the needs of Indian Act band councils to ensure that they are prepared to respect and implement the CHRA; the Government’s report cannot be one sided. The needs of potential complainants, which is what CAP’s constituency stand to be, cannot be ignored. The repeal of Section 67 affects individual Indian people just as much, if not more, than an Indian Act band council. After all, band councils benefitted from having discrimination complaints shielded by Section 67 (although not to same extent as Canada), while Indian people were deprived of human rights redress for over 30 years.

It is CAP’s position that the Government of Canada’s Report to Parliament and the Senate must be balanced. It must focus on both the needs of potential respondents, and potential complainants. This is mandated by the new relationship between Canada and Aboriginal peoples that Canada spoke of when it repealed Section 67 and when it endorsed the UN Declaration on the Rights of Indigenous Peoples. It is also mandated by the Honour of the Crown and the need for Canada to redress the historic and continuing discrimination caused by the Indian Act and government policy towards Aboriginal people, including off-reserve, status and non-status Indians.

Furthermore, as has been recognized by the courts, remedial legislation, such as the CHRA, has to be read in broad fashion, taking in to consideration the purpose of the Act as a whole and the surrounding context. In Canadian National Railway v. Canada (Human Rights Commission), Dickson C.J., acknowledged the unique purpose of human rights legislation and held that remedial statutes like the CHRA are to be given “such fair, large and liberal interpretations as will best ensure that their objects are attained.”[Note 72] Therefore, the Government of Canada’s Report to the House of Commons and the Senate must consider both sides of the equation – both the needs of Indian Act band councils and the needs of individual Indian people.

Similarly, another observation to be made about Section 4 is that the stated focus is on capacity, fiscal and human resources needs. These are not all the possible needs that Aboriginal respondents or Aboriginal complainants will have in response to the repeal of Section 67. From the perspective of Aboriginal complainants, particularly the off-reserve, status and non-status Indian population, there are also needs to see policy, legislative and systemic reforms within the current human rights redress system. CAP sees this report as an opportunity to raise and discuss these types of needs in addition to capacity, fiscal and human resource needs.

Finally, CAP recognizes that there are several players involved in sustaining a society that respects Aboriginal peoples’ individual and collective rights. As a result, the recommendations in this report are not only focused on Canada / Parliament, its departments and employees, but the other players, including the Canadian Human Rights Commission, and provincial and territorial human rights commissions under provincial / territorial jurisdiction.

4. Discussions of Needs and Concerns Raised By Our Constituents and Recommendations

The needs and concerns raised by participants at the dialogue sessions generally fell within six key areas. These are:

1. Education and awareness of human rights;
2. Cultural competency and sensitivity of those involved in the system;
3. Access to the system;
4. Strengthening protections in the CHRA for Aboriginal complainants;
5. Canada’s accountability for promoting and respecting the human rights of Aboriginal peoples; and
6. The larger picture of Aboriginal equality / human rights.

For this reason, the discussion below, and the recommendations that spring from these, are organized under corresponding headings. Each subsection begins by summarizing the needs heard at the dialogue sessions, cross-referencing with footnotes where these needs were raised in the Final Report of Needs Assessment. These needs are then incorporated into a discussion on ways the needs can be addressed with recommendations provided. Recommendations are marked with an asterisk (*).

4.1. Education and awareness of human rights

By far, the need that was voiced most often by participants at the dialogue sessions was for greater information on the CHRA.[Note 73] Our needs assessment clearly indicated that our constituents’ level of awareness of the CHRA, the Commission and Tribunal, as well as provincial and territorial human rights systems, is low.

Generally, participants felt that more needs to be done to raise greater awareness within the Aboriginal population about the repeal of Section 67 and human rights systems. Having additional education and information sessions was a reoccurring suggestion at every dialogue session, particularly during the time frame when the repeal of Section 67 will be taking full effect. In regard to holding such sessions, we heard suggestions for organizers to be conscious of language and literacy needs of Aboriginal participants and the need for such sessions to be well-publicized.[Note 74]

Some participants pointed out that, in addition to educating Aboriginal individuals about their rights under the CHRA, it will be just as crucial to educate Indian Act band councils about their obligations under the CHRA.[Note 75] It was suggested that Indian Act band councils, in particular, should be educated about their obligations to their off-reserve members[Note 76] and the prohibition against retaliation under the CHRA.[Note 77]

Human rights education for Aboriginal youth throughout the school system, both on and off reserve, was identified as a further way to ensure that the Aboriginal population gain greater awareness of human right systems.[Note 78]

Participants at the dialogue sessions also identified a number of specific topics where further information and education for Aboriginal peoples is required:

1. The process and procedure for filing a human rights complaint;[Note 81]
2. The role and function of the Commission;[Note 82]
3. The ability to file complaint against Indian Act band councils and the areas in which a complaint can be brought;[Note 83]
4. The ability to challenge Indian Act and band council election rules;[Note 84]
5. The ability to challenge the Indian Act registration (“status”) provisions and membership rules as well as band membership codes and by-laws;[Note 85]
6. The ability to challenge government departments who service Aboriginal peoples (e.g., INAC, Health Canada, HRSDC, etc.);[Note 86]
7. Human rights protections in the area of employment;[Note 87]
8. Human rights protections in the area of housing;[Note 88]
9. Information on human rights issues as they effect urban Aboriginals;[Note 89]
10. Information on human rights issues as they effect Aboriginal people in rural and remote areas;[Note 90]
11. How the new interpretive provision in the CHRA will operate;[Note 91] and
12. How Aboriginal and Treaty rights will be affected by the CHRA.[Note 92]

In addition to in-person information sessions, participants also identified the need for information on the repeal of Section 67 to be accessible through other means such as newsletters, plain language guides, television and newspapers, and the web.[Note 94]

A final area that participants identified involved the need for further education and awareness with respect to the role and jurisdiction of provincial and territorial human rights commissions vis-à-vis Aboriginal peoples.[Note 96] Many were not aware that in several situations, provincial and territorial governments will have jurisdiction over a human rights complaint involving Aboriginal people.[Note 97] This speaks not only to the need for further education on jurisdictional questions, but the need for provincial and territorial human rights commissions to undertake greater outreach to Aboriginal peoples.

4.2. Cultural competency of those involved in the system

Dialogue participants raised various concerns about lack of adequate Aboriginal representation within the staff of the Commission and Tribunal and questioned whether non-Aboriginal staff possessed sufficient cultural competency about Aboriginal peoples, our histories, customs and traditions.[Note 101] This concern was heightened in light of the fact that the new interpretive clause in the CHRA now requires the balancing of individual and collective rights and providing due regard to Aboriginal legal traditions and customary laws.[Note 102] Similar concerns were voiced about the staff of the various provincial and territorial human rights commissions under provincial / territorial jurisdiction.

Constituents suggested that in order to address all of the above concerns both the Canadian and provincial and territorial human rights commissions should take positive steps to ensure that Aboriginal peoples are adequately represented at the various levels of their respective commissions and tribunals;[Note 103] and also ensure that non-Aboriginal staff receive cultural competency training about Aboriginal peoples.[Note 104]

4.3. Access to human rights redress systems

We heard a number of concerns at our dialogue sessions about potential barriers preventing Aboriginal claimants from bringing complaints to the Commission. According to Article 40 the UN Declaration on the Right of Indigenous Peoples, States have an obligation to minimize such barriers:

Article 40

Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual or collective rights …[Note 111]

A significant barrier identified was the lack of financial resources to allow Aboriginal claimants to hire legal representation to bring a complaint forward. Although the Commission, as an administrative tribunal, is designed to be a more accessible form of redress, it is still the case that in proceeding with a complaint, most Aboriginal complainants will want some legal advice, especially if taking a complaint all the way to the Tribunal.[Note 112] In addition, Aboriginal complainants may lack the education to assemble a complaint that will be accepted by the Commission.[Note 113]

Self-represented complainants are generally at a disadvantage in legal proceedings. Indeed, it was pointed out by dialogue participants that the federal government and band councils generally have the financial means to hire lawyers to defend their claims. Aboriginal claimants will certainly be at a disadvantage if they cannot access legal advice and representation.[Note 114] The power imbalance immediately weighs in favour of the federal government and band councils. Lack of legal assistance will discourage Aboriginal people from filing complaints.[Note 115]

There are several options for ensuing that Aboriginal complainants are provided adequate legal assistance. This could take the form of legal aid funding,[Note 116] creating an amicus position before the Commission and Tribunal for Aboriginal complainants,[Note 117] or exploring the viability of creating an Ombudsman’s Office.[Note 118] This latter option presents the possibility of having national, regional, or provincial offices, where the Ombudsman could play a role facilitating dialogue and resolution not only between the complainant and the Commission, but also between the complainant and the federal government and/or band councils.

The Commission promotes the use of an internal dispute mechanism by Indian Act band councils to resolve complaints.[Note 124] As long as the band council’s dispute resolution rules meet certain minimum requirements, the Commission will hold a complaint in abeyance until such time as the complainant has exhausted the remedies under the band council’s redress system. While CAP supports the use of such internal redress mechanisms, they should not be structured in ways that are systemically biased against off-reserve band members. There should also be a minimum requirement that complaints be heard and decided within a reasonable time period.[Note 125]

A final concern that we heard from dialogue participants related to the time it takes the Commission and Tribunal to resolve a complaint. Participants noted that the lengthy process in resolving a complaint discourages Aboriginal peoples from engaging in the complaints process.[Note 126]

4.4. Strengthening protections in the CHRA for Aboriginal complainants

As part of its dialogue sessions, CAP sought to raise awareness among participants not only about the repeal of Section 67, but more generally about the CHRA: the listed grounds of discrimination, the protected areas of discrimination, when discrimination can be justified, the new non-derogation and interpretive provisions introduced by the repeal legislation, and the process for making a complaint. During this part of the sessions, participants identified many sections of the CHRA where the rights of Aboriginal people, in particular off-reserve, status and non-status Indians, could be strengthened. In this subsection, we recommend many ways that the protections provided under the CHRA can be improved to meet the needs of our constituents.

When the CHRA was enacted in 1977, the focus was decidedly not on ensuring that the human rights of Aboriginal peoples were effectively protected. In fact, the intent, or at least the effect, was the opposite: to prevent fulsome protection of Aboriginal peoples’ human rights, as Section 67 remained a painful reminder for over 30 years. By repealing Section 67, Canada committed, both by words and actions, to a new relationship with Aboriginal peoples. It is CAP’s contention that repealing Section 67 was only the start of that commitment; not the entire fulfillment of that commitment.

A positive way for Parliament to ensure that a strong human rights system is in place for Aboriginal Peoples – one that truly recognizes our histories and needs and circumstances – may be through passing a human rights act geared specifically to Aboriginal peoples.

However, until a specific human rights act is created for Aboriginal peoples and the CHRA remains a key vehicle for the protection of Aboriginal peoples human rights in Canada, more work needs to be done to ensure that the particular discrimination issues Aboriginal peoples face are adequately addressed by the CHRA.

4.4.1. Mechanisms for strengthening the CHRA

There are two ways in which clearer and stronger protection of Aboriginal peoples’ human rights, in particular the human rights of off-reserve, status and non-status Indian population, can be implemented.

4.4.1.1. By the CHRC’s exercise of its guideline-making power under Section 27(2) the CHRA

The Commission has the power to make guidelines under Section 27(2) of the CHRA, which is binding both on the Commission and on the Tribunal pursuant to Section 27(3):

27(2) The Commission may, on application or on its own initiative, by order, issue a guideline setting out the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act applies in a class of cases described in the guidelines.

(3) A guideline issued under subsection (2) is, until it is revoked or modified, binding on the Commission and any member or panel assigned under subsection 49(2) with respect to the resolution of a complaint under Part III regarding a case falling within the description contained in the guideline.

The validity, utility, and limits of the Commission’s Section 27(2) guideline-making power were thoroughly reviewed by the Supreme Court of Canada in Bell Canada v. C.T.E.A.[Note 128] In that case, the Supreme Court roundly rejected Bell’s argument that guidelines issued by the Commission compromised either the independence or impartiality of the Tribunal. On the contrary, the Court commented favourably on the utility of guidelines to achieve the objectives of the CHRA:

The Tribunal is part of a legislative scheme for identifying and remedying discrimination. As such, the larger purpose behind its adjudication is to ensure that governmental policy on discrimination is implemented. It is crucial, for this larger purpose, that any ambiguities in the Act be interpreted by the Tribunal in a manner that furthers, rather than frustrates, the Act’s objectives. … The Act therefore evinces a legislative intent, not simply to establish a Tribunal that functions by means of a quasi-judicial process, but also to limit the interpretive powers of the Tribunal in order to ensure that the legislation is interpreted in a non-discriminatory way.[Note 129] [emphasis added].

According to the Court, the purpose of guidelines is to “ad[d] precision to the Act, without in any way trumping or overriding the Act itself”.[Note 130] Guidelines enable the Commission to add clarifying supplements, where necessary, to the leanly articulated principles in the Act.[Note 131] They are also an efficient and clear way to provide the public with a sense of their rights and obligations under the Act, where the Act is ambiguous, and where guidance from the Tribunal itself through decision would take much time.[Note 132]

It is CAP’s position that having the Commission issue guidelines under Section 27(2) to clarify that a particular protection is available for Aboriginal peoples under the CHRA – where that protection is supported by a reasonable interpretation of the existing provisions of the CHRA – is a viable mechanism for strengthening the CHRA for Aboriginal claimants. The guidelines should be accessible on the Commission’s website and be promoted on the Commission’s National Aboriginal Initiative webpage and its publications webpage. The areas in which CAP believes the CHRA could be strengthened through the issuance of clear guidelines by the Commission are explored further below.

4.4.1.2. By legislative amendment to the CHRA by Parliament

There are situations where strengthening the protections for Aboriginal peoples within the CHRA will require legislative amendment to the Act by Parliament. This will arise in cases where the protection required goes beyond what can be reasonably interpreted from the existing provisions of the CHRA. As well, even in some cases where the Commission has the power to pass a guideline, it may be appropriate for Parliament to consider legislative amendment in order to send a strong and clear message about the importance of the protection.

In order for Parliament to pass additional amendments to the CHRA, there has to be the political will to do so. The commitment to a new relationship with Aboriginal peoples announced by Canada following both the repeal of Section 67 and the endorsement of the UNDRIP should serve as motivating considerations.

Furthermore, in certain cases the omission of a human rights protection from human rights legislation can rise to the level of Section 15(1) equality violation under the Canadian Charter of Rights and Freedoms, requiring the government to take action. In Vriend v. Alberta, the Supreme Court of Canada found Alberta’s human rights legislation to violate Section 15 of the Charter for being under-inclusive[Note 133]. The legislation failed to include the protected ground of sexual orientation. The Court noted that it could be reasonably inferred that the absence of any legal recourse for discrimination on the ground of sexual orientation perpetuated and even encouraged that kind of discrimination.[Note 134] Accordingly, it is possible that the omission of certain grounds relating to Aboriginal people could constitute discrimination under the Charter.

4.4.2. Needs and recommendations for strengthening the CHRA

4.4.2.1. The listed grounds of discrimination

Participants to the dialogue sessions repeatedly voiced the concern that the listed grounds of discrimination in the CHRA were too narrow and did not reflect the inclusion of Aboriginal peoples and our needs.[Note 135] They noted the fact that the listed grounds did not include “Bill C-31 Indian”, “non-status Indian”, and “off-reserve Indian” among others.[Note 136] As discussed in Appendix A, these are terms created by the Indian Act, that have a long history of being used by the Canadian government, as well as Indian Act band councils, to differentiate, separate, and exclude some Aboriginal peoples in relation to rights, benefits and entitlements for over a hundred years.

There are 11 listed grounds of discrimination listed in the CHRA: race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.[Note 137] It is noteworthy that even the ground “Aboriginal origin” does not appear in this list, although discrimination on the basis of Aboriginal origin is often characterized either as discrimination on the basis of “race” or “national or ethnic origin”.[Note 138]

While the grounds in human rights legislation are often described as “closed grounds”, several interpretive principles that apply to the CHRA in fact allow several unlisted grounds to be linked to listed grounds and therefore be protected. In fact, Tribunal and court decisions have linked several characteristics particular to the discrimination faced by Aboriginal people to the listed grounds in the CHRA. The result is that, while not specifically listed, several identity characteristics of Aboriginal people have already been found to be protected under the Act:

1. A complainant being treated differently on the basis of being from a different Aboriginal nation than that of the respondent Aboriginal nation (e.g., Ojibway vs. Cree) has been linked to the listed grounds of “ethnic or national origin”.[Note 139]
2. A complainant being treated differently on the basis of being Métis and not being a Treaty Indian has been linked to the listed grounds of “ethnic or national origin”.[Note 140]
3. A complainant with Aboriginal identity being denied membership in an Indian band for not meeting a 50% Indian blood quantum requirement has been linked to discrimination on the grounds of “race, national or ethnic origin”.[Note 141]
4. Differential treatment on the basis of a person being re-instated to Indian status by Bill C-31 has been linked to discrimination on the combined grounds of “sex” and “marital status” or “family status”.[Note 142] Similar reasoning could be applied to find that any discrimination occurring to persons who are entitled to Indian registration under the recently passed Bill C-3 is linked to similar grounds.

While the Tribunal has yet to definitively link the characteristics of being a “non-status Indian” or an “off-reserve Indian” to listed grounds under the CHRA, a reasonable interpretation of the Act suggests these can be linked to the listed grounds. Decisions under Section 15(1) of the Canadian Charter of Rights and Freedoms support such an interpretation.

In the McIvor decision, the trial judge recognized that the characteristic of having “Indian status” goes beyond entitlement to tangible benefits, and while originally a colonial construct, Indian status has taken on a greater intangible benefit that goes to a person’s cultural identity:

[T]he concept of Indian, has come to exist as a cultural identity alongside traditional concepts. The concept has become and continues to be imbued with significance in relation to identity that extends far beyond entitlement to particular programs.[Note 143]

The trial judge went on to compare “Indian status” to nationality and citizenship and noted that the government could not simply dismiss having “status” as being simply an entitlement to benefits.[Note 144] The British Columbia Court of Appeal agreed with the trial judge that intangible benefits flow from the right to Indian status.[Note 145]

In CAP’s view, the McIvor case supports an interpretation of the ground of “national or ethnic origin” to include distinctions based on whether a person is a status Indian or not. The Aboriginal identity characteristic of being “non-status Indian” could therefore be reasonably linked to those listed grounds.

With respect to the Aboriginal identity characteristic of being “off-reserve Indian”, the Corbière decision confirmed that Aboriginality-residence constitutes a ground of discrimination analogous to the listed grounds under Section 15(1) of the Charter.[Note 146] It did so on the basis that “off-reserve” is a significant personal characteristic to some Aboriginal peoples:

“Aboriginal residence” is a personal characteristic essential to a band member’s personal identity, which is no less constructively immutable than religion or citizenship. Off-reserve Aboriginal band members can change their status to on-reserve band member only at great cost, if at all.[Note 147]

While the Corbière case involved a discrimination complaint by off-reserve status Indian band members, the analogous grounds of “Aboriginal residence” has since been interpreted in the Charter context to include both off-reserve status and non-status Indians.[Note 148]

It is possible that off-reserve status can be linked to the listed grounds of “sex” and “family status”, for example, where the reason a person is an off-reserve Indian stems from the fact that he or she, or a direct ancestor, was denied status on the basis of the pre-1985 “marrying out” provisions of the Indian Act. In addition, it is CAP’s position that if “national or ethnic origin” includes “Aboriginal origin” then any subset of Aboriginal identity that has been recognized as a personal characteristic, such as “status Indian”, “non-status Indian” or “off-reserve Indian”, is included in this listed ground. This stems from the interpretive principle endorsed by the Supreme Court of Canada in the Brooks v. Canada Safeway Ltd. case.[Note 149]

The Brooks case involved the question of whether the listed ground of “sex” in Manitoba’s Human Rights Act, included “pregnancy” for the purposes of grounding a claim of discrimination. It was argued that “sex” did not include “pregnancy” because not all women are pregnant at the same time. Chief Justice Dickson, on behalf of the Court, strongly rejected this argument on the following basis:

I am not persuaded by the argument that discrimination on the basis of pregnancy cannot amount to sex discrimination because not all women are pregnant at any one time. While pregnancy-based discrimination only affects part of an identifiable group, it does not affect anyone who is not a member of that group. Many, if not most, claims of partial discrimination fit this pattern. As numerous decisions and authors have made clear, this fact does not make the impugned distinction any less discriminating.[Note 150] [emphasis added]

In CAP’s view, the logic applied by the Court in Brooks to find that pregnant women are entitled to protection on the ground of “sex” applies with equal force to the finding that subsets of Aboriginal identity are entitled to protection on the ground of “national or ethnic” / Aboriginal origin:

Not all women are pregnant, but all those who are pregnant are women, and therefore are entitled to protection under the ground of “sex”.

Not all Aboriginal people are non-status or off-reserve Indians, but all non-status or off-reserve Indians are Aboriginal peoples, and therefore are entitled to protection under the ground of “national, ethnic or Aboriginal origin”.

With respect to Aboriginal residency, this argument is further supported by the following comments of the Supreme Court of Canada in Corbière:

… the analogous ground of off-reserve status or Aboriginality-residence is limited to a subset of the Canadian population, while s. 15 is directed to everyone. In our view, this is no impediment to its inclusion as an analogous ground under s. 15. Its demographic limitation is no different, for example, from pregnancy, which is a distinct, but fundamentally related form of discrimination from gender. “Embedded” analogous grounds may be necessary to permit meaningful consideration of intra-group discrimination.[Note 151]

It is CAP’s position that all of the subsets of Aboriginal identity discussed above can be linked to listed grounds in the CHRA, and therefore, are themselves protected grounds under the Act. This is supported by a reasonable interpretation of the CHRA, supported by Supreme Court of Canada cases.

Although a person with legal training familiar with the CHRA might know this, most Aboriginal people would not. Indeed, the participants in CAP’s dialogue sessions did not know this and assumed the Act did not cover many of the grounds in which they have experienced discrimination. It is CAP’s view that the Commission can easily address this perceived problem by publishing guidelines under its Section 27(2) guideline-making power in order to clarify how the listed grounds of discrimination cover various aspects of Aboriginal identity.

Should the CHRA be slow or unwilling to act on this recommendation, it is CAP’s position that the Government of Canada has an obligation to address these perceived gaps by amending the CHRA accordingly. This could be accomplished by the Government adding two additional grounds to the listed grounds: 1) Aboriginal origin; and 2) Aboriginal residency. Applying the interpretive principle in Brooks, “Aboriginal origin” could be interpreted as including the many subsets of Aboriginal identity that have come to be significant to Aboriginal people. As suggested above, “Aboriginal origin” should be interpreted to cover “Aboriginal residency”, however, given the importance of this personal characteristic to many Aboriginal people, it may be symbolically important to include it as a separate ground.

In this regard, it is noteworthy that in the decade since the Corbière decision, “Aboriginal residency” has been relied on as a ground to claim discrimination against the federal government and Indian Act band councils in at least eight other cases under Section 15(1) of the Charter.[Note 153] This in itself speaks to the prevalence of this ground being perceived as a basis of discrimination.

To CAP’s knowledge, no complaint has yet to be brought to the CHRC on the basis of “Aboriginal residence”, which speaks to the perception that this ground is not covered by the CHRA. This perception, whether it is in fact true, causes an injustice to Aboriginal claimants by depriving them of the accessible remedial procedures under the CHRA, leaving them to believe they must seek resolution in the courts under the Charter. It may also send the message that discrimination on the basis of “off-reserve status” is not as serious or deserving of condemnation as other forms of discrimination. As has been suggested elsewhere, the omission of “Aboriginal residency” from the CHRA may constitute a Section 15(1) Charter violation similar to that found in the Vriend case.[Note 154]

Another area where CAP believes the CHRA could be strengthened to protect the interests of Aboriginal peoples is by adding “political belief or opinion” as a prohibited ground. In the dialogue sessions, some participants spoke of how internal politics within Indian Act band councils can result in denial of employment and other services.[Note 156] Several provincial human rights statutes already include “political belief”, “political opinion” or “political conviction” as a listed ground.[Note 157]

To date, the ground of “family status” has been interpreted in cases involving Aboriginal claimants to consider discrimination complaints on the basis of “nepotism” in employment-hiring practices by Indian Act band councils.[Note 158] While this is one way of addressing discrimination that arises from internal politics within Aboriginal communities, this approach falls short, since it requires the complainant to prove the discrimination arose from their family connections, instead of directly focusing on the heart of the problem: discrimination arising from political opinion or belief.[Note 159] It is CAP’s position that it would be preferable for the Government of Canada to amend the CHRA to include “political belief or opinion” as a listed ground of discrimination.

4.4.2.2. Discriminatory practices and protected areas

Part 1 of the CHRA prohibits discriminatory practices in a number of protected areas, including employment, housing accommodation, delivery of public services and goods and public advertising. While the list attempts to be fairly comprehensive, it does not specifically address some areas of discrimination that are common to the experience of Aboriginal people, such as discrimination in respect of Indian Act or band council election laws, Indian Act registration or band council membership laws, and government funding of services and programs to Aboriginal people, to name a few. Consequently, as with the listed ground of prohibited discrimination, there is the potential that Aboriginal complainants will perceive the protected areas as too narrow and not inclusive of their needs and experiences. Indeed, several participants in the dialogue sessions indicated uncertainty about whether, under the CHRA, they could bring complaints relating to the Indian Act or band council election rules,[Note 161] the Indian Act registration provisions or band council membership rules,[Note 162] and other areas like Canada’s provision of non-insured health benefits.[Note 163]

It is CAP’s position that all of the above-identified areas fall under the listed protected areas in the CHRA under a fair, large and liberal interpretation of the Act, in particular Section 6 of the Act, which prohibits discriminatory practices in the provision of goods, services, facilities and accommodations.[Note 164] The Tribunal has already ruled that discriminatory membership codes that deny access to on-reserve programs and services constitute a denial in respect of goods and services.[Note 165] Although the status of voting in band council elections as a public service has yet to be decided by the Tribunal, the right to vote in band elections can readily be seen as a public service since it is directly linked to access to programs and services in the band.[Note 166] In a provincial human rights decision, the lack of accessibility of a voting facility to a person with a disability was found to be a denial of a public service.[Note 167] On similar reasoning, the Tribunal could find that the denial of the right to vote in a band council election is a denial of a public service.

Generally, the Tribunal has interpreted the provision of services broadly to include any service or facility offered to Aboriginal peoples by a band council or the Government of Canada through the Department of Indian and Northern Affairs.[Note 168]

It is CAP’s view that the protected areas under the CHRA are reasonably capable of being interpreted as including those areas identified above that are common to the experience of Aboriginal people. In order to avoid confusion and uncertainty for Aboriginal claimants and avoid unnecessary legal disputes in the future where respondents will try to narrow breadth of protection under the Act, it is CAP’s position that the Commission should adopt Section 27(2) guidelines to provide clarity in this area.

4.4.2.3. Justifying discrimination and the new non-derogation and interpretive provisions

In reviewing the law with respect to reasonable justifications for discrimination, including the role of the new non-derogation and interpretive provisions that were added to the CHRA through the repeal legislation, participants raised a number of points.

First and foremost, it was pointed out that given the history of discrimination they have faced, the justification for discrimination test should not be interpreted lightly when claimants are Aboriginal women or non-status Indians.[Note 170] CAP agrees strongly with this position. It will be crucial for the Tribunal and the courts to consider these justifications to discrimination within the context of the history of discrimination faced by Aboriginal people, in particular, the off-reserve, status and non-status population, as discussed in Section 3 of Appendix A.

Participants at the dialogue sessions also indicated confusion over how both the non-derogation and interpretive clauses would be applied by the Commission and Tribunal.[Note 171] The provisions, especially the interpretive clause, are complexly drafted and difficult to understand. Some participants expressed concerns that the inherent right to self-government would be broadly used by Indian Act band councils to justify all complaints of discrimination, even those brought by band members.[Note 172] One participant expressed concern that the interpretive clause would be used as a “smoke screen by those who have a personal interest in maintaining the status quo of unfairness and discrimination.”[Note 173]

While CAP supports the inclusion of the non-derogation clause to protect Aboriginal and Treaty rights and the interpretive clause to ensure that due regard is given to Aboriginal traditions, customs and laws, it shares the concerns expressed by participants at the dialogue sessions that such provisions could be used to perpetuate the historic discrimination of the Indian Act, in particular to the detriment of CAP constituents, that is, the off-reserve status and non status Indian population. To avoid such a result, CAP recommends that the Commission develop guidelines under Section 27(2) to guide interpretation of such provisions. CAP feels strongly that it is the Commission’s role to guide the interpretation of these provisions so as to avoid further discrimination and not just leave this to tribunals and courts to decide on a case-by-case basis.

Considerations that should be guiding the Commission in developing such guidelines include:

• When draft legislation for repealing Section 67 was being considered, the language of the interpretive clause suggested by the Assembly of First Nations contained specific language to protect the provision of services by Indian Act band councils to its members on an exclusive or preferential basis.[Note 174] Such language was not adopted in the final version of Bill C-21. In CAP’s view, Parliament’s rejection of the AFN’s language is indicative of a legislative intent not to sanction an approach to the interpretive clause that would allow Indian Act band councils to automatically justify discrimination involving preferential treatment in the provision of services, employment and housing to its members. Furthermore, such an approach is inconsistent with existing decisions of the Canadian Human Rights Tribunal.[Note 175]
• With regard to the application of the non-derogation provision, guidance on its application should be drawn from the reasons of Justice Bastarache in R. v. Kapp.[Note 176] In that case, the judge was discussing the interpretation of Section 25 of the Charter, however, his observations and limits placed on Section 25 are equally applicable to non-derogation clause in the CHRA.

Speaking of the purpose of Section 25, Justice Bastarache wrote:

I believe the reference to “aboriginal and treaty rights” suggests that the focus of the provision is the uniqueness of those persons or communities mentioned in the Constitution; the rights protected are those that are unique to them because of their special status. … Accordingly, legislation that distinguishes between aboriginal and non-aboriginal people in order to protect the interests associated with aboriginal culture, territory, sovereignty or the treaty process deserves to be shielded from Charter scrutiny.[Note 177]

In Bastarache J.’s view, the purpose of Section 25 is to shield attacks on rights that Aboriginal peoples’ hold by virtue of their special constitutional status by non-Aboriginals. However, Bastarache J. did not see the protection offered by Section 25 as unlimited. Consistent with the purpose of Section 25 – to prevent attacks on Aboriginal rights held by virtue of being Aboriginal by non-Aboriginals peoples – the judge found that Section 25 cannot be used to shield discrimination complaints by other Aboriginals:

There is no reason to believe that s. 25 has taken Aboriginals out of the Charter protection scheme. One aboriginal group can ask to be given the same benefit as another aboriginal group under s. 15(1). … It could also be argued that it would be contrary to the purpose of s. 25 to prevent an Aboriginal from invoking those sections to attack an Act passed by a band council. It is not at all obvious in my view that it is necessary to constrain the individual rights of Aboriginals in order to recognize collective rights under s. 25.[Note 178] [Emphasis added]

It is CAP’s position, based on the guidance provided in R. v. Kapp, that the CHRA’s interpretive provision should be interpreted to prevent “reverse discrimination” attacks to rights that Aboriginal people hold by virtue of Section 35 of the Constitution Act. It should not be used, however, to shield discrimination complaints of individual Aboriginal people who argue that a scheme or program based on an Aboriginal right is discriminatory.

• Although the new non-derogation clause in the CHRA is more narrowly worded than Section 25 of the Charter, it is CAP’s position that Section 1.1 should be interpreted consistently with Section 25 such that not only are Aboriginal and Treaty rights protected by the new non-derogation clause, but also those rights identified in Section 25(a) and (b):

  25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

  1. any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and 
  2. any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
     
     

• It is CAP’s position that the language of all statutory non-derogation clauses should mirror the language and guarantees found in Section 25(a) and (b) of the Charter. The protections to Aboriginal rights in Section 25 should not be qualified by any statutory provision. Therefore, it is CAP’s position that the new non-derogation clause in the CHRA should be amended to reflect the language in Section 25 of the Charter.[Note 179]
• The CHRA will now need to be interpreted in light of the UN Declaration on the Rights of Indigenous Peoples. Canadian rules of statutory interpretation require courts and tribunals to interpret domestic legislation consistently with Canada’s international human rights obligations absent an express provision to the contrary within the domestic statute.[Note 180] The Declaration requires that Indigenous Peoples’ rights be determined in accordance with their customs and traditions. This right, however, should not be used to perpetuate the kind of divisions, exclusions and discrimination perpetuated by the Indian Act for over a hundred years. In CAP’s view, internalized Indian Act values cannot be equated with the traditions and customs of Aboriginal peoples. Such an approach would be inconsistent with the values of non-discrimination and equality emphasized throughout the Declaration (reviewed at Section 5 of Appendix A).

4.4.2.4. Procedures for bringing a complaint

In reviewing the procedures for bringing a complaint under the CHRA, many participants were surprised and concerned to hear of the one-year time limit at Section 41(1)(e),[Note 185] which provides as follows:

41(1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
…
(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.[Note 186]

While Section 41(1)(e) admits some discretion in Commission staff to extend the one year time limit, the Commission has no published guidelines on what types of factors should be considered in the exercise of such discretion. Guidelines of other human rights commissions with similar time limits, such as the New Brunswick Human Rights Commission, suggest that the exceptions to such time limits are narrow. The New Brunswick guidelines require the complainant to have a justifiable reason for the delay, such as being under a mental disability or having first gone through a statutory or internal redress procedure before filing the complaint.[Note 187] The complainant must show that he or she has a strong prima facie case and that granting the extension would not unduly prejudice the respondent.

It is CAP’s submission that the one-year time limit works unfairly for Aboriginal claimants, and that exceptions, such as those found in the New Brunswick guidelines, are too narrow to address Aboriginal peoples’ life realities and the many barriers we face on a daily basis.

4.4.2.5. Conclusion

Finally, CAP was not able to review every aspect of the CHRA with the participants at the dialogue sessions given time and resource considerations. There may well be further areas under the CHRA that could be strengthened or clarified.

4.5. Canada’s responsibility for promoting and respecting the human rights of Aboriginal peoples

4.5.1 Need for sufficient government funding

A number of the recommendations in this report implicate the Commission providing additional services to Aboriginal peoples beyond that which it is already providing. This is not possible without an increase in funding to the Commission. In its 2008 report, “Still a Matter of Rights”, the Commission emphasized the importance of adequate funding in order to effectively implement the repeal of Section 67:

 

… No matter how good a human rights system may appear on paper, it will not be effective unless adequate funding is provided to implement it properly.

The Commission does not have the resources to address the new demands resulting from the repeal. At the moment, very limited resources are dedicated to addressing Aboriginal issues currently within our mandate …[Note 191]

Adequate funding continues to be an issue for the Commission. In 2010, funding considerations caused the Commission to close three regional offices in Vancouver, Toronto and Halifax. These closures are a great cause of concern for CAP and its affiliates. To provide the level of services required by Aboriginal people, the Commission must be adequately funded, staffed and accessible throughout the country.

Not only does the Commission require adequate funding but so do Aboriginal communities and organizations who will be assisting their people in gaining greater awareness about the human rights system. To date, the federal government has not invested in off-reserve Aboriginal organizations (or any other Aboriginal community or organization during the three year transition period) so that they can educate and assist their constituents concerning the CHRA. Investment in capacity building (leadership, education on human rights/equality, policy and program development, review and delivery) will be required to meet the equality rights of their members.

4.5.2 Need for the Government of Canada to proactively address discrimination affecting Aboriginal peoples within its laws, policies and departments

The federal government is offering the Commission as a forum to address complaints of discrimination arising from the Indian Act. However, the federal government is currently defending some claims of discrimination on the basis that the CHRC does not have jurisdiction to hear complaints. For example, the First Nations Child and Family Caring Society (“FNCFCS”) filed a complaint with the Commission alleging that INAC’s underfunding of federal child welfare services in comparison to provincially funded child welfare agencies constitutes discrimination under Section 5 of the CHRA. Section 5 of the CHRA prohibits discrimination in the delivery of “services” by federally regulated bodies.[Note 197]

INAC has asserted that it is a funding agency and therefore is not providing a “service” pursuant to Section 5 of the CHRA, and alternatively, that federal funding cannot be compared to provincial funding for the purpose of establishing discrimination. The Tribunal recently dismissed the FNCFCS’s complaint based on the latter argument.[Note 198] The decision is under appeal. If Canada is successful with either defence, the repeal of Section 67 of the CHRA will be of limited use in assisting Aboriginal people to seek protection and achieve equality under the CHRA.

Canada is also arguing that it is not subject to the CHRA in a number of other cases challenging the Indian Act, including complaints of discrimination against the Indian registration provisions under Section 6 of the Indian Act, which as discussed in Section 3 of Appendix A, has been and continues to be a major source of inequality and discrimination for many Aboriginal people.

In a recent case involving the Department of Indian Affairs’ discretionary authority to approve locatee leases by Indians holding certificates of possession under Section 58(3) of the Indian Act, Canada once again argued that the Tribunal lacked jurisdiction to hear the complaint on the basis that this approval process did not constitute a “service” within Section 5 of the CHRA. The Tribunal rejected this argument, preferring to rely on previous cases that suggest that virtually everything government does is done for the public and therefore constitutes a service. The Tribunal held:

 

I conclude that INAC does provide services that are “customarily available to the general public,” namely to that segment of the public who are status Indians, and that these are beneficial services being “held out” and “offered” to the public.[Note 199]

In this case, the Tribunal also commented on how the Department of Indian Affairs in its interactions with the Aboriginal complainant, Mr. Louie, was not living up to the “new relationship” it had promised following the repeal of Section 67:

 

[I]t is noteworthy that on June 18, 2008, little more than a month after writing to Mr. Louie, the then Hon. Minister announced that legislation extending human rights protections to all First Nations communities had received Royal Assent. “Passage of Bill C-21, An Act to amend the Canadian Human Rights Act marks a significant turning point in the relationship between First Nations and the Government of Canada”, said Minister Strahl. “It underscores this government’s strong commitment to protecting the human rights of all Canadians.” The announcement, however, had no apparent effect on INAC’s position regarding the complainant’s applications. Nothing changed, and the complaint before me is the result.[Note 200]

Canada and its Department of Indian Affairs appear to be very resistant to the repeal of Section 67 of the CHRA and is setting a double standard. Their actions are sending the message that “the CHRA applies to decisions of band councils but not to the decisions of INAC/Canada.” This double standard creates confusion, tarnishes the Honour of the Crown, and is not in keeping with the new relationship committed to by Canada upon the repeal of Section 67 and the endorsement of the UN Declaration on the Rights of Indigenous Peoples.

As discussed in Section 3 of Appendix A, many of the discrimination issues CAP constituents face arise from the application of provisions under the Indian Act, and INAC policies enacted pursuant to Canada’s Section 91(24) jurisdiction for “Indian and lands reserved for Indians” under the Constitution Act, 1867.[Note 202] For example, entitlement to many social programs delivered by Indian Act band councils is typically shaped by federal policy which invariably uses, depending on the program or service, Indian status, band membership, reserve residency or some combination of these characteristics.

Chief Commissioner, Jennifer Lynch, of the Commission has stated that, “A case-by-case, section-by-section approach to resolving discriminatory provisions of the Indian Act will be costly, confrontational and time-consuming. Moreover, the Act places the burden on complainants who do not necessarily have access to legal resources.”[Note 203]

The Indian Act contains many discriminatory provisions and should be repealed. However, a proactive review of the Indian Act should take place with an objective to replace it, if necessary, with one or more pieces of legislation that will meet the needs and rights of Aboriginal people in an equitable manner. Aboriginal people also have the right to self-government;[Note 204] therefore, this review should take place in consultation with Aboriginal peoples in a process that is determined by them and supported by the federal and provincial/territorial governments.

4.6. The larger picture of Aboriginal equality / human rights

To end looking at the “big picture”, Aboriginal people within Canadian society continue to face discrimination on a number of fronts. According to Article 15 of the UN Declaration on the Rights of Indigenous Peoples, the Government of Canada, provincial and territorial governments, and their human rights institutions, have a positive obligation to work with Aboriginal peoples, to combat discrimination against, and promote tolerance towards, Aboriginal peoples:

Article 15

2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.[Note 206]

One concern that we heard repeatedly in the dialogue sessions was the fact that newcomers to Canada can harbour discriminatory views of Aboriginal people. Participants felt strongly that newcomers must be educated about the history of Aboriginal peoples, be able to demonstrate cultural sensitivity towards Aboriginal peoples, and this should be a requirement for entry into Canada.[Note 207]

CAP believes that given the demographic changes that will be occurring in Canada in future decades that will see both an increase in immigrant and Aboriginal populations, it is crucial that new Canadians become educated about the history of Aboriginal peoples in Canada, the discrimination they face, their rights, and the obligations of government towards them.

5. Conclusion

In 2008, CAP and its constituents welcomed the Royal Assent of the long overdue repeal of Section 67. We were pleased when the federal government put an end to this discriminatory and unacceptable measure, which had prevented our people from receiving the same degree of human rights protection as all other Canadians.

For more than thirty years, CAP and the CHRC had objected to and called for the repeal of Section of 67. This blanket exception in the CHRA had been particularly prejudicial to women who were Bill C-31 Indians and their descendents, by preventing them from launching human rights complaints concerning the residual discrimination they faced from provisions of the Indian Act.

In 1999, the Supreme Court of Canada in the Corbière decision set out this situation:

… band members living off-reserve form part of a “discrete and insular minority”, defined by both race and residence, which is vulnerable and has at times not been given equal consideration or respect by the government or by others in Canadian or Aboriginal society. Decision makers have not always considered the perspectives and needs of Aboriginal people living off-reserves…[Note 211]

Twelve years after the Corbière decision, many people still do not have the right to vote in band elections. In 2008, CAP and the CHRC undertook a review of the Custom Election Codes and found that many had fundamental flaws either in their substantive or procedural elements.[Note 212] There is a compelling need for band councils to act in conformity with international human rights law, norms and standards. The reality is that the band councils as presently constituted and mandated will struggle with the task because they are not accountable to off-reserve and non-status Indians.

As the discussion in Section 3 of this report attests, there is an obvious and significant need to support and increase awareness of Aboriginal human rights and to address the capacity issues faced by CAP and its affiliates. Meaningful access to human rights protections depends first and foremost on awareness of rights and having the capacity to exercise them. As the number of complaints at the Commission and Tribunal rise, CAP and our affiliates will have the justifiable expectation that we will be meaningfully engaged with INAC, CHRC and other Aboriginal organizations in ensuring that the human rights of all our peoples are being respected and advanced. From a practical perspective, we anticipate that the 44 recommendations set out in this report will receive serious consideration to bring the central questions more sharply into focus. Only when our rights and interests are fully protected and acted upon can we reconcile our relationship to the Crown and truly prepare for the future of the next generations.

While the repeal of Section 67 of the CHRA can be considered a step in the right direction to realize the fulfillment of full equality for Aboriginal peoples in Canada, our needs assessment revealed that more research and actions are required before the CHRA is able to provide sufficient protection of our human rights. Canada committed, both by words and actions, to a new relationship with Aboriginal peoples; one that involves providing stronger protection to our human rights. Repealing Section 67 was only the start of that commitment; not the entire fulfillment of that commitment.

There is a need for greater human rights awareness and education for Aboriginal people, and both the Canadian Human Rights Commission and provincial and territorial commissions have a large role to play in this, working in conjunction with Aboriginal organizations, including CAP and its affiliates. Commission and Tribunal staff should be representative of the Aboriginal population in Canada and need to possess cultural competency about Aboriginal peoples.

The human rights protections for Aboriginal people within the CHRA need to be strengthened in many ways to meet the needs of the diverse cultural identities of Aboriginal peoples. It is CAP’s view that the Canadian Human Rights Commission can take the lead by adopting guidelines that clarify a number of interpretive issues under the CHRA, including:

• specifying the numerous Aboriginal identity characteristics that are protected by the CHRA;
• specifying that the protected area of “goods and services” includes Indian Act or band council election laws, Indian Act registration or band council membership laws, and federal funding of services and programs to Aboriginal people;
• specifying how the non-derogation and new interpretive provision should not be interpreted to perpetuate the historic inequalities created by the Indian Act; and
• specifying how the exception to the one-year time limit for bringing complaints should be sensitively applied in the case of Aboriginal complainants.

While the Commission can play a large role in using its existing statutory powers to clarify the interpretation of CHRA for Aboriginal complainants, it is CAP’s view that legislative amendments to the CHRA to specifically include “Aboriginal origin”, “Aboriginal residency” and “political belief or opinion” within the listed grounds of discrimination should be implemented by Parliament.

Twenty-nine years after the repatriation of the constitution, the recognition and protection of Aboriginal rights and interests remains a daily concern for our constituents. Since the passing of Section 67 in 1977, the Indian Act side-stepped human rights scrutiny, causing the expansion of a human rights chill over off-reserve Aboriginal peoples. Today, the Indian Act and its regulations remain both directly and indirectly the central source of discrimination for off-reserve Aboriginal peoples and serious inequality issues in the legislation remain to be addressed. These include: Section 6 Persons entitled to be registered; Section 20 Possession of Lands in Reserves; Section 42 Descent of Property; Section 46 Minister may declare Will Void; Section 51 Mentally Incompetent Indians; and Section 74 Elections of Chiefs and band councils. In addition to the Indian Act, the complex funding and service delivery regimes flowing from this legislation and Canada’s Section 91(24) jurisdiction over “Indians and lands reserved for Indians” will require scrutiny and actions to ensure that they do not constitute a violation of the CHRA. Finally, a proactive review of the Indian Act with the objective to remove all discriminatory provisions should be conducted. Human rights protection and equality for all Aboriginal peoples was the objective for repealing Section 67 of the CHRA. It is CAP’s position that given this objective, the federal government should consult and accommodate Aboriginal peoples prior to amending the Indian Act and the CHRA in any shape or form.

It is our hope that the discussion and 44 recommendations set out in this report are given serious consideration by all the parties who have a role to play in ensuring that the human rights of Aboriginal peoples are respected and promoted, including the Parliament, Indian and Northern Affairs Canada, other federal government departments, the Canadian Human Rights Commission and Tribunal, and provincial and territorial human rights commissions.

Appendix “A” to the Report of the Congress of Aboriginal Peoples

Contextual Factors

For CAP and its constituents, the full impact of the repeal of Section 67 cannot be appreciated without considering a number of contextual factors. Specifically, we review the following social and legal factors that are significant to CAP’s constituency:

1. The large and growing urban / off-reserve Aboriginal population;
2. The unique needs and circumstances of the off-reserve Aboriginal population;
3. The Indian Act’s impact on the off-reserve, status and non-status Indian population;
4. Canada’s commitment to a new relationship with Aboriginal peoples following the repeal of Section 67;
5. Canada’s endorsement of the United Nation’s Declaration on the Rights of Indigenous Peoples; and
6. The Honour of the Crown.

1. The large and growing urban / off-reserve Aboriginal population

According to the 2006 Census, 1,678,235 people reported Aboriginal ancestry.[Note 213]

The steady rise of the Aboriginal population is set out in the following Chart produced by Statistics Canada:[Note 214]

Click to enlarge

Detailed description of Aboriginal population chart

Fifty-eight years ago, the Census of Canada reported that 6.7% of the Aboriginal population lived in cities. In 2006, the Census reported that over 60% of the ancestry based population now resides in urban areas. The migration of Aboriginal peoples into the urban centres represents the most significant Aboriginal demographic for consideration by policy makers.

According to Statistics Canada, the percentage of Indians per province who live off-reserve was calculated in 2006 to be as follows:[Note 215]

British Columbia	62%
Alberta	59%
Saskatchewan	48%
Manitoba	45%
Ontario	70%
Quebec	49%
New Brunswick	44%
Nova Scotia	48%
Prince Edward Island	68%
Newfoundland and Labrador	82%

These figures are based on Aboriginal Identity statistics. It is clear that these numbers would be even higher, if based on Aboriginal Ancestry statistics, as illustrated by this Chart produced by Statistics Canada:[Note 216]

Click to enlarge

Detailed description of Aboriginal Ancestry chart

2. The unique needs and circumstances of the off-reserve Aboriginal population

The above census data clearly demonstrates that there is a substantial off-reserve Indian population in Canada. While the off-reserve Indian population share many of the same experiences of discrimination as the on-reserve population; they have also experienced discrimination unique to their “off-reserve” status, which makes them an especially vulnerable group.

This social reality was recognized by the Supreme Court of Canada in the landmark Corbière v. Canada (Minister of Indian and Northern Affairs) case.[Note 217] In that case, the Court recognized that off-reserve Indians are the object of discrimination and constitute an under-privileged group.[Note 218] The Court also accepted that many off-reserve band members were expelled from reserves because of policies and legal provisions which were changed by Bill C-31 and can be said to have suffered double discrimination.[Note 219]

The reasons of Justice L’Heureux-Dubé, in particular, speak in detail about the unique experience of discrimination faced by the off-reserve population:

[B]and members living off-reserve form part of a “discrete and insular minority”, defined both by race and residence, which is vulnerable and has at times not been given equal consideration or respect by the government or by others in Canadian or Aboriginal society. Decision makers have not always considered the perspective and needs of Aboriginal people living off reserves, particularly their Aboriginal identity and their desire for connection to their heritage and cultural roots. As noted by the Royal Commission on Aboriginal Peoples,

[b]efore the Commission began its work, however, little attention had been given to identifying and meeting the needs, interests and aspirations of urban Aboriginal people. Little thought had been given to improving their circumstances, even though their lives were often desperate, and relations between Aboriginal people and the remainder of the urban population were fragile, if not hostile.

The information and policy vacuum can be traced at least in part to long-standing ideas in non-Aboriginal culture about where Aboriginal people ‘belong’. (Report of the Royal Commission on Aboriginal Peoples (1996), vol. 4, Perspectives and Realities, at p. 519.)

Similarly, there exist general stereotypes in society relating to off-reserve band members. Peoples have often been only seen as “truly Aboriginal” if they live on reserve. The Royal Commission wrote:

Many Canadians think of Aboriginal people as living on reserves or at least in rural areas. This perception is deeply rooted and persistently reinforced. . . .

. . . There is a history in Canada of putting Aboriginal people ‘in their place’ on reserves and in rural communities. Aboriginal cultures and mores have been perceived as incompatible with the demands of industrialized urban society. This leads all too easily to the assumption that Aboriginal people living in urban areas must deny their culture and heritage in order to succeed -- that they must assimilate into this other world. The corollary is that once Aboriginal people migrate to urban areas, their identity as Aboriginal people becomes irrelevant.

(Perspectives and Realities, supra, at p. 519.)

… [O]ff-reserve band members experience particular disadvantages compared to those living on-reserve because of their separation from the reserve. They are apart from communities to which many feel connection, and have experienced racism, culture shock, and difficulty maintaining their identity in particular and serious ways because of this fact.[Note 220]

3. The Indian Act’s impact on the off-reserve, status and non-status Indian population

As noted by Justice L’Heureux-Dubé in Corbière:

… [T]he creation of the group of off-reserve Aboriginal people can be seen as a consequence, in part, of historic policies toward Aboriginal peoples. The Royal Commission on Aboriginal Peoples describes the relationship between the federal government and Aboriginal peoples during the period from the early 1800s to 1969 as one of “displacement and assimilation” (Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back, at pp. 137-91).[Note 221] [emphasis added]

Indeed, one of the more damaging ways Canada sought to displace and assimilate Aboriginal people during this period was through controlling Aboriginal identity, or more precisely, who was entitled to be registered as an “Indian” under the Indian Act. From 1868 to 1985, this objective was accomplished in a number of ways:

1. From 1869 to 1985, restricting the passing of Indian status through male line only. The following is an example of how this restriction was worded at one time:

   “Any Indian woman who marries any person other than an Indian … shall cease to be an Indian in every respect within the meaning of this Act…”[Note 222]

   As a consequence of such rules, the children of these women were also not entitled to Indian status. Indian men who married non-Indian woman did not lose their status. Their wives and children instead gained Indian status.
2. From 1876 to 1985, illegitimate children of Indian women could lose status “if the Registrar [was] satisfied that the father of the child was not an Indian...”.[Note 223]
3. From 1869 to 1985, Indian men and non-married Indian women could voluntarily choose renounce their Indian status, provided a board of examiners found they possessed sufficiently “good character” to apply to be declared Canadian citizens.[Note 224]
4. From 1869 to 1951, Indians would automatically lose their Indian status upon obtaining a university degree, becoming a doctor or a lawyer, joining the holy orders, or travelling outside Canada for over 5 years without the express permission of the Minister of Indian Affairs. This last rule had an impact on status Indian men who enlisted in Canada’s military and fought in major wars.[Note 225]
5. From 1951 to 1985, Indians whose mother and maternal grandmother had only gained status through marriage, automatically lost status upon reaching age of 21 if born on or after 1951.[Note 226] This is the so-called “Double Mother Rule”.

The impact of an Indian person losing Indian status during this period affected not only the person’s right to tangible benefits, but, more importantly, their right to live in their home communities. This was noted by Madam Justice Ross, in McIvor v. The Registrar, Indian and Northern Affairs Canada:

Prior to the 1985 amendments to the Indian Act, registration as an Indian was associated with a number of consequences both tangible and intangible. Registration as an Indian was linked in all but a few cases to band membership, to entitlement to live on a reserve, and to the benefits provided by the federal government to persons registered as Indian. The tangible benefits included the benefit of expenditures of Indian moneys, the use and benefit of lands in a reserve, the possession of reserve land allotted to the Indian by the band council, and the exemption from taxation of the interest of the Indian in reserve lands and personal property situated on a reserve.

Persons who were registered as Indians were entitled to other benefits including eligibility for federally funded programs and assistance, such as non-insured health benefits and post-secondary education funding.

When a woman who was registered as an Indian married a non-Indian and lost her status, she was forced to leave her home and her reserve. She was required to divest herself of any property she owned on the reserve and was precluded from inheriting reserve lands. She could not pass her status on to her children and so her children could not be registered as Indians. Even if she subsequently divorced, she could not return to the reserve or even be buried on the reserve: see Royal Commission Report at c. 2, pp. 21-23.[Note 227] [emphasis added]

Thus, a clear impact of the discriminatory Indian registration rules passed by the federal government was “the denial of status and the severing of connections between band members and the band”.[Note 228] Consequently, the off-reserve population was born.[Note 229]

While the Indian Act was amended in 1985 (through what is known as Bill C-31) as a means of redressing the historic discrimination in the Indian Act, it did not do so entirely, and in fact created new forms of discrimination.[Note 230]

First, Bill C-31 eliminated the previous status rules and replaced them with two categories of status: Section 6(1) status and Section 6(2) status. In effect, Section 6(2) was a way for the government to assign “half” status to children who had only one status Indian parent. This created many difficulties in the way that status was assigned and essentially replaced the Double Mother Rule with what is known as the “Second Generation Cut-Off Rule”.[Note 231] In essence, the Second Generation Cut-Off Rule operates to cut off Indian status eligibility after two successive generations of mixed parenting (i.e. between a status Indian and non-Aboriginal person or an Aboriginal without Indian status). Those individuals who hold Section 6(2) status cannot pass Indian status to their children unless they parent with another status Indian. As a result of high rates of mixed parenting in some Aboriginal communities, it has been projected that within 3 generations (75 years), nearly 1 in every 3 individuals who descend from the current Indian status population is expected to lack entitlement to Indian status and band membership.[Note 232]

While gender neutral, the Second Generation Cut-Off Rule is arguably discriminatory on the basis of race or ethnic origin as it operates akin to a blood quantum requirement, without reference to any other aspects of Aboriginal identity.[Note 233]

Second, Bill C-31 failed to end gender discrimination in the Indian Act because, although it removed explicit distinctions based on sex and marriage, its effect was to subject the children of Bill C-31 women to the Second Generation Cut-Off Rule one generation sooner than the children of status Indian men who had “married out” and passed Indian status on to their children. Under the doctrine of “acquired rights”, these children were assigned “full” Section 6(1) status and able to pass on status no matter who they parented with, whereas the children of Bill C-31 women got assigned “half” Section 6(2) status and are only able to pass on status if they parent with another status Indian. As a result, individuals from the same generation and with similar parenting (having only one Aboriginal status Indian parent) were provided different status rights under Bill C-31, depending on whether or not their Indian status was derived from their mother or father.

This discrimination was challenged in the McIvor case.[Note 234] The challenge culminated with a finding by the British Columbia Court of Appeal that Sections 6(1)(a) and 6(1)(c) of the Indian Act registration provisions violated Section 15(1) of the Charter. The Court ordered a declaration of invalidity but it stayed for 1 year in order to provide Canada the opportunity to amend the Indian Act. On March 11, 2010, Canada introduced Bill C-3, the Gender Equity in Indian Registration Act for first reading in House of Commons. Although Bill C-3 was subject to a number of criticisms,[Note 235] including failing to go far enough in addressing the residual sex discrimination, it was passed by House of Commons on November 22, 2010, the Senate on December 9, 2010, and received Royal Assent on December 15, 2010.[Note 236] The anticipated result of Bill C-3 is that approximately 45,000 people will now be entitled to Indian Status.[Note 237]

Finally, at the time Bill C-31 was passed, permitting the reinstatement of over 100,000 persons to Indian status, many Indian Act bands became concerned about the impact this would have on their lands and resources (in some cases insufficient to even meet existing needs) and complained publicly. Canada’s response was not to provide additional lands or moneys (Canada has similarly not provided any additional lands or money in response to the new Bill C-3), but to amend the Indian Act to allow Indian Act bands the ability to adopt memberships codes in which they could choose to restrict membership to some of those people being reinstated. While Canada touted the new membership rules as giving some (limited) powers of self-government to Indian Act bands, in reality, it was passing off to bands – some of whom felt they had no choice – the ability to discriminate.[Note 238] Such codes will be subject to challenge once Section 67 is fully repealed. Indian Act band councils with such membership codes should be encouraged, and provided with sufficient resources by Canada, to proactively review their membership codes and bring them in line with the CHRA. As well, off-reserve Aboriginal people and their representative organizations need resources to educate and advocate for changes to custom codes.

This last effect of Bill C-31 illustrates the discrimination that can arise within Aboriginal communities as a result of government underfunding, especially when legislative amendments lead to increases in the status Indian population. Government has an obligation to ensure such discrimination does not arise in the future. It is imperative that in light of the new Bill C-3 that Canada ensure bands have sufficient resources to receive and service their new members.

The Indian Act has and continues to impact the lives of the off-reserve, status and non-status Indians. The repeal of Section 67 does not simply impact the on-reserve population. Although not living on reserve, off-reserve individuals are very much affected by decisions of Indian Act band councils and the Government of Canada / Indian and Northern Affairs Canada, including decisions with respect to registration and membership, voting rights, and eligibility for various programs and services.

4. Canada’s commitment to a new relationship with Aboriginal peoples following the repeal of Section 67

When the repeal of Section 67 was announced on June 18, 2008, the Government of Canada described the repeal as a significant achievement. The Department of Indian and Northern Affairs issued a press release where credit was attributed to the federal government for ending the “legislative gap that has left many individuals … without full access to the Act.” In the press release, then Minister of Indian Affairs, Chuck Strahl made the following statement:

Passage of Bill C-21, An Act to amend the Human Rights Act marks a significant turning point in the relationship between First Nations and the Government of Canada. It underscores this government’s strong commitment to protecting the human rights of all Canadians. [emphasis added][Note 239]

5. Canada’s endorsement of the United Nations’ Declaration on the Rights of Indigenous Peoples

On November 12, 2010, the Government of Canada formally endorsed the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration contains 46 articles that broadly address Indigenous peoples’ rights and governments’ obligations with respect to land, resources, self-government, consultation, economic rights, culture, language, non-discrimination, and other topics.[Note 240] Article 43 of the Declaration provides that “The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.”

In a press release announcing the endorsement, Minister of Indian Affairs, John Duncan, made the following statements:

“We understand and respect the importance of this United Nations Declaration to Indigenous peoples in Canada and worldwide.”

“Canada has endorsed the Declaration to further reconcile and strengthen our relationship with Aboriginal peoples in Canada.”

“Canada’s Aboriginal leadership has spoken with passion on the importance of endorsing the Declaration. Today’s announcement represents another important milestone on the road to respect and co-operation.”[Note 241]

The right of Indigenous peoples to equality and non-discrimination in both the exercise of their individual and collective rights is a recurring and prominent principle that comes out of several provisions of the Declaration, including in its first two articles:

Article 1

Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights(4) and international human rights law.

Article 2

Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.

In its final article:

Article 46
…
2. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

6. The Honour of the Crown

The Honour of the Crown is an ethical standard long imposed by the Canadian common-law to set limits—and in some cases impose obligations—on government actors in their dealings with Aboriginal Peoples.[Note 242] As was noted by the Supreme Court of Canada in the recent decision of Beckman v. Little Salmon/Carmacks First Nation:

The obligation of honourable dealing was recognized from the outset by the Crown itself in the Royal Proclamation of 1763 (reproduced in R.S.C. 1985, App. II, No. 1), in which the British Crown pledged its honour to the protection of Aboriginal peoples from exploitation by non-Aboriginal peoples. The honour of the Crown has since become an important anchor in this area of the law: see R. v. Taylor , (1981), 62 C.C.C. (2d) 227, (Ont. C.A.), leave to appeal refused, [1981] 2 S.C.R. xi; R. v. Sparrow, 1990 CanLII 104 (S.C.C.), [1990] 1 S.C.R. 1075; R. v. Nikal, 1996 CanLII 245 (S.C.C.), [1996] 1 S.C.R. 1013; Delgamuukw v. British Columbia, 1997 CanLII 302 (S.C.C.), [1997] 3 S.C.R. 1010; as well as Badger, Marshall, and Mikisew Cree, previously referred to. The honour of the Crown has thus been confirmed in its status as a constitutional principle.[Note 243]

In a recent line of cases involving the Crown’s duty to consult and accommodate with Aboriginal peoples, the Supreme Court of Canada has repeatedly maintained that in all its dealings with Aboriginal peoples, the Crown must act honourably.[Note 244] The ethical duty expected of the Crown was restated in the Taku River case as follows:

[T]he principle of the honour of the Crown grounds the Crown’s duty to consult and if indicated accommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title. The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question. The Crown’s honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1).[Note 245]

It is CAP’s view that the Supreme Court’s instructions that the duty of the Crown to act honourably should not be interpreted narrowly or technically means that the duty not only prevents the Crown from acting in certain ways to Aboriginal people, but also requires the Crown to take positive action on behalf of Aboriginal people where circumstances require.

In addition, it is clear from Supreme Court of Canada cases that the Honour of the Crown is a fundamental concept to the ultimate goal of reconciling the relationship between Canada and Aboriginal peoples. As noted by McLachlin C.J. in Haida Nation v. British Columbia (Minister of Forests):

The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”: Delgamuukw, supra, at para. 186, quoting Van der Peet, supra, at para. 31. [emphasis added][Note 246]

It is CAP’s firm position that the ethical standard of the Honour of the Crown binds the Government of Canada, its officials and employees. Without the Crown acting honourably with regard to Aboriginal peoples, there can be no reconciliation between Canada and Aboriginal peoples.

Appendix “B” to the Report of the Congress of Aboriginal Peoples

The Congress Of Aboriginal Peoples

The Congress of Aboriginal Peoples (“CAP”) is the national body that represents the interests of and advocates for the rights of off-reserve non-status and status Indians, and Métis peoples living in urban, rural, remote areas throughout Canada. CAP was founded in 1971 as the Native Council of Canada to address the lack of recognition of Aboriginal peoples and to challenge the division and exclusion of off-reserve Aboriginal peoples, from federal responsibility. For forty years, CAP has advocated on behalf of off-reserve Aboriginal peoples in key areas of self-government, including self-determination, Aboriginal and treaty rights, land claims, health and social programs, economic development, capacity building, research, and legal/political recognition.

Provincial Affiliates

CAP’s affiliates are provincially or territorially incorporated organizations (PTOs) that have legally associated with CAP at various times since 1971. Each affiliate has its own constitution and is separately funded. Individuals may join his or her respective PTO if they meet the membership criteria. The policy goals and objectives of CAP are developed by the PTO’s at CAP’s annual general assembly. The Presidents and/or Chiefs of the PTO’s belong to the Board of Directors for CAP, which meets quarterly to oversee the implementation of the policy objectives set by the annual general assembly. CAP’s affiliates are:

CAP’s Accomplishments

CAP has participated in many significant cultural, legal and political initiatives during the last forty years on behalf of its off-reserve status Indians, non-status Indians and Métis constituents. As a result of CAP’s participation in the constitutional talks regarding the repatriation of the Constitution in the 1980’s, the Constitution Act, 1982 was realized.[Note 247] Section 35 recognizes that the Aboriginal peoples of Canada includes the Indian, Inuit and Métis and protects their Aboriginal and Treaty rights.[Note 248] CAP ensured that the views of its constituents were heard prior to the implementation of the Bill C-31 amendments to the Indian Act regarding the process for determining who is an Indian. CAP participated in the Aboriginal roundtable discussions leading up to the Kelowna Accord in 2005. CAP has also intervened in significant legal cases, including McIvor v. Canada, to ensure that the particular issues related to CAP’s constituents are included in the larger legal discussion.[Note 249] CAP has also commenced litigation (Daniels v. Canada) seeking a judicial declaration that the federal government has a fiduciary responsibility for Métis and non-status Indians under Section 91(24). Since 2010, CAP has been participating in the Aboriginal Affairs Working Group established by the Council of the Federation. The goal of this work is to develop recommendations and identify actions and strategies to improve the quality of life for all Aboriginal peoples in Canada.