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© Minister of the Department of Indian Affairs and Northern Development, 2011
Cette publication est aussi disponible en français sous le titre : Rapport au parlement sur l'état de préparation des communautés et organisations des Premières nations à la conformité à la Loi Canadienne sur les droits de la personne.
Enacted in 1977, the Canadian Human Rights Act (CHRA) aims to ensure equality of opportunity and freedom from discrimination in federal jurisdiction. At the time that the CHRA was passed, however, it was understood that adjustments would have to be made before the federal government and First Nations operating under the Indian Act could be fully compliant with the new law. As a result, section 67 of the CHRA explicitly shielded the federal government and First Nations community governments from complaints of discrimination relating to actions arising from or pursuant to the Indian Act. This was intended to be a temporary measure, but the
“Indian Act exception” remained in effect until the passage on June 18, 2008 of Bill C-21, An Act to Amend the Canadian Human Rights Act.
Prior to the passage of Bill C-21, First Nations leaders were clear that their communities and organizations required time to adjust to the full application of the CHRA, and to prepare for possible complaints against them. Although the CHRA applied fully to the federal government immediately, a grace period of 36 months was allowed in the legislation to give First Nations additional time to prepare. This grace period expires in June 2011.
Bill C-21 also required the
“Government of Canada, together with the appropriate organizations representing the First Nations peoples of Canada” to
“undertake a study to identify the extent of 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.” In keeping with this statutory requirement, the Department of Indian Affairs and Northern Development (DIAND), on behalf of the Government of Canada, asked three organizations that represent the interests of those constituencies most affected by the repeal of section 67 of the CHRA to conduct an assessment of the readiness of their respective constituencies to implement the CHRA. These three organizations are the Assembly of First Nations (AFN), the Native Women’s Association of Canada (NWAC) and the Congress of Aboriginal Peoples (CAP). This report summarizes the results of this work, lays out the progress made by First Nations communities and organizations in preparing for the full application of the CHRA, and fulfills the Government of Canada’s requirement under section 4 of the Act.
These organizations are well placed to identify the current state of preparedness for the implementation of Bill C-21. However, the perspectives and conclusions presented in their respective reports are entirely their own. Neither DIAND nor any other department or agency of the federal government has verified the data used or the conclusions made therefrom, and their respective reports are presented in the Annex to this document unchanged from how they were received by DIAND. The complete report of each organization is available directly from either the AFN, NWAC or CAP.
Each organization approached its work from a slightly different perspective. However, they all conclude that, based on their research and analysis, First Nations communities and organizations are not yet adequately prepared for the full application of the CHRA. They point to needs in three general areas. First, all three reports noted that there is generally a low level of awareness of both the CHRA itself, of the rights that are protected by it, of the Canadian Human Rights Commission and the complaints process, and of the repeal of section 67 and its possible effects on First Nations people, communities and organizations. Second, the reports noted the insufficient capacity of some First Nations communities and organizations to prepare for the full application of the CHRA. This includes the resources and capacity to review laws and procedures; training and tools to evaluate accessibility of infrastructure; and First Nations based mechanisms to resolve complaints. Third, the reports outline the need for financial and human resources to support both the building of awareness and capacity, as well as possible gaps in the accessibility of infrastructure on First Nations reserves.
The challenge of ensuring that government programs and services are delivered in a manner which fully respects and protects human rights is important, and not one that is unique to First Nations governments. The Government of Canada recognizes First Nations governments as possessing, like other governments in Canada, the powers and authorities necessary to prepare First Nations communities and organizations for the full application of the CHRA. Over time, as complaints arise that highlight possible breaches of the CHRA, First Nations governments will be able to further adjust their practices to respond to complaints, and to prevent them from arising again in the future. Programs and services are available through a number of federal departments and agencies to assist First Nations communities and organizations with these adjustments, and the Canadian Human Rights Commission is working to raise awareness of the CHRA within First Nations communities, strengthen its relationship with First Nations governments, and to provide the information they require as they prepare for their new responsibilities.
The Canadian Human Rights Act (CHRA), enacted in 1977, prohibits discriminatory practices on the basis of a list of enumerated grounds in areas of employment, accommodation and the provision of goods, services or facilities that are customarily available to the public. The CHRA applies to federal legislation, federal government departments, agencies and Crown corporations, and federally regulated businesses and industries such as banking and communications.
There was one major area, however, surrounding which complaints could not be made: Section 67 of the CHRA explicitly shielded the federal government and First Nations community governments from complaints of discrimination relating to actions arising from or decisions made pursuant to the Indian Act.
At the time that the original CHRA was passed in 1977, section 67 was included as a temporary legislative provision to allow time for amendments to provisions of the Indian Act that were acknowledged to likely become the subject of CHRA complaints against First Nations and the federal government operating under the Indian Act. Despite numerous attempts to repeal section 67, it remained in effect until the June 18, 2008 passage of Bill C-21, An Act to Amend the Canadian Human Rights Act.
That Act (
“Bill C-21”) repealed section 67 of the CHRA with immediate application to the Government of Canada and a three-year-delayed application to First Nations governments operating under the Indian Act. Section 3 of Bill C-21 states:
… an act or omission by any First Nation government, including a band council, tribal council or governing authority operating or administering programs or services under the Indian Act, that was made in the exercise of powers or the performance of duties and functions conferred or imposed by or under that Act shall not constitute the basis for a complaint under Part III of the Canadian Human Rights Act if it occurs within 36 months after the day on which this Act receives royal assent.
In anticipation of the passage of Bill C-21 in 2008, First Nations leaders expressed that they required time to prepare for compliance with the CHRA as it relates to actions and decisions made pursuant to the Indian Act. The 36-month delay, which expires on June 18, 2011, was intended to provide First Nations governments with the CHRA compliance preparation time that was sought.
Bill C-21 required the Government of Canada, during the 36 month delay period, to conduct a study and report on the readiness of and resources required by First Nations communities and organizations to respond to the repeal of section 67. Section 4 of Bill C-21 states:
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 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.
This report (
“Report”) includes the studies undertaken, and summarizes the preparedness of First Nations communities’ and organizations’ for the full application of the CHRA.
In keeping with the statutory requirements under section 4 of Bill C-21, the Department of Indian Affairs and Northern Development (DIAND), on behalf of the Government of Canada, provided funding during the fiscal year of 2009-2010 to three organizations that represent the interests of those constituencies most affected by the repeal of section 67 of the CHRA: the Assembly of First Nations (AFN), the Native Women’s Association of Canada (NWAC), and the Congress of Aboriginal Peoples (CAP).[Note 1]
Each organization was asked to conduct a needs assessment study with its respective constituency on the readiness of First Nations governments to implement the CHRA. The needs assessment was to involve a consideration of the impact of CHRA claims on the constituency, as well as a consultation with its members regarding their views on what needs to be done to prepare for the implementation of the repeal of section 67 of the CHRA. These needs assessment reports were then submitted to DIAND in March and April 2010. These reports have been published by each of the organizations.
In 2010-2011, the three organizations developed summaries of their respective needs assessment reports for inclusion in this Report to Parliament. These summaries are included in the Annex of this Report.
While these organizations, who represent much of the population affected by the repeal of section 67 of the CHRA, are in many ways well placed to identify the current state of preparedness for the implementation of Bill C-21, the perspectives of and conclusions drawn by these organizations in their respective needs assessments are entirely their own. Neither DIAND nor any other department or agency of the federal government has verified the data used or the conclusions made therefrom in their respective reports. It should be noted as well that the submission of each of the organizations is presented here largely as it was received by DIAND, with formatting and editing changes made only for the purpose of integrating the document into this Report. As already noted, the complete needs assessment report of each organization is available directly from that organization.
In addition to the collaboration with Aboriginal organizations, DIAND worked with other federal departments and agencies to gather information for this Report on existing federal initiatives that support community readiness for the implementation of the CHRA.
Based on the needs identified in the needs assessment reports, a list of the federal departments that could most clearly and directly support First Nations communities in preparing for the full application of the CHRA was identified and included the Department of Indian and Northern Affairs Canada, Labour Canada, the Department of Human Resources and Skills Development Canada, Canada Mortgage and Housing Corporation, and Public Works and Government Services Canada. A short profile of federal programs and services that are available to First Nations communities and organizations to address some of the needs expressed in these reports was compiled, and is included in Chapter 3 of this Report. It should be noted that the information provided herein is not necessarily a comprehensive list, has not been validated by all of the relevant federal departments, and should not be seen as forming part of the needs assessment.
The Canadian Human Rights Commission (CHRC) is responsible for the ongoing management and implementation of the CHRA through both its complaint management process, and its public education and awareness mandates. Given its mandate and specialized expertise in the application of the CHRA, the CHRC could be considered as having the primary responsibility for addressing the capacity requirements of First Nations communities and organizations.
In fact, the CHRC’s National Aboriginal Initiative[Note 2] is the lead in the overall implementation and operational management of the amendments to the CHRA brought by Bill C-21, including the implementation of new resources for:
A collaborative process was established that sought to bring the three Aboriginal organizations and federal government partners together for the purpose of preparing the Report to Parliament. However, over the course of the drafting, the CHRC notified DIAND that it would not be participating in this Report and would be tabling its own separate report to Parliament.[Note 4] As a result, Chapter 3 of this report focuses on the departments and agencies involved in aspects of the issues raised in the three needs assessment reports, but provides only a general overview of the role played by the CHRC, referring the reader to the CHRC’s own Report.
Before a full consideration of the preparation, capacity, and fiscal and human resources required by First Nations communities and organizations to comply with the CHRA is possible, a brief presentation of the anticipated impact of the repeal of section 67 is necessary. This is offered in the next chapter of the Report.
Canada is considered by many around the world to be a leader in the recognition and protection of human rights. Beginning with the signing of the Universal Declaration of Human Rights in 1948, Canadian governments at all levels have worked to ensure that human rights protections are a fundamental part of Canadian legal discourse. As a result, there are now provincial human rights laws, the Canadian Charter of Rights and Freedoms (
“Charter”) as part of the Canadian Constitution, and the Canadian Human Rights Act and the two bodies it created: the Canadian Human Rights Tribunal (CHRT), and the Canadian Human Rights Commission (CHRC).
Enacted in 1977, the Canadian Human Rights Act (CHRA) prohibits discriminatory practices based on an extensive list of grounds in areas of employment, accommodation and the provision of goods, services or facilities that are customarily available to the public. The CHRA applies to federal government departments, agencies and Crown corporations, as well as to federally regulated businesses and industries, such as the banking and communications sectors.
The CHRA prohibits any employer or provider of a service that falls within federal jurisdiction to discriminate based on eleven grounds. These grounds[Note 5] are:
Individuals or groups who believe that they have experienced discrimination in employment and the provision of services within federal jurisdiction on any of these grounds may submit a formal complaint to the Canadian Human Rights Commission for investigation. The CHRC is an autonomous administrative body created with the passage of the CHRA in 1977, operating in the public interest, at arms-length from the government, with a formal mandate to protect and promote the equality rights of Canadians. The CHRC administers the CHRA including evaluating and investigating complaints, providing conciliation services for the settlement of valid complaints, and where warranted, referring complaints to the Canadian Human Rights Tribunal (CHRT). The CHRT is the quasi-judicial body that is separate from and independent of the CHRC, and its decisions may be enforced by the Federal Court. The CHRT adjudicates on matters referred to it, and possesses broad remedial powers to address complaints.
In addition to its role in administering the complaints process, the CHRC also conducts research and undertakes projects to inform members of the general public about their rights under the CHRA. It also monitors federal programs, policies and legislation that might impact upon the equality rights of vulnerable groups in Canadian society. The CHRC also works with federally regulated organizations to prevent discriminatory conduct within their environments.
Section 67 of the CHRA effectively shielded the federal and First Nations governments from complaint against any decision or action authorized by the Indian Act:
Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.
Section 67 mostly affected those individuals registered or entitled to be registered as
“Indians” under the Indian Act. It prevented the application of the CHRA to any Indian Act-related action or decision including Indian registration, the allocation of land on reserve, and band elections.[Note 6]
Since its inclusion in the CHRA in 1977, it was the intention of the Government of Canada to eventually repeal section 67, to ensure that all Canadians had access to the same protection of human rights. As noted above, section 67 was intended to be a temporary provision in the CHRA at the time it was passed in 1977, to allow time for amendments to provisions of the Indian Act that were acknowledged to likely become the subject of CHRA complaints against First Nations and the federal government operating under the Indian Act.
The first attempt to repeal section 67 was in December of 1992, however, Parliament was dissolved before the amendments could be passed. Similarly, a second attempt at repeal was made in 2002, but was unsuccessful when Parliament was prorogued in 2003. The third and fourth attempts, respectively in October 2005 and December 2006, were similarly unsuccessful. Finally, Bill C-21, which came into force on June 18, 2008 as An Act to amend the Canadian Human Rights Act, S.C. 2008, c. 30, resulted in the repeal of section 67 of the CHRA with immediate application to the federal government and a 36 month delay of application to First Nations governments. This delay expires on June 18, 2011[Note 7].
Despite the shield provided by section 67, it must be stated that the actions of many First Nations government have always been subject to the CHRA, as many actions (or omissions) are made pursuant to some other authority, and not to the Indian Act. Prior to the repeal of section 67, the CHRC dealt with approximately 40 complaints involving First Nations governments per year. Examples of decision-making areas that were always subject to the CHRA, and are unchanged by the repeal of section 67, include:
It should also be stated that the repeal of section 67 does not change the operation of the Indian Act; the provisions of the Indian Act continue to apply to those who are registered or entitled to be registered as Indians, members of bands, Chiefs and Band Councils, and the federal government.
As of June 19, 2011, decisions of a First Nation government may become the subject of a CHRA complaint, including decisions relating to:
Actions or omissions made under or pursuant to the Indian Act that may be subject to a complaint must, however, fit within the CHRA’s area of application, that is, employment and the provision of goods, services, facilities or accommodation customarily available to the general public. Consequently, it is only to the extent that these are deemed to be a service, the provision of facilities or accommodation or employment that operations under the Indian Act may be subject to a complaint made under the CHRA.
It should be noted, however, that a complainant may be required by the CHRC to pursue other available recourses before the processes and remedies made available under the CHRA can be accessed. Similarly, a decision made by DIAND may be considered to fall outside of the jurisdiction of the CHRC because it is not the provision of a good or a service or an employment issue. Nevertheless, the repeal of section 67 means that the human rights of First Nations people will be protected by the CHRA in the same way as those of other Canadians, for the first time since the CHRA was enacted almost 35 years ago.
Implementing the changes made as a result of the repeal of section 67 will involve the participation of a number of stakeholders. Three main groups have been identified as being most affected by the repeal:
Preparing for the application of the CHRA affects all First Nations governments who operate under the authority of the Indian Act. However, the stakeholders listed above are also represented nationally by three main organizations: The Assembly of First Nations (AFN), the Native Women’s Association of Canada (NWAC), and the Congress of Aboriginal Peoples (CAP). Each of these organizations participated in the development of this report, and their views on the needs of their respective constituencies and memberships in preparing for the implementation of Bill C-21 are presented in the Annex.
Similarly, there will be an important role for the federal government to play in the implementation of Bill C-21. Many programs and services available to First Nations communities and organizations to assist them in preventing and responding to complaints made pursuant to the CHRA are summarized in Chapter 3. However, perhaps the greatest role in the early stages of the implementation of Bill C-21 will be played by the CHRC.
In keeping with its mandate, the CHRC established the National Aboriginal Initiative, to work with
“First Nations and other Aboriginal stakeholders to prepare for the full implementation of the repeal of section 67 of the Canadian Human Rights Act.”[Note 11] In keeping with this role, the CHRC has made available new resources for:
The specific activities undertaken by the CHRC since the passage of Bill C-21 in supporting First Nations communities and organizations can be found in their Annual Report to Parliament.
Assessing the overall state of readiness of more than six hundred First Nations communities is not a simple task. First Nations communities across Canada range in size, population and location and, as a result, are at different stages of preparedness to implement Bill C-21. Their understanding of the CHRA and the CHRC varies greatly: some communities are familiar with the Act and the processes it establishes and, as a result, may be better equipped to ensure that their decisions and policies are CHRA compliant. Some may have established community-based alternative dispute resolution mechanisms. Other communities, however, may have had no experience with the CHRA, or the CHRC, and may be unfamiliar with ensuring CHRA compliance.
An analysis of the needs assessment reports submitted by the AFN, NWAC and CAP, confirms these differing levels of preparedness for CHRA implementation. Only general conclusions can be made as a result of this study and care will need to be exercised to ensure that the specific circumstances facing individual First Nations communities and organizations are considered.
Furthermore, there remains considerable room for differences of opinion regarding not only the extent of any gaps in preparation, but in the roles and responsibilities of various stakeholders in responding to these gaps. The perspectives expressed by these organizations in their respective needs assessments are entirely their own. Neither DIAND, nor any other department or agency of the federal government has verified this data or the conclusions made therefrom in their respective reports.
It is the conclusion of the reports of the three Aboriginal organizations that, while a great deal of work has been carried out in this period to prepare for the full application of the CHRA, that First Nations communities and organizations have not, in the three year delay of application period, become fully compliant. An analysis of the three studies reveals some common issues:
The studies of the three Aboriginal organizations conclude that there is generally a low level of awareness of both the CHRA, of the rights it seeks to protect, of the CHRC and its complaints process, and of the repeal of section 67 and its possible effects for First Nations people, communities and organizations. The AFN, for example, noted that greater communication is required at two levels: first, at the level of Chief and Council and their staff and, second, at the level of community members to ensure they are aware of their rights. Similarly, a lack of awareness of the CHRA, the effect of the repeal of section 67, and of what the customary laws are of their own First Nation, were reported both by NWAC and by CAP from their community dialogue sessions and focus groups. If it is assumed that one needs to be aware of legislative change before one can fully prepare for it, these findings from the three reports alone would suggest that First Nations communities are not yet adequately prepared.
Given its mandate to administer the CHRA and to
“foster understanding and commitment to achieving a society where human rights are respected in everyday practices”, a significant role must be played by the CHRC in addressing these gaps in awareness among First Nations communities and organizations. As reported in its 2010-2011 Annual Report, the CHRC has undertaken a number of initiatives that respond to this need. It established the National Aboriginal Initiative, the objective of which is to:
“… strengthen relations with Aboriginal groups and foster a dialogue on how to incorporate the unique context of First Nations communities into human rights protection mechanisms. Its focus is on making the Commission’s programs more accessible and culturally sensitive to First Nations people and communities, and on supporting First Nations human rights.”[Note 13]
Since its inception, the CHRC’s National Aboriginal Initiative has sought to address weakness in awareness of the CHRA and the CHRC, and the possible effects of the repeal, by strengthening the CHRC’s relationship with First Nations communities and providing information to First Nations governments.[Note 14] The Commission also
“collaborated with the NWAC to develop educational material to improve people’s understanding of their rights.”[Note 15]
It will take time and effort for these activities to translate into demonstrable improvements in the level of awareness of First Nations individuals, communities and organizations. The findings of the three needs assessment studies suggest that the recent work of the CHRC has been insufficient. How further work in this area can be supported or expanded in the years ahead needs to be determined.
A second major area where the needs assessment studies of the three Aboriginal organizations identified gaps in readiness is a broad one: the capacity of First Nations communities and organizations to prepare for the full application of the CHRA. The studies identify a number of specific areas in which the capacity of First Nations communities and organizations are under-developed, which will hinder their ability to fully comply with the CHRA. More specifically:
While these specific points relate to the capacity of First Nations communities and organizations, there is also the issue of the capacity of institutions such as the CHRT and the CHRC involved in the interpretation of the CHRA to understand and interpret First Nations customs and traditions. NWAC noted, in particular, the need for the CHRC to apply a gender-specific lens to the consideration of complaints in addition to cultural considerations mandated by the interpretive clause of the CHRA itself. It argues that tools and skills need to be developed within these institutions to effectively balance individual rights with collective rights in the Aboriginal context.
The Government of Canada has existing programs and services that may assist in building capacity in First Nations communities to respond to the specific needs outlined in the three studies. These include:
There are also programs and services available through the Canadian Human Rights Commission (CHRC). Given its mandate to
“foster understanding and commitment to achieving a society where human rights are respected in everyday practices”, First Nations communities and organizations may contact the CHRC for further information on how their programs and services might assist them with ensuring CHRA compliance.
In First Nations communities, governance capacity development and the implementation of government functions are assisted through, amongst other initiatives – DIAND programs, tools and mechanisms designed to support and enrich community governance and the administration of government.
The Tribal Council Funding program provides funding to Tribal Councils to enable them to retain employees to provide advisory services and deliver programs and services to their First Nations members. The objective of the program is to provide core funding to Tribal Councils, created and mandated by bands, for the aggregated delivery of advisory services and programs to affiliated bands.
The purpose the Band Advisory Services Program is to provide funding to First Nations not affiliated to Tribal Councils to assist them to independently access band advisory services. This program is available to larger First Nations with a minimum on-reserve population of 2,000 Status Indians. The objective of the Band Advisory Services program, which has been operating since 1989, is to provide funding to large, unaffiliated bands to
“make or buy” advisory services to support effective community governance.
In relation to the implementation of section 67 of the Canadian Human Rights Act, First Nations communities may provide a mandate to their Tribal Council to provide services to respond to several of the gaps identified in the needs assessment. Similarly, First Nations communities eligible for the Band Advisory Services program may seek expertise and services in one or more of these identified areas. The services provided or obtained through Tribal Council Funding or Band Advisory Services could include: a legal or gender-based review of First Nations government laws and policies, training for community staff regarding the CHRA, an evaluation of the state of accessibility of infrastructure in their community and training in alternative dispute resolution mechanisms. Each of these activities would be dependent on tribal council or band advisors having expertise in these areas.
The Band Support Funding program assists First Nations to meet the costs of local government and the administration of departmentally funded services. This support is intended to provide a stable funding base to facilitate effective community governance and the efficient delivery of services.
Overall, the grant funding is designed to provide, in comparison with other local jurisdictions of comparable size, a reasonable contribution to the costs of governance, with a specific focus on the costs associated with the administration of departmentally funded programs and services.
As a grant, Band Support Funding is the most flexible funding provided to First Nations communities by DIAND. Communities may decide to use this funding to assist in responding to the repeal of s. 67 of the Canadian Human Rights Act. Furthermore, communities may decide to use a portion of the grant to increase their readiness with regard to the implementation by funding: legal and gender-based reviews of policies and codes, developing Alternative Dispute Resolution mechanisms, training community staff members, and performing an evaluation of infrastructure.
Tribal and Band Advisory Services and Band Support Funding represent existing programs with a previously approved amount of funding. As there is a maximum amount directed towards each Tribal Council and First Nations community, S.67 related activities would only be funded at the expense of existing funding pressures.
The Professional and Institutional Development Program (P&ID) is a proposal-based program used to develop the capacity of First Nations to perform core functions of government, by funding governance-related projects at the community and institutional levels. Each Region of the Department of Indian Affairs and Northern Development has an independent budget for the Professional and Institutional Development Program, for use in funding projects that will benefit the governance capacity of First Nations in that Region.
In order to be eligible for funding, proposals must benefit the governance capacity of First Nations and/or Tribal councils. First Nations communities may submit proposals for project funding to develop their governance capacity if it addresses one of the ten core functions of governance outlined by P&ID. Those ten core functions of governance are: Leadership, Membership, Law-Making, Community Involvement, External Relations, Planning and Risk Management, Financial Management, Human Resources Management, Information Management / Information Technology, and Basic Administration. Meeting one of these core functions, First Nations communities and organizations may access project funding in a manner that is related to the implementation of the repeal of s. 67 of the Canadian Human Rights Act, to conduct a legal review of First Nations government laws and policies or in order to train community employees regarding the CHRA. The program could also fund projects to develop Redress or Dispute Resolution codes, which disabled members could use to resolve complaints locally rather than following the Canadian Human Rights Commissioncomplaints resolution or tribunal process.
Distribution of available project funding is dependent on the value of proposals submitted to a Region in a given year, and on the funding priorities of the year in which the proposal is received.
The National Centre for First Nations Governance (NCFNG) is a service and research organization for First Nations. The centre’s mandate is to support First Nations as they develop effective, independent governance by providing relevant and innovative knowledge and development of governance services, product and events. NCFNG’s two-pronged mandate supports First Nations as they seek to implement effective self-governance while also assisting First Nations in the further development of their day-to-day government operations. The Centre also supports First Nations in their efforts to develop their jurisdictional authorities.
The NCFNG is a non-profit organization. It is governed by First Nations professionals and operates independently from the Government of Canada and political organizations. However, the Government of Canada provides funds to the Centre to enable them to carry out their mandate. Funding to the NCFNG varies year-to-year based on the availability of funds and the work plan provided by the NCFNG.
First Nations can contact the NCFNG in order to discuss the possibility of working on their governance needs as related to the implementation of the repeal of s. 67 of the CHRA. These proposed services may include providing a legal and gender-based review of First Nations government laws and policies and providing training for employees regarding the CHRA.
The Indian Act provides for the enactment of by-laws by Band Councils pursuant to section 81 (local government by-law making powers), section 83 (money by-laws) and section 85.1 (prohibition of intoxicants) of the Indian Act. The By-laws Advisory Services Unit was introduced in 1989 to assist Band Councils to develop and enact by-laws enacted pursuant to sections 81 and 85.1 of the Indian Act, as this process can sometimes be difficult and confusing. It should be noted that pursuant to section 83 of the Indian Act First Nations have the ability to enact taxation and resource generating by-laws, however contrary to by-laws enacted under sections 81 and 85.1 of the Indian Act, section 83 by-laws are processed by the First Nations Tax Commission.
Band Councils enact by-laws under sections 81 and 85.1 of the Indian Act must forward them to DIAND, in accordance with the requirements of the Indian Act, to By-law advisors who then review and assess the draft or enacted by-law against legislative requirements, the Charter as well as other relevant legislation.
The objective of the By-law Advisory Services Unit is to:
With respect to the development and enactment of by-laws pursuant to sections 81 and 85.1 of the Indian Act, the By-law Advisory Services Unit, provides technical and drafting support to First Nations. During this process First Nations may consult the By-law Advisory Services Unit and have their by-laws reviewed prior to enactment. This initial review before enactment allows the By-law Advisory Services Unit to identify issues of concern such as potential Charter violations, conflicts, and operational/enforceability issues that may lead the Minister to disallow the by-law if not addressed. However, this can only be done in the instances where by-laws are submitted in draft form. In instances where by-laws are submitted after their enactment, the by-law is reviewed by the By-law Advisory Services Unit, however if issues of concern such as potential Charter violations, conflicts, and operational/enforceability issues are revealed, then the by-law may be disallowed by the Minister. The reviews conducted with respect to Charter compliance could easily be modified to include reviews for compliance with the CHRA.
In order to facilitate the development and enactment of by-laws by Band Councils, By-law workshops and training are offered to a variety of participants including: DIAND staff, First Nations leadership, First Nations organizations, law enforcement agencies, as well as other members of the public. The workshops address technical issues of drafting, enacting and enforcing by-laws. Resource materials include the workshop manual and sample by-laws. Approximately three to five by-law workshops are provided within any given fiscal year. The provision of training is contingent upon operational and DIAND priorities, funding, regional needs and allocated on a
“first come first serve” basis. By-law advisors also meet with Council, community members, and enforcement and prosecution agencies in an effort to assist in resolving implementation and enforcement issues. As DIAND representatives from the By-law Advisory Services Unit have the expertise required to deliver the service, no direct funding is provided to First Nations communities.
DIAND oversees the implementation and administration of governance processes under the Indian Act, including elections conducted in accordance with the electoral provisions of the Indian Act and Indian Band Election Regulations. This includes any appeals that may ensue; the administration of the Indian Band Council Procedure Regulations; as well as reviewing these processes to respond to new challenges and court decisions such as the Corbière and Esquega decisions. The Elections Unit of DIAND administers the Indian Act and all relevant federal regulations in the areas of elections and council procedures. DIAND also develops and delivers training programs, as well as prepares forms and manuals related to the Indian Act election process. Headquarters is also responsible for the reception, and management processes related to Indian Act election appeals and for providing recommendations.
The majority (approximately 340 of the 616) First Nations communities conduct their elections according to their own community system. This means that they have their own set of rules and procedures governing their leadership selection and are thus not subject to the election provisions of the Indian Act and its accompanying regulations. Furthermore, they are not required to follow the Indian Band Council Procedure Regulations in the conduct of band council proceedings.
When a First Nation community wishes to be removed from the electoral provisions of the Indian Act, they may develop their own custom code that must meet certain requirements. DIAND will assist the community in drafting a sound election code. The First Nation community may wish to avail itself of the sample custom leadership selection code developed by DIAND to use as a guide in drafting its own code.
Approximately three to five electoral officer and electoral code workshops occur within any given fiscal year. The provision of training is contingent upon operational and DIAND priorities, funding, regional needs and allocated on a
“first come first serve” basis. Training or workshops regarding election code development draw explicit attention to the requirement that submissions must be Charter compliant. Materials will be reviewed in order to ensure that CHRA requirements are also identified and brought to participants’ attention. While services and expertise are provided by DIAND, First Nations may access departmental funding to assist with items such as the costs associated with developing a code, community consultations and a ratification vote.
In the case of the development of election codes, the Election Unit, of the Band Governance Directorate, all proposed codes submitted by First Nations wishing to be removed from the application of the election provisions of the Indian Act must, among other things, be Charter compliant.
The Elections Unit supports the implementation of the CHRA through ensuring that the correct procedures and policies related to the elections process are followed. In addition, the unit support the development of custom codes that are both Charter and CHRA compliant, to enable that the selection process can take place outside of the Indian Act.
Labour Canada provides resources to foster an understanding of the components of an inclusive workplace. These resources are delivered through he Government of Canada’s Racism-Free Workplace Strategy which is a key component of A Canada for All: Canada’s Action Plan Against Racism. The Strategy complements and increases the effectiveness of the Employment Equity Act by focusing on workplaces under the jurisdiction of the Employment Equity Act to eliminate employer-related systemic policies and practices that inhibit the recruitment, retention and advancement of members of Visible Minorities and Aboriginal peoples.
The Labour Program provides assistance and tools to help build inclusive and racism-free workplaces. RFWS officials across Canada work with employers, unions and community groups, providing:
The RFWS partnered with the Aboriginal Human Resource Council (AHRC) to enhance the capabilities of federally-regulated employers covered under the Employment Equity Act to recruit, retain and advance Aboriginal peoples in the workplace. The work currently being delivered includes structured and well-developed tools, tip-sheets and resources, web-site portal, environmental scans, quarterly newsletters, web casts and in-house company training.
A key element of this partnership is the delivery of specialized workshops entitled RFWS’ Mastering Aboriginal Inclusion. These one-day workshops are aimed at increasing awareness of barriers to employment, providing innovative solutions, and assisting employers in developing and fostering partnerships with Aboriginal communities and organizations.
Human Resources and Skill Development Canada’s Office for Disability Issues administers the Disability component of the Social Development Partnership Program (SDPP-D). This program provides funding, through grants and contributions, to projects that improve the participation and integration of people with disabilities in all aspects of Canadian society and to national disability organizations to: assist in building their capacity; increase their effectiveness; and encourage their viability as critical partners in furthering the disability agenda at the national level. Eligible recipients must be a not-for-profit organization and actively pursuing activities in line with the SDPP-D objectives.
SDPP-D provides three kinds of contribution funding to not-for-profit organizations: Social Development Projects, Accommodation Projects and Community Inclusion Initiative. Each call for proposals has specific eligibility criteria, funding priorities and funding levels:
The third general category of needs identified in the studies of the three Aboriginal organizations relates to financial and human resources. Resources are required to support the awareness-building and capacity-building activities referenced in the studies. The AFN attempted to quantify some of the costs associated with the activities it believes need to be carried out. Resources were provided to the CHRC following the passage of Bill C-21 to undertake activities in these areas. Nevertheless, the three reports suggest that more resources will be required if First Nations are to ensure full CHRA compliance.
This Report does not claim to accurately quantify the specific requirements in terms of capacity, and the fiscal and human resources required to comply with the CHRA. It would be difficult to quantify the extent to which a community or organization is in compliance with human rights legislation with any accuracy because, being a complaints-driven process, it would require an ability to predict the numbers of complaints, the nature of the actions or omissions that led to the complaints, as well as a way to estimate the amount of awards and/or costs to remedy the action or omission in question. However, it is possible to estimate the financial and human resources necessary to address areas in which deficiencies can be more easily measured. Consequently, considerable attention is paid in the AFN report to community infrastructure, and on cost estimates associated with ensuring that infrastructure on First Nations reserves is CHRA-compliant.
Although it acknowledged that there is a critical lack of current data on the numbers of First Nations people on reserves living with physical disabilities and the cost of retrofitting public buildings,[Note 16] the AFN developed a method for estimating the costs associated with making community infrastructure accessible to persons with disabilities. This estimate claims that as much as $54 million would be required over five years for First Nations-owned buildings to be made fully accessible to the public and to staff with disabilities, and another $332 million for the same to be made to First Nation-owned housing, over ten years.
The National Building Code of Canada (NBC) sets out technical provisions for the design and construction of new buildings. It also applies to the alteration, change of use and demolition of existing buildings. Any new construction, renovation, and/or retrofit activity both on and off-reserve must reflect the current National Building Code of Canada. As the NBC mandates accessibility for public buildings, construction of public buildings on reserve must meet these standards of accessibility. In addition, INAC stipulates in its funding agreements for the construction or renovation of buildings that the NBC must be followed. Therefore, all buildings constructed or renovated pursuant to these terms should be built in accordance with the standards set out in the NBC.
Older buildings, however, built in accordance with previous versions of the building code, may not meet these standards. Given that the Government of Canada does not currently track accessibility data, it is impossible to estimate the degree to which older infrastructure would require retrofits. As an initial step, DIAND is developing a revised Asset Condition Reporting System tool that will help to identify whether all public buildings meet NBC standards. It is anticipated that this tool will be in place for 2013, enabling the Department to provide analysis in 2014.
The Government of Canada provides programming through which First Nations communities and organizations may obtain funds to address accessibility issues. These programs include:
The Canada Mortgage and Housing Corporation (CMHC) is Canada’s national housing agency. It works with community organizations, private sector, non-profit agencies and all levels of government to help create innovative solutions to today’s housing challenges, anticipate tomorrow’s needs and improve the quality of life for all Canadians.
The CMHC On-Reserve Residential Rehabilitation Assistance Program (RRAP), a component of which is RRAP for Persons with Disabilities (RRAP-D) was introduced in the early 1980’s and is an on-going initiative. RRAP-D offers financial assistance to First Nations Councils and First Nations members to undertake accessibility work to modify dwellings occupied or intended for occupancy by low-income persons with disabilities.
An annual budget of $16.7 million is allocated to First Nations to fund a suite of renovation programs including RRAP. First Nations communities determine the priority of applications and therefore, determine the amount of budget committed for the RRAP for Persons with Disabilities Program.
Financial assistance is provided to undertake work intended to eliminate physical barriers and imminent life safety risks, and improve the ability to meet the demands of daily living within the home. Modifications must be related to the occupant’s disability and must make the home accessible such as installing outdoor ramps for wheelchairs or walkers, non-slip surfaces, handrails, grab bars and adjustments to kitchens and bathrooms. The financial assistance is in the form of a forgivable loan. The maximum amounts for this assistance range from $16,000 to $24,000 depending on where the First Nation territory is located in Canada. Additional assistance is available for areas defined as remote.
The Canada Mortgage and Housing Corporation offers the Home Adaptations for Seniors Independence Program (HASI) which helps homeowners and landlords pay for minor home adaptations to extend the time low-income seniors can live in their own homes independently. The adaptations should be minor items that meet the needs of seniors with an age-related disability. This could include handrails; lever handles on doors; walk-in showers with grab bars; or bathtub grab bars and seats.
Homeowners and landlords may qualify for assistance as long as the occupant of the dwelling where the adaptations is 65 and over; has difficulty with daily living activities brought on by ageing; total household income is at or below a specified limit for the area; and the dwelling unit is a permanent residence.
Assistance is provided in the form of a forgivable loan of up to $3,500. The loan does not have to be repaid as long as the homeowner agrees to continue to occupy the unit for the loan forgiveness period, which is six months.
The Capital Facilities and Maintenance Program managed by DIAND provides financial and technical support to First Nations for the planning, design, construction, acquisition, operation and maintenance of community infrastructure (such as roads, bridges, schools, community buildings, water and wastewater systems and electrification) on reserve. Funding is also provided for capacity building, including water and wastewater system operators training, fire protection awareness and community planning.
The CFMP provides financial and technical support to First Nations for the building and maintenance of community infrastructure. This could include design and construction of new facilities according to current building codes or major renovations to bring existing facilities into compliance with current building code standards; this could also include work to accommodate persons with disabilities. First Nations may allocate some of their Operation and Maintenance funding (received under the CFM Program) to address minor accessibility issues in community facilities.
The Office for Disability Issues is located within Human Resources Development and Skills Canada (HRSDC). Its mandate is to:
The Office for Disability Issues administers The Enabling Accessibility Fund (EAF). The EAF supports community-based projects across Canada that improve accessibility, remove barriers, and enable people with disabilities to participate in and contribute to their communities. Eligible recipients include not-for-profit organizations; small municipalities; small private-sector organizations; colleges and universities; territorial governments; and Aboriginal governments.
Through the Small Project Component of the EAF, grant funding of up to $100,000 is available to support activities that will improve the built environment through the renovation, construction and retrofitting of buildings, modification of vehicles for community use and to make information and communication technologies more accessible. All projects funded through this component must create or enhance accessibility for people with disabilities within Canada.
Through the Mid-sized Component of the EAF, contribution funding is provided for retrofits, renovations or new construction of facilities within Canada that house services and programs that emphasize a holistic approach to social and labour market integration needs of people with disabilities. The maximum amount payable per project is between $500,000 and $3 million.
The Canadian Human Rights Act (CHRA) prohibits discrimination in the provision of goods, services, facilities and accommodation. It is the Government of Canada's policy to ensure barrier-free access to, and use of, real property it owns or leases. PWGSC's mandate is to be a common service agency for the Government of Canada's various departments, agencies and boards. On request, PWGSC provides technical support; architectural and engineering support services; and guidance on best practices as they apply to accessibility for persons with disabilities on an optional, cost-recoverable basis. Public Works and Government Services Canada is committed to making its facilities accessible to persons with disabilities.
For further information regarding these programs, please consult the respective departments or agencies directly.
The extent of 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 is what this Report seeks to address.
The needs assessment studies prepared by the three Aboriginal organizations conclude that there is a great deal of work yet to be done before First Nations communities and organizations can be said to be fully CHRA-compliant. They suggest that more work is required to increase awareness of the CHRA and the repeal of section 67 among not only First Nations leaders and organizations, but among communities and their members as well. They also note a number of specific areas in which the capacity of First Nations communities and organizations are under-developed, hindering their ability to fully comply with the CHRA. While the studies attempted to quantify the fiscal and human resources required for First Nations communities and organizations to be prepared, the data on which these estimates were based were acknowledged as being incomplete and out-of-date, particularly as it relates to infrastructure on reserve. Despite this, the studies propose that significant resources will be required, not only to address awareness and capacity challenges, but also possible impediments to reserve infrastructure being fully accessible.
The Government of Canada recognizes First Nations governments as possessing the powers and authorities necessary to prepare First Nations communities and organizations for the full application of the CHRA, just as it applies to other governments in Canada. Over time, as complaints arise that highlight possible breaches of the CHRA, First Nations governments will be able to further adjust their practices to remedy issues that are brought to light as a result of investigations by the CHRC and decisions by the CHRT, and to prevent further complaints, again, in the same way as other governments in Canada.
To assist First Nations communities and organizations in making these adjustments, a range of programs and services are available through a number of federal departments and agencies. In addition, the Canadian Human Rights Commission is working to raise awareness of the CHRA within First Nations communities, and strengthen its relationship with First Nations governments as they prepare for their new responsibilities.
As discussed, three organizations were identified as representing the First Nations peoples of Canada affected by repeal of section 67 of the Canadian Human Rights Act. They are the Assembly of First Nations, the Native Women’s Association of Canada, and the Congress of Aboriginal Peoples.
To respond to section 4 of Bill C-21, each organization was asked to undertake a study to,
“…identify the extent of 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.”
This Annex of the Report provides a summary of the content of each organization’s study. While these organizations represent much of the population affected by the repeal of section 67 of the CHRA and are well placed to identify the current state of preparedness for the implementation of Bill C-21, the perspectives of and conclusions drawn by these organizations in their respective reports are entirely their own. Neither DIAND nor any other department or agency of the federal government has verified the data used or the conclusions made therefrom in their respective reports. It should be noted as well that the submission of each of the organizations is presented here as it was received by DIAND, with formatting and editing changes made only for the purpose of integrating the document into this Report. As already noted, the complete needs assessment report of each organization is available directly from that organization.
As noted in Chapter 2, it is expected that the repeal of section 67 will have the greatest impact on First Nations governments operating under the authority of the Indian Act. As of June 19, 2011, actions and decisions of Band Councils made under or pursuant to the Indian Act will be open to complaint under the CHRA. This means, for example, that matters relating to Band Council elections under the Indian Act, by-laws passed and enacted pursuant to sections 81, 83 and 85.1 of the Indian Act, the management of moneys held in trust for bands, and land management matters can now be subject to a complaint under the CHRA.
The Assembly of First Nations (AFN) is a national organization that represents the leadership of the people most impacted by these changes, more than 600 First Nations communities in Canada. The AFN’s report, entitled Assessing the Readiness of First Nations Communities for the Repeal of Section 67 of the Canadian Human Rights Act,” is the result of research and dialogue led by the AFN in all regions of Canada since the passing of Bill C-21.
Nine regional engagement sessions were held throughout Canada, with a total of 216 participants, ranging from Chiefs, Councillors, policy analysts, band administrators and employees, Tribal Council representatives and Elders. A
“think-tank” session was also held, involving 20 policy analysts and technicians, and a panel discussion involving six lawyers at the AFN Policy and Planning Forum.
In addition to this participatory research work, the AFN also conducted a legal analysis and executed a case study analysis on the question of accessibility to infrastructure on-reserve for disabled persons.
The AFN also carried out a survey questionnaire encompassing all regions. Fifty-two of 209 surveys were completed, representing a 24.8% response rate, with the highest response coming from the Atlantic, Québec, British Columbia and Ontario regions. The response rate was not as strong as was hoped, so the AFN conducted a telephone survey to improve the sample size and bolster the data.
The Native Women's Association of Canada (NWAC) is generally viewed as the national voice representing Aboriginal women in Canada. Founded in 1974, NWAC brings together 13 Aboriginal women's groups from across Canada, which together share the common goals of preserving Aboriginal culture, achieving equal opportunity for Aboriginal women, and playing a role in shaping legislation relevant to Aboriginal women. NWAC is led by a President and Board of Directors, who cooperate and exchange information with local organizations. NWAC’s Board of Directors works with the President and its provincial/territorial member associations to make local and national recommendations on Aboriginal programs and initiatives.
To prepare its report, the NWAC held five focus groups, one in each of the Sagamok and Eskasoni First Nations, in Halifax, Summerside (PEI) and Winnipeg. A total of 76 participants in four out the five focus groups participated (the total number of participants was not provided for the focus group in PEI). In addition, NWAC completed a gendered and culturally-based analysis.
The focus group discussions were guided by a series of questions on the following subject-matters:
NWAC’s report provides information on the needs of First Nations women in respect of the types of community-based processes to be put in place to deal with complaints at the community level in response to section 41 of the CHRA.[Note 17]
Like the AFN’s report, NWAC’s report also provides information on issues relating to First Nations legal traditions, customary law and cultural practices in respect of human rights, which provides a useful context to the specific details of the needs assessment, particularly related to additional issues of relevance to First Nations women.
The Congress of Aboriginal Peoples (CAP) is a national body that advocates for the rights and interests of off-reserve non-status and status Indians, and Métis peoples living in urban, rural, and remote areas throughout Canada. Founded in 1971 as the Native Council of Canada, CAP has represented off-reserve Aboriginal peoples for 40 years in key areas including self-government, self-determination, Aboriginal and treaty rights, land claims, health and social programs, economic development, capacity building, research, and legal/political recognition.
To contribute to this Report, CAP held eighteen regional information sessions, with two sessions held in each province, except in Alberta, where only one session was held, and in Nova Scotia, where 3 Sessions were held. In addition, a survey questionnaire was developed and distributed in the workbook used to support the dialogue sessions.[Note 18]
The results of this study focused on the general knowledge and awareness of the CHRA, the CHRC structures and processes, and the nature of the amendments brought by Bill C-21. The report also highlighted discrimination experienced personally by CAP members.