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It is time to repeal section 67 of the Canadian Human Rights Act (CHRA). It's a matter of rights.

As a result of section 67, some First Nations¹ people living on reserve are denied full access to the human rights complaint resolution system available to other people in Canada. Section 67, part of the original 1977 CHRA legislation, was to be a temporary measure, a short-term expedient. Twenty-eight years later, it is still in place.

Human rights legislation, which includes provisions for the redress of human rights complaints, has been enacted in Canada at the federal, provincial and territorial levels. While issues of effectiveness and access remain, generally, any Canadian who believes that they have been the victim of discrimination can file a complaint with a human rights commission or tribunal. Any Canadian, that is, except those who happen to be a member of a First Nation living on lands governed under the Indian Act. These Canadians have been left out of the human rights protection that others take for granted.

In issuing this report, the Commission is promoting the resolution of a long-standing and unacceptable gap in human rights protection. A solution to this issue may or may not result in more responsibilities for the Commission. The Commission does not have a proprietary interest in how this problem is resolved. Its only concern is that it is resolved.

The Commission recognizes that traditional First Nation systems of governance already incorporate human rights principles. Futhermore, the Commission does not believe that section 67 must be repealed because First Nations have a special problem regarding discrimination. There are problems of discrimination in First Nation communities, but this is not unique to First Nations, as the Commission's work amply illustrates.

Section 67 restricts the ability of people living or working in communities operating under the Indian Act to file complaints of discrimination if the discrimination they are complaining about is related to the Indian Act. Section 67 is the only provision in Canadian human rights law that restricts access of a particular group of persons (people living or working in First Nations communities) to the human rights process.

The Canadian Human Rights Act prohibits discrimination based on eleven grounds.² To ensure effective protection against discrimination, the Act provides for a system for the investigation and resolution of allegations of discrimination. A person who believes they have been discriminated against can file a complaint against any employer or service provider under federal jurisdiction including federal departments and agencies. This includes complaints regarding provisions of federal legislation and regulations.³

Generally speaking, any action, policy or legislation within federal jurisdiction can be the subject of a human rights complaint. The Canadian Human Rights Commission must consider all complaints on their merits. With limited exceptions,⁴ no legislation or action carried out by the federal government or a federally regulated entity is free from human rights scrutiny.⁵ Section 67, however, runs contrary to this inclusive approach. The section reads as follows:

Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.

As a result of section 67, some actions carried out by the Government of Canada or a First Nation government (or by a related agency, such as a school board) can be exempt from human rights scrutiny. Given the broad scope of the Indian Act, which affects many aspects of the daily lives of First Nation people, the impact of section 67 is significant. In effect, it creates a zone of law and decision making within which First Nation people have a restricted right to pursue claims of discrimination.

The impact of this exclusion can be better appreciated by considering some of the matters provided under the Indian Act that cannot be challenged in either their substance (in that the provision itself may be discriminatory) or their application (in that the provision may have been applied in a discriminatory manner):

• registration or non-registration of someone as a First Nation member;

• use of reserve lands;

• occupation of reserve lands;

• wills and estates;

• education;

• housing;

• ministerial decisions with regard to incompetent individuals and guardianship; and

• the enactment of by-laws.⁶

First Nations people living off reserve, especially those who regained status under Bill C-31, sometimes have conflicts with their First Nation governments regarding the allocation of resources such as education funding and housing. However, as a result of section 67, they may be excluded from filing a human rights complaint, even if they have reason to believe that their lack of access to these resources was discriminatory.

As a result of a line of tribunal and court decisions, the scope of the section 67 exemption has been interpreted narrowly. For an action by a First Nation or the Department of Indian Affairs and Northern Development (DIAND) to come under the section 67 exemption, the legal authority for making the action or decision must result directly from the Indian Act.⁷ For example, a First Nation government might make an administrative decision on allocating First Nation rental housing, which does not require an individual land allotment under the Indian Act. This decision would not be exempt from Commission scrutiny. However, a decision allocating individual land allotments by Certificate of Possession, carried out in accord with the Indian Act, would be exempt.

Consequently, the application of section 67 is arbitrary in many areas. It can lead to different results in similar circumstances, depending on whether the discriminatory act flowed from the Indian Act or not. Section 67 also precludes complaints against the Government of Canada alleging that provisions of the Indian Act itself are discriminatory.

Due to the narrowed application of section 67, there are decisions of First Nations governments and the federal government that fall outside the scope of the exemption and that therefore can be subject to review under the CHRA. The Commission deals, on average, with 20 such complaints per year.

Cases that have reached the Commission and the Tribunal from First Nations communities reveal the same range of human rights complaints as occur off reserve. There are complaints based on various grounds, such as sex, age, disability and race. The focus of complaints has included the denial or termination of employment, the denial of access to programs or services administered by a First Nation government, and sexual harassment in the workplace.

It is, of course, not possible to determine how many complaints of discrimination might have been filed under the CHRA but for section 67. Nor is it possible to know what impact such complaints may have had on forcing or promoting reform of potentially discriminatory provisions of the Indian Act and First Nation by-laws.

However, it is clear that since 1977, many First Nation people, particularly First Nation women, have vigorously objected to section 67. They called for its repeal so that they could challenge provisions of the Act and actions by both DIAND and First Nations that they considered to be discriminatory. A particular focus of attention was the alleged continuing gender discrimination created by the 1985 Bill C-31 amendments of the Indian Act. It therefore can be assumed that, but for the existence of section 67, many complaints would have been filed with the Commission since 1977.

Perhaps a less well appreciated effect of section 67 is the overall impact it has had on the perception of the access First Nations people have to a human rights redress process. Incomplete information and misconceptions about section 67 have led to a widespread belief that all actions carried out by First Nations or DIAND are exempt from human rights scrutiny. As a result, many First Nation people, who in fact could file a complaint of alleged discrimination, do not do so.

A further anomaly in the operation of this exemption is the fact that self-governing First Nations, operating outside the Indian Act, are subject to the CHRA. There is no acceptable rationale for this difference in treatment between First Nation communities.