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Human rights are universal. With few exceptions, they apply to all human beings, simply by virtue of our common humanity. This idea is reflected in the purpose clause of the Canadian Human Rights Act , which specifies that "all individuals" are to be treated equally and without discrimination.

The Supreme Court has ruled that Canadian human rights legislation, including the CHRA, is quasi-constitutional in nature:

Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement.¹⁶

The Court's emphasis on the inadmissibility of exceptions to human rights law "except by clear legislative pronouncement" is important to note. The intent of Parliament in enacting section 67 is clear. There is no doubt that Parliament knew exactly what it was doing. It intended to limit the reach of the CHRA when it came to matters relating to the Indian Act. However, it is also clear that, even in 1977, this limitation was seen as untenable in the long term and one that should be removed quickly.

In another decision, the Supreme Court commented on the inadmissibility of "political" justifications for the infringements of rights:

If an individual's Charter right or freedom is violated by the state, it is no answer to say the violation was driven or is justified for political reasons. Indeed forms of state discrimination that are undertaken for political reasons are among the most odious...¹⁷

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms provides for equality before and under the law:

Charter jurisprudence emphasizes the importance of ensuring protection for all vulnerable groups. In the case of Vriend v. Alberta¹⁸ the Supreme Court considered whether the Alberta Individual's Rights Protection Act (IRPA) violated section 15 of the Charter because it failed to include sexual orientation as a prohibited ground of discrimination. In deciding that the IRPA was "under inclusive" and, therefore, contrary to the Charter, the Court commented on the damage caused to persons who are denied human rights protection:

Vriend dealt with a situation of legislative omission (sexual orientation was not included in the IRPA), while section 67 is an explicit legislative exclusion. Nevertheless, the same reasoning can be applied regarding section 67. Due to section 67, a specific group of Canadians, defined largely by being members of a First Nation, are denied the right, in limited but important circumstances, to have their human rights complaints considered. As the Supreme Court noted, this type of exclusion can send a powerful message to society.

Section 67 has yet to be challenged under the Charter. However, given the history of disadvantage experienced by First Nations people, especially women and their children as a result of section 12(1)(b), and applying the reasoning in Vriend, arguably section 67 would not withstand Charter scrutiny.

The restricted application of the CHRA, as a result of section 67, is also arguably contrary to several provisions of international human rights instruments to which Canada is a party.

The Universal Declaration of Human Rights provides for equality before the law, access to an effective remedy in the case of discrimination, and limits to the situations in which a right guaranteed under the Declaration can be abrogated. Arguably, section 67 runs contrary to Article 7 and Article 8 of the Declaration.

Likewise, Article 26 of the International Covenant on Civil and Political Rights says:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In December 2004, Rodolfo Stavenhagen, the United Nations Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, issued a report on his summer 2004 mission to Canada. The report recommended:

That the Canadian Human Rights Commission be enabled to receive complaints about human rights violations of First Nations, including grievances related to the Indian Act; and that section 67 of the Human Rights Act be repealed, as requested insistently by various organizations, including the Human Rights Commission, to which the Government of Canada agreed in principle in 2003.¹⁹

First Nations-Federal Crown Political Accord on the Recognition and Implementation of First Nation Governments²⁰

On May 31, 2005 the Government of Canada and the Assembly of First Nations signed a Political Accord. The Accord is based on 11 principles "that are to be read together and are mutually supportive". These principles include: upholding the honour of the crown; constitutionalism and the rule of law; and recognition of the inherent right of self-government and aboriginal title. The eighth principle, "Human Rights", states:

The lack of an on-reserve matrimonial real property regime is a long standing human rights issue. As long ago as 1988, the Manitoba Aboriginal Justice Inquiry noted the discriminatory impact that the lack of an equitable division of property could have on Aboriginal women:

There is no equal division of property upon marriage breakdown recognized under the Indian Act. This has to be rectified. [...] we believe that this matter warrants immediate attention. The Act's failure to deal fairly and equitably with Aboriginal women is not only quite probably unconstitutional, but also appears to encourage administrative discrimination in the provision of housing and other services to Aboriginal women by the Department of Indian Affairs and local governments.²¹

More recently, in June 2005, the Standing Committee on Aboriginal Affairs tabled a report entitled, "Walking Arm-in-Arm to Resolve the Issue of On-Reserve Matrimonial Real Property".²² The report acknowledged the need to provide a means for people living in on-reserve communities to seek redress of possibly discriminatory actions carried out by First Nations governments or DIAND as a result of the lack of a matrimonial property regime. During testimony before the Committee, Chief Tina Leveque noted that "Repealing [section 67 of the Canadian Human Rights Act] would expose the Indian Act to those protections and provide mechanisms to enforce equality and fairness..."²³

To complement its recommendations to resolve the matrimonial real property issue the Standing Committee recommended:

That, in broad consultation with First Nations organizations and communities, the government undertake immediate review of section 67 of the Canadian Human Rights Act with a view to amending that legislation:

• to insert an interpretive clause requiring a balance between individual and community interests;

• to protect on-reserve First Nations individuals from discrimination under the Indian Act.

As detailed later in this report, the Standing Committee's recommendations are consistent with the recommendations of the Commission.