Human Rights and Self-Governing First Nation

As a result of land claims and self-government agreements and the laws made to implement those agreements, some 20 First Nations operate outside the Indian Act. Other First Nations are in the process of negotiating such agreements. Self-government agreements generally replace the Indian Act. Consequently, First Nations governed pursuant to such agreements are not covered by the section 67 exemption.³⁸

Most self-government regimes make no specific reference to human rights. However, the CHRA applies as a result of provisions in self-government agreements that certain federal laws, such as federal human rights legislation, will apply to First Nations government and take precedence over laws adopted by First Nations governments.

Although self-governing First Nations and their citizens do not suffer the human rights disenfranchisement resulting from section 67, the effective promotion and protection of human rights is more complicated than simply removing the impediment of section 67. The protection and promotion of human rights and nondiscrimination are fundamental to good governance.

In this regard, there have been some encouraging developments. The Westbank First Nation Self-Government Agreement³⁹ contains a provision confirming the application of the CHRA to Westbank First Nation Lands and Members, and also provides an interpretative provision. Clause 291 of the Westbank First Nation Self-Government Agreement states:

Nothing in this Agreement limits the operation of the Canadian Human Rights Act in respect of the Westbank First Nation and Westbank Lands and Members. The interpretation and application of the Canadian Human Rights Act in respect of the Westbank First Nation and Westbank Lands and Members shall take into account:

a. the nature and purpose of this Agreement; and

b. the entitlement of Westbank First Nation to provide programs and services either exclusively or on a preferential basis to Members, where justifiable; and

c. the entitlement of Westbank First Nation to give preference to its Members in hiring employees and contractors for Westbank First Nation operations, where justifiable.

Another encouraging development in recent self-government agreements is the inclusion of a clause by which the First Nation commits itself to assisting Canada to meet its international legal obligations. These obviously include obligations in relation to fundamental human rights protected by a range of conventions and treaties. In the Westbank First Nation Self-Government Agreement, for example, clause 36 provides:

As a general principle, Westbank First Nation shall take all necessary measures to ensure compliance of its laws and actions with Canada's international legal obligations.

The clause goes on to commit the First Nation to remedy any Westbank law or action found to be inconsistent with Canada's international legal obligations by an international treaty body or other competent tribunal. A similar provision for ensuring compliance with international legal obligations can be found in the Tlicho Self-Government Agreement.

The Commission recommends that the Government of Canada and First Nations, when negotiating self-government or claims agreements, consider the inclusion in those agreements of special provisions dealing with human rights protection and promotion. First Nations already operating under their own enabling legislation should consider recommending legislative amendments or implementing administrative measures and policies to protect the human rights of their citizens.

Human Rights Compliance

Repeal of section 67 will, for the first time, allow First Nations persons to file human rights complaints with regard to provisions of the Indian Act and actions carried out pursuant to the Indian Act by the Government of Canada (as well as complaints against First Nation governments). Various provisions of the Indian Act invoke human rights concerns and could be the subject of possible complaints to the Commission. This is why section 67 was enacted in the first place and also why it must be repealed.

Although section 12(1)(b) was repealed in 1985, concern remains that the Bill C-31 amendments themselves may not pass human rights muster. Of most concern is that women who lost status before 1985 do not have the same ability to pass status on to their children and grandchildren as do their brothers and male cousins who also married non-status individuals. The lack of any provisions dealing with matrimonial property, a situation severely prejudicial to First Nation women, is, as already noted, another pressing issue. A variety of other issues would also raise human rights concerns.

It is not within the scope of this report to examine these issues in detail. Nor is it clear that these matters could necessarily form the basis of a complaint under the Act. As with all other complaints considered by the Commission, each complaint would have to be considered on its own merits and in accordance with the law and jurisprudence. If section 67 is repealed, the Commission will pursue such complaints to the full extent of the law.

However, the Commission would prefer that the Government take a proactive approach to preventing potential discrimination and not wait for complaints to be filed and potentially lengthy proceedings to take place. The Commission, therefore, urges the Government, in consultation with First Nations, the Commission and other relevant bodies, to review provisions of the Indian Act and relevant policies and programs to ensure that they do not conflict with the Canadian Human Rights Act and other relevant provisions of domestic and international human rights law. Such a review should focus in particular on the impact of Bill C-31 and how membership and entitlement to status could be managed equitably for all parties.