Principle 1: Freedom from Discrimination
All human beings have the right to be free from discrimination. When discrimination occurs, they are entitled to redress. That is a cornerstone of any effective system of human rights redress.
The recently adopted United Nations Declaration on the Rights of Indigenous Peoples makes this clear in its opening articles:
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 and international human rights law. (Article 1)
Article 2 goes on to provide that:
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 testimony before the Standing Committee on Aboriginal Affairs, the AFN emphasized that the long history of discrimination against First Nations people has led to a strong commitment to the protection of both individual and collective rights:
From the residential school experiment to the White Paper, from the takeover of our land to the dishonour of treaty rights, from discrimination on the provision of basic services to discrimination in accessing housing, we have learned that our very existence as people depends on our commitment to the preservation and promotion of our rights. Consequently, human rights, both individual and collective human rights, are the very cornerstone of our beliefs and values.10
During debate on Bill C-44, arguments were raised that freedom from discrimination—being largely an individual right—is contrary to Aboriginal collective rights and interests. On the other side is the argument that, in all cases, the right of the individual must be pre-eminent.
In fact, human rights have a dual nature. Both collective and individual human rights must be protected; both types of rights are important to human freedom and dignity. They are not opposites, nor is there an unresolvable conflict between them. The challenge is to find an appropriate way to ensure respect for both types of rights without diminishing either.
The right to be free from discrimination is a fundamental human right. Access to full human rights protection is a right that has been denied to First Nations people for too many years. As the Commission has noted previously, section 67 has yet to be challenged under the Canadian Charter of Rights and Freedoms (the Charter). However, given the history of disadvantage experienced by First Nations people, especially women and their children, arguably section 67 would not withstand Charter scrutiny. First Nations people, both those living on and off reserve, are the only Canadians denied full access to a means of addressing alleged discrimination.
Many people involved in the discussion of section 67 have called for a delay in the repeal to allow for consultations between the government and First Nations. After careful analysis, the Commission’s conclusion is that further delay would not advance the interests of human rights. As the history of section 67 shows, there have been many commitments, pledges and promises to repeal section 67. Indeed, even at the beginning, in 1978, section 67 was seen as a temporary measure. No doubt the pledges to repeal section 67 were made in good faith, but events intervened and section 67 remains.
In urging immediate repeal, the Commission does not wish to diminish, in any respect, the legitimate concerns that have been raised and that must be discussed. These issues should be discussed in the ongoing process of implementing the repeal of section 67.
Recommendation: The Commission recommends the immediate repeal of section 67. |
10. Standing Committee on Aboriginal Affairs and Northern Development, March 29, 2007. Emphasis added.