Principle 5: An adequate transition period
An adequate transition period is imperative to ensure that both First Nations and the Commission have adequate time to prepare the groundwork for successful implementation of human rights redress in First Nations communities. As a result of section 67, the links between the Commission and First Nations citizens and their communities are not as strong as they should be. There is much to be learned from each other and collaborative work to be undertaken. As detailed in the next section, a transition period will allow for the implementation of culturally appropriate, community-level initiatives to prevent discrimination and, where it occurs, to ensure that complaints are resolved quickly and with a minimum of conflict.
Over the last two years, there has been much discussion about the time needed for transition. Some have argued for a minimum period of several years. To some extent, the calls for different lengths of transition period may be the result of differing perceptions of the potential impacts of repeal.
Given goodwill and adequate resources to enable meaningful engagement, the Commission is confident that implementation of repeal, and development of redress processes at the CHRC and within communities, can proceed relatively rapidly.
Recommendation:The repeal legislation should include a transition period of 18 to 30 months before complaints can be filed against a First Nation or a related Aboriginal authority. |
Principle 6: Discrimination Prevention
Human rights legislation, by its nature, aims to promote and protect human rights. It is intended to be remedial, not punitive. That is why effective human rights systems include programs and measures to educate people about their rights and to prevent discrimination before it occurs. Recourse procedures to address human rights complaints, whether those mandated under the CHRA or mechanisms created by First Nations, will always be needed. However, they should be used only when other means of preventing and resolving human rights issues have been unsuccessful.
In recent years, the Commission has put added emphasis on human rights prevention and education. The Commission works actively with large employers to identify policies, processes, operational cultures and physical barriers that might result in unfair discrimination against employees. Through an open process of dialogue between the Commission and employers, and between employers and employees, the program aims to enhance equality and non-discrimination in the workplace over the long term.
Waiting for an influx of complaints is not the best way to resolve human rights issues. No matter how efficient the recourse processes, and how culturally sensitive they are to the unique situation of First Nations, processing complaints will still be relatively costly and time consuming. Moreover, formal complaints seldom encourage the kind of dialogue, consultation and joint problem-solving that is so essential to promoting an ethos of respect for equality and the human rights of all.
It is for these reasons that the Commission encourages all parties—First Nations, the government and the Commission—to work cooperatively to address potential issues of discrimination and resolve them before they develop into formal complaints. Within that ongoing process, the transition period will be an important phase for reviewing compliance and beginning to remove barriers to the full realization of the rights guaranteed by the CHRA. In this regard, the Commission welcomes suggestions for developing a joint work plan—with the input of First Nations representatives, government and the Commission—to support smooth and effective implementation of repeal.
Discrimination prevention activities to be carried out might include the following:
- developing the scope and nature of an interpretive provision, if one is not included in the legislation;
- providing human rights education and awareness programs to inform citizens and organizations about their rights and obligations under the CHRA;
- establishing or recognizing alternative means to resolve human rights issues before, or instead of, referral to the Commission; and
- drafting human resources and service delivery policies that incorporate principles of non-discrimination and the duty to accommodate.
The government should also review existing policies and legislation where potential conflicts with human rights instruments have already been identified. Of particular note is possible ongoing sex- and family-based discrimination arising from the application of Bill C-31.17
17. Bill C-31,
An Act to Amend the Indian Act, was passed in 1985. It repealed those sections of the
Indian Act that discriminated against women with regard to registration as a status Indian. The Bill also provided for the reinstatement of women and their children who had lost or were denied status due to the repealed discriminatory provisions. Bill C-31 had a major impact on many First Nations communities, as a result of the registration and return of thousands of reinstated women and their children to their communities. Of most concern is the fact 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. These effects continue to be felt.