3. CLARIFYING WHAT IS BEYOND THE SCOPE OF s.1.2

It is important to clarify a variety of potential claims of discrimination that will likely not be considered within the mandate of the CHRA. It is possible that the long-standing exemption of some forms of complaint in relation to the application of the Indian Act has resulted in an unwillingness by individuals to utilize the CHRA even in relation to matters beyond the s.67 exemption. With the media attention surrounding the passage of Bill C-21, in contrast, individuals may feel that the CHRC and Tribunal can arbitrate a broader range of issues than is in fact the case.

Examples of perceived or actual discrimination as alleged against a First Nation government that would appear to be beyond the CHRA’s mandate generally falls into two categories:

1. Challenges to federal statutes, regulations or First Nation laws passed pursuant to the enabling provisions of the Indian Act, including:

By-Laws

• Band membership rules [s.10];
• Allotment of reserve lands among members [s. 81(1)(i)];
• Rights of residence on reserve [s.81(1)(p.1)];
• Rights of spouses and children to reside with members on reserve [s. 81 (1)(p.2)]; and
• Control of intoxicants [s.85.1].

Statutes and Regulations

• The registration and membership entitlement provisions of the Indian Act [sections 6 11].

The discriminatory implementation of such laws, by-laws, or regulations is not sheltered in any way from application of the CHRA. What is important, however, is that the Tribunal would not be able to remedy a directly discriminatory law by having it overturned. A court action citing Charter breaches would likely be required, as occurred in the case of the Indian Act election rules prohibiting non-resident voting in the Corbiere decision.

The Tribunal, though mandated by statute, is not a court and does not have the capacity to strike down other federal statutory instruments, although it can certainly render them inoperable. This must be made clear in order to avoid the unnecessary expenditure of time and resources by the Commission, Tribunal, complainants, and respondents. Perhaps most importantly, such clarity will avoid a spate of rejected complaints early on in the process that will dissuade individuals from pursuing justice through the CHRA in the case of legitimate complaints that do fall within the authority of the Commission and Tribunal.

1. The second major group of challenges are those dealing with federally determined programs and services administered by First Nations governments, but whose discriminatory features are determined by federal policy, as opposed to the First Nation government itself. This class of cases might include such issues as:

• Education placement reimbursement rates on and off-reserve;
• Post-secondary education entitlements (limited to registered Indians and Inuit);
• Non-insured health benefits program; and
• Social income support rates.

This class of potential discrimination challenges would certainly fall within the CHRA’s jurisdiction, but would not engage s.1.2 of the CHRA. For this class, the issue is not whether the CHRA has jurisdiction, but rather the identity of the appropriate respondent.

SUMMARY

Overall, the Human Rights Framework evaluated in Part I appears most concordant with the “black-letter” law interpretation of Bill C-21 and its provision for the interpretation of the CHRA giving “due regard” to First Nations legal traditions and customary laws.

However, as the review of the historical and social science literature shows, it may prove difficult for s.1.2 to be implemented in the absence of tests common to the Aboriginal Rights Framework, particularly where the veracity of an alleged legal tradition or customary law is contested.

An enduring theme is the advisability of seeking intra-communal reconciliation as a part of protecting human rights in a First Nations context. This might best be sought through the engagement of traditional knowledge keepers, and in the development of a consultative dialogue within the concerned communities to discover, or re-discover the balances between individual and collective rights and interests that are inherent in First Nations legal traditions and customary laws.

The Canadian Human Rights Act Review Panel’s exhortation to explore First Nation codes or Charters of human rights should definitely be advanced in order to lay more of the groundwork to proceed in implementing Bill C-21.

APPENDIX 1 : BILL C-21, CHAPTRE 30

APPENDIX 2: STATUTORY REVIEW: DISSASSEMBLING SECTION 1.2

The legislative record relating to the wording of s.1.2 is sparse. Some of the language of the clause is clearly sourced in previous discussion and analysis. For example, the reference to balancing of individual and collective interests seems to stem largely from the recommendation of the CHRA Review Panel, which suggested an interpretive clause “to balance the interests of Aboriginal individuals seeking equality without discrimination with important Aboriginal community interests.” The Panel proposed a clause that seemed to be intended to supplement the existing CHRA’s provisions for bona fide justification, to defeat claims of persons unconnected to First Nations communities and to support preferential services and employment, but without justifying sexual discrimination.

There is also some limited guidance in legislation and case law for other terms and phrases in s.1.2. However, overall it can be said that the phrasing of the clause—like its intent—is unique. Some terms   like “First Nation”   have no clear or established universal meaning in law. Other terms appear in various legislative and case law contexts, but none of them occurs in a setting familiar to the application of the Canadian Human Rights Act.

In this appendix we seek to disassemble or “un-pack” s.1.2 in order to assess the meaning of the terms used and the potential implications for the clause’s application in relation to potential complaints under the CHRA. This process is essential to understanding the ordinary meaning of the Act, which is a major consideration when interpreting any legislation.

A. ANALYSING KEY TERMS AND PHRASES IN SECTION 1.2

1. “In relation to a complaint made under the Canadian Human Rights Act”

Section 1.2 does not stand on its own. It is only activated when a complaint is made under the CHRA. This context supports the interpretation of s.1.2 within the Charter and the Human Rights frameworks discussed in Part 1 of this report.

2.  “against a First Nation government, including a band council, tribal council or governing authority operating or administering programs and services under the Indian Act”

2.1 “First Nation... including”

This clause is of critical importance in determining the scope of s.1.2. Section 1.2 deals with complaints against “a First Nation government.” The boundaries of the term “First Nation government” are not defined in C-21. However, the term is described within this provision as including “a band council, tribal council or governing authority operating or administering programs and services under the Indian Act.” Section 1.2 speaks of “including” these three governing bodies but is not necessarily limited to these forms of First Nation government, as the word “including” is regularly interpreted as implying the possibility for other options not specified as coming within the intent of the clause.¹⁷⁴ Other options are limited by the items explicitly enumerated such that they would have to bear a clear element of similarity to the three types of “First Nation government” listed. Therefore, the full extent of the term “First Nation government” is not clear.

The use of the term “First Nation” rather than “Aboriginal,” or “Indian,” which are constitutionally recognized and extensively litigated terms, might suggest that First Nation is meant to be either more restrictive or equal to “Aboriginal.” In the broader legislative landscape, “First Nation” has carried several differing meanings. For example, “First Nation” is used to describe particular communities that have entered into a self-governance agreement. Other legislation identifies First Nation with reference to specific Indian communities.¹⁷⁵ In other cases, First Nation has been equated with specific bands,¹⁷⁶ or used synonymously with Indian Act bands.¹⁷⁷ Elsewhere, First Nation has been used to identify particular Indian communities along with other Inuit and Métis communities.¹⁷⁸

An assumption that concordance with relevant (Indian Act related) legislation is important and suggests that “First Nation” refers to Band and Band-based entities. This assumption is, however, of limited value since bands and tribal councils are both specifically referenced in s.1.2 (and therefore do not define the outer boundaries of the term “First Nation”). Furthermore, “tribal councils” are usually bodies consisting of a number of Indian Act bands who have grouped together to better provide common technical and other services to all of their communities through this regional body and for political representation. Tribal councils generally have no direct law-making or governance function and have no status under the Indian Act. Moreover, there are some groups or political associations of Aboriginal (usually First Nation or Indian based) groupings that refer to themselves as Tribal Councils, often based on pre-Indian Act political formations.

Accordingly, and given the variety of legislative usages of “First Nations” to date, it would not be appropriate to import definitions of this term from other statutes or contexts. On the other hand, “First Nation” could be equivalent to “Aboriginal” but with a different focus. Unlike the Constitutional “aboriginal peoples,” as defined in subsection 35(2) of the Constitution Act, 1982, which is meant to protect the cultural rights of broad political or racial groups (“Indian, Inuit and Métis peoples”), “First Nation” might have been chosen to emphasize the importance of the political identity of particular communities. This interpretation could draw support from the types of political bodies that are clearly included in s.1.2. The reference to “a band council, tribal council or governing authority operating or administering programs and services under the Indian Act” may be indicative of a focus on particular governing authorities rather than broader ethnic or cultural communities. Legislation employing a similar and contextually relevant use of the term can be found in the British Columbia Treaty Commission Act, which states:

“first nation” means an aboriginal governing body, however organized and established by aboriginal people within their traditional territory in British Columbia, that has been mandated by its constituents to enter into treaty negotiations on their behalf with Her Majesty in right of Canada and Her Majesty in right of British Columbia.¹⁷⁹

Furthermore, the context in which s.1.2 was enacted relates to the repeal of the s.67 Indian Act exemption. Inuit, Métis, and First Nations unrecognized under the Indian Act were not previously automatically excluded by the former s.67 from the CHRA’s scope. As a result, it is reasonable to infer that the language used here is intended solely to encompass governmental entities connected to existing Indian Act “Bands” and those First Nations formerly regulated to some degree by that Act.

2.2 “programs and services”

In general, a program can be defined as “a plan or system under which action may be taken toward a goal.”¹⁸⁰ Depending on the reach of the “programs and services” clause, a proper application of that clause can only be made on a case-by-case basis by examining the locus of the constituting authority behind the program or service in question.

The limited descriptive properties of s.1.2 leave open the possibilities that “operating or administering programs and services under the Indian Act” may only qualify “governing authorities” or, it may apply to band and tribal councils or, it may apply to all “First Nation governments.”

3. “this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws”

3.1  “due regard”

Section 1.2 operates as an interpretive clause. When a complaint is made under the CHRA against a First Nation “this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws.” This interpretive function requires guidance on how to identify what a First Nation’s “legal tradition” or “customary law” is and what is meant by “due regard.”

The plain language of s.1.2 suggests that once a complaint is made under a ground of discrimination found in the CHRA, “due regard” must be given to both legal traditions and customary laws of the First Nation. “Due regard” is context specific and does not impose a rigid legal test of consideration. Owing to the larger purpose of the Act, it is likely that “due regard” would entail ensuring that First Nations legal traditions and customary laws must be given considerable weight in assessing a complaint, rather than just constituting a minor factor in the analysis.

In a legal context, “due regard” is not a term of concrete definition. It reflects a need for discretion. If “due regard” is owed to particular circumstances but not given, then “the decision is patently unreasonable, and can not be allowed to stand.”¹⁸¹ From this we can assume that having “due regard” imparts a notion of reasonableness. Knowing what level of regard is “due” depends on the circumstances of the case and the purpose of the guiding legislation.

3.2 “First Nations”

Here the term is used in the plural, rather than in the singular as it is framed earlier concerning “First Nation government.” Some meaning could be attached to this difference.

Further, the phrase in the plural is not circumscribed by the added word “government” such that it should not have the same meaning as “First Nation government” that is then described in part through the three forms of governance that are listed.

It is likely that its use in the plural form suggests that the traditions and laws being referenced are not restricted to the specific community that may be identified in a complaint. Instead, it could be argued that the ordinary meaning of the language used relates to the broader original nations such as the Mi’kmaq, Kwakiulth, Nuu-chah-nulth, Ojibway, and so on. The impact of such an interpretation would mean that evidence of these traditions and laws does not solely have to be proved by witnesses in relation to the respondent community.

3.3 “legal traditions and customary laws”

The phrase “legal traditions and customary laws” with a conjunction between the two concepts could be directed at the same or very similar types of community legal practices. The two terms might have been used so as not to exclude what might be an artificial distinction. For example, South African legislation defines customary law in very general terms that also captures the “traditional” aspect of such laws:

customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.¹⁸²

Similarly, in Australia the Native Title Act refers to "traditional laws acknowledged, and the traditional customs observed.”¹⁸³ The Australian jurisprudence has determined that this phrasing refers to a “body of norms or normative system.”¹⁸⁴ The use of “legal traditions and customary laws” in s.1.2 could conceivably be used to capture a broad normative system of rules.

On the other hand, the two terms could be set out precisely to indicate that distinct interests need to be given “due regard.” This interpretation suggests that a “legal tradition” could be distinguished from a “customary law” in the sense that legal traditions are linked to more fundamental historic traditions of particular cultural communities, and might include methods of dispute resolution, whereas customary laws could be understood to be more fluid to allow for more recent development and evolution.¹⁸⁵

If the terms are treated as distinct, then “legal traditions” can be identified in a similar manner as “traditions” have been identified in s.35 jurisprudence. For example, the Supreme Court of Canada had the following to say about “traditional laws”:

‘Traditional laws’ and ‘traditional customs’ are those things passed down, and arising, from the pre-existing culture and customs of aboriginal peoples.¹⁸⁶

Jurisprudence of the Federal Court has imparted several characteristics to customary law, which might indicate that it is distinct from traditionally based Aboriginal laws.

The constituent elements of custom may therefore be summarized as follows:

(1) ‘Practices’ for the choices of a council;
(2) Practices must be ‘generally acceptable to members of the band’; and
(3) Practices upon which there is a ‘broad consensus’¹⁸⁷

In the context of customary band council selection sanctioned by the Indian Act and of far more recent vintage than pre-contact traditional leadership selection, the Federal Court provided guidance on how custom comes into being:

For a rule to become custom, the practice pertaining to a particular issue or situation contemplated by that rule must be firmly established, generalized and followed consistently and conscientiously by a majority of the community, thus evidencing a ‘broad consensus’ as to its applicability.¹⁸⁸

This use of custom and customary law also suggests more of an orientation toward identifying specific rules or individual laws that might apply in a given case from a larger body of law in force in the community or First Nation.

The consequences of interpreting customary law according to “a broad community consensus” should be fully evaluated to determine if such an interpretation of customary law was likely intended. For example, it may have been intended that s.1.2 would capture laws, which would otherwise be outside of the purview of the CHRA (because they are not “programs and services”), because these customary laws gave root to a discriminatory ground.

The interplay between phrases is illustrated by the impact of the earlier discussion on “First Nation.” One consequence of accepting “First Nation” as meaning the particular political identity of Aboriginal governing bodies is that it supports an understanding of “customary laws” focused on broad community consensus and adaptation over time, rather than a pre-contact version of that First Nation community and its laws in that much earlier era.

4. “particularly the balancing of individual rights and interests against collective rights and interests”

The due regard that is to be given to “First Nations legal traditions and customary laws” must somehow be considered in light of the required exercise at balancing the individual rights and interests with collective rights and interests. The word “particularly” seems to indicate that the balancing of these rights and interests is a significant part of the “due regard” process that is to be given to these “legal traditions and customary laws.” As such, s.1.2 would provide an avenue for examining if the legal traditions and customary laws to which a First Nation adheres already accommodate the complainant’s individual interest within collective interests. This may mean that it is relevant to inquire whether the legal tradition or customary law in question already achieves the requisite balance between the individual right and the collective right as well as their respective interests.

Another interpretation of this clause would equate “individual rights and interests” with those protected grounds of discrimination identified in the CHRA and “collective rights and interests” with the “legal traditions and customary laws” of the First Nation. Under this approach, a balance would be sought between the individual rights of the complainant and the rights and interests that the First Nation government might have in promoting the collective interests of the community. This interpretation is somewhat problematic because such a characterization may fail to capture the complexity of the “collective right.” A legal tradition or customary law may already incorporate a balance between the interests of individual members of a First Nation and the collective interests of the First Nation as a whole in which each member is included. A further variation could see the “collective rights” as encompassing not only the “legal traditions and customary laws,” but also the rights contained within s.35 that are pertinent to this First Nation.

The phrasing of the clause (s.1.2) is twofold, i.e., there are both “rights and interests” of individuals and the “rights and interests” of a collectivity that are held as important. This suggests that the intent of s.1.2 was that the balancing exercise would not be limited solely to legal rights. Parliament has instead directed that a balance must also encompass the respective interests of the parties. This may suggest that broader issues like the financial capacities of the parties, their respective goals and cultural values, the desire to restore harmony, the impact upon others, the political aspirations of the community, concerns for the environment, and other factors should also be considered where relevant.

Balancing normally involves two sets of competing concerns. These concerns can be represented by a collective, such as the state, and the individual; between individuals; or between collectives such as the state and a First Nation. The balancing process also generally involves two distinct stages. First, the rights or interests pertinent to the dispute need to be identified and interpreted. Second, after these elements have been correctly deduced, a balance can be sought between the identified interests.¹⁸⁹

4.1 “Balancing”

Balancing does not have to involve an “either/or” decision. On the other hand, the use of the word “against” is suggestive of a competitive balancing process where the individual right (or interest) is pitted against the collective right (or interest). Regardless of how balancing is interpreted in s.1.2, an attempt at balancing interests can set out to ensure that “the satisfaction of one interest does not create disproportionate hardship affecting the other interest.”¹⁹⁰ Instead, as explained in the following quotation, “weighing the balance” can be a method of reconciling competing interests:

In such cases, arbitrators engage in a balancing of the two competing interests. To the extent that both interests possess legitimacy, an effort is made at a reconciliation. If a reconciliation is impossible, and one must give way to the other, sometimes the employee's interest prevails and sometimes not. It all depends on the nature of the competing interests, the circumstances in which the two interests have been engaged, and an admittedly subjective attempt to weigh the balance.¹⁹¹

Just as in the case of one provision which trumps another, a “weighing” must be based on the articulation of clear principles or values.

5. “to the extent that they are consistent with the principle of gender equality”

This clause appears to operate as a limitation upon how “due regard” is given to legal traditions and customs. Under this view, “due regard” is only owed to the extent that legal traditions and customary laws are consistent with the principle of gender equality. However, the frame of reference is not entirely clear. For example, the principle of gender equality could be determined according to the complaint raised under the CHRA, or gender equality could be taken into account based on the notions of equality relied upon by the First Nation. This latter understanding would bring Aboriginal and treaty rights law into consideration.

The presence of the reference to gender equality may be intended to signify that gender equality is of primary concern in any balancing exercise or when giving due regard. One possible interpretation could mean that “First Nations legal traditions and customary laws” are only to be given due regard “to the extent that they are consistent with the principle of gender equality.” Another interpretation would view the principle of gender equality as a guiding principle for how the balancing between individual and collective rights and interests should be conducted.

This brings into consideration the constitutional frameworks discussed above. To what extent are gender equality provisions in the Charter (s.28) and in s.35(4) of the Constitution Act, 1982 likely to assist in framing the relationship between collective rights and individual rights, particularly in the case of gender or multiple-ground based complaints? One must note that the reference in Bill C-21 is to the “principle of gender equality” whereas the Constitutional clauses herein are both expressed as absolute guarantees of access to individual (s.28) or to collective (s.35(4)) rights. A search for consistency would reveal that the Constitutional provisions above are likely to be consistent with the “principle” stated in 1.2.

 Footnotes

1. See, Ruth Sullivan, Statutory Interpretation 2nd ed. (Toronto: Irwin Law, 2007) at p. 70: “the verb ‘includes’ is used to extend the defined term to the things singled out for special mention ... that they are subject to the same rules as the things within the ordinary scope of the terms.”
2. Canada National Parks Act, S.C. 2000, c. 32, s.38.
3. First Nations Land Management Act, S.C. 1999, c. 24, s.2; Manitoba Claim Settlements Implementation Act, S.C. 2000, c. 33, s.2.
4. First Nations Oil and Gas Moneys Management Act, S.C. 2005, c. 48, s.2; Specific Claims Tribunal Act, S.C. 2008, c. 22, s.2.
5. Mackenzie Valley Resource Management Act, S.C. 1998, c. 25, s.2.
6. British Columbia Treaty Commission Act, S.C. 1995, c. 45, s.2.
7. Irvine (Re), [2002] B.C.E.S.T.D. No. 425 (B.C. Employment Standards Trib.) (Q.L.).
8. Biro v. Canada (Minister of Citizenship and Immigration), 2006 FC 712. (CanLII) at para. 16.
9. Recognition of Customary Marriages Act, Act 120 of 1998, s.1 as cited in Gumede v. President of the Republic of South Africa and Others, [2008] Z.A.C.C. 23 at para. 22.
10. Native Title Act, No. 110, 1993, s.223, (1)(a) (Australia).
11. Members of the Yorta Yorta Aboriginal Community v. Victoria, [2002] H.C.A. 58 at para. 39.
12. For a review of the 19th and 20th century litigation in which Canadian courts regularly gave legal effect to First Nation and Inuit customary laws see, Bradford W. Morse (1980), “Indian and Inuit Family Law and the Canadian Legal System,” American Indian Law Review 8: 199–257.
13. R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 40.
14. Francis v. Mohawk Council of Kanesatake (T.D.), [2003] 4 F.C. 1133 at para. 23.
15. Ibid, at para. 36.
16. See, B.C. Teachers’ Federation v. School District No. 39 (Vancouver) 2003 B.C.C.A. 100 (CanLII) at para. 163: “In any event, the balancing of interests which permeates his reasons is more properly triggered at the second stage of the s.7 analysis, once it has been determined that a s.7 interest has been engaged. If the focus at the first stage becomes the balancing of interests, there is a potential for the analysis to become results-oriented based on the decision-maker’s view of where the balance lies. In that event, the first stage of the analysis is in danger of being given short shrift.”
17. VIA Rail Canada Inc. v. National Transportation Agency (C.A.) [2000] F.C.J. No. 1685 (Fed. Ct. of Canada Ct of App.) at para. 39.
18. Fraser Valley Milk Producers Co-operative Assn. (Dairyland Foods) and I.A.M., District Lodge 250 (1989), 9 L.A.C. (4th) 376 at para. 208.