APPENDIX 3: QUICK REFERENCE: KEY QUESTIONS AND CONCLUSIONS
| KEY QUESTION | STUDY CONCLUSIONS |
| What does “First Nation government” mean? | - Clearly includes Indian Act Bands and other governing bodies operating under direct or delegated authority of the Indian Act.
- Most likely includes other Indian (First Nation) entities operating entirely or mostly outside of the Indian Act (e.g., Nisga’a Lisims Government, Sechelt First Nation, Cree-Naskapi Bands, etc.).
- May include traditional First Nation bodies exercising governmental authorities, independently of the Indian Act, but this will likely require evidence of a right to self-government established under Aboriginal and treaty rights law.
- Would not seem to include Inuit or Métis organizations or governments.
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| What is the scope of activities that might trigger s.1.2? | - Any program or service activity of a First Nation government and its employment relationships, regardless of whether or not it was formerly sheltered from CHRA examination by the s.67 exemption.
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| When does s.1.2 come into force? | - Only Bands or delegated authorities under the Indian Act would be included in the 3-year suspension of s.1 and s.1.2’s application.
- Only decisions or actions taken by Indian Act Bands or authorities as authorized by specific provisions of the Indian Act would be included in the 3-year transition period.
- Claimants and First Nation government respondents would, involving decisions beyond the narrow frame of the former s.67 exemption, be able to call upon the “due regard” requirement effective immediately (i.e., as of June 18, 2008).
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| What are “First Nations legal traditions”? | - A First Nations legal tradition—a term that holds a very limited understanding within either the law or the social sciences—is a practice potentially grounded in pre-contact and almost certainly pre-Indian Act practices, is still endorsed as an obligatory practice within the community, and includes a system of dispute resolution.
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| What are “First Nations customary laws”? | - The legal and social science literature appears at one in regarding First Nation customary laws as having to meet at least two if not all of the following three-part test:
- That the contemporary community abides by or largely follows the custom concerned, without requiring unanimity;
- That the community censors or otherwise penalizes individuals who depart from the practice involved; and
- No strict linkage with historic/pre-contact activities is required, but there must be some degree of purposive connection to a long-standing or contemporary but socially accepted problem or challenge.
- There is a general discomfort in the social sciences with the term “law” when applied to customary practices, if only because the term “law” often, if not always, imports ideas about a “state-like” system of compulsion usually absent in non-state First Nation communities.
- Importantly, there is a general consensus that the determination of what is customary and law-like is necessarily an internal or culturally determined matter, and cannot be determined by objective (external) tests or measures other than on the basis of what members of the community concerned affirm as their customs, and what is law-like for their purposes.
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| What does “balancing” involve—what are the key tests or measures of an appropriate balance from the Human Rights and Charter law perspectives? | - Human Rights and Charter law hold individual rights as more in need of protection than collective rights or interests—normally cast in the mould of state or legislative power. There are two clear tests for balance:
- The onus is on those advancing reasonable and demonstrably justifiable limits on rights of equality;
- A proportionality of limits on individual rights is required in relation to a valid legislative (or traditional or customary legal) objective (i.e., there is minimal impairment).
- In a narrow interpretation of Bill C-21, however, the only consideration would be if a First Nations legal tradition or customary law provides its own balancing of individual and collective rights and interests. Absent such a balancing, there would be no need to give “due regard.”
- However, determining what if any balancing does exist within First Nations legal traditions or customary laws requires an “internal” perspective that will not readily be available to the Commission or the Tribunal, or the courts, without community-based sources of reference and authority.
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| How does “balancing” occur within the Aboriginal Rights Perspective? | - From an Aboriginal and Treaty rights perspective, the onus on the collective or First Nations right or interest would be amplified. It would include a requirement to establish the existence of such a right as connected to pre-contact practices and traditions, showing continuity, and continuing relevance.
- Where an Aboriginal and Treaty rights basis for a collective right or interest is established, the individual rights’ interest would be placed in the unusual position of having to prove that minimal impairment of the collective interest or right has occurred in asserting the legislative entitlement to equality.
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APPAENDIX 4: CASE STUDIES
These case studies set out in schematic form a limited but characteristic range of cases of alleged discrimination under the CHRA. Three broad types of cases involving a number of scenarios are explored in order to determine the applicability of the conceptual frameworks (see part I and the conclusion of this report) developed from our study in addressing the key issues of implementing s.1.2:
The Balancing of Collective and Individual Rights within a Legal Tradition or Customary Law
- Cases where a legal tradition or customary law is asserted as representing collective rights and interests of the community, as against individual rights and interests as expressed in the non-discrimination provisions of the CHRA. In this case, the determination of a solution may turn on procedures or rules of balancing rooted in the First Nations laws or customs.
Contested Legal Traditions/Customary Laws: Determining Authenticity
- Cases where a respondent alleges a collective right as a trigger for a consideration of balancing, but this allegation is contested by the applicant as being rooted in non-traditional or non-First Nations laws (e.g., the Indian Act, etc.).
Balancing of Collective and Individual Rights in the Absence of Asserted Legal Traditions or Customary Laws
- These cases involve the assertion of a general collective interest or right of the community to discriminate as a supplemental justification to the remedies available in sections 15 or 16 of the Act.
Each type of case, and related scenarios, are then examined in connection with how their fact situations align with the conceptual frameworks developed for considering how a balancing might be achieved.
These case studies apply the conceptual model or framework for isolating and dealing with the key questions posed by a variety of potential scenarios for the application of s.1.2.
The scenarios are not exhaustive of potential cases. The cases we do address are all meant to fall within the authority of the Commission and Tribunal in relation to the balancing requirements of s.1.2 of the CHRA.
The Balancing of Collective and Individual Rights within a Legal Tradition or Customary Law
Scenario 1 A woman, reinstated under C-31, has returned to the community to live with her parents after her marriage ended and applies to her First Nation Band Council for housing. There are delays in allocating housing for her and the woman believes that other people have been given priority. She contacts the Band officials, who explain that there is only sufficient funding to build a certain number of houses each year, and her application is not a priority. The Band states that it has a policy, based on a custom or tradition, of allocating housing first to Band members who have resided the longest on the reserve. The complainant argues that she has been discriminated against because of her former loss of status and residence. |
Scenario 2 A Cree member of an Ojibwa First Nation who has married into the community applies for and receives a job as Education Director. The offer of employment is then rescinded, and a less qualified Ojibway woman is hired. While the job posting was silent on the matter, the complainant was told that her inability to speak Saulteaux had been overlooked and was a requirement of the job. She lodges a complaint under the CHRA arguing discrimination based on national and ethnic origin. In response, the Band argues both that the CHRC’s Aboriginal Employment Preferences policy (s.16) justifies a preference for an Ojibway Band member, and that it is traditional for teachers in the community to be fluent in Saulteaux. |
Discussion
These two scenarios would not appear to involve any issue about whether the respondent Band Councils were able to allege a justification in seeking to have its customary practice given due regard under s.1.2. Housing allocations, due to their connection to possession of reserve lands, fall clearly within what s.67 had formerly exempted from the CHRA. In connection with employment, the case is less clear, and the Commission would have to decide whether the s.1.2 defence is available only in relation to formerly excluded activities, or to all complaints against First Nation governments. An argument as to the application of the 3-year delay to this latter scenario can be anticipated.
As Band members, the complainants might dispute the fairness of the Band custom, or simply feel it is unfair. Assuming the existence of the practice or custom is not disputed, these cases would proceed to an investigation about the consistency of the policy application and its connection to a clearly established custom of allocating scarce housing or employment opportunities on the basis claimed.
How would the Tribunal in this instance provide “due regard” to the customary allocation practice, and in particular determine whether and to what degree the complainant’s interests and rights were accommodated within that practice? Beyond a normal “undue hardship” case (involving potential hardship on other applicants), what approach would appear most appropriate in this case?
Clearly, these scenarios are likely to be common, and the acute shortages of both housing and employment on many reserves will undoubtedly lead to many cases where discrimination on the grounds involved is alleged. This may also derive from misunderstandings about how policies are related to community expressions of traditional law or custom in the allocation of scarce resources like housing or when the cultural education of children is concerned. Mediation could be expected to arrive at an understanding and eliminate the perception of discrimination, result in reconciliation, or document a more serious situation where the policy was adopted in response to the individual and not in connection with a more long-standing custom of determining need or ensuring the continuity of the First Nation culture.
Should these types of cases proceed to Tribunal, it would seem that the due regard and balancing principles set out in the Supplemental Approach (see the Conclusion of this report) would be most appropriate. In essence, the core justification for distinguishing between members seeking housing or for employment preferences for Saulteaux speakers would seem to fall generally within the bounds of the CHRA’s s.15 “bona fide” justification, bolstered by the added considerations derived from the unique circumstances faced in the two communities.
The application of a “pre-existing” test in relation to an alleged legal tradition (as opposed to a more recent custom) needs to be considered in connection with the housing case. The provision of housing allocations is a relatively new activity (in the past two-generations), though it may be related to an older tradition/custom of allocating community lands. These two goals or activities may need to be kept distinct to gain a fuller appreciation for contemporary policies that claim to reflect long-established customs or traditions.
In the case of employment in the culturally significant task of education, legal tradition claims may be less obviously at risk.
Certainly if it appeared from the facts that the claimant was “singled out” for denial or faced unique needs for housing that merited consideration within a more flexible needs-based policy, the Tribunal might find that giving due regard failed to convince it that the discrimination concerned could be reasonably justified. A Tribunal might find that community tradition for land allocation followed a less rigid application of needs-tests, and encourage a revisiting of the housing policy in light of what customary practice actually attempts to achieve.
Contested Legal Traditions/Customary Laws: Determining Authenticity
Scenario 3 A woman runs for Chief of her community, and is selected by the elders, in accordance with the custom system. The decision is contested by another women member, who argues that legal traditions and customary law in the community did not allow a woman to hold the position of Chief. |
Scenario 4 A man dies intestate (without a will) and has no immediate family, but his niece had been living with him for several years, taking care of him. Under the Indian Act rules, the house and land allocation revert to the Band, if no immediate family member is available to inherit, which decides to allocate it to the next person on a housing list (in accordance with its customary practice). The niece complains that she has been discriminated against on the grounds of family status, and that the First Nations legal traditions and customary laws clearly entitled her to receive the house and land allocation. |
Discussion
Both these cases involve an interesting twist on the normal idea of an individual complainant advancing “individual rights” as against the “collective rights” recognized by the customs and traditions of the community.
These scenarios illustrate where the conventional definition of a valid complaint evolves to take into account allegations about what is truly accepted custom, and what is not, with the individual complainant invoking customary laws against an adverse decision by the First Nation government.
The core consideration in these cases concerns both investigatory and Tribunal “due regard” and “balancing” considerations. In the custom election case, the opportunity is apparent for reconciliation by facilitation or mediation to assist in “re-discovering” the meaning of customary laws or practices that they evolve over time in accordance with a consensus, in this case with the support of elders.
In the case of the estate transfer, leaving property to the youngest person, and a caregiver, may well have been the traditional custom of the community, with adaptations for cases where no children were involved through the informal adoption or taking in of a niece or nephew to assist.192 This form of custom was generally ignored when the Indian Act provisions regarding descent of property were introduced, along with the rule that where no immediate family is involved, the property reverts to the Band. In this case, the investigation and Tribunal might have to hear testimony about the widespread nature of the Band’s claimed custom as opposed to the niece’s claim of a contrary customary law. It might be that assistance of elders and other respected members of the community might be enlisted to broker a resolution without it having to go to a Tribunal, and of course, this would be the preference. However, as in the case of the custom election context, what would be essential is the engagement of respected third parties.
Should mediation fail, of course, a Tribunal would likely have to solicit third-party evidence in order to arrive at a balanced sense of which, if either, claimed tradition or law must be given due regard.
Balancing of Collective and Individual Rights in the Absence of Asserted Legal Traditions or Customary Laws
Scenario 5 A young man whose mother left the First Nation community when he was young is denied the opportunity to vote in a custom Band election. He is enrolled as a Member and has many connections in the community, but resides off reserve. He alleges that being denied the right to vote discriminates against him based on his family status. |
Scenario 6 A First Nation establishes election rules under custom that specify that any candidate who seeks to run for office must submit to a drug test. The First Nation adopts a policy that any elected leader must be a positive role model for the community, and in view of problems associated with drug use in the community, this step is in the collective interest of promoting a healthy community. Several individuals challenge the requirement as contravening their human rights, based on disability, or perceived disability. |
Discussion
Of importance here is that custom election systems are not backstopped by Band by-laws or endorsed by the Minister of Indian Affairs. They are, in this respect, truly expressions of customary practice.
Although both these cases involve “custom” elections, it is important to note that many such systems are codified and have been adopted for a number of purposes, including varying the term of office for Chief and Council, permitting (or precluding) off reserve voting, lowering the age of eligible voters and so forth. Only a small minority of contemporary s.2 (custom) election or selection systems do not involve voting in accordance with a written procedure. Therefore, the challenge is not merely to deal with the complex and evidence-rich issues surrounding legal traditions or customs, but also to give due regard to, and balance, collective interests as expressed in a formally adopted code as against an individual right or interest.
In these cases, the approach most likely to give effect to a reasonable interpretation of s.1.2 might be simply to engage in the traditional balancing techniques familiar to the standard justification tests. Scenario 5 involves a blanket and stereotypical exclusion of an individual in a situation analogous to that faced in the Corbiere case before the Supreme Court. As recently noted in the Federal Court in the Laurent decision, the Corbiere test also likely applies to custom election systems.193
Upon investigation the Tribunal might well find that an exclusion of this type is not in aid of or serving any particular collective right or interest, but rather is present to avoid accountability to an important segment of the population that might not vote in predictable ways familiar to the reserve component of the Band.
In Scenario 6, as well, a conventional balancing of interests might be called for, even up to the point of determining that in light of the serious and unique health and safety concerns the community faces, the collective interests outweigh the suspension of individual equality rights. If so, it might seem apparent that new justification criteria and tests are required to supplement the existing s.15 “bona fides” justification set out in the CHRA.
Footnotes
- Ultimogeniture refers to the practice of property descent through the youngest member of the family—often considered to be any person who, younger than other relations, provides caregiving to the person leaving the personal property or interest in land.
- Laurent v. Gauthier and the Fort McKay First Nation, [2009] FC 196 (CanLII). Although the Federal Court did not find it necessary to deal with the challenge to the custom election code under s.15 as the code was invalid for failing to obtain sufficient community support when adopted.