Canada's first nations people and the Canadian Human Rights Act--a long story!(Feature Report on Advances in Aboriginal Law)

• Date: 01 September 2008
• Author: McKay-Panos, Linda

[ILLUSTRATION OMITTED]

There has been a great movement in Canada to repeal s. 67 of the Canadian Human Rights Act (CHRA), which was originally passed by Parliament in 1977. Essentially, s. 67 exempted the Indian Act from the provisions of the CHRA by saying "Nothing in this Act affects any provision of the Indian Actor any provision made under or pursuant to that Act." This section effectively shielded from the application of the CHRA the provisions of the Indian Act and any decisions made or actions taken under that Act by band councils or the federal government. While provincial human rights laws apply to everyone, those First Nations people living on reserves were unable to file complaints with the federal Human Rights Commission arising from actions made under or pursuant to the Indian Act.

CHRA section 67 was originally passed as a temporary measure, because at the time it was passed, there were certain negotiated reforms of the Indian Act in process. If the section were not passed, certain sections of the Indian Act would have been found discriminatory. For example, at one time an Indian woman would lose her status if she married a non-Indian male (including males who were genetically and culturally Indians but who had lost their status by obtaining a University degree of by joining the army). At the same time, Indian men could marry non-Indian women and yet retain their status. This situation, which was clearly discriminatory, was remedied in 1985 when Bill C-31, which amended the Indian Act, was passed. Once this and other changes were made to the Indian Act, s. 67 should then have been repealed. There have been several attempts since to introduce bills that would repeal s. 67, but Parliament dissolved or prorogued before each bill was passed.

Also, throughout the process, there were complaints that First Nations people in Canada were not adequately consulted about the proposed changes to the CHRA. The Supreme Court of Canada has defined a governmental duty to consult with Aboriginal people whenever it is going to do something that affects an Aboriginal right. The nature of the duty depends on the content of the Aboriginal right involved, the strength of the claim, and the way in which the proposed law will affect that right.

It is perhaps useful to review how laws are made in Canada's Parliament. To become law, a bill must first be introduced in Canada's Senate or House of Commons. It must then pass through various stages in each House: first, second, and third reading. It must then receive Royal Assent. At the First Reading stage, the bill is printed and read to the Senate or House of Commons. At the Second Reading stage, the bill is read in the same house. Members debate and vote on the principle of the bill. The House may decide to refer the bill to a legislative, standing or a special committee or to the Committee of the Whole. The Committee will do a clause-by-clause study of the bill and can summon witnesses and experts to provide it with information and help in improving the bill. The Committee then reports on the bill to the...