Government moves to extend human rights to first nations--first nations object?

• Author: Fenwick, Fred R.
• Position: Aboriginal Law

Since the passage of the Canadian Human Rights Act in 1977, section 67 of that Act excluded First Nations citizens from lodging human rights complaints arising out of the Indian Act: "Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act."

Interestingly, it is the very last section of the Act and appears as if it were thrown in at the last minute when the Bill was being passed. At the time, the Indian Act still authorized discrimination against Indian women who would lose their status if they married non-Indians (which could even include a person who was genetically and culturally an Indian but who had lost his status by getting a University degree or joining the army). Indian men, at the time, could marry completely non-Indian women who would become full members.

That situation went to court a number of times but was not remedied until 1985 when the federal government passed Bill C-31 to bring this discriminatory practice back into line with both the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms. Bill C-31 restored status to people (mainly, but not exclusively, women) who had lost their status because of marriage or other enfranchisement, and also to the first generation children of those restored people. It was an imperfect Bill and there is still a lot of controversy, not the least of which is the number of people that it let in to bands without giving those bands any further assets, land, or infrastructure. Over 100,000 people have been given status and band membership, most of whom are the first generation children of the (mostly) elderly women who were disenfranchised.

Just the same, if the discriminatory section in the Indian Act (the one that disenfranchised Indian women who married out and was the reason for the Human Rights exception) has been out since 1985, wouldn't you think that now would be a good time to make the Human Rights Act apply to all Canadians including First Nations citizens? To this end, the Conservative government has put forward a bill to amend the Human Rights Act by repealing section 67 and has even called MPs back to debate the issue over the summer break.

The Liberals and NDP claim that to be dirty pool--trying to sneak an amendment through the summer recess. But what's wrong with such an amendment anyway?

First off, there is the question of consultation. If the government is going to do something that affects an Aboriginal...