Enacted in 1977, the Canadian Human Rights Act (CHRA) aims to ensure equality of opportunity and freedom from discrimination in federal jurisdiction. At the time that the CHRA was passed, however, it was understood that adjustments would have to be made before the federal government and First Nations operating under the Indian Act could be fully compliant with the new law. As a result, section 67 of the CHRA explicitly shielded the federal government and First Nations community governments from complaints of discrimination relating to actions arising from or pursuant to the Indian Act. This was intended to be a temporary measure, but the “Indian Act exception” remained in effect until the passage on June 18, 2008 of Bill C-21, An Act to Amend the Canadian Human Rights Act. Prior to the passage of Bill C-21, First Nations leaders were clear that their communities and organizations required time to adjust to the full application of the CHRA, and to prepare for possible complaints against them. Although the CHRA applied fully to the federal government immediately, a grace period of 36 months was allowed in the legislation to give First Nations additional time to prepare. This grace period expires in June 2011. Bill C-21 also required the “Government of Canada, together with the appropriate organizations representing the First Nations peoples of Canada” to “undertake a study to identify the extent of preparation, capacity and fiscal and human resources that will be required in order for First Nations communities and organizations to comply with the Canadian Human Rights Act.” In keeping with this statutory requirement, the Department of Indian Affairs and Northern Development (DIAND), on behalf of the Government of Canada, asked three organizations that represent the interests of those constituencies most affected by the repeal of section 67 of the CHRA to conduct an assessment of the readiness of their respective constituencies to implement the CHRA. These three organizations are the Assembly of First Nations (AFN), the Native Women’s Association of Canada (NWAC) and the Congress of Aboriginal Peoples (CAP). This report summarizes the results of this work, lays out the progress made by First Nations communities and organizations in preparing for the full application of the CHRA, and fulfills the Government of Canada’s requirement under section 4 of the Act.
Each organization approached its work from a slightly different perspective. However, they all conclude that, based on their research and analysis, First Nations communities and organizations are not yet adequately prepared for the full application of the CHRA. They point to needs in three general areas. First, all three reports noted that there is generally a low level of awareness of both the CHRA itself, of the rights that are protected by it, of the Canadian Human Rights Commission and the complaints process, and of the repeal of section 67 and its possible effects on First Nations people, communities and organizations. Second, the reports noted the insufficient capacity of some First Nations communities and organizations to prepare for the full application of the CHRA. This includes the resources and capacity to review laws and procedures; training and tools to evaluate accessibility of infrastructure; and First Nations based mechanisms to resolve complaints. Third, the reports outline the need for financial and human resources to support both the building of awareness and capacity, as well as possible gaps in the accessibility of infrastructure on First Nations reserves.
Naomi Metallic, Report to Parliament - On The Readiness of First Nations Communities And Organizations To Comply With The Canadian Human Rights Act (Ottawa: Minister of the Department of Indian Affairs and Northern Development, 2011).