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Speaking Notes for an appearance by Jennifer Lynch, Q.C. Chief Commissioner Canadian Human Rights Commission
as a witness before the Standing Committee on Aboriginal Affairs and Northern Development on Bill C-44:
An Act to Amend the Canadian Human Rights Act
April 19, 2007
Mr. Chairman, Members of the Committee, merci pour votre accueil.
Thank you for the opportunity to appear before the Committee today to discuss Bill C-44.
I would like to introduce my colleagues:
To my immediate right is Mr. David Langtry, a full time Commissioner who has been engaged in the consideration of the section 67 issue since his appointment to the Commission last June.
To my immediate left is Madame Hélène Goulet, the Secretary General of the Commission.
To Madame Goulet’s left is Sherri Helgason, the Director of our recently created National Aboriginal Program located in Winnipeg.
To Mr. Langtry’s right is Harvey Goldberg the Team Leader of our Strategic Initiatives unit, who has concentrated on the repeal for several years.As Canada’s national human rights institution, it is important that the Canadian Human Rights Commission have a strong line of communication with Parliament. That is why I am pleased so early in my mandate to have an opportunity to appear before you to discuss as fundamental a human rights issue as the repeal of section 67.
I will focus today on five key areas. These are:
First, the Commission’s support for the repeal of Section 67. The repeal of this section is long overdue – its existence has real and negative impacts on people every day. It must be repealed now. We are very encouraged by the introduction of Bill C-44 and support its enactment as soon as possible.
Second, the Commission submits that an interpretative provision should be created that will help to ensure that the Canadian Human Rights Act is interpreted in a manner that appropriately considers, and strikes a balance between, individual rights and Aboriginal community rights and interests.
Third, we submit that the transitional period should be longer than the six months proposed in the legislation.
Fourth, we submit that both the Commission and First Nations need to be properly resourced to ensure successful implementation of repeal.
Fifth, I will clarify the Commission’s broader mandate as a Guardian of Human Rights.
Now I will expand on each of these five areas.
#1: The urgency of repeal
Why is repeal so urgent?
The Canadian Human Rights Act was enacted 30 years ago.
The Purpose of the Act speaks powerfully to every Canadian. It reads:
s.2 – The purpose of this Act is to extend the laws in Canada to give effect, ….. to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
The rights enshrined in the CHRA – the right to be free from discrimination and where discrimination occurs to have it redressed – are fundamental to our citizenship.
In everyday life that means when a Canadian believes that a federally regulated employer did not hire him because of his race he can seek redress. It means when a person who uses a wheelchair is prevented from entering a building because there is no ramp she has a way of getting that barrier removed. It means when a woman is sexually harassed on the job she can have the matter considered by a competent body. It means that when a Canadian believes that federal legislation discriminates against him or people like him, he has a means of contesting the validity of that legislation.
Yet the Canadian Human Rights Act does not mean these things for many First Nations citizens. As a result of section 67, the Act and its noble purpose do not apply to them.
Repeal is urgent because 30 years is too long to wait for human rights. Yet First Nations people have been waiting that long to have their rights recognized. Because of twenty-one words tacked on to the very end of the Canadian Human Rights Act in 1977 they often have no means of having their human rights concerns addressed.
Section 67 has real and serious implications in their everyday lives. And the repeal of section 67 has the potential of positively affecting over 460,000 people in 600 communities.
The Canadian Human Rights Commission has consistently called for the repeal of section 67. We are encouraged that, while there are differences on how to best accomplish repeal, the government, the members of your Committee, the AFN, NWAC and other stakeholders all support the Commission’s opinion that section 67 must be repealed.
#2: The need for an interpretative provision
The need for an interpretative provision is one important area where differences of view have been voiced. Bill C-44 is silent on this matter. With respect, we submit that it should not be.
First Nations communities and people have a unique history and special status in the Canadian constitutional and legal system. Their existing Aboriginal and treaty rights are affirmed in the Constitution, have been progressively confirmed by the Courts and are recognized by governments at all levels.
An interpretative provision is, in our submission, imperative to give application to the inherent right to self-government and is fundamental to developing an appropriate system for First Nations human rights redress. An interpretative provision would help to ensure that individual claims are considered in light of legitimate collective rights and interests.
While many agree on the need for an interpretative provision there are differences on how this should be achieved. Some have suggested that an interpretative provision be added to Bill C-44. In our special report on section 67, A Matter of Rights, the Commission recommends that an interpretative provision be developed post repeal in dialogue with First Nations, to allow for needed dialogue, analysis, and consideration to take place without unduly delaying repeal.
Today the Commission would like to recommend a third solution that incorporates the best of both approaches. We propose that Bill C-44 be amended to provide for two clauses:
(1) a statutory statement of principle that would enshrine the principle that the Canadian Human Rights Act should be applied to First Nations in a manner that appropriately balances individual rights and collective rights and interests;
(2) a mandate to the Commission to develop, through a process of dialogue with First Nations and other stakeholders, the appropriate instrument for applying the statutory interpretative principle in the handling of human rights disputes.
This could be accomplished either by way of regulation or, perhaps by resort to the Commission’s statutory powers under s. 27(2) of the Canadian Human Rights Act.
Under section 27(2) the Commission has the authority to enact Guidelines on how the Act should be applied with regard to a particular class or group of complaints.
What might be included in a statutory statement of principle?
The statutory statement of principle should have as its objective a clear articulation of the desired balance, while not indirectly re-instituting the very effects that the repeal is intended to relieve.
This is completely consistent with the recommendations of the Canadian Human Rights Act Review Panel, led by former Supreme Court Justice Gérard La Forest, in their 2000 report, Promoting Equality: A New Vision.
#3: Length of the transition period
The length of the transition period is another issue where differences of opinion have been expressed. The Commission submits that six months is not sufficient time to allow First Nations and the Commission to properly prepare for repeal.
The challenges of implementation are large, yet they are manageable. A significant amount of engagement and dialogue between First Nations and the Commission is desirable to manage the implementation.
This is not a simple matter of “repeal it and complaints will flow to the Commission in the normal course”. In modern conflict management approaches, strong complaint processes are important, yet should be a remedy of last resort. Our legislation is consistent with this, and encourages parties to a complaint to try and resolve their dispute within their own milieu before coming to the Commission.
The need for local level systems to resolve conflict and provide redress of complaints is critical to the success of repeal.
No matter how much the Commission alters its procedures and processes to be responsive to the unique status and circumstances of First Nations, and the Commission intends to do just that, it will always be preferable to resolve human rights issues in the communities and workplaces where they occur, respecting their cultures.
To allow this to happen, the Commission and First Nations must embark on an appreciative process of listening and learning; designing and building; and finally implementing and realizing a new First Nation integrated human rights and conflict management system, based on core principles that can be adapted to the needs of different communities, cultures and traditions.
It is important to articulate that our vision is for much more than an internal complaints system. Formal dispute resolution, although important, should be a relatively small part of an overall system that would also embrace prevention and education.
There is such enormous potential here to develop a whole system that starts with a dispute resolution structure providing multiple options for the resolution of disputes, and is supported by other processes and practices that will shift the emphasis towards the “front end”: prevention of discrimination, and education. The core principles to be developed should have as their goal the fostering of a culture that treats conflict resolution as a building block to creating inclusive and productive communities and workplaces.
By establishing integrated human rights and conflict management systems, First Nation citizens will better understand their rights and how to realize them; First Nation governments will better appreciate the rights they are mandated to promote and respect; and all parties will be able to work together to prevent discrimination and resolve human rights complaints.
First Nations already have systems of dispute resolution including traditional practices such as healing circles and community sanctioning. We honour and respect these practices. We have much to learn from First Nations and we will.
All of this will take time to realize; indeed it will be an ongoing process. This is why the Commission believes that a longer transition period is critical if we are to get this process off to a good start. This, in addition to the need for time to develop an interpretative provision, will, we submit, require at a minimum 18 months and would benefit from a period as long as 30 months.
I would like to articulate clearly the imperative need of ensuring that both First Nations and the Commission have the resources needed to ensure that implementation is successful. No matter how well an interpretative provision is drafted or how long the transitional period is, implementation will not be successful without adequate resources to build needed capacity. Without that capacity, implementation may falter and this would bring the Canadian Human Rights Act into disrepute. No one wants this result.
First Nations have limited financial and human resources and have pressing problems they must address every day. At present many First Nations do not have the means to participate in the type of appreciative dialogue and collaborative problem solving I have just discussed. Nor do they have the resources to develop internal redress and dispute resolution mechanisms. That is why the Commission welcomes Minister Prentice’s statement to the Committee that he would welcome the Committee’s views on the operational impact of repeal on First Nation communities.
The government has already indicated that resources will be provided to the Commission to carry out our expanded responsibilities when repeal proceeds. For this we are grateful. Should Parliament decide to expand the Commission’s responsibilities beyond those in the current Bill, we would of course want to discuss the resource implications of such changes with the government in order to ensure that we are adequately further resourced to carry out our responsibilities as mandated by Parliament.
#5: The Commission’s Mandate
Finally, I would like to clarify that the Commission’s statutory mandate goes well beyond the investigation and resolution of human rights complaints. The Act makes the Commission the guardian of human rights by giving the Commission broad powers to ensure that human rights are effectively implemented in the federal jurisdiction.
As a statutory agency, independent of the government or other parties, the Commission has, and will continue to assert a leadership role in human rights by constantly encouraging all organizations under our purview to strive for excellence in the promotion and protection of the human rights of all Canadians in accordance with our Act.
It was in the exercise of this mandate that the Commission issued A Matter of Rights in 2005 in order to bring to the attention of Canadians what the Commission believes is a gaping hole in the fabric of our human rights protections.
In particular section 27 provides that the Commission:
(e) may consider such recommendations, suggestions and requests concerning human rights and freedoms as it receives from any source and, when deemed by the Commission to be appropriate, include in a report referred to in section 61 reference to and comment on any such recommendation, suggestion or request;
(f) shall carry out or cause to be carried out such studies concerning human rights and freedoms as may be referred to it by the Minister of Justice and include in a report referred to in section 61 a report setting out the results of each such study together with such recommendations in relation thereto as it considers appropriate;
(g) may review any regulations, rules, orders, by-laws and other instruments made pursuant to an Act of Parliament and, where deemed by the Commission to be appropriate, include in a report referred to in section 61 reference to and comment on any provision thereof that in its opinion is inconsistent with the principle described in section 2;
(h) shall so far as is practical and consistent with the application of Part III, try by persuasion, publicity or any other means that it considers appropriate to discourage and reduce discriminatory practices referred to in sections 5 to 14.1.
In the process of implementing the repeal of section 67 the Commission will use these powers as appropriate to call attention to progress in implementing repeal as well as impediments that need to be addressed. For example, the Commission may decide, after a time period, to issue a special report on the implementation experience.
The government and First Nations could also request that the Commission use one of our statutory mandates to work with them to delineate operational implications of the repeal, bringing our extensive experience in translating human rights principles into action.
To prepare, we are acting proactively to strengthen our relationships with First Nations:
- We established a National Aboriginal Program in September 2006, of which Ms. Helgason is the Director, based in Winnipeg. The Program is mandated to lead and coordinate our ongoing work on this issue;
- The Aboriginal Program is being supported by Commission officers who have expertise in areas such as policy development, legal analysis, communications, complaints handling, alternate dispute resolution and conflict management systems.
In summary, the Commission recommends:
- the immediate repeal of section 67;
- the incorporation of both a broad statutory statement of principle on the need to appropriately balance individual rights with community collective rights and interests and a mandate for the Commission to develop an appropriate instrument on this matter;
- a transition period of 18-30 months;
- appropriate resources to support the implementation.
The time for action is now. We all agree on that.
With imagination and cooperation the Commission is confident that repeal can happen soon.
And with repeal we will, collectively, open a new door and collectively build a First Nation human rights system that honours and respects Aboriginal and treaty rights and treats all First Nation governments and peoples with the full measure of dignity and respect to which they are entitled.
We at the Commission welcome this unique opportunity to work with First Nations, their governments, peoples and organizations, the Government of Canada and Parliament, to build this better future together.
We are all here to respond to your questions.
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