Congress of Aboriginal Peoples
Representing the rights and interests of off-reserve Aboriginal people in Canada.
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Section 67: Potential local Impacts |
In addition to potential complaints against INAC, it is anticipated that the repeal of Section 67 of the Canadian Human Rights Act may result in complaints against Band Councils. Since the Indian Act gives Band Councils specific authority to develop their own membership rules and make by-laws and regulations related to a number of areas, complaints could arise if membership codes, band by-laws, regulations, or their enforcement resulted in individuals believing that their application exposed them to discrimination on the basis of race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability, pardoned conviction or sexual orientation.
Bill C-21 provides for a three year transition for Band Councils to prepare for the changes that the repeal of Section 67 will have on their operations. This transition period will end in June, 2011. Until this transition period is over, the Canadian Human Rights Commission cannot deal with INDIAN ACT related complaints against Band Councils.
However, the Canadian Human Rights Commission does have the authority to deal with non-Indian Act related complaints against Band Councils and they have had the power to do so since 1977. While it is sometimes difficult to determine if the Indian Act is the source of the discrimination, the Canadian Human Rights Tribunal has already ruled on a number of discriminatory actions by Band Councils. Here are short summaries of several cases that demonstrate discrimination by Band Councils against their own members:
- Leonie Rivers vs. Squamish Indian Band Council
- Marie-Jeanne Raphael, Marthe Gill, Louise Phillipe and Nellie Cleary vs.
- Montagnais Du Lac Jean Council
- Darlene MacNutt, Lolita Knockwood, John B. Pictou Jr vs. Chief and Council of the Shubenacadie Indian Band
- Jacobs vs. Mohawk Council of Kahnawake
- Bignell-Malcolm vs. Ebb and Flow First Nation
Section 10 –Band control of membership
Band Councils who have removed themselves from the Indian Act for the purpose of defining their own membership codes may be subject to human rights complaints now if their membership codes discriminate on the basis of the enumerated grounds.
Band Custom leadership selection processes
More than half the Band Councils in Canada do not use the Indian Act election process to select their leadership. Band members who are excluded from voting on the basis of the enumerated grounds of the Canadian Human Rights Act may be able to initiate complaints against their band councils now.
Section 81 – By-laws
A successful human rights complaint against an existing band by-law would necessitate revision and amendment of the by-law by the Band Council. Consultation processes for band by-laws would be undertaken by the Band Council with their members. Under Section 82 of the Indian Act, copies of all band by-laws passed under the authority of Section 81 must be sent to the Minister of Indian Affairs within four days of passage. The Minister of Indian Affairs has forty-five days to review new by-laws and must disallow any by-laws that do not comply with the requirements of The Canadian Human Rights Act.
Bill C-21 provides Band Councils with three years (June 2008 – June 2011) to identify issues with their existing by-laws and practices that require revisions to make them non-discriminatory. However, only by-laws passed under the authority of the Indian Act are protected within the three-year period. By-laws passed outside of the Indian Act’s by-law authority can be the subject of a human rights complaint now.