Bill C-21 – Dealing with First Nations Rights by Committee

Anyone watching the daily goings-on on Parliament Hill these days – and believe me, I live in Ottawa and these people exist! – are probably focused on the Ethics Committee’s ongoing probe into the Karlheinz Schreiber affair.

But the Parliamentary Standing Committee on Aboriginal Affairs is slowly working its way through a piece of legislation that, while much more low-key than the Schreiber-palooza Festival, has real potential to impact First Nations people and First Nations rights in a major way.

The name of the legislation is Bill C-21, an Act to Amend the Canadian Human Rights Act Bill C-21would, basically, repeal section 67 of the Canadian Human Rights Act (CHRA), which exempts First Nations communities from the CHRA.

Everyone supports the repeal of section 67 and supports the Canadian Human Rights Act. But a lot of people and organizations don’t support Bill C-21 (at least not as it’s currently written). That’s because the Bill would cause major problems for First Nations citizens and First Nation governments and would do more harm than good to First Nations collective rights and individual rights.

There are three major problems (and a bunch of little ones) with Bill C-21 as it is currently written:

• It does not provide any way to balance collective rights and individual rights (there is a long history of balancing rights in Canada, because it’s the only way to ensure we don’t lose our collective Aboriginal and Treaty rights)
• It does not include a statement that the Bill will not cause any harm to Aboriginal and Treaty rights (the fancy legal term for this is a “non-derogation clause” and it’s included in many Bills that deal with First Nations peoples and rights)
• It does not provide for any means for First Nations to enforce the CHRA; that is, it says “yes, the CHRA now applies” but does not provide First Nations – or anybody – with the ability to enforce it.

Now, before anyone thinks the AFN is alone on this, we’re in good company. Here are a few other groups that appeared before the Committee and spoke against Bill C-21 (then called Bill C-44), citing the same concerns as the AFN:

• The Canadian Human Rights Commission and their Chief Commissioner, Jennifer Lynch Q.C.
• The Canadian Bar Association
• The Native Women’s Association of Canada…and basically, 20 out of 21 witnesses that appeared before the Committee calling for changes to Bill C-21.

One of the biggest practical problems is the whole “lack of capacity” issue. Sure, you can say the CHRA applies…and then what? If First Nation governments have no organization, individual or resources to deal with complaints under the CHRA, then what good does it do? For example, there may be a requirement to make all First Nation buildings handicapped accessible (a great idea, by the way). But infrastructure on most reserves is crumbling because of federal under-funding and a lot of First Nations are struggling to keep their schools safe and provide enough houses to reduce over-crowding. How can they be expected to make these kinds of major changes when they’re already falling behind?

As well, First Nations communities will require resources and trained people to deal with the new system. As the Chief Commissioner of the Canadian Human Rights Commission told the Committee: “The need for local level systems to resolve conflict and provide redress of complaints is critical to the success of repeal. … 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. … implementation will not be successful without adequate resources to build needed capacity.”

If we simply repeal section 67 but don’t give First Nations governments or citizens any way to exercise and enjoy those rights…then have we really done anything worthwhile for our people, or have we perhaps done even more damage?

So, how do we fix Bill C-21?

• Include a non-derogation clause (which will not make any substantive difference to the gist of the Bill)
• Provide more time for the Bill to be implemented once its passed so First Nations, the CHRA and others are ready to deal with the changes
• And do an assessment of the impacts the Bill will have so everyone knows the resources and capacities required to enforce it (the government did its own impact assessment, but it only looked at what government needed to do and not the people directly affected: First Nations)

Hey, sorry for the longer-than-usual post, but figured this was information you’d want to know about.

In summary, anyone who says Bill C-21 as it is, without amendments, is a good for First Nations either hasn’t read it, doesn’t understand it, or doesn’t care about First Nations rights!

New Approach to Resolving Specific Claims Unveiled

November 30, 2007

Yesterday saw the unveiling of the new approach to resolving specific land claims, jointly developed by the AFN and Canada.

This new approach has been in the works since last June. It’s one of the first times (first time ever?) that the AFN and First Nations have been at the table with government to draft legislation. As well, a companion Political Agreement was secured by the AFN so that work on important issues that fall outside the legislation will continue.

You can get important information about the new legislation (Bill C-30) and the Political Agreement here. AFN has even produced a handy-dandy guide which walks you through the new approach, and you can get it here.

A few highlights and notable items:
The new system will deal with claims that are valued up to $150 million (which covers about 95% of all claims). Canada and First Nations will continue to work on a new approach for claims that are above $150 million.
The new system creates an independent Tribunal which can make binding decisions on claims. This means the government can no longer control the whole process and can no longer act as judge and jury in deciding claims against itself.
The new system forces the government to respond within three years to the First Nations’ claim, which means the government can no longer delay claims by simply not responding to them. If there’s no response or the claim is not settled in three years, First Nations can take the claim to the independent Tribunal.
The new system now opens up the claims process to types of claims that were shut out of the old process, most significantly pre-Confederation claims.
For the first time, Canada will commit to a specific amount of resources to resolve claims: $250 million each year for the next ten years for the new approach alone. Additional monies can be spent on other claims outside the process.
AFN secured a five year review so First Nations and government have an opportunity assess the process and make any changes – if required – after five years.

There’s a lot more to the new approach so check out the Guide and the info on the website.

And remember: the new legislation is not yet law. It still has to be passed by Parliament and receive “Royal Assent” before it is Canadian law. This could take a few months. AFN has secured resources for regional dialogue sessions by First Nations on the new approach to give everyone time to get informed.

UPDATE: This article raises a few questions about the new approach.
It is true that the independent Tribunal only awards financial compensation, but the new approach is based on negotiation and mediation as the preferred approach to resolve claims. These negotiations can include land as part of the settlement. The prospect of a financial award through the Tribunal is incentive for Canada to reach a negotiated settlement which can include solutions apart from financial compensation. As well, the Political Agreement recognizes the importance of recovering or replacing lost land and commits to reviewing the Additions to Reserve policy.