John Duncan, Minister of Aboriginal Affairs and Northern Development, announced on Friday that s. 67 of the Canadian Human Rights Act would be repealed, as of June 18th. This was done to “ensure First Nations people have the same protection of their human rights as other Canadians.” Therefore, as of Saturday, any decisions made or actions taken by band councils and the federal government, made under or pursuant to the Indian Act, will be fully subject to the Canadian Human Rights Act.
Until Saturday, s. 67 had shielded Indian Act provisions from the application of the Canadian Human Rights Act. But three years ago, the Act to Amend the Canadian Human Rights Act received Royal Assent and though the changes applied fully and immediately to Canada, First Nations were provided a grace period of three years in order to prepare for the changes. That grace period is now up.
Minister Duncan stated, “This builds on our Government’s ongoing commitment to equal protection of rights for all Canadians. We strongly believe that all Canadians deserve access to, and protection of human rights regardless of where they live. In the last three years, we have passed the Gender Equity in Indian Registration Act and we continue to work on matrimonial real property rights legislation.”
On the surface, this may seem like a welcome change. But do the benefits outweigh the costs? It’s a difficult question to answer when aboriginals have been wronged by their First Nation government and they are looking for some legal remedy. At the micro level, individual interests will certainly carry the day and individual aboriginals will enjoy the benefits of the repealing of s. 67. However, on the macro level, First Nations are further put under the thumb of Canada. Rather then being able to remedy internal problems on their own as any sovereign entity should be able to do, individual aboriginals can now simply bypass their own governments, and in doing so, gravely contribute to the dilution of their First Nations’ already too-diluted sovereign status.
Comparatively, well over a hundred years ago, the U.S. Supreme Court recognized, in Talton v. Mayes (1896) that because of the sovereignty of Indian tribes, which is independent of the federal government, individual rights protections, which limit federal, and later, state governments, did not apply to tribal governments. Further, in 1978, a Santa Clara Pueblo woman complained that discrimination against her child, based solely on gender, violated the Indian Civil Rights Act (1968). The U.S. Supreme Court held that “…tribal common-law sovereign immunity prevented a suit against the tribe.” Thus, Santa Clara ultimately strengthened tribal self-determination in that it reinforced that the federal government played no enforcement role over the tribal governments.
As noted above, Duncan’s press release emphasizes his government’s “ongoing commitment to equal protection of rights for all Canadians. We strongly believe that all Canadians deserve access to, and protection of human rights regardless of where they live.” (emphasis added) Instead of pulling Aboriginals (“all Canadians”) further into the Canadian fold, at the expense of their own sovereignty, (while simultaneously claiming to help Aboriginals) a much more appropriate piece of legislation is one which would help establish true aboriginal courts, with aboriginal laws, aboriginal judges, and tribunals consisting of aboriginals.
Turtle Talk 