The Human Rights Act doesn’t apply to Natives

[scribblet]

Did you know this, I wonder why they should be exempt, doesn't seem right to me - are we not all human?

http://www.timeimmortal.net/2008/02/08/the...ply-to-natives/

The Human Rights Act doesn’t apply to Natives

"…But the surprise came from Duffy himself: he reminded viewers that the Canadian Human Rights Act does not apply to Canadian Indians. Right now, section 67 of the CHRA explicitly exempts Indian reserves from the application of the law.

This has been a long-time grievance of Aboriginal women, not because they have a hankering to file complaints about “hurt feelings” under the (recently-added) “hate speech” provisions of the Act, but because there has historically existed on many Indian reserves significant, real discrimination — such as the wholesale disenfranchisement of women who marry non-Indians, cutting them off from government funds and other rights as band members. Unlike for the rest of us who live in a free society, the libertarian solution to discrimination — simply move on to another restaurant, apartment, job, etc. — doesn’t work when the entire economy, and all property, are owned communally and are apportioned by fiat by chiefs and councils. That’s how it works under Canada’s Indian Act.

And guess what? Just last week, Liberal MPs tried to delay a Conservative initiative to extend the Canadian Human Rights Act to Indian reserves. Liberal Anita Neville showed the soft bigotry of low expectations, arguing that Indians just aren’t culturally ready for the kind of laws that apply to the rest of us.

Ms. Neville said there’s “a real ideological divide” over the issue of individual versus collective rights in the repeal legislation. “There doesn’t seem to be, on the part of the government, a willingness to respect the tradition of collective rights for First Nations on reserve.”

So, in the same week that we have Stephane Dion demanding that his MP, Keith Martin, rescind his private member’s motion to remove the “hate messages” provision of the CHRA, Dion’s MPs are blocking the entire CHRA from applying to hundreds of thousands of Canadian Aboriginals.

"

cont...

[maldon_road]

Did you know this, I wonder why they should be exempt, doesn't seem right to me - are we not all human?

http://www.timeimmortal.net/2008/02/08/the...ply-to-natives/

The Human Rights Act doesn’t apply to Natives

"…But the surprise came from Duffy himself: he reminded viewers that the Canadian Human Rights Act does not apply to Canadian Indians. Right now, section 67 of the CHRA explicitly exempts Indian reserves from the application of the law.

No surprise to those of us involved in human rights at the federal level. When the bill was debated in the HofC in the late 70s the aboriginal chiefs fought long and hard to get this exemption. Hard to practice to nepotism if you have to abide by human rights legislation.

[Borg]

Actually, it does apply - but only when it is to their advantage.

Borg

[Wild Bill]

Sounds a lot like your textbook "socialist workers paradise".

The conflict between the "superiority of native culture" and women's rights must be enough to drive the typical NDP supporter into schizophrenia!

Maybe not. Like the Red Queen, they seem to be quite able to "believe six impossible things before breakfast".

Like Dion believing that we can restrict our Afghanistan involvement to simply rebuilding roads and schools without having to worry about anyone shooting at us or planting bombs.

For too many of this type of folk it seems like for them a stop sign is a week's good reading...

[maldon_road]

Sounds a lot like your textbook "socialist workers paradise".

The conflict between the "superiority of native culture" and women's rights must be enough to drive the typical NDP supporter into schizophrenia!

The last thing the NDP wants is to have reserves covered by the CHRA. That way they would find that discrimination exists there as it does everywhere else. I read a story recently where an employee of a reserve tried to file a complaint against the new chief. He has fired all the old staff and replace them with his family members. The CHRC had to decline the complaint - no jurisdiction.

[Melanie_]

Recently there was a case here in Manitoba where the Canadian Human Rights Act was upheld on a reserve. I wonder if this is a grey area in the law.

I'm quoting the full article, because I'm not sure you can follow the link if you aren't a subscriber to the Winnipeg Free Press. (Is this a copyright infringement?)

Winnipeg Free Press

The decision by a Canadian Human Rights Tribunal to award damages to a Cree woman fired from a job with the Ojibwa Ebb and Flow First Nation should give warning to all Indian bands that they cannot discriminate based on race. The decision broadens protections for people living and working on reserves, and that's a good thing.

This band's attempt to disguise its discriminatory practice was undermined by the fact that everyone else in the community seemed to know exactly why Jean Bignell-Malcolm was fired in 2003 as education director. Ms. Bignell-Malcolm is Cree, but married a member of the Ebb and Flow band, the majority of whose members are Ojibwa. The Canadian Human Rights Act bars discrimination based on race, and other grounds. The band argued it rescinded its job offer after learning Ms. Bignell-Malcolm (who had lived at Ebb and Flow for decades) could not speak Saulteaux, an Ojibwa dialect. Fluency in Saulteaux was not listed as a requirement of the job, nor was she asked about it during her interview. But the tribunal was more convinced by other evidence showing that community members, including the elders, insisted that she shouldn't get the job because she was not Ojibwa. The job was given to an Ojibwa woman who had less education.

The band also tried to justify its action in explaining that race and language were in effect as one. The tribunal pointed out that many of a race may speak languages different than their ancestors, or various races can share languages. The band further attempted to defend itself by relying on the Canadian Human Rights Commission's program that allows employers to give preference to an aboriginal applicant for a job that serves aboriginal people. The program is a defence only when a non-aboriginal person claims discrimination in not being hired.

The decision, which can be appealed, makes clear some of the rules by which First Nations must play in their hiring practices. Those rules cover limited ground -- the act's list of discriminatory practices does not include, for example, political belief. That is why when chiefs are voted out there has been wholesale firing of band employees. This has the effect of making all positions political, even if the job is clerical. To date, the federal government has not seen fit to change the Human Rights Act to broaden protection against discrimination. In that context, it is easy to see why reserve residents believed their chief and council had the political power to fire someone who was "not one of our people."

[jacobhelliwell]

Does anyone know why the liberals are voting against extending the rights to the aboriginals? Also, what are the details about Keith Martin's private members bill about the CHRA?

[maldon_road]

Does anyone know why the liberals are voting against extending the rights to the aboriginals? Also, what are the details about Keith Martin's private members bill about the CHRA?

What do you mean by details? It would rescind Section 13(1) of the CHRA. But it is months away from getting to the Order of Precedence. It's a motion, not a bill.

[Rue]

Scriblett's initial assumption that aboriginal peoples are exempt from the Human Rights Act is wrong. He tas simply taken an article out of context and attempted to simplify an actually complex legal issue by trying to pose it in an easy to understand sound bite but that is not how the law works at all.

What has happened in Canada is that there is an on-going balancing act between aboriginal collective rights which are a human right (as per international law treaties entered into by Canada) and sometimes they may conflict with individual human rights concepts.

What has happened is certain indvidual rights associated with property rights being used to define a woman's gender rights can conflict with aboriginal collective concepts as to property rights.

This does not mean aboriginal people consider themselves above any laws or below them for that matter and the fact that certain legal concepts conflict is not unusual in most legal systems. Its bound to happen.

In this case its absolutely ludicrous to suggest aboriginals are exempt from human rights laws when since the beginning of confederation all they have been asking Canada to do is honour their human rights which Canada repeatedly and deliberately ignores contrary to the UN Human Rights conventions we signed.

If you genuinely want to know why some aboriginal concepts will conflict with some human rights concepts then you have to do more then read Mike Duffy out of context. You first have to understand how our federal human rights laws operate, then understand how aboriginal collective rights which are a human right operate and how forumals are applied if the two seem to be at cross purposes.

The aboriginal collective did not say it feels it should be exempt from human rights laws nor does it claim to be. All it has argued legally and correctly so is that its collective rights are a human right that can not be compromised or taken away from them by the imposing other human rights laws and in such cases a synethizing of the human rights in conflict must be achieved to assure both can be honoured without compromising either.

As usual a very complex legal issue is reduced to a simplistic sound bite which misrepresents the actual issue and does what? Suggest aboriginals try operate outside the law and are inhumane. I say bull shit again.

if you are really interested in this issue here are some web-sites that explain the issue and its anything but what it was represented as;

http://pch.gc.ca/progs/pdp-hrp/docs/repons...sponses/1_e.cfm

http://www.parl.gc.ca/common/bills_ls.asp?...rl=39&Ses=1

http://www.crr.ca/Load.do?section=28&s...=578&type=2

http://www.chrc-ccdp.ca/proactive_initiati...67/page4-en.asp

http://pcerii.metropolis.net/Virtual%20Lib...ulaban-1-96.pdf

http://www.law.nyu.edu/journals/jilp/issue.../pdf/34_1_d.pdf

http://www.centreindianscholars.com/Steeri...lcommission.rtf

http://www.undercurrentjournal.ca/2005II2%20-%20grey.pdf

http://www.law-lib.utoronto.ca/DIANA/whrr/...searchstring=11

[Rue]

Recently there was a case here in Manitoba where the Canadian Human Rights Act was upheld on a reserve. I wonder if this is a grey area in the law.

I'm quoting the full article, because I'm not sure you can follow the link if you aren't a subscriber to the Winnipeg Free Press. (Is this a copyright infringement?)

Winnipeg Free Press

Melanie I provided you the best sites I could find as to this issue. There are two sets of human rights we are talking about; i-collective aboriginal rights, and ii-gender rights. The two sometimes can conflict in that by upholding gender rights, it could unintentionally compromise collective rights. The key is to use wording and implementation of the two sets of rights that doesn't undermine either. Its possible, but it takes carefully worded legislation which is being worked on. Certain people would like to try demonize aboriginals as not wanting to follow human rights with their own people which is an absolute crock of shit. Its only spread by people with the agenda of wanting to undermine and ignore the aboriginal collective rights which is also a basic human right.

It never fails that on any complex legal issue someone will try exploit it for their own close minded, simplistic, political agendas that at their pith and substance are designed to impose a negative generalization as to all aboriginal peoples and their right to collective rights.

Gender rights for aboriginal women are NOT the problem and never were. Trying to find a way to implement them to that the aboriginal collective rights are not compromised is the sole issue and it is an issue not because of anything aboriginals did, but because of how our court system in the past fucked things up to get it to this point today where we now need to re-write the basic rules which the federal government chose to ignore in the past leading to the present day confusion.

[Melanie_]

Man, Rue, my head hurts after reading through these links! I won’t pretend to have read all of the material yet, but what I’ve read so far provides lots of interesting food for thought.

One thing that was clear was that the section of the CHRA that impacts First Nations people was never meant to be permanent. It sounds like it was put in place for a specific purpose at the time, and then was never removed or amended. I can see your point regarding carefully worded legislation being needed to balance both collective and individual rights; it seems almost impossible, but maybe that’s just my own limitation. The tension between the different values people will place on the human rights in question, and how the decision makers weigh those rights against each other, is what I find interesting in this. Some will hold gender rights with more primacy, while others will hold collective rights with more primacy, and they will have to find a way to blend the two.

This quote from your link to the CHRC made me reflect a bit on how culture can influence our view of how human rights should be interpreted. Mainstream North American society is built to a great degree on the values of independence and individuality, but for many other cultures interdependence and collaboration are more strongly held values. This can lead to conflict between the individual rights of a woman (or man), and the rights of the group as a whole.

The Canadian Charter of Rights and Freedoms, the Constitution Act, 1982, and the jurisprudence recognize that the "existing treaty and Aboriginal rights" of the Aboriginal peoples of Canada include certain rights of a collective nature. Although these collective rights have yet to be fully defined, it is clear that they include matters such as the inherent right to self-government; hunting, fishing and gathering rights; collective land rights; and the right to the preservation of traditional languages, cultures and traditions.

The recognition of collective rights is seen by some as controversial because of a perceived conflict with more "traditional" individual rights, such as the right to be free from discrimination. The question is asked: what will happen when an individual right and a collective right collide? This is a valid question.

The discussion in Canada on the perceived tension between individual rights and collective rights is also an issue on the international scene. The modern conception of human rights finds its roots in the western philosophical traditions of individual autonomy. In contrast, countries in the developing world and indigenous peoples have sometimes asserted a need for the international community to recognize collective rights, such as the right to communal land ownership, as equally indispensable to human welfare.

I don’t claim to understand all the human rights issues with regards to Canada’s First Nations, but I am open to learning more. Thanks for the push in the right direction!

[Rue]

Man, Rue, my head hurts after reading through these links! I won’t pretend to have read all of the material yet, but what I’ve read so far provides lots of interesting food for thought.

One thing that was clear was that the section of the CHRA that impacts First Nations people was never meant to be permanent. It sounds like it was put in place for a specific purpose at the time, and then was never removed or amended. I can see your point regarding carefully worded legislation being needed to balance both collective and individual rights; it seems almost impossible, but maybe that’s just my own limitation. The tension between the different values people will place on the human rights in question, and how the decision makers weigh those rights against each other, is what I find interesting in this. Some will hold gender rights with more primacy, while others will hold collective rights with more primacy, and they will have to find a way to blend the two.

This quote from your link to the CHRC made me reflect a bit on how culture can influence our view of how human rights should be interpreted. Mainstream North American society is built to a great degree on the values of independence and individuality, but for many other cultures interdependence and collaboration are more strongly held values. This can lead to conflict between the individual rights of a woman (or man), and the rights of the group as a whole.

I don’t claim to understand all the human rights issues with regards to Canada’s First Nations, but I am open to learning more. Thanks for the push in the right direction!

Thanks Mel. Hah. Welcome to the world of the law where nothing makes sense and the sentences keep coming. Sort of like all my posts.

[oreodontist]

How could a Humans rights Act be imposed on native groups? Most natives see themselves as just that...nations. These nations are not subservient to Federal governmnet but an equal. They can't have their cultures mandated by an institution that does not have jurisdiction over them. The Federal governmnet can no more decide the 'human rights' of the Mohawk nation than the Mohawk nation can decide the human rights of folks living in Cornerbrook, Newfoundland.

Native groups have struggled for centuries to get out from under the Father Know's Best of white man's burden. It's up to the Mohawk, Blood, Tsu'sina, and other nations to determine their own social standards. Their goal is not to be cookie cutter cultures reflecting Christian European sensibilities. Federal and provincial presence on their lands is at their discretion and invitation. They are not lesser entities within Canada.

[maldon_road]

How could a Humans rights Act be imposed on native groups?

Simple, by Parliament amending the CHRA. One can use all the arguments we want about aboriginal nations but they are citizens of Canada and are subordinate to Parliament. If Parliament can't impose the CHRA on them I suppose you could argue there are lots of other laws they can't impose on them either.

[oreodontist]

Simple, by Parliament amending the CHRA. One can use all the arguments we want about aboriginal nations but they are citizens of Canada and are subordinate to Parliament. If Parliament can't impose the CHRA on them I suppose you could argue there are lots of other laws they can't impose on them either.

Wrong. Dead wrong. The Parliament of Caada can not impose anything concerning the rights of natives. Native groups themselves can decide to participate or not. There is not a hierarchy of power in Canada. The federal governmnet is not 'above' the provinces and not 'above' the aboriginal nations. Being a citizen of Canada does not negate provincial or aboriginal nation areas of jurisdiction.

Even when these groups come together to change or add to the Constitution there is opting out which recognizs that ultimately Canada is a confederation and not a top down unitary state. The Parliament of Canada can no more pass legislation on the status of women on individual reserves than it can on language or education in Quebec. We have a Constituion and a court system to interpret legitimacy of legislation in accordance to that Constitution.

[maldon_road]

Wrong. Dead wrong. The Parliament of Caada can not impose anything concerning the rights of natives. Native groups themselves can decide to participate or not. There is not a hierarchy of power in Canada. The federal governmnet is not 'above' the provinces and not 'above' the aboriginal nations. Being a citizen of Canada does not negate provincial or aboriginal nation areas of jurisdiction.

Even when these groups come together to change or add to the Constitution there is opting out which recognizs that ultimately Canada is a confederation and not a top down unitary state. The Parliament of Canada can no more pass legislation on the status of women on individual reserves than it can on language or education in Quebec. We have a Constituion and a court system to interpret legitimacy of legislation in accordance to that Constitution.

Where in the constitution does it say that Parliament cannot enact legislation such as the CHRA with respect to Indian reserves. If the CHRA cannot apply to Indian reserves why was it necessary to exclude them?

Indian reserves do not constitute a third level of government equal to the federal government and the provinces.

Edited February 15, 2008 by maldon_road

[Crimson Phantom]

Maybe all Registered Indians should have a refferendum: they can choose to give up their special rights and privileges and join the rest of society, and be granted the same rights as everyone else, or they can live in squalor and have their "special status".