Reconciling Indigenous Legal Traditions and Human Rights Law Indigenous Bar Association ~ 2011 Fall Conference

Transcription

1 Reconciling Indigenous Legal Traditions and Human Rights Law Indigenous Bar Association ~ 2011 Fall Conference Canadian Human Rights Commission October 1, 2011

2 Outline 1. The Role of Law in Reconciliation 2. Human Rights Protection in Canada 3. Changes to the CHRA and the Interpretive Provision 4. Discussion 2

3 Reconciliation and the UN Declaration on the Rights of Indigenous Peoples The Declaration is a visionary step towards addressing the human rights of indigenous peoples.... [I]t provides a momentous opportunity for states and indigenous peoples to strengthen their relationships, promote reconciliation, and ensure that the past is not repeated. United Nations Secretary General Ban Ki moon on August 9,

4 1. The Role of Law in Reconciliation 1. United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 2. Section 35 of the Constitution Act, Section 1.2 of An Act to amend the Canadian Human Rights Act 4

5 2. Human Rights Protection in Canada International Instruments (UNDHR & UNDRIP) Constitutional Rights (Charter of Rights and Freedoms Aboriginal & Treaty Rights) Federal Jurisdiction: Canadian Human Rights Act Canadian Human Rights Commission Canadian Human Rights Tribunal Provincial Jurisdiction: Provincial Human Rights Legislation in each province and territory Some provinces/territories have Commissions All provinces/territories have a Tribunal 5

6 Canadian Human Rights Act Purpose, s. 2, CHRA 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 one or more grounds. Jurisdiction - all matters within Parliament s legislative authority including government departments, agencies and crown corporations; businesses such as interprovincial transportation, chartered banks, telecommunications and certain mining operations (uranium); and First Nations governments under s. 91(24) of the Constitution

7 3. Changes to the CHRA and the Interpretive Provision Changes: Bill C-21 repealed section 67 on June 18, What are the C-21 Amendments? Several new clauses including the non-derogation clause and the interpretive provision Application to FN Governments as of June 18, 2011 Study has been tabled identifying the extent of the preparation, capacity and fiscal and human resources required for First Nations to comply with the Act; report to Parliament on findings before the end of the transition period Comprehensive review after five years 7

8 1.1 Non-Derogation Clause For greater certainty, the repeal of section 67 of the Canadian Human Rights Act shall not be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act,

9 1.2 The Interpretive Provision In relation to a complaint made under the Canadian Human Rights Act against a First Nation government, including a band council, tribal council or governing authority operating or administering programs and services under the Indian Act, this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality. 9

10 The Potential of the Interpretive Clause to Promote Reconciliation Could influence the evolution of human rights concepts in Canada and make them more culturally relevant to First Nations (FCC, FCA, SCC) May influence how this type of balancing is done in other administrative law processes. Opportunity to further dialogue and understanding between Aboriginal peoples, the Commission and other bodies interpreting the CHRA

11 Discussion Questions 1. What are some of the special contributions to Canadian human rights law that we can anticipate with the reconciliation of Indigenous legal traditions and customary laws into human rights dispute resolution? 2. Can we make use of the Interpretive Provision to promote reconciliation between human rights law and indigenous legal traditions? 3. While many indigenous legal traditions and customary laws are consistent with universal human rights principles, some may not be? Do you think that those that appear to be inconsistent with human rights principles could be modified in a way that preserves their integrity and validity within a community? 11