Law Times

PAGE 10 FOCUS September 12, 2011 • Law timeS Human rights act now applies to band councils But federal government criticized for its own stance on legislation's scope BY KENNETH JACKSON For Law Times M ore than three years after the government tweaked the Canadi- an Human Rights Act to allow aboriginals to file complaints against it and despite new changes expanding the legis- lation's application to band councils, many people are still waiting for results, says one prominent Mi'kmaq lawyer. Some of the cases involve people denied Indian status. One reason for the schism is that government lawyers are arguing that the Canadian Hu- man Rights Commission has no jurisdiction to handle those complaints because the matter doesn't deal with a "service" un- der the act, says Pam Palmater, a lawyer and associate professor in the department of politics and public administration at Ryerson University in Toronto. "You'll recall back when Canada was trying to convince First Nations the repeal of s. 67 was a great thing and it's about time they had access to enjoy the same human rights of all other Canadians, blah, blah, blah," says Palmater. "What Canada failed to mention was their legal position at the time was even though the act would apply, the Indian status to women and their children. They allege dis- crimination on the basis that by failing to do so, the government isn't allowing non-status aborigi- nals access to any of the federal programs and services regularly provided to those with status. Status challenges aren't the only cases the government is fighting. A matter currently in chief commissioner David Lang- try, is challenging the govern- ment and has been outspoken about the issue. "Report after report, notably by the auditor general, document the inequi- ties of living conditions on re- serves," said Langtry in a June press release. "Full access to hu- man rights protection has the potential to be a catalyst for real, Disparities in essential services to First Nations people are well documented. . . . In a country as rich as Canada, this disparity is unacceptable. Canadian Human Rights Com- mission was not going to have any jurisdiction to hear any of those complaints anyway." Once the government opened the act to aboriginals in 2008, people immediately began filing complaints, according to Palmater. She notes almost all of the complaints people have been e-mailing her about relate to the government's failure to provide Federal Court involves a com- plaint that government fund- ing for child welfare services on reserves is inequitable and dis- criminatory. The attorney gen- eral has responded by saying the court should toss the claim on the grounds that the act doesn't apply to federal fund- ing for services on reserves. The commission, including through comments by acting tangible, positive change." All of the hope that the change to the act offered will dis- appear if the government is suc- cessful in its challenges, Langtry noted. "However, this could be nullified if the attorney general succeeds in imposing such a narrow definition on the fed- eral government's obligations. That would perpetuate dis- crimination, instead of ending it, as Parliament intended." When the government first implemented the Canadian Human Rights Act, it intended for the exclusion of the Indian Act under s. 67 to be tempo- rary. But the situation lasted until 2008 despite attempts to remove the exclusion over the years. The commission called for the change many times, as did the United Nations. As part of the change, reserves wouldn't be accountable under the act until June 18, 2011, in order to allow them to prepare and educate themselves. But if successful in its latest maneu- verings, the federal government would receive "sweeping" im- munity from human rights law while leaving First Nations gov- ernments solely accountable for breaches of the act, said Langtry. If that does happen, Palma- ter asks whether it would be fair to pin the blame for prob- lems on the band councils. She notes that if people look at many of the reports from for- mer auditor general Sheila Fra- ser during the last 10 years, the major problems identified on reserves relate to overcrowded housing, poor health care, and a lack of education. "It always comes down to inequitable federal funding," she says. Langtry has noted those is- THE MOST RELEVANT CASES RIGHT WHERE YOU NEED THEM BESTCASE All of the most relevant decisions are right on your desktop with the online research service BestCase. 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In her final report as auditor gen- eral, Sheila Fraser again noted her profound disappointment that, 'despite federal action in response to our recommenda- tions over the years, a dispro- portionate number of First Na- tions people still lack the most basic services that other Ca- nadians take for granted. In a country as rich as Canada, this disparity is unacceptable.'" To make a complaint at the commission, applicants don't need a lawyer. But as they dis- cover, they soon find themselves facing the largest law firm in the country: Justice Canada. It's a scenario that concerns people like Palmater. "The department has hundreds of people dedicat- ed to aboriginal files," she says. "There is simply not a level playing field," she adds. LT

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• Rights Probes
• Echlins Legacy
• Focus On Human Rights Law