Thank you very much, Mr. Chair and honourable members.
I'm very pleased to have the opportunity to contribute to the committee's review of Bill C-3, an act to promote gender equality in the registration provisions of the Indian Act.
I would like to acknowledge that I meet you here today on the traditional territory of the Algonquin people.
You've already introduced my colleagues who are joining me here today. We've brought these particular colleagues because they are those who specialize in our aboriginal work and aboriginal initiatives.
Many witnesses have spoken to you concerning Bill C-3, and there appears to be consensus that the bill is a narrow legislative response to a narrow order.
In our view, the best value that the commission can bring to you as a witness is to provide you with information on the extent to which our complaint process can be used to redress allegations of discrimination under the Indian Act.
I will begin with a brief description of our role and mandate.
The Canadian Human Rights Act is 33 years old. The act established the Canadian Human Rights Commission and provides the commission with the mandate to receive and process complaints of discrimination in employment or services. The act also directs the commission to engage in any other activities that will give effect to the purpose of the act.
The purpose of the act is found in section 2, and the drafters showed enormous insight when they wrote this clause, which reads that the purpose of the act is to give effect to the principle that every individual should have the right, equal with others, to make for themselves the lives that they are able and wish to have, free from discrimination.
The Canadian Human Rights Commission is part of the larger Canadian human rights system. Every province and territory has its own form of a commission or tribunal. Our mandate is quite specific. There are 11 grounds of discrimination under the CHRA. The grounds most relevant to Bill C-3 and our discussion today are sex, age, marital status, including common-law, and family status.
Family status is a very broad ground, so I will provide a definition. Family status refers to the interrelationship that arises from bonds of marriage, kinship, or legal adoption, including the ancestral relationship, whether legitimate, illegitimate, or by adoption. It also includes the relationships between spouses, siblings, in-laws, uncles or aunts, nephews or nieces, and cousins.
The organizations under our mandate include all federal departments and agencies, plus corporations operating in federally regulated industries such as transportation, banking, and telecommunications. This means that anyone who feels that they have experienced discrimination on one of the enumerated grounds while working as an employee, or while receiving services from one of these organizations, can file a complaint with the commission.
The commission receives, screens, and processes complaints. We do not decide complaints beyond deciding whether to dismiss them or refer them for conciliation or to the fully independent Canadian Human Rights Tribunal for further inquiry and a hearing.
To give effect to the principle of section 2 of the act, the commission also works to promote and advance human rights in Canada. We perform an education and outreach function. We collaborate with workplaces to help influence a shift towards a culture of human rights, integrating human rights into daily practice. We develop research, policies and tools. And we provide advice to Parliament. An example of such advice is our 2005 special report to Parliament, A Matter of Rights, where we called for the repeal of section 67.
With that background, I turn now to the commission's ability to redress allegations of discrimination under the Indian Act.
For three decades, we had no such jurisdiction. That was changed upon the repeal of section 67 of the Canadian Human Rights Act in 2008. As you are all aware, section 67 restricted the ability of people living or working in communities operating under the Indian Act to file complaints of discrimination if the discrimination they were complaining about was related to that act. This section was included as a temporary measure in an effort to not disrupt discussions on reforming the Indian Act.
The repeal finally gave more than 700,000 aboriginal persons living under the Indian Act full access to human rights protection in Canada. A three-year transition period built into the repeal legislation means that complaints against first nations governments can only be filed starting in June 2011. However, the right to file complaints against the federal government came into effect with repeal.
We are now receiving complaints related to the federal government's administration of programs and services under the Indian Act. This has provided us with some early experience in dealing with such complaints.
Some testimony heard by this committee has pointed to the commission's complaint process as an available mechanism to remedy discrimination under the Indian Act, including any possible residual discrimination not covered by Bill C-3. My key message to you today is that this is by no means definite. The commission's ability to redress allegations of discrimination under the Indian Act remains uncertain.
Since the passage of the section 67 repeal, we have received challenges to the commission's jurisdiction in this area. For example, the commission has received several complaints related to Indian status. Three of these are similar to the McIvor case, in that they each involve Indian status and raise questions of residual discrimination following the passage of Bill C-31. We have referred all three complaints to the tribunal.
The Attorney General of Canada has given notice that it will be challenging the commission's jurisdiction, claiming that determination of status by the registrar is not a service under section 5 of the CHRA.
As l mentioned earlier, the Canadian Human Rights Act provides complaint processes only for discrimination based on employment or service. Therefore, if a court were to find that the determination of status is not a service, the commission would no longer have the authority to accept complaints related to Indian status.
By extension, this could raise similar questions as to whether or not the determination of band membership is a service. The commission is intervening in a current case before the tribunal, in the public interest, to put forward a legal analysis that indeed the determination of status is a service.
Of course, the commission cannot make the ultimate decision around what is within our jurisdiction, nor should my remarks be taken as indicating one outcome or another. It is to be expected that an issue of this complexity and importance could proceed from the tribunal to the Federal Court's trial and appeal divisions, and possibly to the Supreme Court of Canada.
In closing, I would like to make two other points.
The first is that the commission supports a comprehensive review of the Indian Act until an approach to governance that recognizes first nations' inherent right to self-government is in place, for a number of reasons.
The committee has already heard that the Indian Act has had discriminatory effects, including residual gender-based discrimination. A case-by-case, section-by-section approach to resolving discriminatory provisions of the Indian Act will be costly, confrontational and time-consuming.
Moreover, the act places the burden on complainants, who do not necessarily have access to legal resources.
Were it not for the courage, persistence, and resolve of people like Ms. Sharon McIvor, many of these long-standing issues would never be addressed.
This piecemeal approach has limited impact, particularly when large numbers of people are affected. The commission supports a proactive, systematic approach, one that would include full participation of aboriginal people, build upon existing knowledge, and lead to timely and effective change. The commission recognizes that this will take time.
My second and final point is that the commission is very interested in the government's announced plan for an exploratory process and looks forward to learning more about its scope and objectives. The commission is prepared to assist in any way it can within its jurisdiction and area of expertise.
I look forward to answering your questions.