We have to understand that the Human Rights Act is principally aimed at employment. With respect to the first point, section 16 gives power to an employer or a service provider.
Most of the complaints are about employment or delivery of services. In respect of section 16 they have provided a general policy, which is available on their website, on what they call “special programs”. They also have an aboriginal employment preferences policy. They suggest such things as a reasonableness requirement, and some others. There are five pages of policy in the employment area alone.
So in a sense they have provided guidance on how these programs can be developed. Given time, presumably they could develop one with respect to services, as well, especially in the aboriginal context. They have been working at that.
They also have the power to make guidelines, which is a quasi-legislative power that enables them to set out their interpretation of provisions of the act that must be applied by them and the tribunal. That provides a power to provide guidance to employers and service providers about developing programs, policies, employment practices, and so on, that are consistent with the act.
With respect to the second point, as I said, the Human Rights Act would apply to aboriginal groups, within class 24 of section 91. We're principally talking about the first nations, and what I'm suggesting here is that the equality provision in the charter is concerned usually with exclusion of groups. To the extent there are some aboriginal groups that the Human Rights Act applies to that would not be covered by this particular provision, then that may well give rise to a charter challenge, based on that exclusion.