Since it was passed in 1977, the Canadian Human Rights Act (CHRA) has carried a sting in its tail. At the end of all its fine language against discrimination in wages, services, speech and behaviour, the law stipulates a single exception to its scope: "Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act." Over the ensuing three decades, Indian activists have been allowed to travel the world denouncing Canada's commitment to human rights, while quietly eliding the fact that Indian bands and institutions are not subject to the quintessential human rights law of the land.
This may soon change. Under a proposed new law, Bill C-44, the CHRA loophole would be struck down. The House of Commons' standing committee on aboriginal affairs is currently deciding how long bands will be given under the bill to become answerable to the anti-discrimination requirements of the CHRA. The bill in its original form forbids complaints from being filed against aboriginal authorities for six months (although it would subject the government's aboriginal affairs bureaucracy to the CHRA immediately).
Predictably, the Assembly of First Nations (AFN) -- a lobby group that represents the interests of entrenched band leaders and councils -- is opposed. "We are strong supporters of human rights, but our people still haven't been properly consulted by the federal government about the proposed legislation," says AFN Grand Chief Phil Fontaine. "People in First Nations communities need time to prepare for this legislation, particularly because it will add new costs for First Nations governments, many of which are already under-resourced."
We do not recall that federally regulated businesses were allowed to stand in the way of the original passage of the Canadian Human Rights Act, which has added incalculably to their bottom line -- costs that inevitably end up being passed along to the consumer. But Mr. Fontaine is correct that many native bands have a long way to go before they come into compliance with state-of-the-art human rights standards. Indeed, Indian resistance to Bill C-44 awkwardly highlights some of the mythology that has grown up around aboriginals in this country. Native reserves often are romanticized by naive white academics as idyllic kibbutzes full of hyper-tolerant naturalists. But the reality is that many reserves are corrupt fiefdoms rigidly controlled by a small group of powerful men. Women, whites and those outside the ruling clique often are treated as second-class citizens. In particular, it's acknowledged that the "C-31 Indians" -- excluded from treaty-Indian status because of matrilineal descent before 1985 -- have not yet been able to claim their moral entitlements to band membership and reserve housing and services, largely because bands have considered them objectionable, expensive interlopers.
The greatest problem that our aboriginals face is a government policy that earmarks $8-billion per year to subsidizing isolated, impoverished reserves instead of encouraging natives to migrate to urban jobs and schools. We realize that this policy will not change overnight. But until it does, we should at least insist that the communities we are bankrolling live up to basic human rights standards. The aboriginal affairs committee should feel free to extend the six-month grace period a little so that Indian bands can at least forecast the implications properly. But it's vital that a firm deadline be set, and not too far into the future.