Thank you, Mr. Speaker.
Aboriginal Rights
Many presenters appearing before the committee were concerned about the impact of Bill 1 on aboriginal rights and land claims agreements. Significant concern arose over the applicability of the Human Rights Act to aboriginal communities, and in particular about the scope of clause 2. Many presenters did not view the protection of individual rights in human rights legislation as automatically conflicting with the collective rights of aboriginal peoples; however, they wanted some assurance that aboriginal rights would be protected in the presence of such a conflict.
The Constitution Act, 1982 provides constitutional protection to aboriginal rights and treaty rights in Canada. Clause 2 of the Human Rights Act provides
"Nothing in the Act shall be construed so as to abrogate or derogate from the protection of existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in clause 35 of the Constitution Act, 1982"
The Yukon Human Rights Act provides similar protection to aboriginal rights. Both Bill 1 and the Yukon Human Rights Act attempt to satisfy public concerns about the impact of human rights legislation on aboriginal rights in each territory. Notably, the constitutional protections contained in section 35 of the Constitution Act, 1982 and the applicable case law make it clear that provinces and territories cannot affect the constitutional rights of aboriginal peoples in Canada.
It was generally understood that clause 2 was intended to be a non-derogation clause to protect aboriginal rights; however, its application remains unclear. While most presenters were supportive of Bill 1, they are concerned about the extent to which the collective rights of aboriginal peoples conflict with individual rights. Two other presenters, for the same reason, did not support the legislation at all.
Mr. Speaker, presenters commented on the fundamental differences in the approach to "rights" amongst aboriginal communities and non-aboriginal communities in the Northwest Territories. Bill Erasmus, National Chief of the Dene Nation, explained how aboriginal rights are tied to the land and to the collective well-being of the community of which one is a member, whereas human rights legislation is based on the rights of the individual. Mr. Erasmus expressed general support of Bill 1; however, he questioned why the wording in clause 2 differs from that used in clause 3, which deals with rights and privileges associated with denominational schools in the territory.
Chief Erasmus is also concerned about how the Human Rights Act will apply to future aboriginal governments. He encouraged the committee to create flexible legislation that anticipates the creation of future aboriginal self-government arrangements. Noting that future aboriginal governments may want the Human Rights Act to apply, Mr. Erasmus sought clarification on the applicability of Bill 1 to current and future aboriginal governments.
Richard Nerysoo of Inuvik expressed concern that the government may use the Human Rights Act to undermine land claims agreements despite the inclusion of clause 2. He urged the Legislative Assembly to ensure that it is serious about not abrogating or derogating from aboriginal rights through Bill 1 or any legislation. Mr. Nerysoo supported the introduction of human rights legislation. He emphasized that his concerns about protecting the collective rights contained in land claims agreements should not be interpreted as a lack of support for the protections provided to individual rights in the Human Rights Act. In his view, collective rights are not a reason to override individual rights; both are interrelated. However, he stressed that the government must meet its land claims obligations, and that it should not use the Human Rights Act or any other legislation to undermine land claims rights.
Mr. Speaker, a related issue raised at the public hearings was whether Bill 1 could provide aboriginal communities with any assistance in the recognition and implementation of their rights. The committee heard about the struggles of aboriginal people for recognition of their aboriginal and treaty rights. The committee also heard that many aboriginal people do not believe that the government is living up to its land claims or treaty obligations, and people wanted to know if their communities could use Bill 1 to implement those rights.
Finally presenters wanted to know whether the Human Rights Act protected them from discrimination within their own communities, such as when some band members receive preferential treatment over others.
Mr. Speaker, Bill 1 is intended to provide protection to all people experiencing discrimination based on any of the prohibited grounds in areas of everyday life that fall within territorial jurisdiction. Aboriginal persons who feel that they are being denied access to services, accommodations or employment within the NWT can make a complaint to the new Human Rights Commission.
Due to the division of powers created under the Constitution Act, 1867, aboriginal governments fall within the jurisdiction of the federal government. Bill 1 is territorial legislation and does not apply to aboriginal governments. For instance, because band councils fall under federal jurisdiction Bill 1 will not apply. However, anyone experiencing discrimination in areas of public life that fall under the jurisdiction of the federal government can seek assistance from the Canadian Human Rights Commission.
The committee sought clarification from the Minister of Justice on the underlying purpose of clause 2. Through our discussions, it is evident that the purpose of clause 2 is to provide a clear statement that aboriginal and treaty rights cannot be infringed by the Human Rights Act. Therefore, clause 2 is there to let the public know that Bill 1 does not supersede existing aboriginal and treaty rights. The protection afforded by clause 2 is not "frozen in time", but rather is intended to extend to future aboriginal and treaty rights.
Mr. Speaker, the Human Rights Act does not provide aboriginal communities a vehicle to enforce their existing aboriginal rights, nor does it provide a mechanism for the recognition of rights not yet realized. The committee encourages the government and aboriginal communities to work together to ensure the full implementation of aboriginal and treaty rights in the NWT.
In response to these concerns, the preamble of Bill 1 has been amended to recognize and affirm the protection of aboriginal and treaty rights in the Northwest Territories.
Disability
Mr. Speaker, the definition of disability in Bill 1 was the subject of much discussion. The committee is concerned that the current definition is not sufficiently clear with respect to the protections it creates. In particular, the committee is concerned with the inclusion of "perceived" and "predisposition" in the definition of disability.
Some presenters advocated for a narrower definition, while others sought an expanded definition. Others felt that a more clearly articulated definition is required. Elaine Keenan-Bengts, one of three Fair Practices Officers, was concerned because the current definition does not make specific reference to alcohol and drug dependencies.
A number of presenters thought that by providing a partial list of ailments, disfigurements and infirmities that the legislation is limiting the possibility of adjudicators and courts to recognize new and emerging disabilities. The representative from the NWT Council of Persons with Disabilities stated that the current definition would create misunderstandings because people may think that the list of ailments and disabilities in subsection (a) is exhaustive. She suggested that the committee consider using a definition that is similar to the one used in the Canadian Human Rights Act.
Others felt that the definition of disability was too broad in scope because it includes "perceived disabilities" and a "predisposition" to disabilities. "Perceived" disabilities created some confusion; for instance, the current definition does not make it clear as to whom is doing the "perceiving".
Also, it was pointed out that the use of the term "handicap" in the definition of disability in Bill 1 is outdated and should be amended accordingly.
Mr. Speaker, the addition of "perceived" disabilities in Bill 1 is a reflection of the current case law on disabilities and its availability in other jurisdictions. Both Ontario and Nova Scotia incorporate perceived disabilities into their human rights legislation. Ontario's Human Rights Code includes disabilities that a person is "believed to have or have had". Nova Scotia's Human Rights Act applies to "actual or perceived" disabilities.
Recent decisions from the Supreme Court of Canada have affirmed the role of "perceived" disabilities in the analysis of what constitutes a disability. In Quebec (Commission des Droits de la personne et es droits de la jeunesse) v. Montreal (City) (hereinafter referred to as Mercier) (2000), the Supreme Court of Canada stated that the courts should adopt a multi-dimensional approach to interpreting human rights legislation. This requires courts to analyze disabilities from both an objective and subjective perspective. According to the court in Mercier discrimination on the basis of a perceived disability, whether there is an actual disability of not, will be considered unlawful.
The current definition of disability in Bill 1 reflects the principles articulated by the court in Mercier. With respect to the inclusion of "alcohol and drug dependency", the committee is of the view that the case law indicates that the current definition will be interpreted in a manner that includes addictions to drugs and alcohol.
The committee believes that changes are required to address some of the concerns raised at the public hearings. The committee wanted it made clear that the list of examples provided in subsection (a) is not exhaustive, and is there to provide examples of the types of physical disabilities contemplated by the legislation.
The committee proposed that the definition of disability be amended to clarify the meaning and scope of "perceived" and/or "predisposition to" disabilities and to make clearer that subsection (a) is not an exhaustive definition of the physical disabilities covered by the act.
Mr. Speaker, the bill was amended to incorporate these suggestions. The reference to "handicap" has also been removed from the act.
Analogous Grounds
Mr. Speaker, the committee considered whether clause 5(1) of the act should be amended to include "analogous grounds" of discrimination. "Analogous grounds" is another way of saying "similar or same" grounds. Adding it to the act empowers adjudicators to deal with complaints of discrimination that are based on grounds that, although not explicitly recognized in the legislation, should be prohibited because they are the same or similar to those currently listed in clause 5(1).
Both the NWT Federation of Labour and Egale Canada support the inclusion of "analogous grounds" into Bill 1. The committee heard that by incorporating analogous grounds into clause 5 the legislation would provide adjudicators with sufficient flexibility to recognize new grounds of discrimination as they arise. One suggested methodology is to amend clause 5 to incorporate the language from section 15 of the Canadian Charter of Rights and Freedoms.
Presenters told the committee that the significant Supreme Court of Canada jurisprudence in this area would temper the concerns over the uncertainty created by including "analogous grounds" in the act.
The committee raised this issue with the Minister of Justice. Through our discussions, the committee has concluded that including "analogous grounds" into the legislation is not appropriate at this time. We have concerns over how such a provision would apply, particularly over its impact on the private sector. Unlike Bill 1, the Charter applies only to government. Unlike the Charter, the NWT Human Rights Legislation will be easier to amend to incorporate new and emerging grounds of discrimination.
Therefore, the committee determined that an amendment to incorporate "analogous grounds" into Bill 1 is not essential at this time.
Social Condition
The committee considered whether the definition of social condition could be amended to provide for greater certainty in the application of it as a prohibited ground of discrimination. The purpose of including social condition as a prohibited ground of discrimination is to protect those who suffer discrimination as a result of being a part of a socially or economically disadvantaged group.
The committee was interested to hear the views of the public about the inclusion of social condition in the list of prohibited grounds of discrimination. The public consistently supported its inclusion in the Human Rights Act.
The NWT Council for Disabilities, the National Anti-Poverty Organization, Status of Women Council, Egale Canada and the NWT Federation of Labour were among the presenters who supported the reference to social condition in Bill 1.
Of the presenters in support of "social condition" being part of the act, a few of them are concerned that the current definition is unnecessarily narrowed by the requirement that the complainant be part of a "socially identifiable" group. The National Anti-Poverty Organization is concerned with the possible strict interpretation that this ground may receive from the courts, citing Quebec case law as an example of this narrow approach.
Other presenters are concerned that the current definition is ambiguous. One presenter was opposed to including "social condition" in the prohibited grounds because it creates too much uncertainty and is difficult to apply in practice. This presenter requested an amendment to refer to "net source of income" or "poverty" rather than using social condition.
One presenter requested that the reference to "illiteracy" in the definition of social condition be changed to "levels of literacy" to accord with current language used to describe deficiencies in literacy.
The addition of social condition in Bill 1 addresses economic inequality in the Northwest Territories. Its inclusion in Bill 1 places the Northwest Territories ahead of most other jurisdictions in Canada in protecting residents from discrimination.
The committee agrees that "social condition" is an imprecise term that will, over time, become unambiguous through interpretation by adjudicators and courts. However, the uncertainty created by its inclusion is far outweighed by the potential that the ground of social condition has to advance equality rights in our territory. The committee believes that other terms, such as "source of income" or "receipt of social assistance", do not sufficiently protect residents from discrimination that is based on the complex socio-economic factors encompassed by the term social condition.
Canadian citizens sometimes face discrimination on the basis of their socio-economic status in the delivery of services, rental accommodations and employment. By including social condition as a prohibited ground, the Northwest Territories is able to provide assistance to those suffering discrimination because of their membership in a disadvantaged group. For instance, a single parent with a low income and several children may be denied access to accommodations because of his or her status as a low-income single parent. Our legislation would provide a remedy to this person, if the other party could not show that he had a bona fide justification for the discrimination.
Although Quebec is the only jurisdiction in Canada to include social condition in its legislation, several jurisdictions in Canada do provide protection on the basis of "source of income" or "receipt of social assistance" or "social origin". The federal government, the Northwest Territories, Nunavut and New Brunswick are the only jurisdictions in Canada not to provide some protection on the basis of socio-economic status.
More recently, however, the Canadian Human Rights Review Panel conducted an extensive review of the issues surrounding the inclusion of social condition as a prohibited ground of discrimination in the Canadian Human Rights Act. In the end, the Review Panel recommended that the federal legislation be amended to include "social condition" as a prohibited ground of discrimination. After much consideration, the Standing Committee on Social Programs determined that the current definition should remain, with one minor change. Therefore, the committee is recommending as follows, Mr. Speaker.
Recommendation
The Standing Committee on Social Programs recommends that the reference to "illiteracy" in Clause 1 be changed to "levels of literacy".
Thank you, Mr. Speaker. I would now like to ask if my colleague, Mr. Braden, could continue with the reading of our committee's report.