The Failure of the Canadian Human Rights Regime to Provide Remedies for Indigenous Peoples: Enough Time Has Passed
Hewitt, Jeffery Gordon
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In 2008, Canada amended the Canadian Human Rights Act to remove s.67, which in essence precluded Indigenous Peoples from bringing complaints as against Canada and Band governments. Since the amendment took effect in 2010, a multi-fold increase has occurred in the number of complaints filed with the Human Rights Commission of Canada from dozens to hundreds. The first such significant complaint to be heard by the Canadian Human Rights Tribunal was filed by the First Nation Child and Family Caring Society along with the Assembly of First Nations (the Complaint). The Complaint alleges Canadas funding with respect to First Nation child welfare services on-reserves is discriminatory and a service that falls within the meaning of the CHRA. Canada has aggressively denied any discrimination and challenged the Tribunals jurisdiction. The Complaint seeks not only equality with respect to funding but also systemic remedies to address the socio-economic gap that exists between Indigenous and non-Indigenous Peoples in Canada. In addition to examining the Canadian human rights regime, this thesis explores ongoing colonialism in relation to Indigenous Peoples and how colonialism assists in maintaining the status quo. Will Indigenous Peoples with complaints before the Tribunal be able to access meaningful systemic remedies from a Tribunal, which itself derives authority from Canadas colonialist root? If so, what might such remedies look like? This thesis also posits that in addition to ordering substantive equality of funding for child welfare services, in crafting meaningful systemic remedies the Tribunal should make room for and access Indigenous laws in order to both narrow the socio-economic gap and provide access to culturally relevant child welfare services.