Human Rights

The way human rights laws apply to First Nations that have rights based on being an Indigenous community is a complex issue. Some First Nations take the position that human rights laws do not apply to them because they are exercising their Inherent Rights. 

For decades, the Canadian Human Rights Act did not apply to the Indian Act. Both the Act and decisions made by the federal government under the Act were shielded from human rights complaints. Decisions made by First Nation Councils were also shielded. This was changed in 2008. The Act started to apply to the Indian Act and decisions made under it immediately. It started to apply to First Nation Councils in 2011. 

There has been some concern that human rights laws could be used to limit the specific rights of Indigenous Peoples. But the federal Interpretation Act says that all federal laws must be interpreted to uphold and not take away from the Aboriginal and Treaty Rights of First Nations, Inuit and Métis, recognized and affirmed by section 35 of the Constitution. This applies to the Canadian Human Rights Act and other federal laws. 

In addition, the Canadian Human Rights Act says that if there is complaint against a First Nation about services provided under the Indian Act: 

• First Nations legal traditions and customary laws must be considered
• how these balance collective and individual rights must be considered

The Canadian Human Rights Act applies to:

• federally regulated businesses and employers
• the federal government and federal government agencies

Because they are federally regulated, it applies to First Nation or Band Councils.

Other examples of federally regulated businesses include:

• Canada Post
• airlines
• radio or TV stations
• banks

The Canadian Human Rights Act prohibits discrimination when providing goods, services, facilities or accommodation (hotels, apartments, for example) to the general public. This includes denying a person access to these things or giving more limited access to certain people or groups.

It also prohibits discrimination in employment. This includes both in hiring and in pay.

Harassment of someone when they are doing things like buying goods or services, accessing a facility or accommodation or working is also prohibited.

A First Nation Council is considered a service provider when making decisions about membership. 

The Canadian Human Rights Act makes it against the law to discriminate against someone, or a group based on their:

• race, national or ethnic origin, colour
• religion
• age
• sex, sexual orientation, gender identity or expression
• marital status, family status
• genetic characteristics
• disability
• conviction for an offence if the person has been pardoned or their record has been suspended 

Harassment of employees, clients, customers and tenants based on any of these grounds is also not allowed. 

Lock v. Peters First Nation, decided by the Canadian Human Rights Tribunal in 2023 

Four people argued that their human rights had been violated when their membership applications were denied by the First Nation. They were all people who had regained status after sections of the Indian Act, that allowed enfranchisement and took away status from women (and their children) who married someone without status, were removed.

The First Nation Council denied their membership applications based on their ages because they were applying as adults. Other factors considered included their parent or parents being:

• divorced
• enfranchised
• not being registered as an Indian under the Indian Act or entitled to be

The Tribunal found that they had been discriminated against based on their age and family status contrary to the Canadian Human Rights Act. The Tribunal considered the First Nation’s legal traditions and customary laws. They found that there was not a custom or legal tradition that people could only apply for membership if they were under 18, because there was no evidence that this was accepted by the community.