KAHNAWAKE RACE DISCRIMINATION CASES HEAD TO CANADIAN HUMAN RIGHTS TRIBUNAL
Montreal, December 21, 2016 — One year after investigation, the Canadian Human Rights Commission has upheld the complaints filed by five Mohawk residents of Kahnawake against the Mohawk Council of Kahnawake (MCK) for its racially discriminatory membership law, and referred them to the Canadian Human Rights Tribunal for a hearing.
The cases raise significant legal issues and may eventually end up before the Supreme Court of Canada.
Last summer, a group of Kahnawake residents sought CRARR's help to file complaints with the Canadian Human Rights Commission. They claim they have been discriminated because of their biracial backgrounds or because their partner is White, and that despite having been born or raised in Kahnawake, they began to face expulsion from the community.
These individuals, who are fully registered under the Indian Ac and long-standing residents of Kahnawake, are denied registration with the Mohawk Council of Kahnawake and therefore are not officially recognized as members of the Community because of the Kahnawake membership rule, which is decried as being race or blood-based.
This exclusionary law subjects hundreds of Kahnawake residents who are biracial or have a non-native spouse to arbitrary civil rights violations and systematic denial of equal rights, benefits and services, including the right to vote, housing, health services, and other entitlements. Many face eviction from the community. In some instances, some residents have been receiving threats of violence and harassment.
In August 2015, CRARR filed 5 complaints under the Canadian Human Rights Act (CHRA), or 5 individuals whose ages range from pre-teen to the 50s, alleging discrimination and harassment based on race, family status, gender and ethnic or national origin. The complaints also alleged that the Band Council not only failed to protect these discriminated residents from intimidation, but that it also contributed to the creation of a racially poisoned environment that jeopardized these residents' right to physical and psychological security.
In late November 2016, the Canadian Human Rights Commission formally notified all five individuals that their cases will be referred to the Canadian Human Rights Tribunal for “further inquiry.”
“We are both happy and sad upon learning about this decision,” said “Linda”, one of the complainants. “Happy, because this will allow non-Mohawk Canadians across this country to understand that race and gender discrimination inside our community is still present and is as devastating as race and gender discrimination in Canadian society directed at us.”
“But we also feel a bit sad, knowing that we have to sue our band council for discrimination and that the MCK may have to spend hundreds of thousands of dollars in litigation, money that could have been better used for services and programs for the community, ” added “Linda.”
“If race, gender and family status discrimination is allowed to prevail, leading to our expulsion by force or otherwise, thousands of us may end up without a Native homeland, and effectively, 'homeless',” said “Cindy”, another complainant.
“We of this new emerging bi- or even multiracial, globalized and confident Mohawk generation, need a 21st century vision of nationhood that is more inclusive and built on both customary Mohawk traditions and modern human rights laws,” she added.
In addition to questions of fact, the Commission has also identified constitutional jurisdictional issues (such as whether the application of the CHRA on First Nations governments' would infringe the Indigenous right to self-government and determination of membership law) and other complex legal issues (such as whether the rights to collective identity and self-determination can justify race and gender-based discrimination against individuals).
“The five cases involve so many complex legal, social, cultural and political questions, including principles of the UN Declaration on the Rights of Indigenous Peoples regarding non-discrimination in the exercise of the right to belong to an Indigenous community or nation that is recognized with customary laws,” noted CRARR Executive Director Fo Niemi.
“That's why we believe that mediation before the Tribunal, to which all five complainants are open, will be possible and will best lead to a more consensual and constructive resolution of the issues.”
All parties, including the Canadian Human Rights Commission, which will be a party in the Tribunal hearing process, have until January 3, 2017, to decide whether they will opt for mediation.
Since June 2011, the CHRA fully applies to all First Nations governments and reserves, making illegal acts of discrimination and harassment based on prohibited grounds such as race, gender, disability and family status.
The CHRA was amended by Parliament in 2008, after extensive consultation with First Nations, to allow it to apply to areas traditionally protected by the Indian Act, such as election and membership codes. The amendments were granted a three-year transition period to enable First Nations governments and other institutions to adapt to the principles and requirements of the CHRA.