© 2007  Karen Selick
Some "Rights" We Can All Do Without
An edited version of this article first appeared in the August 24, 2007 issue of The Globe and Mail.
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Some "Rights" We Can All Do Without

Why are Canada’s natives being denied participation in the Canadian Human Rights Act (CHRA)? Many people must be wondering about this after a recent vote in the House of Commons aboriginal affairs committee. The government’s Bill C-44 would repeal section 67 of the CHRA, which for the past 30 years has exempted the Indian Act from Canada’s anti-discrimination law. Opposition parties voted to suspend action on the bill for up to 10 months.

Who could possibly be opposed to human rights for First Nations people? It turns out that natives themselves encouraged opposition MPs to delay the bill. But why? 

According to Assembly of First Nations chief Phil Fontaine, “First Nations communities need time to prepare for this legislation.”

Okay, but the idea of repealing section 67 is hardly new. It was previously proposed in bills tabled in 1992 and 2003. If aboriginal communities have not been able to prepare in the past 15 years, how will 10 more months help? 

Says Fontaine, “It will add new costs for First Nations governments.”

Yes, but Bill C-44 does not require native communities to set up their own tribunals for hearing human rights complaints. Discrimination cases will be heard by the Canadian Human Rights Commission, as for all other Canadians governed by federal law. So if Fontaine’s concern is justified, it can only be because First Nations governments anticipate being found guilty of unlawful discrimination and being forced to make reparations.   

The Native Women’s Association of Canada also objected to the bill, speaking through their lawyer Mary Eberts. She says focusing on individual rights might divert attention from a “huge collective denial of human rights”. Which collective rights? Adequate housing, water and education, says Eberts. What the Native Women’s Association wants, apparently, is more socialism: take more from the rich and give it to the poor.

The fact that Canada’s most collectivist and collectivized ethnic group is also Canada’s most financially impoverished group does not seem to have suggested to these women a possible cause-and-effect relationship. Yet empirical evidence from around the globe, spanning centuries, demonstrates that the greater a society’s degree of collectivism, the lower a society’s material wealth. 

In any event, if it’s socialism they want, native women should be big supporters of the CHRA—because despite its name, the Act has very little to do with genuine human rights, and a whole lot to do with wealth equalization. The same is true of the provincial human rights codes which impose similar laws in areas under provincial jurisdiction. What these laws really do is grant privileges to some classes of people (those whom legislators believe to be poor, relatively speaking), at the expense of certain other classes (those perceived as rich, relatively speaking).

For instance, human rights laws forbid employers from discriminating against potential or actual employees because of their sex, religion, race, disability, etc. Employers must even go out of their way to accommodate employees belonging to “disadvantaged” groups, regardless of resulting hardship for the employer. Employees, on the other hand, can merrily refuse any job offer, or quit their jobs without notice, even if the reason is that they despise the employer’s sex, religion, race, etc. 

Similarly, businesses and landlords must provide goods, services and accommodations to all would-be customers, even if it causes the business financial hardship (for instance, by forcing the business to install elevators, or to accept substandard credit risks). Customers, by contrast, can merrily bypass an ethnic- or female-owned business, a disabled or gay landlord, to buy or rent from individuals whose ethnic origins, sex, physical condition or sexual orientation they prefer, without punishment from the human rights commission.

So contrary to public perception, these laws don’t protect minority groups per se. They assist only those members of minority groups who also happen to be on a government-favoured side of an economic transaction—employees, customers, and tenants. Minority group members who are on the side of transaction that governments apparently scorn (employers, business people and landlords) are adversely affected by these laws just as much as healthy, heterosexual, WASP males. 

Moreover, the presumption that favoured groups are poorer than disfavoured groups is simply not justified. Many business people are poorer than the people they employ or sell to.

The CHRA and its provincial counterparts treat this irrational, lopsided, Johnny-come-lately human right called “freedom from discrimination” as the only legal right worth having. In their wake, these laws trample into oblivion genuine, time-honoured human rights: freedom of contract, private property rights, and freedom of speech. 

I wouldn’t blame Canada’s native communities if they preferred to have nothing to do with these so-called human rights laws.  I think all Canadians would be better off without them. If the government really wants to end the legal distinctions between Canada’s natives and other citizens, it should give non-natives back the freedoms of contract and speech that natives still enjoy.   


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September 2, 2007