CIVIL RIGHTS COMPLAINTS AGAINST MOHAWK COUNCIL OF KAHNAWAKE TO PROCEED

Montreal, November 2, 2015 — The Canadian Human Rights Commission has proceeded with investigation into five complaints filed by five Kahnawake Mohawk residents against the Mohawk Council of Kahnawake (MCK) for discrimination based on race and family status.

Last July and August, these five individuals gave CRARR the mandate to help them take their case to the federal Commission. In their complaints, they denounce several discriminatory policies and practices adopted by the band council that denied them membership and equal access to services such as education, social assistance, health care, welfare and housing assistance services administered by the band council. Furthermore, being denied membership means that they cannot vote or run in local elections, or even attend electoral activities as full and equal members of the community.

In the complaints, these five individuals describe the discrimination they experienced for years due to the fact that they are children of biracial couples who, despite Bill C-31, are denied full equal membership status under the MCK’s Kahnawake Membership Law, which in turn upheld the Moratorium on Mixed Marriages to exclude biracial couples and their children from living on reserve. Some are facing evictions due to the fact that they are in relationships with non-Natives, or that they are children of biracial couples.

Membership issues have always been salient in the community; however, the catalyst to the five recent human rights complaints have been eviction notices As a result of the eviction lists and notices, members of the community have exposed to harassment and intimidation, including protesting in front of their homes, by other Mohawk residents.

The exclusion and restrictions have lessened the quality of life for these five individuals who have in most cases lived in the community for most of their lives, but who are treated de jure and de facto as outsiders because of their biraciality and family status. Long-term alienation, exclusion and discrimination Distress, result in constant stress, insecurity and humiliation.

The complainants generally allege that the MCK policies and practices violate three sections of the CHRA: s. 5 pertaining to adverse differential treatment, s. 6 indicating denial of residential accommodation and section 14, pointing to the council’s failure to provide a harassment-free environment and thus contributing to a toxic and unsafe environment.

As remedies, the complainants are asking for the Kahnawake Membership Law to be amended so they may register as members of the community with equal access housing, land, residence, support and services provided to all persons on the Membership Registry.

Furthermore, the MCK is asked to promote reconciliation among community members to address the entrenched discrimination towards C-31 individuals, in order to protect them from further discrimination and harassment.

Finally, each complainant is claiming damages that include up to $20,000 in moral damages and an amount of punitive damages to be determined.

Upon receiving the complaints, the CHRC launches an investigation. In the present cases, the Commission will speak with the MCK, interview witness and review any supporting documents to decide whether there is evidence to support the allegations in the complaints. If the evidence is deemed to be sufficient, the case would move ahead to the Canadian Human Rights Tribunal, a specialized administrative tribunal with the power to determine whether discrimination has taken place and whether and how it can to be addressed.

While investigation and litigation are the designated courses of action, the MCK can also agree to mediation. Mediation offers an opportunity for both sides to resolve the case through a mutually satisfactory and binding settlement.

The Canadian Human Rights Commission is responsible for administering and enforcing the Canadian Human Rights Act (CHRA), which aims to redress and prevent discrimination and harassment based on prohibited grounds such as race, gender, family status, disability and sexual orientation. Before 2007, individuals could not file complaints against First Nations governments, since the CHRA did not apply to Aboriginal jurisdictions, according to s. 67.

It should be noted that complaints made against a First Nations government are addressed by the CHRC by taking into account a special “interpretive provision” in section 1.2 of the CHRA. This provision states that the CHRA “shall be interpreted in a manner that gives due regard to First Nations legal traditions and laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality.”

In 2007, Bill C-23 repealed s. 67 and allowed the application of the CHRA to First Nations communities in 2011. Between June 2011 and June 2014, 344 complaints have been filed against different First Nations governments in Canada for discrimination in employment and services.

According to the CHRC’s report to Parliament in 2014,
• 344 complaints have been filed against First Nations governments (June 18, 2011 to June 18, 2014),
• Settlements have been reached in more than 60 complaints involving First Nations governments, and
• Since 2008, the CHRC has referred 3 complaints against First Nations governments to the Canadian Human Rights Tribunal.