Public Health Protection and Drinking Water Quality on First Nation Reserves: Considering the New Federal Regulatory Proposal

In January 2009, the federal government issued a discussion paper that details its preferred regulatory route for enabling a legislative framework. This route is to referentially incorporate provincial legislation regarding operational standards through a framework statute, and then develop the details of the regime through regulations to be developed in consultation with First Nations over the next few years. Importantly, the opening sentence of the discussion paper\u27s executive summary expressly connects water and public health. It reads: The provision of safe drinking water and the effective treatment of wastewater are critical in ensuring the health and safety of First Nations people and the protection of source water on First Nation lands. Below I sketch out the current conditions and how the federal proposal suggests engaging these conditions. I conclude that although regulated standards will undoubtedly bring about improvements to public health, the proposal misses some key issues. One major failing is that the proposed regime does not address off-reserve source water protection. I suggest routes to amend this issue

From Judging Culture to Taxing Indians : Tracing the Legal Discourse of the Indian Mode of Life

In this article I consider how judicial decision making characterizes Indigenous peoples\u27 culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous person was to be deemed economically assimilated. Before such legislation and policies were repealed, however, the tests crossed into the common law and have since been read into legislation. As a result, the doctrine of precedent has reinforced and continually renewed this oppressive discourse to the present day. This article is, in essence, a call to critically engage and confront the assumptions that underlie our rubrics of analysis

Envisioning the Future of Aboriginal Health Under the Health Transfer Process

The Canadian government, and many Aboriginal communities, are committed to formally transferring varying aspects of governance responsibilities from federal hands to Aboriginal ones. These transfers take various forms, from creating Aboriginal political bodies with broad sets of governance powers, as was the case with the Nisga\u27a Treaty of 2000, to more partial transfers of specific powers or responsibilities, or types of responsibilities. One core transfer area is public health programming, for which there are specific and highly developed initiatives dating back to around 1989. Although it is expected that these initiatives will, overall, have very positive effects for improving the health of Aboriginal Canadians, there are many difficulties which are likely to emerge or be perpetuated under these transfers. There has been limited analysis of these difficulties to date. This paper first briefly describes the history of health transfer initiatives, and the policies which currently shape transfer agreements. After establishing this general platform, the paper then takes up the challenge of querying whether improvements to health status actually follow these forms of transferred control. The point of asking this question, as James Waldram, Ann Herring and Kue Young suggest, is not to undermine the efforts of Aboriginal communities to ameliorate their often poor living conditions, but to generate an analysis of how law, policy, and jurisdictional assignment impede or facilitate the success of such initiatives, and so gather insight into how to make improvement more likely. This paper considers some existing gaps or problems in Aboriginal public health which are likely to be perpetuated despite the transfer of control over some aspects of these problems, as well as some gaps related to health which may emerge in transfer communities. It then turns to identifying some aspects of health which are likely to improve in the coming years with increased Aboriginal control. The analysis in this paper is obviously a selective one: there are many other gaps which could have been included. As such, it is intended to contribute to the initiation of a broader conversation about the future of Aboriginal health under the health transfer process

The Reconciliation Doctrine in the McLachlin Court: From a “Final Legal Remedy” to a “Just and Lasting” Process

The issue upon which this paper focuses is one that runs through much of the Aboriginal rights jurisprudence over the last ten years: the idea of “reconciliation. However, the way in which the term is deployed, the values that inform it, the logic that drives it, and the conclusions that it supports have shifted and are continuing to shift. There are considerable differences between how this term was used at the time of Lamer C.J., its meaning for the bench under McLachlin C.J., and the new role it has evolved to take on most recently. In particular, reconciliation has come to be understood as requiring dynamic processes of negotiation, instead of just serving as a normative justification for infringing Aboriginal rights. This article does not analyze whether the Court’s understanding of reconciliation resonates with that of others nor address what others have argued ought to be included in trying to affect reconciliation.11 Rather, the paper seeks to explore what the Court is signalling or intends when it draws upon the language of reconciliation. As such, the article tracks a complex storyline which is marked with both internal debate and change, as well as with our current chief justice promoting a fairly consistent trajectory. The flow of this paper is as follows. The substantive analysis begins in the second section, which identifies the early deployments of the term “reconciliation” and in particular draws attention to distinctions between Lamer C.J.’s understanding and use of “reconciliation,” and those of McLachlin C.J. in the years before she was named chief justice. These distinctions set a comparative baseline for the rest of the paper. The third section then turns to the decisions rendered by the Court since Beverley McLachlin was appointed chief justice. The third section is divided into two subsections. The first subsection considers whether Lamer C.J.’s approach to reconciliation, as a state of compromise where Aboriginal rights may need to yield to the common good, has been embraced by the current bench. It also identifies how elements of McLachlin C.J.’s approach to reconciliation during the 1990s, surface in various forms, either in her reasons or those of other members of the Court. The second subsection considers how McLachlin’s Court casts “reconciliation” as a dynamic process, demanding the establishing of relationships that must both be founded in mutual respect and be renewed if they are to flourish. The fourth section of the paper considers tensions that arise due to reconciliation interests being largely absent from judicial considerations of non-section 35(1) matters (such as when legal claims turn on statutory interpretation). The fifth section suggests that Mc- Lachlin’s Court has created some room for reconciliation interests to infuse Aboriginal-Crown law more generally

The Right to Safe Water and Crown-Aboriginal Fiduciary Law: Litigating a Resolution to the Public Health Hazards of On-Reserve Water Problems

Canada is at a crossroads. The gap between our national self-image as a country that respects human rights and the reality of socio-economic inequality and exclusion demands a re-engagement with the international human rights project and a recommitment to the values of social justice and equality affirmed in the early years of the Canadian Charter of Rights and Freedoms. This book sketches a blueprint for reconceiving and retrieving social rights in diverse spheres of human rights practice in Canada, both political and legal. Leading academics and activists explore how the Charter and administrative decision making should protect social rights to health, housing, food, water and the environment; how homelessness and anti-poverty strategies could incorporate international and constitutional rights; how the federal spending power, fiduciary obligations towards Aboriginal people, and substantive equality for women and people with disabilities, can become tools for securing social rights; and how social protest movements can interact with courts and urban spaces to create new locifor social rights claims. This book provides inspiration as well as an indispensable resource for all those who share an interest in advancing human rights and social justice in Canada. The focus of this chapter is relations of injustice and finding a route for realizing a core social right that many Indigenous peoples live without: access to safe drinking water. This chapter explores whether fiduciary law could be the enabling instrument for Indigenous peoples residing on reserves to gain consistent access to safe drinking water

Recommendations on Mature Minors

Recommendation: The Committee should remove the requirement from the Criminal Code that candidates for Medical Assistance in Dying (MAID) be at least 18 years old. This is for the following reasons, elaborated upon below. 1.The MAID regime should always turn on the actual capacity of any person requesting MAID 2.The MAID regime’s approach to consent and capacity should be consistent with Canadian law on health care decision-making by minors 3.The MAID regime will likely be found unconstitutional if it maintains an age-based bar 4.The vulnerability of youth may require a different approach but does not justify an age-based bar 5.Removing the age bar is consistent with the recommendations of expert panels

Bringing Together the United Nations \u3ci\u3eConvention on the Rights of Persons with Disabilities and the Declaration on the Rights of Indigenous Peoples\u3c/i\u3e in Canada

This article explores the relationship between the United Nations Convention on the Rights of People with Disabilities (CRPD) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) with regards to the situation of Indigenous persons with disabilities living in Canada. In particular, it considers how the obligations and responsibilities identified under the UNDRIP and the CRPD can be interpreted and realized in a manner that is complementary and may amplify the likelihood of the goals of each instrument being realized. An explicit goal is avoiding the exclusions and erasures which arise when single identity politics dominate, which can lead to conflating, ignoring or an inability to engage intra-group differences. The article delves into the challenges and opportunities of reading these instruments together, and examines Canada’s commitments and actions toward implementing both of these instruments in dialogue with Indigenous governments and representative Indigenous disability organizations. Cet article explore la relation entre la Convention Relative aux Droits des Personnes Handicapées des Nations Unies (CRPD) et la Déclaration des Nations Unies sur les Droits des Peuples Autochtones (UNDRIP) en ce qui concerne la situation des personnes Autochtones handicapées vivant dans Canada. En particulier, il examine comment les obligations et responsabilités identifiées dans le cadre de la UNDRIP et de la CRPD peuvent être interprétées et mises en oeuvre de manière complémentaire et amplificatrice. Un objectif explicite est d’éviter les exclusions et les effacements qui surviennent lorsque les politiques identitaires uniques dominent, ce qui peut conduire à un amalgame, à une ignorance ou à une incapacité à prendre en compte les différences intra-groupe. L’article approfondit les défis et les opportunités liés à la lecture conjointe de ces instruments et examine de près les engagements et les actions du Canada pour mettre en oeuvre ces deux instruments dans le cadre d’un dialogue avec les gouvernements Autochtones et les organisations Autochtones représentatives des personnes handicapées

Carter, Medical Aid In Dying, and Mature Minors

The Supreme Court of Canada’s decision in Carter v Canada (AG) decriminalized medical aid in dying in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult.” This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical-decisional capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician-assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the jurisprudence on mature minors and when they are deemed to have the right to require the withdrawal of, or refuse to receive, life-sustaining treatment, and compares the reasoning in these cases with that in Carter. A particular focus of this article is on how the jurisprudence approaches decisional capacity when the individual in question may be particularly vulnerable. It finds that a blanket exclusion of mature minors from a physician-assisted dying regime likely violates the Canadian Charter of Rights and Freedoms, and calls out for considered debate on these issues in- stead of forcing a minor and their family to bring the issues forward through litigation

Assessing Human Trafficking in Canada Flawed Strategies and the Rhetoric of Human Rights

This paper will present the argument that Canada’s rhetoric of protecting the human rights of trafficking victims is at odds with its practice. Trafficking victims are treated essentially the same as any other irregular migrant, and the specter of trafficking is invoked to justify acts which arguably violate Canada’s international human rights obligations. This paper will offer an overview of what little information is available regarding the extent of trafficking in Canada, and then will conduct a close examination of the Canadian approach to trafficking and its victims. In addition to considering the logic and consequences of the Canadian strategy for trafficking victims, Canada’s practices are also considered in light of its obligations pursuant to the United Nations Convention on the Rights of the Child, the Convention and Protocol Relating to the Status of Refugees, the Convention on the Elimination of all Forms of Discrimination Against Women, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereinafter “Palermo Protocol”). This paper will close with a brief look at how Canadian border control measures may increase the likelihood that asylum seekers will be forced to put themselves into the hands of smugglers and traffickers if they wish to bring a claim for protection in Canada

Study on the Implementation of Indigenous Rights Based Fisheries

Thank you once again for inviting me to speak with you on March 22, 2022. It was an honour. I really appreciated the questions that members posed, and the dialogue. As per your request, I am providing my core recommendations for you to consider as you develop your report on implementing the Indigenous rights-based fishery