Discussion Paper: Challenges and Successes of Select Federal Initiatives in First Nation Reserve Communities, including the Canada Labour Code, the Canadian Human Rights Act, and the National Building Code

This paper is to inform on-going discussions over proposed new federal accessibility legislation, and in particular discussions about whether such legislation should be extended to First Nation reserve communities. This paper is not a part of the consultation process that is being undertaken with various First Nations organizations. It surveys statutory law, reports, literature and jurisprudence. It discusses the legal landscape that must inform any dialogue about extending the federal regime to First Nation communities and assesses successes and challenges associated with three existing federal regimes that apply on First Nation Reserves

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 Before such legislation and policies were repealed, however, the tests crossed into the common law and have since been read into legislation.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

Illness, Injury and Medical Deportations at the Frontier: The Canadian Legal Regime for Health Care Protections for Agricultural Migrant Workers

This paper explores how health interests and rights play out in the temporary agricultural worker regime. In particular, it illustrates how a system that–as discussed below–is formally positioned as granting such workers the same rights as nationals, may not in practice provide equivalent or meaningful protections. The assessment is not just about the social exclusion challenges that often undermine the ability or possibility of migrant workers to activate their legal rights (which is the usual critique of why post-national citizenship writing is overly optimistic), but about how the legal and regulatory system itself misses the mark

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

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

Domestic Violence and Gender-Based Persecution: How Refugee Adjudicators Judge Women Seeking Refuge from Spousal Violence – And Why Reform is Needed

This report is an effort to address information gaps regarding how gendered claims are addressed by adjudicators at Canada’s Refugee Protection Division of the Immigration and Refugee Board of Canada (the RPD). It looks at one specific type of gendered claim: persecution through domestic or intimate violence. The study considers all the RPD decisions from 2004 to 2009 and judicial reviews from 2005 to 2009 that were reported in the Quicklaw LexisNexis service. These decisions are analyzed both quantitatively and qualitatively. This report finds adjudicators consistently identify domestic violence as a form of gendered persecution that can form a nexus to a convention ground. However, despite contrary directions from the Gender Guidelines, adjudicators often fail to recognize the social, cultural, economic, and psychological dynamics of domestic abuse as legally relevant for their assessment of state protection. There is a striking failure on this account when it comes to determining if it was reasonable to expect the claimant to seek state protection. This report presents data on factors such as the rates at which adjudicators consider the adequacy of women’s shelters and the responsiveness of local police to complaints. As well as identifying the frequency and grounds for which judicial reviews are granted, this report also presents a series of recommendations for reform. These recommendations identify where studies are needed, how the Gender Guidelines need reform to make them a helpful instrument, and how training and support for PRD adjudicators needs to be enhanced

The Governance of Indigenous Health

This chapter explores these dynamics of Indigenous health governance in Canada. It opens by describing how Indigenous peoples have successfully used constitutional arguments to assert their own vision of well-being, within the broader context of colonial oppression and attempts to erase Indigenous knowledge and culture. The chapter then tracks federal initiatives on Indigenous health, in their design and outcomes, and how they evolved into the contemporary state governance regime. The next part turns to provincial and self-government initiatives that have expanded, but also complicated, Indigenous health governance in Canada. The chapter closes by considering different ways in which provinces, territories and First Nations governments approach the regulation of traditional healers and midwives. In an effort to recognize the human lives at the centre of state governance regimes, the chapter embeds stories of Indigenous children, their health and lives, within its exploration of Canadian law and policy on Indigenous health