First Nations, Métis and Inuit Health and the Law: A Framework for the Future

Abstract

First Nations, Métis and Inuit Health and the Law: A Framework for the Future charts the development of ill health from a formerly healthy, disease-free Aboriginal society pre-contact. However, because of historical factors and events, Aboriginal health was shaped through many Canadian laws, legislation and policies that were detrimental to not only the social fibre of Aboriginal people but to their physical health. Today, there is a stark difference between the health of Aboriginal people and non-Aboriginal people in Canada with alarming rates of chronic diseases and socio-economic ills. While health indicators, such as mortality and morbidity, are important – it is also equally important to look at economic measures that determine health outcomes as the basic needs of clean water, adequate and available housing, sewage, food security, environmental contaminants and access to basic health care services. These are services that the majority of Canadians take for granted. For these reasons, a study of Aboriginal health must reflect a holistic approach that considers the importance of key health determinants. In addition to the determinants that affect Aboriginal health it is important that other key factors are also examined for their particularly harmful effects on Aboriginal people (especially on Aboriginal women). These factors include (but are not limited to), historical epidemics and the intergenerational effects of poor nutrition and starvation, socioeconomic, geographical and environmental factors, colonization, residential schools, forced sterilization, drug experiments, the Indian Act and other laws that may not directly target Aboriginal people but the law‘s effect have proven devastating. It is proposed that the health of Aboriginal people has been shaped through Canadian laws, legislation and policies beginning with the early Crown/Aboriginal relationship. Early agreements and negotiation terms are explored regarding their promises that form the basis for the establishment of the Crown/Aboriginal fiduciary relationship that includes legally enforceable fiduciary obligations to provide access to quality health care. The assertion of Aboriginal rights and the signing of specific treaties, which deal with health care also reaffirmed this relationship. Unless the treaty expressly extinguished Aboriginal rights, anyone who possesses treaty rights also possesses Aboriginal rights (although not all people who possess Aboriginal rights also possess treaty rights). Aboriginal rights are inherent to all Aboriginal people in Canada and are passed down from generation to generation. They are derived from Aboriginal knowledge, heritage, and law. Traditional healing and health practices, medicines and medical applications for the prevention and promotion of good health are ways through which Aboriginal people manifest or express an inherent right to health. Aboriginal and treaty rights are entrenched in the Constitution Act, 1982. This thesis will examine why Aboriginal health is in crisis today while considering how the law can be used to bring the health status closer together – to help close the gap by discovering the reasons that there are gaps and to identify if any legal breaches are the cause. To achieve this, the rights that Aboriginal people possess are examined to highlight any breaches of the government‘s constitutional obligations towards Aboriginal peoples that may have contributed to the poor health outcomes. While concentrating on law, policy development and a review of other jurisdictions, First Nations, Métis and Inuit Health and the Law: A Framework for the Future explains how policies and laws can be reshaped into becoming useful tools for community and national development that will ultimately advance all realms of Aboriginal health and asserts that not only do Aboriginal people possess the same rights to health that all Canadians do, but also possess constitutionally entrenched Aboriginal and treaty rights to health. While accountability is important, so are solutions and recommendations for change. The aim of this work is to move the dialogue towards new ways to deal with old problems and offer hope for change and practical solutions that may provoke thought and real difference in the lives and generations of Aboriginal people to come.