First Nations, Métis and Inuit Health and the Law: A Framework for the Future Yvonne Boyer Thesis submitted to the Faculty of Graduate and Postdoctoral Studies in partial fulfillment of the requirements of the LLD degree in Law Faculty of Law University of Ottawa ©Yvonne Boyer, Ottawa, Canada, 2011 First Nations, Métis and Inuit Health and the Law: A Framework for the Future Yvonne Boyer 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 ii 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. iii Acknowledgments I would like to thank the people who have generously given their support, and assistance to me in the preparation of this thesis. While they have made significant contributions to the dissertation, the contents remain solely my responsibility. My supervisors, Professor Larry Chartrand and Professor Bradford Morse, met with me several times and read through many drafts. They helped me make this thesis as good as I could get it. I am extremely grateful to them for their patience and assistance. Thank you to Dean Gary Slater, Nicole LaPlante and Florence Downing. I also greatly appreciate the efforts of my examining committee, Professor Fern Brunger, Professor Ravi Maholtra, Professor Sophie Thériault, Professor Brenda MacDougall. Thank you to Wanda McCaslin, Denise Breton, Kurtis Boyer and Erin Fletcher for their assistance in the preparation of this dissertation. If it hadn‘t of been for the support of Anisnabe Kekendazone, Ottawa (ACADRE) and the National Aboriginal Achievement Foundation, it is unlikely I could have completed this work, I sincerely thank them for this. I want to thank three of my incredible role models for their contributions and inspirations in my life-long learning, Dr. Joan Boyer, Dr. Gail Valaskakis and the Honorable Mary Ellen Turpel- Lafond. I appreciate the on-going support that my husband Marv Fletcher has provided as well as my four children, Kyle, Kurt, Erin and Jade and my also large extended family. Yvonne Boyer, 2011 iv First Nations, Métis and Inuit Health and the Law: A Framework for the Future Abstract ii Acknowledgments iv Table of Contents v TABLE OF CONTENTS Introduction 1 1. Demographics, Who are the Aboriginal People in Canada? 8 2. Health Determinants 15 2.1 Socioeconomic Factors 16 2.1.1 Poverty 19 2.1.2 Shelter and Housing, Overcrowding 21 2.1.3 Substandard Housing 23 2.1.4 Water Quality 26 2.2 Geographical Factors 29 2.2.1 Access to Quality Health Care 29 2.3 Environmental Factors 31 2.4 Colonialism as a Determinant of Health 34 2.5 Summary 40 3. Current State of Aboriginal Health 42 3.1 Aboriginal Health Statistics 42 3.2 Health of Aboriginal Women 47 3.3 Mental Health 49 3.4 Chronic Diseases 50 3.5 Cardiovascular Disease 53 3.6 Tuberculosis 54 3.7 HIV/AIDS and Hepatitis C 55 3.8 Summary 60 4. Aboriginal Society and Good Health 62 4.1 Aboriginal Women: Balance of Healing 62 4.1.1 Women as Healers 66 4.2 Health and Healing Practices 71 4.2.1 The Sweatlodge 76 4.2.2 Conjurors and Jugglers 79 4.2.3 Sucking Doctors 81 4.2.4 Botanical Cures 82 4.2.5 Other Remarkable Cures 85 4,2.6 Shaking Tent 87 4.2.7 Pau wau 88 4.3 The Medewiwin 89 4.4 Métis Healing 93 4.5 Inuit Healing 98 4.5.1The Inuit Sled Dog and Healing 103 v 4.5.2The Connection to Human Health 108 4.6 Summary 112 5. Historical Health Influences 114 5.1 Historical Determinants of Health 114 5.1.1 Epidemics 114 i) Tuberculosis in Residential Schools 119 ii) Tuberculosis Treatment 123 5.1.2 Nutrition 130 i) Hunger, Starvation, Disease and Death 132 a) A Case Study of Scurvy 136 ii) Residential School Hunger 137 5.1.3 Genetic Changes Due to Nutritional Deficiency 139 i) The Dutch Hunger Winter Families Study 142 ii) Aboriginal Diets – Dr. Jay Wortman 145 5.1.4 Summary 146 5.2 How Federal Government Policies Affect Aboriginal Health 148 5.2.1 Provision of Health Services 151 i) National Organizations Related to Aboriginal Health 159 ii) The National Aboriginal Organizations 163 iii) Midwifery and Traditional and Western Medicine 165 iv) Status of Midwifery in Canada for Aboriginal Women 166 5.2.2 Residential Schools 172 i) History of the Residential School System 173 ii) Life in the Residential School 176 iii) Abuse in the Residential School System 178 5.2.3 Forced Sterilization 181 i) Aboriginal People and Eugenics 186 ii) Institutional Eugenics 188 iii) Summary 196 5.2.4 Experiments 197 i) Dorothy Proctor 198 5.2.5 Murdered and Missing Women 201 5.3 Summary 205 6. The Law is a Determinant of Health 206 6.1 Why is the Constitution a Determinant of Health? 208 6.1.1 Federal Powers Applicable to Aboriginal Health 216 6.1.2 Provincial Powers Applicable to Aboriginal Health 219 6.1.3 Jurisdiction Conflicts 222 6.1.4 Does Aboriginal Health Have Charter Protections? 232 6.2 Legislation 236 6.2.1 The Indian Act 236 6.2.2 The Criminal Code of Canada 246 6.3 Legal Issues Affecting Traditional Practices 257 6.3.1 Codex Alimentarius and Bill C-36 265 6.3.2 Regulation of Health Professionals 268 6.4 Summary 270 7. Aboriginal and Treaty Rights to Health 273 vi 7.1 Aboriginal Rights to Health 273 7.1.1 Aboriginal and Treaty Rights Tests as Applied to Aboriginal Health 288 7.2 Treaty Rights to Health and Healing 295 7.2.1 Interpretive principles 302 7.2.2 Protection and Non-interference 305 7.2.3 Medicine and Medical Care 307 7.2.4 Pestilence and Famine, Sickness and Disease 307 7.2.5 Judicial Interpretations of the Treaty Right to Medicine and Health Care 309 7.2.6 Interpretation of Treaties 313 i) Canada, Health Canada 313 ii) First Nation Organizations 315 7.3 Analysis Summary 319 8.