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The International Right to Health for Indigenous Peoples in Canada Yvonne Boyer October 2004

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The International Right to Health for Indigenous Peoples in Canada Yvonne Boyer October 2004 National Aboriginal Health Organization DISCUSSION PAPER SERIES IN ABORIGINAL HEALTH: LEGAL ISSUES No. 3 The International Right to Health for Indigenous Peoples in Canada Yvonne Boyer October 2004 Native Law Centre • University of Saskatchewan © National Aboriginal Health Organization National Aboriginal Health Organization (NAHO) 130 Albert Street Ottawa, Ontario K1P 5G4 website: http://www.naho.ca Native Law Centre University of Saskatchewan 101 Diefenbaker Place Saskatoon, Saskatchewan S7N 5B8 website: http://www.usask.ca/nativelaw The author is a Legal and Policy Advisor with NAHO. The author is grateful to Sákéj Youngblood Henderson for his contributions to this paper. The author would also like to thank Linda Cree, Susan Haslip, Dr. Peggy Blair, Celeste McKay, Suki Beavers, Johanna Lazore and Elle Dingwall for their valuable assistance. This Discussion Paper Series is jointly published by NAHO and the Native Law Centre, University of Saskatchewan. The views expressed in this Discussion Paper Series do not necessarily reflect those of the Native Law Centre. ISSN 1707-1933 Table of Contents Executive Summary 5 Introduction 7 1Significance of a Rights-Based Approach to Health 9 2 The International Right to Health for Indigenous Peoples 12 2.1 United Nations Working Group on Indigenous Populations 12 2.2 Draft Declaration on the Rights of Indigenous Peoples 13 2.3 Convention (No. 169) of the International Labour Organization 14 2.4 International Decade of the World’s Indigenous People 15 2.5 Geneva Declaration on the Health and Survival of Indigenous Peoples 17 2.6 Permanent Forum on Indigenous Issues 17 2.7 Appointment of a Special Rapporteur 18 3 The Environment and Indigenous Health 19 4. Canada’s Obligations to Implement the Right to Health for Indigenous Peoples in Canada 22 Conclusion 27 Notes 28 Bibliography 36 NAHO Discussion Paper Series • No. 3 • September 2004 3 Executive Summary The United Nations framework of treaties and covenants guarantees equality rights, self-determination of peoples, respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, religion and conditions of economic and social progress and development.1 These are basic rights that all human beings share. Health is also a basic human right, appearing in a variety of United Nations instruments or conventions that comprise the United Nations framework of rights. The right to health includes the right to health care and encompasses the right to a culturally appropriate health care system. As with other human rights, the right to health is particularly concerned with the disadvantaged and the vulnerable while confirming standards of equality and non-discrimination. State obligations to fulfill the right to health are monitored by human rights bodies. Canada, as signatory to a number of international treaties and covenants, has acknowledged the importance of health to the well-being of Indigenous peoples2 and recognized Indigenous peoples have a right to health in international law. Domestically, Canada has formally entrenched existing Aboriginal and treaty rights (which, arguably, includes the right to health) in Canada’s Constitution.3 The difficulty lies in the fact that the health status of Indigenous peoples in Canada (who, at a minimum, are entitled to the same standard of health and delivery of health services as all other Canadians) continues to fall well below that of the general population. Clearly, Canada’s international and domestic obligations are not being fulfilled. NAHO Discussion Paper Series • No. 3 • September 2004 5 Introduction In 1946 the World Health Organization (WHO) adopted a broad definition of health, transforming the analysis of health from an “absence of disease” model to one that encompasses “[a] state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”4 The emergence of the WHO definition “defined an integrated approach linking together all the factors related to human well-being, including physical and social surroundings conducive to good health.”5 Indigenous peoples have always understood and practiced an integrated approach to health. The centrality of health to the total well-being of Indigenous peoples in Canada is summarized by the Royal Commission on Aboriginal Peoples (RCAP): In the imagery common to many Aboriginal cultures, good health is a state of balance and harmony involving body, mind, emotions and spirit. It links each person to family, community and the earth in a circle of dependence and interdependence, described by some in the language of the Medicine Wheel. In non-Aboriginal terms, health has been seen primarily as an outcome of medical care. But we are quickly learning that any care system that reduces its definition of health to the absence of disease and disability is deeply flawed.6 By all health status indicators, Indigenous peoples in Canada suffer a disparaging health status compared to the non-Indigenous population.7 For instance, the life span of First Nations and Inuit is five to ten years less than the Canadian average.8 Inuit infant mortality rates are triple the Canadian average. Suicide rates for on-reserve First Nations people are twice the national rate, while the Inuit rate is six times the national rate.9 Indigenous peoples in Canada also suffer a greater incidence of ill health throughout their lifespan when compared with non-Indigenous Canadians. This is evidenced by higher rates of chronic and infectious diseases as well as obesity among Indigenous people. The prevalence of diabetes among First Nations is three times the national average10 and the tuberculosis rates for Inuit are three times higher than First Nations and seventy times the rate of non-Indigenous Canadians.11 This inequality in health status is difficult to reconcile with the fact that the right to health is part of the broader scope of human rights validated by both the United Nations and Canada (as signatory) through various international instruments. Canada has ratified a number of United Nations (UN) treaties that confirm the human rights of its citizens, including the right to life.12 Article 6 of the International Covenant on Civil and NAHO Discussion Paper Series • No. 3 • September 2004 7 Political Rights (ICCPR) states “[e]very human being has the inherent right to life.”13 According to the United Nations Human Rights Committee, the right to life is “the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation.”14 Although the right to life is often equated with protection against arbitrary deprivation of life, the General Comment of the Human Rights Committee notes “[i]t is a right which should not be interpreted narrowly.”15 The Human Rights Committee interprets the right to life as requiring States to undertake positive measures to ensure the broadest possible protection of this right.16 Through the signing of the Charter of the United Nations,17 Canada agreed to promote human rights and to solve international health problems.18 In agreeing to the Constitution of the World Health Organization (1946), Canada promised to seek “the enjoyment of the highest attainable standard of health [as] one of the fundamental rights of every human being.”19 Canada has also affirmed the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health,”20 and accepted that recognition of the right to health is accompanied by the corresponding establishment of a legal obligation to fulfill this right.21 This paper will examine the right to health in international law and will demonstrate the significance of international laws for protecting and advancing the right to health of Indigenous peoples in Canada. Part I will discuss the significance of a rights-based approach to health. Part II will provide an overview of relevant instruments and international processes in which Indigenous peoples are participating. Part III will look at the relationship between the environment and health. Canada’s obligations to implement the right to health for Indigenous peoples based on international law will be considered in Part IV. 8 NAHO Discussion Paper Series • No. 3 • September 2004 1Significance of a Rights-Based Approach to Health A rights-based approach is important when examining a right to health. Distinguished legal scholar Virginia Leary states that there are many international instruments and agreements that recognize this right, although the specific ‘right to health’ language varies.22 For instance, the Alma Ata Declaration on Primary Health Care provides that “[t]he people have the right and duty to participate individually and collectively in the planning and implementation of their health care.”23 Leary notes that human rights and health care are intertwined; “[p]articipation of individuals and groups in matters that affect them is essential to the protection of all human rights.”24 Not only is the principle of equality critical to understanding the rights perspective in the context of international law, but equal treatment is the fundamental basis of all human rights. This is affirmed through several international agreements. For instance, the Universal Declaration of Human Rights (UDHR) refers to “the dignity and worth of the human person and the equal rights of men and women.”25 Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognizes “… the right of everyone to the
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