Jurisdiction for Aboriginal health in Canada.

• Main Author: Craig, Barbara.
• Format: Thesis
• Language: unknown
• Published: Université d'Ottawa / University of Ottawa 1992
• Subjects: Law.; Canada; Indian; First Nations; inuit; Metis
• Online Access: https://dx.doi.org/10.20381/ruor-6925; http://www.ruor.uottawa.ca/handle/10393/7706

The purpose of this thesis is to determine which level of government has jurisdiction for Aboriginal$\sp1$ health in Canada--the federal or the provincial. As background to the consideration of jurisdiction for Aboriginal health in Canada, three things are examined: the existing legal and policy frameworks for Aboriginal health; the development of the delivery of health services to Aboriginal people; and the current health status of Aboriginal people in Canada. The distribution of exclusive legislative powers between the federal and provincial legislatures contained in sections 91 and 92 of the Constitution Act, 1987 is examined and the "peace, order and good government" power of the federal Parliament is considered. Legislative jurisdiction over health is considered. The extent of the federal power over "Indians, and Lands reserved for the Indians" as a result of subsection 91(24) of the Constitution Act, 1867 is explored. Parallels are drawn between labour relations and health jurisdictional issues, in an attempt to determine where legislative jurisdiction for Aboriginal health rests. The spending power of Parliament, the Crown-Indian treaty process and the nature of Indian treaties, and the fiduciary relationship between First Nations and the federal and provincial governments is examined. The final conclusion is that Aboriginal health is a double aspect matter, to which valid legislation of both levels of government can apply. Although there are spheres of exclusive provincial jurisdiction, e.g. regulation of health practitioners and hospitals, there is no exclusive federal sphere. However, the federal government does have concurrent jurisdiction with the provinces over the public health of Aboriginal people. The doctrine of paramountcy applies to give valid federal legislation pre-eminence over inconsistent provincial legislation. (Abstract shortened by UMI.) ftn$\sp1$In this thesis, the term "Aboriginal" is intended to have the same meaning it does in the Constitution Act, 1982, section 35. Section 35(2) states: "In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada." It is my submission that "Indian" as it is used in section 35 includes both status and non-status Indians.