The Sound of Silence: First Nations and British Columbia Emergency Management

• Main Author: Kirk, Courtney
• Other Authors: Newman, Dwight G., Hoehn, Felix, Carter, Mark
• Format: Thesis
• Language: English
• Published: 2015
• Subjects: emergency management; First Nations; Canada; British Columbia; Aboriginal rights; negative rights; recognition rights; constitutional obligations; Isaiah Berlin; South Africa; positive rights; disaster; recovery; planning; mitigation; response; disaster risk management; risk assessment; treaty; local authority; duty to consult; duty to accommodate; s. 35; UNDRIP; self-government; self-determination; honour of the Crown; reconciliation; Sendai Framework
• Online Access: http://hdl.handle.net/10388/ETD-2015-08-2241

In this thesis I offer a brief overview of the current legislative, regulatory and treaty frameworks impacting emergency management in British Columbia, with a particular emphasis on Crown-identified First Nation roles. I show that the regime overwhelmingly positions non-First Nation governments, contractors and other organizations to manage emergencies on behalf of First Nations. I explore emergency management as a manifold process that includes protracted planning, mitigation and recovery phases, which, unlike emergency response, are carried out with lower levels of urgency. I consider Canadian Constitution Act, 1982 (s. 35) Aboriginal rights in light of the lack of statutorily prescribed inclusion of First Nations in off-reserve emergency management, particularly at the planning, mitigation and recovery phases concluding that the jurisprudence to date (including the duty to consult and Aboriginal title) does not appear to have revolutionized the regime. While the constitutional status of Aboriginal rights should operate to insure adequate First Nation direction in each stage of emergency management, the regime continues to restrictively prioritize other constitutional priorities, such as division of powers and civil liberties. To better understand the omission, I theorize the lack of Crown implementation of s. 35 Aboriginal rights generally as an ‘obligation gap’, highlighting how an analysis of s. 35 Aboriginal rights as ‘negative rights’ fails to compel implementation of the full scope of Crown obligations implicit within the jurisprudence to date. I then offer a new framework for s. 35 as justiciable ‘recognition rights’ and juxtapose ‘recognition rights’ with the idea of justiciability of government inaction through a brief comparative analysis of socioeconomic rights in South Africa’s constitution and Canada’s constitutional Aboriginal rights. With a decided emphasis on the obligations of the Crown, this thesis attempts to offer fodder to First Nations and legal practitioners seeking to challenge the ...