Innovative Health Zone Position Paper (Draft)
Towards Establishing A Biotech Research Hub and Clinic on a(n) Indian Reserve(s) in British Columbia, Canada
Indian Reserves are separate jurisdictions with their own governments. There are complexities to the situation, but that works to our advantage. The autonomy of a nation of native people is very much an unresolved issue. Opinions and legal arguments currently range widely from the same amount of autonomy as a municipality to fully sovereign countries. (See Janice Switlo's Opinion, "trick or treaty" - here: http://sisis.nativeweb.org/clark/switlo.html )
The federal government has tried since the era of the Previous Trudeau Government's "White Paper Policy" crafted by Indian Affairs Minister Jean Chretien -- since at least 1969 to convert native nations into basically municipalities just like all the other municipalities except the mayor's title is "chief" instead of "mayor." This effort has not been successful, and is still ongoing. (See the work of Russ Diabo - AFN Strategist and former advisor to AFN National Chief's Offices)
The current is clearly moving in the other direction. Court cases continue to slowly drive change in the direction of more power and autonomy for native nations. This has been a consistent trend for many decades. The reason Canadian courts keep ruling in favour of the natives is that the natives are right. Their rights have been violated and continue to be violated. The government has used its power to get its way for well over a century and a half, but the argument for whether such government actions are legal is pathetically weak. They were not legal. They were not legal under the laws of the native nations, they were not legal under international law, they were not legal under British law, and they were not legal Canadian law.
The Canadian government is aware of this. That is the reason they are trying to resolve the issue by negotiating treaties with the native nations. The British Columbia Treaty Commission (BCTC) has been organizing treaty negotiations between the crown and the native nations since 1992. Very few native nations have agreed to any treaties. The treaties are an effort by the government to get natives to give up their rights, their lands, their territorial waters, and their sovereignty without ever acknowledging that they have any of that to begin with. The treaties will only define what they have left -- something like the powers of a municipal government -- and pay them an amount of money that is a tiny fraction of the value of what they are asked to give up. Not surprisingly, natives have been very unwilling to go along with this.
During the three decades that treaty negotiations under the BCTC process, the situation has changed drastically. New court decisions, such as Tsilhqot'in Nation v. British Columbia (in 2014) have again gone further in recognizing native rights than ever before. Perhaps more significant is that in 2015, Canada finally accepted the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP). After a few more years, they passed legislation at the federal and provincial levels to implement UNDRIP. The implementing legislation pretty much says that all existing laws have to give way to native rights as specified in UNDRIP. What's especially important about that is that UNDRIP explicitly states that native nations have the right manage their own affairs and the right to "self-determination." As you may know, it is an uncontroversial point of international law that self-determination means the right to decide whether to be part of one country or another, or to secede and have your own country. The government has used various techniques to try to prevent natives from even understanding that they have that option. Actual secession is not necessary to achieve native objectives because threatening to do that should be sufficient to get Canada to give native nations all the autonomy they want. So long as the natives are, of course, not bluffing. Canadians generally do not think natives have that option or could effectively exercise it if they do. The most common derisive comment from non-natives to the idea of native sovereignty is to ask, "What are they going to do, have their own money?" and then laugh. They think that it would be impossible for natives to have a currency of their own that works.
Thanks to our efforts, Cowichan Tribes does have a separate currency that works and was used to fund 17 Hul’q’umi’num’ language classes over a span of 3 years, but most non-natives are dismissive of that as well -- the few who even know about it.
So the situation is not at all the same as a country that already has fully recognized sovereignty and UN membership. If you have a jurisdiction like that which is also politically stable, sufficiently technologically advanced, geographically convenient, etc., obviously such a place would be preferable. But if you don't have that, and you want a place that is right next to the United States, where everyone speaks English, where the infrastructure and technology level is that of Canada, then Indian Reserves in Canada have great potential.
In addition to the more recent UNDRIP legislation, native rights to autonomy have been recognized for centuries in the Royal Proclamation of 1763 which is still the law in Canada. Section 25 of the Canadian Constitution specifically says so. Section 25 and 35 also both say that all existing native rights and treaty rights are affirmed.
Exactly how the flagrant and continuing violations of the Royal Proclamation of 1763 should be resolved is both a legal and political issue and there is huge and economically damaging uncertainty. The point of the modern treaty negotiations is to resolve this by minimizing native rights and perhaps abolishing the crown's liabilities for past actions.
The law is a lot more clear on another matter that is directly relevant to the regulatory environment on Indian Reserves. The main source of business and medical regulations is the provincial governments, not the federal government. Up until 1983, provincial governments did not have jurisdiction on Indian Reserves. The only reason they claim to have jurisdiction now is because of an amendment to a Canadian federal law called the Indian Act. Section 88 of the Indian Act gives provinces jurisdiction on Indian Reserves, but only if their legislation does not conflict with a list of things which can pre-empt it. The list includes aboriginal rights, several pieces of federal legislation, and any rules or laws created by the governments of the Indian Reserves pursuant to the Indian Act.
This particular provision seems to allow any Chief and Council of any Indian Band, to pass a band council resolution by a simple majority vote that establishes their own regulations -- which could be minimal -- and thereby "occupy the field of regulation" as I've heard it described in another context. The actual wording is as follows. Note that the word "band" here refers to an "Indian Band", the legal term for the government of an Indian Reserve and its constituents. They are sometimes also called "First Nations."
Subject to the terms of any treaty and any other Act of parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provisions made by or under those Acts.
Section 81 of the Indian Act lists some of the powers of an Indian Band government. The first one on the list, includes, "to provide for the health of residents on the reserve."
Obviously a legal opinion from an attorney is needed, but it definitely seems that an Indian band council could pass a resolution imposing minimal regulations on medical research and use of the findings of such research in medical treatments. Since the Indian Act, (Sec. 81) authorizes them to do so, they would thereby be making a provision for the matter of medical research. This would be a "provision made under the Indian Act". The Indian Act is one of the Acts Section 88 refers to when it says at the end, "any matter for which provisions made by or under those Acts." The council is using its powers under the Indian Act. This appears to be exactly the situation that would cause any provincial laws to be inapplicable if they are "inconsistent with" any "order, rule, regulation or law of a band made under those Acts."
An Indian band council could specifically include wording indicating that its intention is to occupy the entire field of law relating to this "matter" and thereby pre-empt any provincial regulation in the medical field. Or just medical research. Or just some medical research. Whatever they choose to do. The exact nature of the regulations could be negotiated with the band council. There might even be a contract that specifies that the band would be liable for reimbursement of medical research groups' entire investment on the reserve plus additional damages if they pass additional regulations that add additional restrictions or if they remove the provisions that pre-empt provincial law.
But the law is one thing and the situation on Canadian Indian Reserves is often determined by political realities. This is because there is so much ambiguity as to the extent of aboriginal rights. It is also because aboriginal people have often engaged in political protests and the government wants to avoid further protests. These are not just protests where people carry signs. It has been commonplace at times for native activists to block roads, occupy government offices, and block ferry terminals. At least once, there was a nationwide effort to organize "blockades" of transportation infrastructure by native activists.
There really should be no question that the right to control matters related to the health of residents of an Indian Reserve is within the existing framework of autonomy for First Nations. I expect a lawyer will confirm in a legal opinion that this right can preclude provincial jurisdiction on this matter if an appropriately worded band council resolution is passed.
Beyond that, though, there is the issue of whether the political realities will be such that the government will try to find a way to exert having the appropriate federal minister veto the band council resolution or by amending the Indian Act. First Nations in Canada have considerable political power. Not only because of the ability to impose blockades that disrupt transportation, and the ability to sue in court and eventually win, but also because a large portion of the population of Canada views negatively any government that provokes such problems. Canadians want "reconciliation" with the First Nations. That's why seemingly every politician claims to be in favor of it, though their deeds don't match their words.
If we put it all together, we have native people with their own jurisdictions that appear to have sufficient autonomy under existing law to allow medical research and innovative medical treatments without the need for approval from any other regulatory authority. They also have the ability to assert greater autonomy without limit under existing federal, provincial and international law. They also have the actual political muscle to have a very good chance of winning any political confrontation with the federal or provincial governments if it is an issue that First Nations people care about a lot.
These are like pieces of a puzzle that can be assembled to create a legal and political reality that First Nations are allowed to do this.
Getting that puzzle assembled will require first, a legal opinion from a specialist law firm that confirms what we think the law says. Next, it will be necessary to get one of the 600 or so Indian bands in Canada to agree to this and pass an appropriate band council resolution. It would be a good idea to have a public relations and government relations effort to influence the non-native politicians and public. Lastly, it will be necessary to have strong support of First Nations people. Obviously some support it now, but it would be preferable to have an entire Indian band supporting this, or more than one band. They have to care enough to make it clear to the government that if the government tries to stop this project, that the First Nations will fight them in the media, they will fight them with blockades, and they will fight them in the courts and win. That's a fight the government will probably back down from. Especially since it costs them nothing to let this project succeed. In fact, the technologies developed would likely make the Canadian government's health care system far more affordable if it reduces the enormous costs now incurred in treating the diseases of old age.
I generally think the direction of this is positive. My reservations are related to the issues we have with medical ethics, especially around pharma research. We’re all aware of the trickery surrounding Covid vaxx and the power of whoever holds the research purse strings.
Thanks, I love it, sharing with friends.