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Abstract
The COVID-19 crisis has exposed the political and economic fault lines in the exercise of power across multiple jurisdictions. This article focuses on the power of First Nations to make enforceable decisions in respect to reserve lands, specifically the powers First Nations have to enforce public health restrictions during the pandemic. We argue that Canadian law both enables First Nations to assert decisionmaking in respect to their lands, and undermines Indigenous authority in relation to enforcement and intergovernmental status. This paper is part of the SPE Theme on the Political Economy of COVID-19.
Acknowledgements
We are grateful to Nicholas Decock, Osgoode JD (2020) for fantastic research under very trying conditions. We are also indebted to Angele Alook and Elaine Coburn for their excellent comments and suggestions. Many thanks to Ahmed Allahwala and Roger Keil for including us in their visionary collection. All omissions and errors are our own.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 “Indigenous Peoples” include First Nations, “bands” as defined by the Indian Act, Inuit, Métis, and other Indigenous Peoples affected by municipal planning decisions. “First Nations” refers to Indigenous governments. “Aboriginal” refers to Indigenous Peoples and their rights as identified under Canadian law.
2 Constitution Act, 1867.
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5 Fenn, “Biological Warfare”; Steele, Setting all the Captives Free.
6 Kelm, “British Columbia First Nations.”
7 Malone, “No Doubt Second Wave”; Government of Canada, What We Heard.
8 Canadian Civil Liberties Association, “Stay Off the Grass.”
9 Pasternak, “Jurisdiction and Settler Colonialism.”
10 Linden, Ipperwash Inquiry.
11 Canadian Press, “Saskatchewan Defends COVID-19 Checkpoints.”
12 Hartog, “Black Death Historian”; Olaya, “The Surprising Similarities”; Pamuk, “What the Great Pandemic Novels Teach Us.”
13 Harper, “Pandemics and Passages.”
14 Robbins, “A Comparison of the Effects.”
15 Alfani and Murphy, “Plague and Lethal Epidemics”; Newman, “Shutt up.”
16 Caferro, “Petrarch’s War,” 163; Henneman, “The Black Death.”
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19 Gordon, The Hero and the Historians; Jones, “The Matthew of Bristol, 791.”
20 Alfani and Murphy, “Plague and Lethal Epidemics”; Hackett, A Very Remarkable Sickness, 93.
21 Fenn, “Biological Warfare,” 1554; Hackett, “Averting Disaster,” 608.
22 Steele, Setting all the Captives Free, 187–88.
23 Bishop, Book Review, 311.
24 Podruchny and Labelle, “Wendat Voices,” 102; Carson, “Brébeuf,” 239–40, 242.
25 Daschuk, Clearing the Plains, 104.
26 Hackett, “Averting Disaster,” 233; Kelton, Cherokee Medicine, 6–7; Trigger, Natives and Newcomers, 245–46.
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28 Ibid.; Raphael, Poverty in Canada.
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30 Kelm, “British Columbia First Nations,” 47.
31 Putnam, “Canada Could Learn.”
32 Backhouse, Colour-Coded.
33 Truth and Reconciliation Commission of Canada.
34 Truth and Reconciliation Commission of Canada.
35 Daschuk, Clearing the Plains, 104.
36 Carter, Aboriginal People, 162–63.
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38 Council for Canadians, “Safe Water for First Nations”; Robertson, Reservations Are for Indians; Human Rights Watch, Make It Safe, 4.
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40 First Nations Child and Family Caring Society of Canada; Ballingall, “Ottawa Won’t Say.”
41 Lavoie et al., “Negotiating Barriers,” 306.
42 Tennant, “A Mountain of Power.”
43 Constitution Act, 1982.
44 Borrows, “Challenging Historical Frameworks,” 121.
45 Borrows, “Challenging Historical Frameworks,” 121.
46 Tsilhqot’in Nation v. British Columbia.
47 Faille and Brown, “COVID-19 and Indigenous Communities.”
48 Marshall McLuhan Collection, “Notice.”
49 Government of Canada, An Act to Amend the Indian Act.
50 Gamblin v. Norway House Cree Nation Band.
51 Gamblin v. Norway House Cree Nation Band.
52 An Act to Amend the Indian Act.
53 Metallic, “Indian Act By-Laws”; Marshall McLuhan Collection, “Notice.”
54 JvL, “Matsqui Trail Regional Park.”
55 Linden, Ipperwash Inquiry, 251–52.
56 Linden, Ipperwash Inquiry, 251–52.
57 Kurial, “Aamjiwnaang.”
58 Miller v. Mohawk Council Of Kahnawà:ke, 268.
59 Wiikwemkoong Unceded Territory.
60 Palmer, “Canada and BC”; Delgamuukw v British Columbia; Haida Nation v British Columbia (Minister of Forests); R v Sparrow; Taku River Tlingit First Nation v British Columbia; Tsilhqot’in Nation v British Columbia.
61 Lopshinsky, “Horse Lake.”
62 Staff reporter, “Sagkeeng First Nation.”
63 Kennedy, “Federal Government.”
64 Staff reporter, “Sagkeeng First Nation”; Condon, “Indigenous Leaders”; Kirkup and McLeod, “Are We a Top Priority?”; Robertson, “First Nation Puzzled.”
65 Attawapiskat First Nation v. Canada.
66 Dawson, “Traffic Chaos Erupts”; Deer, “Mohawk Communities”; Gill, “Costal Community Lockdowns.”
67 Gershon, “How Conservation.”
68 Ka:’yu:’k’t’h’/Che:k’tles7et’h’ First Nations.
69 Confidential correspondence.
70 Vipond, “1787 and 1867.”
71 Lawford et al., “This Policy Sucks.”
72 Canadian Press, “Saskatchewan Defends.”
73 Forester, “COVID-19 Situation”; Taylor [Noyes], “Meili Says”; Indigenous Corporate Training, Inc., “Dr Bonnie Henry.”
74 Banning, “Why are Indigenous Communities Seeing so few Cases of COVID-19?”
75 McDonald, “Which Services.”
76 Craft et al., “COVID-19.”
77 Faille and Brown, “COVID-19.”
78 Faille and Brown, “COVID-19.”
79 Saltman, “Protecting Communities.”
80 Haida Nation, “Non-resident Travel.”
81 North Coast Regional District, “Province Restricts Travel.”
82 Indian Act.
83 Indian Act Amendment and Replacement Act.
84 Faille and Brown, “COVID-19”; Indian Act, 81(1).
85 Shury, “Band Council Remote Decision-Making.”
86 Sowsun, “Solving the Indian Act.”
87 Poland, “RCMP Supports Thunderchild.”
88 Sowsun, “Solving the Indian Act.”
89 Sowsun, “Solving the Indian Act.”
90 Metallic, “Indian Act By-Laws.”
91 Government of Canada, “Coronavirus (COVID-19),” 2020.
92 Government of Canada, “Coronavirus (COVID-19),” 2021.
93 Richardson and Crawford, “COVID-19.”
94 Richardson and Crawford, “COVID-19.”
95 Kirkup and Fiddler, “Anxiety Grows.”
96 Craft et al., “COVID-19.”
97 Malone, “No Doubt Second Wave.”
98 Government of Canada, “Epidemiological Summary.”
99 Coburn, “Contrary to Sensational Reporting.”
100 Palmater, “First Nations.”
101 Richardson and Crawford, “COVID-19.”
102 Cambou, “The UNDRIP.”
103 Helmer, “Burden of Trust,” A4.
104 Risom, “Caribou Meat.”
105 Teillet, Submissions; Sinclair, “The Legal Industry.”
106 King, The Truth About Stories.
Additional information
Notes on contributors
Alexandra Flynn
Alexandra Flynn teaches in the Allard School of Law at the University of British Columbia in Vancouver, British Columbia, Canada.
Signa Daum Shanks
Signa Daum Shanks teaches in the Faculty of Law at the University of Ottawa in Ottawa, Ontario, Canada.