The relationship between aboriginal Canadians and non-aboriginal Canadians is never far from controversy. We’re like half-siblings, each of whom has a problem with the other’s perceived relationship with our common parent, the government.
Aboriginal Canadians, after centuries where neglect was the best they could hope for (as neglect is better than exploitation, which is in turn better than the treatment they actually got), are entitled to be suspicious of the federal and provincial governments. They’ve been mistreated for a very long time, and in fairly devastating ways.
Settler Canadians, on the other hand, don’t understand why aboriginal Canadians are complaining. They note the distinct fishing and hunting rights, the lack of taxation, and hear tales of free tuition, and think their aboriginal siblings have it easy.
So when an Ontario court decided that it would not require aboriginal parents to submit their child to chemotherapy for leukemia, Settler Canadians were outraged at the double standard. The courts have forced medical treatment on other Canadians, so why not aboriginals?
The problem here is that most Canadians don’t recognize the genuine legal difference between aboriginal groups and other Canadians. Dealings between Canadian governments (federal or provincial) and aboriginal groups are more like the dealings between nation-states than between governments of the same country.
Aboriginal status is like a second citizenship. So the better comparison is not with Jehovah’s Witnesses rejecting blood transfusions for themselves or their children. The right comparison is with the child of a diplomat, living in an embassy. Would it be acceptable for the government of Canada to invade an embassy in Ottawa to force medical treatment on the child of a foreign diplomat?
The honest answer to that question is, I’m not sure. Maybe it would be justified to spark an international incident to save a child from their well-intentioned but ignorant parents. Maybe it wouldn’t. What I am sure of is that it’s a more difficult question than whether to force medical treatment on another Canadian.
While aboriginal Canadians are still Canadians, the law requires that they’re treated like they’re not, like they’re the citizens of another state. That’s the promise made in the 1700s when the English took over Canada, and reaffirmed in s. 35 of the Constitution Act 1982. That’s the price we pay for civil peace, and for the social problems caused by centuries of oppression.
That said, I still think the Ontario decision was wrong. The relationship between the Canadian government and aboriginal Canadians is like the relationship between Canada and a different country, but a country to which we have a fiduciary duty.
A fiduciary relationship requires the fiduciary to act in the best interests of the beneficiary. In this case, the Canadian government is the fiduciary and aboriginal Canadians are the beneficiaries. This principle is the key one explaining why resource rights on aboriginal lands have to be used in the best interest of the band, and why governments can only restrict aboriginal hunting and fishing rights in the interest of preserving the resource.
That fiduciary relationship justifies exerting state control over a child when the child’s parents are making a grossly negligent decision. Snake oil, which is essentially what the parents are opting for here, is a grossly negligent decision when we’re talking about leukemia. Chemotherapy is terrible. Were it my son, I’d be in agony every time he was. But it’s still better than death.
So while the decision to remove an aboriginal child from her family is a more difficult decision, and requires a higher bar, than the decision to remove a non-aboriginal child from his or her family, it would still be the right decision in this case. Aboriginal Canadians are entitled to a certain level of deference, but to refuse life-saving medical treatment is an abuse of not only the child involved but the special status that I genuinely believe they deserve.
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