By Sarah Roussel-Lewis
From the passage of Bill C-10, with its punitive, tough-on-crime provisions, to sensationalist media accounts of dangerous ex-convicts, it is evident that Canada is a country that is taking an increasingly hard line on crime. The truth is, however, that the vast majority of prisoners who serve out their sentences do not re-offend, but rather reintegrate into society and never see the inside of a prison cell again. Why, then, is there such a lack of focus on successful resettlement — not only by politicians and journalists but also in criminology research?
Thomas Isaac highlights the most important aspects of Canadian law as it impacts on Aboriginal peoples and their relationship with the wider Canadian society. While covering important issues such as Aboriginal and treaty rights, constitutional issues, land claims, self-government, provincial and federal roles in dealing with Aboriginal peoples, the rights of the Métis, and the Indian Act, this book pays particular attention to the Crown’s duty to consult. In discussing the Crown’s duty to consult the author canvasses when and to whom the duty applies. He also highlights the role of governments in reconciling Aboriginal interests with the needs of Canadian society as a whole. The Supreme Court of Canada is clear that the objective of achieving reconciliation lies primarily with governments.
Continuing the theme of social determinants of health, this book is an historical examination of Canadian legal regimes and the negative impact they have had on the health of Aboriginal peoples. Everything from the early ban on traditional practices to the constitutional division of powers is examined (including who is responsible for off-reserve Indians under the Constitution). The author argues there is a clear connection between the health of individuals and the legal regime under which they live, and that our legal regime is one of the determinants of health. She contrasts the state of Aboriginal health in pre-contact days with their health today. The book provides comprehensive reviews of both health statistical data, historical practices aimed at Aboriginal peoples, and an analysis of legal principles that have developed in Canadian law as it applies to Aboriginal peoples. It outlines how commitments made by treaty and Supreme Court of Canada rulings on Aboriginal rights, the duty to consult, and the special constitutional status of Aboriginal peoples can be used to advance the health of Aboriginal peoples. The book concludes with a practical framework for the reconciliation of Aboriginal health and healing practices within Canadian society.
Since the release of The Duty to Consult in 2009, there have been many important developments on the duty, including three major Supreme Court of Canada decisions. Both the Supreme Court and lower courts have grappled with many questions they had not previously answered, and these very attempts have raised yet new questions. Governments, Aboriginal communities, and industry stakeholders have engaged with the duty to consult in new and probably unexpected ways, developing policy statements or practices that build upon the duty to consult, but often use it only as a starting point for different discussions. At the same time, evolving international legal norms have come to engage with the duty to consult in new ways that may have further impact in the future.
Professor Newman clarifies the duty to consult as a constitutional duty, offers some approaches to understanding the developing case law at a deeper and more principled level, and suggests possible future directions for the duty to consult in Canadian Aboriginal law. The duty to consult has a fundamental importance for all Canadians, yet misunderstandings of the doctrine remain widespread. This book will help address many of those misunderstandings.