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3.1 Aboriginal Healers and Traditional Medicine
- 3.1.1. Background
- 3.1.2. Indian Act Governance
- 3.1.3. Sectoral Governance Initiatives
- 3.1.4. Comprehensive Governance Arrangements
- 3.1.4.1. Comprehensive Governance Arrangement – Comparative Charts
- 3.1.5. BC First Nations’ Laws/By-laws in Force and Other Activities
- 3.1.6. Resources
3.1.1. Background
Jurisdiction over Aboriginal healers and traditional medicine is an offshoot of the jurisdiction over healthcare. Canada has generally been unwilling to recognize broad First Nation jurisdiction over health, although many First Nations are considering the merits of assuming jurisdiction in this large area. There is agreement among First Nations that have negotiated comprehensive governance arrangements that First Nations should have jurisdiction in respect of Aboriginal healers and traditional medicine, as this is integral to the distinctive culture of the First Nation. This subject is also related to the intellectual property and knowledge of our peoples concerning traditional medicine. This aspect of jurisdiction is mentioned in Section 3.16 - Heritage and Culture and Section 3.21 – Licensing, Regulation and Operation of Businesses.
To date, there are no examples of First Nation laws addressing Aboriginal healers and traditional medicine, but it is expected that our Nations will exercise jurisdiction in this area in due course. There is a growing trend for society generally to embrace Indigenous knowledge and alternative methods of healing different from those associated with “Western culture”. Canada does not view this jurisdiction as extending to the regulation of products or substances regulated under provincial or federal law or to affect the regulation of medical or health practitioners requiring licensing or certification under provincial law.
The issue of potential conflict between First Nation and Canadian laws will necessarily arise. Canada sees federal and provincial laws prevailing in this area to the extent of a conflict. However, under existing comprehensive governance arrangements, including Nisga’a and Westbank, Nisga’a and Westbank laws prevail.
Some commentators suggest that with respect to this jurisdiction a First Nation may wish to consider whether it is better to formalize arrangements in a law or just leave them as an unregulated traditional practice that could be protected as an Aboriginal right if necessary. The whole issue of traditional medicines and Indigenous rights has been central to discussions being undertaken through the United Nations and the World Intellectual Property Organization (WIPO), which is considering a possible “instrument or instruments” to protect traditional knowledge, folklore and genetic resources. This work is ongoing.
3.1.2. Indian Act Governance
Section 81(1)(a) provides by-law-making powers for a First Nation to provide for the health of residents on-reserve and to prevent the spread of contagious diseases. A few by-laws have been made under s. 81(1)(a) in relation to health but none, to the best of our knowledge, in relation to traditional medicine. While this jurisdiction is quite broad, it remains to be seen whether the Minister would disallow a significant by-law made by a First Nation under this authority.
3.1.3. Sectoral Governance Initiatives
There is currently no specific sectoral initiative dealing with jurisdiction over Aboriginal healers or traditional medicine. The proper recognition of Aboriginal healers and medicine and First Nation jurisdiction is a matter that has been raised through the Assembly of First Nations and in many other forums, domestic and international (see section 3.16 – Heritage and Culture for further discussion). These matters could also be discussed in the broader context of healthcare and the potential transfer of responsibility for/jurisdiction over healthcare in BC to First Nations through the First Nations Health Council.
3.1.4. Comprehensive Governance Arrangements
The Westbank First Nation Self-Government Agreement recognizes Westbank‘s jurisdiction over the practice and practitioners of traditional Okanagan medicine on Westbank Lands. The Nisga’a Nation Final Agreement and Tsawwassen First Nation Final Agreement recognize First Nation jurisdiction over authorization of individuals to practise on First Nation land as Aboriginal leaders. Both the Maa-nulth and Sechelt agreements are silent on this issue, although Sechelt Indian Band has broad powers over health, which presumably would include the regulation of Aboriginal healers and traditional medicine.
3.1.4.1. – Comprehensive Governance Arrangement - Comparative Charts
| General Jurisdiction: | |
Sechelt |
No provisions |
Westbank |
The regulation of the practise (and practitioners) of traditional Okanagan medicine on Westbank Lands. Does not include the jurisdiction to regulate products or substances that are regulated under provincial or federal laws or affect the regulation of health practitioners that require licencing. (Part XVII, ss191-192) |
Nisga’a |
Nisga’a Lisims Government may make laws in respect of Aboriginal healers. These laws must include measures in respect of competence, ethics and quality of practice. Does not include the jurisdiction to regulate products or substances that are regulated under provincial or federal laws. (Ch. 11, ss. 86 & 88) |
Tsawwassen |
Tsawwassen Government may make laws in respect of Aboriginal healers. These laws must include measures in respect of competence, ethics and quality of practice. Does not include the jurisdiction to regulate products or substances that are regulated under provincial or federal laws or affect regulation of health practitioners that requires licencing. (Ch. 16, ss. 84-86) |
Maa-nulth |
No provisions |
| Conflict of Laws: | |
Sechelt |
No provisions |
Westbank |
Westbank law prevails.(Part XVII, s. 193) |
Nisga’a |
Nisga’a law prevails.(Ch. 11, s. 87) |
Tsawwassen |
Tsawwassen law prevails. (Ch. 16, s. 87) |
Maa-nulth |
No provisions |
3.1.5. BC First Nations’ Laws/By-laws in Force and Other Activities
There is currently no specific BC First Nations' Laws/By-laws or other activities dealing with jurisdiction over Aboriginal healers or traditional medicine.
3.1.6. Resources
- World Intellectual Property Organization (WIPO)
34, chemin des Colombettes
CH-1211 Geneva 20, Switzerland
www.wipo.int
- First Nations Health Council
#1205-100 Park Royal South
West Vancouver, BC V7T 1A2
Phone: 604.913.2080
Fax: 604.913.2081
Toll Free: 1.866.913.0033
info@fnhc.ca
• FNHC – Traditional Medicine Webpage
• First Nations Traditional Models of Wellness [Traditional Medicines and Practices] Environmental Scan In British Columbia – March 2010 ©FN Health Society - Summary - Full Report
- Assembly of First Nations – Health
Trebla Building
Suite 900, 473 Albert Street
Ottawa, ON K1R 5B4
Phone: 613-241-6789
Toll Free: 1-866-869-6789
Fax: 613-241-5808
www.afn.ca
