COVID-19 And Indigenous Communities: Authority To Restrict Access

• Published date: 12 May 2020
• Author: Mr Maxime Faille and Keith Brown
• Subject Matter: Government, Public Sector, Coronavirus (COVID-19), Indigenous Peoples, Government Measures, Operational Impacts and Strategy
• Law Firm: Gowling WLG

Summary:

• Indigenous communities are uniquely vulnerable to the COVID-19 pandemic due to their general remoteness, inadequate healthcare infrastructure, overcrowded and poor housing conditions, as well as greater community and inter-generational contact;
• In the face of those vulnerabilities many have taken steps to restrict access to their communities;
• Measures include advisories and by-laws under the Indian Act;
• An advisory has the benefit of flexibility and expedience, while a by-law has the benefit of being legally enforceable;
• It is likely that a Band Council Resolution ("BCR") alone is not sufficient authority to restrict access;
• For those First Nations that have removed themselves in whole or in part from the Indian Act - through opt-in legislation, modern treaty and/or self-government agreements - those mechanisms typically provide the necessary authority to restrict access to lands;
• Aboriginal title also provides a source of authority to control use and access to lands Inherent Aboriginal rights can also be invoked, but may not be necessary given the availability of other means described above.

Introduction: Unique Risks and Challenges Faced by Indigenous Communities

Many Indigenous communities have begun restricting access to their communities in an attempt to reduce the spread of COVID-19, including by refusing entry to all visitors other than essential workers (for a recap of certain restrictions by Indigenous communities in British Columbia, see here).

While the outright barring of visitors to communities is a drastic measure, it is one necessitated by the unique vulnerability of many Indigenous communities, due to such factors as remoteness inadequate health care infrastructure (itself a significant and pressing matter to be reconciled, even in the best of times), significant overcrowding within many Indigenous households.¹ In addition to overcrowding, poor housing conditions - endemic in many Indigenous communities - have been associated with increased risk of the spread of infectious and respiratory diseases.²

Certain longstanding and ordinarily beneficial hallmarks of Indigenous communities also create added exposure and risk in the face of a highly contagious virus: strong community and, in particular, familial ties. These factors result, generally, in a much greater level of social interaction and of inter-generational contact than in most non-Indigenous communities - something that represents a unique challenge given the particular vulnerability of the elderly to COVID-19, and the growing awareness of asymptomatic carriers of the virus.

The current crisis...