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      • HARVEST
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      The Sound of Silence: First Nations and British Columbia Emergency Management

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      KIRK-THESIS.pdf (1.737Mb)
      Date
      2015-10-05
      Author
      Kirk, Courtney
      Type
      Thesis
      Degree Level
      Masters
      Metadata
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      Abstract
      In this thesis I offer a brief overview of the current legislative, regulatory and treaty frameworks impacting emergency management in British Columbia, with a particular emphasis on Crown-identified First Nation roles. I show that the regime overwhelmingly positions non-First Nation governments, contractors and other organizations to manage emergencies on behalf of First Nations. I explore emergency management as a manifold process that includes protracted planning, mitigation and recovery phases, which, unlike emergency response, are carried out with lower levels of urgency. I consider Canadian Constitution Act, 1982 (s. 35) Aboriginal rights in light of the lack of statutorily prescribed inclusion of First Nations in off-reserve emergency management, particularly at the planning, mitigation and recovery phases concluding that the jurisprudence to date (including the duty to consult and Aboriginal title) does not appear to have revolutionized the regime. While the constitutional status of Aboriginal rights should operate to insure adequate First Nation direction in each stage of emergency management, the regime continues to restrictively prioritize other constitutional priorities, such as division of powers and civil liberties. To better understand the omission, I theorize the lack of Crown implementation of s. 35 Aboriginal rights generally as an ‘obligation gap’, highlighting how an analysis of s. 35 Aboriginal rights as ‘negative rights’ fails to compel implementation of the full scope of Crown obligations implicit within the jurisprudence to date. I then offer a new framework for s. 35 as justiciable ‘recognition rights’ and juxtapose ‘recognition rights’ with the idea of justiciability of government inaction through a brief comparative analysis of socioeconomic rights in South Africa’s constitution and Canada’s constitutional Aboriginal rights. With a decided emphasis on the obligations of the Crown, this thesis attempts to offer fodder to First Nations and legal practitioners seeking to challenge the emergency management landscape where First Nations seek an enhanced role in protecting and restoring their respective territories in anticipation of, and in the wake of, disaster. For convenience and clarity, contemporary geographical and jurisdictional references to the areas now known as Canada and British Columbia are used throughout the thesis without intention to detract from the integrity of First Nation claims to their traditional and ancestral territories.
      Degree
      Master of Laws (LL.M.)
      Department
      Law
      Program
      Law
      Supervisor
      Newman, Dwight G.
      Committee
      Hoehn, Felix; Carter, Mark
      Copyright Date
      August 2015
      URI
      http://hdl.handle.net/10388/ETD-2015-08-2241
      Subject
      emergency management
      First Nations
      Canada
      British Columbia
      Aboriginal rights
      negative rights
      recognition rights
      constitutional obligations
      Isaiah Berlin
      South Africa
      positive rights
      disaster
      recovery
      planning
      mitigation
      response
      disaster risk management
      risk assessment
      treaty
      local authority
      duty to consult
      duty to accommodate
      s. 35
      UNDRIP
      self-government
      self-determination
      honour of the Crown
      reconciliation
      Sendai Framework
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      • Graduate Theses and Dissertations
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