‘You can’t start with presupposed law’ for Indigenous engagement on end-of-life, LCO counsel says

By Amanda Jerome

Law360 Canada (May 18, 2023, 2:16 PM EDT) -- In a new approach to law reform, the Law Commission of Ontario’s (LCO) report on the last stages of life for First Nations emphasizes engagement with Indigenous peoples, highlighting their “experiences, values, culture, practices, and traditional laws.”

“This mosaic of experiences is recounted in the words spoken throughout this paper by 118 participants from Indigenous groups and communities across Ontario. Their words help establish a set of terms and approaches different and distinct from colonial law and policy. It creates space to critique, contest and de-colonize existing Canadian and Ontario law, and to think about new and different arrangements,” the LCO’s announcement of the report explained.

The LCO acknowledged that “it is only from this place of Indigenous self-definition, and through the revitalization of Indigenous laws and tradition, that the reform and creation of new law is possible.”

The Last Stages of Life for First Nation, Métis and Inuit Peoples: Preliminary Recommendations for Law Reform report, released May 9, identifies over 40 areas of potential law reform.

Ryan Fritsch, Law Commission of Ontario

Ryan Fritsch, Law Commission of Ontario

Ryan Fritsch, the project lead and counsel, noted that the LCO’s approach to engagement with Indigenous communities was grounded in the Truth and Reconciliation Commission of Canada’s call to action to “recognize, elevate, and integrate self-determined Indigenous legal orders and traditions within Canada's justice system.”

He explained that “almost all” of the LCO’s “law reform projects start from existing legislation.”

“There’s already law on the books, and we review those laws and look for gaps and ways to modernize those laws so they align with practices and expectations on the ground. If you take the Truth and Reconciliation Commission’s recommendation seriously, you can't do that. You can’t start with presupposed law because, for a lot of Indigenous communities, the pre-existing law is the colonial imposition,” he added, noting that for this project that had to start with a “blank slate.”

The LCO’s first step was to “convene a roundtable in 2018, where we brought together Indigenous elders, healers, chiefs, as well as Indigenous people working in health care, Indigenous lawyers, people leading Indigenous health-care institutions,” Fritsch explained.

The roundtable, held at the Law Society of Ontario, looked at palliative and end-of-life care as well as medical assistance in dying. The roundtable advised the LCO to speak to Indigenous communities about their traditions, cultural practices and Indigenous laws around end-of-life.

From that blank slate, the LCO started a conversation with Indigenous communities, asking them, “what’s of concern to you?”

Fritsch highlighted several areas of interest that came up in the consultation process, such as how Ontario's Health Care Consent Act has a “very Western, liberal, atomistic notion of what consent is,” describing it as a “my body, my choice” model. He noted that under that model, if a choice can’t be made by the individual, then a substitute decision maker, such as a family member, is called in.

“For a lot of the Indigenous communities we talked to, they said, ‘that’s just not how we think about it.’ For them, when someone is sick in their community, it’s a community issue. It’s the wellness of the community that needs to be taken into account as well as the wellness of the individual. So, it’s a much more collective and holistic decision-making model and that’s not reflected in the Health Care Consent Act at all,” he explained, noting this as an example of how “core health legislation” doesn’t make sense for Indigenous communities.

“It’s already an alien concept right from the beginning,” he added, noting that some Indigenous communities told the LCO that “when someone’s sick, we bring everyone together to talk about how the community is going to manage it and what it means to the community and how we can support this person.”

“It’s a much more collective form of decision-making that’s not really reflected at all in the core health-care consent legislation in Ontario,” he stressed, noting that another example that builds on this is the notion of a substitute decision-maker.

“If you actually look at the Health Care Consent Act, there’s a list, a hierarchy of substitute decision-makers,” Fritsch explained, emphasizing this, again, as a reflection of a Western system.

The hierarchy, he noted, usually goes through a list of family members who are granted decision-making power and then ends with the Office of the Public Guardian and Trustee.

“Well, for Indigenous communities, having the Public Guardian and Trustee, i.e. the government, make decisions for them when they’re most vulnerable and critically ill is kind of the worst thing that could happen,” he stressed, noting that it “reinscribes that colonial relationship.”

During consultation, the LCO heard that, for Indigenous communities, the substitute decision-making model is “totally different.”

“It’s collective. We make collective decisions, so we actually bring the whole community together,” Fritsch said, noting that he heard stories of how “if someone from community was sick in hospital, 20 people would come to support the person in hospital and help make decisions on their behalf, participate in their care.”

Another example in the report, he noted was the “troublesome” nature of the Education Act for end-of-life.

“For a lot of Indigenous communities, when someone is ill it’s actually the youth in the community who take care of the ill person. So, they might need a leave from school. Well, the Education Act would forbid that, and it would punish people for taking time off to take care of a sick loved one in the community,” Fritsch explained.

“All of these Western colonial approaches to health care are totally alienating Indigenous communities. And what our paper essentially tries to do is to give those communities an opportunity to share what their traditions, what their culture, what their values, what their beliefs, and what their traditional laws say about health care,” he said, emphasizing it as a different approach to law reform.

“On the whole, I think one thing that makes this report so different from other Law Commission of Ontario reports, is that our work always ends up in a set of pretty concrete recommendations for law reform, and we direct those at government and other institutions to update the law and modernize the law to better fit needs and current practices. This paper doesn’t actually make any recommendations at all,” Fritsch added, noting that instead the report identifies “promising directions for future conversations.”

The report, he said, maps out “intersections between the traditional culture, practices, values, beliefs and laws of Indigenous communities and the points at which those laws and values and beliefs intersect with Western law.” Those intersections, he added, are where the “promising opportunity for future conversations” take place.

The takeaway for the profession, Fritsch explained, is to “think about conversations with Indigenous clients and Indigenous communities as kind of a negotiation, negotiating between traditional Indigenous legal orders and the Western legal order.”

“You can’t presuppose the law,” he stressed, “if you take the Truth and Reconciliation Commission’s recommendation seriously. These are the kinds of conversations that you have to navigate those intersections between Indigenous and Western legal orders.”

If you have any information, story ideas or news tips for Law360 Canada, please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or 416-524-2152.