Page - 49 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

CHAPTER A-2 COVID-19 and First Nations’ Responses Aimée Craft,* Deborah McGregor,** and Jeffery Hewitt*** Abstract This chapter considers the federal government’s fettering of jurisdiction through inaction in the areas of clean water and housing. We consider a small sample of First Nations’ responses, taken on the basis of their assertions of jurisdiction and responses to the particular needs and cir- cumstances of their communities. We conclude that First Nations are best positioned to make policy and law in response to COVID-19, and that the federal government can and must work with First Nations communi- ties on resourcing their plans for wellness and emergency preparedness in relation to the pandemic, in accordance with a sui  generis application of the constitutional principle of subsidiarity in conjunction with other constitutional obligations such as the fiduciary duty of the Crown and its duty to act honourably. This chapter is contextualized by the theme of self-determination in Indigenous health, s. 35 of the Constitution Act, and the United  Nations  Declaration  on  the  Rights  of  Indigenous  Peoples. * Associate Professor at the Faculty of Common Law, University of Ottawa and an Indigenous (Anishinaabe-Métis) lawyer from Treaty 1 territory in Manitoba. ** Canada Research Chair in Indigenous Environmental Justice, cross-appointed with Osgoode Hall Law School and the Faculty of Environmental Studies, York University. *** Assistant Professor at Osgoode Hall Law School, former President of the Indigenous Bar Association of Canada, and currently director of the National Theatre School.