Trust. Integrity. Reputation. Top News - May - 2003 Mosquitos carry the deadly West Nile Virus, and could be coming to a community near you. They like to breed in stagnant water and slow moving streams. More here... West Nile virus First Nations join the fight FSIN lawsuit given green light Court decision allows students' children to sue Questions of leadership - Editorial Doublespeak: Recognize it when you hear it - Guest Column Check out Ontario Birchbark THE ENTIRE CONTENTS OF WINDSPEAKER'S MAY ISSUE ARE ONLINE IN THE ARCHIVES - ACCESS IS RESTRICTED TO SUBSCRIBERS ONLY. CLICK HERE FOR ONLINE SUBSCRIPTION INFO. West Nile virus First Nations join the fight Cheryl Petten, Windspeaker Staff Writer, Ottawa The arrival of mosquitoes has never been anybody's favorite sign that the long winter is finally over, but since the arrival of the West Nile virus in Canada, these tiny creatures are not just an annual annoyance anymore. To help deal with this threat to the Canadian public, Health Canada will be working closely with First Nations, to help prevent the spread of the virus within Native communities. The feds will partner with First Nations to co-ordinate surveillance, testing, education, and methods of preventing the spread of West Nile during the coming mosquito season. The West Nile virus has been around for decades, and was first identified and isolated in the West Nile region of Uganda in 1937. The virus first shows up in birds, and can be spread to humans if they are bitten by a mosquito that has been infected by feeding on a bird that carries the virus. Over the years, there had been outbreaks of the virus in Egypt, Israel, South Africa, and in parts of Europe. And then, in mid-August 1999, the bodies of dead crows were found on the grounds of the Bronx Zoo in New York City. The West Nile virus had arrived in North America. Soon people within the city began to experience symptoms similar to encephalitis, an inflammation of the brain. By the end of the year, the virus has spread to Long Island, downstate New York, to New Jersey, and to Connecticut, and had killed at least 5,000 birds. In total, 62 cases of West Nile virus were reported in humans that year. Of those, seven people died, including one person in Toronto who had visited New York. By the end of 2000, the virus has spread as far as the Canada/U.S. border. The first case of West Nile virus in Canada was confirmed on Aug. 22, 2001 in a dead bird found in Windsor-Essex County in southern Ontario, and it began to spread from there. According to Dr. Harvey Artsob, chief of zoonotics diseases and special pathogens for the population and public health branch of Health Canada, the cases of West Nile virus reported in Canada and the United States in 2002 made it the largest mosquito-transmitted epidemic ever documented in North America, and the largest West Nile epidemic ever documented anywhere in the world. To date, there have been 325 human cases of West Nile virus confirmed in Canada. In three of those cases-including two in Alberta-it is believed the people contracted the virus while traveling. All told, a total of 18 deaths have been linked to the virus, including four deaths where the virus itself was listed as the primary probable cause of death. While the number of positive cases of human contraction of the virus has been limited to Quebec and Ontario, dead birds have tested positive for the virus as far east as Nova Scotia and as far west as Saskatchewan. In Ontario, at least two of the birds testing positive were found on First Nations. And while no one can predict where the virus will show up this year, it is likely to continue to spread, possibly reaching into Alberta and British Columbia this summer. "The pattern of West Nile over the years since it incursion in '99 certainly has been for spread of the virus from the initial four statesthat were involved in 1999 through 12 states, and then at the end of last year 44 states, and it finally made it's way to the West Coast," Artsob explained. "So I guess, in brief, the answer is, yes we do expect the virus will probably keep expanding its range. But we still have so many questions we're asking about West Nile, and we're not certain that every area that we saw West Nile activity last year, that the virus activity will recur." Many people who contract the West Nile virus have no symptoms, while others become mildly ill. In mild cases, the symptoms can include fever, headache, body aches, a mild rash, or swollen lymph glands. In others, especially those with weakened immune systems, the virus can cause more serious health effects, including meningitis-inflammation of the lining of the brain or spinal cord-or encephalitis, and can be fatal. In these severe cases, symptoms could include rapid onset of a severe headache, high fever, a stiff neck, nausea or vomiting, drowsiness, difficulty swallowing, confusion, loss of consciousness, lack of co-ordination, muscle weakness and paralysis. Last year a number of additional symptoms were added to the list, including movement disorders, muscle degeneration, and symptoms similar to that experienced in Parkinson's disease and poliomyelitis. While in the past, statistics have shown that about 80 per cent of people contracting the virus won't have any symptoms, while about 20 per cent develop mild symptoms and less than one per cent develop more serious symptoms, new research has shown those numbers may need modifying. "Although it is still the case that most people who contract West Nile virus show no symptoms or mild flu-like illness, we must remember that disease and fatalities do occur in all age groups, but particularly the elderly and those with weakened immune systems. Anyone in an area where West Nile virus is active is at some risk." A West Nile virus fact sheet on the Health Canada Web site lists the groups who have a higher risk of developing serious health effects after contracting the virus. These groups include people over 40, people with chronic diseases, such as cancer, diabetes, alcoholism or heart disease, and people that require medical treatment such as chemotherapy that may leave them with weakened immune systems. That list concerns Ruby Jacobs, director of health services for the Six Nations of the Grand First Nation. Six Nations is located in southern Ontario, the region of Canada where the first West Nile outbreaks occurred, and is the country's most populous First Nations community. According to a recent study looking at the health of members of the Six Nations community, there are high percentages of the population with diabetes, cancer and cardiovascular disease. "There are high numbers in all of those areas. Our study actually said around 49 per cent either have or will have diabetes. And the whole statistics were just horrendous. . . many people are involved in those kinds of diagnosis. And you know, the state of health is one major factor in whether you catch disease or not," she said. "We don't want to scare people, but people, even with the SARS [Severe Acute Respiratory Syndrome] we've stated the vulnerable folks need to be extra cautious, so we'll be doing the same here," she said. The West Nile virus has been a concern for Six Nations for a while. The community took part in bird surveillance last year, with about seven birds picked up for testing. The bird surveillance will continue again this year. In fact, one dead crow has already been picked up and sent to be tested for the virus. This year, work will also be done to monitor the mosquito population, to try to identify areas where the insects reproduce. Six Nations will also be focusing on educating its members, and increasing their awareness of ways they can work to reduce the spread of the virus, Jacobs explained. "We've got these things you can do in your environment to reduce the reproduction of mosquitoes. Like emptying out stagnant water in any kind of a receptacle around your property, and making sure your house has got proper screens on and so on, to prevent entry into the houses. And then for yourself, there's personal things you can do . . . like wearing proper clothing at peak times like dusk and dawn, where you'd wear long pants and socks and shirts and that so that they couldn't bite you," she said. "We're working with Health Canada, the environmental health office, very closely on this. All the components that will be concerned in our community, like probably health, health services staff and the environmental staff, are all working together in a collaborative effort to reduce the reproduction," Ruby Jacobs said. As for chemical means of controlling mosquito populations, such as larviciding, which targets mosquito breeding sites, and adulticiding, which involves spraying or fogging insecticide to kill flying adult mosquitoes, those options are being looked at by a consultation advisory group working with the environmental health office. Insecticides have never been used by the community in the past, Jacobs said. "When you spray or use any kind of those insecticides or things, you have to watch out what it does to the full ecosystem. So there's concerns for unforeseen impacts and problems arising as a result of using a chemical. So all of those are, those are under review. But we're working on the education and awareness component, and the personal component about what you can do yourself to prevent it." Health Canada will be working to educate people about what they can as individuals do reduce to their risk of becoming infected. They will also be providing the most up-to-date information about the virus and surveillance results on the Health Canada Web site, at http://hc-sc.gc.ca. Health Canada will be co-ordinating nation-wide surveillance of the virus, which will involve testing of dead birds-especially members of the crow family-suspected of being infected, as well as monitoring mosquito populations, and infection in horses and in humans. | The department will work with Canadian Blood Services and Héma Québec to help ensure the Canadian blood supply is free of the virus. Private industry is working to develop a test for screening donated blood for the virus, and Artsob expects that test should be in place by July. The blood agencies are working to stockpile blood and blood products, gathering them from donors before this year's mosquito season begins. The federal department is working to provide the provinces with the ability to more quickly diagnose infected people. "Health Canada's national microbiology laboratory is actively supporting efforts to provide faster test results this year. The facility is providing testing technology and training to the provinces so they can conduct their own front-line tests to diagnose cases. So far, laboratories in Newfoundland and Labrador, Nova Scotia, Quebec, Ontario, Alberta and British Columbia have been properly equipped and trained, so they can conduct their own testing, and training for other provinces is planned," he said. Health Canada is working to ensure the pesticides and insect repellants being used to prevent infection are safe. According to Artsob, Health Canada's pest management regulatory agency has recently re-evaluated DEET, the most common ingredient in insect repellants, and malathion, a pesticide used to kill adult mosquitos, and found them both to be safe and effective if used properly. Artsob said Health Canada will be working closely with bands, chief and council to ensure First Nations have equal access to all the department's efforts. "The department will provide advice to First Nations communities on West Nile virus public health control in their communities, including the use of spraying and larvicide," he said. There is no treatment, medication or cure for the West Nile virus and, although there is a West Nile vaccine available for horses, there is no vaccine available for humans, despite the virus having been around for more than 60 years. "I think probably the reason a vaccine has never been produced for West Nile is there probably wasn't enough of an economic stimulus for it in the past," Artsob said. Now that the virus has arrived in North America, coupled with the fact that the virus here is a more virulent strain of West Nile, industry interest is growing, and a human vaccine could be a reality, Artsob said, but not for at least a couple of years. Top FSIN lawsuit given green light Paul Barnsley, Windspeaker Staff Writer, Ottawa An attempt by the federal government to bring a stop to the Federation of Saskatchewan Indian Nations' legal action against the First Nations governance act was not successful. The legal action, brought by the FSIN Senate under the name of former Senator David Ahenakew, asked for "a permanent constitutional injunction prohibiting the defendants or their agents or servants from passing the bill in question in Parliament." It also asked the court to issue several declarations. "That the bill will have no application to treaty Indians in Saskatchewan. That the defendants [the Crown] have breached their fiduciary obligations and duties to protect the rights and privileges of the plaintiffs and not to engage in improper or coercive acts against them," and "That in future, the defendants, when enacting statutes with respect to First Nations people, must act within the honor of the Crown and its fiduciary duties by conducting meaningful consultations with full disclosure to the leadership of the First Nations of Canada in advance of introducing a proposed statute." Lawyers for the Crown argued that if the action was allowed to continue it would curtail the freedom of speech and debate in Parliament assured by statute and the Constitution. They also argued that the legal action should be struck because it "is frivolous, vexatious and an abuse of the process of the court." Federal Court Judge W. Andrew MacKay issued his decision on the matter on March 13 after hearing arguments in Regina on Sept. 26, 2002. The judge noted that the lawsuit was actually filed in response to Bill C-61, which died on the order paper when Parliament was prorogued last year. But he ruled that the action could continue on Bill C-7, the proposed legislation that replaces C-61 in this sitting of Parliament. "It is only in the very clearest of cases that the court should strike out the statement of claim," said the judge. "This, in my view, is especially the case in this field, that is the field of Aboriginal law, which in recent years in Canada has been in a state of rapid evolution and change. Claims which might have been considered outlandish or outrageous only a few years ago are now being accepted. If there is in a pleading a glimmer of a cause of action, even though vaguely or imperfectly stated, it should be allowed to go forward . . ." Crown lawyers argued that the lawsuit asks the court to interfere with the legislative process, something that is contrary to law. In some areas, the judge agreed. He ruled that a permanent injunction barring any future legislation like Bill C-7 was not possible because it would interfere with the legislative process. But he would not throw out the entire claim. "In my view, at this stage it would be inappropriate to strike the statement of claim in its entirety when, as I see it, an issue of fundamental importance to the rights of the respondents...," he wrote. MacKay decided the statement of claim should be amended by striking out the request for an injunction and the damage claims against the minister and the Prime Minister. Also removed were the request that the court declare that the bill should have no application to treaty Indians in Saskatchewan. "Insofar as the action seeks declarations concerning the claimed fiduciary duties of the Crown owed to the respondents in the development of legislation which may affect their Aboriginal, treaty or constitutional rights, the statement of claim may be continued. At this stage it cannot be said that this claim is certain to fail," he added. Top Court decision allows students' children to sue Paul Barnsley, Windspeaker Staff Writer, Toronto Three Ontario Court of Appeal justices have ruled that the children-and perhaps the grandchildren­of former residential school students can sue the federal government for loss of culture. The 3-0 ruling was handed down March 27. Mr. Justice Jean-Marc Labrosse wrote the court's decision. Madame justices Louise Charron and Eileen Gillese concurred. It's estimated that 17,000 people attended residential school. The court decision opens up the possibility that all of their descendants can now sue for loss of language, culture and family connections. Many residential school survivors claim that being raised in institutional settings, even when there was no physical or sexual abuse, meant they did not learn parenting skills. They say they were unable to nurture their children because they were removed from the nurturing influence of their own parents. Russell Kronick, Q.C. and Joseph Griffiths made the arguments in court on behalf of 56 plaintiffs who attended St. Peter Claver Industrial School for males and St. Joseph School for females, two Roman Catholic residential schools at Spanish, Ont., between 1934 and 1960. They also represented 189 of the plaintiffs' children. The government had originally succeeded in having the claims thrown out by a lower-court judge, who agreed that it was "plain and obvious" that the government owed no fiduciary duty to individuals who didn't exist at the time. The appeals court considered that argument and then ruled otherwise. Legal observers all expect the Crown will appeal the decision to the Supreme Court of Canada. "The Crown submits that the law has always distinguished between an unborn child and a child after birth," Labrosse wrote. "It is the Crown's position that the secondary plaintiffs are asking the court to ignore this distinction and to take a further step in recognizing a duty of care owed to future generations of children not yet conceived." The appeal court took note of a Supreme Court of Canada decision that the court must look especially closely at cases involving the Crown's relationship with Aboriginal peoples. "[It] is a very dynamic area of Canadian law. The nature and extent of the particular obligations that may arise out of this relationship are matters that remain largely unsettled in the jurisprudence," the court wrote. The Crown tried to persuade the court that the claims by descendants of survivors were not fiduciary in nature. The court rejected that argument. "We do not agree with the Crown's contention that the pleading discloses none of the essential ingredients necessary to found a fiduciary relationship because the claims for breach of fiduciary duty are in effect nothing more than individual claims based on family relationships and not claims as Aboriginal people," the judge wrote. "As noted earlier, however, the existence of a fiduciary relationship, in and of itself, does not suffice. There must be a particular context that could give rise to the imposition of a fiduciary obligation. In this respect, we agree with the motions judge's conclusion that, with the implementation of the 'residential school policy,' the federal Crown 'assumed a duty to act in a fiduciary capacity with respect to the education of Aboriginal peoples.' However, in the factual context of this case, we do not agree with his further conclusion that it is plain and obvious that the fiduciary duty did not extend to the secondary plaintiffs simply on the basis that they were not yet in existence at the time. This ignores the essence of the secondary plaintiffs' claim. They allege that the very purpose of the Crown's assumption of control over the primary plaintiffs was to strip the Indian children of their culture and identity, thereby removing, as and when they became adults, their ability 'to pass on to succeeding generations the spiritual, cultural and behavioral bases of their people.' Hence, the secondary plaintiffs claim that they were specifically targeted by the governmental policy. They further allege that they were profoundly and adversely affected as a result." Darcy Merkur, a lawyer with the Toronto law firm Thompson Rogers, works on the national class action lawsuit filed by residential school survivors. He said the decision is welcome news for his clients. "Ontario's highest court, the Ontario Court of Appeal, has decided that children of residential school survivors may proceed with lawsuits against the government of Canada. Thousands of residential school survivors have sued the government of Canada alleging that they were abused at residential schools. Now children of residential schools who believe that their life has been impacted by their parents' experience at residential school are free to sue as well," he said. "The decision will help the national class action being advanced by a group of law firms. The national class action is on behalf of residential school survivors and their family members and alleges that the government of Canada is responsible for the cultural, emotional, physical and sexual abuse that occurred at the residential schools, including the intergeneration impacts of that experience." Top