11/29/2014 05:00 EST | Updated 01/28/2015 05:59 EST

Aboriginal right to refuse chemotherapy for child spurs debate

It's a case that has Canadians and the legal community buzzing.

Earlier this month Ontario Judge Gethin Edward ruled in favour of a First Nations girl and her family, who stopped chemotherapy to treat her acute lymphoblastic leukemia, choosing traditional medicine instead.

The judge rejected an application from McMaster Children’s Hospital that would have required the Children’s Aid Society to intervene in the case.

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Edward ruled that it was the mother’s aboriginal right — which he called "integral" to the family’s way of life — to allow her to choose traditional medicine for her daughter.

While many hailed the decision as a victory for aboriginal rights, others call it a failure in the protection of child welfare

On Friday, experts from University of Ottawa's faculty of law debated the ruling.

Aboriginal rights vs. rights of the child

“I've never seen a judge recognize a broad right for a First Nation like the Mohawk Nation to have their medical practices — their traditional ways of life regarding health and healing — protected by the Constitution under Section 35,” said Larry Chartrand, professor at the faculty of law.

Chartrand specializes in aboriginal governance and health, and while he states that this decision is positive in terms of aboriginal rights, “the unfortunate circumstance is that it revolved around a fact situation where a little girl's life is potentially at stake. So that makes the decision very difficult to appreciate.”

McMaster doctors said she has a 90 to 95 per cent chance of survival on chemotherapy, but that they didn’t know of anyone who had survived acute lymphoblastic leukemia without the treatment.

“I understand the mother's decision. I have a 12-year-old son, and I'm not sure I would make that decision myself under the circumstances. But I understand why, because of the impact of colonization, the distrust of the mainstream system, and the need to protect Mohawk culture — sometimes at all costs.”

Bryan Thomas, a research associate in the faculty of law, raised concerns about the “decision's lack of exploration of the rights of the child in this case.”

“All that they're asking is whether this falls under the sovereign jurisdiction of aboriginal people, and then asking no more questions. So what I think a lot of people would have liked to see is more robust discussion of what is in the best interests of this child.”

What constitutes traditional medicine?

The girl has received alternative treatment from the Hippocrates Health Institute in Florida. The family says this is in line with traditional medicine. A CBC investigation has revealed questionable claims and credentials of the institute. And some, including Thomas, question whether that should be considered indigenous healing.

“Will anything just qualify under this banner of traditional healing, and does the court have a responsibility to explore in greater detail whether there's a tradition of this practice?" said Thomas.

For Chartrand, what is defined as traditional healing in this case isn’t up for debate.

“It's a respect for who has the jurisdiction to make that determination. And if it's the Mohawk Nation, then the Mohawk Nation decides that question. It's not a general question we can ask.”

Both Chartrand and Thomas agree the case is precedent setting and anticipate more cases like this one in Canadian courtrooms.