Because of the impact of teacher strikes on education there has been a call to declare the teacher‟s profession an essential service and thus prohibit them from striking. This call was made by the Democratic Alliance (DA). The Democratic Alliance arguments in their application to the Essential Services Committee was based on the fact that education in South Africa is in a crisis and the life-altering inconvenience this caused for children. The combined teacher unions in the Education Labour Relations Council (ELRC) expressed their concerns over the DA‟s call for education to be declared an Essential Service. The Bill of Rights grants every employee the fundamental right to strike. This is an absolute and should always be exercised under certain controlled conditions, as stipulated by the Labour Relations Act 66 of 1995. Convention 87 of the International Labour Organising (ILO) recognises the right of trade unions, as an organisation of workers set up to further and defend their interest (Article 10), to formulate their programs and organise their activities (Article 3); this means that unions have the right to negotiate with employers and to express their views on economic and social issues affecting the occupational interest of their members. This constitutes the position that the right to strike is one of the legitimate and indeed essential means available to workers for furthering and defending their occupational interest. Balanced against the right of every teacher to strike is the right of everyone to have a basic education as set out in section 29 of the Constitution. In terms of section 29(1)(a) everyone has a right, enforceable against the state, to basic education. This creates a strong positive right. Aspects of the right to education are found in human rights treaties and declarations. This right to education is contained in article 26 of the Universal Declaration of Human Rights (1948) which states that “everyone has the right to education”. The International Covenant of Economic, Social and Cultural v Rights of 1966 covers the right to education comprehensively, especially article 13 and 14. In 1989 the Convention on the Rights of the Child further confirmed this right. The right to a basic education is further enhanced by section 28(2) of the Constitution “(a) child‟s best interest is of paramount importance in every matter concerning the child”. It is significant to note that in 2007 the Constitutional Court elevated the “best interest” principle to a right. This implies that the best interest of the child would be the decisive factor in each matter that affects the child. In deciding to declare the teaching profession as an essential service constitutional rights must be balanced. These are the right to strike, the right to a basic education and the best interest of the child principle.

In this study the focus is on the implementation of the Children’s Act in mainstream schools. The Children’s Act mandates that all children who are in need of care both in school and out of school should be taken care of and be protected. However, they are often not afforded the full opportunity to enjoy the benefits of this Act. This is due to various factors that hinder the process of its implementation in mainstream schools. The main emphasis of this study is on the factors that hinder the implementation of the Children’s Act. The aim of the Children’s Act is to look after and provide services and support to children in need of care and protection. In order to provide such services and support to children, one needs to first identify such learners in need of care and their needs. Having done this, the support needed can be assessed and provided. This process is not easily achieved in mainstream schools. This study seeks to determine the factors that discourage the implementation process of the Children’s Act in mainstream schools. Data collection for this study included face to face interviews with teachers who are principals of schools and Life Orientation teachers, a social workers and school nurse. The data was used to analyze and interpret the challenges that hinder the implementation of the Children’s Act in mainstream schools. Among others, the study found that there is a lack of collaboration among stakeholders and coordination of service delivery. Poor parental involvement and commitment to parent involvement programmes was also evident. However, to a limited degree, there is interaction between the schools and relevant government departments. The study recommends that multidisciplinary teams should be formed whereby scarce resources can be shared. Various professionals should have the opportunity to come together toshare ideas and information. In order to encourage identification of learners in need of care, it is recommended that, the peer groups or peer educators be established and awareness campaign be conducted in schools. The study also recommends that developmental assessment programmes be conducted. Developmental assessment programmes will help gather information directly from learners or from an appropriate adult in the child’s life. They provide frameworks which can be used as guides for eliciting and analysing information.

In studying the capacity of Canadian Indians for local government on their reserves two objects are sought. First we wish to show the extent to which Indians are involved in directing the affairs of their communities. Second, we hope to discover where Indians, in comparison with other Canadians, are incapacitated by virtue of their special legal, social and economic status. Research for this study was gleaned from files, publications and records of interviews in the offices of the Indian Affairs Branch of the federal government, provincial departments of municipal affairs and offices of municipal associations in Ottawa, Toronto, Winnipeg, Edmonton and Vancouver. We begin our study by investigating the reality of local government for non-Indians. Then we look at the capacity of Indians for similar forms of local authority on their reserves. Capacity is examined in terms of legal competence, existing economic and administrative ability to carry out local functions and potential for future development of local government. Non-Indian local government is developed under a complex set of provincial legal and economic controls. Non-Indian municipalities appear to be mainly oriented towards the provision of local services. In contrast Indian local government is developed under the federal legislation of the Indian Act. A flexible interpretation of the Act by federal officials permits the development of local government forms to suit the needs of particular reserves. On the other hand controls exercised by federal officials, along with deficiencies in local economic resources and administrative skills, tend to retard the growth of local government. A possible way for the reduction of differences between Indian and non-Indian capacities would involve the integration of bands and municipalities within a common framework of local government. There is little evidence at present of such integration if measured in terms of transactions between bands and municipalities, common opportunities under federal and provincial programs of grants and joint membership in regional governments and local government associations. A set of alternative courses is considered for Indian communities to follow in the future. We conclude that evolution of local government under the Indian Act seems the most appropriate means by which Indian capacities can be used both to improve local services and to develop non-Indian political skills among Indians. / Arts, Faculty of / Political Science, Department of / Graduate

The thesis defines legal status of Liechtenstein in the European Economic Area. It is divided into three consecutive chapters. The first chapter consists of two parts - general and economic characteristics of Liechtenstein. The general characteristic is based on the author's experience supported by scientific literature, while economic subchapter is based largely on statistical data. The second chapter focuses on the legal status of Liechtenstein and its position on international scene. The position is viewed from two perspectives, which affects it the most. First, from the perspective of participation in selected international organizations and second, the influence of close relationship with Switzerland. The last chapter analyses international litigation to which Liechtenstein is a party. The aim of this thesis is to define the legal relations of Liechtenstein, which forms its position, using the methods of analysis.

The Crown has fiduciary obligations to First Nations and must act in consequence. One of this consequence is that the Crown has a duty to consult with aboriginal peoples when it infringes aboriginal or treaty right. The thesis deals with the principles related to the Crown's duty to consult with First Nations. I elaborate on principles established by the courts and also on questions that remain unanswered to date. Those questions include when, how and with whom the consultation should be done. I also examine the situation in New Zealand, where the consultation process is a little more advanced than here in Canada and compare the principles elaborated by New Zealand courts with those existing in Canada. From the New Zealand experience, I suggest consultation guidelines to be used in Canada by the Crown and its representatives. / Law, Peter A. Allard School of / Graduate

In British Columbia, individuals with a mental disorder can be hospitalised against their will under the Mental Health Act (1999), when a physician determines that "protection of the person or others" is an issue. Involuntary psychiatric hospitalisation involves a major infringement of an individual's civil liberty. When patients or their representatives disagree with the treatment teams about their involuntary hospitalisation, they can apply for an appeal hearing named the review panel under the Mental Health Act (1999). From a theoretical perspective, the traditional medical model and the social constructionist model, which offer different views concerning individuals with mental illness who are hospitalised against their will, are presented. This theoretical contrast underscores a major dilemma faced by mental health professionals in fostering client self-determination, while they are providing services on the principle of beneficent protection. An empowerment model of social work practice is then described to illustrate how services can be provided to help mental patients regain a sense of control over their lives. Concerns about the current legislation regarding involuntary hospitalisation are also discussed. To supplement the limited number of studies currently available on review panels, a quantitative descriptive study was conducted at Riverview Hospital, the only tertiary psychiatric hospital in British Columbia, surveying the experiences of 39 social workers and physicians with review panels. A questionnaire consisting of 22 Likerttype items was used. Four categories were identified: (a) patient-related issues, (b) effects of review panels on treatment teams, (c) role conflicts, and (d) operational issues. Despite the apparent lack of formal training, social workers and physicians generally reported having adequate knowledge of review panels. Social workers and physicians who were involved more frequently with review panels appeared to have more positive attitudes towards them. Their training pertaining to the Mental Health Act was also significantly related to their attitudes. Neither patients nor their families reportedly had adequate knowledge of the review panel process. Although some positive effects of review panels were acknowledged, staff generally had mixed attitudes about review panels. Guided by an empowerment model, these findings have important implications for social work practice. These include the need for further professional training, improved communication between health professionals and legal advocates, education for patients and families, and the support of patients' collective action, so that review panels can be a more empowering experience for mental patients. / Arts, Faculty of / Social Work, School of / Graduate

While Canada is often called a pluralist state, there are no sustained studies by political scientists in which aboriginal self-government is discussed specifically in terms of the analytical tradition of pluralist thought. Aboriginal self-government is usually discussed as an issue of cultural preservation or national self-determination. Aboriginal identity is framed in terms of cultural and national traits that are unique to an aboriginal community and selfgovernment is taken to represent the aboriginal communal desire to protect and preserve those traits. Is such an understanding of what motivates aboriginal self-government accurate, or does it yield an incomplete understanding of the complex phenomenon that aboriginal selfgovernment in Canada represents? The political tradition of pluralism allows for analysis of aboriginal self-government that addresses questions left unattended by the cultural and nationalist frameworks. Pluralism is often viewed as a public arrangement in which distinct groups are given room to live side by side, characterized by mutual recognition and affirmation. At the same time, there are different faces of pluralist theory and each addresses questions about the recognition and affirmation of aboriginal self-government in different ways. Those three contemporary faces can be distinguished by the labels communitarian, individualist, and relational. The major hypothesis advanced is that aboriginal self-government is better understood if an "identification" perspective on aboriginal identity is adopted as opposed to a "cultural" or "national" one and if that perspective is linked to a relational theory of pluralism as opposed to a communitarian or individualist one. The identification approach examines aboriginal identity not in terms of cultural and political traits, but in terms of identification with, and political commitment to, an aboriginal community. Relational pluralism in turn, examines the challenge of aboriginal self-government in terms of power differences within aboriginal communities and between aboriginal and Canadian governments. Applying these approaches to aboriginal politics in Canada confirms their suitability. Contrary to what previous scholarship has assumed, aboriginal self-government should not be seen primarily as a tool to preserve cultural and national differences as goods in and of themselves. The politics of aboriginal self-government should be seen as involving demands to equalize current imbalances in power so that aboriginal communities and the individuals within them can construct aboriginal identities according to their own design. / Arts, Faculty of / Political Science, Department of / Graduate

In British Columbia, fifty-one First Nations have filed Statements of Intent signifying their interest in negotiating a treaty with Canada and the Province of British Columbia since the establishment of the British Columbia Treaty Commission in 1993. Twenty-seven of these First Nations participants claim ocean spaces within their traditional territories. Academic research and writing over the last decade has focussed on Aboriginal title to land, with little, if any reference, to ocean spaces. The concept of Aboriginal title was recently recognized by the courts in Delgamuukw v. British Columbia. My research will explore what information and legal principles could be utilized to recognize Aboriginal title to ocean spaces within the Canadian legal context, and therefore provide some bases for First Nations in substantiating their claims. My analysis will begin with a review of international law principles surrounding title to and jurisdiction over ocean spaces. Following which, I will delineate the sources available for recognizing such a theory, starting with a review of the concepts of Aboriginal title as determined in Delgamuukw and their applicability to ocean spaces. Delgamuukw has affirmed Aboriginal perspectives are an integral part of the investigation of Aboriginal title, and voices of members of two particular First Nations being the Haida Nation and the Tsawwassen First Nation, with whom I visited, will be included. Rounding out the sources will be a review of comparative legal concepts drawn from the United States and Australian experiences, and the principles espoused within international human rights materials. Having established the avenues for recognition of this concept, I then turn to discussion of its reconciliation within the Canadian legal context by reviewing theories of co-management and examining a number of settlement instruments that have yielded some degree of reconciliation between the federal government and the particular First Nation or Province involved. Comments from First Nations in respect of the obstacles that hold back reconciliation will be noted. In conclusion, my research will deduce Aboriginal title to ocean spaces is a viable legal concept in Canada, and First Nations have the resources necessary to substantiate their claims. Comments about the possibilities that may result at the treaty table or in the courts upon recognition of this concept will also be discussed. This analysis is timely and important as many First Nations are nearing the stage of the treaty process where discussions will be directed towards what territories these First Nations groups will retain and what ownership, jurisdiction and rights they will enjoy as to ocean spaces and resources. Such issues directly relate to the continued way of life, culture, and sustainable economic growth and stability of First Nation communities into the twenty-first century. / Law, Peter A. Allard School of / Graduate

An advance directive is an instruction made by a competent person about his or her preferred health care choices, should the person become incapable to make treatment decisions. Legal recognition of advance directives has developed over the last half century in response to medical advances that can prolong the life of a patient who is no longer sentient, and who has decided to forego some or all treatment under such circumstances. Two types of directive have emerged in the law: an instructional directive, in which a person sets out treatment choices, and a proxy directive, which enables the person to appoint a proxy to make treatment decisions. Development of the law has been impeded by fear that advance directives diminish regard for the sanctity of life and potentially authorize euthanasia or assisted suicide. In Canada, this fear explains the continued existence of outdated criminal law prohibitions and contributes to provincial advance directive legislation that is disharmonized and restrictive, in some provinces limiting personal choice about the type of advance directive that can be made. The British Columbia Representation Agreement Act (RAA)1 is an example of such restrictive legislation. The RAA imposes onerous execution requirements, is unduly complex and restricts choice of planning instrument. Respect for patient autonomy requires that health care providers honour patients' prospective treatment preferences. Capable persons must have ready access to a choice of health care planning instruments which can be easily executed. B.C. should implement advance directive legislation that meets the needs and respects the autonomy of B.C. citizens. The Criminal Code must be amended to eliminate physicians' concern about potential criminal liability for following an advance directive. Advance directive legislation across Canada should be harmonized. Finally, health care providers should receive training on effective ways to communicate with patients about end-of-life treatment decisions to ensure that patients' health care choices are known and respected. / Law, Peter A. Allard School of / Graduate

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