Contemporary Legislative and Policy Considerations
EXECUTIVE SUMMARY
This document provides a succinct overview of the health-related legal and policy frameworks that frame and limit the potential for self-determination and self-government of First Nations people. This review is informed by recent developments such as the report of the Truth and Reconciliation Commission and the associated Calls for Actions, and the United Declarations on the Rights of Indigenous Peoples Act passed by Canada on June 21st 2021. The objective of this review is to support the development of a First Nations distinction-based health legislation
This document is based on,
- A review of the Treaties, legal analyses of the Treaty Right to Health, and jurisprudence;
- A careful review of federal, provincial and territorial legislation of relevance to FirstNations’ health;
- A review of relevant reports making recommendations on how to best addressinequities experienced by First Nations; and
- Empirical analyses on the performance of the system as created by legislation and federal policy, on addressing First Nation health inequities.
This analysis shows that to date, the federal government has opted to leave it to the courts to define Indigenous and Treaty Rights. The courts, through Dreaver (1935) and Wuskwi Sipihk (1999), have ruled that a Treaty Right to Health, not restricted to Treaty 6, exists and should be understood in contemporary terms. Despite this, federal policies related to health services provided on-reserve, have been positioned outside of Aboriginal and Treaty Rights discussions.
To date, federal obligations have been defined as complementary to the provinces, leading to continued confusion over federal-provincial obligations, jurisdictional gaps, and inequities. Pathways to implement UNDRIP, the TRC Calls to Actions and Joyce’s Principle have yet to be created. Moving forward include two broad categories of considerations: the framing of the legislative instrument, and its content.
To have the impact required, a federal First Nations health legislation will need to create a framework to incentivize the provinces/territories, professional orders and health organizations to adopt rights-based and equity-informed practices to counter systemic and interpersonal racism, address jurisdictional barriers and wrangling, increase the number of First Nations health professionals, and respectfully integrate and protect First Nation medicine and healing practices. The Canada Health Act 1984 (CHA) can act as a template, in that it provides a set of principles, and incentivizes the provinces and territories to join in its implementation. Like the CHA, the federal distinctions-based First Nations health legislation could incentivize the provinces and territories to commit to abiding by the legislation. In terms of content, possible overarching principles the Assembly of First Nations may advocate for include:
- A definition of First Nations’ Treaty Right to Health;
- The portability of Indigenous rights;
- A commitment to addressing systemic racism; and
- Specific provisions for professional organizations, universities and colleges, health systems to address anti-Indigenous racism.
Beyond principles, a distinction-based First Nation health legislation could,
- list federal obligations, based on jurisprudence;
- entrench tripartite agreements in each province and territory as mechanisms to addressjurisdictional obligations and gaps;
- include an explicit recognition of the on-reserve healthcare system as Canada’s 14th healthcaresystem; and
- draw from the United Declaration on the Rights of Indigenous Peoples Act,5 the Truth andReconciliation’s Call to Action6 and Joyce’s Principle7 to define rights and obligations to be recognized and acted on by the federal and provincial/territorial governments, professional orders, medical and nursing schools, and health organizations.
Beyond health and health care, attention to the First Nations determinants of health is required, including cultural continuity, environmental stewardship, community infrastructure and assets, educational systems, justice, employment and income, and food security.8 Addressing these determinants will improve individual, family and community’s health and reduce reliance on health and social services.