THE ABORIGINAL HEALTH LEGISLATION AND POLICY FRAMEWORK IN CANADA
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SETTING THE CONTEXT
THE ABORIGINAL HEALTH LEGISLATION AND
POLICY FRAMEWORK IN CANADA
A synopsis of Looking for Aboriginal peoples’ involvement in the provision
Health in Legislation and Policies: 1970 to of locally needed services and programs. The Relationship Between Policy
2008, prepared for the NCCAH by Josée Coordinating the needs of Aboriginal and Legislation
Lavoie, Laverne Gervais, Jessica Toner, communities and various levels of
H
Odile Bergeron and Ginette Thomas government is an ongoing challenge. This ealth legislation may be defined as
fact sheet examines federal, provincial and “the body of rules that regulates the
The Canadian health system is a complex territorial health legislation and policies in promotion and protection of health,
patchwork of policies, legislation and Canada that contain Aboriginal-specific health services, the equitable distribution of
relationships. Further complicating the provisions. It also highlights various available resources and the legal position of all
system is the multiplicity of authorities models of service and some mechanisms parties concerned, such as patients, health care
who are responsible for health services which promote cross-jurisdictional providers, health care institutions and financing
and programs: the federal, provincial/ cooperation. and monitoring bodies” (Leenan, 1998). In
territorial, and municipal governments; essence, health policies are not laws and are
various Aboriginali authorities; and the Background therefore not enforceable. This makes them easily
private sector (Wigmore & Conn, 2003). changed unless they become entrenched as policy
Aboriginal health care in Canada has The current context shaping the objectives in legislation (Legemaate, 2002).
become even more complex as a result Aboriginal health legislation and policy
of self-government agreements and environment in Canada takes root in
other mechanisms to expand Aboriginal
i
In the context of this paper, the term ‘Aboriginal’ is used broadly to refer collectively to the Indigenous inhabitants of Canada, including First Nations, Inuit and Métis
peoples (as stated in section 35(2) of the Constitution Act, 1982). Wherever possible, we provide names and information for distinct groups/communities.
sharing knowledge · making a difference
partager les connaissances · faire une différence
ᖃᐅᔨᒃᑲᐃᖃᑎᒌᓃᖅ · ᐱᕚᓪᓕᖅᑎᑦᑎᓂᖅ
the 1867 British North America Act regardless of where they live;iv however, Jordan’s Story
(BNA). The Act defined health services non-insured health benefits are not offered
J
as a provincial jurisdiction, and Indian to Métis. Physician and hospital care is ordan River Anderson, a young child from
Affairs as an area of federal jurisdiction, provided by provincial and territorial
Manitoba’s Norway House Cree Nation, was
thus creating an ambiguity over Indian governments (Health Canada, 2008).
born in 1999 with a rare neuromuscular
health that remains today. Although the Thus, for First Nations peoples living
subsequent Indian Act (1876) included on-reserve, health care is predominately disorder, requiring him to receive care from
a health-related provision, the language the federal government’s responsibility; multiple service providers. He spent his entire
of this provisionii failed to provide clear other Aboriginal groups, with very few short life living in an institutional hospital setting,
legislative authority for Indian health to exceptions, fall under the purview of the not for medical reasons but because of a
the federal government. A Supreme Court provincial or territorial governments. jurisdictional dispute between federal and
ruling in 1939 confirmed the federal provincial governments and departments over
government’s legal responsibility for the As a result of historical legislative who should pay for his home care. Frustration
Inuit (Bonsteel & Anderson, 2006), but vagueness, and the multiplicity of over these types of jurisdictional disputes have so
did not address health. authorities that resulted, the Aboriginal enraged Aboriginal leaders and children’s
legislation and health policy framework advocates that a Private Member’s Motion
The federal government’s role in the is very complex, resulting in a great deal
(M-296) was introduced in the House of
provision of health services is primarily of diversity in health service provision
Commons. More commonly referred to as
through the limited public health across provinces and territories. The
and prevention services offered by the framework fails to adequately address ‘Jordan’s Principle’, the motion stipulates “that in
First Nations and Inuit Health Branch the health care needs of the Métis or the event of a jurisdictional dispute over funding
(FNIHB). Services are offered to status First Nations and Inuit people who are for a First Nation child, the government of first
(registered) Indiansiii living on-reserve either not registered or not living on contact will pay for services and seek cost-
and to Inuit living in their traditional reserve/traditional territory (UNICEF sharing later” (Lett, 2008, p.1256). Despite
territories (Health Canada, 2003a; 2008). Canada, 2009), and has also resulted in consensus being reached on Jordan’s Principle in
The Branch provides non-insured health much jurisdictional debating about who the House and its endorsement by several
benefits (NIHB) such as prescription should pay for health services in particular provinces, no real progress has been made on
drugs, dental and vision coverage to contexts. For Canada’s Aboriginal peoples, implementing it.
all status/registered Indians and Inuit, these jurisdictional debates add to this
ii
Section 73 reads: The Superintendent-General in cases where sick, or disabled, or aged and destitute persons are not provided for by the band of Indians in which they are
members, may furnish sufficient aid from the funds of the band for the relief of such sick, disabled, aged or destitute persons (Venne, 1981, p.43, emphasis added).
iii
Registered or status Indian refers to those who reported they were registered under the Indian Act of Canada (Statistics Canada, Definitions,
http://www12.statcan.ca/english/census01/products/analytic/companion/abor/definitions.cfm).
iv
The NIHB program covers people for crisis intervention and mental health counseling, certain medical supplies and equipment, drugs, dental care, vision care, and
medical transportation (see First Nations and Inuit Health: Benefits, Ottawa, ON: FNIHB, http://www.hc-sc.gc.ca/fnih-spni/nihb-ssna/index_e.html)
complexity and negatively impact access Integrated Agreements Yukon is the only jurisdiction where
to appropriate and responsive health care For communities deemed too small to health legislation recognizes the need
(Hawthorne, 1966; Romanow, 2002). successfully transfer control over health, an to respect traditional healing practices.
integrated model was established in 1994 as The legislation does not define what is
Transformation of the Aboriginal a mechanism for broadening opportunities included as traditional healing practices.
for community control. Provisions and Ontario and Manitoba recognize that
Health Legislation and Policy criteria for eligibility differ somewhat from Aboriginal midwives should be exempted
Environment the health transfer model. In addition to from control specified under the Code
communities south of the 60th parallel, of Professions. Ontario extends this
The past forty years have seen a communities in the Yukon and Northwest exemption to traditional healers. In
transformation in the provision Territories are also eligible. As of 2003, 176 addition, British Columbia, Alberta,
of Aboriginal health services and communities have signed an integrated Saskatchewan, Manitoba, Ontario, New
programs to increase and enhance the agreement (Health Canada, 2003b). Brunswick and Prince Edward Island have
involvement of First Nations and Inuit adopted tobacco control legislation that
peoples in the control and delivery of Policies and Legislation in the Provinces clearly states that the use of tobacco for
community-based health services. It is and Territories ceremonial purposes will not be regulated
now widely acknowledged that Aboriginal At the territorial and provincial levels, under the terms of this legislation.
communities themselves are better some legislation contains specific
positioned to identify their own health provisions clarifying the responsibilities There also exists a limited number of
priorities and to manage and deliver of the governments of these territories Aboriginal-specific legislation and
healthcare in their communities (Wigmore and provinces in Aboriginal health. policies. Ontario was the first province
& Conn, 2003; Lavoie et al., 2005, 2010). These are, however, quite limited and to develop an Aboriginal Health and
focused on jurisdiction. For example, Wellness Strategy in 1990, and to develop
Health Transfer legislation in Alberta is said to apply to an overarching Aboriginal Health Policy
The movement towards transfer of control Métis settlements. Alberta, Saskatchewan, in 1994 (Government of Ontario, 1994).
began with the federal government’s 1979 Ontario and New Brunswick legislation The Aboriginal Health Policy is intended
Indian Health Policy, which recognized specifically state that the Minister to act as a governing policy and assist the
that First Nations and Inuit could assume responsible for health may opt to enter Ministry of Health in accessing inequities
responsibility for administering any or into an agreement with Canada and/or in First Nation/Aboriginal health
all of their community health programs. First Nations for the delivery of health programming, responding to Aboriginal
It culminated in the development of a services, thereby clearly indicating that the priorities, adjusting existing programs
Health Transfer Policy framework in provisions of services are outside of the to respond more effectively to needs,
1989, which provided an opportunity for province’s mandate. supporting the reallocations of resources
Aboriginal communities south of the 60th to Aboriginal initiatives, and improving
parallel to assume control of resources Self-government agreements, where interaction and collaboration between
for community-based health programs at they exist, define areas of jurisdiction for ministry branches to support holistic
their own pace (Wigmore & Conn, 2003). the federal, provincial/territorial and approaches to health. This is the most
Today, most First Nations communities Aboriginal governments. This is reflected comprehensive Aboriginal health policy
design and implement their community in legislation. Health legislation in the currently in place in Canada.
health programs and employ the majority Yukon, Quebec and Newfoundland &
of their health services staff. Benefits of Labrador contain provisions related to Decentralization/Regionalization of
the health transfer policy have included existing self-government agreements, Health Services
increased community awareness of health thereby clarifying these territory/ Most provinces have opted to transfer the
issues, more culturally sensitive health provinces’ roles and responsibilities in authority over priority setting, planning
care delivery, improved employment health only in the areas included in these and delivery of health services to regional
opportunities for community members, self-government agreements. health authorities.v The purpose of
a sense of empowerment and self- decentralizing health care systems has been
determination, and an improvement in the Finally, some provinces and territories have in part to increase public participation in
community’s health status (Lavoie et al., embedded provisions related to Aboriginal decision making, set priorities regionally,
2005; 2010). healing and ceremonial practices. The and coordinate and integrate healthcare
v
The exceptions to this are Prince Edward Island which has chosen to re-consolidate authority for health care to the provincial government (Yalnizyan, 2006) and
Alberta that followed in 2008.
delivery (Kouri, 2002; Saltman et al., 2007; in 2005 which focuses on the specific in Saskatchewan (NITHA, 2010). This
Yalnizyan, 2006). However, Ontario is the needs of the Mi’kmaq (Mi’ kmaq et al., makes NITHA the only First Nations
only province to currently require a council 2005). Both of these frameworks, however, health organization of its kind in the
composed of Aboriginal peoples to advise address only the needs of the First country. NITHA provides education and
on regional priority setting in healthcare Nations population, not other Aboriginal technical support to NITHA partners
(Lavoie et al., forthcoming; Government groups living within those provinces. in the areas of communicable disease
of Ontario, 2006). Other examples of cross-jurisdictional control, epidemiology and health status
mechanisms include the Saskatchewan monitoring. NITHA is funded through a
Emerging Models Northern Health Strategy (Northern contribution agreement with FNIHB.
Health Strategy, 2008), and the Manitoba
Several coordination mechanisms have Inter-Governmental Committee on First Modern Treaties and
emerged to bridge jurisdictional gaps and Nations Health (Assembly of Manitoba
Chiefs, 2010). Self-Government Activities
to enhance Aboriginal participation in
identifying health priorities, designing Modern treaties and the granting of self-
Intergovernmental Health Authorities
strategies, and coordinating approaches government status are other mechanisms
to improve Aboriginal health. Generally, Intergovernmental health authorities
are formal organizations created either by which opportunities are being created
these fall into two broad areas: cross- for Aboriginal engagement in health policy
jurisdictional coordination models and through federal-provincial partnerships or
self-government agreements. Examples of and service delivery. These agreements
intergovernmental health authorities. have their own geographical boundaries
this are the unique health care structures
that emerged as a result of the James Bay that may or may not coincide with the
Cross-Jurisdictional Mechanisms
and Northern Quebec Agreement. These boundaries of provincial health authorities.
Across the provinces and territories, there For example, the Nunavut Land Claims
are several Aboriginal specific health structures are extensions of the provincial
health care system but are co-funded by Settlement Agreement (1993) resulted in
policy-frameworks that provide for cross- the creation of the territory of Nunavut,
jurisdictional coordination mechanisms the federal and provincial governments
to serve the health care needs of Nunavik while in the Inuvialuit and Nunatsiaq
with the hope of bridging jurisdictional regions, Inuit have signed self-government
gaps. The frameworks are typically Inuit and the James Bay Cree.
agreements. In Nunavik, health care
committee-based and bring together structures that emerged as a result of
stakeholders in Aboriginal health such The Athabasca Health Authority (AHA),
established in Saskatchewan in 1995, the James Bay and Northern Quebec
as Aboriginal organizations and federal Agreement (1975) are somewhat unique
and provincial government departments. is another example of an Aboriginal
health authority that is federally and in Canada: they are co-funded by both
The most comprehensive example is federal and provincial governments,
Ontario’s Aboriginal Health and Wellness provincially funded. Like the James Bay
and Northern Quebec Agreement, the managed by Aboriginal authorities, yet
Strategy (AHWS), which was developed also linked to the provincial health care
in 1994. The AHWS is managed by a AHA has a funding agreement with both
the provincial and federal governments for system (Canada, 1974). An agreement
Joint Management Committee consisting signed in 2007 will lead to the creation of
of two representatives from each of the the provision of health services for four
Métis communities in the Athabasca Basin the Regional Government of Nunavik,
eight Aboriginal umbrella organizations which will have oversight of all Nunavik
in Ontario, as well as several government area: Campbell Portage, Stony Rapids,
Wollaston Lake Uranium City, and the structures created as a result of the James
Ministries and departments (Aboriginal Bay and Northern Quebec Agreement.
Healing and Wellness Strategy, 2007). First Nations communities of Fond du
Lac and Black Lake (Athabasca Health This new order of government will answer
Authority, 2006). directly to the National Assembly of
Another example is British Columbia’s Quebec (INAC, 2007).
Tripartite First Nations policy framework
which is made up of the Transformative Another example is the Northern
Intertribal Health Authority (NITHA), In Alberta, the Métis Settlements Accord
Change Accord and the First Nations (1990), which replaced the 1938 Métis
Health Plan (TCA – FNHP) and provides a partnership of the Meadow Lake Tribal
Council, the Lac LaRonge First Nations, Betterment Act, includes a number of
for a new governance structure for First health-specific provisions, including the
Nations health services in BC (FN the Peter Ballantyne Cree Nation, and the
Prince Albert Grand Council collectively right to: a) make bylaws to promote the
Leadership Council et al., 2007). A similar health, safety and welfare of the residents
framework was developed in Nova Scotia representing nearly half of First Nations
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