Applied Sciences

Week 6: Health Care Assessment: How has the law determined the health of Indigenous peoples?

Overview

The Canadian health system is a complex patchwork of policies, legislation and relationships. Further complicating the system is the multiplicity of authorities who are responsible for health services and programs: the federal, provincial/ territorial, and municipal governments; various Indigenous authorities; and the private sector (Wigmore & Conn, 2003). Indigenous health care in Canada has become even more complex as a result of self-government agreements and other mechanisms to expand Indigenous peoples’ involvement in the provision of locally needed services and programs. Coordinating the needs of Indigenous communities and various levels of government is an ongoing challenge.

Topics:

· Indigenous rights to Health

· Indigenous Health Legislation

· Health Transfer

· Integrated Agreements

· Policies- Provincial /Territorial

· Emerging models

· Cross-Jurisdictional Mechanisms

· Inter-Tribal Health Authorities

· Bill C31-Discrimination Against Indigenous Women

· Jordan’s Principle

Week 6: Health Care Assessment: How has the law determined the health of Indigenous peoples?

Indigenous Rights to Health

The Indigenous right to health is best understood as one of the several groups of constitutional rights protected by sections 35 and 52 of the Constitution Act, 1982.

The contemporary existence of Aboriginal rights stems from two key understandings:

1. First, prior to contact and at the time of contact, Indigenous societies were self-sustaining nations with evolved institutions such as law, policing, education, and health. The Supreme Court of Canada has acknowledged that: “… when Europeans arrived in North America, Indigenous peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.”

2. Second, Indigenous Peoples “have not deferred either our individual or collective right(s) to be sovereign.” This latter understanding is significant as it illustrates that Indigenous Peoples have a different understanding of social control from that of non-Indigenous Canadians who accept that social control is state-imposed and, therefore, outside the individual. Implicit in this acceptance is the relinquishment of individual freedoms.

Indigenous rights are based on pre-contact views and practices of Indigenous knowledge, heritage, law, culture, and traditions of health and healing but also are inherent in the continuity of practices that govern the daily lives of Indigenous people. For many Indigenous communities, these institutions continue to exist in dynamic contemporary forms.

Section 35 of the Constitution Act, 1982.

According to the judiciary, in order for an activity to be an Aboriginal right, the activity must be:

1. An element of a practice, custom, or tradition integral to the distinctive culture of the Indigenous group asserting that right.  In order for a practice to be integral, it must have been of “central significance” to the society and must be a “defining characteristic” and “one of the things that made the culture of the society distinctive.”

2. Developed before contact. Practices that developed “solely as a response to European influences” do not qualify as an Indigenous right;

3. Specific to a definable Indigenous group and the right in issue must be distinctive in relation to that society.

Source:

Boyer, Y. (2003). Aboriginal Health: A Constitutional Rights Analysis.

Week 6: Health Care Assessment: How has the law determined the health of Indigenous peoples?

Review The Canadian Health Care System (Week 2)

Review: The federal government’s role in the provision of health services is primarily through the limited public health and prevention services offered by the First Nations and Inuit Health Branch (FNIHB). Services are offered to status (registered) Indians living on-reserve and to Inuit living in their traditional territories (Health Canada, 2003a; 2008). The Branch provides non-insured health benefits (NIHB) such as prescription drugs, dental and vision coverage to all status/registered Indians and Inuit, regardless of where they live;iv however, non-insured health benefits are not offered to Métis. Physician and hospital care is provided by provincial and territorial governments (Health Canada, 2008). Thus, for First Nations peoples living on-reserve, health care is predominately the federal government’s responsibility; other Aboriginal groups, with very few exceptions, fall under the purview of the provincial or territorial governments.

As a result of historical legislative vagueness, and the multiplicity of authorities that resulted, the Indigenous legislation and health policy framework is very complex, resulting in a great deal of diversity in health service provision across provinces and territories. The framework fails to adequately address the health care needs of the Métis or First Nations and Inuit people who are either not registered or not living on reserve/traditional territory (UNICEF Canada, 2009), and has also resulted in much jurisdictional debating about who should pay for health services in particular contexts. For Canada’s Indigenous peoples, these jurisdictional debates add to this complexity and negatively impact access to appropriate and responsive health care (Hawthorne, 1966; Romanow, 2002).

Week 6: Health Care Assessment: How has the law determined the health of Indigenous peoples?

Health Transfer

The past forty years have seen a transformation in the provision of Indigenous health services and programs to increase and enhance the involvement of First Nations and Inuit peoples in the control and delivery of community-based health services. It is now widely acknowledged that Indigenous communities themselves are better positioned to identify their own health priorities and to manage and deliver healthcare in their communities (Wigmore & Conn, 2003; Lavoie et al., 2005, 2010).

Health Transfer

The movement towards transfer of control began with the federal government’s 1979 Indian Health Policy, which recognized that First Nations and Inuit could assume responsibility for administering any or all of their community health programs. It culminated in the development of a Health Transfer Policy framework in 1989, which provided an opportunity for Aboriginal communities south of the 60th parallel to assume control of resources for community-based health programs at their own pace (Wigmore & Conn, 2003).

Today, most First Nations communities design and implement their community health programs and employ the majority of their health services staff. Benefits of the health transfer policy have included increased community awareness of health issues, more culturally sensitive health care delivery, improved employment opportunities for community members, a sense of empowerment and self-determination, and an improvement in the community’s health status (Lavoie et al., 2005; 2010).

Source: http://www.arnbccommunitiesofpractice.ca/ahnn/wp-content/uploads/2015/03/Health-Legislation-Policy-eng.pdf

Week 6: Health Care Assessment: How has the law determined the health of Indigenous peoples?

Integrated Agreements

For communities deemed too small to successfully transfer control over health, an integrated model was established in 1994 as a mechanism for broadening opportunities for community control. Provisions and criteria for eligibility differ somewhat from the health transfer model. In addition to communities south of the 60th parallel, communities in the Yukon and Northwest Territories are also eligible. As of 2003, 176 communities have signed an integrated agreement (Health Canada, 2003b).

Source: http://www.arnbccommunitiesofpractice.ca/ahnn/wp-content/uploads/2015/03/Health-Legislation-Policy-eng.pdf

Week 6: Health Care Assessment: How has the law determined the health of Indigenous peoples?

Self-Government Agreements

At the territorial and provincial levels, some legislation contains specific provisions clarifying the responsibilities of the governments of these territories and provinces in Indigenous health. These are, however, quite limited and focused on jurisdiction. For example, legislation in Alberta is said to apply to Métis settlements. Alberta, Saskatchewan, Ontario and New Brunswick legislation specifically state that the Minister responsible for health may opt to enter into an agreement with Canada and/or First Nations for the delivery of health services, thereby clearly indicating that the provisions of services are outside of the province’s mandate.

Self-government agreements, where they exist, define areas of jurisdiction for the federal, provincial/territorial and Aboriginal governments. This is reflected in legislation. Health legislation in the Yukon, Quebec and Newfoundland & Labrador contain provisions related to existing self-government agreements, thereby clarifying these territory/province’s roles and responsibilities in health only in the areas included in these self-government agreements.

Finally, some provinces and territories have embedded provisions related to Aboriginal healing and ceremonial practices. The Yukon is the only jurisdiction where health legislation recognizes the need to respect traditional healing practices. The legislation does not define what is included as traditional healing practices. Ontario and Manitoba recognize that Indigenous midwives should be exempted from control specified under the Code of Professions. Ontario extends this exemption to traditional healers. In addition, British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick and Prince Edward Island have adopted tobacco control legislation that clearly states that the use of tobacco for ceremonial purposes will not be regulated under the terms of this legislation.

There also exists a limited number of Indigenous-specific legislation and policies. Ontario was the first province to develop an Aboriginal Health and Wellness Strategy in 1990, and to develop an overarching Aboriginal Health Policy in 1994 (Government of Ontario, 1994). The Aboriginal Health Policy is intended to act as a governing policy and assist the Ministry of Health in accessing inequities in First Nation/Aboriginal health programming, responding to Indigenous priorities, adjusting existing programs to respond more effectively to needs, supporting the re-allocations of resources to Indigenous initiatives, and improving interaction and collaboration between ministry branches to support holistic approaches to health. This is the most comprehensive Aboriginal health policy currently in place in Canada.

Decentralization / Regionalization of Health Services

Most provinces have opted to transfer the authority over priority setting, planning and delivery of health services to regional health authorities. The purpose of decentralizing health care systems has been in part to increase public participation in decision making, set priorities regionally, and coordinate and integrate healthcare delivery (Kouri, 2002; Saltman et al., 2007; Yalnizyan, 2006). However, Ontario is the only province to currently require a council composed of Aboriginal peoples to advise on regional priority setting in healthcare (Lavoie et al., forthcoming; Government of Ontario, 2006).

Source: http://www.arnbccommunitiesofpractice.ca/ahnn/wp-content/uploads/2015/03/Health-Legislation-Policy-eng.pdf

Week 6: Health Care Assessment: How has the law determined the health of Indigenous peoples?

Emerging Models

Several coordination mechanisms have emerged to bridge jurisdictional gaps and to enhance Indigenous participation in identifying health priorities, designing strategies, and coordinating approaches to improve Indigenous health. Generally, these fall into two broad areas: cross-jurisdictional coordination models and intergovernmental health authorities.

1. Cross-Jurisdictional Mechanisms

Across the provinces and territories, there are several Indigenous specific health policy-frameworks that provide for cross-jurisdictional coordination mechanisms with the hope of bridging jurisdictional gaps. The frameworks are typically committee-based and bring together stakeholders in Indigenous health such as Indigenous organizations and federal and provincial government departments. The most comprehensive example is Ontario’s Aboriginal Health and Wellness Strategy (AHWS), which was developed in 1994. The AHWS is managed by a Joint Management Committee consisting of two representatives from each of the eight Indigenous umbrella organizations in Ontario, as well as several government Ministries and departments (Aboriginal Healing and Wellness Strategy, 2007).

Another example is British Columbia’s Tripartite First Nations policy framework which is made up of the Transformative Change Accord and the First Nations Health Plan (TCA – FNHP) and provides for a new governance structure for First Nations health services in BC (FN Leadership Council et al., 2007). A similar framework was developed in Nova Scotia in 2005 which focuses on the specific needs of the Mi’kmaq (Mi’ kmaq et al., 2005). Both of these frameworks, however, address only the needs of the First Nations population, not other Indigenous groups living within those provinces. Other examples of cross-jurisdictional mechanisms include the Saskatchewan Northern Health Strategy (Northern Health Strategy, 2008), and the Manitoba Inter-Governmental Committee on First Nations Health (Assembly of Manitoba Chiefs, 2010).

2. Inter-governmental Health Authorities

Intergovernmental health authorities are formal organizations created either through federal-provincial partnerships or self-government agreements. Examples of this are the unique health care structures that emerged as a result of the James Bay and Northern Quebec Agreement. These structures are extensions of the provincial health care system but are co-funded by the federal and provincial governments to serve the health care needs of Nunavik Inuit and the James Bay Cree.

The Athabasca Health Authority (AHA), established in Saskatchewan in 1995, is another example of an Indigenous health authority that is federally and provincially funded. Like the James Bay and Northern Quebec Agreement, the AHA has a funding agreement with both the provincial and federal governments for the provision of health services for four Métis communities in the Athabasca Basin area: Campbell Portage, Stony Rapids, Wollaston Lake Uranium City, and the First Nations communities of Fond du Lac and Black Lake (Athabasca Health Authority, 2006).

Another example is the Northern Intertribal Health Authority (NITHA), a partnership of the Meadow Lake Tribal Council, the Lac LaRonge First Nations, the Peter Ballantyne Cree Nation, and the Prince Albert Grand Council collectively representing nearly half of First Nations in Saskatchewan (NITHA, 2010). This makes NITHA the only First Nations health organization of its kind in the country. NITHA provides education and technical support to NITHA partners in the areas of communicable disease control, epidemiology and health status monitoring. NITHA is funded through a contribution agreement with FNIHB.

Source: http://www.arnbccommunitiesofpractice.ca/ahnn/wp-content/uploads/2015/03/Health-Legislation-Policy-eng.pdf

Week 6: Health Care Assessment: How has the law determined the health of Indigenous peoples?

Bill C-31 and Discrimination Against Women

What is Bill C-31?

Bill C-31, or a Bill to Amend the Indian Act, passed into law in April 1985 to bring the Indian Act into line with gender equality under the Canadian Charter of Rights and Freedoms.  It proposed modifications to various sections of the Indian Act, including significant changes to Indian status and band membership, with three major goals: to address gender discrimination of the Indian Act, to restore Indian status to those who had been forcibly enfranchised due to previous discriminatory provisions, and to allow bands to control their own band membership as a step towards self-government.

Indian status – gender discrimination

Under the Indian Act, an Indian woman who married a non-Indian man (whether non-Aboriginal or non-status) would lose her status. If she married an Indian man from another Indian band, she would cease to be a member of her own band and become a member of her husband’s band.  Legally, her status would become conditional on her husband’s status. Whether marrying an Indian man or non-Indian man, an Indian woman may be separated from her own family and community, as well as her connections to her heritage.  The Indian Act amendments of 1951 went further in codifying provisions regarding Indian status that discriminated against Indian women. Section 12(1)(b) removed status of any woman who married a non-Indian, including American Indians and non-status Aboriginal men in Canada.  Section 12(I)(a)(iv) introduced the “double mother” clause, wherein an Indian child would lose status if both their mother and grandmother acquired Indian status as a result of marriage, regardless of whether their father or grandfather had status.  Under the 1951 amendments, if an Indian woman’s husband died or abandoned her, she would be forcibly enfranchised and lose Indian status, since once she married her husband, her status became conditional on his status.  At this point, she would no longer be considered a member of her husband’s band, and would lose rights to live on those reserve lands and have access to band resources. Nor would she necessarily retroactively become a member of her previous band. She would be involuntarily, though lawfully, enfranchised, losing her legal Indian status rights and family and community connections. Her children could also be involuntarily enfranchised as a result. Compulsory enfranchisement disproportionately affected Indian women, since Indian men could not have their status forcibly terminated except through a lengthy and involved legal process.

Two court cases directly challenged the discriminatory sections of the Indian Act. Jeannette Corbiere Lavell married a non-Indian in 1970, and brought action in 1971 against subsection 12(1)(b), charging that it violated the equality clause in the 1960 Canadian Bill of Rights on the grounds of discrimination by reason of sex.  She lost her case at trial, but won on appeal. The results of this case were revisited by the case of Yvonne Bedard. Bedard lost her status when she married a non-Indian in 1964. She separated from her husband and attempted to return to her reserve to live in a house inherited by her mother. She found that she, and her children, was no longer entitled to live on reserve, as they no longer had Indian status and could not inherit reserve land. Her band gave her a year to dispose of the property and, fearing eviction, she brought legal action against her band. Bedard won the case based on the legal precedent set by the Lavell case. The cases were joined in appeal to the Supreme Court of Canada. In 1973 Bedard and Lavell lost their cases – the “marrying out” rule of the Indian Act was upheld.

Despite the result from the Supreme Court, the Bedard and Lavell cases brought visibility to the gender discrimination of the Indian Act.  The early 1970s saw major political action from both Aboriginal and non-Aboriginal women’s groups to pressure the Canadian government to change the law. This action was catelysed when Sandra Lovelace took her case challenging the Indian Act to the United Nations Human Rights Committee.  Lovelace, a Maliseet woman from Tobique in New Brunswick, had married an American man and moved away from her reserve community.  When the marriage ended some years later, she and her children attempted to return to her reserve to find that they were denied access to housing, health care, and education as a result of the Indian Act status provisions.  Lovelace joined the political action in the early 1970s, and took her case to the Supreme Court of Canada in 1974.  When the Supreme Court upheld the Indian Act, Lovelace took her case before the UN Human Rights Committee, which, in 1981, found Canada in breach of the International Covenant on Civil and Political Rights.  In 1982, the Canadian constitution was amended to include the Canadian Charter of Rights and Freedoms. Section 15 of the Charter states that that “every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability”.  Section 15 motivated the Canadian government to address the discriminatory sections of the Indian Act, influenced by Lovelace vs. Canada.  It wasn’t until April 17, 1985 that Bill C-31 was passed, which finally revised Indian status to address the gender discrimination of Act.

The Indian Act of 1985 abolished enfranchisement and restored status to those who had had status removed through enfranchisement.  It ended Section 12(1)(b), the “marrying out” rule, and 12(1)(a)(iv), the “double mother rule.”  It also terminated status of those who had acquired Indian status only through marriage, rather than descent.  This revision resulted in 127,000 individuals having status restored, and 106,000 losing status.

The revised Section 6 of the Act, “Persons Entitled to be Registered,” introduced two classes of Indians:

6(1) – those who can pass Indian status to their children;

6(2) – those who have Indian status, but cannot pass their status to their children unless the other parent is also has status.

Prior to 1985, Status Indian men could pass their status to their wives, and as a result of the 1985 Indian Act, their children are considered 6(1).  However, if women had “married out,” their children are considered 6(2)s and cannot pass on their status, creating a “second-generation cutoff.”  These revisions have been critiqued for only deferring the termination of Indian status by a generation, rather than adequately addressing the legal issues with the ways that legal status is determined and conferred.

Band membership

Under social pressure to grant greater self-government to Aboriginal peoples, the 1985 Indian Act was amended to included revisions that formally separated Indian status from band membership, granting bands responsibility for developing and managing their own membership, while Indian status remained in the control of the federal government.  Bands taking over membership are required to develop a membership code to submit to INAC, as well as submit a list of  all people included on the band membership list.

It is worth pointing out that INAC provides funding to bands only for Status Indians, not for band members.  As a result, despite the fact that bands can determine their own membership, the amount of federal resources that they can have access to is dependent on federally determined criteria.

The reinstatement of status to thousands of individuals meant that thousands of individuals qualified for the rights and benefits conferred by Indian status, inciting concerns that already strained band resources would receive additional burdens.  For instance, in British Columbia reserve housing is limited because reserve sizes are extremely small, and waiting lists can take years.  If reinstated individuals also required housing, the housing lists would become exponentially longer.  The separation of Indian status from band membership was an attempt to reduce the likelihood that a band would deny membership to those who had their status reinstated, though this revision did not come with any additional federal resource allocations to support reinstated individuals or bands in adding to their membership.

Source: http://indigenousfoundations.arts.ubc.ca/bill_c-31/

Week 6: Health Care Assessment: How has the law determined the health of Indigenous peoples?

Jordan’s Principle Background and Update

Jordan’s Principle is a child-first principle named in memory of Jordan River Anderson, a First Nations child from Norway House Cree Nation in Manitoba. Born with complex medical needs, Jordan spent more than two years unnecessarily in hospital while the Province of Manitoba and the federal government argued over who should pay for his at home care. Jordan died in the hospital at the age of five years old, never having spent a day in his family home. Jordan’s Principle aims to make sure First Nations children can access all public services in a way that is reflective of their distinct cultural needs, takes full account of the historical disadvantage linked to colonization, and without experiencing any service denials, delays or disruptions related to their First Nations status. Learn more by watching this video  here .

 

Payment disputes within and between federal and provincial governments over services for First Nations children are not uncommon. First Nations children are frequently left waiting for services they desperately need, or are denied services that are available to other children. This includes services in education, health, childcare, recreation, and culture and language. Jordan’s Principle calls on the government of first contact to pay for the services and seek reimbursement later so the child does not get tragically caught in the middle of government red tape.

In a landmark ruling on January 26, 2016, the Canadian Human Rights Tribunal ordered the federal government to immediately stop applying a limited and discriminatory definition of Jordan’s Principle, and to immediately take measures to implement the full meaning and scope of the principle.

In November 2016, the Caring Society, Assembly of First Nations, and interested parties (Chiefs of Ontario and Nishnawbe Aski Nation) filed motions stating that Canada has failed to comply with the Tribunal’s ruling and remedial orders. Three days of hearings on the non-compliance motions were held in March, 2017. On May 26, 2017, the Tribunal found that the Government of Canada has continued “its pattern of conduct and narrow focus with respect to Jordan’s Principle,” resulting in unnecessary and unlawful bureaucratic delays, gaps and denial of essential public. Click  here  for additional information.

Source: First Nations Child and Family Caring Society of Canada

Week 6: Health Care Assessment: How has the law determined the health of Indigenous peoples?

Summary of Week 6

We have explored the ways in which legal discourse has informed the current landscape of Indigenous peoples health. How might these various models and policies that directly influence Indigenous people’s health to create opportunities for self-determination and self-governance?

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