Indigenous health services often hampered by legislative confusion
The health of Indigenous people in Canada is an embarrassment to Canada and our health care system.
The reasons are multifactorial and long standing, many of them powerfully captured in the Truth and Reconciliation Commission’s Report. One contributing factor is lack of clear government accountability and historical arguments between provinces and the federal government over who is responsible for providing and paying for healthcare services for Indigenous peoples.
The federal government has made commitments to improve the care of Indigenous people and a few weeks ago created a new ministry focusing on Indigenous services. While details of this new portfolio are unclear and a Mandate Letter for the new Minister has not been publicly released Healthy Debate is taking a closer look at how Indigenous health care is currently delivered.
‘Not a puzzle, a patchwork’
Canada’s Constitution outlines the division of powers between federal and provincial or territorial governments. While the health of Canadians is a provincial and territorial responsibility, with the Canada Health Act (1984) outlining the responsibilities of provinces and territories for delivering health services, health support for Indigenous people is seen as the federal government’s responsibility, as outlined in the Indian Act (1876) (see side bar).
The federal and provincial governments negotiate health transfers based on the Canada Health Act, which specifies the conditions and criteria required of provincial health insurance programs. It doesn’t mention First Nations and Inuit peoples, Métis and non-status or off-reserve Indigenous peoples.
This lack of clarity – and lack of policies for providing Indigenous health services – has historically been used by both the federal government and provinces to narrowly define their responsibilities toward Indigenous health. It’s created bureaucratic delays that leave Indigenous peoples waiting for care or medications readily available to non-Indigenous Canadians. And it’s created gaps in care between Indigenous and non-status and First Nations people living off-reserve.
“When it comes to First Nations people, the division between provinces and the federal government is an imaginary one,” says Alika Lafontaine, an Oji-Cree anesthesiologist practicing in northern Alberta and past-president of the Indigenous Physicians Association of Canada. “There is no legislation that frames it that way, only a disagreement on who pays for the services. Governments can’t deny basic health care services to Indigenous peoples as a matter of law.”
Josée Lavoie, Director of Ongomiizwin Research at the University of Manitoba, conducted a comprehensive review of Aboriginal-specific policies and legislation on behalf of the National Collaborating Centre for Aboriginal Health in 2011, finding little to clarify responsibilities or resolve disputes.
“It’s not a puzzle, it’s a patchwork full of holes,” she says.
Health Canada supports funding transfers, health promotion programs and some services for mental health and chronic conditions through its First Nations Inuit Health Branch. The Non-Insured Health Benefit (NIHB) program, meanwhile, is a national insurance policy that provides prescription drug coverage to Status First Nations and Inuit people not covered by provincial, territorial or private insurance plans. Otherwise, First Nations and Inuit peoples, Metis and non-status or off-reserve Aboriginal peoples are meant to access health care through provincial health insurance plans.
“Where there gets to be some complexity with jurisdiction is whenever it comes to non-insured health benefits,” says Marion Crowe, Executive Director of the First Nations Health Managers Association, which provides training, certification, and professional development opportunities in health management. Determining what the federal government needs to provide beyond provincial allocations, or where there are discrepancies between provincial plans can exacerbate gaps and inequities.
On-reserve health managers are usually responsible for negotiating any additional supports, she notes, highlighting ambulance transfers as an example of where some First Nations communities have had success developing Memoranda of Understanding with the nearest ambulance service.
The Health Transfer Policy, introduced in 1989, ushered in ways for individual Indigenous communities to take control of community-based services and negotiate with the federal government directly for community-based services and some regional programming.
In 2013, the First Nations Health Authority (FNHA) in British Columbia became the first province-wide body of its kind to assume programs and services once delivered by Health Canada’s First Nations Inuit Health Branch.
Its work doesn’t replace or duplicate services provided by the provincial ministry of health, but includes health promotion and protection, environmental health, the NIHB program and health service funding arrangements for 203 recognized First Nations communities.
“What we did is we took the view that there should be no fight over jurisdiction,” says Grand Chief Doug Kelly, chair of the FNHA. “We could sit and squabble for 30 years about who has jurisdiction or set that aside and talk about how we share a common vision. We want to achieve better outcomes for Indigenous children, families and communities. How do we do that work? Together. By pooling investments instead of fighting over this program or that program, by putting money together, talking about priorities and investing in agreed upon issues and approaches to improve outcomes.”
The FNHA is guided by seven directives, and is administrative rather than prescriptive. Only four years into its health transformation agenda, Kelly says there’s still much work to be done, but they’re already seeing progress, particularly in improving access to primary care.
A similar agreement was announced this summer between the federal government, the Ontario health ministry and the Nishnawbe Aski Nation, which represents 49 communities in Northern Ontario. While details of the agreement are still being negotiated, Ontario’s health minister Eric Hoskins pointed to the FNHA as an example when announcing the new approach.
New hope with a new ministry
A new federal ministry devoted to service delivery in Indigenous communities is cause for optimism, but Lavoie says it’s critical to bring provinces into the discussion. “A new ministry is not bringing the province into the fold. It’s leaving the provinces off the hook in terms of delivering services.”
For now, it’s unclear what the new ministry, headed by former Health Minister Jane Philpott, will entail. Media reports suggest that the cabinet shuffle acts on a two-decade old recommendation made by the Royal Commission on Aboriginal Peoples to create two federal ministries focused on Indigenous affairs: one responsible for land claims and self-governing agreements and the other responsible for delivering federal services.
Lafontaine says he expects the new ministry will set up some kind of task force or expert committee to help design the goals and outcomes of its work. More challenging than how to structure the programming is ensuring it’s culturally appropriate and reflects a community’s priorities. Not every Indigenous community struggles with youth suicide or over-crowding, he notes, and a cookie cutter approach to those issues won’t be effective.
“The move to a new fiscal relationship is significant,” Kelly says. Leaving Indigenous people out of health care discussions and program design hasn’t worked. Instead, he says, First Nations communities should be empowered to identify their priorities and develop a plan. Once costs are attached, communities would negotiate with the government for transfer payments.
Groups like the FNHMA that Crowe represents have been working to prepare communities for the eventual transfer of responsibility, focusing on developing health human resource and health administrative capacity within First Nations communities.
“It’s really important that communities determine their own health priorities,” Crowe says. “Communities are in the best position be respectful of the culture and the history that impacts their own community, whether through residential schools or any kind of church-based practices that may have impacted the community.”
“When communities starts to see how a health system is supposed to look, they’re going to figure it out,” Lafontaine says.
“At the end of day, the government can never solve every health problem. This is true for Canadians as well as Indigenous people. What I hope is that this will build a community’s capacity to see the bigger picture and there will be room for them to figure out how to help their own communities. We’re not going to see huge jumps [in outcomes] until communities see themselves in the programming.”
LACK OF CLARITY IN LEGISLATION
While Indigenous services are clearly a federal responsibility, as per the Indian Act (1867), that document is widely acknowledged to have been an instrument of assimilation and several policy documents and pieces of legislation have been adopted since then to help guide or clarify roles and responsibilities. This includes, but is not limited to:
The 1979 Indian Health Policy, a brief, two-page document, talks about the special relationship between the federal government and Indigenous peoples, recognizing that the complex, interlocking nature of the health system means that “Federal, Provincial or Municipal Governments, Indian bands, or the private sector” all have a role to play.
It suggests the role of the federal government is in “public health activities on reserves, health promotion, and the detection and mitigation of hazards to health in the environment” while the provinces play a role “in the diagnosis and treatment of acute and chronic disease and in the rehabilitation of the sick.” Indigenous communities “have a significant role to play in health promotion, and in the adaptation of health services delivery to the specific needs of their community.”
The Indian Act (1985) gives the federal government the authority to make regulations related to medical treatment and public health of Indigenous health, but Lavoie’s points out that it “does not outline an obligation to provide services, and does not provide sufficient authority for a comprehensive public health and health service regulatory framework on First Nations reserves.”
Several of these Acts make no mention of Inuit peoples, and have been largely interpreted not to apply to non-status, off-reserve First Nations or Métis people.
In 1990, Ontario became the first province to develop an Aboriginal Health and Wellness Strategy, followed by an Aboriginal Health Policy in 1994, which the Ministry of Health is meant to use in accessing inequities in health programming for First Nations people.
The 2002 Romanow Report on Canadian Healthcare noted that mismanagement of health care funding and a poorly designed system of care had left Indigenous peoples facing serious health inequities. It recommended all levels of government come together to restructure Aboriginal health care.
That recommendation seemed to be gaining traction when, in 2005, federal, provincial and five national Aboriginal organizations signed the Kelowna Accord, setting targets to increase Aboriginal health professionals while reducing infant mortality, youth suicide, obesity and diabetes by 20 percent in five years. The $5 billion commitment lost momentum when Stephen Harper became prime minister, subsumed in the system-monitoring and measuring responsibilities of the Health Council of Canada, which was ultimately dismantled when the federal government decided against renewing the First Ministers Health Accord.
Jordan’s Principle was passed in Parliament in 2007 after Jordan River Anderson, a medically complex First Nations child from Norway House Cree Nation in Manitoba died in hospital at age five, his discharge home delayed by two years because the federal and provincial governments couldn’t agree on who would pay for his home care.
The principle dictates that the government of first contact must pay for the services and resolve disputes later. It also applies to other public services, including education, early childhood learning and child welfare.
However, since Jordan’s Principle was passed in 2007, the Canadian Human Rights Tribunal has ruled on three occasions that the federal government is applying the principle too narrowly.
The most recent ruling triggered a court challenge from the federal government earlier this year when the Tribunal found that delays in providing health equity for Indigenous children was linked to youth suicide in Wapekeka First Nation in northern Ontario.
A 2015 federal Auditor-General report highlighted poor health services in remote First Nations communities, finding insufficiently-trained staff at nursing stations, delays in record keeping, delays in the disbursal of medications and poor community consultation.
The April 2016 “Daniels Decision” by the Supreme Court determined that, in the context of the Constitution, Métis are included in the term “Indian” and therefore fall under federal jurisdiction. The decision did not demand that the federal government provide services to Métis or non-status First Nations people and did not change their eligibility for federal government programming or funding.
The Truth & Reconciliation Commission made several health-related recommendations, acknowledging that historical trauma has led to mistrust of the health care system, which has in turned left Indigenous people less likely to seek timely care and less likely to trust or access prevention programming, diagnostic tools or treatment options.
These findings and recommendations have created a sense of urgency in addressing Indigenous health, prompting the creation of a Ministry of Indigenous Services, whose mandate has not yet been confirmed.