4.1 Historic Treaties

4. FINDINGS: TREATIES, SELF-GOVERNMENT ACTIVITIES, AND INDIGENOUS HEALTH

Historic (numbered) treaties, modern treaties, and selfgovernment agreements play a significant role in addition to federal, provincial, and territorial policies in the governance of Indigenous health. Historic treaties are the numbered treaties, signed between 18711921 (CIRNAC, 2020); whereas modern treaties, also known as Comprehensive Land Claims Agreements, are signed in areas where historic treaties were never negotiated. CIRNAC defines modern treaties as: …typically tripartite, including

Indigenous organizations or nations, the Crown, and provincial/territorial governments as signatories.

They provide clarity and predictability with respect to land and resource rights, ownership, and management.

The rights defined in them are constitutionally protected. (CIRNAC, 2019, p. 4)

Comparatively, self-government agreements are written forms describing how Indigenous governments and communities will exercise their inherent and constitutionally protected right to self-government. These agreements may be established within or in association with modern treaties, or as entirely separate entities. Self-government agreements typically establish governance structures, which may or may not include additional provisions specific to jurisdiction in health or other services (CIRNAC, 2019).

There has been much activity in the last few decades in the development of treaties and self-government agreements. Although Treaty 6 continues to be a foundational numbered treaty with respect to health, due to its Medicine Chest Clause written in the text, interpretations in the Canadian judicial system have since expanded its scope to apply to other treaty territories and further recognition of oral agreements for health care through the treaty signing process are coming to light (Craft & Lebihan, 2021). Furthermore, several modern treaties and self-government agreements have been signed, almost all with relevance to health and health care in some capacity. The following sections navigate these updates, highlighting significant elements to Indigenous health and health care provision.

4.1 Historic Treaties

Historic treaties often involved the exchange of services, resources, and materials for Indigenous Peoples’ traditional lands, in the settler’s pursuit to expand westward in what is now known as Canada. Section 35 of the Constitution Act (1982) protects and affirms treaty rights to such services, resources, and materials negotiated through the treaty process. There are a variety of historic treaties in Canada, such as the Treaties of Peace and Neutrality signed between 1701-1760, Peace and Friendship Treaties signed between 17251779, Upper Canada Land Surrenders and the Williams Treaties signed between 17641862 and in 1923, Robinson Treaties and Douglas Treaties

signed between 1850-1854, and the Numbered Treaties signed between 1871-1921 (CIRNAC, 2020). This report focuses on the numbered treaties and their implications on Indigenous health, specifically through the sixth numbered treaty.

Eleven numbered treaties were signed in total, with only Treaty 6 including specific provisions related to health care access in its text. It states: “a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians at the direction of such agent” (Treaty No. 6, 1876). The Medicine Chest Clause has received varied Supreme Court interpretations concerning its application and meaning. In the 1935 Dreaver v. The King decision (Opekokew, 1996), Justice Angers adopted a broadened view, finding the clause to mean “that the Indians were to be provided with all the medicines, drugs or medical supplies which they might need entirely free of charge” (Dreaver v. The King, 1935, as cited in Opekokew, 1996). This interpretation was the first to characterize the federal role as one to fund health care as negotiated under Treaty 6, while respecting Indigenous selfdetermination in defining the health care need and necessary medicines or medical supplies for which the government must respond. As this decision was a victory for First Nations communities, it was not publicly reported until the 1970s (Opekokew, 1996), and therefore had little impact on subsequent court cases.

In 1966, the Supreme Court of Saskatchewan ruled in the Johnston Appeal that the Medicine Chest Clause “does not give to the Indian an unrestricted right to the use and benefit of the ‘medicine chest’ but such rights as are given are subject to the direction of the Indian agent”; a decision contradictory to Dreaver v. The King and absent of any self-determining principles (R. v. Johnston, 1966). This decision rather established an authoritative position of the federal government to determine the legitimacy of the First Nations health care need, as well as eligibility to receive services. The Johnston Appeal was met with a polarized debate concerning its narrow approach. Indigenous communities and treaty signatories consider the Medicine Chest Clause to reflect the Treaty right to health and wellness,15 borne out of all written and oral promises made at the time of negotiations (Craft & Lebihan, 2021; Lavoie et al., 2016b). Meanwhile, the federal government largely portrays its role in Indigenous health care to be an act of goodwill and policy, not in accordance to Aboriginal and treaty rights as protected by the Constitution (Boyer, 2014; Lavoie et al., 2016b).

Further judicial interpretations restore the broadened perspective of Treaty 6 and its application in health care, including: Saanichton Marina Ltd. v. Claxton in British Columbia (1989), Wuskwi Sipihk Cree Nation v. Canada (1999), and Health Sciences Association of Alberta v. Siksika Health Services in Alberta (2017). The latter case, Health Sciences Association of Alberta v. Siksika Health Services, confirms provisions under the Medicine Chest Clause to be flexible and in favor of Indigenous Peoples and communities, describing the R. v. Johnston decision (1966) as a “wrong approach in its literal and restrictive reading of the medicine chest clause” (Health Sciences Association of Alberta v. Siksika Health Services, 2017).

The Medicine Chest Clause continues to influence health care provision on Treaty 6 territory in many forms today. For instance, in March 2020, Samson, Ermineskin, Louis Bull Tribe, and Montana First Nations of Maskwacis declared a state of emergency in response to the global COVID-19 pandemic and its restraints on their health care system (Dubois, 2020). With this announcement, the First

15 For further information on the Treaty right to health, as well as the other numbered treaties and their relevance to Indigenous health, please see Craft & Lebihan (2021).