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5.1 Provincial and Territorial Jurisdiction in Indigenous Health
from Indigenous health in federal, provincial, and territorial health policies and systems
by NCCIH-CCNSA
5. FINDINGS: PROVINCES AND TERRITORIES AND INDIGENOUS HEALTH
Much like the federal government, the provinces and territories also approach Indigenous health care and relationships with Indigenous Peoples in varying ways through their health policy, legislation, and health care delivery systems. Some provincial and territorial policies and legislation more effectively fill the service gaps for non-status First Nations and Métis compared to others, such as the Aboriginal Health Policy in Ontario (Ontario Ministry of Health, 1994) and Métis Health Benefits Policy in the Northwest Territories (Northwest Territories Health and Social Services Authority [NTHSSA], 2021). However, jurisdictional ambiguities often remain in terms of how health service provisions apply to Indigenous Peoples (see Section 5.1). Moreover, many provinces and territories have undergone health care system reforms in the last decade, amending their health legislation to reorganize how care is delivered and how Indigenous communities are able to participate in the process sustainably (see Section 5.2).
In this section we describe the differing provincial and territorial approaches to Indigenous health through their health policies and legislation, exploring the following topics in line with the research objectives: jurisdiction establishment in Indigenous health care; opportunities for Indigenous participation in shaping health policy, programs, and services; recognition and respect for Indigenous healing practices and cultural safety in care; and approaches to restore and strengthen relationships with Indigenous Peoples within the health care system. Appendix C outlines all policies and legislation identified in this section. 5.1 Provincial and Territorial Jurisdiction in Indigenous Health
Each provincial and territorial health care system is governed by a series of health care legislation, often Medical, Hospital, and Public Health Acts, that outline and regulate the structure and functions of the health care system and ministerial responsibilities in matters of health care delivery, standards of care, and public health and safety. Federal policy and its stance on Indigenous health care provision creates jurisdictional divides and ambiguities for the administration of health services, fostering a convoluted system to outline and regulate Indigenous health care (Lavoie et al., 2016b). Provinces and territories (in regions uninvolved in self-government or modern treaty agreements) can be
inadvertently left to fill program gaps and ensure equitable access to clinical and administrative services for Indigenous Peoples within their mainstream health care system, with little direction or support from the federal government (Lavoie, 2018). In other cases, differential access to care remains.
To date, the Northwest Territories (NWT) is the only jurisdiction to fill health program gaps with respect to Métis Peoples and the federal Non-Insured Health Benefits Program (NIHB). Briefly, the Métis Health Benefits Policy (1995) in the NWT provides supplementary health coverage for Métis living in the territory and who are otherwise ineligible to receive care under the federal NIHB program. The policy and its eligibility criteria were updated in 2021, in response to access barriers and to more properly align with the UNDRIP articles (NTHSSA, 2021). While this policy fills program gaps, it is not intended to address jurisdictional responsibilities in Indigenous health care, nor explain how Métis fit into or are addressed by the mainstream health care system in the territory. Thus, there is merit in investigating how each jurisdiction in Canada approaches and articulates their role in overseeing or engaging in Indigenous health care as entrenched in their health legislation. 5.1.1 Explicit Inclusion of Indigenous Peoples in Health Legislation
Alberta and Nunavut are the only jurisdictions to explicitly include Indigenous Peoples in their health legislation. Alberta’s Public Health Act (2000) and Regional Health Authorities Act (2000) include Métis by acknowledging Métis settlements, as established by Alberta’s Metis Settlements Act (2000). Métis settlements are considered municipalities for whom the Acts and their public health and health care provisions apply. Likewise, Nunavut is the only territory to express its jurisdiction in health care for Inuit in its Public Health Act (2016), likely as a result of the Inuit Land Claims Agreement.
Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, and Prince Edward Island (PEI) all imply that health care provision on First Nation reserves is outside their jurisdictional responsibility, likely to align with federal responsibility in this area (see Appendix C). All provinces, except PEI, state that the health minister responsible for public health or health care may enter into agreements with Canada and First Nations band councils, as regulated under the Indian Act, for the purpose of carrying out duties under their respective Act. PEI is slightly different as in its Public Health Act (1988), the province signifies its separation from on-reserve health care provision by noting that in a public health emergency, the minister responsible may disclose information to Canada or First Nations bands to plan their response, thereby implying exclusion of First Nation bands from all other provisions under the Act.
British Columbia, Ontario, and the Yukon all suggest jurisdiction and responsibility in Indigenous health care, however, by using collective umbrella terms such as “Indigenous” or “Aboriginal” communities in their articulation, unspecifying whether these identifiers include all First Nations, Inuit, and Métis populations, as well as in reference to First Nations living on or off reserve (or both). For example, the Public Health Act (2008) in British Columbia, asserts the minister’s authority to develop health plans to address the needs of “aboriginal peoples.” In Ontario, the Local Health System Integration Act (2006) states health networks must annually report
“data relating specifically to Aboriginal health issues,” and the Connecting Care Act (2019) ensures the minister will engage with “Indigenous communities” prior to developing health plans. In the Yukon, the Health Act (2002) ensures the minister fosters partnerships and collaboration with “aboriginal groups” for the development and implementation of health services.
Furthermore, three provinces – Manitoba, Ontario, and New Brunswick – include conflicting provisions in their health legislation to suggest both inclusion and exclusion of jurisdictional responsibilities in Indigenous health care. While each jurisdiction states that health ministers may enter into agreements with First Nation communities to administer the Act, in the same legislation there are also requirements to engage with First Nation band councils to develop provincial health plans (Regional Health Authorities Act [1996] in Manitoba); establish Indigenous health councils to advise on health and service delivery issues (Ministry of Health and Long-Term Care Act [1990] in Ontario); as well as ensure Indigenous representation in appointments to Boards of Health (Regional Health Authorities Act [2011] in New Brunswick). Without further identification or the use of distinctions-based terminology, these provisions render points of confusion when interpreting the Act and provincial responsibilities in Indigenous health care.
5.1.4 Explicit Recognition of Self-Government or Modern Treaty Agreements in Health Legislation
Many provinces and all three territories are involved in self-government or modern treaty agreements that contain provisions regarding health and health care (see Section 4 and Appendix B). With this review, we found health legislation in Quebec, Northwest Territories (NWT), Newfoundland and Labrador (NFLD), and the Yukon to respect treaty rights as negotiated under modern treaty and self-government agreements signed within boundaries of their jurisdiction. In Quebec, legislation that describes the province’s health care system (Act Respecting Health Services and Social Services [1991]) respects the autonomy of the Cree Board of Health and Social Services of James Bay, established under the James Bay and Northern Quebec agreement, deeming it separate from the Act and the provincial minister’s authority. The Act also establishes the Nunavik Regional Board of Health and Social Services, to respect the autonomy of the Kativik Regional Government on matters of health and social services. The Act’s provisions still apply to the Nunavik Regional Board of Health and Social Services, although application is subject “to the special provisions enacted by [the] Act” (Act Respecting Health Services and Social Services, 1991, s. 530.2).
In the Northwest Territories, the Hospital Insurance and Health and Social Services Administration Act
