In 2019, the Government of Canada committed to codeveloping, along with Indigenous peoples, distinctions-based health legislation that addresses systemic racism and promotes Indigenous health equity and self-determination in Canada. The government reaffirmed this commitment in the 2022 budget. This legislative approach provides important opportunities for Indigenous-led health transformation and has been cautiously but enthusiastically embraced by many Indigenous organizations. However, some warn that it may also be subject to the same enduring problems of governance, inclusion, representation, and contested treaty obligations that are the legacy of systemic racism and colonial Crown-Indigenous relations.
As a result of historic and ongoing racism and colonialism, Indigenous people have worse health outcomes than others in Canada across a wide range of outcomes. The goal of distinction-based Indigenous health legislation is to address these disparities with laws that acknowledge and address the distinct circumstances, rights and interests of First Nations, Métis and Inuit peoples in Canada. According to the Government of Canada the benefits of taking this approach are that legislation can provide an effective, durable mechanism for addressing systemic issues, create a concrete framework and stable resources for agreements and partnerships, and codify policy goals into legal obligations to which the government can be held accountable. The success of the First Nations Child and Family Caring Society in using Human Rights Tribunal and Federal Court of Canada rulings to compel the Government of Canada to implement Jordan’s Principle provides a striking illustration of this latter benefit.
Co-developing legislation means that First Nations, Inuit, and Métis people are active participants in creating and implementing legislation that directly affects them. This is crucial, as supporting and enhancing Indigenous self-determination is fundamental to transcending colonial relationships and achieving reconciliation. Moreover, Indigenous design, ownership and control of social policies and programs leads to more appropriate, relevant, and effective services for community members. In the Canadian context, the final reports and calls to action of the Truth and Reconciliation Commission (TRC) and National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG), along with the articles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), provide an important framework and set of precedents for what co-developed, distinctions-based legislation should look like and seek to accomplish.
These promising aspects of the federal government’s distinctions-based, legislative approach to health transformation have been encouraging to many, and some Indigenous organizations including the Assembly of First Nations (AFN), Métis Nation BC and the Manitoba Métis Federation, have expressed a cautious optimism about working with federal and provincial governments to developing legislation. First Nations have also been vigilant, however, in maintaining that new legislation cannot be allowed to abrogate or derogate existing treaty rights. Rather, it should explicitly affirm the Crown’s fiduciary responsibility to First Nations healthcare. This wariness is warranted. Though Indigenous Services Canada states directly that new legislation will not undermine constitutionally protected Aboriginal and Treaty rights, it is also the case that the Government of Canada does not expressly recognize healthcare as a treaty right, choosing to treat it instead as a policy choice. This is in sharp contrast to the position of many First Nations organizations, which assert treaty and inherent rights to equitable, accessible and culturally appropriate healthcare.
Some Indigenous organizations have also expressed concern that focusing on the distinctiveness of First Nations, Métis, and Inuit can obscure important differences in the experiences and needs of groups within these categories and exclude those who do not fit easily within any one of them. The Native Women’s Association of Canada, for example, notes that they have been excluded from consultation and warns that the government’s recognition of distinction based on status must not be to the exclusion of other distinctions including gender. They call for a more inclusive and intersectional approach. Geography and residence also create significant divisions which could be overlooked within the current framework. Despite their shared status, health services and policies vary significantly for First Nations living on reserves and those living in other areas, making these distinctions important.
Despite their large numbers, urban Indigenous people do not always have the same level of political representation. The Yellowhead Institute has suggested that UNDRIP legislation may provide a useful framework for thinking about Indigenous sovereignty in urban settings. However, thus far, Indigenous organizations that serve urban populations point out that they have not been adequately consulted or included in important policy discussions such as those related to the COVID-19 response. Indigenous people who do not have ‘Indian status’ also lack official representation within a distinctions-based framework that centres First Nations, Métis, and Inuit identity. At the same time, these status-bearing groups have to date been denied the authority to extend citizenship and its corollary rights to memberships of their choosing.
The distinctions-based approach to legislation that the government is currently pursuing may provide an effective path forward for self-determination and reconciliation, but it is not a path that can circumvent the thorny issues outlined here. These issues are rooted in Canada’s colonial history and are not easily overcome. Colonial policies created artificial divisions within communities which have been reinforced through differential status, rights, and access to services. Traditional forms of governance were displaced by patriarchal, colonially imposed systems, leading to problems of legitimacy and representation which still echo today. Moreover, Canada has repeatedly promised and failed to consult with Indigenous communities on policies and projects that impact them. Many remain skeptical that this approach will be any different. Ultimately, whatever approach the government takes, the solutions lie within Indigenous communities and there is no shortcut to genuine partnership, consensus building, and repairing trust in broken relationships.