Engagement guide: Co-developing federal distinctions-based Indigenous health legislation

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About the engagement guide

The Government of Canada is committed to co-developing distinctions-based Indigenous health legislation with First Nations, Inuit and Métis Nation partners.

This engagement guide was designed for:

This engagement guide contains:

Please visit Co-developing distinctions-based Indigenous health legislation for the latest updates and information about co-developing distinctions-based Indigenous health legislation.

Tips for using the engagement guide

If you would like to organize your own engagement session within your association, group or community you are welcome to consult the engagement questions. These engagement questions are available to help frame the discussion, but should not be considered an exhaustive list. You and your participants are welcome to explore other related subject areas.

The engagement reporting template shows how to summarize feedback from your session in a way that can be included in the Government of Canada's reporting and analysis, and that will be taken into consideration in the co-development of the legislative options. Once completed, submit your ideas in the reporting template and send to lsa-ihl@sac-isc.gc.ca where input will be received by Indigenous Services Canada officials.

Group sessions (in person or virtually, depending on local public health guidelines) are encouraged as they can bring out a wealth of knowledge, expertise and wisdom, and allow for active discussion.

Federal representatives are available if you wish to include them in your engagement sessions to answer any questions or make a presentation. To invite a federal representative to your session, send a request to lsa-ihl@sac-isc.gc.ca.

The list of existing literature provides useful information that may help to inform your input.

A message from the former Minister of Indigenous Services

"The longstanding inequities between Indigenous and non-Indigenous people in Canada in accessing high-quality, culturally relevant health services that remain in Canada are unacceptable. We must continue to speak up and most importantly, take action to address the systemic discrimination still existing in Canada's health care system.

This is a huge task. We cannot address this, each of us, alone. It is an undertaking that we must face together. And it starts with open dialogue, listening, and understanding what are Indigenous peoples' priorities when it comes to health and wellness. Our collaborations throughout this co-development effort, will ultimately be reflected in a distinctions-based Indigenous health legislation, one that serves to improve access to high-quality, culturally relevant health services – one that is responsive to the distinct needs of all Indigenous people, no matter where they live."

— The Honourable Marc Miller
Minister of Indigenous Services (2019 to 2021)

Co-developing distinctions-based Indigenous health legislation

In 2019, the Prime Minister of Canada mandated the Minister of Indigenous Services to "co-develop distinctions-based Indigenous health legislation, backed with the investments needed to deliver high-quality health care for all Indigenous peoplesFootnote 1". The September 2020 Speech from the Throne affirmed the Government of Canada's commitment to "expediting work to co-develop distinctions-based Indigenous health legislation with First Nations, Inuit and the Métis Nation." In support of this work, the 2020 Fall Economic Statement announced $15.6 million over 2 years, starting in 2021.

To co-develop distinctions-based Indigenous health legislation, Indigenous Services Canada will work collaboratively with First Nations, Inuit and Métis Nation partners. Engaging provinces and territories and their main health authorities will also be a necessary aspect of the co-development process.

Engagement for the co-development of distinctions-based Indigenous health legislation was officially launched at the January 27 and 28, 2021 National Dialogue on Addressing Anti-Indigenous Racism in Canada's Health Systems. This was the second national dialogue held following the death of Joyce Echaquan in September 2020 and the harrowing reminder of the racism faced by Indigenous peoples, including First Nations, Inuit and Métis, in Canada's health systems.

Current status of Indigenous health in Canada

Significant and long-standing gaps persist between Indigenous and non-Indigenous people in Canada in accessing high-quality, culturally relevant health services. The factors underlying these gaps and the ability to address them are multi-faceted. Although the health of Indigenous peoples in Canada has been improving in recent years, First Nations, Inuit and Métis continue to experience considerably lower health outcomes than non-Indigenous people in Canada.

Despite having access to federal, provincial and territorial health resources, First Nations, Inuit and Métis face disproportionate burdens of disease or health disparities, including high rates of infant mortality, injury, death by suicide, chronic and communicable diseases, and rank among the lowest in various social determinants of health. Although not an exhaustive list, these gaps have been well documented in reports, commissions, audits and evaluations.

Why legislation

While a range of instruments are available for accomplishing federal policy objectives, legislation offers certain benefits. Legislation can provide an opportunity to seek to address systemic issues in a positive, lasting way to support creative solutions to be put forward in collaboration with First Nations, Inuit and Métis to ensure health services meet their needs. It can offer a concrete framework in which agreements and partnerships can occur, across the country, according to communities' distinct needs, with the backing of stable resources. Legislation can create a stable framework for change. Because of its public nature and the open, transparent, formal parliamentary process engaged in its creation, the provisions of a law are more enduring than ordinary government policy.

On the other hand, legislation is not set in stone. It can be amended through the parliamentary process, which is open to the scrutiny of the public. In this way, legislation balances the creation of a stable framework with the flexibility necessary to make adjustments as circumstances demand. It does not freeze a legal relationship in time or preclude opportunities to create better solutions in the future. It is also important to note that the creation of new legislation to address how Canada delivers services to Indigenous peoples will not extinguish or undermine existing Aboriginal and Treaty rights, which are protected by section 35 of the Constitution Act, 1982. Neither will legislation prevent Indigenous peoples from continuing to exercise Aboriginal rights that may be protected under section 35, or from negotiating the implementation of rights in future modern Treaties, agreements or other constructive arrangements.

A law is open and public. It can offer a transparent and concrete tool for achieving specific objectives. Among other things, it can serve to translate policy goals into legally enforceable obligations. For example, it can be used to make government obligations clear and public, and create a path for holding the government to account through the courts if necessary. Legislation can also provide the federal government with the necessary legal authority to be more responsive to the goals and aspirations of Indigenous peoples, for example, by removing some existing legal barriers on information sharing.

Finally, legislation has deep symbolic value. A preamble, which appears at the beginning of a law, can be used to recite and therefore document the circumstances and considerations that gave rise to the need for legislation. This can be used to clearly state the historical context, the pressing need for change, the values that must inform this change and the goals sought to be achieved. A preamble is considered an integral part of a law and receives serious attention from courts in interpreting the law. A preamble to Indigenous health legislation could incorporate the shared values and aspirations that emerge from engagement and the co-development process.

Objectives

The co-development of distinctions-based Indigenous health legislation is an opportunity to:

  • establish overarching principles as the foundation of health services for Indigenous peoples, including First Nations, Inuit and Métis
  • support the transformation of health service delivery through collaboration with Indigenous peoples, provinces, territories and affiliate organizations in the development, provision and improvement of services to increase Indigenous-led health service delivery
  • advance the Government of Canada's commitment to reconciliation and a renewed nation-to-nation, Inuit-to-Crown and government-to-government relationship with First Nations, Inuit and Métis Nation partners based on the recognition of rights, respect, co-operation and partnership

Co-development will

  • Build on lessons learned from previous engagement efforts with First Nations, Inuit and Métis Nation partners, provinces and territories, for example:
  • Build upon existing national and regional First Nations, Inuit and Métis Nation plans and priorities
  • Complement existing provincial and territorial health systems, and/or self-government, or tripartite models already in place

Definitions

Distinctions-based

  • The Government of Canada recognizes First Nations, Inuit and the Métis Nation as the Indigenous peoples of Canada, consisting of distinct, rights-bearing communities with their own histories, including with the Crown. A distinctions-based approach ensures that the unique rights, interests and circumstances of First Nations, Inuit and Métis are acknowledged, affirmed and implemented

Co-development

  • A collaborative and participatory approach that supports the concept of "nothing about us without us", acknowledging the distinct nature and lived experience of First Nations, Inuit and Métis
  • Supports Canada's constitutional relationship with Indigenous peoples, recognized and affirmed under section 35 of the Constitution Act, 1982
  • Guided by the Truth and Reconciliation Commission's Calls to Action and the Missing and Murdered Indigenous Women and Girls Inquiry's Calls for Justice
  • Guided by the Act respecting the United Nations Declaration on the Rights of Indigenous Peoples
  • Represents reconciliation in action and can only be achieved through open and transparent engagement

Co-development in the context of health legislation

  • Given the complexity of the Canadian legal and constitutional landscape, in-depth and structured engagement with First Nations, Inuit, the Métis Nation, provinces and territories, subject matter experts and other groups is needed to ensure a successful outcome for all Indigenous peoples
  • As a first step, the Government of Canada will work collaboratively with national and regional First Nations, Inuit, and Métis organizations and provinces and territories to reach agreement on an engagement structure for the co-development of options
  • The agreed upon structure will guide us as we move forward through the stages of co-development of a legislative approach that supports the vision expressed through various federal commitments and that sets the stage for high-quality, culturally relevant health care for all Indigenous peoples, backed with needed investments

Legislation

  • Legislation refers to written laws, often referred to as acts or statutes, which, at the federal level, are enacted by Parliament, as well as associated regulations. Draft legislation, called a bill, is introduced to Parliament and requires the approval of the House of Commons, the Senate and the Crown (usually the Governor General) to become law
  • Learn more about how legislation is developed:

Canada's relationship with Indigenous peoples, including First Nations, Inuit and Métis

First Nations, Inuit and the Métis Nation have a relationship with the Crown that is guided by constitutional principles including the honour of the Crown, as well as the constitutional protection of Aboriginal and Treaty rights. This relationship, including existing Aboriginal and Treaty rights, is recognized and affirmed in section 35 of the Constitution Act, 1982. A fundamental purpose of section 35 of the Constitution Act, 1982 is reconciliation. This is an ongoing process through which First Nations, Inuit, the Métis Nation and the Crown work cooperatively to establish and maintain a mutually respectful framework, with a view to fostering strong, healthy and sustainable Indigenous communities.

The Government of Canada's approach to reconciliation is also guided by the Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, the Truth and Reconciliation Commission's Calls to Action, the Missing and Murdered Indigenous Women and Girls Calls to Justice, the Principles Respecting the Government of Canada's Relationship with Indigenous peoples, the aforementioned special constitutional relationship First Nations, Inuit and Métis Nation have with the Crown and collaboration with First Nations, Inuit and Métis Nation, as well as provincial and territorial governments.

Treaties and agreements

The Government of Canada recognizes that treaties (both historic and modern), land claim agreements and other constructive arrangements exist with Indigenous peoples, including First Nations, Inuit and the Métis Nation. Honouring the treaty relationship and agreements and negotiating new treaties and agreements based on respect, co-operation and partnership, is key to achieving lasting reconciliation with Indigenous peoples. It is acknowledged that treaty partners and those who have existing agreements with Canada may have different interests and views than others. The engagement process seeks to include the views of as many Indigenous voices, leadership and communities to ensure that the legislation is compatible with and respectful of the rights and law-making powers described in their treaties and agreements.

The Government of Canada recognizes 70 historic treaties in Canada signed between 1701 and 1923. These treaties include, Treaties of Peace and Neutrality (1701 to 1760), Peace and Friendship Treaties (1725 to 1779), Upper Canada and the Williams Treaties (1764 to 1862 and 1923), Robinson Treaties and Douglas Treaties (1850 to 1854) and The Numbered Treaties (1871 to 1921).

Historic treaties are honoured as frameworks for living together, including the modern expression of our ongoing mutual relationships. In accordance with the Royal Proclamation of 1763, many Indigenous nations and the Crown historically relied on treaties for mutual recognition and respect to frame their relationships. Across much of Canada, the treaty relationship between Indigenous nations and the Crown is a foundation for ongoing cooperation and partnership with First Nations, Inuit and the Métis Nation.

In addition to the historic treaties, a number of First Nations, Inuit and Métis Nation rights holders in Canada have signed modern treaties, comprehensive land claims or self-government agreements. These include, but are not limited to:

Some agreements include provisions relating to health. Certain agreements also include law-making jurisdiction over matters relating to health and traditional healing.

Permanent Bilateral Mechanisms

Other important advances to the relationship with Indigenous peoples include permanent bilateral mechanisms with First Nations, Inuit and Métis Nation leaders to identify joint priorities, co-develop policy and monitor progress. These new mechanisms were announced in December 2016 as part of the federal government's commitment to advancing reconciliation with Indigenous peoples. There are 4 permanent bilateral mechanisms in place:

List of existing literature

Literature that may help to inform you or your participants' input:

Questions to guide engagement

These questions are intended to guide discussions on distinctions-based Indigenous health legislation and may be adapted to reflect the priorities of those attending the engagement sessions. Not all questions may apply, please use those that are most relevant. Lastly, this list is not exhaustive.

Principles

  1. What are some of the values or core principles that might guide the process of co-development?
  2. How can the spirit of Joyce's Principle (PDF)Footnote 2 inform the co-development of distinctions-based Indigenous health legislation?
  3. What are some of the values or principles that should guide the relationship between First Nations, Inuit and Métis Nation and the Government of Canada with respect to Indigenous health?

Goal and objectives

  1. What is the overall goal of distinctions-based Indigenous health legislation, from your perspective?
  2. What do you view as the essential objectives of distinctions-based Indigenous health legislation?

Health services

  1. What would transformative change in the area of First Nations, Inuit and Métis Nation health look like to you? How can the federal, provincial and territorial governments work collaboratively with First Nations, Inuit and Métis to support transformative change in health?
  2. What are some of the main gaps or barriers faced by First Nations, Inuit and Métis in accessing equitable, high-quality, culturally relevant health services, that are free from discrimination and racism?
  3. Are there particular gaps that could be addressed through federal distinctions-based Indigenous health legislation? If so, how?
  4. In keeping with Joyce's Principle, how might resources be best used or directed to:
    1. support equitable access for Indigenous peoples, including First Nations, Inuit and Métis, to all social and health services without discrimination?
    2. further respect for Indigenous peoples traditional and living knowledge in all aspects of health?
    3. support the equal enjoyment of the highest attainable standard of physical and mental health for Indigenous peoples, including First Nations, Inuit and Métis?
  5. What works well within current health systems at the federal, provincial, territorial and municipal levels in your respective jurisdiction? What are some examples?
  6. Can some of these successes be applied to other areas that are working less well? Where might this occur?
  7. What is needed to support opportunities for Indigenous peoples, including First Nations, Inuit and Métis to enhance their capacity and collaborate in the design, delivery and management of federally funded health services?

Funding

  1. What funding obstacles do you face in accessing health care services?
  2. Are there specific funding models (for example, needs-based model, distinctions-based models) that should be considered? If so, what are they?
  3. How can funding be better designed to meet the unique needs of different First Nations, Inuit and Métis Nation communities?

Accountability

  1. How might resources be best used or directed to support accountability for accessibility and equality in health care?

Engagement reporting template

The engagement reporting template suggests items to consider when summarizing your engagement activities. Your report can be customized based on your findings but try to provide a summary of the key themes.

Submit the following information to lsa-ihl@sac-isc.gc.ca:

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