‘Health Care Is NOT A Treaty Right’


Welcome to another episode of ‘Canadian Mythology’:
Today’s Episode — “Treaties guarantee free health care for aboriginals”

ERBLTreatyRightsEqualsFreeHealthCare800x800“Treaty Number Six was unique as it was THE ONLY TREATY OF ITS SORT WITH AN IMPLIED PROVISION FOR HEALTH CARE. It allows a medicine chest to be kept in the home of an Indian agent for the use and benefit of the aboriginals.

“Some aboriginals have interpreted this provision as extending to all who signed the Numbered Treaties. It is also interpreted by some as a promise by the federal government to provide free health care to every aboriginal person in Canada — forever.”

–“1876 – 1877: The Indian Act, 1876 and Numbered Treaties Six and Seven”
{CAPS added}


treaty6mapWell then — let’s investigate, shall we? 
‘Treaty 6’: 

“That in the event hereafter of the Indians comprised within this treaty being overtaken by any pestilence, or by a general famine, the Queen, on being satisfied and certified thereof by Her Indian Agent or Agents, will grant to the Indians assistance of such character and to such extent as Her Chief Superintendent of Indian Affairs shall deem necessary and sufficient to relieve the Indians from the calamity that shall have befallen them…

“That 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…”


“…most of the treaty’s terms are similar to those of the other numbered treaties across Western Canada during this period. But these bands had had recent horrible experience with the smallpox plague, which traditional medicines were ineffective against. They negotiated the promise of assistance in case of a “pestilence” or a “famine” (because the buffalo were pretty well done for by that time, mostly due to actions in the U.S.). A clause promised that a “medicine chest will be kept at the house of each Indian Agent for the use and benefit of the Indians.”

–“Treaty 6”, The Encyclopedia of Saskatchewan 

“The ‘First Nations’ further negotiated terms NOT PROMISED IN EARLIER TREATIES, such as: the medicine chest, and assistance in times of calamity and pestilence. It is considered {by some} in present day that the medicine chest led to the concept of ‘free health care’.

“There was much discussion around the term of “calamity and pestilence”. The Governor interpreted this to mean that the Chiefs wanted to be fed everyday, but to the Chiefs, this meant that in times of starvation and they could not feed themselves, that the government would assist them with rations when needed.”
{CAPS added}


Chief Beardy and men, with interpreter
Chief Beardy and men, with interpreter

“The interpretation of that clause is very different for the federal government employees or bureaucrats, and the Indian leadership, because to us and to our elders and leaders who negotiated and signed that treaty, it refers to health care and health benefits for our people….”

—Former Grand Chief of the FSIN, Perry Bellegarde (Wikipedia — “Treaty 6”) 

For starters, that is not what’s recorded in the record of the Treaty negotiations:

[71] “On the resumption of negotiations, Poundmaker broached the subject of FAMINE RELIEF. While his people were anxious to make a living for themselves, he wanted assurances that they would receive help when needed. Morris demurred:

“I cannot promise…that the Government will feed and support all the Indians; you are many, and if we were to try to do it, it would take a great deal of money, and some of you would never do anything for yourselves.”

[72] “The Badger clarified their motives:

“We want to think of our children; we do not want to be too greedy; when we commence to settle down on the reserves that we select, it is there we want your aid, when we cannot help ourselves and in case of troubles seen and unforeseen in the future.”

“Morris countered that the Cree had to trust the Queen’s generosity.

“The Badger responded:

“I do not want you to feed me every day; you must not understand that from what I have said. When we commenced to settle down on the ground to make there our own living, it is then that we want your help…”

[73] “Mistawasis added:

“…it is in the case of any extremity, and from the ignorance of the Indian in commencing to settle that we thus speak;…this is not a trivial matter for us.”

[74] “When the meeting reconvened, the interpreter read the chiefs’ list of demands. These included additional tools, implements, and livestock, a supply of medicines, exemption from war service, the banning of alcohol, and the provision of schools and teachers on the reserve. They insisted that the traditional hunting practices be guaranteed, as well as the earlier request for provisions during the transition to farming AND TO GUARD AGAINST FAMINE.

[75] “Morris acceded to most of the new demands. He agreed to add a clause to the treaty providing famine assistance.

[76] “The majority of the Cree chiefs and headmen were prepared to accept the treaty, believing it was the best strategy for survival. They recognized the need to adjust to the new conditions. With assurances that the “great mother” and her representatives would keep a “watchful eye and sympathetic hand” on them, some 50 men, led by Mistawasis and Ahtahkakoop, affixed their mark to the document after the commissioners’ signatures.”

Quoted from a ‘Specific Claims Tribunal’ judgment {CAPS added}:


negotiations2   “…that treaty, it refers to health care and health benefits for our people….”

It’s interesting that Bellegarde would think that, considering that most of the Indian bands signed on to Treaty 6 between 1876-1878, and

“The first implementation of (Canadian) nationalized public health care — at the federal level — came about with the ‘Hospital Insurance and Diagnostic Services Act’ (HIDS), which was passed by the…government of Louis St. Laurent in 1957, and was adopted by all provinces by 1961.”

–Wikipedia http://en.wikipedia.org/wiki/Medicare_%28Canada%29
“While the federal government denies free medical care is part of the treaty, it does fund it for Status Indians as a matter of “policy”… In practice, this means that Ottawa picks up the tab on behalf of Status Indians for services such as dental care, not covered by most provincial health plans.”

–“The treaties – a summary”, CBC News Online, Nov. 17, 2005 

So, are we clear about that? We are NOT providing ‘Status Indians’ with free and supplemental health care because of Treaty obligations, but as a matter of “policy”…

We at ERBL believe that Canadian aboriginals, as Canadian citizens, are entitled to be part of the provincial health care systems, and it is discriminatory and ridiculous to have a separate medical system for one racial or ethnic group. However, the “free” and “supplemental” parts of aboriginal health care delivery are also discriminatory towards the rest of Canadian citizens, and are therefore offensive — no matter how well intended… Help should be provided on the basis of need — not race or ethnicity… 

Canadian-Health-Care-01“…every Canadian has access to universal and taxpayer-funded health care through their provincial ministry of health. However, Health Canada runs the Non-Insured Health Benefits Program which gives additional health care benefits to ‘First Nations’ and Inuit peoples.

“Health Canada notes that 846,024 ‘First Nation’ and Inuit peoples have access to “medically necessary drugs, dental care, vision care, medical supplies and equipment, short-term crisis intervention mental health counselling, and medical transportation.” The cost of dental treatment, eyeglasses, ambulatory services, and everything else on that list is not cheap: in 2010/11, the bill to taxpayers was just over $1 billion.

“That amounts to a $1,200 health care benefit per eligible enrollee, this while the other 34.2 million Canadians must buy insurance for such services and goods or pay out of pocket (Statistics Canada, 2013).

“Some other Canadians may have such benefits covered by their employer, but the relevant point is that a taxpayer-funded program exists, specifically for Aboriginals, that is not available to non-Aboriginal Canadians, AND WHICH IS NOT REQUIRED BY TREATY OR BY THE CONSTITUTION…”

–“Is Canada Shortchanging Aboriginals?”, Fraser Institute {CAPS added}


Treaty6FlagSo, what happens when you fund an organization like the ‘National Aboriginal Health Organization’?

You get a ‘research’ paper trying to rationalize a ‘Treaty right to health care’, of course:

“Despite the entrenchment of aboriginal and treaty rights in Canada’s Constitution (through section 35) the federal government has not acknowledged the impact of such entrenchment on aboriginal and treaty ‘rights to health’. This paper demonstrates that there is a ‘treaty right’ to medical services {?}, a ‘fiduciary duty’ to provide medicines {?}, a ‘reasonable and legitimate expectation’ to receive supplemental medicines and health care {?}, and an ‘aboriginal right to health’ {?}…”

{! I’ll say…}

“The recognition and affirmation of the ‘inherent’ (aboriginal and treaty) rights of the aboriginal peoples of Canada change {“undermine”} the structure and scope of legislative power. By entrenching aboriginal and treaty rights in the Constitution of Canada, these rights are given the highest protection by law in the country…

“In light of the constitutional reform and judicial interpretations surrounding aboriginal and treaty rights, LAWMAKERS AND POLICY MAKERS CAN BE COMPELLED {“FORCED”} TO ACCEPT THE EXISTENCE AND IMPLEMENTATION OF ABORIGINAL AND TREATY ‘RIGHTS TO HEALTH’ IN CANADA…
{So now it’s a ‘right to health’, not just ‘health care’???}

“…The Supreme Court has confirmed that it is the duty of a just government to protect these ‘inherent’ rights. These ‘inherent’ rights are not dependent upon Canadian law for their existence… Aboriginal rights are ‘inherent’ to all aboriginal people in Canada and are passed down from generation to generation. They are derived from aboriginal knowledge, heritage, and law…
{? No, these so-called ‘rights’ derive from your ancestors supposedly living here ‘First” — a recently-created legal ‘principle’, created without the participation of the Canadian people and in opposition to the fundamental values of the Canadian Nation…}

“The Supreme Court of Canada has recognized that Indian treaties constitute a ‘unique type’ of agreement that attract ‘special principles of interpretation’. {That’s for sure!}

The controlling premise of treaties is that the parties are only bound by those rules to which they have consented.

“Indian nations and tribes that signed the treaties did not relinquish their sovereignty to the British sovereign nor to Canada. 

{This, of course, is utter nonsense. Through the Treaties, Canadian Indians became “Subjects”, thereby signifying the surrender of ‘Sovereignty’ — which resides in the ‘Crown’:

“And the undersigned Chiefs on their own behalf and on behalf of all other Indians inhabiting the tract within ceded, do hereby solemnly promise and engage to strictly observe this treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen.” — Treaty 6

http://www.aadnc-aandc.gc.ca/eng/1100100028710/1100100028783 }

“Evidence does not exist that suggests that the Crown intended to limit aboriginal rights to health…
{What a foolish argument. There was no such thing as a ‘right to health’ in the 1870s — not even for nobility…}

“The ‘aboriginal right to health’ is best understood as one of the several groups of constitutional rights protected by sections 35 and 52 of the Constitution Act, 1982…
{??? It’s not there…}

“The fiduciary relationship that characterizes the relationship between Canada and aboriginal peoples, including the duty to consult aboriginal peoples, could readily be extended to the area of health and health care.
{“COULD”? “COULD”? Then you admit that it doesn’t?!?!?}

“The aboriginal nations and tribes that signed the treaties did not relinquish their aboriginal health regime/system to the British sovereign or to Canada. Rather, they protected these systems. Part of their intent in entering into treaties was to supplement these systems with promises of medical care and medicines that were useful in treating European diseases.
{Then why is there mention of this in only ONE Treaty?}

“The words of the treaty must be understood today as they would have been when the treaties were signed… {!}
The English words contained in the treaties encompass British legal traditions…

{It should be noted here that the only Treaty reference they are able to provide is the “medicine chest” clause from Treaty 6. There is a record of discussions of this leading up to four other Numbered Treaties but it was not included in any of the final Treaties.}
“With the creation of multiple provincial jurisdictions responsible for medical care, aboriginal peoples resisted paying health care taxes. In 1965, an off-reserve Treaty 6 Indian was charged with failing to pay tax under the ‘Saskatchewan Hospitalization Act’.

“The defendant, Mr. Johnston, argued that the provisions of Treaty 6 gave him tax-exempt status. The trial judge…found that the medicine chest clause “should be interpreted to mean that Indians are entitled to receive all medical services, including medicines, drugs, medical supplies and hospital care free of charge.”

“The Crown appealed the lower court’s decision and, in March 1966, the Saskatchewan Court of Appeal overturned the decision in ‘Johnston’. The Court of Appeal HELD THAT ONLY A ‘FIRST AID KIT’ WAS REQUIRED TO BE PROVIDED BY THE CROWN.

“It also stated that the provincial government did NOT have to provide comprehensive and free medical services to Indians and that the provision of medicine was at the discretion of the Indian agent on the reserve.

“The Appellate Court used a similar literal interpretation in the 1970 ‘Swimmer’ decision.

“It is unlikely that the appellate court decisions in ‘Swimmer’ and ‘Johnston’ would be upheld today.
{Unfortunately true, as the situation continues to deteriorate…}
Both appellate court decisions predate the constitutional entrenchment of existing ‘aboriginal and treaty rights’. Both decisions were also decided prior to Supreme Court decisions setting out the ‘principles’ of treaty {mis}interpretation…

“This analysis illustrates that all aboriginal peoples have an ‘inherent’ right to health by virtue of being born aboriginal in Canada.
{You have NOT demonstrated your case for racial health care rights…}

“The federal government has not fulfilled its obligations in relation to {non-existent} aboriginal rights to health or treaty promises relating to health.

“AND, our refusal to recognize this ‘right “has created the legacy of shame and contributed, in large part, to the health crisis faced by the aboriginal peoples in Canada…”
{CAPS added}


Treaty6Rights180403_183990891636451_5805168_nP.S. What about WHO OWNS THE LAND after ‘Treaty 6’?

Cue the dramatic music — it’s time to {cough, cough} head back into those dusty Treaty vaults, where Supreme Court Justices fear to tread…


“The Plain and Woods Cree Tribes of Indians, and all other the Indians inhabiting the district hereinafter described and defined, do hereby CEDE, RELEASE, SURRENDER and YIELD UP to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors FOREVER, ALL THEIR RIGHTS, TITLES and PRIVILEGES, whatsoever, to the LANDS included within the following limits…”

There follows a lengthy description of the territory ceded, released, surrendered, etc.

And then:
“And also their rights, titles and privileges whatsoever to ALL OTHER LANDS wherever situated in the North-West Territories, or IN ANY OTHER PROVINCE OR PORTION OF HER MAJESTY’S DOMINIONS, SITUATED AND BEING WITHIN THE DOMINION OF CANADA.

“The tract comprised within the lines above described EMBRACING AN AREA OF 120,000 SQUARE MILES, be the same more or less.

“To have and to hold the same to Her Majesty the Queen and Her successors FOREVER.”
{CAPS added}

–from deep in the Treaty vaults, where historical fact resides…






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