Co-developing distinctions-based Indigenous health legislation

What co-development means

Co-development is a collaborative approach that acknowledges the distinct nature and lived experience of First Nations, Inuit and Métis. This approach is guided by:

• the Truth and Reconciliation Commission's Calls to Action
• the United Nations Declaration on the Rights of Indigenous peoples and the United Nations Declaration on the Rights of Indigenous Peoples Act
• the Calls for Justice in the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls
• the Principles respecting the Government of Canada's relationship with Indigenous peoples

Stage 1: Engagement

Through 2021 and 2022, Indigenous Services Canada supported First Nations, Inuit, Métis and intersectional partners to lead national, regional and community engagement sessions that aim to capture Indigenous perspectives about the scope and substance of distinctions-based Indigenous health legislation. Intersectional individuals are those whose Indigenous identity, gender identity, physical ability, socio-economic status or other personal aspects of identity may cause overlapping impacts of discrimination. The goal of these engagements was to hear from as many voices as possible to inform the co-development of distinctions-based Indigenous health legislation.

The timeline for engagement was extended in response to calls from partners for more time to build relationships and hear from community members, particularly given the pressures caused by the COVID-19 pandemic.

Principles guiding engagement

• Engagement is inclusive, with multiple opportunities and avenues to engage or re-engage.
• Engagement is primarily Indigenous-led. Specific engagement plans are developed by Indigenous organizations and governments.
• Engagement takes place multilaterally with federal, provincial, territorial and Indigenous organizations and governments.
• Engagement is not endorsement. All feedback is being sought, whether it is in support of legislation or not.
• Engagement informs the co-development process, which honours articles 18 & 19 of the United Nations Declaration on the Rights of Indigenous Peoples.

Engagement approach

In recognition of the right to self-determination, engagement was led primarily by First Nations, Inuit and Métis Nation partners at the national, regional and sub-regional levels.

Indigenous Services Canada also hosted sessions to complement the First Nations, Inuit and Métis Nation-led sessions. Multiple streams of engagement were undertaken.

Indigenous Services Canada developed an engagement guide designed for individuals, Indigenous governments, organizations or communities to help guide their engagement sessions and personal reflections about distinctions-based Indigenous health legislation.

The engagement guide contains:

• background information
• a short list of existing literature
• proposed engagement questions
• a template for submitting feedback from your session to the Government of Canada

Stage 2: Co-development of legislative options

Canada established distinctions-based working level groups, or co-development tables, with Indigenous partners to meet regularly and translate what was heard through engagement into proposed legislative options.

In total, 14 co-development tables were held with First Nations, Inuit, Métis and intersectional partners between October 2022 and June 2023. Participation in the co-development tables offered another opportunity for partners to help identify potential federal legislative measures necessary for supporting Indigenous-led approaches to improve health equity.

Stage 3: Review of the draft legislation

The Government of Canada, through its Department of Justice, will draft the bill in fall 2023 and winter 2024, following the conclusion of Stage 2: Co-development of legislative options.

Consultation drafts of the legislation will be publicly released and shared with First Nations, Inuit, Métis and intersectional partners, as well as provincial and territorial governments, for feedback to ensure that proposed legislation is responsive to the views and needs of those affected before a bill is introduced in Parliament.

The tabling of the bill is scheduled to occur in late winter 2024.

To learn more on how legislation is developed, please visit How new laws and regulations are created.

About Indigenous health care in Canada

The organization of Canada's health care system is largely determined by the Canadian Constitution. Roles and responsibilities are divided between the federal, provincial and territorial governments. Generally, provinces and territories have primary jurisdiction over the administration and delivery of health care services. Indigenous communities also play an important role in the delivery of health services and programming.

The federal government exercises a role in health care primarily through the use of the federal spending power. For example, the Canada Health Act is Canada's legislation that imposes national standards on provincial health care insurance plans as a condition of accepting a federal contribution to the cost of those plans.

With respect to health care for Indigenous peoples, which include First Nations, Inuit and Métis, the federal, provincial and territorial levels of government share some degree of jurisdiction. Indigenous peoples are included in the per capita allocations of funding from the federal fiscal transfer and are entitled to access insured provincial and territorial health services as residents of a province or territory. Indigenous Services Canada funds or directly provides services for First Nations and Inuit that supplement those provided by provinces and territories, including primary health care, health promotion and supplementary health benefits. The federal role is guided by the 1979 Indian Health Policy's 3 pillars:

1. Special relationship with "Indians."
2. Inter-relationships with provincial and territorial health systems.
3. Community development.

The term "Indian" is only used when referring to or citing the 1979 Indian Health Policy.

Any federal legislation in the area of health care must be developed in consultation with provincial and territorial governments and with careful attention to the constitutional division of powers.

Learn more:

• Indigenous health care in Canada
• Role of the provinces and territories
• Constitution Act, 1867
• Canada Health Act

Stage 1 engagement reports

• 2 Spirit Health Legislation Project: Final Report (PDF)
• A New Trail to Blaze: Moving toward an Equitable Access to Healthcare in Urban Areas for Indigenous People
• An Open Dialogue on Indigenous Health Legislation: Summary report
• Assembly of First Nations, Resolution no. 16/2023: Distinctions-Based Indigenous Health Legislation (PDF, pages 40 to 41)
• First Nations Health Council's Engagement Report to Inform the Development of Federal Indigenous Distinctions-based Health Legislation (PDF)
• Inuit Sexual and Reproductive Health: Supporting Inuit Families and Communities
• Our Health, Our Voice: Advocating for Urban Indigenous People in Distinctions-based Healthcare Legislation (PDF)

The national report summarizing feedback received from stage 1 engagement sessions, What we heard: Visions for Distinctions-based Indigenous Health Legislation, is now available:

• online, as an executive summary
• in full, by request to lsa-ihl@sac-isc.gc.ca