“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. ”
The above clause is a direct quotation from the text of Treaty number 6. As we mentioned earlier, Treaty 6 was signed in 1876 – a time when “medicine chest” would probably have more meaning than it does in today’s society. So, what did the signatories to Treaty 6 believe this clause would entail moving forward? A mere first aid kit to be kept for each community? Case law would tell us otherwise, more specifically, to look past the bare words of the treaty text.
In R v Marshall, the Court established an obligation to choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles the Indigenous and Crown interests. Furthermore,
…if there is any ambiguity in the words or phrases used, not only should the words be interpreted as against the framers or drafters of such treaties, but such language should not be interpreted or construed to the prejudice of the Indians if another construction is reasonably possible.
Following these guidelines, a liberal interpretation of Treaty 6 and the medicine chest clause would fall more along the lines of covering what Alberta health care and supplemental medical coverage would cover today – doctor’s visits, dentists, optometrists, prescription medicines, glasses/contact lenses...etc. This would avoid a static approach to treaty rights, which the Courts have clearly rejected,
Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context.
Giving the medicine chest clause a liberal and evolving interpretation, we can then move on to the issue of: has this treaty right been fulfilled? The answer is largely – “no”. As a member of a Treaty 6 nation, I’ve seen firsthand the cutbacks to medical coverage. Prescriptions have been reduced either to the generic brand, or not covered at all. The Government of Canada’s website attributes these cutbacks to “deletion criteria”, which guides the removal or delisting of a drug product from the drug benefit list. As such, drugs are subject to deletion “when the purchase cost is disproportionate to the benefits provided”. I’m not sure where in the text of Treaty 6 it lists limitations to the medicine chest clause, or any other clause for that matter. Perhaps there is a missing page with all the limitations the government has imposed floating around somewhere?
I agree that the government has avoided a frozen in time approach to the medicine chest clause. Yes, they have provided more than a “medicine chest” for Treaty people. They have allowed this treaty right to evolve into contemporary prescription medication, optometry and dental visits. However, the government still fails to fulfill the medicine chest clause. Allowing for major cutbacks, and providing longer lists of services not provided by healthcare providers is a step back in upholding treaty rights. As we mentioned in yesterday’s post, this just ends up being another broken promise to Canada’s treaty people.
Until next time,
Team ReconciliAction YEG
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Image retrieved from: https://treaty6education.lskysd.ca/node/20.html
 Indigenous and Northern Affairs Canada, Treaty No. 6 (Ottawa: Queen’s Printer and Controller of Stationary, 1964), online: Treaty Texts <https://www.aadnc-aandc.gc.ca/eng/1100100028710/1100100028783#chp1>.
 R v Marshall,  3 SCR 456, 1999 CanLII 665 (SCC) at para 14.
 Ibid at para 51.
 Ibid at para 78.
 Government of Canada, Non-Insured Health Benefits – Drug Benefit List Fall 2017 (Ottawa: Government of Canada, 2017), online: < https://www.canada.ca/en/health-canada/services/publications/health-system-services/non-insured-health-benefits-drug-benefit-list.html>.
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