The medicine chest clause: How an 1876 treaty opened the door to guaranteed access to OTC and prescription drugs for Indigenous patients

When it comes to the treaty right to healthcare, an agreement dating back to 1876 set the benchmark, ensuring that Indigenous patients have guaranteed access to medication at their local pharmacies.Treaty 6, which covers much of central Alberta and Saskatchewan, states 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 clause in question was negotiated into existence at the insistence of First Nations leaders amid the smallpox pandemic of 1870-1874. This guarantee was explicitly written only in Treaty 6, but it is widely understood by First Nations that there is an implicit right to health baked into the othered numbered treaties, which cover the entirety of the Prairies, much of northern Ontario and the Northwest Territories, and parts of B.C. and Yukon.“It has been the long-time position of First Nations that all healthcare and medicines are pre-paid and are to be provided to Treaty First Nations as promised in the Numbered Treaties,” the Federation of Sovereign Indigenous Nations, which represents the First Nations in Saskatchewan, says on its website. “To this date, First Nations hold the Canadian government fully responsible for the cost of healthcare due to the legal obligations of Treaty. It is a Treaty Right that extends to all Numbered Treaties.”Subsequent court challenges have also confirmed that this clause as a treaty right to healthcare, despite the government arguing that “medicine chest” should only refer to a literal physical box of basic medical supplies. Dreaver et al v. the King (1935) confirmed that the medicine chest clause covered all medicines, drugs or medical supplies, and that the Crown did not have the right to pick and choose what would be covered. In R. v. Johnston (1966) and R. v. Swimmer (1970), which were two cases involving Treaty 6 members charged with failure to pay their hospital bills, the lower courts also confirmed that “medicine chest” refers to all medical services, including hospital stays. However, this interpretation was overturned and watered down on appeal—until 1999, when the outcome of Wuskwi Sipihk Cree Nation v. Canada once again confirmed that the “medicine chest” referred to “a full range of contemporary medical services.”Today, Indigenous people in Canada have access to health benefits, including pharmacy vision care, dental care and mental health support through the Non-Insured Health Benefits (NIHB) program, a federal program that covers First Nations people and recognized Inuit across Canada. In addition to covering prescription drugs, the NIHB also covers numerous over-the-counter products, including multivitamins for those age 19 and under, allergy meds, fever and pain meds, smoking cessation, contraceptives, vitamin D and more. Pharmacists can bill for NIHB-covered services through direct electronic submission to Express Scripts Canada, which administers claims on behalf of the federal government. The full list of drugs covered under this benefit can be found on the Express Scripts website.

The medicine chest clause: How an 1876 treaty opened the door to guaranteed access to OTC and prescription drugs for Indigenous patients

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