Abstract

Prolonged surgical wait times in Canada have prompted models exploiting Canada Health Act (1985) loopholes, often compromising care continuity. This review assesses the feasibility of private surgical facilities on First Nations lands. We reviewed modern treaties and self-government agreements of First Nations within 200 km of urban centres, analyzing provisions on legal status and health jurisdiction. Five First Nations met the inclusion criteria. Their agreements confer self-governing status with varying authority over health services, though federal or provincial paramountcy may apply. First Nations under modern treaties may have legal basis to establish private surgical facilities, addressing wait times. Legal ambiguities require further study.

Introduction

Wait times for planned (i.e., elective) surgical procedures have long challenged Canada's healthcare system (CIHI n.d.). While a comprehensive analysis of their root causes is beyond the scope of this paper, it is evident that policy responses by provincial and territorial (P/T) governments have failed to meaningfully expand surgical capacity. For example, contracting with privately owned surgical facilities to perform publicly funded surgeries is one strategy that has been widely adopted by P/T governments but has produced limited and inconsistent results (Crump et al. 2024).

In response to these policy failures, surgical delivery models are emerging that circumvent legal restrictions on the delivery of healthcare in Canada, specifically those restrictions imposed by the Canada Health Act (CHA) (1985). While the CHA prohibits provinces from permitting user charges or extra-billing for insured services (Health Canada 2024), there has been a notable rise in privately financed options for planned surgical care. For example, some private surgical centres exclusively treat out-of-province patients, taking advantage of provisions that limit interprovincial coverage for planned procedures (Crawley 2023).

Although such workaround models may offer faster access to planned surgical care, they pose risks to the continuity and coordination of care. Patients who travel for surgery often receive fragmented pre- and post-operative care (Xu et al. 2020), which has been associated with compromised outcomes (Tsai et al. 2015). Nonetheless, these workaround models reveal a willingness among some patients to pay privately for faster access to surgical services, even with the absence of insurance coverage and despite the risk of lower quality of care.

The workaround models also demonstrate the tension between unmet demand for planned surgical services and the legal constraints evinced by the CHA. That such models not only exist but also appear to be gaining traction raises important questions about the feasibility of alternative delivery models. In this review, we examine one of those alternative models: establishing privately owned and privately paid-for surgical services on First Nations lands for any resident seeking in-province care.

Several political and social changes over the past decade in Canada have increased the feasibility of having First Nations play a larger role in the delivery of healthcare. One of those changes is the expansion of urban centres and, for some, their encroachment on First Nations lands. For example, see Alberta Government Ministry of Transportation (2013) and Government of British Columbia (2015). These overlapping boundaries are such that the two lands are almost indistinguishable from one another.

Another change is the expansion of modern treaties or self-government agreements that confer a distinct legal status and jurisdictional authority to First Nations. These arrangements may offer a constitutionally viable pathway for developing private healthcare delivery models that are outside the purview of the CHA, while also supporting the economic development and well-being of First Nation communities.

The purpose of this review is to assess the legal and policy feasibility of establishing privately owned and privately paid-for surgical care of insured care on First Nations lands for any resident, including in-province non-Indigenous residents who are covered under their respective provincial health insurance program. With this review, we aim to challenge policy makers to consider how constitutional pluralism and a modern interpretation of First Nation sovereignty may allow for innovation in the delivery of healthcare.

Methods

We conducted a qualitative policy review and thematic analysis of publicly available information sources pertaining to the legal rights, authority and governance of First Nations, specifically as it relates to the administration and delivery of private healthcare for any and all peoples on their respective lands. For the purposes of this review, we define private healthcare as services that are:

• delivered by private entities (either for-profit or not-for-profit) operating outside the public system; and
• financed directly by patients, rather than reimbursed through a public insurance plan.

We included only those First Nations with a signed modern treaty or self-government agreement because they are given legal force through legislation and the rights they contain are constitutionally protected. Some also help guide the delivery of health services on First Nations lands and may include provisions that interact with or modify the application of federal and P/T laws related to the delivery of healthcare.

This study originated from a gap we identified in the CHA concerning the potential for health service delivery on First Nations lands. As our objective was to determine jurisdictional authority relevant to health service delivery and the CHA, we restricted our review to those documents with formal legislative or constitutional force. We did not include supplementary materials, such as memoranda of understanding, briefs or policy papers, because these documents vary in legal standing.

We excluded operational programs administered by local, Indigenous or provincial health organizations for similar reasons. The First Nations Health Authority in British Columbia and the First Nations and Métis Health Services in Saskatchewan are two regional advocacy bodies that play a supportive and integrative role in improving access to non-insured care and promote cultural safety and collaboration, but ultimately they do not deliver surgical or hospital care. While the expansion of private surgical facilities on First Nations lands could in the future intersect with the mandates of these bodies, their purview does not currently extend or impact the legal feasibility thereof.

We excluded any modern treaty or self-government agreement with a First Nation that was located more than 200 km outside of a large urban population centre (i.e., ≥ 100,000 people; Statistics Canada 2021). This exclusion criterion was based simply on the assumption that it would be more feasible for First Nations to establish a private surgical centre if they were closer to a large urban centre.

In accordance with Ownership, Control, Access and Possession principles (First Nations Information Governance Centre n.d.), no community-specific or individual data were collected or analyzed, and all materials examined were publicly available. Nonetheless, we recognized our positionality as non-Indigenous researchers analyzing Indigenous governance frameworks and have made multiple attempts to contact and engage First Nations and their representatives throughout our review process.

This review started by first identifying those First Nations that have signed and ratified either modern treaties or stand-alone self-government agreements with the federal government. These were included because of the sovereign rights they afford to these First Nations, potentially including the delivery of healthcare. We used the Modern Treaties and Self-Government Agreements map published by Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada (Figure 1; Crown-Indigenous Relations and Northern Affairs Canada 2025). Each Nation/band and its agreement were verified by their respective official website and cross-checked against the corresponding federal statute to confirm all relevant details.

Once identified, the modern treaty and/or self-government agreements were read in full and had the following information abstracted: (1) name of the agreement, (2) date of entry into force, (3) nearest urban centre, (4) details of self-governance outlined in the agreement, (5) all agreement provisions relating to healthcare and (6) pertinent mentions of jurisdiction in case of conflict between the agreement and other sources of law and/or federal and P/T authority.

A thematic analysis based on all data gathered regarding all applicable agreements was then conducted to define the key policy dimensions, supported by the specific provisions identified at the earlier stage. Our thematic framework evolved organically from a structured document analysis. Themes were identified inductively through iterative review and analysis of our abstracted notes rather than drawn from a pre-existing framework. To organize these notes systematically, we created preliminary working categories that captured recurring types of provisions observed across the documents and continued to refine these categories based on our developing understanding of what features within the agreements were most relevant to assessing healthcare jurisdiction and feasibility.

Results

Modern treaties and self-government agreements

Modern treaties are agreements that began in 1973 following the Supreme Court of Canada's Calder decision (Crown-Indigenous Relations and Northern Affairs Canada 2025). Since 1975, the federal government has negotiated and signed 26 modern treaties with First Nations, which recognize various rights of Indigenous Peoples and communities. Of these, 18 contain self-government provisions or agreements. Self-government agreements recognize the inherent right of self-government, as declared within Section 35 of the Constitution Act, 1982 (Crown-Indigenous Relations and Northern Affairs Canada 2023). These agreements are intended to establish partnerships between First Nations peoples and the federal government.

Five modern treaties and self-government agreements met our inclusion/exclusion criteria. Four of these concern First Nations or groups thereof in British Columbia; two near Vancouver, one near Victoria and one near Kelowna. One concerns a First Nation in Saskatchewan, near Saskatoon. The five agreements are as follows:

1. Sechelt Indian Band (“SIB,” also known as the shíshálh Nation) Self-Government Act (shíshálh Nation Self-Government Act 1986);
2. Westbank First Nation (WFN) Self-Government Agreement (Westbank First Nation Self-Government Agreement 2005);
3. Tsawwassen First Nation (TFN) Final Agreement (Tsawwassen First Nation Final Agreement 2008);
4. Maa-nulth First Nations (MnFN) Final Agreement (Maa-nulth First Nations Final Agreement 2011); and
5. A self-government treaty recognizing the Whitecap Dakota Nation/Wapaha Ska Dakota Oyate (WDN) (a self-government treaty recognizing the Whitecap Dakota Nation/Wapaha Ska Dakota Oyate 2023).

Of note, there are five Nations party to the Maa-nulth First Nations Final Agreement, not all of which meet our inclusion criteria. The Uchucklesaht Tribe meets the distance from a larger urban centre criterion, but is inaccessible by road. The Ka:'yu'k't'h'/Che:'k'tles7et'h' First Nation does not meet the distance from a large urban centre criterion. However, because all five Nations share one agreement, they have been included in this review.

The entry-into-force dates of the five agreements fall between the years 1986 and 2023. All five agreements recognize inherent powers of self-government to varying degrees, granting law-making authority over local matters, including the administration of services such as healthcare.

Provision of healthcare under modern treaties

Each agreement provides some scope – either explicitly or through general self-governance powers – to establish or regulate health services. None of the agreements, however, defined with precision the extent of health-related jurisdiction; the scope of care; who that care is delivered to; or how, or where, it is delivered. Although each agreement grants local authority, the extent to which federal or provincial law prevails over the First Nations' laws if there is a direct conflict in areas under their exclusive jurisdiction, and in what context, differs between agreements. All five agreements emphasize mechanisms for dispute resolution and negotiation and thus emphasize a cooperative approach to overlapping or conflicting governance. The text of these agreements can be difficult to generalize due to the risk of oversimplification or misrepresentation of crucial legal context. Instead, the most relevant excerpts and summaries are provided in Table 1, available online here.

Key themes

Four themes emerged from our review, which we have used to characterize our findings. Table 2 (available online here) provides the supporting evidence from the respective agreements under each theme.

THEME 1: CONFERRED STATUS AS LEGAL ENTITY

This theme refers to the extent and legal provisions under which a First Nation is recognized as a distinct legal entity. This includes affirmations of inherent rights and legal capacities to self-govern as documented in the agreements.

All five agreements affirm the respective First Nation as a legal entity and reference their inherent right to self-government. Under these agreements, the First Nation's standing is akin to that of a municipality or corporate entity, with the ability to make laws, hold property, enter into contracts and govern internal affairs. This legal recognition forms the foundation on which a First Nation may decide to pursue infrastructure projects, such as a surgical centre or hospital.

THEME 2: RELATIONSHIP TO THE INDIAN ACT

This theme refers to how the agreement interacts with, or modifies, the application of the Indian Act (1985). This might include exemptions, replacements or specific provisions that redefine the relationship between the First Nation and federal governance under the Indian Act (1985). All five agreements replace or restrict the applicability of the Indian Act (1985) to the lands and governance of the First Nation. In several cases (e.g., Westbank and Maa-nulth), the agreements state explicitly that the Indian Act (1985) no longer applies, marking a jurisdictional shift toward self-rule. The relevance of this dimension lies within the limitations set forth in the Indian Act (1985) (to which First Nations under modern treaties are not bound). Section 18(1) of the Indian Act (1985) gives the federal Crown legal title to reserve lands, while giving the Governor in Council the power to “…determine whether any purpose for which lands in a reserve are used or are to be used is for the use and benefit of the band” (Indian Act 1985). Moreover, Section 73 of the Indian Act (1985) permits federal regulation on a range of issues, including health, at the sole discretion of the federal government. Overall, the inclusion of this theme hinges on the Indian Act's (1985) power to impede First Nations’ self-governance.

THEME 3: GENERAL LEVEL OF AUTHORITY

This theme refers to the general extent of jurisdiction and self-governance powers granted to a First Nation under the agreement. This includes areas of legislative, administrative and operational authority across various domains such as land management, healthcare and governance.

All five agreements outline a broad scope of self-government powers, including jurisdiction over land use, resource management, social services, taxation and more. Some explicitly state that the First Nation may legislate on any matter not otherwise exclusively under federal or provincial authority.

This creates a level of legal ambiguity regarding control over the administration of private healthcare services within a given First Nation, especially considering the extent of paramountcy of a given agreement over federal/provincial law in cases of inconsistency or conflict.

THEME 4: CAPACITY FOR GRANTING SOVEREIGNTY WITH REGARDS TO HEALTHCARE

This theme refers to the capacity for granting sovereignty with regard to the provision of healthcare. That is, the ability and extent to which a First Nation can exercise autonomy and sovereignty over healthcare policies, services, infrastructure, licensure and regulation. This includes legislative rights and responsibilities for delivering or managing healthcare within their community.

Each agreement addresses, either directly or indirectly, the potential for self-governance in health service delivery, though it remains unclear whether this potential applies to both First Nation and non-Indigenous Peoples alike. This delineation can thus be considered another one of the ambiguities of the modern treaty/self-government agreement framework. While most stop short of granting full jurisdiction, they allow for varying degrees of law-making or program implementation related to health – sometimes contingent on further agreements with federal or P/T authorities, but not always. For example, the Tsawwassen Final Agreement permits the TFN Government to make laws in respect of health services on its lands, but bringing such laws into force requires six months' written notice and the eventual agreement of both Canada and British Columbia after a negotiation process.

Discussion

This review is the first to examine the legal feasibility of establishing privately owned and privately paid-for surgical services on First Nations lands for any residents seeking in-province care. This is framed within the context of growing public dissatisfaction with, and broader national discourse concerning, long wait times for planned surgeries and the emergence of workaround private care models that exploit loopholes in the CHA. In recent years, several pressures have strained the assurance of accessible and timely care under the CHA. Demand for specialty and surgical services has risen sharply – especially following the COVID-19 pandemic – outpacing P/T healthcare system capacity (Flood and Thomas 2025). As a result, wait times for specialist assessments and planned surgeries have increased substantially (Fierlbeck 2024). These delays have eroded public confidence in the system's ability to provide timely, equitable access to care (Flood and Thomas 2025).

Emerging from the erosion of confidence in the publicly funded healthcare system are delivery models that workaround the CHA. While the CHA assures residents will have health coverage when they travel within Canada under its portability provision (Canada Health Act 1985), it explicitly excludes planned or elective care when it occurs out-of-province (Canada Health Act 1985). This has led to the establishment of private surgical centres that only treat out-of-province patients. These centres are legally permitted to bill patients directly for elective services (Frangou 2024). While arguably inconsistent with the spirit of the CHA, these practices remain legal under the current statutory framework (Tiedemann 2019).

Recognizing the inherent limitations of these workaround models, we posited the idea of delivering private surgical care on First Nations land. Given the proximity of some First Nations lands to large urban centres, this model could offer locally coordinated care pathways, enabling closer integration of pre-operative assessment and post-operative follow-up for patients.

This leads to an important question as to whether the CHA's portability provision extends to healthcare delivered to patients on First Nations lands. The CHA was designed within a federal-provincial framework and does not account for the jurisdictional complexities and governance of First Nation communities (Fierlbeck and Marchildon 2023). First Nations peoples are generally considered P/T residents and fall under the CHA for the purposes of accessing insured healthcare services off their lands (Fierlbeck and Marchildon 2023). However, health services delivered on their lands have conventionally fallen under the Indian Act (1985) (MacIntosh 2025). More recently, modern treaties and self-government agreements have given First Nations greater autonomy over the delivery of health services on their lands (Fierlbeck and Marchildon 2023; MacIntosh 2025), some even including provisions that interact with or modify the application of federal and provincial laws. Because the CHA governs only P/T delivery of insured services, health programs operated under First Nations' self-government may fall outside its purview, potentially allowing First Nations–approved private health service models that are not subject to CHA restrictions.

Review of the five modern treaty/self-government agreements included in this review does not explicitly or summarily authorize the establishment, administration, delivery or charging for healthcare services. While none grant unilateral authority to exempt such services from provincial/federal oversight completely or to independently charge patients without engaging provincial/federal governments, they do affirm a potential legal/political path to doing so. Certainly, these agreements grant the respective First Nations the capa­city to potentially expand and administer health services under self-governance provisions. Whether this capacity includes the provision of private care to non-Indigenous populations will likely be for the courts to definitively interpret.

The results from this review lead to two broader considerations. The first is that it introduces the concept of constitutional pluralism to health policy conversations, recognizing First Nations not merely as recipients of care but as possible sovereign providers with expanded legal authority in determining how that care is delivered. Recent analyses show that the growing presence of Indigenous-led health systems in Canada already offers practical examples of how self-governance may succeed and serve to expand the quality of and access to care (Allen et al. 2020; Marchildon et al. 2021). Private surgical facilities conducting publicly-funded surgeries already exist on the Enoch Cree Nation, near Edmonton, Alberta (Enoch Cree 2022; Indigenous Health Today 2022).

The second consideration is that it challenges policy makers to consider how existing legal frameworks may be reinterpreted to allow for innovation without necessarily undermining the equity goals of the CHA. In this way, the First Nations model may provide the basis for self-governance to become a tool for exploring alternative care delivery models in ways that address longstanding system, and systemic, limitations.

This review has several limitations that should be considered. First, this study focuses on the legal aspects associated with the proposed model and does not examine operational feasibility, including infrastructure readiness, licensure and insurance issues, or community support. While some modern treaties offer robust self-governance mechanisms, the extent of jurisdictional authority varies, and health is not uniformly specified across agreements. The CHA's ambiguity on healthcare delivery introduces legal uncertainty that could certainly prompt judicial or political challenges.

The second limitation is that this analysis remains theoretical. Generating empirical evidence was outside the scope of this study but is essential for understanding the potential implementation. Engagement with representatives of those First Nations included in our analysis could reveal practical barriers that have not been considered in this review. An informal discussion with one of the First Nation's health and wellness working groups highlighted that the potential financial and administrative burden of establishing and maintaining a surgical care facility could strain the limited institutional capacity of the band's government, diverting resources from other community priorities.

A cautionary tale highlights the importance of this second limitation. In 2012, WFN planned a $120 million private hospital project on its land based on the same legal ground in their agreement that we discuss in this paper. Media coverage (CBC News 2012a; CBC News 2012b; McDonald and Jones 2015; McDonald 2016) of the project shows that the initiative ultimately failed not because of definitive constitutional or jurisdictional barriers, but primarily due to legal disputes and breakdowns between the private partners involved in the venture and WFN. Although some commentators raised questions about the project's alignment with provincial and federal legislation, these concerns remained largely speculative and were not the operative cause of the project's collapse. Future research should engage directly with First Nations' leaders, health system stakeholders and legal scholars to assess the acceptability and impact of this proposed model.

In conclusion, this review established a novel policy proposition: that First Nations, under modern treaties and self-government agreements, may have the legal and jurisdictional basis to establish private surgical facilities serving both First Nations and non-Indigenous populations. In doing so, they could address key shortcomings in Canada's current surgical system. Although legal uncertainties remain, this proposition should initiate a discussion about the role that First Nations can play in how healthcare is delivered across Canada.

Disclaimer

Articles posted in the pre-release section of Healthcare Policy/Politiques de Santé have undergone peer review and have been accepted by the journal's editors. However, they have not been copy edited. Any copy editing or proofreading changes to an article will be reflected in the final version appearing in the regular issue of the journal.

The Healthcare Policy/Politiques de Santé editors and staff are not responsible or liable for the use of any potentially inaccurate or misleading data, opinions or information that may be contained within this pre-released article.

Correspondence may be directed to Trafford Crump by e-mail at trafford.crump@mcgill.ca.

Élargir l'accès à la chirurgie au Canada grâce à l'autonomie des Premières Nations

Résumé

Les longs temps d'attente pour une chirurgie au Canada ont incité certains modèles à exploiter les failles de la Loi canadienne sur la santé (1985), ce qui compromet souvent la continuité des soins. Cet examen évalue la faisabilité d'installations chirurgicales privées sur les territoires des Premières Nations. Nous avons examiné les traités modernes et les ententes d'autonomie gouvernementale des Premières Nations situées à moins de 200 km des centres urbains, en analysant les dispositions sur le statut juridique et la compétence en matière de santé. Cinq Premières Nations répondaient aux critères d'inclusion. Leurs accords confèrent un statut d'autonomie avec divers pouvoirs en matière de services de santé, bien que la primauté fédérale ou provinciale puisse s'appliquer. En vertu des traités modernes, les Premières Nations pourraient avoir un fondement juridique pour établir des installations chirurgicales privées et traiter les temps d'attente. Les ambiguïtés d'ordre juridique demandent une étude plus approfondie.

About the Author

Trafford Crump, Phd, Department of Surgery, Faculty of Medicine and Health Sciences, McGill University, Montreal, QC

Mariam Hegazy, BA, Department of Surgery, Faculty of Medicine and Health Sciences, McGill University, Montreal, QC

Acknowledgment

The authors would like to acknowledge the thoughtful input provided by C. Kent McNeil, Emeritus, Osgoode Hall Law School.

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