Call to Action # 3

We call upon all levels of government to fully implement Jordan’s Principle. 

Indigenous Watchdog Status Update

Current StatusNov. 9, 2020IN PROGRESS
Previous StatusAug. 17, 2020IN PROGRESS

Why “IN PROGRESS”?

Two reasons: On Sept 4, 2020 the federal government has agreed to certify the claims put forward by the Assembly of First Nations and the Moushoom class counsel in their class-action lawsuit from Feb. 12, 2020 and enter into mediation to reach a negotiated settlement for damages and justice. Secondly, on Sept. 16, 2020, the Manitoba government is seeking to clarity to the legal obligations of the federal and provincial governments around Jordan’s Principle through a judicial review of a Manitoba Human Rights Commission decision to award damages to a First Nations family for systemic racism and denial of access to health care

BACKGROUND

The federal government is fighting the Canadian Human Rights Tribunal (CHRT) decision from Sept. 6, 2019 to award $2B in damages to First Nations children apprehended by Child Welfare authorities on or after Jan. 1, 2006 as well as those denied essential services as per Jordan’s Principle. The government has been fighting the Assembly of First Nations (AFN) and the First Nations Child and Family Caring Society of Canada since 2006 and has not completely responded to the 8 compliance orders issues against them by the CHRT

On Oct. 4, 2019 the federal government sought a judicial appeal against the Canadian Human Rights Tribunal award of compensation. On Nov. 29, 2019 the Federal Court denied the request and gave both parties until Jan. 29, 2020 to report back to the Tribunal. The date has been extended until Feb. 21, 2020.

No consistency across all jurisdictions including a lack of tripartite agreements with First Nations by a number of provinces. According to the First Nations Child and Family Caring Society, Canada is excluding non-status First Nations children living off reserve from Jordan’s Principle and is still not extending coverage. (APTN Jan. 9, 2019). Also neglects to mention Métis.

What is Jordan’s Principle?

Jordan’s Principle is a child-first principle intended to ensure that First Nations children do not experience denials, delays, or disruptions of services ordinarily available to other children due to jurisdictional disputes.

Jordan’s Principle is named in honour of Jordan River Anderson, a First Nations child from Norway House Cree Nation, in Manitoba, who was born with a rare neuromuscular disease. Because his complex medical needs could not be treated on-reserve, Jordan was transferred to a hospital in Winnipeg, far from his community and family home. In 2001, a hospital-based team decided that Jordan’s needs would best be met in a specialized foster home closer to his home community.

However, federal and provincial governments disagreed regarding financial responsibility for Jordan’s proposed in-home services. The disputes ranged from disagreements over funding of foster care to conflicts over payment for smaller items such as a showerhead. During these conflicts, Jordan remained in hospital for more than two years, even though it was not medically necessary for him to be there. In 2005, Jordan died in hospital, at the age of five, never having had the opportunity to live in a family home.

Government actions to implement Jordan’s Principle

Federal Government

Dec. 16, 2016 – First Nations Child and Family Caring Society (FNCFCS) filed a motion asking the tribunal to find the federal government guilty of failing to comply with the tribunal’s orders regarding Jordan’s Principle, or, providing indigenous kids living on reserve with the same essential services as non-indigenous children.

June 10, 2016 – Federal, provincial and territorial Ministers responsible for Aboriginal Affairs, and the leaders of the Assembly of First Nations (AFN), Métis National Council (MNC), Inuit Tapiriit Kanatami (ITK), Indigenous Peoples’ Assembly of Canada (IPAC) and Native Women’s Association of Canada (NWAC) met together and confirmed a new approach in support of improving outcomes for Indigenous peoples and promoting reconciliation in Canada, including:

  • The Truth and Reconciliation Commission Calls to Action; 
  • The United Nations Declaration on the Rights of Indigenous Peoples; 
  • The socio-economic gap between Indigenous and non-Indigenous Canadians;
  • The socio-economic action plan for Aboriginal women;
  • Youth engagement; and
  • Child and family services and Jordan’s Principle.

Oct. 27, 2016 – Government position is that great proportion of these children are receiving support for respite care, and funding has also been provided for supports such as specialized medical equipment and supplies; medical transportation; specialized day programs; and addiction treatment programs. Our government has also committed to enhancing service coordination and to working with our provincial and territorial partners to ensure that First Nations children have access to the same publicly funded health and social services available to other children where they live.

Nov. 30, 2017 – Federal government is withdrawing its application for judicial review of two aspects of the ruling that the Government if Canada was seeking to set aside by the Federal Court: requests for services must be processed within 12 to 48 hours, and must be processed without case conferencing. 

Feb. 9, 2018 – Indigenous Services Canada has opened a new Call Centre to help First Nations children get services and supports under the child-first jurisdictional policy known as Jordan’s Principle. The centre will provide families with direct access to agents who will start the intake process and connect them to the Jordan’s Principle representative in their area. The regional representatives work closely with local service co-ordinators across Canada to identify and address the needs of First Nations children and improve their health and well-being. (iPolitics)

Mar. 19, 2019 – Budget 2019/20 pledges $1.2 billion over three years — $404 million per year beginning in 2019-2020 — to develop a long-term approach for services for First Nations children.

June 20, 2019Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families” passed in House of Commons. “The goal with this legislation is to apply laws, policies and values to systems designed and implemented by First Nations for First Nations with the focus on providing every opportunity for our children to grow up feeling valued and connected to their families, cultures and nations. National Chief Perry Bellegarde

April 16, 2020 – CHRT provides further clarity on compensation for First Nations children unnecessarily apprehended or denied essential Jordan’s Principal services. The Tribunal agreed with the AFN’s – and FNCFCS – submission that:

  • victims should be able to access compensation at the age of territorial or provincial majority;
  • that compensation should be available to children who entered care before January 1, 2006, but remained in care as of that date;
  • and compensation should be paid to estates of deceased individuals who would have been eligible

June 1, 2020 – The latest ruling provides clarification on the following definitions related to compensation regarding Jordan’s Principle: essential service, service gap, and unreasonable delay. The Tribunal upheld several issues related to the definitions that the Assembly of First Nations (AFN) put forward, including that a service did not need to be requested to be considered “essential,” and that definitions must be grounded in the principle of substantive equality. The Tribunal provided recommendations on the definitions of these terms, and the AFN, Canada and the other Parties involved with the case will collaborate on definitions to finalize the Draft Compensation Framework. Canada has sought Judicial Review of this ruling in Federal Court; however, hearings cannot commence until a final ruling on compensation is issued by the Tribunal.

Sept. 4, 2020Canadian Press – the federal government has agreed to certify the claims put forward by the Assembly of First Nations and the Moushoom class counsel in their class-action lawsuit from Feb. 12, 2020 and enter into mediation to reach a negotiated settlement for damages and justice for the thousands of First Nations children and families that have been discriminated against by Canada’s child welfare system that incentivized the removal of First Nation children from their families and Nations.

British Columbia

2006 – The Province of BC confirmed that it has responsibility for providing health services to all residents of BC, including First Nations. Additionally, committees, such as the Tripartite Committee on First Nations Health and the Implementation Committee, work in direct partnership with FNHA to advance progress on issues like Jordan’s Principle

April 10, 2017 – Signed tripartite Reconciliation Charter between Governments of Canada and BC and First Nations Leadership Council (BC Assembly of First Nations, First Nations Summit and Union of BC Indian Chiefs). 

Feb. 18, 2018 – The First Nations Health Authority is now administering Jordan’s Principle cases in British Columbia. The change comes from an administrative arrangement with the Government of Canada. Jordan’s principle was put into place to prevent First Nations children from being denied or experiencing delays in receiving health services. 

Alberta

2015 – Government as a whole has not clarified its interpretation of the scope of Jordan’s Principle (2015 Auditor’s report)

Feb. 14, 2017 – First Nations Health Consortium (11 First Nations and three Treaty areas representing 28% of total First Nations population) formed to work with Health Canada to deliver Enhanced Service Coordination to uphold Jordon’s Principal.

July 20, 2017 – Govt. plans to provide more money and services to children at risk on reserves. Will no longer wait for federal govt to provide necessary funding and will negotiate later

Nov. 10, 2018 – Honourable Jane Philpott, Minister of Indigenous Services alongside Chiefs from Maskwacis, Chief Joseph Weasel Child from Siksika Nation, Chief Clara Moberly from Bigstone Cree Nation and Kee Tas Kee Now Tribal Council which are represented by the First Nations Health Consortium and Danielle Larivée, Minister of Children’s Services for the Government of Alberta will sign a Tripartite Memorandum of Understanding on Jordan’s Principle.

Saskatchewan

Sept. 16, 2009 – Federation of Saskatchewan Indian Nations (FSIN), the Governments of Saskatchewan and Canada agreed to an interim document related to Jordan’s Principle, and committed to working together to move forward on developing a final arrangement to fully implement Jordan’s Principle. The interim implementation represents the first time in Canada an agreement on Jordan’s Principle has been developed and endorsed by the First Nations, Canada and a Province. The Ministry of Health continues to play a role with the Ministries of First Nations and Métis Relations, Social Services and Education in moving toward a final agreement.

Sept., 2016 – Indigenous Services Canada (ISC) has been providing information sessions and receiving applications for Jordan’s Principle since September 2016 with the federal mandate to meet the orders of the Canadian Human Rights Tribunal (CHRT) Ruling to ensure First Nations children, both on and off reserve, received the same level of care. Jordan’s Principle in Saskatchewan currently has several navigators on and off reserve, including but not limited to: Early Childhood Intervention Program (ECIP), First Nations Child and Family Service Agencies, Tribal Councils and Health.  (Jordan’s Principle Coordination Report)

Jan., 2018 – The Saskatchewan First Nations Family and Community Institute (SFNFCI) won the tendering bid to manage the Jordan’s Principle Initiative in January 2018 through a proposal driven initiative. 

July 26, 2018 – Saskatchewan First Nations Jordan’s Principle Coordination Report released. All 22 information sessions in 13 locations across Saskatchewan, from March 8-May 26 focused on providing information to First Nations Service providers on reserve. The value of community-based info sessions heightened the awareness and understanding of service providers and following the sessions, 90% of attendees were ready and very ready to apply for the Jordan’s Principle Initiative.

http://www.sfnfci.ca/ckfinder/userfiles/files/SFNFCI _Web_26July_2018_JPReport(1).pdf

Manitoba

Jan. 2006 – The Assembly of Manitoba Chiefs (AMC Chiefs in Assembly passed a resolution that called on the federal and provincial governments to implement the “child first principle” in resolving inter-governmental jurisdictional disputes, and, in honour of the memory of Jordan and with respect to his family and community, that this “child first principle” be termed “Jordan’s Principle” and be implemented without delay.

Dec., 2007 – Debate took place in the House of Commons on Jordan’s Principle (Private Members Motion 296) where the bill received unanimous support.

Nov., 2008 – Private Member’s Bill 203 Jordan Principle Implementation Act was introduced in the Manitoba Legislature but never made it to 2nd reading.

2011 – the AMC Chiefs in Assembly further called for the implementation of Jordan’s Principle by endorsing the “Declaration on Action for Implementation of Jordan’s Principle.”

Oct. 16 – 18, 2018Keewaywin: Our Way Home, Manitoba First Nations Engagement is a First-Nations led initiative.  It was created to ensure First Nations design and deliver a regional response to the Canadian Human Rights Tribunal decision to stop discriminating against First Nations children that includes:

  • Full implementation of Jordan’s Principle; and
  • Reform the First Nations Child and Family Services Program.

Oct. 19, 2018 – The funds ($1,187,715) support Jordan’s Principle for First Nations children living off reserve. The Assembly of Manitoba Chiefs (AMC) is administering the funds for programming, a project coordinator, and respite workers. Programming support delivered to off-reserve residents includes dental, medical appointments, therapy programs, and respite support to families with children ages 0 to 21. Delivered through the AMC’s EAGLE Urban Transition Centre (EUTC) in Winnipeg. It supports families in caring for their children in a way that promotes family unity and community strength. 

Jan. 23, 2019 – “Jordan’s ’Principle Service Coordination: A Manitoba Regional Approach to Full Implementation of Jordan’s Principle” released by the Assembly of Manitoba Chiefs. An outcome of “Keewaywin: Our Way Home, Manitoba First Nations Engagement” is an Assembly of Manitoba Chiefs led initiative. It was designed to get First Nations input on the design and delivery of a regional response to the Canadian Human Rights Tribunal decision to stop discriminating against First Nations children https://manitobachiefs.com/wp-content/uploads/19-01-23-Jordans-Principle-Summit-Presentation-AMC.pdf

Sept. 16,2020: NationTalk – The Manitoba Government is seeking a Judicial Review of a Manitoba Human Rights Commission decision that found a First Nations family was discriminated against because they could not access provincial health care and related services on reserve announced Indigenous and Northern Relations Minister Eileen Clarke. “A judicial review of this decision will bring much needed attention to the legal obligations of federal and provincial governments, and bring clarity to this important issue.” This indicates that 13 years after Jordan’s Principle was unanimously passed in 2007, the federal and provincial governments have still not established clearly established protocols for administering Jordan’s Principle in practice.

Ontario

April, 2018 – First Nations, Canada and Ontario committed to jointly reform the policy and funding approaches for First Nations Child and Family Services in Ontario

Quebec

August, 2009 – INAC announced a tripartite agreement which shifted First Nations child and family service agencies in Quebec from Directive 20-1 funding to the “enhanced prevention focused funding” formula (INAC, 2010). The new formula includes maintenance, operational, and prevention funds. Maintenance funds are meant to cover costs of each child in care, operational funds are intended to cover administrative costs and prevention funding is for child maltreatment prevention programs

June 10, 2015 – The Chiefs of the Assembly of First Nations Quebec-Labrador (AFNQL) pass a resolution calling on the federal and provincial governments to recognize Jordan’s Principle and to adopt a joint statement indicating their commitment to “resolve any jurisdictional or funding dispute that may jeopardize the health of a First Nation’s citizen, without discrimination based on geography, language, severity of concurrent needs, etc.”

This resolution calls for an expanded vision of Jordan’s Principle, by stipulating that no conflict of jurisdiction should limit a First Nation member’s access to care. (First Nations of Quebec and Labrador Health and Social Service Commission)

New Brunswick

Feb. 26, 2010 – The province’s child and youth advocate, released a report earlier this week that sounded the alarm for children living on First Nations communities and made 93 recommendations. Among those reforms, Richard’s report called for the federal and provincial governments to hammer out an agreement on Jordan’s Principle by Sept. 1. The New Brunswick government agreed. (CBC)

Nov. 23, 2011 – Speech from the Throne: Your government firmly believes a child’s needs should come before cost or jurisdiction and will implement Jordan’s Principle on providing public services for Aboriginal children during this session.

Prince Edward island

May 1, 2018 – The Mi’kmaq Confederacy of P.E.I. has found its Jordan’s Principle pilot project is helping Island First Nations children better access health services. The new child-first service coordinator position was funded by the federal government to implement…Jordan’s Principle (CBC)

Newfoundland and Labrador

Sept. 24, 2019 – “A Long Wait for Change: Independent Review of Child Protection Services to Inuit Children in Newfoundland and Labrador” released with the following recommendation # 21:   Government of Newfoundland and Labrador vigorously adopt and observe Jordan’s Principle for Indigenous children and youth, and work with the federal government to access available federal resources to help address needs.

Yukon

May 10, 2018 – First Nations in the Yukon can now receive assistance from the Council of Yukon First Nations (CYFN) in accessing services for children and youth. CYFN is the service coordinator for Jordan’s Principle in the Yukon, helping make sure First Nations children and youth across the territory receive services they need without disruptions, delay, or discrimination.

Northwest Territories

Oct. 5, 2015 – The Government of the Northwest Territories supports the adoption of a child-first principle to resolve disputes involving the care of First Nations children, but notes that there is a single health and social services system throughout the NWT that does not have separate health and social services for on-reserve First Nations children and families. (Meeting the Challenge of Reconciliation: NWT Response to the TRC Calls to Action)

Nunavut

July 3, 2018 – The federal government has pledged to develop a new policy to ensure Inuit children have equitable access to health care and other public services, regardless of where they live and where they go to receive care. The new initiative is meant to be an equivalent to another policy in place for First Nations children. The policy and related funding are intended to resolve jurisdictional disputes between provincial/territorial and federal governments over the cost of health care services, when children have to travel away from home to receive them. “In the past, there was a lack of understanding around if Inuit were eligible under Jordan’s Principle,” said Natan Obed, the president of Inuit Tapiriit Kanatami. “Only in the last year or so has the federal government made it clear that we weren’t.” (Nunatsiaq News)

Mar. 19, 2019 – Due to the remoteness of their home communities and the limited availability of culturally appropriate services, Inuit children face a number of unique challenges accessing health and social services. To address the immediate needs of Inuit children, Budget 2019 proposes to invest $220 million over five years, beginning in 2019–20, to provide services to Inuit children as work continues with Inuit and other government partners to improve local capacity to deliver services.

The following three sections focus on:

  • Timelines and details for the CHRT Non-Compliance orders from the First Nations Child and Family Caring Society
  • Conclusions from the Jordan’s Principle Working Group
  • The last section contains the official federal government response from the Crown-Indigenous Relations and Northern Affairs website.

CHRT Compliance Orders

From First Nations Child and Family Caring Society of Canada

On Jan. 26, 2016 the Canadian Human Rights Tribunal (CHRT) released a ruling (2016 CHRT 2) that found Canada discriminates against First Nations children by providing less child welfare funding to help keep them safe and by not implementing Jordan’s Principle to give them the services they need, when they need them. The CHRT ordered Canada to immediately stop the discrimination and to fully implement Jordan’s Principle. Since the initial ruling, the CHRT has had to issue additional orders to Canada. 

  • April 26, 2016: 2016 CHRT 10 – 1st Non-Compliance Order
    • Order for Canada to fully implement Jordan’s Principle within two weeks (May 10, 2016)
  • Sept. 14, 2016: 2016 CHRT 16 – 2nd Non-Compliance Order
    • Order for Canada to update its policies, procedures and agreements to comply with the findings in 2016 CHRT 2 with regard to the First Nations Child and Family Services Program, 1965 Agreement and Jordan’s Principle.
  • Mar. 29, 2017: 2017 CHRT 7 – 3rd Non-Compliance Order
    • Order moving forward Nishnawbe Aski Nation’s motion for immediate relief including the Choose Life initiative.
  • May 26, 2017: 2017 CHRT 14 – 4th Non-Compliance Order
    • The Tribunal noted that the manner in which Canada limits funding for prevention services is not an acceptable fiscal or social policy and is harming First Nations children as a result. Canada is taking an overly narrow approach to honouring Jordan’s Principle that applies to all First Nations children in need of care, regardless of where they reside. The ruling sets out a number of directives and timelines for Canada to comply with Jordan’s Principle (AFN)
    • 2017 CHRT 35: Nov. 2, 2019 – Order to amend 2017 CHRT 14 following Canada’s judicial review of certain aspects.
  • Feb. 1, 2018: 2018 CHRT 4 – 5th Non-Compliance Order
    • The Panel finds the seriousness and emergency of the issue is not grasped with some of Canada’s actions and responses”. “The Tribunal recognizes that consultation is necessary for long-term reform, however Canada has a history of using ‘the need to consult’ or ‘lack of information’ as an excuse for inaction.”
  • Jan. 7, 2019: 2019 CHRT 1 – 6th Non-Compliance Order
    • Order for Canada to pay the complainants and the Chiefs of Ontario for compensation for knowingly failing to disclose 90,000 highly-relevant documents to the complaint and for failing to advise the CHRT and the parties at the earliest opportunity.
  • Feb. 21, 2019: 2019 CHRT 7 – 7th Non-Compliance Order
    • Order for non-status First Nations children recognized by their Nation in urgent situations to be covered under Jordan’s Principle until the evidence has been heard regarding the definition of a First Nations. 
  • Sept. 6, 2019: 2019 CHRT 39 – 8th Non-Compliance Order
    • Order for Canada to pay maximum compensation ($40,000) for First Nations children and their families who were negatively impacted by Canada’s discriminatory practices.
Jordon’s Principal Working Group

Without denial, delay, or disruption: Ensuring First Nations children’s access to equitable services through Jordan’s Principle

The Assembly of First Nations, the Canadian Paediatric Society, and UNICEF Canada call on federal, provincial, and territorial governments to work with First Nations, without delay, in order to:

  • Develop and implement a governmental response that is consistent with the vision of Jordan’s Principle advanced by First Nations and endorsed by the House of Commons.
  • Systematically identify and address the jurisdictional ambiguities and underfunding that give rise to each Jordan’s Principle case. By clarifying jurisdictional responsibilities and eliminating the underfunding identified in individual cases, governments can prevent denials, delays, and disruptions in services for other children in similar circumstances. Accordingly, they can better assume the responsibilities to ensure equitable treatment of First Nations children outlined in the Convention on the Rights of the Child, the United Nations Declaration on the Rights of Indigenous Peoples, the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and other federal, provincial/territorial, and First Nations legislation and agreements.

Conclusions

Based on review of the evidence presented in the studies summarized above, the Jordan’s Principle Working Group concludes that nine conditions must be satisfied in order for a governmental response to reflect the vision of Jordan’s Principle advanced by First Nations and endorsed by the House of Commons, and to achieve the goals of Jordan’s Principle:

  1. Jordan’s Principle must apply to all Status and Status-eligible First Nations children.
  2. Jordan’s Principle must apply to all inter- and intra-governmental disputes.
  3. Jordan’s Principle must apply to all service domains.
  4. The criteria for identifying Jordan’s Principle cases should centre on the existence of jurisdictional ambiguity or underfunding that prevents a First Nations child from receiving services in accordance with provincial/territorial practice norms and legislated standards.
  5. Jordan’s Principle must operate as a true child-first principle.
  6. There must be clear and consistent standards and procedures for compensating all service providers, including First Nations providers, for the costs incurred during all Jordan’s Principle related processes.
  7. First Nations must be included as true partners in all stages of development and implementation of a response to Jordan’s Principle in every province/territory
  8. Measures of accountability and transparency must be incorporated at the case level.
  9. Measures of accountability and transparency must be incorporated at the broader level of implementation, in order to ensure compliance with responsibilities to First Nations children under international, national, provincial/territorial, and First Nations law and agreements.
Official Response from Federal Government: Sept. 5, 2019

Since 2016, the Government has made available $679.9 million to Jordan’s Principle to help with health, social and education services that are needed right away.

Between July 2016 and December 31, 2019, more than 508,000 products, services and supports were approved under Jordan’s Principle. These include mental health supports, medical equipment, speech therapy, educational supports and more.

Indigenous Service Canada (ISC) is fully committed to implementing Jordan’s Principle and complying with the orders of the Canadian Human Rights Tribunal. ISC continues to monitor and track compliance with the Canadian Human Rights Tribunal orders and is working with partners to improve processes to review and assess Jordan’s Principle requests and to implement a coordinated care system.

ISC will continue to reach out to First Nations families, health providers and provincial or territorial partners to raise awareness of Jordan’s Principle through a proactive communications and marketing approach.

On September 18, 2018, the Government of Canada, in partnership with the Inuit Tapiriit Kanatami, announced that an Inuit-specific Child First Initiative and framework is under development and that interim measures are available for Inuit families to submit requests to ISC on behalf of Inuit children requiring access to the health, social and education products, services and supports they need.

To ensure that First Nations children continue to have access to the services that they need, Budget 2019 announced $1.2 billion over 3 years, beginning in fiscal year 2019 to 2020. During that time, the Government of Canada and First Nations will continue to work together to develop a long-term approach to improving services for First Nations children, based on Jordan’s Principle.

In addition, to address the immediate needs of Inuit children, Budget 2019 announced to invest $220 million over 5 years, beginning in fiscal year 2019 to 2020, to provide services to Inuit children as work continues with Inuit and other government partners to improve local capacity to deliver services.

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