The Globe and Mail: Marsha McLeod

In 2007, just before the House of Commons rose for its Christmas break, parliamentarians voted unanimously to adopt a principle meant to put the needs of First Nations children ahead of bureaucratic government conveniences.

Jean Crowder, the then-MP who brought forward the motion to adopt Jordan’s Principle, warned her parliamentary colleagues that there would be shame on each one of them if they did not put action behind their words of support.

“With all of our wealth, we should be prepared to put children first,” Ms. Crowder told the House.

Over the past 15 years, the federal government has floundered in implementing Jordan’s Principle, denying high rates of requests at times. And those denials have not been drawn equally across the country, with some regions subjected to far higher rates of denials – a discrepancy that advocates say results from government inconsistencies, not the needs of children.

In the Northwest Territories, the government denied just over 41 per cent of products and services requested under Jordan’s Principle in the 2020-21 fiscal year. Next door in Yukon, its denial rate was about 13 per cent – about the same as the national rate that year. In Manitoba, meanwhile, it rejected just 2 per cent.

Denial rates in Alberta and British Columbia were also upward of 30 per cent that year, according to nearly 600 pages of government documents obtained by The Globe and Mail through an access-to-information request. These rates reflect requests made on behalf of one child.

Jordan’s Principle is a legal obligation for the federal government to ensure First Nations children receive the services and supports they need – without delays. Medical transportation and education were the two most common types of request in 2020-21. But requests can be wide-ranging, from wheelchair ramps and mobility aids, to tutoring and educational assessments, to diapers and formula.

While often thought of as a mechanism to address jurisdictional disputes over which level of government will pay for a service for a First Nations child, Jordan’s Principle isn’t limited to those kinds of situations. It applies to all First Nations children – regardless of where they live or the circumstances of their need. Making a request requires a letter of support from a professional, such as a doctor or social worker, or for certain requests, from an elder or knowledge holder.

“We have professionals out there assessing these children, and saying, ‘this child requires this particular service,’ ” said Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society. “When they don’t get that, then that’s a serious matter.”

Jordan’s Principle is named for Jordan River Anderson, from Norway House Cree Nation in Manitoba. Born with multiple disabilities, Jordan was cared for in a hospital, until, at age 2, doctors said he could move to a medical foster home. Both the provincial and federal governments wouldn’t pay, and Jordan died in 2005. He was five years old and had lived his entire life in a hospital.

Later that year, the Caring Society recommended a “child-first” principle in his name, where the government that first receives a request to pay for a service for a First Nations child must do so – and can dispute its responsibility later. In 2007, the House passed Ms. Crowder’s motion, but the government also set about using criteria so narrow that barely any children qualified.

Then, in 2016, as part of a wider case brought by the Caring Society and the Assembly of First Nations, the Canadian Human Rights Tribunal ordered the government to throw out its narrow definition of Jordan’s Principle. When change remained elusive, it issued more orders the following year.

The tribunal also ordered the government to compensate those harmed by this narrow definition, as well as by its underfunding of on-reserve child welfare services, which the tribunal found amounted to racial discrimination.

The regional variations in denial rates are far from the first time that issues have been raised around Jordan’s Principle. In the years since the federal government adopted it, Ottawa has repeatedly fallen short of implementing the principle – even in the face of the tribunal’s legally binding orders, a call from the Truth and Reconciliation Commission, and extensive advocacy from First Nations leaders and organizations.

In the meantime, evidence has piled up, pointing to delays and gaps in the services available to First Nations children and their families; underfunding of those services; and systemic racism in areas such as health care. On-reserve, the federal government funds certain health care services that elsewhere are covered by provincial or territorial governments, but the jurisdictional divide can be muddy, especially for First Nations people living off-reserve or without status.

Ms. Blackstock warned that rising numbers of Jordan’s Principle requests – with more than 56,000 products and services requested for individual children in 2020-21 – show the depth of the “unmet need” and government underfunding for First Nations, particularly in education and health.

The government played down concerns over the discrepancies in its denial rates and said its approach to Jordan’s Principle has fundamentally changed since it committed a year ago to a series of long-term reforms. Among them was a pledge to increase its “national consistency and standards” on requests.

Through an access-to-information request, The Globe received detailed figures on Jordan’s Principle for the 2020-21 fiscal year, the latest data available. A government spokesperson later followed up with some more recent national-level numbers.

Those figures show that its national denial rate dropped to 7 per cent in early 2022 from 21 per cent in early 2020.

In a September report, the Institute of Fiscal Studies and Democracy (IFSD), which analyzed Jordan’s Principle data at the request of the Caring Society, also highlighted the regional disparities in denial rates, as well as the sluggish processing of thousands of requests and other issues.

AFN Manitoba Regional Chief Cindy Woodhouse, who holds the organization’s social development portfolio, said that despite the progress made over many years on Jordan’s Principle, the IFSD report shows the government still has some work to do.

“What we’ve heard, anecdotally, is that implementation challenges can vary from region to region,” she said. “Unfortunately, these variations can exacerbate the exact service gaps that Jordan’s Principle is intended to address.”

Across the country, the regional offices of Indigenous Services Canada act as the first decision-makers on Jordan’s Principle requests. These offices have the power to approve requests, but not deny them. Requests that aren’t approved get escalated to the department’s headquarters, where denial powers lie with a limited number of senior officials. In 2020-21, more than 80 per cent of requests escalated to headquarters were denied, according to the IFSD report.

A year and a half ago, David Taylor, a lawyer for the Caring Society, wrote to the federal government asking it to start auditing the decisions made by its senior officials – as a way to address the regional variations. The department is still not doing this.

Samantha Wilson-Clark, the government’s acting executive director for Jordan’s Principle, said they intend to start such auditing, but would not say when. The executive director said she’s “personally comfortable” with the decisions being made and most denials are the result of ineligibility.

She said differences in the services and supports available in different regions contributed to the variations. Asked repeatedly if she sees the regional discrepancies as a problem for the government, Ms. Wilson-Clark did not directly answer.

Ms. Blackstock said referrals to headquarters act as a “preliminary decision to deny,” and that, in her view, many referrals result from regions interpreting tribunal orders incorrectly. Jennifer King, the reconciliation and policy co-ordinator at the Caring Society, added that there’s no evidence to suggest regions with high denial rates have any less need.

Under Jordan’s Principle, a request can be made for a single child or for a group of children, though the vast majority come in for individuals.

In 2020-21, the government denied just over 70 per cent of all group requests from British Columbia, along with nearly 55 per cent from Alberta. In Manitoba and Quebec, meanwhile, it denied only about 5 per cent, according to the government documents, which were produced by Indigenous Services Canada.

That year, the government received 52 such requests from B.C., compared with 455 from Alberta, 268 from Manitoba, and 638 from Quebec.

Ms. Wilson-Clark said that during the pandemic, some large group requests, including in B.C., were fulfilled through COVID-19 funding or “other supports,” and were therefore marked as denied under Jordan’s Principle.

Ms. Blackstock said government officials have been quick to link the discrepancies across the country to regional differences, not to problems with its own operations. She added that B.C. has been “particularly problematic” in its handling of requests.

“I just say, ‘okay, that’s one possible explanation. I’m open to hearing that. But where’s your evidence?’ ” she said. “You show me how there are somehow more services in British Columbia that result in you denying more claims.”

Ms. Blackstock said there’s a lack of quality control within the department to detect and solve problems. She acknowledged that the government is doing better now than in years past, but emphasized it’s already had 15 years of runway to get Jordan’s Principle right.

“For the government, they get a lot of redos, but for children, they can’t redo their childhood.”