Indigenous children still in jurisdictional fight

Ten years ago, members of Parliament unanimously supported a motion calling for the implementation of Jordan’s Principle — a rare moment in the Canadian Parliament when politicians of all stripes stood together.

The motion stated “where a government service is available to all other children, but a jurisdictional dispute regarding services to a First Nations child arises between Canada, a province, a territory, or between government departments, the government department of first contact pays for the service and can seek reimbursement from other governments or department after the child has received the service.”

The story of Jordan’s Principle is one of tragedy and bureaucratic insensitivity.

Jordan Rivers Anderson was a little boy from Norway House, Man., who was born in 1999 with a rare muscular disorder that kept him in hospital. In a couple of years he was deemed well enough to be moved to a special care facility where his quality of life would be better. There was no such facility in his home community, so his family turned to the province. Provincial and federal agencies couldn’t agree on jurisdiction and who should pay. Had Jordan not been a First Nations person, there would have been no issue about providing the care.

Sadly, his life ended at age five with no opportunity to live in his community or a family home.

This is an ongoing issue because both or neither governments claim jurisdiction over First Nations people. The excuse for this conflict goes back to the British North America Act. Section 91 states the federal government holds the responsibility for “Indians and land reserved for Indians.” Section 92 sets out the areas of health and education as provincial responsibilities.

The federal government maintains treaty rights cease to exist at the reserve boundary and only people living on reserve are entitled to federal support. The provinces, however, will take federal money but balk at providing services if the location of the client is in question — such as a little boy in the hospital whose parents live on a reserve.

Jordan’s Principle cuts through this constitutional quagmire and states the individual should be cared for first and the jurisdictional issues worked out later.

However, all the politicians’ good intentions can be undone by bureaucrats. The staff at Health Canada framed Jordan’s Principle in very narrow language, making it difficult to implement. First Nations children continued to be caught between jurisdictions.

In January 2016, the Canadian Human Rights Tribunal ruled the federal government should cease using the narrow definition of Jordan’s Principle and implement the full meaning of the motion passed by the House of Commons. In spite of two remedial orders from the tribunal, the federal government continued to fail to adhere to the ruling on Jordan’s Principle.

The First Nations Child and Family Caring Society, along with the Assembly of First Nations, took the case to the Human Rights Tribunal charging the federal government had failed to comply with the previous ruling. On May 26, 2017, the tribunal once again ruled in favour of the First Nations and issued a set of compliance orders to implement Jordan’s Principle.

So far, the federal government hasn’t complied.

The implementation of Jordan’s Principle is a textbook case of the good intentions of Parliament being thwarted by the narrow and parsimonious civil service culture that has kept our people in a backward colonial state for generations.

Douglas Cuthand is an aboriginal writer for the Saskatoon StarPhoenix.