Jordan's Principle: Law And History

Jordan's Principle is a child-first principle that ensures First Nations children can access the same public services as other children in Canada. It was established in memory of Jordan River Anderson, a child from Norway House Cree Nation who died aged five after spending years in hospital while the federal and provincial governments disputed who was financially responsible for his home care. Jordan's Principle was passed unanimously in the House of Commons in December 2007. However, despite this unanimous support, the federal government implemented Jordan's Principle in a narrow manner, leading to a 2016 ruling by the Canadian Human Rights Tribunal that the government's definition was discriminatory.

Jordan River Anderson's story

Jordan River Anderson was a young boy from the Norway House Cree Nation in Manitoba, Canada. He was born in 1999 with multiple disabilities, including a rare muscular disorder called Carey Fineman Ziter syndrome. Jordan spent the first two years of his life receiving treatment in a hospital in Winnipeg. After being cleared to return home, Jordan was forced to remain in the hospital for over two more years as the federal and provincial governments disputed who would be financially responsible for his in-home care. Tragically, Jordan died in February 2005 at the age of five, never having had the opportunity to live in a family home.

Jordan's story brought attention to the issue of jurisdictional disputes between provincial/territorial and federal governments in Canada regarding payment for services for First Nations children. In many cases, these disputes resulted in delays or denials of access to government-funded public services for First Nations children.

Following Jordan's death, a child-first principle called "Jordan's Principle" was established to resolve these payment disputes and ensure that all First Nations children have equitable access to government-funded public services. Jordan's Principle holds that the government of first contact pays for the service and resolves any jurisdictional or payment disputes at a later time. This principle was unanimously supported by the Canadian Parliament in December 2007 and has since been the subject of ongoing legal and political discussions regarding its interpretation and implementation.

Jordan's story and the establishment of Jordan's Principle have had a significant impact on public policy and administration in Canada. It has brought attention to the historical disadvantages and discrimination faced by First Nations children and the need for equitable access to public services. Jordan's death ignited a movement to uphold the human rights of all First Nations children, ensuring that they receive the support and services they need in a timely and culturally appropriate manner.

The passing of Jordan's Principle in the House of Commons

Jordan's Principle is a child-first principle that ensures First Nations children can access the same public services as other children in Canada. It is named after Jordan River Anderson, a young Cree boy who died aged five while waiting for home-based care that was approved but never arrived due to a financial dispute between the federal and provincial governments. Jordan's Principle was established to ensure that such a tragedy never happens again.

Jordan's Principle was passed unanimously in the House of Commons in December 2007. The passing of this principle in the House of Commons was a significant step forward in recognising the rights and needs of First Nations children in Canada. The principle ensures that First Nations children can access all public services when they need them, including services that are not ordinarily available to other children, to ensure substantive equality. It holds that First Nations children should not be denied access to public services due to disputes between governments over financial responsibility.

Jordan's Principle was established by First Nations communities to prevent similar incidents from occurring in the future. It reflects the non-discrimination provisions of the United Nations Convention on the Rights of the Child and Canadian domestic law, which prohibit differential treatment based on race or ethnic origin. The principle also aligns with the Truth and Reconciliation Commission's Call to Action #3, which calls on "all levels of government to fully implement Jordan's Principle."

Since its passing in the House of Commons, Jordan's Principle has had a significant impact on improving access to services for First Nations children. From July 2016 to March 2020, more than 572,000 products, services, and supports were approved for First Nations children under this principle. The Canadian government has also committed $3.5 billion toward meeting the needs of these children. Local service coordinators have been hired across Canada to assist families in accessing Jordan's Principle and submitting requests for products, services, or support.

The Canadian Human Rights Tribunal's ruling

Jordan's Principle was established in memory of Jordan River Anderson, a child from Norway House Cree Nation who suffered from a rare muscular disorder that required years of medical treatment in a Winnipeg hospital. After spending the first two years of his life in the hospital, doctors cleared Jordan to live in a family home near the hospital. However, the federal and provincial governments could not agree on who was financially responsible for the necessary home care. For over two years, the Government of Canada and the Manitoba provincial government continued to argue while Jordan remained in the hospital. In 2005, at the age of five, Jordan died in the hospital, never having had the opportunity to live in a family home.

In January 2016, the Canadian Human Rights Tribunal (CHRT) ruled that the Government of Canada's improper implementation of Jordan's Principle resulted in discrimination against First Nations children and youth on the basis of race and national ethnic origin. The Tribunal ordered the Government of Canada to "cease applying its narrow definition of Jordan's Principle and to take measures to immediately implement the full meaning and scope of Jordan's Principle."

Since the 2016 ruling, the CHRT has issued several remedial non-compliance orders against Canada for failing to abide by the original decision and implement the proper definition of Jordan's Principle. In September 2016, the Tribunal specified that Jordan's Principle applies to all First Nations children, regardless of their residence or whether they have disabilities or short-term issues. Despite this, two 2017 rulings (2017 CHRT 14 and 2017 CHRT 35 (amendment)) asserted that Canada continued to demonstrate "its pattern of conduct and narrow focus with respect to Jordan's Principle" and provided guidelines for implementation. Canada was ordered to:

• Apply Jordan's Principle to all First Nations children under the local age of majority, regardless of their residence.
• Base the application of Jordan's Principle on the needs of the child, rather than what is typically available to other children (normative standard of care).
• Ensure that administrative procedures do not delay service provision.

The Tribunal also ordered Canada to follow specific timeframes when making a determination on a request:

• Urgent: within 12 hours
• Non-urgent: within 48 hours
• Urgent: within 48 hours
• Non-urgent: within 1 week

In February 2019, the CHRT issued an interim ruling (2019 CHRT 7) on the definition of a "First Nations child" for the purposes of Jordan's Principle. Pending a full hearing, the Tribunal ordered Canada to extend Jordan's Principle to First Nations children without Indian Act status who live off-reserve but are recognized by their Nation and have urgent and/or life-threatening needs.

The CHRT issued an order on compensation in 2019 (2019 CHRT 39), ruling that First Nations children and their families would receive the maximum compensation of $40,000 through the Canadian Human Rights Act for Canada's "wilful and reckless" discrimination. The Government of Canada was ordered to compensate certain First Nations children and their parents or grandparents affected by the discriminatory treatment in child welfare services since January 1, 2006, or those denied or delayed services covered under Jordan's Principle since November 2, 2017.

In November 2020, the CHRT issued an order (2020 CHRT 36) confirming four categories of eligibility for Jordan's Principle:

• A child resident on or off-reserve who is registered or eligible to be registered under the Indian Act.
• A child with one parent/guardian who is registered or eligible to be registered under the Indian Act.
• A child recognized by their Nation for the purposes of Jordan's Principle, regardless of their residence.
• A child who is ordinarily resident on-reserve.

The CHRT's rulings and orders have had a significant impact on the implementation of Jordan's Principle, ensuring that First Nations children have equitable access to public services and that their needs are addressed in a timely and culturally appropriate manner.

The First Nations Child and Family Services, Jordan's Principle, and Trout Class Settlement Agreement

Jordan's Principle is a child-first principle that ensures First Nations children can access the same public services as other children in Canada. It was established by First Nations in response to the death of five-year-old Jordan River Anderson, who spent the first two years of his life in a hospital. After being cleared to leave, Jordan was forced to spend over two more years in the hospital while the federal and provincial governments disputed who was financially responsible for his in-home care. Tragically, Jordan died in 2005 before he could return home.

Jordan's Principle was passed unanimously in the House of Commons in December 2007. It ensures that First Nations children can access all public services when they need them, and that these services are culturally based and take into account the historical disadvantages linked to colonisation. According to the federal government, from July 2016 to March 2020, "more than 572,000 products, services and supports were approved for First Nations children under Jordan's Principle."

On October 24, 2023, the Federal Court of Canada approved the First Nations Child and Family Services, Jordan's Principle, and Trout Class Settlement Agreement. This agreement provides $23.3 billion in compensation for:

• Children who were removed from their homes under the First Nations Child and Family Services Program between April 1, 1991, and March 31, 2022.
• First Nations children who were impacted by the government's narrow definition of Jordan's Principle between December 12, 2007, and November 2, 2017.
• First Nations children who did not receive or were delayed in receiving an essential public service, product, or support between April 1, 1991, and December 11, 2007.
• First Nations individuals living on-reserve or in the Yukon, who were sent off-reserve by a caregiving parent or grandparent to stay with a non-family member, between April 1, 1991, and March 31, 2022.

The impact of Jordan's Principle on public policy and administration

Jordan's Principle has had a significant impact on public policy and administration in Canada, particularly regarding First Nations children's access to public services. The principle, established in memory of Jordan River Anderson, ensures that these children have equitable access to all government-funded public services, regardless of whether they live on or off-reserve. It holds that First Nations children should not be denied access to essential services due to jurisdictional disputes between governments or departments over payment. The government department of first contact pays for the service and can seek reimbursement later, ensuring that children's needs are met without delay.

Jordan's Principle has been incorporated into Canadian public policy and administration, reflecting the non-discrimination provisions of the United Nations Convention on the Rights of the Child and Canadian domestic law prohibiting differential treatment based on race or ethnic origin. It ensures that First Nations children can access culturally-based services that consider the historical disadvantages linked to colonisation. The principle also addresses gaps in services such as mental health, special education, and medical equipment, ensuring that First Nations children have equal access to essential services as other children in Canada.

The impact of Jordan's Principle has led to several developments in public policy and administration. The Canadian Human Rights Tribunal (CHRT) has issued rulings and orders to ensure the proper implementation of the principle, including expanding its definition to include all First Nations children, regardless of their residence or specific needs. The CHRT has ordered the Government of Canada to take specific actions, such as applying Jordan's Principle based on the needs of the child rather than the normative standard of care and ensuring that administrative procedures do not delay service provision.

Additionally, the CHRT has ordered Canada to follow specific timeframes for making determinations on requests for services, with urgent requests requiring a response within 12 to 48 hours and non-urgent requests within 48 hours to one week. The Tribunal has also provided guidelines for reimbursement processes between government departments and clarified the definition of a "First Nations child" for eligibility purposes. These rulings have shaped the administration and delivery of public services to First Nations children, ensuring timely access to essential services.

Furthermore, Jordan's Principle has influenced the allocation of funding for First Nations children's services. The Government of Canada has committed to providing funding based on the number of eligible children rather than a fixed budget, recognising Jordan's Principle as a legal obligation. This ensures that funding expands to meet the needs of all eligible children. The impact of Jordan's Principle on public policy and administration has been significant, shaping the way First Nations children access and receive public services in Canada. It has helped to address historical disadvantages and ensure substantive equality for First Nations children.

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