3. Implement Jordan's Principle

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

Most levels of government have implemented Jordan’s Principle but only after the federal government was issued its third non-compliance order by the Canadian Human Rights Tribunal.

Under Jordan’s Principle, when governments disagree about who is responsible for providing services to First Nations children, they must help the child first and argue over the bills later. The House of Commons adopted the principle in 2007.

In June 2022, the federal government, the Assembly of First Nations, and lawyers for related class-action lawsuits reached a final settlement agreement to compensate young people harmed by Canada’s discriminatory child welfare system.

An agreement-in-principle was reached earlier in the year.

Indigenous Services Canada says the settlement is the largest in Canadian history.

In February 2019, the human rights tribunal issued an interim order for the federal government to provide services pursuant to Jordan’s Principle to First Nations children living off-reserve who have urgent and/or life-threatening needs, but do not have Indian Act status. This is an interim order until the tribunal makes a final determination on the definition of a First Nations child. The federal government is fighting that decision.

The tribunal also directed the federal government to pay $40,000 to each First Nations child, along with their primary guardian, who was denied services or forced to leave home to access services covered by Jordan’s Principle.

Background

In May 2017, the Canadian Human Rights Tribunal issued its third non-compliance order since January 2016, when the tribunal — like the TRC’s Call to Action #3 — ordered INAC and Health Canada to make health care equitable for First Nations, Métis and Inuit children, both on and off reserve.

In the May 2017 ruling, the tribunal determined that Health Canada and Indigenous and Northern Affairs Canada continued to restrict health services to children.

“The definition of Jordan’s Principle adopted by Canada was a calculated, analyzed and informed policy choice based on financial impacts and potential risks, rather than on the needs or the best interests of First Nations children, which Jordan’s Principle is meant to protect and should be the goal of Canada’s programming,” according to paragragh 55 of the ruling.

The May 2017 ruling noted that Canada was only implementing Jordan’s Principle to resolve intergovernmental disputes between the federal and provincial governments, as opposed to all jurisdictional disputes (ie, between federal government departments), and only with children with multiple disabilities.

The tribunal also stated the federal government’s flawed implementation of Jordan’s Principle may have contributed to the 2017 suicide deaths of two girls from Wapekeka First Nation in Ontario.

In July 2016, Wapekeka First Nation submitted a proposal to the federal government asking for mental health supports to help address a suicide pact made by teenagers in the community.

The tribunal noted that following the request, Canada did nothing until January 2017 — only after two girls in the community died by suicide.

“The flaws in the Jordan’s Principle process left any chance of preventing the Wapekeka tragedy unaddressed and the tragic events only triggered a reactive response to then provide services,” the tribunal said in its ruling.

The tribunal also determined that the federal governments were not sufficiently monitoring cases which would be eligible for Jordan’s Principle.

The tribunal ordered Health Canada and INAC, once again, to apply Jordan’s Principle to all First Nations children, on or off reserve, with a broader definition of medical requirements to be eligible.

As a result of the May 2017 ruling, Health Canada posted a revised definition and framework of Jordan’s Principle on its website.

The tribunal also gave INAC and Health Canada until November 2017 to review all previous requests for funding for First Nations, Métis and Inuit children that were denied, dating back to 2009.

According to information obtained through a CBC Access to Information request, from July 2016 to March 2018, they approved 73,447 requests; the vast majority of them after the May 2017 non-compliance order. (From July 2016 to March 31, 2017, they approved 4,940 requests. From April 2017 to March 30, 2018, they approved 68,507 requests).

A Health Canada spokesperson says in the time frame from 2007 to October 2017, 133 cases were denied.

But as a result of the May 2017 order to review the past denied cases, Health Canada told CBC that of those 133 cases that were reviewed, 34 were approved under Jordan’s Principle — A Child First Initiative; 90 remained denied, one was ineligible and eight required follow-up with communities to obtain more information about the child and the request.

In June 2017, in response to the May 2017 non-compliance order, the federal government requested a judicial review on sections of the ruling, arguing some of them, like the order to process claims within 48 hours, were unreasonable. In November 2017, revisions were made and the federal government withdrew its request for the judicial review.

Meanwhile, in May 2017, the Canadian Paediatric Society determined that “First Nations, Inuit and Métis children and youth” are now one of the five priorities of the CPS, including their support of Jordan’s Principle.