Advocacy organizations involved in Ottawa’s latest legal rumble over Jordan’s Principle say the government’s court challenge is inconsistent with commitments to reconciliation, First Nations self-determination and international human rights standards.
At issue this time is the right of non-status First Nations kid to access Jordan’s Principle regardless of where they live.
“We’re all of the same mindset,” said Kevin Hart, Manitoba regional chief for the Assembly of First Nations. “We’re going to continue to fight for First Nation children and for what rightfully belongs to First Nation children – especially those ones with special needs.”
Last month, the AFN, Chiefs of Ontario (COO), Nishnawbe Aski Nation (NAN), Amnesty International and the First Nations Child and Family Caring Society all filed notices to appear in Federal Court.
It’s there the Canadian government is asking a judge to set aside a November 2020 ruling from the Canadian Human Rights Tribunal broadening Jordan’s Principle eligibility to certain non-status First Nations kids.
The children still must either have one parent who has Indian status or be recognized and claimed by their nation to qualify.
The dispute arises out of a longstanding complaint brought by the Caring Society and the AFN in 2007 against the feds. At its heart is the now established fact that Canada discriminates against First Nations kids on reserves and in the Yukon.
The tribunal started considering this particular question in 2019, when the Caring Society asked for clarification on who qualifies as a First Nations child for the purposes for Jordan’s Principle.
The Caring Society brought forward the case of a baby girl named only as S.J. in the record. S.J. was diagnosed with a rare, potentially life-threatening condition known as hyperinsulinism.
S.J. needed an essential scan only available in three places worldwide as part of a study. Edmonton was one. They lived in Toronto.
According to tribunal evidence, S.J.’s dad is non-Indigenous while her mom received status under “the grandmother bill,” probably a reference to Bill C-31.
S.J.’s mom sought help through Jordan’s Principle for travel costs. She was denied because S.J. wasn’t status, wasn’t eligible for status and lived off reserve. The Caring Society intervened and paid instead.
Then they turned to the tribunal, seeking the equivalent of an injunction – an interim order compelling Canada to consider kids like S.J. eligible. They succeeded then and in follow up hearings.
Getting past the Indian Act
Hart, who holds the child welfare portfolio at AFN, celebrates the ruling because it goes beyond the Indian Act and recognizes nations’ right to self-determine their own members.
He hopes a judge upholds it.
“All First Nations children must have access to the services and the supports that they need. The supports must not be limited to how the Indian Act defines a First Nation child,” he said.
“Canada’s application for this judicial review, I think, is contradictory to their commitment to reconciliation and upholding the self-determination of First Nations.”
Deputy Grand Chief Walter Naveau, who holds the social services portfolio at NAN, offered a similar take.
“The court challenge is like a slap in the face. Once again there’s the government meddling in something that could be going some place where it has good traction for First Nations,” said Naveau in an interview.
“We should be the ones determining who is a First Nations member in our communities, not the bureaucracy of the federal (government).”
Grand Chief Joel Abram holds the same portfolio at COO. He says he too is confused and disappointed by the move.
“They have very mixed messaging on reasons why they’re going forward on this,” he said. “I’m just kind of disappointed in that decision to do that, but I guess we’re just going to have to see what exactly their arguments will be.”
Canada’s ‘curious’ reasoning
While Canada’s lawyers haven’t filed their argument in court yet, the initial application and prior pleadings indicate what positions Abram and others expect them to take.
Canada submitted an affidavit affirmed by Valerie Gideon, then a senior assistant deputy minister at Indigenous Services Canada (ISC), during the interim hearing when S.J.’s case was raised.
The December 2018 filing indicates ISC preferred to work out who is legally a “First Nations child” without the tribunal compelling it do so.
“It should be subject to a broader level of informed discussions as it will impact all programing, federally and provincially/territorially,” said the statement attributed to Gideon.
“It is my view that the Parties should continue working together through their own affiliations, including the AFN’s Executive Committee, with the aim of reaching a consensus on this seminal issue outside the Tribunal process.”
ISC issued a press release on Dec. 22, 2020 echoing the position. It said the tribunal order “was made without broad participation of First Nations communities and is a clear overreach of the Tribunal’s jurisdiction.”
But the release also said the new criteria “would remain in effect regardless of the outcome of the judicial review.”
Abram called this reasoning – seeking to set aside an order while promising to implement it at the same time – unclear.
“They’re basically making the argument that the decision was made without the broad participation of First Nation communities, so nation-to-nation engagement, which on one hand is great,” he said.
“But you don’t see them implement that sort of thing with regard to their own legislation, so it’s a curious argument to make.”
COO, AFN, NAN and the Caring Society all participated in the tribunal hearing and contributed to the drafting of the new criteria.
Hart said he hasn’t heard any protests from First Nations leadership. Abram said he feels this is something COO supports.
“We do think the majority of our First Nations’ input has been put forward around this particular order,” he said.
Canada has moved forward with other initiatives in the past even when chiefs oppose them, Abram added.
“I don’t think their argument holds a whole lot of water because they don’t hold themselves to that same principle.”
Naveau said it’s a good thing if the tribunal can order Canada to recognize the inherent rights and jurisdiction of First Nations.
“Under the traditional laws, Anishinaabe way, we’re to help one another. Not to drive away a family member,” he said. “Those were laws given to us by Creator.”
Amnesty International believes there are several international legal covenants and human rights standards – including the UN Declaration on the Rights of Indigenous Peoples – Canada is not upholding.
“Amnesty is very disappointed in their position,” said Ana Collins, Indigenous rights advisor for the organization’s Canada branch. “Canada cannot be diminishing inherent rights by relying on colonial definitions of a First Nations child.”
Amnesty plans to continue arguing principles of international law must guide interpretation and implementation of Jordan’s Principle in this case, added Collins.
Collins and Abram speculate the government is concerned about the amount of cash it could have to spend.
“What other reason would they deny children their rights except for money?” said Collins.
Hart suggests bureaucratic limitations may by holding back the political promise of reconciliation.
“We still have the same bureaucracy and decision-makers that are of the same mindset of the Harper era.” Hart said. “They feel strongly that First Nations simply don’t have the right or can’t have the capacity to take care of themselves.”
The tribunal scolded Canada for the “bureaucratic” approach it applied when denying 18-month-old S.J’s request for help.
“This type of bureaucratic approach in Programs was linked to discrimination in the Decision,” wrote the panel.
That “Decision” was a landmark 2016 finding that Canada wilfully and recklessly discriminated against First Nations kids by substantially underfunding child and family services on reserves and in the Yukon.
It was handed down five years ago last week, while this week marked 16 years since Jordan River Anderson died.
The young Norway House Cree Nation boy was born with multiple disabilities in 1999. He died in hospital at age five while Manitoba and Ottawa bickered about who should pay for his home care.
Sixteen years ago today, little Jordan River Anderson passed away. His family gifted us with Jordan’s Principle. Thousands of children have been helped in Jordan’s name and the fight for justice continues. Today, please say a prayer for Jordan and his family pic.twitter.com/v8a58O1F5Z
— Cindy Blackstock (@cblackst) February 2, 2021
Scholar weighs in
Damien Lee reached for the pen when he heard about Ottawa’s latest court gambit involving First Nations kids and Jordan’s Principle.
The Ryerson University sociology professor authored a policy brief for the Indigenous-led Yellowhead Institute think tank titled, Happy New Year To Everyone But Non-Status Kids.
He argued colonial governments of the past often told First Nations they could claim whomever they want as citizens, but would pay only for members it recognized as status Indians.
“Telling First Nations that they can claim whom they want, but then not resourcing such decisions weaponizes First Nation self-determination against children who don’t meet the state’s distorted definition of who is an Indian,” he wrote.
“This is colonial violence.”
According to his Yellowhead bio, Lee was adopted as an infant into Fort William First Nation in accordance with Anishinaabe law. He studies First Nations band membership issues
He told APTN News continued reliance on Indian Act membership can spawn new traumas by potentially creating rifts within communities by forcing them to go against their own laws.
He too finds Ottawa reasons for seeking court direction “a little bit suspect.”
“The message here is that First Nations control over their membership or citizenship is only ever contingent on the whims or will of the federal government,” he said.
“That, to me, is the definition of paternalism today in this context.”
A case management conference is slated for Feb. 12.
A date for the hearing has not been set.