Jurisdictional Disputes and Indigenous Health: The Emergence of Jordan’s Principle

Contributed by: Maya Gunnarsson

Introduction

In 2005, Jordan River Anderson, a child from Norway House Cree Nation, died at the age of five without ever having lived at home.  Jordan was born with a rare muscular disorder that required him to be placed in a hospital in Winnipeg, approximately 800 km away from his home.  After two years of care in the hospital, Jordan’s doctors cleared him to be discharged to a specialized foster home to receive at-home care.  Unfortunately, Jordan never made it to the foster home.  The provincial and federal governments disputed who should pay for Jordan’s homecare for over two years, until Jordan’s death.

Neither the provincial nor the federal governments were willing to pay for Jordan’s home care, due to the jurisdictional ambiguities in the Constitution’s division of powers.  Sec 92(7) of the Constitution Act, 1867 assigns exclusive powers over hospitals to the provinces, while sec 91(24) assigns legislative authority over Indians to the federal government.  The legal term Indians has traditionally referred to First Nations people, with the federal government’s fiduciary duty only extending to “status Indians”.  In 2016, the Supreme Court of Canada expanded this definition, declaring that non-status Indians and Métis were to be considered “Indians” under sec 91(24).  As this expanded definition is relatively new, and many of the decisions referenced in this post used the previously accepted definition, the term “First Nations people” will be used in this post when referring to “Indians”.

The Manitoba government argued that the federal government had a fiduciary duty to First Nations people both on and off reserve and therefore Health Canada should be financially responsible.  The federal government argued that the provincial healthcare system was responsible for Jordan’s care.  As the two levels of government disputed who should foot the bill, Jordan was denied the service and remained in the hospital.

Hospital Bed || (Source: Flickr // Aaron Noble )

Jordan’s situation was not isolated.  Hundreds of First Nations children were being denied or delayed receipt of public services available to non-Indigenous children each year.

Jordan’s Principle is a response to this situation.  It states that when there is a jurisdictional dispute between different levels of government, or governmental departments over services for First Nations children, the government of first contact must pay for the service, and resolve the dispute over payment afterwards.  It is intended to ensure all children have equitable access to governmental services, such as healthcare.

Legislative History

From 2005-2008, following what happened to Jordan, Manitoba MLA Jon Gerrard unsuccessfully tried to pass Jordan’s Principle into law in the provincial legislature multiple times.  While these attempts failed in the Manitoba legislature, the House of Commons unanimously passed Private Member’s Motion 296 in 2007.  The motion stated, “the government should immediately adopt a child first principle, based on Jordan’s Principle, to resolve jurisdictional disputes involving the care of First Nations children.”

This was seen as an important step in ensuring equitable access to governmental services such as healthcare for First Nations children. However, it was not a binding motion.  Further, it did not specify any implementation measures or outline how jurisdictional disputes would be resolved.  Over the following four years, the federal government reached bilateral and tri-partite agreements with a number of provinces, territories, and First Nations to implement jurisdictional dispute resolution processes.  However, commentators have criticized the majority of these agreements for being inadequate in implementing Jordan’s Principle.

Implementation

Following the adoption of these agreements, primarily through dialogue with the courts, the federal government’s interpretation of Jordan’s principle has been evolving.  The biggest criticism of the government’s initial approach was their narrow interpretation of eligibility for Jordan’s Principle.  Specifically, the federal government’s operational definition of Jordan’s Principle did not align with the definition that had been adopted by the House of Commons.  Jordan’s Principle had been approved in the House of Commons as a motion, not a law; the subsequent agreements that came into place to operationalize the motion took a much narrower view of who could benefit from the respective agreements.  In 2013, Aboriginal Affairs and Northern Development Canada (AANDC) described Jordan’s Principle as only applying when: (1) the child lived on reserve; (2) the child had multiple disabilities requiring services from multiple service providers; and (3) there was a jurisdictional dispute between the provincial and federal governments. The narrow scope of this definition effectively denied redress to many First Nations children who may have faced delays or denials of services.

This interpretation of Jordan’s Principle was first challenged in Pictou Landing Band Council v Canada (Attorney General) (2013), specifically in relation to the definition of a jurisdictional dispute as only arising when there was a declaration of a formal payment dispute.  The Pictou Landing Band Council (PLBC) provided the homecare support necessary to care for Jeremy Meawasige, a teenager with multiple disabilities and high care needs. PLBC applied for funding relief under Jordan’s Principle. However, this was denied as AANDC reasoned that there was no jurisdictional dispute, since both the province and the federal government agreed that the requested funding was above what could be provided.  The provincial health plan had a maximum allotment for patients requiring at-home care.  The cost of Jeremy’s care exceeded this limit.  Had Jeremy lived off reserve, he would have been eligible for exceptional funding, but both levels of government ignored this when assessing his application. The federal government concluded that the funding PLBC was requesting was above what the province would provide for a non-Indigenous child, so they would not provide it either. This narrow definition of a jurisdictional dispute meant that Jeremy would be denied the care that he would have otherwise received had he lived off-reserve.  The federal court rejected this definition, stating that Jordan’s Principle should not be narrowly interpreted, and ordered the federal government to reimburse PLBC.

In 2015, the Truth and Reconciliation Commission’s final report came out.  The third Call to Action was for Jordan’s Principle to be fully implemented by all levels of government. The federal government, however, continued to interpret the principle as having a very narrow scope.

In 2016, the Canadian Human Rights Tribunal (CHRT) ordered Indigenous and Northern Affairs Canada (INAC), AANDC’s successor, to expand their definition of Jordan’s Principle. The CHRT found that whereas the motion that had been passed by the House of Commons was broadly framed, INAC’s interpretation to only apply the principle to inter-governmental disputes and to children with multiple disabilities, excluded a wide number of cases that the principle was intended to cover.  Further, it found that the process INAC had mandated to Jordan’s Principle applications inherently resulted in delays to services. The decision stated that INAC’s narrow interpretation of Jordan’s Principle resulted in service gaps, delays or denials and overall, adverse impacts on First Nations children – the very problems the principle was intended to address.   They concluded that it “ignores a large number of disputes that can arise and need to be addressed under this Principle.” The court ordered INAC 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.”

Three months after this ruling, the CHRT issued a non-compliance order, clarifying that starting discussions to review the INAC’s definition did not meet the standard required for immediate implementation. Five months later the CHRT issued another order, stating that INAC misinterpreted the original decision as indicating that Jordan’s Principle should only apply to First Nations children on reserve. They ordered INAC to immediately apply the principle to all First Nations children.  The CHRT issued another non-compliance ruling in 2017, ordering the federal government to “cease relying upon and perpetuating definitions of Jordan’s Principle that are not in compliance with the Panel’s orders in 2016 CHRT 2, 2016 CHRT 10, 2016 CHRT 16 and in this ruling.”

The Situation Today

The federal government has stated it is taking a renewed approach to Jordan’s Principle, in order to comply with the CHRT rulings. It remains to be seen if this approach will be viewed as sufficient at achieving the aims of the principle by courts.  If successful, it may be seen as a template for future agreements between the provinces, the federal government, and First Nations regarding services for Indigenous people.

As a child-first policy, Jordan’s Principle only applies to government services for First Nations children.  There is still a large gap in health outcomes for Indigenous peoples as compared to non-Indigenous Canadians, part of which can be attributed to a lack of access to services due to jurisdictional disputes.  The TRC’s twentieth Call to Action specifically highlights this and calls on the federal government to address it.  Working under its expanded definition, Jordan’s Principle and the ensuing agreements between various levels of government regarding implementation could be viewed as an example on how to deal with these types jurisdictional disputes moving forward.

Maya Gunnarsson is a Junior Online Editor of the McGill Journal of Law and Health and a first-year B.C.L./ LL.B. student at McGill University’s Faculty of Law. Maya holds a M.A. in Canadian Studies and Indigenous Studies from Trent University where she focused her research on the role of the media in the ongoing crisis of violence against Indigenous women and girls. She also holds a B.A. in Political Science from McGill University.  Maya has worked as a researcher at the Higher Education Quality Council of Ontario and interned at the Office of the UN High Commissioner for Human Rights in the Indigenous Peoples and Minorities Section.