First Nations leaders call out Ottawa’s ‘nonsense’ litigation on Jordan’s Principle expansion

First Nations leaders are calling on Ottawa to “stop the nonsense” for seeking review of a decision that expands children’s eligibility to receive crucial public services.

Shortly before the holidays, the federal government applied for a judicial review of a Canadian Human Rights Tribunal (CHRT) decision to broaden eligibility criteria under Jordan’s Principle.

The principle obligates the government first contacted by a child or their family to cover the cost of required services, resolving payment disputes later. It’s named after Jordan Anderson, a First Nations boy who died in hospital in 2005, while the Manitoba and federal governments fought over who would pay for his home care.

“Every step of the way, we’ve had to take Canada to court to get them to comply with Jordan’s Principle,” said Cindy Blackstock, executive director of the First Nations Child & Family Caring Society, which is named in the notice.

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The CHRT’s order confirmed Jordan’s Principle can apply to children registered or eligible to be registered under the Indian Act; children who have a guardian who is registered or eligible to be registered under the Indian Act; children recognized as citizens by their First Nation; and children who live on reserve.

Read more: Trudeau says $542M to be sent to Indigenous groups to set up child welfare services

In its notice of application, Ottawa said the tribunal overstepped.

“The Tribunal’s decision was made without broad participation of First Nations communities and is a clear overreach of the Tribunal’s jurisdiction,” Indigenous Services Canada (ISC) said in a statement.

The CHRT is mandated to apply the Canadian Human Rights Act to decide whether a person or organization has engaged in discrimination.

ISC said it has implemented the new eligibility criteria since Nov. 25, but questions the tribunal’s authority to establish such criteria.

“The legal issues around the scope of the Tribunal’s authority to issue these decisions are important ones on which we seek further guidance from the Federal Court,” ISC said.

Read more: Number of children in Saskatchewan’s care hits 11-year high, with 86% identified as Indigenous

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In its application, Ottawa said the tribunal erred in its decision by “finding Canada’s inclusion of the provisions of the Indian Act as criteria for Jordan’s Principle eligibility to be discriminatory.”

Blackstock said she believes Canada is using the Indian Act in an attempt to restrict eligibility.

“First Nations children’s identity shouldn’t be just limited to this racist Indian Act,” Blackstock told Global News.

“No other group of people in Canadian society have to get their racial or cultural identity affirmed by the government of Canada in order to get public services.”

‘Embarrassing themselves’

ISC did not respond to a request for additional details on why it asked a federal judge to review the order.

“They want to control, through the Indian Act, who is a First Nations person and they want to try to limit that to the smallest group possible,” Blackstock said.

ISC said determining who belongs to a First Nation is complex.

“The expanded eligibility for Jordan’s Principle for children recognized by their nations will remain in effect regardless of the outcome of the judicial review,” ISC said.

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“For children who are not eligible to be registered but have one parent/guardian that is eligible to be registered, Canada continues to engage with First Nations partners with regard to the second-generation cut-off under the Indian Act.”

Read more: ‘Stop the bull—t’: Timeline unclear as FSIN renews call for child welfare reform funding

Federation of Sovereign Indigenous Nations Vice Chief David Pratt said Canada should honour the tribunal’s order in full.

“We’re encouraging Canada to do what’s right and… to stop the nonsense,” Pratt said in an interview.

“(They’re) embarrassing themselves.”

‘Not helping the real issue’

The federal government said the CHRT imposed obligations on First Nations to determine who they recognize as community members.

Pratt said he doesn’t see the order as a burden.

Read more: Saskatchewan First Nation ratifies its own child and family services act

“A lot of our chiefs believe that it’s their nation’s right to determine who and who cannot be a member,” he said.

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Cadmus Delorme is one of those chiefs. He said colonial definitions of Indigenous identity are typically linked to funding.

“The way that First Nations are identified in this country is based on the Indian Act,” said Delorme, chief for Cowessess First Nation in east-southern Saskatchewan.

“The less status Indians they have in this country, the less fiduciary obligation.”

Delorme said funding models shouldn’t be based on colonial identifications of Indigenous people.

“Adding up the score is not helping the real issue of what Jordan’s Principle is supposed to do,” he said, “and that is to close any gap in this country to make sure that it doesn’t matter what background you have, that you’re going to succeed.”

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