The successful argument of Jordan’s Principle in federal court could have major implications for other battles First Nations are waging for equity in funding and service.
On April 4, the Federal Court of Canada ruled that Jordan’s Principle is legally enforceable and not simply a policy, as the federal government had been claiming.
“The court agreed with our arguments that it is a responsibility that the federal government has assumed and therefore they can be held accountable,” said Paul Champs, lawyer for the Pictou Landing Band and Maurina Beadle.
The band and Beadle challenged the federal government to support Beadle’s son Jeremy Meawasige, a severely disabled youth, at the same level of support Jeremy would receive if he were living off reserve. Jeremy lives with his mother Maurina on Pictou Landing First Nation. Champs invoked Jordan’s Principle, a concept which received unanimous support from the House of Commons in 2007. Jordan’s Principle was developed in response to a Manitoba case involving Jordan Anderson, a severely disabled First Nations child who remained in hospital due to jurisdictional disputes between the federal and provincial governments over payment of home care services. Jordan died at age five without being able to live in a family environment.
“It’s absolutely an awesome, awesome decision for us. It’s like justice has finally been done in this situation,” said Philippa Pictou, director of Pictou Landing Health Centre.
The commitment to funding ensures that the First Nation can provide Jeremy’s care.
“Having that security makes a huge difference. Up until now we’re constantly under threat of not being able to provide (funding and care),” said Pictou.
Jeremy’s situation came to the fore when his mother suffered a stroke in 2010 and couldn’t care for him. The band stepped in to provide the services so Jeremy could remain at home and would not need to be institutionalized outside of his community. The band asked the federal government to reimburse its costs. Aboriginal Affair and Northern Development Canada refused to provide funding at an equivalent rate.
Since the decision was rendered, Pictou said she has been inundated with emails from other First Nations and families who are in similar situations as Jeremy.
“This case has established a way to determine the normative level of care by looking at what the legal obligation is for the province to provide care to people in exceptional circumstances. Before that there wasn’t any laid-down process of how you went about doing it,” said Pictou.
Pictou also believes that the decision by Justice Leonard S. Mandamin could impact more than children needing care.
“He also said that the band council is obligated to provide assisted living and home care programs in a similar way that the province is so that also opens it up for us to look at … providing the same kind of benefits people would have living off reserve and looking to pressure (the federal government) to get proper funding to do that,” said Pictou.
Mandamin did not set a monetary figure for the federal government for reimbursement of care but instead said the matter was to be negotiated between the government and the band. Pictou said that over the course of almost three years, care for Jeremy has averaged $6,000 to $8,000 per month.
Champs said this decision which upholds Jordan’s Principle goes beyond health care for disabled children living on reserve.
In his ruling, Mandamin stated, “Jordan’s Principle is a mechanism to prevent the First Nations child from being denied equal access to benefits or protections available to other Canadians as a result of Aboriginal status…. I do not think the principle in a Jordan’s Principle case is to be read narrowly.”
“I think this case is the first to start breaking down those walls between on reserve and off reserve,” said Champs.
Champs is also counsel for the child welfare case that is part way through its scheduled 14-week hearing by the Canadian Human Rights Tribunal.
“We have expressly relied upon Jordan’s Principle in the human rights tribunal case for child welfare services and we think this federal court judgement will definitely support that case,” he said.
Champs is arguing Jordan’s Principle is the discrepancies that exist in the funding for welfare services on reserve compared to what is available off reserve. The Assembly of First Nations and First Nations Child and Family Caring Society filed a complaint with CHRT in 2007 stating that discrepancies exist in the funding for welfare services on reserve compared to what is available off reserve. Legal wrangling kept the claim from moving forward until a recent federal court victory which forced the CHRT to hear the claim.
Champs said they hope to make their closing arguments by mid-fall.
Champs said Jordan’s Principle could “arguably” be used for education funding as well. First Nations have long held that the federal government funds children who receive their education on reserve at a lower rate than which provinces fund their students.
Jeremy’s case was argued in court in June 2012, with the decision rendered 10 months later. The federal government has until May 3 to file a notice of appeal with the Federal Court of Appeal.
Aboriginal Affairs and Northern Development Canada spokesperson Michelle Perron said the department is “currently reviewing this decision to determine the most appropriate next steps.”