Provinces and Territories

determinants of health; addresses anti-Indigenous racism and discrimination to create and sustain safe environments to seek and receive care; increases Indigenous control and support communities in realizing full self-determination in health and health care delivery structures; addresses ongoing jurisdictional issues that impede equitable access to care; and instills jurisdictional accountability measures (ISC, 2022a). Informants also emphasized the importance of meaningful relationships, Indigenous leadership, and communitylevel engagement to guide the development process of the health legislation, as well as hearing from diverse populations, including the voices of women, children, and 2SLGBTQQIA7 peoples (ISC, 2022a). Further events are currently underway (ISC, 2022d).

3.3 Federal Jurisdiction in Indigenous Health Care and Disputes with Provinces and Territories

Despite Supreme Court of Canada interpretations (Daniels v. Canada, 2016), and fiduciary responsibilities entrenched in the Constitution Act (1867), the Government of Canada continues to be of the position that federal services provided to Indigenous Peoples are delivered “for humanitarian reasons and as a matter of policy only” (p. 52), thereby refusing acknowledgement of and repudiating its legal obligations (Boyer et al., 2021). Under this framework, only status First Nations and Inuit living in traditional territories are eligible to receive (most) federally funded health services, and Métis, non-status First Nations, and Inuit and others living in urban centres are considered under provincial and territorial jurisdiction (Boyer, 2014). As this responsibility comes with little direction or support provided by the federal government, provinces and territories are quick to dispute financial responsibilities to provide care and fill health service gaps and, in most cases, hold the federal government accountable for First Nations health care under the Indian Act (Boyer, 2014). The legal discrepancies and limited accountability that stems from the Government of Canada regarding its role in Indigenous health breeds grounds for jurisdictional confusion, ambiguities, and disputes that significantly jeopardize equitable access to care, time and time again (Boyer, 2014; Boyer et al., 2021; Nguyen et al., 2020; Palmer et al., 2017; Sinha et al., 2022). Although a limited approach in terms of reach, Jordan’s Principle offers one effective response to jurisdictional ambiguities affecting First Nations children.

Jordan’s Principle was introduced in 2007 under the Private Member’s Motion No. 296. It is a child-first principle, intended to ensure that First Nations children are not “denied, or delayed receipt of, government services available to all others due to payment disputes” between jurisdictions (Blackstock, 2012, p. 368). This principle came after the passing of Jordan River Anderson, of Norway House Cree Nation. At age two, Jordan River Anderson spent two unnecessary years in hospital awaiting resolution to jurisdictions arguing about the responsible party to finance his at-home care. Jordan passed away while waiting, never spending time in his home community (Blackstock, 2012). A similar program, the Inuit Child First Initiative, has also since been developed to support and tend to the health, social, and educational needs of Inuit children recognized by an Inuit land claim organization (ISC, 2020). Equivalent federal programs for Métis and non-status First Nations children have yet to be developed.

There have since been attempts to legislate Jordan’s Principle so as to provide structure and accountability to its full

7 2SLGBTQQIA: Two Spirit, Lesbian, Gay, Bisexual, Transgender, Queer, Questioning, Intersex and Asexual Plus people

© Credit: iStockPhoto.com, ID 467170226

implementation on a national level. The Private Member’s Bill C-249, First Nations Children’s Health Protection Act (An Act to ensure that appropriate health care services are provided to First Nations children in a timely manner), was introduced in the House of Commons in 2009 but did not succeed to the second reading in the legislature. Provincially in Manitoba, Private Member’s Bills 203 and 233, the Jordan’s Principle Implementation Act, were introduced in 2008; however, neither passed the second reading in the legislative assembly (Nathanson, 2011). As Private Member’s Bills do not often become law, Bills C-249, 203, and 233, they rather garnered national and public attention on the issue and sparked inter-governmental discussions and agreements on how to effectively implement Jordan’s Principle8 (Nathanson, 2011). The First Nations Child and Family Caring Society of Canada (FNCFCSC) and the Assembly of First Nations have since advocated and worked for improved eligibility criteria for users and types of services, as well as equitable allocation of funding and resources to support all First Nations children through a series of Canadian Human Rights Tribunal remedial orders (ISC, 2021d). Recently, the tribunal found that “Canada’s definition and implementation of Jordan’s Principle was inadequate and excessively narrow which resulted in discriminatory service gaps, delays and denials of services for First Nations children” (FNCFCSC et al. v. Attorney General of Canada, 2020).

As of January 2022, the Government of Canada, FNCFCSC, Assembly of First Nations, and other Indigenous organizations have come together to discuss a “global resolution” and to compensate those affected by the discriminatory underfunding and administration of Jordan’s Principle, as delivered by the federal government (ISC, 2022c). Compensation was made available to those wrongfully removed from their homes to receive care, as well as those denied or delayed in seeking services under the government’s previously narrow scope and definition of the Principle. At the time of writing, further efforts to fully eliminate such discriminatory actions are underway (ISC, 2022c); however, much work remains to be done. A recent report on Manitoba’s implementation of Jordan’s Principle reveals that delays to receiving timely access to care persist and removal of children from their homes and families through voluntary placement agreements are becoming normalized to access needed services (Sinha et al., 2022). This practice not only subjects

8 Introducing Private Members’ Bills is a common tactic used by policy actors to indirectly affect policy outcomes by gaining attention and prompting discussion on particular issues (Blidook, 2010).