1 JORDAN’S PRINCIPLE: SUBVERSIVE OR SUBJUGATION by Raymond Cauchi Bachelors of Arts Psychology, University of British Columbia, 1996 Bachelors of Arts Education, Simon Fraser University, 2008 MAJOR PAPER SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF SOCIAL WORK in the School of Social Work © Raymond Cauchi 2022 University of the Fraser Valley Spring 2022 All rights reserved. This work may not be reproduced in whole or in part, by photography or other means, without permission of the author. 2 Name: Raymond Cauchi Degree: Master of Social Work Title: Jordan’s Principle: Subversive or Subjugation Examining Committee: Tim Dueck, BSW, MSW, RSW Primary Supervisor Assistant Professor, School of Social Work & Human Services Dr. Evan Taylor, MSW, PhD, RSW Secondary Supervisor Assistant Professor, School of Social Work & Human Services Dr. Leah Douglas, BSW, MSW, Ph.D., RCSW MSW Chair Faculty, School of Social Work and Human Resources Approved: April 27, 2022 3 Table of Contents Abstract ........................................................................................................................................... 5 List of Acronyms ............................................................................................................................ 7 Positionality Statement ................................................................................................................... 9 Methodology ................................................................................................................................. 11 Relevant Historical Information ................................................................................................... 15 Jordan River Anderson ............................................................................................................. 15 Canadian Human Rights Tribunal Orders................................................................................. 16 Discussion of the Intention of Jordan’s Principle ..................................................................... 20 Current Implementation in British Columbia ............................................................................... 22 Provincial/Regional Operationalization .................................................................................... 22 Possible Reasons for Current Situation......................................................................................... 27 Normative Standard .................................................................................................................. 27 Substantive Equality ................................................................................................................. 28 Category Error .......................................................................................................................... 31 Impacts of Operationalization ....................................................................................................... 35 Indigenous Families .................................................................................................................. 35 Truth and Reconciliation: A Better Canada .............................................................................. 37 Accountability Framework Models .............................................................................................. 39 International Human Rights Framework: What Canada Aspires to. ........................................ 39 Agonism Framework: What Canada could attempt. ................................................................. 41 Decoupling Framework: What Canada does. ........................................................................... 42 Development of a better Accountability Framework................................................................ 46 Future Areas of Exploration.......................................................................................................... 47 4 Data about Jordan’s Principle ................................................................................................... 47 Advocacy .................................................................................................................................. 48 Current Developments .............................................................................................................. 49 Conclusion .................................................................................................................................... 53 Positionality Re-Statement............................................................................................................ 54 Further Context to Support Understanding ................................................................................... 56 Completing a Jordan’s Principle Request In BC ...................................................................... 56 Key Concepts for Fitzgerald and Young’s Accountability Framework ................................... 58 References ..................................................................................................................................... 59 5 Abstract This paper examines current literature regarding the legal ruling Jordan’s Principle. It critically examines the Canadian Federal Government’s current operationalization of the legal ruling in the current social context of reconciliation with the Indigenous peoples of Turtle Island. The paper focuses on the contrast between the intention of Jordan’s Principle and how it is operationalized. It details the known impacts of current operationalization and the contexts and issues surrounding how Jordan’s Principle is currently implemented. These facts form the basis for an examination of accountability frameworks that could be used to hold the Canadian Government accountable to the intention of Jordan’s Principle. Currently, a human rights accountability framework is being used with some success. The paper continues to discuss how possible future changes in both social work and the current accountability framework may improve the operationalization of Jordan’s Principle. Keywords: Jordan’s Principle, Accountability, Indigenous, Reconciliation, Human Rights, Canadian Federal Government. 6 7 List of Acronyms AFN Assembly of First Nations AIP Agreements in Principle The Caring Society The First Nations Child and Family Caring Society CFG Canadian Federal Government CHRT Canadian Human Right Tribunal ISC Indigenous Services Canada PLFN Pictou Landing First Nation UN United Nations UNDRIP United Nations Declaration on the of Right of Indigenous Peoples 8 9 Positionality Statement It is an interesting process to write a literature review on something that one is passionate about. I can’t help but contemplate the impact that my own context has on the narrative that I am creating with an academic document such as a literature review. One could argue that the idea of an objective perspective is foreign. I know that I am supposed to have an objective perspective, but it seems impossible to divest myself of my own identity, and if I am not creating meaning from within my own context, world views and limited cognitions, then whose or what perspective is a person supposed to be engaging this literature review, or any document from? (Heron, 2005). Can I take a ‘Canadian perspective?’ If that is possible, is it even ethical? And, if I am not supposed to create meaning with my ‘voice’ then why speak? I am not an Indigenous person. I do not understand the place that I live as Turtle Island. I am the male child of a Maltese father and a Filipino mother who both immigrated from their native-born cultures to Canada during the birth of Canadian Multiculturalism in the early 1970s. I am an Anglophone, understanding only Canadian English fluently. The place I live in is wrapped in narratives about prosperity, wealth, opportunity, and freedoms intertwined with the paradox of betrayal and racism. I have significant privilege compared to some, and I lack privilege compared to others. At one point the term ‘coconut’ has been used to hurt me, to ‘other’ me, and at some point, the term has become amusing, an ironic commentary of the ‘in-between’ spaces I frequently find myself. Perhaps because of my ongoing experiences as a ‘coconut’, I ask the question, “What is it to be Canadian?” My current answer is this: To be someone, or the descendants of someone, who has left one culture to be immersed in another culture because the culture they have left is limiting to 10 them in some manner, and by such an act either actively engaged in systemic and historic discrimination against Indigenous people of Turtle Island, or enjoys the privileges of the benefits of such actions, and must move forward to confront and address such injustices. That is my ‘Canadian’ perspective. The perspective that I feel is tenable and ethically acceptable, for me. This paper is written from that positional space. I do not include this positionality statement as an indulgence, but as a reflective act to focus a critical eye on the possibilities and limitations of the ontologies and epistemologies that we as individuals and social workers carry with us. 11 Methodology This paper began with a thematic review of literature and documents gathered through key word searches using EBSCO Host via the University of the Fraser Valley library portal. The focus of these searches being literature on the history of Jordan’s Principle, measures of the principle’s success, and literature discussing the principle’s delivery. When initial sources were analyzed, it became apparent that the scope of the topic was broader than medical policy and delivery. Topics and subjects that were eventually searched during the completion of this paper were “Jordan River Anderson”, “Jordan’s Principle”, “child welfare”, “Indigenous children”, “Indigenous Services Canada”, “child poverty”, “health outcomes”, “determinants of health”, “Canadian Human Rights Tribunal”, “national accountability”, “UNDRIP”, and combinations of those topics. The document search expanded to include publicly accessible documents as it was determined that adding relevant Indigenous knowledge and counter point knowledge was needed to best represent the full breadth of knowledge available on the paper’s topic. An examination of public documentation referenced in the various sourced articles began. These documents were curated by the key stake holders in Jordan’s Principle, that being AFN and the Caring Society, and publicly accessible documents held by the CFG. Further, literature and documents from the following professions was found relevant to the topic; medical policy development, human rights studies, international relations, social justice studies, decolonization/indigenization studies, and disability studies. It was found that each of these professional fields had relevant knowledge that informed the topic. 12 In total the literature and documentation for this paper were drawn from around the world. Many documents being from Canada, but a significant number also coming from Western Europe and the South Pacific. The following theoretical perspectives where then used to examine the literature and documents gathered: systems theory, international relations theory, and social justice theory. Systems theory as articulated in this way: The essential difference between conventional and systemic science is an emphasis of the relationship between parts. Examination of a single part does not reveal the wholeness of parts. Nor does even both elements of, say, salt made of poisons, tell us the truth. The truth lies in the relationships. Not what things are called but what things are doing (together) (International Society for the System Sciences, 2022). was selected due to the large macro-scope of the topic of the paper. Rather than assume a classical science atomist approach which focuses on the parts of an object of interest, the focus of study in systems theory is the relationships between component elements and the uniquely particular adaptive creative knowledges that are emergent. As a legal ruling with national scope, Jordan’s Principle, has the capacity to deeply impact a profound number of social programs, systems, and the environments that they operate within. Having a framework to begin understanding the connections and relationships between various systems that could be impacted was important. International relations theory as conceptualized by McGlinchey (2017), being the study of the interaction between sovereign nation-states and connected political entities, was selected 13 to support the ongoing process of reconciliation and acknowledgement of the nuanced relationship that Canada (the nation-state) has with the various Indigenous Nations (as nationstates) sharing geographic space with Canada. To not consider these factors in the analysis would not have been ethical as it would have left out key understandings directly relevant to the paper’s topic; colonial contexts, treaty relationships between sovereign-states, cultures of acceptable diplomatic practices, and accountability practices for when such expectations are not held. Including the lens of international relations prevents the ontology and epistemology this paper from been limited to a narrow category set, thus limiting the process of thematic analysis possibly to the point of invalidity. Social justice theory as proposed by the United Nations was selected because a key element of Jordan’s Principle is the amelioration of harm to persons. The United Nations formulates social justice theory using these three critical domains of equality and equity: 1. Equality of rights, primarily implying the elimination of all forms of discrimination and respect for the fundamental freedoms and civil and political rights of all individuals. 2. Equality of opportunities, which requires stable social, economic, cultural and political conditions that enable all individuals to fulfil their potential and contribute to the economy and to society. 3. Equity in living conditions for all individuals and households. This concept is understood to reflect a contextually determined “acceptable” range of inequalities in income, wealth, and other aspects of life in society, with the presumption of general 14 agreement with regard to what is just or fair (or “equitable”) at any given time in any particular community, or in the world as a whole if universal norms are applied (United Nations, 2006). For many the ideas of harm and compensation are key concepts of justice, the United Nations formulation of social justice strives to be one that is aware and inclusive of the complex diversity of world nation-states. It is robust in its conceptualization of social justice. Social justice theory provides the analytical tool to begin to frame a discussion on the impacts of Jordan’s Principle at the level of justice for individuals of nation-states. Together these three theoretical perspectives provide a robust analytical landscape in which Jordan’s Principle, its operationalization and impacts can be examined. Finally, while Jordan’s Principle is a national ruling and is being implemented across Canada, such an analysis at a national level, is significantly beyond the scope of this paper and possibly a single paper. And so, this paper will be limited to the specific review of Jordan’s Principle in the province of British Columbia. The production of a series of papers reviewing the delivery of Jordan’s Principle in other delivery regions, may be of interest to not only future social workers, but future professionals interested in medical service delivery, reconciliation, and policy development. 15 Relevant Historical Information Jordan River Anderson Jordan River Anderson was a Cree child from Norway House Cree Nation in Manitoba. He was born in 1999 with complex medical needs and due to these needs spent the first two years of his life in the hospital in Winnipeg. At two years old, Jordan’s medical team determined that it was safe for him leave the hospital and move into a family home, providing that the necessary medical equipment and supports were in place. This did not happen (Blackstock, 2021). Had Jordan not been First Nations, he would have been released from the hospital immediately, with expenses paid, no questions asked. Jordan spent the next two years in the hospital not because of medical reasons, but due to bureaucratic disputes between Provincial and Federal levels of the Canadian government. He died in hospital in 2005 at the age of 5 years old without ever having spent a day in a family home (Chambers & Burnett, 2017). Jordan’s family knew that there were many other children being denied services as he was and gifted his name to the creation of a child-first principle to resolving jurisdictional disputes stopping First Nations children from accessing government services (The Caring Society, 2021e). At its core, Jordan’s Principle, is a child-centered legal rule named to honour the memory of Jordan River Anderson. It was created to help alleviate the systemic, historic, and intentional discrimination endured by Indigenous children residing in Canada by all levels of the government of Canada. Jordan did not need to spend his entire life in a hospital. It is a commitment that First Nations children would get the support they need when they need it, and payment would be worked out later. It is a legal obligation which will exist for generations 16 (Canadian Government, 2021b). The legislation and policy required to deliver Jordan’s Principle is likely one of the most significant pieces of legislation and policy in the next 50 years. It is significant because of the manner it is being delivered. On one hand the Canadian Federal Government (CFG) present the narrative that the delivery of Jordan’s Principle is successful, and on the other hand the Canadian Human Rights Tribunal (CHRT) and other interested stakeholder organizations present the narrative that while Jordan’s Principle has been delivered, it has not been delivered as intended or as is needed. Additionally, it is significant for future Canadians who have endured similar systemic discrimination due to intentional policy of the CFG. How does one judge if a policy has been delivered correctly? Is Jordan’s Principle being delivered properly? These questions frame the core scope of this paper. The CFG takes its direction from the CHRT orders which clearly set the parameters for redressing the impacts of historical and current discriminatory practices (The Caring Society, 2021c). Canadian Human Rights Tribunal Orders There have been many orders issued to the Federal Government of Canada around the implementation of Jordan’s Principle by the Canadian Human Rights Tribunal (CHRT). These orders have become more specific as they have been issued. Beginning in 2016 with the CHRT’s four broad orders leading to the current non-compliance orders (The Caring Society, 2021b) and ending currently with orders around eligibility (Canadian Human Rights Tribunal, 2021a) and capital funding (Canadian Human Rights Tribunal, 2021b). In total 20 orders of non-compliance have been issued against the CFG. These orders functionally have prevented the CFG from narrowing the operationalization of Jordan’s Principle and have consistently ordered measures to broaden the implementation of Jordan’s Principle. 17 The most recent order, CHRT 41, specifically orders the CFG to begin funding capital improvements through Jordan’s Principle where those capital improves will lead or support the delivery of services to Indigenous children on reserve (The Caring Society, 2021d). Since 2010 the CFG has been challenging the CHRT’s orders. Consider that the First Nations Child and Family Caring Society (The Caring Society) and the Assembly of First Nation (AFN) first started litigation against the CFG in 2007. Only in 2016 was the CHRT able to make a ruling due to a consistent policy of delay and bureaucratic counter litigation on the CFG part (Blackstock, 2012). And regardless of this unofficial policy of delay, as evidenced by years of litigation on the CFG’s part, the CHRT continues to expand the operationalization of Jordan’s Principle. Where Jordan’s Principle started delivery in a manner that was so narrow that no ‘cases where evident’ in 2012, it has now been expanded to include all Indigenous children who are resident in Canada regardless of registry status or on or off reserve status (The Caring Society, 2021f). It is clear that the context surrounding Jordan’s Principle is one of long-term engagement by the AFN, The Caring Society, those individuals and families that they represent and the CFG in a decades long process of defining the operational scope to be used to implement Jordan’s Principle (Blackstock, 2021, Oct. 2). Another key case in Jordan’s Principle history that is an example of this long-term struggle is the case of Jeremy Weawagige. Jeremy and his family are Mi’kmaq members of PLFN in Nova Scotia. In 2010, Jeremy was 15 years old living with complex health needs including microcephalus, cerebral palsy, curvature of the spine, and autism. It was the case that Jeremy was minimally verbal and required complete care, which was provided by his mother. This was not possible after 2010 as Murina suffered a severe stroke. At this point she could not 18 manage her own personal care, let alone the care of her son. The cost of care for this two person family was $82,164/year. The PLFN provided initial funding for one year, and then asked the federal government to reimburse the costs for home care services to the level that Jeremy would have received from the provincial government if he lived off reserve, and to provide future funding as Jeremy lived on reserve which was the CFG’s jurisdiction (Dion, 2017). The CFG refused and advised the Band and Jeremy’s mother that the only other option was placing Jeremy in an institution closer to urban centers a great distance from his home at a cost to taxpayers that would exceed the in-home care option. It made no sense. Why should a child be removed from their community at a higher expense to the Canadain tax payer, and at a higher risk to their health outcomes? On June 24, 2011, the PLFN and Maurina Beadle challenged the decision in Federal Court, invoking Jordan’s Principle (Sinha & Blumenthal, 2014). The Federal Court ordered that Jeremy should safely stay at home in his community, and further ordered the CFG to pay costs required to provide for such arrangements and the care of Jeremy (PLBC v. Canada, 2013). This case expanded the scope of Jordan’s Principle setting the precedent that the on or off reserve status of an Indigenous child should not impact the level of service delivery provided. Or, another way of stating the implications of this case to the scope of Jordan’s Principle is that the normative standard of health care provisioning by the CFG should not differ for children living on reserve vs. those children living off reserve. Another example case which supported the expansion of the scope of Jordan’s Principle occurred in 2013. Noah, a member of the Samson Cree Nation in Alberta, was diagnosed cerebral palsy at a very young age and his family was informed that he would require long-term 19 rehabilitative treatment and would very likely require the assistance of a wheelchair for the entirety of his life (Assembly of First Nations, 2018). The family submitted a letter of complaint to the Alberta Human Rights Commission, because in Alberta, a child with Noah’s needs living off-reserve would be provided $7,500.00 under the Residential Access Modification Program (RAMP) but as a First Nations child Noah was only able to access $1,135.00. This was a clear service funding gap and possibly a solid case of systemic discrimination (Assembly of First Nations, 2018). During the process with the Alberta Human Rights Commission, the CFG provided inaccurate information to the mediator, and as a result the mediator recommended the complaint against Canada be dismissed. This was a devastating blow for the family. They had been fighting for so long, on their own (Assembly of First Nations, 2018). At this point Noah’s family reached out to Dr. Cindy Blackstock at the Caring Society. The family sent the Commission report to Dr. Blackstock who, in turn, sent it to the Caring Society lawyers who agreed to take the case Pro-Bono. Because Noah’s case was strong, the commissioners who heard the case as representatives of the Alberta Human Rights Commission ruled in the family’s favour. After initially refusing to negotiate a settlement, the CFG eventually agreed to a settlement for Noah for appropriate funding (Assembly of First Nations, 2018). Noah’s family stated that it should not have taken health professionals and threats from a lawyers to receive supports, particularly when it is something a non-First Nations child would receive immediately (Assembly of First Nations, 2018). These cases are representee of the long history that Jordan’s Principle has and continues to have with regards to defining its operationalization. Families have been and still struggle to this day to receive just services and support levels from the CFG even though the CHRT has 20 been very clear regarding its order to the CFG (The Caring Society, s2021d). It is from within this legacy of continuous struggle that social workers must understand Jordan’s Principle and its implications. It can be noted that while one can understand the CFG’s attempts to narrow the scope and application of Jordan’s Principle as a single case situation, or a special circumstance, that is not the only way to understand the CFG’s stance. Pasternak and Schabus (2019) in their article on land resources and Indigenous land rights, outline the CFG’s attempts to fragment and extinguish Indigenous land rights in British Columbia using the example of the Trans Mountain Pipeline Expansion Project. In this case land rights issues are overturned in favour of lower “risk” for economic interests to support a national policy of economic development and prosperity. Jordan’s Principle could be understood in the context of a continuous attempt by the CFG to further overturn Indigenous rights while attempting to further assimilate Indigenous persons into the meta-culture of Canada. In this interpretation every expansion of the scope of Jordan’s Principle is a further acknowledgement and strengthening of the rights of Indigenous persons by Canada’s own legal system Discussion of the Intention of Jordan’s Principle In 2007 with regards to M-296, MP Steven Blaney expressed the government’s support of Jordan’s Principle this way: In other words, when a problem arises in a community regarding a child, we must ensure that the necessary services are provided and only afterwards should we worry about who will foot the bill. Thus, the first government or department to receive a bill for services is responsible for paying, without disruption or delay. That 21 government or department can then submit the matter for review to an independent organization, once the appropriate care has been given, in order to have the bill paid. I support this motion, as does the government (Canadian Government, 2021a). This is a clear statement as to how Jordan’s Principle should be delivered. In 2007 the CFG understood the intention of Jordan’s Principle. This intention seeking to alleviate the impacts of systemic historic intentional discrimination by: 1. Providing services to children in need without delay. 2. Removing the burden of sourcing funding for services from the family and child in need of service by having the government or department of the government of first contact pay. 3. Removing issue of jurisdictional dispute to a third-party organization independent of governmental bodies for resolution. The delivery of Jordan’s Principle has not been without its difficulties. While the CFG has assumed the role ‘government of first contact’ (Kamran, 2020) (language from the CHRT denoting which organizational body has a responsibility to pay for services), they have had difficulties in the following areas: 1. transparency of process; 2. accountability; 3. application of an approval process that has been equally deployed across Canada’s diverse geographic area, and; 4. understanding the full scope of the CHRT’s intentions regarding access and substantive equality (Iamsees, 2021). 22 Currently, relevant stakeholders are in constant legislative process with the CHRT and the CFG regarding appropriate delivery of Jordan’s Principle (Assembly of First Nations, 2021). The CFG’s current stance regarding Jordan’s Principle is of note. It is clear from the perspective of other stakeholders such as Jordan’s family, CHRT, The Caring Society, and the AFN, that Jordan’s Principle is too narrow, because as it was proposed by allies within various levels of Canada’s government it was a very broad and progressive proposal. When MLA, of the Manitoba Government, Dr. Gerrald’s proposed Bill 233 to enact Jordan’s Principle as a law, it failed. It was too broad for many of the opposing MLAs to support (Nathanson, 2011). It appears that while the agreement in spirit exists to implement as intended, the desire in practicality does not. Current Implementation in British Columbia Provincial/Regional Operationalization How to apply in British Columbia To begin the request process, the requesting person will need the request form and the capacity to send the completed request to the regional Jordan’s Principle Focal Point via email (Canadian Government, 2021e). The delivery of Jordan’s Principle in BC is done through several partner arrangements with community level organizations. These organizations can be community non-profits such as Friendship Houses, or Indigenous Nations such as the Okanogan Nation Alliance. These organizations partner with Indigenous Services Canada BC Region (ISC BC) to support children and families in their service area. Currently there are 26 organizations hosting 31 Jordan’s Principle Service Coordinators through BC. For Indigenous children in British Columbia the request form is organized into the clearly defined sections so that it is easy to navigate and understand. Section 1 asks for the personal 23 information and Indian Registry Status of the child for which the request is being made. Section 2 asks for the personal information of the child’s parents or guardians. Section 3 asks for the information of a selected representative making the request on behalf of the child, if such a person is making the request instead of the parents or guardians. Section 4 asks for and explanation of the need of the child for which the requested funding and intervention will meet. Section 5 asks for the funding details of the intervention to be funded. Section 6 is the declaration that this request is not for funding that has already been received from another governmental program and that the information on the request form is true (Canadian Government, 2019). This process is recognized by service providers, partnered organizations, Indigenous Services Canada, families, and service coordinators as burdensome, excessively complicated and a barrier to receiving support from Jordan’s Principle (Sangster et al., 2019). This statement captures the sentiments held by one service coordinator in British Columbia at the time of the writing of this document: A culturally unsafe program that was poorly laid out, thrust into communities with little thought, and the brunt of the work on the coordinators "NOT" on Jordan’s Principle (ISC BC staff) with continual changing policies. I see a program set up so hard to navigate that even coordinators are seeing turn over, never mind how a family with ongoing struggles can realistically navigate such a program. It feels as though Jordan’s Principle is set up to ensure that many families "trying" to access this program give up, stop trying and eventually payments not made. Navigating Jordan’s 24 Principle, I see a set up to fail from start to finish and I'm ashamed of my government for dangling this carrot in front of communities and vulnerable families with little consideration or care if they succeed in the process or not. (Carrie T, personal communication, Mar 3, 2022). How to appeal There is an appeal process for Jordan’s Principle requests that have been denied. If a request is denied, the requester may appeal the decision within 1 year of the date of denial. To do so, they must send in a written request to their regional Jordan's Principle focal point. At a minimum, the request for appeal must contain identifying information of both the child and the services received, and the Jordan’s Principle denial letter which will have been sent directly to the family and the service coordinator if one is supporting the family’s request. Although it is not required to begin an appeal, requestors are asked to provide any new, or additional relevant information to their appeal. The appeal process can take up to 30 business days. The following individuals can appeal a decision on behalf of an eligible child: • a parent or guardian of that child • a First Nations child, or an Indigenous child ordinarily resident on reserve at the age of consent in their province or territory of residence • an authorized representative of the child, parent, or guardian Requests for appeals for a group of children from multiple families or guardians can be submitted by: • the community or group that submitted the request 25 All appeals related correspondence should be directed to the Jordan’s Principle Appeals Secretariat inbox: Jordan’s Principle Appeals Secretariat - jordansprincipleappealssecretariat@sac-isc.gc.ca This is all the information on appeals currently available to the public and to service coordinators in BC. Available data regarding approvals for British Columbia Review of the current accessible literature indicates that the only publicly available data regarding Jordan’s Principle for British Columbia is an account of approvals (Canadian Government, 2021e). This data is collected by and comes from the CFG. There are no independent data sources for British Columbia. In general data that is collected regarding Jordan’s Principle outside of the CFG is accomplished when Indigenous communities organize at a Provincial level and partner or develop an organization with the appropriate capacity and expertise. This has been the general model of implementation throughout the rest of Canada (The Caring Society, 2021g; Iamsees, 2021). Accessibility to the General Public The intention of the implementation of Jordan’s Principle is that it should be accessible to all Indigenous children who needed support under the Jordan’s Principle mandate (Canadian Government, 2019). In reality, the Jordan’s Principle Funding has required significant professional support for children and families because the forms, language, and the processes of case file management to complete a request are so burdensome. This experience is not unique to British Columbia. Indigenous Service Canada and partnered First Nations Health Consortium released an 11 page summary document to support Jordan’s Principle request applications 26 (2021). Many non-governmental organizations see this complexity as a barrier to children and families, and some argue that it is intentional (Blackstock, 2021, Oct. 2). 27 Possible Reasons for Current Situation Normative Standard The CFG has identified three social determinants of health that families can request financial assistance for through Jordan’s Principle, heath, social and cultural, and educational (Canadian Government, 2021e). There are certainly other determinants of health. Cases can be made that other determinants of health are relevant to the heath wellbeing of Indigenous children in Canada. It is commonly known in the medical field that colonization, globalization, migration, loss of language and culture, and disconnection from the land are Indigenous-specific social inequities, which, along with classic socioeconomic and connectivity deficits, account for disparate health outcomes experienced by Indigenous people (Long et al., 2019). Further, the CFG is taking its direction from the CHRT orders, which clearly set the parameters for redressing the impacts of historical and current discriminatory practices (The Caring Society, 2021c). The crucial terms that both the CHRT and the CFG use in their messaging to the public regarding the policies around Jordan’s Principle are ‘normative standard’ and ‘subjective equality.’ These are particularly relevant because the CFG is beholden to approve requests based on the application of these principles. Much of the legal dispute between stakeholders rests in how these terms are interpreted and by extension how Jordan’s Principle as policy is delivered (The Caring Society, 2021f). Unpacking these terms quickly reveals the underlying principles which inform the CFG’s approach to policy development and service delivery of Jordan’s Principle. Both terms imply a comparison between two categories that are not identical. So, this means that the question of 28 identical equality is presupposed as a non-viable standard of health policy. The diversity and difference of things is an accepted normal state. Equality is rooted in a philosophical belief that similar things should be treated in a similar manner ("Equality [Stanford Encyclopedia of Philosophy]", 2021). Children are children, so any children should be treated similarly, and that treatment is the normal expectation. It seems that the Federal Government of Canada uses this standard as a first test when reviewing Jordan’s Principle requests. In plain, English the question that seems to be asked is: Can any other child in Canada access the service being requested? This question is determined from the services that have been historically approved and the principle of normative equality. This standard of normative standard has been narrowed to ‘services delivered by a public service’ (Canadian Government, 2019). Substantive Equality Substantive equality, entailing the concept of normative equality, as a philosophical stance requires measures to correct for any difference that is beyond normative which prevents an aspect of equality. In the case of Jordan’s Principle the beyond normative differences of Indigenous children act as a barrier to an equal standard of health. Substantive equality is a response to the result of the equation of equality being too out of balance and inequalities due to historic, intentional, and ongoing discrimination on the CFG’s part (Canadian Government, 2021d). This historical context is the substantive part of Substantive Equality. This principle of substantive equality is the second test for approval of funding. The CHRT requires that the CFG pay for services if at least one of these two tests is met (The Caring Society, 2021a). Treating children equally means that the equality math has been done and the children being are compared are similar enough to normal expectations that no other measures need to be 29 enacted. Treating children justly means that one has done the equality math and the children one is comparing are significantly dissimilar that measures must be taken to address those nonnormative dissimilarities, substantively equitable measures. Jordan’s Principle is that substantive measure. When it comes to the fundamental concerns around social justice which the concepts of normative standard and substantive equality attempt to address several questions arise. When considering what normative is, what is the standard that an organization uses to do their comparison math? The CFG uses some standard, and it does not appear to be the very intuitive question: If that child was my child would I tolerate that as an acceptable condition for their life? Jordan Anderson spent his entire life in a hospital. Does the answer to this question rest in the nature of the services that a government is currently providing? Historically, as an example, if Jordan’s Principle were applied before universal healthcare became a normal expectation of Canadians, would medical travel costs be approved? Currently, for Indigenous people in British Columbia who have Indian Act status, travel costs to medical appointments are funded by the First Nations Health Authority (FNHA), a public organization. Travel is covered because every person in Canada has a right to health care services at this point in Canada’s history (Martin et al., 2018) and in British Columbia such an expense is provided by a public provider of services the FNHA (First Nations Health Authority, 2020). As normative equality is a cultural standard and cultures ‘advance.’ It is evident that what was tolerable then, is not tolerable now. The CHRT has told CFG this very clearly (The Caring Society, 2021a). An implication of this context is that policy will always be lagging behind this normative standard and by extension standards of substantive equality. Canada’s various governmental levels are confronted with a moving target. It may be unreasonable or impossible 30 for current sufferers of inequalities to expect equality, now. This is a potentially problematic point depending on one’s cultural lens. More speculative questions arise regarding the implications of Jordan’s Principle for other minority populations that have suffered historic discriminatory practices from the various governmental levels of Canada. Substantive is contextually based; how much systemic discrimination is required to be substantive? How broadly as a culture is Canada willing to expand its application of substantive equality? Is there a case for transgendered persons suffering discrimination in Canadian healthcare systems? Another question which could not be answered in this paper is, what is the process and criteria that the CFG uses to approve or deny Jordan’s Principle requests? Having this answer would seem to be key in demonstrating that the CFG is living up to the expectations of the CHRT, and their very clear requirements for the delivery of this social health program. Certainly, normative and substantive equality are key principles in this process, but how are they applied? And, on a final note, Friedman (2016) draws attention to a serious difficulty with substantive equality as it is understood and operationalised. It is often approached in a linear flat manner, unidimensional. Rather than dealing with one aspect of inequality, such as healthcare, she proposes that substantive equality needs to be approached as a dynamic analysis between the following four continuums: 1. Redress Disadvantage; 2. Enhance Voice and Participation; 3. Accommodate Difference, Achieve Structural Change, and; 4. Responsive and accountable to those who are disadvantaged, demeaned, excluded, or ignored. 31 Jordan’s Principle is potentially a precedent setting health care policy (Johnson, 2015). For over a decade the CHRT, stakeholders, and the CFG have been struggling towards agreeing on the proper manner to operationalize this legal order correctly. There is no doubt that social factors, social determinants, play a critical role in a person’s quality of health, and Jordan’s Principle is policy that attempts to address current and historically significant inequalities in these social determinants for Indigenous children. This policy may set the ground for other similar legal orders and policy in Canada’s future around the correcting of systemic discriminatory practices. Category Error The development of health policy and the delivery of health services often begins from the perspective of an understanding of disease, a health model. There are several, perhaps dozens, of way that people make sense of disease; Indigenous is not one of them. Or, more correctly, stating that Indigenous is a model of understanding disease, would require one to state that Euro-Western colonial is a model of understanding disease. A cultural world view is an entire category of difference in concept than an understanding of something within that world view. Canada’s health practitioners use various models such as the biopsychosocial model, or the strengths/person centered model, or the biomedical model to understand how disease is to be treated, understood, investigated, or explained (Tamm 2021). They do not use the Euro-Western Colonial Model of understanding as that perspective is implicitly used to frame understanding generally. Further, there is a second category error issue preventing the success of Jordan’s Principle delivery which is beyond the scope of this paper. Jordan’s Principle is not a health issue. 32 One could argue that Canadians and the Indigenous peoples of Turtle Island will continue suffer due to the issues around these category errors. The CFG continues to attempt to operationalize a model of health (biomedical model understood through a Euro-Western Centric perspective) that is inherently assimilatory, and Indigenous peoples of Turtle Island continue to defend their rights to cultural health and sovereignty. In 2007, the CFG announced $11M in new funding to Health Canada for the implementation of Jordan’s Principle. This implementation focused on First Nations children living on-reserve with multiple disabilities requiring services from multiple service providers. In 2012, that money was eliminated as no Jordan’s Principle cases were identified in Canada (Blumenthal & Sinha, 2015). This is interesting as there was clearly an issue as indicated by the Human Rights complaint put forward by the AFN and The Caring Society in 2007 which triggered Motion 296 to be unanimously supported on Dec 12, 2007. It is evident that the extremely narrow definition of eligibility for Jordan’s Principle began the long and current process of litigation between the AFN, The Society and the CFG. The Government of Canada agreed that: pursuant to section 5 of the Canadian Human Rights Act (the Act), Indian and Northern Affairs Canada (INAC) discriminates in the provision of child and family services to First Nations on reserve and in the Yukon, on the basis of race and/or national or ethnic origin, by providing inequitable and insufficient funding for those services (Canadian Government, 2020). The elimination of the Jordan’s Principle funds in 2012 and the agreement of the CFG that the CFG enacted historical discriminatory practices in their delivery of services triggered an 33 ongoing judicial process. Through this process one group desires to narrowly apply a medical model of health care, and another group desires to expand delivery beyond the medical model and its limitations. The CHRT has set forth very clear expectations regarding how the CFG is to implement Jordan’s Principle in a way that reduces delays service provisioning, prevents further discrimination, and alleviates the burden of proof of need from the family (The Caring Society, 2021a). One of the policy changes that the CHRT ordered is: Canada shall cease imposing service delays due to administrative case conferencing, policy review, service navigation or any other similar administrative procedure before the recommended service is approved and funding is provided. Canada will only engage in clinical case conferencing for the purpose described in paragraph 135(1)(B)(iii)” (The Caring Society, 2021c). At this time, the Canadian Government has funded many Jordan’s Principle requests (The Caring Society, 2021e). One should suspect based on the issues inherent in this category error, that those approved requests would fall very closely in line with the processes and scope of the bio-medical model popular in the ontology of a Euro-Western worldview. This ss the case as indicated by the data for the fiscal year 2020/21 (Canadian Government, 2022b). Further, while the understanding of how best to provide care involves one theoretical understanding, the development of processes for funding delivery usually falls under economic theories. Currently, Canada uses a global budget ("Healthcare Funding Policy In Canada", 2021) based in the National Health Insurance Model ("Health Care Systems - Four Basic Models | Physicians For A National Health Program", 2021). In short, two questions mean two models of 34 working on policy development: Are you someone we consider sick? and, How are you/we paying for treatment? create the policy around health services delivery. The CHRT determined that the Canadian Government was paying for Jordan’s Principle costs (The Caring Society, 2021c), so now the debate continues with the question Are you someone we consider sick?. It is here we encounter our second category error. Jordan’s Principle is understood as a medical policy by the CFG, but in truth is really a human right’s legal order about wellness in which policy should be based in. These two category errors functionally cripple the CFG’s ability to properly deliver Jordan’s Principle. A final example of this ‘crippled’ operationalization due to these two category errors is the absence of approvals for cultural/social services beyond the scope of individual intervention, and even these are rare. Auger (2016) provides evidence that the transmission of culture mitigates the impacts of distal and proximal negative health determinants. The process of cultural transmission is ongoing and between multiple people and generations functioning in a dynamic manner that is complex and interconnected, responsive to individuals and groups. One could argue that to approve funding for the capital project of an Indigenous School where multiple generations and the community had sovereignty over local policy and curriculum would be in line with Jordan’s Principle as a group request, if one moved beyond the two discussed category errors. 35 Impacts of Operationalization Indigenous Families The Caring Society has long pointed out issues with the Federal Government’s implementation of Jordan’s Principle. The history of these issues is over a decade long and continues to this day. From The Caring Society’s research here are the current issues with the implementation of Jordan’s Principle. These findings are also supported by other research such as Iamsees (2021). A major continued negative impact on Indigenous families is the issue of demonstrating substantive equality. As evident from the questions (Appendix A), an accurate articulation of historical disadvantage requires both knowledge of historical events and an ability to connect complex processes of discrimination and trauma to a child’s individual experience. The government has shifted this responsibility onto First Nations families by requiring them to answer the nine questions in their applications. It is time consuming, invasive and may be traumatizing for some families. The process itself violates the principle of substantive equality, because First Nations people must spend additional time and resources advocating for the government to address heightened needs created by the government’s discriminatory treatment (Sangster et al., 2019). Another impact on Indigenous families making a request for Jordan’s Principle funding is that federal government, through Indigenous Services Canada, requires that families and members of their care circle provide extensive detailed narrative and diagnostic documents to prove that the family has a ‘legitimate need’. This is often invasive, re-traumatizing and possible a violation of personal privacy. It is common for ISC to ask for an entire assessment of a child’s 36 medical needs, when legally professional standards are only the final recommendation is required (Sangster et al., 2019). Additionally, ISC frequently goes against professional recommendations. When families are denied funding, ISC provides a generic response without any assistance or direction on how to better provide an argument for the request. The Caring Society is clearly arguing that this framework of implementation is doing more harm than good (The Caring Society, 2021b). The CFG is requiring Indigenous people to accept a medical model outside of their worldview, accept identities of health, personhood, and wellbeing, to receive funding for services that the CHRT has already ordered to be delivered in principle. Kakoullis and Johnson (2020) further explore the legal evolution personhood into an essentialist narrow industrial conceptualization and discuss the implications of such an understanding. There are many implications around healthcare, justice, ethics, and policy implementation. Of note for Indigenous people of Turtle Island, is the currently Western held understanding of a person as individual, separate, and preeminent over community. This understanding permeates the current operationalization of Jordan’s Principle as ISC insists that Jordan’s Principle is for a child only. As the data shows, ISC does not approve ‘group request,’ and it has difficulty approving requests for families or communities (such as capital infrastructure) when such requests clearly support children. These denials merely perpetuate the systemic and historic discrimination that the CHRT orders are meant to mitigate. This is only a small sample of the negative impacts that the CFG’s implementation of Jordan’s Principle has on Indigenous persons in British Canada. “It almost seems that there is no point. It just another thing to kill my family” (Indigenous Community Member, personal communication, Oct 12, 2021). 37 Truth and Reconciliation: A Better Canada In November of 2019, the BC Provincial Government created the legislative act, Declaration on the Rights of Indigenous Peoples Act. This act “…emphasizes the Indigenous peoples' rights to live in dignity, to maintain and strengthen Indigenous institutions, cultures, and traditions and to pursue self-determined development, in keeping with Indigenous needs and aspirations” (Provincial Government of British Columbia, 2021). Again, one sees that the spirit exists, but how can the desire become practicality? In Article 24, Section One of UNDRIP affirms the right to traditional medicine within Indigenous health care practices and the right to access all other health care services without discrimination. Further, Section Two affirms the right that Indigenous people have the right to the highest level of mental and physical health with governmental support in obtaining this goal (United Nations, 2021). Other countries also struggle with the implementation of policy and practice in alignment with UNDRIP. Some elements that can facilitate the creation and implementation of appropriate policy are, an increase in priority for policy development and implementation, the disruption of the dominance of the Western biomedical model in health care systems and authorities, and the development and deployment of inter-cultural training programs for Western health care professionals and Indigenous healers (Carrie et al., 2015). Another possible understanding in moving towards a better Canada is the acknowledgement that Provincial authorities and Federal authorities have different roles in the delivery of services (Halabi, 2019). Provincial authorities have a broad capacity for fact finding and research, while federal authorities have the resources to support the implementation of policy through the creation of national legislation and funding. Halabi states clearly both the state of 38 Hawaii and the province of Ontario are excellent models to for this process. Both honour local (provincial) knowledge and support it with national legislation and funding. Now as much as one would like to look at UNDRIP and the UN as some sort of final destination and arbiter of the right way, Ineese-Nash (2020) draws one’s attention to the deep ontological concerns around ‘disability’ and by extension ‘other.’ These are two constructs through which Indigenous children and people in Canada are understood from a colonial-western position. Neoliberal ontology and epistemology understand the diversity of humanity through an instrumental lens, by constantly and subtly asking the question: How can the individual be productive/monetized for the profit of society?. Ineese-Nash provides a different ontology from where the diversity of humanity is understood through a non-instrumental lens. Moving forward with Jordan’s Principle and reconciliation will most likely involve shifting the CFG’s and by extension Canadian culture’s understanding of the diversity of human purpose and relationship to community and environment. 39 Accountability Framework Models International Human Rights Framework: What Canada Aspires to. One possible system of accountability that the Federal Government of Canada can be held to is through the United Nations courts and tribunals. Canada as a state is a signatory for multiple agreements focused on human rights. Of particular interest of this review are: 1. UN Convention on the Rights of the Child (ratified Federally) 2. UN Convention of the Rights of People with Disabilities (ratified Federally) 3. UN Declaration of the Rights for Indigenous Peoples (signatory) These three conventions directly pertain to Indigenous children in Canada (Canadian Government, 2021c). As a signatory to these three documents, and a state that has the human rights framework built into its own constitution, one would expect that Canada would implement them through legislation and policy. However, it is evident that Canada has not. Has the CFG been taken to the United Nations Courts by an Indigenous family or group regarding its implementation of Jordan’s Principle? Currently the closest attempt of accountability through this framework is the domestic tribunal, the Canadian Human Rights Tribunal, and its many resultant orders delivered over a decade of litigation. Koutouki et al. (2018) draw direct attention to the fact that if accountability was developed in Canada framed in an international human rights context, Indigenous people would then benefit from legal protections, broader scope of legal action as the conceptualization of personhood and health would be expanded, and that decisions around Jordan’s Principle Requests would finally have a third party appeals process/accountability process as required by the CHRT orders (The Caring 40 Society, 2021a). Through this lens, Canada can be understood as attempting to meet its international obligations. UN Human Rights Processes Should a state be ordered by the UN Courts to implement or change legislation these factors will help the state do so in an expeditious manner. If the state has a long term and consistent distributed commitment to human rights implementation that extends beyond the central government and connects a variety of different domestic agencies, bureaucracies, and institutions, then the state will be more likely to successfully implement policy supporting the changes ordered by the UN courts, or its own. In this manner the culture of aligned policy implementation is embedded in the broader political processes in which a government develops. This also enforces effective and balanced policy responses to social problems and conflicts (Udagama, 2015). Meaningful and timely compliance also requires a cultural saturation of human rights awareness, expertise, and sustained commitment among a significant cross-section of executive, parliamentary, and administrative officials. This knowledge base and will must be independent of the will of the government of the day. When such an imbedded capacity and awareness exists, the laws and policies implemented are unlikely to be obstructed or ignored because the government or political elites are not in favour of substantive remedies (Anagnostou & MungiuPippidi, 2014). These observations regarding methods to improve compliance are made with the awareness that for the member states of the United Nations, they have the understanding and expectation that declarations by the UN, while not binding as a treaty, are ‘strong guidance’ on the matter of the declaration with the expectation of implementation. Even if the states’ 41 implementation is not a best example, or if the state continues to violate the intentions of the declarations there is the expectation that a state will do what it can to meet them (Lenzerini, 2019). Canada as a member state of the UN, by that logic, understands that the three declarations listed at the start of this section are expected standards that it is should genuinely strive to meet. Some have critiqued international human rights framework systems, arguing that there is a high probability that states will be mandated to enact policy. They argue that through that enaction states will erode or assault Indigenous sovereignty, perpetuate or create discriminatory practices, or force Indigenous cultures to assimilate into normative culture supported by and in support of the state. International law and its processes have implications that may or may not positively impact non-colonial peoples (Dion, 2017). Agonism Framework: What Canada could attempt. An alternative framework is discussed by Fitzgerald and Young (2020). They argue that to even attempt to engage in the human rights framework means to accept an already created and internationally recognized identity. Fitzgerald and Young argue that one away to avoid these presupposed narratives is for non-colonial peoples to adopt an agonistic relationship towards colonial cultures. Maori vs New Zealand Relationships Fitzgerald and Young (2020) use the relationship that has developed between the Maori people and the state government of New Zealand to demonstrate this approach. In this case the issue is the management of the geographical area known as Te Urewera, that is in onc sense a sacred place, and in another, a national park; but ultimately, a legal person. Fitzgerald and Young (2020) present a framework where a “process of collective deliberation conducted rationally and fairly among free and equal individuals” (p. 323) is utilized to deconstruct identities, discourses, 42 and structures to enable perspiratory parties to reach a consensus that is free(er) of coercive presuppositions and discriminatory cultural structures. This process allows participants to actively disrupt and collaboratively create solutions to issues they share. There are certain outcomes that some would consider problems having deep implications for legislation and policy development. Entering legal engagement with a clearly noncooperative or militant stance can be understood as un-helpful. However, this allows participants to critically examine the pre-constructions around legal process, rights, what is right, and even such terms as helpful. Another outcome is that no agreement constructed through this process is permanent. While states desire a narrative where ‘problems’ are fixed and then forgotten, the agonist framework accepts and works within an ongoing relationship between equals whose goals and desires may change in the future (Fitzgerald & Young, 2020). The understanding of Te Urewera became expanded through this process, and it has now been given legal personhood status. Te Urewera is a person with nine guardians who must enact an agonistic process to reach decisions where the best care of Te Urewera is constructed in process. Decoupling Framework: What Canada does. Mörkenstam (2019) examines Sweden’s process and implementation of the rights of the non-colonial people the Sámi. The term decoupling is explained as the process of disconnecting responsibility for outcomes from an organizational body. So, in this manner it is possible for a nation state to make statements of intent but decouple responsibility for follow through with promised outcomes. Mörkenstam explains that in this manner, it is possible for a state to meet demands of its citizens either: 1. By statements of intention (talk). 43 2. By creation of legislation and policy (decisions). 3. By action resulting in change/outcomes (action). In the literature there are two general reasons why this decoupling occurs. The state may not have the capacity to enact their intentions, or the state may not have the will to implement and enforce the required outcomes that their intentions require. In this way a nation state can use supportive statements about topics to balance a non-supportive policy around change/outcomes. It is often a combination of both (2019). There are three main ways to decouple talk, decisions, and action. One method to decouple is through a separation in time. Agreement now and action later is common sentiment for nation states. A second method through which talks and decisions can be decoupled from action, is by designating some topics as still in discussion and other topics as actionable. When a state endorses the emerging Indigenous rights sentiment, cultural rights and language rights may, for instance, be topics for action, while the right to self-determination may be topics for further talk and decisions. A third method of decoupling can occur through the separation of organizational units. Examples of this are separating politicians that are enabling talk and decisions from the action-oriented administration, or by having one state organization in charge of Indigenous health issues and another state organization responsible designating who are Indigenous people recognized by the state (Mörkenstam, 2019). Canada’s Federal Government This section begins with the acknowledgement that it is Canada’s own federal laws and policies that have not only put First Nations in their current state of extreme poverty historically and currently. It also acknowledges that those same laws have now created legal orders to ensure that Indigenous children have access to universal, comprehensive, publicly administrated, and 44 accessible health care services, directing the provincial and federal governments to work together (Chambers & Burnett, 2017; The Caring Society, 2021a). Can the actions of the Canadian government be understood through the process of organized decoupling in relation to Jordan’s Principle? Type One Decoupling Through Time: Jordan’s Principle responses must be given to families in a timely manner: 48 hours for regular request, 24 hours for urgent requests, and seven business days for group requests (Canadian Government, 2021e). However, the practical reality is that few requests are adjudicated and implemented in that time frame in comparison to the total number of requests submitted. This is in fact so common that is it now the expected norm for those service coordinators in BC and much of Canada (The Caring Society, 2021d). Type Two Decoupling Through Topic Reification: Jordan’s Principle is for a single child only (Canadian Government, 2021e). This means that referencing any benefit for other parties, such as family members, other organizations (schools), or entities, will increase the chances that a request will be denied. Further, organizations who apply for funding must complete a request form for each of the individual children that they are requesting on behalf of. Currently, ISC BC Region does not have any form or support for a group of children requesting funding, while several other delivery regions have this capacity (The Caring Society, 2021d). The intervention in the request must clearly connect to the child and address their specific needs (Canadian Government, 2021e). When requests are made, if the connection between the letter of recommendation for an intervention does not clearly connect to a resolution of the child’s unmet need, there is a high probability that a request for clarification be sent to the 45 parents of the child, or that the request will be denied. This extra burden of extensive case file management still falls to the family, or on the circle of care that is connected to the child for who the request is being made. (The Caring Society, 2021d). Type Three Decoupling Through Organizational Fragmentation: According to ISC, Jordan’s Principle is not a first source of funding Canadian Government, 2021e). To increase a request’s chance of being approved, it is best to clearly demonstrate that the family has explored, applied, and been denied for other normative sources of funding. This means one will need to provide additional documentation (typically, in the form of a letter) detailing these denials, as is evident on the Jordan’s Principle request form. In this case ISC clearly considers all publicly funded organizations as part of a national normative service network and uses this fragmentation to decouple. Further, ISC requires letters of recommendations for interventions from professionals who belong to an accredited college of professionals (Canadian Government, 2021e). While ISC will gladly accept letters of support from other members of a child’s care team (such as parents, community members, elders, chiefs and council members, and mental health workers) ISC will only accept letters of recommendation/referral regarding funding interventions from professionals who belong to an accredited college of professionals in BC. Without a letter of this nature from a professional, the request will be denied. When the family or service coordinator manages to find an appropriate professional willing to help them, they may be a remote distance from their community. This burden of gathering a recommendation letter is solely carried by the family and its representative, and frequently ISC will ignore these recommendations making a decision around need and appropriate intervention through its own internal process (The Caring Society, 2021d). 46 Finally, Jordan’s Principle ISC is broken into eight regional delivery areas. This means that the Jordan’s Principle funding is not dispersed in a standardized manner. Across Canada, the eight regions have unique models of delivery which means varied process to access Jordan’s Principle funding and varied outcomes (Canadian Government, 2021e). Through the lens of this framework, Canada may be understood as knowingly perpetuating historic policies of discrimination and assimilation in direct violation of CHRT orders as they decouple their statements and policy from outcomes and change. Development of a better Accountability Framework In their paper about translating human rights for water into policy and implementation Meier et al. (2014) provide the outline for an accountability framework based in the human right to clean drinking water. They see three major stake holders in this process. They note the role of the international community to provide normative standards and funding. They note the role of nation state to develop policy in line with normative human rights standards and implement them, and they see the role of the third-party NGO to act as advocate, public educator, and defender of the rights of the marginalized through litigation. In some sense it appears that Canada may already have this system of accountability developing. UNDRIP sets the normative standard for Indigenous rights. The federal government develops and implements policy. The First Nations Child and Family Caring Society, along with the Assembly of First Nations, act in the role of third-party NGO (Johnson, 2015). This appears to the be process in Canada since 2007. In the case of Jordan’s Principle, one could argue that this process is not responsive to the needs of Indigenous children in Canada based on the analysis of data and implementation process. What qualities and processes would a better accountability framework have? 47 Future Areas of Exploration Data about Jordan’s Principle An area with an unknown landscape of knowledge that could be considered for exploration, and increased transparency is the area of evidence regarding the impact of the delivery of Jordan’s Principle beyond those children and families receiving services. There is no data currently being collected about the following questions: 1. What similarities and differences are there between the data that First Nations Communities vs ISC collect? Do these differences illuminate a differences in epistemology and ontology around understandings related to health, a person’s connection to community, and the duties or responsibilities that a governing body would have in relationship to the community and individual? 2. What are the similarities and differences between the ISC Data about the effectiveness of Jordan’s Principle delivery vs the personal experiences of ISC Employees mandated with supporting is delivery? Would this data reveal that ISC employees themselves are being injured by participating in a process that they may understand as perpetuating harm and contrary to the values and principles of the government that they represent and work for? Could it be that Jordan’s Principle can be seen as a case study of policy enacted in such a way that any individual could be harmed by interaction with the process and through by standing? One could argue that those persons who would be drawn to work on such a project as Jordan’s Principle would have personal values supporting reconciliation, justice, and equity. 48 3. What are the impacts of current delivery operationalization for Jordan’s Principle on ISC employees and service coordinators? If there are similarities of impacts between these two groups of people, are they similar to the current impacts that families are experiencing? Can this data be used in support of reform? Does a new legal order need to be given to protect the rights of those persons harmed by the delivery of Jordan’s Principle? Revealing this knowledge landscape may provide ISC more incentive to improve delivery and support, may increase the general public’s knowledge of the importance and significance of Jordan’s Principle for Canadian identity and as a country. One would suspect that it may help provide appropriate acceptable knowledge to the CFG to continue working towards positive and just reform, and the data may help Indigenous communities in advocacy and to develop methods and organizations to hold the CFG accountable. Advocacy Domestically, within Canada, a key step in successful future advocacy would be for social work practitioners to understand and advance Jordan’s Principle knowledge with colleagues at all levels and with allied or connected professions. Such an understanding and focus should include current and developing policy, practice, and research. This knowledge dissemination should occur through the full spectrum of the professional career cycle; classroom teaching, curriculum development, independent research projects, and practicum and placement opportunities, current practice, and work (Johnson, 2015). In alignment with UNDRIP and Canada’s Charter of Human Rights, a further step that can be taken to inform the development of an accountability framework for Jordan’s Principle implementation would be an increased level of data sovereignty for First Nation’s communities 49 (Long et al., 2019). Current data sharing and usage practices perpetuate colonial systems and various structures of discrimination and assimilatory practices. For example, the question can be asked of the Canadian government: Why are data that is collected from Indigenous communities such as the number of denials of Jordan’s Principle requests and reasons for those denials, so difficult to repatriate? Local communities that control and share their own data regarding health and outcomes have better health outcomes (2019). The expansion of the role of third-party stakeholders such as the Caring Society through increased national presence would also be a good step in increasing the Federal Government of Canada’s accountability around Jordan’s Principle delivery. If the Caring Society had at least one representative for each region, this would allow better community engagement and improved relationships with those communities currently experiencing unacceptable hardship due to the current delivery of Jordan’s Principle, and allow for a better tracking of non-compliance issues. Further, such organizations would be positioned to advocate for greater transparency into the workings of the process that ISC uses to make adjudications on requests, train employees and determine best practices for Jordan’s Principle delivery. Current Developments At this time of writing a new set of Agreements in Principle (AIP) had been agreed upon by the CFG, The AFN, and The Caring Society regarding future changes to the delivery of Jordan’s Principle. There are two AIPs one specifically dealing with compensation for those Indigenous persons who were unnecessarily taken into are by various ministries of the government, and a second concerned with the long-term reform of Jordan’s Principle. No formal policy has been delivered, but the intentions of the AIPs have been released. In the second AIP regarding the national delivery of Jordan’s Principle, the CFG intends to: 50 1. Identify, respond to and report on urgent requests; 2. Develop and implement Indigenous Services Canada internal quality assurance measures, including training on various topics, a complaint mechanism, and an independent office to ensure compliance; 3. Ensure privacy is protected, that least intrusive approach is used, and for the parties to engage the Privacy Commissioner; 4. Ensure that professional recommendations are respected, and that clinical case conferencing only takes place where reasonably required to ascertain needs; 5. Ensure that reapplications and/or cessation or disruption in funding, and/or payment procedures do not negatively impact First Nations children; 6. Increase national consistency and standards, especially with respect to group requests, develop and implement tracking to achieve this, and provide for rereview; 7. Increase specificity and personalization in denial rationales with prompt communication to requestor; 8. Implement "Back to Basics" approach and culture change to determination of Jordan’s Principle requests; and 9. Identify mechanisms for off-reserve capital where required to provide safe, accessible, confidential, and culturally- and age-appropriate spaces to support the delivery of Jordan’s Principle and confirmed through needs assessments and feasibility studies, in the course of negotiating Final Settlement (The Caring Society, 2022). 51 In a very clear sense, these 9 points encompass and could address every key issue that has been identified by the other stakeholders, families, communities, and professionals that have interacted or that have been impacted negatively by their experience with Jordan’s Principle delivery in BC, and across Canada. Considering point 3, the intention of delivering services in the least intrusive manner could instantly preclude the requirement and use of the substantive equity questions provided in Appendix A. These questions are currently required if a service coordinator in British Columbia identifies that the requested need is above normative standard. Point 8, the implementation of a “Back to Basics” approach and cultural change to the determination of a Jordan’s Principle request, means exactly what? Was there such a time when the delivery, adjudication, and request process was basic? When was it and what was it exactly? Could such a policy change such that ISC only requires the absolute minim documentation to adjudicate a request? A consent form. A request form. A professional/culturally appropriate letter of recommendation? Point 2 is ambitious, to say the least. In truth, all of these points are as needed as they are ambitious, and while many may see these points as a beacon of hope, one should keep in mind the context which necessitated them; the CFG’s historical practices and its current practices regarding policy decoupling. Consider this interesting point: By November 30, 2022, after the Final Settlement Agreement is signed, the Parties will bring a joint motion to the Tribunal for an order implementing long term reform measures and for a final order resolving the complaint in the CHRT process and ending the 52 Tribunal’s jurisdiction as of December 31, 2022 (Canadian Government, 2022a). This appears to be a solid colonial response to an issue that will most likely continue to have generational implications, and an attempt to categorize all Jordan’s Principle topics as resolved. The signing of the Final Settlement Agreement could prevent further issues from being addressed if the CFG can argue that such issues fall into the resolved category of items addressed in the Final Settlement Agreement of December 31, 2022. 53 Conclusion Since 2007 key stake holders have attempted to use a human rights accountability framework with regards to the Federal Government of Canada’s implementation of the legal ruling called Jordan’s Principle. This process has continued to this day and has seen significant sets backs and advancements depending on many factors. This paper has attempted to examine key factors that have impacted the delivery of Jordan’s principle which include, cultural barriers in understanding, legal barriers in understanding and implementation, category errors, and the possibility of a developing accountability framework. These contributing factors create a complicated environment which future social workers can step into to help facilitate future curation and development of Canadian culture, in line with our legal and desired goals of strengthening human rights in general for people in Canada and reconciliation with Indigenous peoples in whose land we live. Jordan’s Principle delivery represents a key issue which could define Canadian identity and Canadian Indigenous relationships for decades to come. 54 Positionality Re-Statement This paper began with a statement of personal positionality to provide context for the perspective through which this paper would be written, as a framing structure. So, it would be fitting to end this paper with another statement of position, but rather than one that is personal in nature, one that is a discourse on professional position; a framing of how the personal will be operationalized into the social. As a social worker bound by the culture of the Canadian nation-state and who is in a relationship with the geography that is Turtle Island, there is unlikely to be any ‘sure footing’ regarding the right practice in this in-between space. And it is probable that the capacity to remain in this in-between space may be essential and necessary. In an in-between space it may be possible to come to know the nature of systemic power. To both be an actor of power and a recipient of it. I could argue that it is in the in-between of things that knowledge is found. Through the writing of this paper, it has become clear to me that social work as a profession is not about the procedures of social work, but the relationships that allow the social worker to do ‘good work’. Good social work must be co-defined in the in-between space between the social worker and the collaborator, be that an individual or a complex system. I have come to see that I cannot simply say that I have done ‘good work’ without the agreement of the collaborator, because then the work collapses into the individual; fallen out of the in-between which is where social exists. As I look to other spaces there must be an acknowledgement and awareness that all social programs are delivered in a space defined by policy. There are boundaries that define what can not happen; systemic limitations, or systemic opportunities. To work within the ecology in which 55 social programs blossom, I would need to be familiar with the connections and relations each part of the ecology participates in. And rather than ‘sit’ in one ‘expert’ camp of practice or theory, I should be open and prepared to be between many camps and theories to develop and support a diverse relational internal ecosystem within myself to allow for the robust emergence of possibilities. Social work may very well be a profession existing in the in-between of things. 56 Further Context to Support Understanding Completing a Jordan’s Principle Request In BC At the beginning of the writing of this paper the steps to completing a Jordan’s Principle request in British Columbia where: 1. If one is not a parent or child making the request, then one is acting as their representative in this matter, and one must complete with the Jordan's Principle Consent form. 2. Begin filling out each section of the Jordan’s Principle Request form. 3. If the child one is writing the request for does not have an Indian Status Number, they will still qualify to make a request if: a. They are eligible to be registered under the Indian Act; or b. They have a parent who has an Indian Status Number; or c. They have a parent who is eligible to be registered under the Indian Act; or d. They live ordinarily on reserve; or e. An Indigenous Nation is willing to recognize them for the purposes of Jordan’s Principle. If this is the case, ISC prefers that an appointed designated person in charge of Membership Nominal Role complete the Confirmation of Recognition form and the Consent to Communicate with the First Nation form. 4. Section two must be filled in with the information of the parent or guardian of the child. If the guardian is MCFD, then the child’s Case Social Worker must fill in this section. 57 5. If one is neither the parent nor the guarding, but acting as their representative, then one must fill in section three. 6. For section four one will need to detail the needs of the child. This section is best done with a recommendation/referral letter from a professional. While one may certainly write about the child’s needs, a letter from a professional is a minimal requirement. Further, if the letter of recommendation regarding a need (such as a diagnosis and recommended intervention) is made by a professional, ISC prefers that a different professional provide the service and invoicing for section 5. If this can not be the case, a letter of explanation would be helpful. 7. If the needs and intervention are a normative standard, then evidence that a gap exists which prevents this normative standard from being met must be provided. This can be in the form of letters from allied care givers, community members or oneself. 8. If the need is above normative standard, then a strong argument for substantive need must be provided. ISC has provided questions (Canadian Government, 2021e) that help structure this argument. 9. For section five one will need a clear invoice or cost for the intervention. The final amount, who ISC is to make payment to, and the duration of the intervention must all be clearly outlined for this section. A clear invoice from a service provider containing all the above information is acceptable. And, ideally, the service provider will fill out the Direct Deposit form. 10. For section six you will need to demonstrate that other avenues of funding have been explored. This is particularly the case in requests that are to meet normative 58 standards of care. If this is not demonstrated sufficiently and clearly there is a good chance that your request will be returned for further substantiation or denied. Once these steps are complete then the request is ready to be submitted to ISC. Key Concepts for Fitzgerald and Young’s Accountability Framework Fitzgerald and Young direct attention to the following with regards to colonial/modern legal structures from which International Human Rights Law is derived: 1. Such legal structures are founded in an understanding that one culture discovers another. One culture enacts the preferred role of discovering the other culture that is waiting to be discovered. (The Doctrine of Discovery) 2. The discovering culture notes differences between themselves and the other and determines themselves to be ‘civilized’ thus superior. (The Doctrine of Difference) 3. And by extension imposes legal structures and identities on the other as they enact policy by inherent right of superiority. (The Doctrine of a Universal Civilization) Should Indigenous group even engage in the processes of International Human Rights Law; they begin in a discriminatory position. They accept roles, methods of acting, apparatus of change, and inaccessible possibilities that are already pre-supposed, and favour another cultural body. 59 References Anagnostou, D., & Mungiu-Pippidi, A. (2014). Domestic Implementation of Human Rights Judgments in Europe: Legal Infrastructure and Government Effectiveness Matter. European Journal of International Law, 25(1), 205 - 227. 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Models of health and disease. The British Journal Of Medical Psychology, 66, 213-38. Udagama, D. (2015). The Politics of Domestic Implementation of International Human Rights Law. Asia-Pacific Journal on Human Rights & the Law, 16(1/2), 104–149. United Nations. (2021). United Nations Declaration on the Rights of Indigenous Peoples. Wensing, E. (2021). Indigenous peoples’ human rights, self-determination and local governance - Part 1. Commonwealth Journal of Local Governance, 24, 98–123. 66 Appendix A: Substantive Equality Questions provide by ISC When considering requests, please take into account the specific needs of the child such as: 1. Does the child have heightened needs for the service in question as a result of a historical disadvantage? 2. Would the failure to provide the service perpetuate the disadvantage experienced by the child as a result of their race, nationality or ethnicity? 3. Would the failure to provide the service result in the child needing to leave the home or community for an extended period? 4. Would the failure to provide the service result in the child being placed at a significant disadvantage in terms of ability to participate in educational activities? 5. Is the provision of support necessary to ensure access to culturally appropriate services? 6. Is the provision of support necessary to avoid a significant interruption in the child's care? 7. Is the provision of support necessary in maintaining family stability?, as indicated by: a. the risk of children being placed in care b. caregivers being unable to assume caregiving responsibilities 8. Does the individual circumstance of the child's health condition, family or community context (geographic, historical or cultural) lead to a different or greater need for services as compared to the circumstances of other children (such as extraordinary costs associated with daily living due to a remote location)? 67 9. Would the requested service support the community or family's ability to serve, protect and nurture its children in a manner that strengthens the community or family's resilience, healing and self-determination?