Canada challenges order to address Jordan's Principle backlog

The federal government is challenging a legal order requiring it to immediately address a backlog of requests for assistance, many labelled urgent, at the Jordan's Principle program for First Nations youth in need.

After hearing allegations that Indigenous Services Canada put children in jeopardy by failing to promptly process these claims, the Canadian Human Rights Tribunal ordered Ottawa to act in a Nov. 21 summary ruling, giving Canada 30 days to challenge the panel's order.

At the latest possible moment  — Friday afternoon on Dec. 20 — federal lawyers filed an application for judicial review in Federal Court, seeking to set the ruling aside.

"There are important legal issues around some aspects of the summary ruling" that need to be resolved, said Indigenous Services Minister Patty Hajdu in a statement announcing the move. The statement did not specify what those issues are.

Canada's court filing doesn't elaborate on this point either, saying only "the tribunal erred in law or otherwise issued an unreasonable summary ruling." Canada requested a pause on the judicial review while awaiting the full ruling, Hajdu said.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society who filed the motion against Canada, condemned the application as a delay tactic, in a recent interview.

"They should be getting down to business and putting their efforts towards complying with the legal orders instead of all these fruitless challenges," she said.

Blackstock and the Assembly of First Nations (AFN) have been advancing this human rights complaint at the tribunal since 2007. They initially alleged Canada chronically underfunded on-reserve child and family services for years and refused to abide by Jordan's Principle.

But cracks have recently shown in their approach, with the assembly hedging its position on Blackstock's motion, fully supporting neither her nor Canada. The AFN has acknowledged but not responded to a request for comment.

CBC Indigenous reported last month that federal governments both Conservative and Liberal have spent at least $14.5 million fighting — and losing — this 18-year legal battle.

"They've lost on every single decision, except for one that was overturned on appeal," Blackstock said.

"It's a waste of taxpayers' money and frankly, even worse, it's a waste of children's childhoods while they don't take the action needed to remedy the problems."

Endorsed by the House of Commons in 2007, Jordan's Principle aims to ensure First Nations youth can access health care and social services without delays tied to jurisdictional disputes. 

It's named for Jordan River Anderson, a Norway House Cree Nation boy born with multiple disabilities in 1999. Jordan died at age five, having spent his entire life in hospital because Manitoba and Ottawa couldn't agree on who would pay the costs of his home care.

Not only have Blackstock and AFN won their complaint, they've secured $23.4 billion in compensation for the victims, and a separate offer of $47.8 billion over 10 years to reform the on-reserve child welfare system, which First Nations leaders voted to renegotiate last fall.

The fate of that initiative is now uncertain after Prime Minister Justin Trudeau announced his decision to resign once the Liberal party chooses a successor.

In a Dec. 10 report, Canada called the order to immediately address the backlog "challenging" and "not operationally feasible." Indigenous Services Canada reported its backlog of Jordan's Principle applications stood at 140,000, with 25,000 labelled as urgent.

But the department was unable to estimate when the backlog will be cleared, wrote Dayna Anderson, general counsel at Justice Canada. Individual urgent requests are supposed to be processed in 12 hours.

In her statement, Hajdu said nearly $8.8 billion has been announced for Jordan's Principle with more than 8.2 million products, services and supports approved since 2016, adding that Ottawa has worked to meet the growing volume of requests.

Blackstock countered that past progress can't excuse ongoing breaches of children's rights.

"Sadly, in too many cases, kids are suffering irremediable harm," she said.