Jordan’s Principle: substantive equality principles
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This document was developed as a tool to help build understanding and provide practical guidance, to assist in the operationalization of substantive equality across the country in the context of ensuring Canada's full implementation of Jordan's Principle. This document remains evergreen and will be periodically updated to ensure that it remains relevant and is aligned with Government of Canada priorities.
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Summary
Substantive equality means giving extra help when it is needed, so that First Nations children have an equal chance to thrive as other children in Canada. When a request is submitted to Jordan's Principle, Indigenous Services Canada considers the needs and circumstances of First Nations children, which could be:
- cultural
- social
- economic
and often due to disadvantages because of the past mistreatment of First Nations in Canada. This document provides a description of substantive equality, Canada's obligation under Jordan's Principle and how to apply substantive equality.
What is substantive equality?
Substantive equality is a legal principle that refers to the achievement of true equality in outcomes. It is achieved through equal access, equal opportunity and, most importantly, the provision of services and benefits in a manner and according to standards that meet any unique needs and circumstances, such as cultural, social, economic and historical disadvantage.
Substantive equality is both a process and an end goal relating to outcomes that seeks to acknowledge and overcome the barriers that have led to the inequality in the first place.
When substantive equality in outcomes does not exist, inequality remains.
Achieving substantive equality for members of a specific group requires the implementation of measures that consider and are tailored to respond to the unique causes of their historical disadvantage as well as their historical, geographical and cultural needs and circumstances. First Nations children have experienced historical disadvantage due to Canada's repeated failure to take into account their best interest as well as their historical, geographical and cultural needs and circumstances. For this reason, substantive equality for First Nations children will require that government policies, practices and procedures impacting them take account of their historical, geographical and cultural needs and circumstances and aim to safeguard the best interest of the child as articulated in the United Nations Committee on the Rights of the Child General Comment 11.
What is Canada's obligation under Jordan's Principle with respect to substantive equality?
Pursuant to the CHRT May 26, 2017 decision as amended, the Government of Canada is to ensure substantive equality in the provision of services to the child, to ensure culturally appropriate services and to safeguard the best interests of the child.
This requires Canada to provide all First Nations children, on and off reserve, and Indigenous children ordinarily living on reserve, with publicly funded benefits, supports, programs, goods and services in a manner and according to a standard that meets their particular needs and circumstances, on a substantively equal basis with non-First Nations children.
How does substantive equality apply to Jordan's Principle?
Substantive equality is an overarching legal obligation that must guide the interpretation and implementation of Jordan's Principle. The key values identified in the Touchstones of Hope, as outlined below, are to be respected to achieve substantive equality in the provision of services, products and supports, under Jordan's Principle:
Self-determination
First Nations peoples are in the best position to make decisions that affect First Nations children, youth, families and communities. First Nations peoples must meaningfully participate in the development and implementation of Jordan's Principle on a regular and ongoing basis.
Culture and language
Culture and language are the foundations of health and well-being for First Nations peoples. Jordan's Principle recognizes this and requires that approved products, services and supports are culturally appropriate.
Holistic approach
The holistic needs of a child must be met. These needs will be informed by historical and cultural factors, such as residential schools, intergenerational trauma, colonization, racism and intersectional discrimination. Products, services and supports must meet the needs of the child in the context of their family and community and be child-centred, focused on promoting the health and well-being of the child's mind, body, spirit and emotions.
Structural interventions
Jordan's Principle requires the eliminating of systemic barriers that have resulted from racism and colonialism by challenging the existing systems to fully meet the needs of First Nations children.
Non-discrimination
Non-discrimination underlies Jordan's Principle by ensuring that First Nations children receive the products, services and supports they need regardless of where they live. It challenges historical practices and structural barriers and strives for equal access to health, social and educational systems in order to achieve equal outcomes.
Understanding substantive equality
Substantive equality is the recognition that not all people start off from the same position and that these unequal opportunities make it more difficult for some to be successful.
Treating everyone the same is only fair if they are starting from the same position.
Substantive equality seeks to address the inequalities that stem from an individual's particular circumstances, to help put them at the same position and give them the same opportunities as others.
Applying substantive equality
In an effort to offer some clarity, the following examples are being provided to demonstrate how substantive equality should be considered upon further review of a request:
Request for clothing and footwear
A request was submitted for clothing and footwear for a school-age child with a specific diagnosis. This condition resulted in damage to the child's clothing and footwear on a much more frequent basis beyond the typical wear and tear expected. Upon review of the request, it was determined that the frequency of the clothing and footwear replacements due to the child's condition resulted in financial hardship to the family. In their efforts to meet the child's needs, the family incurred unexpected and elevated clothing costs. The clothing and footwear costs were covered by Jordan's Principle.
Request for air transportation
A request was submitted by a family to attend a series of workshops for parents with children with special needs and transportation to and from the workshops. The requests for the workshops and transportation costs by car were approved. Following the approval, the family requested funding to cover the cost of air travel to attend the workshops since the family lived several hundred miles from where the workshops were being held. Upon review of the request for air travel, it was determined that the distance was too far for the family to travel by car. To ensure substantive equality in the provision of services to the child, Jordan's Principle provided funding to the family to cover air transportation to attend the workshops.
Assessing requests
"It is about the Aboriginal perspective; picture yourself in the community, and see it [the request] from that perspective"
October 30, 2017
interview with Justice Mandamin
Service needs will continue to be assessed first against normative standards. However, in assessing whether a service should be provided, the following questions serve as guidance to help achieve substantive equality.
When considering requests, please take into account the specific needs of the child such as:
- Does the child have heightened needs for the service in question as a result of an historical disadvantage?
- Would the failure to provide the service perpetuate the disadvantage experienced by the child as a result of their race, nationality or ethnicity?
- Would the failure to provide the service result in the child needing to leave the home or community for an extended period?
- 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?
- Is the provision of support necessary to ensure access to culturally appropriate services?
- Is the provision of support necessary to avoid a significant interruption in the child's care?
- Is the provision of support necessary in maintaining family stability?, as indicated by:
- the risk of children being placed in care
- caregivers being unable to assume caregiving responsibilities
- 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)?
- 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?