Research On Jordan’s Principle In The Protection Of Aboriginal Children In Canada

Jordan’s Principle is a very distinctive principle in the field of Canadian aboriginal children’s protection.It is based on children’s priority and needs,and ensures that aboriginal children can get all government funding and public services in an equal and timely manner when they encounter jurisdiction disputes.Its establishment is an important achievement in the protection of aboriginal children in Canada,and it also opens a chapter to explore new ideas for the protection of aboriginal children.On the basis of interpreting the background and reasons for the establishment of the Jordan principle,this paper attempts to analyze the process of the change of the principle and explore the significance of the principle for the equal protection of aboriginal children.The birth of the Jordan principle is based on the settlement of jurisdiction disputes,but in the process of evolution,the principle embodies the connotation of substantive equality,and the implementation of this connotation is restricted by various factors.Equality and discrimination constantly promote the perfection of the Jordan principle in the process of collision.Taking history as a clue,this paper is divided into three chapters:The first chapter is the establishment and change of Jordan principle.The first chapter is the establishment and change of the Jordan principle.Canadian boarding schools emerged from the colonists establishing reservations for the indigenous people through treaties,limiting their movement,and hoping to assimilate their descendants through education.Boarding schools in Canada have seriously harmed the physical and mental health of aboriginal children.Even though they have been abolished,their follow-up influence continues.In addition,the differential treatment between indigenous children and non-indigenous children has always existed.In order to eliminate the influence of boarding schools and change the status quo of differential welfare treatment,the government actively seeks effective solutions.However,racial discrimination cannot be solved overnight,but the protection of children is imminent.Therefore,it is very important to find a way to put children in the first place so that children will not delay the rescue because of the government’s prevarication and inaction.The direct trigger for the establishment of the Jordan principle is an aboriginal child named Jordan River Anderson,who had never been helped by the government departments,and finally died in the hospital.After his death,the social level began to call for the implementation of the Jordan principle to solve jurisdiction disputes.Although the provinces have recognized the principle one after another,it had not been included in the statute law,nor had it been used as the basis for judging in actual cases.Until the case of Jeremy(Pictou Landing Band Council V.Canada,2013),the court cited this principle,arguing that the government narrowly interpreted the Jordan principle and Jeremy should receive subsidies.Jeremy’s case means that the case settlement has been affirmed,and the court can analyze whether to apply Jordan’s principle according to the actual situation.Moreover,after Jeremy’s case,Jordan’s principle has become a legal principle and opened the door to making laws.The second chapter is the change of the application scope of Jordan principle in the evolution process.There are problems in defining the Jordan principle in the process of change.The first is the inconsistency between the federal and provincial governments.Although the Federation called on all provinces to adopt the Jordan principle,the Federation did not clarify the specific scope of the Jordan principle.On the one hand,the provincial government hope to expand the application as much as possible,on the other hand,it wants to make a restrictive interpretation.Therefore,the provincial government is also very contradictory in the process of using this principle,and its interpretation is often very narrow,and most provinces have not reached a tripartite agreement,and indigenous people are excluded.Later,through the relevant rulings of the Human Rights Court,the scope of application of the Jordan principle was continuously expanded,and the Jordan principle was applied to "all indigenous children".And through Sullivan v.Dennis,2021),Jordan principle can be applied to cases before its establishment,that is,it has retrospective effect.After a long-term narrow interpretation,the Jordan principle seems to usher in the spring,but this over-expanded interpretation may not be able to correct discrimination and achieve substantive equality.On the contrary,the expansion of the scope has aggravated the shortage of funds,which is not conducive to protecting those who really need protection in the case of limited funds.Therefore,the scope of Jordan principle still needs to be limited,which depends on the qualification examination system.As can be seen from Malone v.Canada,2021),when using Jordan principle,the premise is that the applicant is an aboriginal who meets the qualification examination conditions.In addition to the definition,there are also problems in the application of Jordan principle,such as the application of discretion and the degree of discretion.Determining the application of Jordan principle according to individual cases can take into account the specific situation of each child,and then decide whether subsidies can be given,which may be more conducive to substantive equality.However,case solving relies too much on the judge’s free evaluation of evidence,and it is not the best way to solve the problem by holding the fate in the hands of others.Therefore,there are also views that it is the direction of future development to formulate a systematic solution.In view of these discussions,the reasons for the change of the scope of Jordan principle are as follows: First,,the Jordan principle has financial problems.First of all,the total amount of funds is insufficient to support the protection of indigenous people;Secondly,the uneven distribution of funds,some projects can not be implemented due to lack of funds,which is equivalent to name only.As well as using the same funding method for different tribes,the limited funds can not be fully utilized,which is easy to waste funds;These reasons come down to one thing: under the new liberalism,the aborigines lack the right to speak.If citizens are divided into "worthy" and "unworthy",the aborigines are "unworthy" groups.In order to get more help,the aborigines need to gradually tilt towards the mainstream discourse system,which invisibly oppresses the aborigines to accept the mainstream discourse system,and rationalizes the discrimination problem.Therefore,the lack of the right to speak and the exclusion from the decision-making level have also led to the difficulty in promoting the protection of indigenous children.On the premise of not reflecting the opinions of aboriginal groups,when disputes arise,adjustment through Jordan principle is regarded as internal self-adjustment and self-correction,which always seems too kind.The third chapter is the thinking caused by Jordan’s principle.Jordan principle embodies the connotation of substantive equality,and achieves the goal of equal results by compensating aboriginal children.A concept that accompanies substantive equality is formal equality.In view of the discussion between the two,the United States has rich experience.On the one hand,after the abolition of "separation but equality",the United States advocates legal equality regardless of race and ethnic group,that is,formal equality;On the other hand,the United States recognizes that formal equality cannot make ethnic minorities under long-term discrimination truly equal.Therefore,through affirmative action,indigenous people are given seats in education and employment,so that they have the opportunity to participate in decision-making levels.But this has also brought about reverse discrimination against whites.Based on the geographical proximity and similar history between the United States and Canada,the path that the United States has taken on equality and the arguments it has encountered may also become the process that Jordan is experiencing or may experience in the process of realizing equality in the future.By sorting out the establishment and evolution path of Jordan principle and combining with the jurisprudence in the affirmative rights movement in the United States,the paper concludes that Jordan principle will continuously penetrate into the decision-making layer in the process of striving for national autonomy,and continue to develop continuously under the relationship between coordinated form equality and substance equality.In the nearly twenty years since the establishment of Jordan principle,it has constantly raised new questions to the Canadian government,forcing the government to carry out the protection reform of aboriginal children.At present,this principle is still full of vitality and constantly improving.By perfecting the connotation of this principle from the inside and perfecting the review mechanism from the outside;Implement this principle through the tripartite cooperation of the federal,provincial and aboriginal governments,fully reflecting the opinions of all parties;Through the combination of legislative and non-legislative measures,Canadian government will continue to promote the equal protection of aboriginal children.In addition to always insisting on the supremacy of children and substantive equality,we need to constantly think about how to avoid reverse discrimination in order to maximize the role of the Jordan principle.