Jurisdictional Relationships: Democracy and the Administrative State Through the Lens of Caring Society v Canada

Introduction

This paper is inspired by a remarkable series of events that have unfolded in relation to a human rights complaint, brought by Indigenous claimants in 2007, that the Canadian federal government discriminates against Indigenous children by the way it funds child welfare services on reserves. In 2016, the Canadian Human Rights Tribunal found the complaint to be substantiated, and in a very interesting and nuanced decision, ordered the federal government to increase funding and to reform the system (FNCFCS et al v Canada (AG) 2016 CHRT 2). That decision has been followed by numerous appeals, compliance orders, and other court and tribunal proceedings, as well as Parliamentary debates, appeals to international human rights and an active public discourse.

The story of the Caring Society litigation can be told in many ways. It is about the care of children, and the contested role of the state in ensuring their health and safety (Bezanson, 2018). It is about the self-determination of Indigenous communities and the capacity of human rights law to protect against assimilation (Metallic, 2018). It is about the rule of law, and the capacity of legal frameworks to constrain exercises of power and to structure democratic engagement. It is also, I suggest, a story about how the administrative state can function to insulate state decision-making from accountability and to undermine our collective capacity for meaningful public debate. Dramatizing this phenomenon in a manner both shocking and banal, in the fall of 2021 Prime Minister Trudeau asserted in Parliament and affirmed during a televised election debate that his government was ‘not fighting Indigenous children in court’ at the same time that the Department of Justice was preparing to file yet another appeal (Canada, 2021; CTV, 2021).

This erosion of meaningful public discourse and state accountability is central to contemporary challenges to democracy and constitutionalism, including challenges posed by populist forms of politics. In this paper, I explore the critical resources for responding to these challenges that can be gained by attending to the administrative state as a whole, and its relationship to democratic public discourse. Lack of public trust in institutions and the insulation of political decisions from accountability are important contributors to the public alienation that fuels populist discourses (Webber, 2023: 9–10). When the practices of state institutions are corrosive to trust, accountability and meaningful political discourse, they undermine the possibilities for genuine democratic engagement and create a breach easily filled by the anti-elitist and commonsensical claims of populist politics. At the same time, critical responses to populism need to take seriously the embodied experiences of citizens and the complexity of the relationships at hand. The challenge is to promote the possibilities of democracy in a manner that is grounded in the realities of everyday life (such as the care of children), and not to cede the ground of democratic egalitarianism to the populist rhetorics of anti-elitism that can sometimes be ironic and “self-liquidating” (Webber, 2023: 8). Instead, how can we build or restore political communities in which the abstract words of collective aspiration, whatever they may be – ‘democracy’, ‘consent’, ‘freedom’, ‘love’ – are meaningfully connected to actual practices and experiences?

I suggest that one way to answer this question from the perspective of legal theory is to focus on jurisdiction. Jurisdiction is a useful framework for understanding challenges of meaning and democratic accountability because it enables scrutiny of the modern administrative state as a whole and the way legislative, judicial and executive aspects of the state are interrelated. Much discussion of democratic accountability focuses on tensions between electoral democracy one on hand, and a judicially supervised rule of law on the other. But as the story of the Caring Society litigation shows, it can be executive actions and administrative regimes that give citizens direct experiences of the state as unresponsive or unaccountable, and where public obligations are recast as ostensibly ‘private’ contractual relations (Rundle, 2020a, 2020b). A focus on jurisdiction brings into view the role of the executive and administrative elements of states, and their relationship to legal and electoral accountability. Attention to service delivery and the idioms of administrative accountability enable consideration of how they too play a role in the alienation that underpins populism (Rundle, 2020a, 2020b).

Attention to the meaning and workings of jurisdiction is also important because it helps address the complexity of ‘the people’ of contemporary states (Webber, 2023: 5–7). In contrast to the substantive wholeness and directness of the peoples’ voice postulated by populist discourses, jurisdiction calls attention to the specific legal mechanisms that identify, serve, or account for individuals, institutions and communities. This diversity and specificity of the ‘people’ is of particular significance in the context of pluralistic societies, and points to the need to foster democratic discourses that move beyond majoritarianism. In the case of the child welfare services at issue in the human rights litigation explored here, jurisdiction provides a way to see how technical legal mechanisms of administration are connected to broad questions of democratic accountability and the political constitution and survival of specific peoples.

Jurisdiction addresses the questions of who plays a lawmaking role, where, how and for whom (Pasternak, 2021). Jurisdiction is practiced and manifested through many forms, including judicial decisions and statutes passed by legislative bodies. Dorsett and McVeigh (2012) identify two essential starting points for thinking about jurisdiction. First, the word ‘jurisdiction’ is derived from the Latin ius dicere: to speak the law. Jurisdiction is the voice or speech of law. Second, drawing on theorists of the common law, jurisdiction connotes authority. They write: ‘[j]urisdiction is the practice of pronouncing the law. It declares the existence of law and the authority to speak in the name of the law’. (Dorsett and McVeigh, 2012: 4) Douzinas (2006) articulates these same two threads when he says that ‘[i]n jurisdiction, legal speech both constitutes and states the law’ (Douzinas, 2006: 23).

Thus, jurisdiction is a technical and legalistic mechanism, oriented to the professional craft of legal practice, such as the rules organizing which courts may hear which kinds of claims (Dorsett and McVeigh, 2012: 4). At the same time, jurisdiction is also a legal concept that explains how law comes into being and by whom. Political self-governance and the application of a legal system are brought into relationship through jurisdiction.

In this article, I draw on theorists of jurisdiction to explore the potential of jurisdiction and ‘jurisdictional thinking’ (Dorsett and McVeigh 2012) as a resource for promoting self-governance on the contested terrain of constitutional democracy and in the context of challenges posed by populism. I engage with human rights litigation about the funding of child welfare services to argue that the concept of jurisdiction provides us with crucial tools for understanding and responding to challenges of public meaning and democratic accountability in the context of the modern administrative state. I argue that jurisdiction is a concept and a practice that is important for democracy and for the rule of law. Most importantly, I think that attending to jurisdiction as a lens for understanding the challenges of populism and constitutionalism allows us to ask different kinds of questions and make different kinds of interventions with respect to meaningful public accountability and democratic lawmaking. My aim is to contribute to theoretical understandings of law that are capable of attending to, rather than covering over, the complexity of democratic governance and the rule of law.

Jurisdictional Disputes, Human Rights and Colonialism: An Example from Canada

My exploration of these issues takes place in the context of a Canadian human rights case relating to the rights of Indigenous children and the responsibilities of a federal settler colonial state. In this case, the non-profit organization First Nations Child and Family Caring Society brought a complaint against the Canadian federal government under the Canadian Human Rights Act (see generally Blackstock, 2016). In their complaint, the Caring Society alleged that the federal government discriminated against Indigenous children by the way it funds child welfare services on reserves. Pointing to inadequate services, inequities between on-reserve and off-reserve resources, and the crisis of Indigenous over-representation among children in state care, the Caring Society argued that federal policy perpetuated – rather than ameliorating – the harmful legacies of the residential school system, thereby adversely affecting First Nations children on the basis of race or ethnic origin, and breaching the anti-discrimination norms in the Canadian Human Rights Act. The Canadian Human Rights Tribunal (CHRT), the statutory body assigned jurisdiction to adjudicate complaints under the Act, found the complaint to be substantiated and made orders with respect to compensation and also the reform of the system (FNCFCS: paras 458, 481).

In order to understand the legal history of the Caring Society case, a bit of constitutional background is needed. The Canadian constitutional structure is federal in nature, and lawmaking authority is divided according to the terms of the constitution (see generally Webber, 2021). The federal division of powers set out in the Constitution Act, 1867 assigns provincial legislatures the authority to make laws regarding child welfare programs, and provides the federal Parliament with the authority to make laws with respect to ‘Indians and Lands Reserved for Indians’ ( Constitution Act, 1867 , s. 91(24)). As a matter of constitutional doctrine, the question presented is whether the provision of child welfare services for Indigenous children who live on First Nations land reserves falls into the class of ‘child welfare’, or as something that is relating to ‘Indians’. The contemporary doctrinal answer is: probably both (NIL/TU, O Child and Family Services Society 2010 SCC 45). However, as in other areas of social welfare law, the division of legislative powers in the Constitution Act, 1867 creates powers but not necessarily obligations. And for most of Canada's history, neither the federal nor provincial legislatures did legislate to provide child welfare on reserve (Grammond, 2018).

Instead, there is a well-established history of delivering services on a model involving inter-governmental agreement and the provision of funding governed by federal administrative policies rather than the creation of legislated norms. This model, sometimes referred to as ‘the provincial model’ (Grammond, 2018), has the following basic structure: The federal government enters into an agreement with a provincial government. Under this agreement, the federal government will provide funding to a First Nations child welfare agency, and the provincial government will delegate authority to that agency to provide services on reserve. It is a condition of the federal funding that the First Nations child welfare agency provide services to the community on reserve according to the norms and standards set out in provincial law. This is the kind of arrangement that was the subject of the human rights complaint in the Caring Society case.

The CHRT held that the policies and funding mechanisms contained in these agreements have had the effect of under-resourcing First Nations child welfare agencies as compared with their provincial counterparts, of failing to provide culturally appropriate or adequate services, and facilitating the ongoing practice of taking Indigenous children into state care in disproportionate numbers (FNCFCS: paras 404, 458). For example, federal policy determines the funding for the operating expenses of agencies, such as the salaries of social workers or the provision of support services, on the basis of a formula connected to the population of the reserve. The amount of those operating expenses is widely understood to be insufficient to provide adequate service (is: para 389–90). In contrast, the funding to pay for the costs of caring for a child who is taken into state care is provided for ‘at cost’, meaning that the full amount required to provide the care is reimbursed by the state. The funding policy thereby creates a structural incentive – at once technocratic and heartbreaking – to take children into state care, not as a last resort but in order to obtain services for them, as those services are not available to their families in the community (FNCFCS: para 384, 458).

These kinds of child welfare arrangements only apply on reserve, and the Tribunal found that, therefore, the race or ethnic origin of the children was a factor in their treatment (FNCFCS: paras 395–6, 459). The use of the category ‘race or ethnic origin’ to frame the injustices of colonialism has been problematized by critical scholars (Lawrence, 2018), but not by the Tribunal in this case. Instead, the Tribunal simply ruled that the policies had the effect of denying or differentiating adversely against kids on reserve in a substantively discriminatory way. The Tribunal held:

The evidence in this case not only indicates various adverse effects on First Nations children and families by the application of AANDC's FNCFS Program [the federal program], corresponding funding formulas and other related provincial/territorial agreements, but also that these adverse effects perpetuate historical disadvantages suffered by Aboriginal peoples, mainly as a result of the Residential Schools System. (FNCFCS: para 404).

The challenges of jurisdiction in this case are many. Indeed, the injustices at the heart of the case – the failure to provide needed social services and the separation of Indigenous children from their families and communities – arose from decades of jurisdictional disputes between federal and provincial governments fought out in elections, in litigation, and at the expense of Indigenous children. Indigenous communities have resisted both the interference and neglect of the Canadian state in a variety of ways, including through the assertion and practice of jurisdiction over families and children in their communities, both within and without the Canadian state framework (Walkem, 2021). As explored by Metallic, Grammond and others, the plurality of relevant jurisdictions is a central part of the picture (Grammond, 2018; Metallic, 2018; Mosher and Hewitt, 2018; Sheppard, 2018). Drawing on this attention to plurality, the specific jurisdictional lens I hope to bring to this case focuses on the quality of the relationships that are created among jurisdictions and jurisdictional actors. When brought to bear on the Caring Society case, jurisdictional thinking makes visible how the challenges of democracy and the rule of law are relational in nature and connected to the capacity of law to foster shared public meaning and accountability.

The range of institutional and jurisdictional relationships at play in the Caring Society case are remarkably complex and provoke essential questions of law and democracy. Consider the following examples. In January 2016, the Canadian Human Rights Tribunal ordered the federal government to reform its funding model and the way it provides the services in question, but the government has largely failed to comply with those orders (Levesque, 2021). There have been numerous subsequent non-compliance and other orders by the Tribunal (2016 CHRT 10; 2016 CHRT 16; 2017 CHRT 7; 2017 CHRT 14; 2017 CHRT 35; 2018 CHRT 4; 2019 CHRT 1; 2019 CHRT 7; 2019 CHRT 39). While there are many legal relationships at hand (the Canadian Human Rights Tribunal is an administrative tribunal created by statute and thus formally part of the executive), one way to characterize what is happening to is to see it an ongoing instance of the executive branch ignoring the orders of a quasi-judicial body in contravention of the rule of law.

In November 2016, Member of Parliament Charlie Angus (an opposition member from the left-of-centre New Democratic Party) introduced a motion in the House of Commons to compel the government to comply with the Tribunal ruling, which was passed unanimously on November 1 (Canada, 2016). The consequences of this motion are more political than legal because the source of the government's legal obligation to comply with the Tribunal's order is simply the rule of law. Further, the motion itself, as with all parliamentary resolutions, is not legally enforceable. However, the symbolic impact of the motion was considerable, particularly given that it received assent from all Parliamentarians, including the government ministers whose Ministries were simultaneously resisting the implementation of those same orders before the CHRT (Canada, 2016). To my knowledge, this action – a Parliamentary motion that explicitly calls on the executive to comply with the most basic tenets of constitutional government – is unprecedented in Canada.

Finally, in August, 2017, the United Nations Committee on the Elimination of Racial Discrimination called on Canada, not only to improve its supports for Indigenous children and families (which it had been calling on Canada to do for decades), but to comply with the order of Canada's own human rights tribunal and thereby respect the rule of law (United Nations Committee on the Elimination of Racial Discrimination, 2017).

The questions of jurisdiction raised by the Caring Society case are importantly connected to democracy, public accountability and self-government. First and foremost, throughout the long process of raising and litigating a human rights complaint, the Caring Society has situated the case within a larger social movement calling for the active involvement of children in the legal and political processes that affect them. Through the Caring Society's campaigns, children – hundreds or perhaps thousands of them – attended hearings, demonstrated on Parliament Hill, wrote letters to their local representatives, and more. At some point, there were so many children attending the hearings that they had to come in groups, and the Tribunal had to move the hearings to a larger venue to accommodate the broad public interest in attending (King et al., 2016: 35). This provides a compelling example of how litigation can support (rather than alienate or reduce) democratic engagement – including by children – with justice issues.

The Caring Society case also starkly presents the specific challenges that arise for both democracy and the rule of law when public meaning and accountability are undermined. Caring Society is a case about the capacity of jurisdiction to mediate the relationship between the care and safety of children and bureaucratic cost-reduction. It is a case about jurisdiction as the way sovereignty is manifested, and how governments can fulfill and evade their obligations. The federal government claims to endorse the findings of the CHRT, while refusing or neglecting to follow them. The federal government's words become meaningless, vulnerable to mere strategic deployment, which not only impacts the wellbeing of children needing services, but also precipitates a crisis in public meaning and undermines the capacity of the state to function in the service of democratic self-government. In this way, the Caring Society case is also about the need for attention to jurisdiction, attention to the speech of law and the technical mechanisms for its operation as methods for enacting a more robust practice of public meaning and accountability.

Jurisdictional Justice and Neglect

Questions about jurisdiction involve democracy because jurisdiction enables the internal structuring of self-government: ‘[j]urisdiction is the legal mechanism used to manage divisions of internal power within states’. (Pasternak, 2021: 178). In her essay on federalism and jurisdictional justice, Lessard (2012) explores this inherent connection between jurisdiction and democracy and argues that when judges are determining issues about the division of powers, they ought to explicitly attend to the democratic credentials of the legislating bodies claiming jurisdiction. In other words, where legislation is created through deep and collaborative engagement with the community members concerned, this fact should bolster the jurisdictional claims of the enacting legislature. Lessard argues that this norm carries particular weight when the communities whose lives or interests are at stake are marginalized from mainstream political processes and institutions such as electoral politics, and when the interests at stake are very important ones (Lessard, 2012: 94). She writes: ‘My argument is that a judicial determination of where jurisdictional authority resides in a democratic polity – a decision that is at base one about the structure of self-government – should take account of these elements of functional self-government or “democracy on the ground.’ (Lessard, 2012: 107–8).

Lessard also argues, and I think she is right, that different issues arise for constitutional law in jurisdictional disputes as compared with rights disputes, and that there is something about the ‘jurisdictional frame’ that connects us to questions of democracy in an important way. Lessard acknowledges that constitutional law doctrine about jurisdiction in Canada can be abstract and formal, far removed from the kinds of oppositional politics that she is interested in. However, she challenges us to understand that this story is not inevitable, and certainly not required by constitutional law. She argues that ‘jurisdiction’ inherently invites questions about self-governance and its structure and therefore ‘…attention to critical oppositional politics and its recognition as a fundamental and necessary component of democratic engagement is invited rather than foreclosed by our constitutional texts and principles’ (Lessard, 2012: 108).

In this way, Lessard's theory harkens back to the more general claim that jurisdiction is the legal form that enables or structures the practice of democratic politics and that jurisdictional justice is both abstract and formal, and tied into the political practices and daily lives of communities. I argue that Lessard's concept of jurisdictional justice can be used to understand more deeply the democratic implications of what is happening in the exercise, non-exercise, and relationships between jurisdictions.

Taking up jurisdictional justice with respect to the Caring Society case, Lessard might have us ask: What are the democratic credentials of the jurisdictional practices at hand? In the Caring Society case, it is not straightforwardly a matter of assessing the democratic credentials of legislation, because there is none. I think that we can build on Lessard's idea of jurisdictional justice to assess, in this case, the non-exercise of jurisdictional authority by the Canadian federal Parliament in the case of child welfare services on reserve.

A jurisdictional lens focuses attention on the federal government's lack of a legislative framework for any action it may take with respect to child welfare on reserve. Metallic (2018) calls this ‘jurisdictional neglect’, a situation in which ‘both the federal and provincial governments play a role in this system, but neither accepts accountability for ensuring First Nations are receiving adequate services, resulting in a diluted responsibility on the part of both governments’ (Metallic, 2018: 8).

Courts conceive of this kind of jurisdictional gap in different ways. In a situation where both federal and provincial governments denied lawmaking authority over Métis and non-status Indians, the Supreme Court of Canada characterized the legal context of those communities as a ‘jurisdictional wasteland’, with ‘significant and obvious disadvantaging consequences’ (Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, para 14, see also Sheppard, 2018). The Court has also invoked the prospect of ‘legislative vacuums’ in which forest management in some areas could go unregulated by either federal or provincial legislatures (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, para 147). In the context of judicial interpretation of the jurisdictions established by the Australian colonial constitution, we also see the idea of the ‘No Man's Land’ ‘over which the authorities of neither Colony could legitimately assert authority’ (South Australia v State of Victoria (1914) 18 CLR 115 at 139, discussed in Dorsett, 2006: 140).

From the perspective of democratic self-governance, it is crucial to see that jurisdictional neglect does not mean that the federal government has less power in this area. Indeed, the absence of legislation passed by Parliament means that the government actually has quite a lot of power: power to impose conditions, to shape program administration at a highly detailed level through reporting requirements, to change or maintain rules without consulting anyone, very little transparency or oversight, etc. (FNCFCS, paras 74–75, Metallic, 2018: 14, 23). In Metallic's words, ‘[j]urisdictional neglect results not only in a failure to properly address important First Nations policy issues…but, curiously, can also result in excessive or inappropriate control exercised over First Nations by INAC [the federal Ministry responsible]. This is due to an absence of the normal checks and balances that come with properly regulated government services established through legislation’. (Metallic, 2018: 16). In many contexts, the assertion of jurisdiction over something or someone is an act of power or an act that facilitates, expands or consolidates that power. But the converse, the non-exercise of jurisdiction, does not always work to constrain power (Cochran, 2019). Where power operates, empty space is not the same as freedom or self-determination. Here, what we see is the failure to exercise lawmaking jurisdiction as a mechanism that enhances state power without democratic oversight.

Jurisdictional neglect also has implications for the rule of law. Dorsett and McVeigh (2012) show that when law declines to take jurisdiction, the result can be a situation in which something or someone becomes ‘poorly bound to law’. This can especially be the case when the law that declines is a dominant one, because the capacity of other jurisdictions to assert themselves is uncertain or undermined. The example explored by Dorsett and McVeigh is the relationship between common law and ecclesiastical law with respect to death, burial and dead bodies. Historically, ecclesiastical law dealt with conscience and the meaning of burial, with the common law declining to take jurisdiction by articulating that there is no property in a dead body (Dorsett and McVeigh, 2012: 70). Dorsett and McVeigh argue that with the effective dominance of the common law and the relative demise of ecclesiastical jurisdiction, there is no longer any meaningful exercise of jurisdiction over the dead body. ‘The consequence of the failure to bind the body to the common law, the way in which precedent transmits law across time, and the effective demise of non-common law jurisdictions…has been to leave the dead body poorly bound to law’ (Dorsett and McVeigh, 2012: 70). This ‘continues to cause difficulties for thinking about how one engages lawful relations in areas such as patenting cell-lines or other medical technologies derived from the human body’ (Dorsett and McVeigh, 2012: 70). Moreover, Dorsett and McVeigh argue that in this context, jurisdiction (through the technology of precedent and a ‘thin’ account of what is bound by precedent) results in a ‘loss of ability to take responsibility for legal judgment’. (Dorsett and McVeigh, 2012: 70). The neglect of jurisdiction means that it is difficult to see what values are at stake and how public responsibilities will be practically taken up.

Drawing this analysis into conversation with the Caring Society case, I think that jurisdictional neglect has meant that child welfare services on reserve are also ‘poorly bound’ to law, meaning that the quality of connection between those services and the norms of Canadian law is thin and does not facilitate responsibility or accountability for judgment. This leaves a space where the rule of law fails to take effect adequately. In her writings on legal pluralism, colonialism and gendered violence, Napoleon (2019) uses the language of ‘spaces of lawlessness’. She argues that ‘the geopolitical spaces where Indigenous law has been undermined causes gaps in Indigenous legal worlds which when combined with failures of Canadian law, creates spaces of lawlessness where violence happens. It is usually the most vulnerable who suffer the consequences, mainly Indigenous women and girls’. (Napoleon, 2019: 8). Napoleon shows how spaces of lawlessness are created when one jurisdiction is undermined, and the other fails to maintain or uphold lawful relations.

When jurisdictional neglect takes place in the colonial context, it can be linked both to the failure of (state) jurisdiction, and the undermining of (Indigenous) jurisdiction. The federal government's policies and practices relating to children and family have always been a central component of colonial control, directly or indirectly undermining Indigenous law by impeding the transmission of language, proscribing the operation of legal institutions such as art and ceremonies, and by disempowering and dispossessing women (Truth and Reconciliation Commission of Canada, 2015). All of these have been facilitated by the exercise of federal jurisdiction over ‘Indians’, primarily through the Indian Act and the Indian Residential School system. From the late nineteenth century until the late twentieth century, generations of Indigenous children were removed from their communities and required to attend institutions run by Christian religious orders where they experienced isolation and abuse (Truth and Reconciliation Commission of Canada, 2015). The Canadian state interferes with and actively undermines the operation of Indigenous law with respect to the welfare of children. At the same time, the federal programs and policies that exist in this area are profoundly inadequate and fail to live up to the state's own normative commitments such as equality and the principle of democratic control over the executive (Friedland, 2009). Thus, the rule of law has only a weak purchase on the exercise of power by the state in relation to Indigenous children; the provision of services to those children is poorly bound to law, with responsibility for judgment ineffective and obscure.

This discussion makes clear that the remedy for jurisdictional neglect is not necessarily the active assertion of substantive norms by the dominant jurisdiction (Metallic, 2018: 22). Indigenous communities are not calling for the federal Parliament to resolve the puzzle of legal accountability by affirming Parliament's authority to order the lives of Indigenous children. To the contrary, many Indigenous communities are working to assert their own jurisdiction over these matters. When federal child welfare policy is poorly ‘bound’ to law, this means that jurisdiction is poorly connecting the general and the particular; the broad norms of law have little purchase on the technical craft of legal practice. For Canada, this means that the constitutional commitments, such as equality rights, Aboriginal rights, Parliamentary sovereignty and the rule of law, cannot be properly manifested in this context. The damage caused to Indigenous communities is manifest. But this jurisdictional disconnect also undermines the integrity of the Canadian state legal order itself, impacting jurisdictional justice for everyone within its sphere.

There is a recent and important exception to Parliament's jurisdictional neglect in relation to child welfare services on reserve. An Act Respecting First Nations, Inuit and Métis Children, Youth and Families was enacted in 2019, and is the first example of federal lawmaking pursuant to this jurisdiction. The purpose of the Act is, in large measure, to recognise Indigenous jurisdiction over child welfare. The Act does this by providing that Indigenous laws will, under specific circumstances, be enforceable as federal law, and thereby made paramount over any conflicting provincial laws (ss. 20–22). This Act is a jurisdictional disruption to the ‘provincial model’ at issue in the Caring Society litigation. However, it also carries with it significant pitfalls relating to funding, accountability and the relationships between Indigenous and Canadian jurisdictions that have continuity with the problems of the provincial model. The implications of the Act for jurisdictional justice are uncertain (Metallic et al., 2019).

Jurisdictional Relationships of Democracy

Exploration of the idea of jurisdictional neglect shows that there are important questions about the democratic character of the exercise or non-exercise of law-making jurisdictions, including those visible in the Caring Society litigation. Attention to the colonial context of the litigation brings to light the plurality of jurisdictions at work in the context of child welfare services. These include the federal Parliament, provincial legislatures and the law-making authorities of various Indigenous societies. It is clear that there are important questions about the democratic character of the exercise and non-exercise of all of these jurisdictions. A further dimension of this discussion opens up when we add consideration of the relationships between jurisdictions with reference to criteria about democracy and self-government.

Moving towards relationships and relationality in analysis of legal and political theorising calls for us to attend to the quality of relationships as a core rather than peripheral question (Sheppard, 2010; Nedelsky, 2011). As Eisen (2017) summarizes, ‘relational theorists post that relationships are constitutive of persons and institutions – a position that in turn gives rise to a normative demand that problems be reconceived and addressed in ways that honour this core truth’ (Eisen, 2017: 46). Focusing attention on relationality allows for constructive shifts in understanding both democracy and the rule of law. For example, in her engagement with the work of Lon Fuller, Rundle emphasises the inherently relational character of the preconditions that Fuller saw as constitutive of legality (Rundle, 2013, 2019, 2020a). Rundle makes visible how Fuller's ‘internal morality of law’ makes demands on the quality of the relationships between legal officials and legal subjects, and describes the specific forms of agency, responsibility and authority that are only possible when certain kinds of relationships exist (Rundle, 2019). These relational conditions are what makes it possible for a person to have legal subjectivity, and for an authority to govern through law.

Just as the quality of relationships creates the conditions for the rule of law, it is the quality of relationships that create the conditions for legitimacy and the ability to govern. Jurisdictional thinking thus presents a further opportunity to think about relationships in terms of collectivities and institutions, but without permitting collectivities to be taken as dominant or supreme (Nedelsky, 2011). Here, I extend this orientation to scrutiny of the relationships between jurisdictions and the legal and democratic quality of those relationships.

In thinking about how to attend to the relationships between jurisdictions, I draw on Roughan's writings on relative authority. Roughan (2013) draws on theories of legitimacy and case studies of legal plurality as an empirical reality, and provides a compelling account of authority that is inherently relational in nature. Roughan argues that the power and legitimacy of legal authorities depend on the quality of their relationships to other authorities (both state and non-state). She writes: ‘When authority is relative, relationships between relative authorities become a condition of their legitimacy’ (Roughan, 2013: 8) Relative authorities can cooperate, coordinate or tolerate each other, or they can conflict or undermine each other. As Roughan writes, ‘[a] claim to relative authority is simply a claim to have legitimate authority through appropriate relationships with other authorities’ and ‘any claim that such an authority makes entails a commitment to the pursuit of those appropriate relationships’ (Roughan, 2013: 158).

In the context of the Caring Society litigation and the federal funding of child welfare services on reserve, the concept of relative authority helps in clarifying what is at stake in the quality of the inter-institutional relationships at play. For example, by delivering child welfare services on reserves through funding policies and agreements rather than legislation, the federal government structures its relationships with First Nations not as public relations of democratic or inter-authority accountability, but as private matters of contract and administration (Rundle, 2020a). For example, in response to the assertion that the funding programs functioned contrary to the terms of the Canadian Human Rights Act, the federal government argued that providing ‘funding’ does not constitute a ‘service’ that is available to any ‘public’, thus putting the complaint outside the scope of conduct prohibited by the Act. From this perspective, the relationship between the federal government and the First Nation is governed primarily by agreement, with this agreement understood in a very privatized manner, such that accountability mechanisms would only exist between institutional entities, not reaching out to citizens or political communities. The federal government was explicit about this in their legal argument, writing in their factum that:

The funding at issue is provided on a government to government or government to agency basis and follows a process of discussion and implementation. Individual First Nation children and their families are not invited or expected to participate in the creation of these funding arrangements. They are not parties to the resulting contract and would normally be excluded by the doctrine of privity from seeking legal redress for alleged breaches (FNCFCS et al. v Canada (AG), Respondent's Closing Arguments: para 134.)

Here, the jurisdictional structures surrounding federal child welfare programs have the effect of characterizing the relationships and lines of accountability as private. The contractual relationships are ‘government to government’, or ‘government to agency’, in which the federal government agrees to provide funds on the condition that they be spent according to its specifications. The provincial government agrees to legally delegate the authority to provide services in accordance with provincial child welfare statutes. And the First Nation or its service agency agrees to fulfill the conditions of the funding grant, including by delivering its services in accordance with the norms set out in the provincial statute.

On this framework, there are no public relationships involved and existing sites of democratic accountability have little purchase on the program. The people of Canada exercise democratic self-government through their representatives in Parliament, but here Parliament has abdicated its role and there is no legislative framework for children's services against which the actions of executive officials can be judged and the officials held to account. There is no accessible public record or even a known obligation to keep particular kinds of records or data at all. This interferes with the capacity of citizens to participate in the creation of the norms that govern society, and to hold their own government to account. Citizens of individual provinces find that the legislative norms duly enacted by their provincial legislatures, such as the principle that taking a child into state care must be a measure of last resort (see FNCFCS: paras 345, 388), are being actively undermined through their executives’ participation in a funding agreement. And the children, families and First Nations whose interests and rights are directly at stake are understood not as citizens or political agents at all, but only as consumers of services who are ‘not parties’ to the agreements and whose political agency is irrelevant (Pasternak, 2014: 152).

In its decision, the Canadian Human Rights Tribunal rejected the idea that there was no ‘public’ relationship between the federal government and First Nations children (thus bringing federal conduct within the purview of s. 5 of the Act, which prohibits discrimination where such public relationships exist). Instead, the Tribunal emphasized that ‘a public is defined in relational as opposed to quantitative terms’, and relied on a robustly historicized account of the federal government's relationship to Indigenous peoples and the actual effects of that relationship to help interpret the ‘publicness’ of the relationship at hand (FNCFCS: para 31). The Tribunal found that ‘[t]he fact that [the federal government] does not directly deliver First Nations child and family services on reserve, but funds the delivery of those services through FNCFS Agencies or the provincial/territorial governments, does not exempt it from its public mandate and responsibilities to First Nations people’ (FNCFCS: para 78). Thus, the Tribunal insisted that the relationship between First Nations children and the federal government was not private and contractual in character, but rather carried the elements of publicity required to hold the state to account in the public interest (FNCFCS: para 76).

Further, the Tribunal held that the relationship at hand was not only public in a general way, but that ‘First Nations and, in particular, First Nations on reserve, are a distinct public’ (FNCFCS: paras 61, 84). Drawing on the Canadian constitutional principle of the ‘honour of the Crown’ and the doctrinal characterization of the relationship between the Crown and Aboriginal peoples as ‘fiduciary’ in nature, the Tribunal held that ‘the existence of the fiduciary relationship between the Crown and Aboriginal peoples is a general guiding principle for the analysis of any government action concerning Aboriginal peoples. In the current “services” analysis under the CHRA it informs and reinforces the public nature of the relationship between AANCD and First Nations on reserves and in the Yukon….’ (FNCFCS: para 110). The Tribunal further found that the federal government's decision to fulfill its responsibilities to provide services through an approach over which First Nations have very little control reinforces rather than diminishes the strength of federal obligation to act in the interest of First Nations when exercising its role as a public authority (FNCFCS: paras 83, 86).

Reflecting on these findings, with Roughan we might ask how the relationship between the federal, provincial and First Nations governments can be structured to best promote the legitimate authority of all three? With Lessard, we might look to the political agency of the most marginalised and directly affected people as a guide to assessing that legitimacy.

Jurisdictional thinking allows us to see the processes and procedures through which public relationships are created (Rundle, 2019) and in the Caring Society case, those public relationships are found wanting from the perspective of democratic self-government. And from the perspective of a relational approach to law, the question is not just whether the federal exercise or non-exercise of jurisdiction is democratically adequate, it is whether it fosters relationships of democratic community.

In this regard, the Caring Society decision has provided a doctrinal path – using Canadian human rights and constitutional law – for thinking through the democratic quality of the jurisdictional relationships at hand. In her analysis of the significant implications of the Caring Society decision, Metallic notes that ‘[t]he Caring Society decision, while not using the language of “self-government” or prescribing the particular form it should take, signifies that First Nations must exercise meaningful control over the content and delivery of child welfare services in their communities as a matter of human rights law’. (Metallic, 2018: 6) Refocusing this analysis through a different lens, I suggest that the Caring Society decision also signifies that such self-government would be part of a more democratic and more lawful set of institutional relationships between the relative authorities. Jurisdiction provides not only a lens for critique but also techniques for working towards those more just relationships.

Jurisdiction, Care and Accountability

In this discussion so far, I have focused on the relationships between jurisdictional authorities or institutions. I argue that jurisdictional thinking allows us to focus attention on the way concrete and technical practices of law structure public relations of governance and authority. However, one of the most notable – and indeed deeply disconcerting – aspects of the Caring Society case is the juxtaposition of a technocratic and obfuscating set of relationships, not only with the public norms of equality and democracy, but also with the care, intimacy, and embodied experiences of caring for children. As Bezanson writes, the case is ‘fundamentally about how people put together and sustain the necessities of life’ and the challenges of this undertaking in the context of neoliberal social policy (Bezanson, 2018: 167).

The Caring Society case is troubling because it discloses the experiences of children who are lonely, afraid and disconnected from their families, experiences of parents whose children are taken away, experiences of social workers making heartbreaking choices between untenable options, trying to bend an unmoving system around the lives of vulnerable people. It is also troubling because it discloses a bureaucratic system that has intervened in the lives of Indigenous communities in an incredibly harmful way, but which very successfully dilutes, avoids, defers and privatizes any kind of accountability even in cases where that harm can be made visible. One illustration of this happens in a documentary film by Obomsawin (2016) about the Caring Society litigation, in which viewers watch the testimony of federal civil servants tasked with implementing the programs in question. The film contains an extraordinary moment in which it is disclosed that the individuals responsible for implementing one program developed to dispense funds in the case of jurisdictional disputes, had received an award for the quality of their work, even though the outcome was that no funds were dispensed under that program at all. The story of the Caring Society case is partly a story about the real risks our society faces with respect to the loss of judgement, the loss of public space and human relationships.

In my view, this observation about the deeply jarring contradictions of the Caring Society case is an important methodological resource. Specifically, it points to the importance of developing theories of law that can account for the full complexity of human lives and communities. While critical analysis of contemporary politics, including populism, serves to help deconstruct the simplistic binaries and thin ideologies that can disconnect politics from our lives (Webber, 2023: 9), the Caring Society case demonstrates that it is crucial to attend to the embodied, affective aspects of our lives and relationships. In its decision, the Tribunal attempts to grapple with some of the tensions in the case somewhat directly: the first sentence of the decision reads: ‘This decision concerns children’. (FNCFCS: para.1). Taking up a relational approach to jurisdiction requires that readers not allow this first sentence – the choice of inaugural words, the underlining, the direct articulation of what is at stake – to slide across their field of vision without impact. Jurisdiction points our attention to the techniques of writing, and relationships of care open us methodologically to the implications of this sentence.

The Caring Society case is a compelling example of the interconnectedness of rights, care and judgement. For example, in its decision, the Tribunal takes up the administration of child welfare services as a crucial forum for enabling political community. The Tribunal finds that ‘[t]he transmission of indigenous languages and cultures is a generic Aboriginal right possessed by all First Nations children and the families’ protected by the constitution, and therefore that the federal government may have not only a legal but a constitutional obligation to ensure it acts in a way consistent with those rights (FNCFCS: para 106). As described above, Metallic (2018) argues that in drawing this connection, the Tribunal articulates a legal basis in human rights law for First Nations self-government over child welfare services, because equality demands non-assimilation (Metallic, 2018: 6). We must enable relationships of care in order to transmit language and culture, and thus have a political forum for democratic deliberation. At the same time, democratic self-government is required in order for those relationships of care to exist and to be protected from assimilation.

The Caring Society case also highlights the relationships between caregiving work and the adequacy of political discourse for sustaining rights and democracy. Taking up Nedelsky's (2012) positioning of caregiving work as a crucial source of judgment in relation to public policy, I view some of the state failures in this example as connected to the devaluation of care, and the inaccessibility of caregiving practice to the individuals and systems charged with supporting ‘child welfare’. In this sense, the embodied and affective aspects of relationality (including, for example, relationships between me and my children, between me and my research subject matter, and how I understand and observe relationships between other things I see, like jurisdictions) are an important methodological resource, including for the reason that they are connected to the capacity to observe and take seriously the affective dissonance generated by the case. This can provide access to a particular type of critical lens, oriented to the capacity of law to sustain (rather than undermine) public meaning. When we hear the federal government argue that the Tribunal has no jurisdiction because funding is not a ‘service’, or that they have no ‘public’ obligations to First Nations children, when emotional and physical harm to vulnerable people is viewed through a deeply alienated and technocratic lens, it is our own embodied and affective relationships that provide us with the resources to experience confusion, incredulity or outrage. Those experiences help us see the profundity of the gap between the words invoked and the reality against which democracy and the rule of law must be held to account. Without attention to the importance of these relational experiences, or in a context where daily survival requires that we disregard them, we may instead respond with disconnection, despair and cynicism. This is a context in which words are at risk of becoming meaningless (care through harm) and law of becoming power (government through lawlessness).

The Caring Society case reflects the high stakes of institutional cultivation of meaninglessness for both democracy and the rule of law. Political theorists have long documented how anti-democratic political movements, including those with a populist character, rely on this kind of disorientation and loss of shared, public meaning to facilitate their hold on power in a society. With reference to the totalitarianism of the mid twentieth century, Arendt (2001) calls this the loss of the ‘common world’ and argues that this loss facilitates the loss of judgement that enabled the collapse of politics in those societies, extending even to genocide. In the context of the present discussion of jurisdiction, the connection I want to make is that this kind of alienation facilitates our ability, as a society, to disconnect, to feel powerless and thus unaccountable, and I think that jurisdictional thinking is one important lens to bring to bear on this problem. When we witness the suffering of a child explained by the failure to correctly fill out a form, we are outraged. But there is no form available to connect that rage to law or to transform it into constructive engagement in the public world. And so, for those whose private worlds are untouched, we may also grow immune to the intellectual and affective dissonance produced by this situation. This is, in part, a matter of jurisdictional practice.

Conclusion: Jurisdiction and Forms for Taking Responsibility

Jurisdiction identifies the perpetual gap between legal norms and the practical, concrete forms of their implementation and administration. The Caring Society case demonstrates how this gap can be a space of lawlessness, where power and violence operate with impunity. In its jurisdictional neglect, the federal government undermines democratic accountability, permits the ongoing inequality of Indigenous communities and casts the institutional relationships at hand in private, non-democratic terms. Norms of democracy and the rule of law begin to lose their grounding in legal relations, and the possibilities of common public meaning are undermined.

At the same time, by calling attention to this gap between norms and experience, jurisdictional thinking also provides opportunities for critique and transformative action. (In taking up their adjudicative jurisdiction in the future, will Canadian Human Rights Tribunal members imagine their hearing rooms filled with children?) Questions and challenges of jurisdiction present the possibility of seeing and scrutinizing the techniques that connect law to practical experiences, rather than forgetting, assuming or erasing them (see Douzinas, 2006: 27, see also Matthews 2017). For example, in their discussion of writing as a technology of jurisdiction, Dorsett and McVeigh (2012) stress the importance of understanding writing – even in its most technical administrative forms – as more than administrative, but also about the creation and authorisation of legal relations (seen, for example, in the inauguration of a legal process through a writ or indictment) (Dorsett and McVeigh, 2012: 60–62). They write:

Much of the administration of modern law takes place through bureaucratic modes of writing – an obvious example is the form. Modern administration – the idea of thinking of law as a general system and of writing as simply being administrative – makes it harder to think of writing as a jurisdictional technology. The point we make, however, is that unless we hold onto writing as a jurisdictional practice we lose our sense of the authority and authorisation of law, and of how we inaugurate lawful relations. Writing is the preferred method of the common law (and of most modern law) of getting law going. If we lose this sense of writing as a technology of jurisdiction, then modern law becomes what Arendt calls government by no one, with the consequence that we no longer take responsibility for the form and force of our law.

In this way, jurisdictional thinking can promote accountability by focusing attention on the ways in which technical administrative processes (forms, funding formula, administrative guidelines, programming) have consequences relating to substantive legal norms such as the rule of law. Jurisdictional thinking facilitates an account of democratic accountability that can encompass the administrative state as a whole in its field of vision, and thereby brings critical scrutiny to the relationships created and sustained through its practices. Jurisdiction and jurisdictional practices like writing are about connecting norms and experience, and this recognition is part of how we make it possible to take responsibility.

Reflecting on political responsibility, Young (2011) writes:

Because we dwell on the stage of history, and not simply in our houses, we cannot avoid the imperative to have a relationship with actions and events performed by institutions of our society, often in our name, and with our passive or active support. The imperative of political responsibility consists in watching these institutions, monitoring their effects to make sure that they are not grossly harmful, and maintaining organized public spaces where such watching and monitoring can occur and citizens can speak publicly and support one another in their efforts to prevent suffering (Young, 2011: 88).

Extending this argument, jurisdiction is how we use the law to structure opportunities to take political responsibility. This can be a source of optimism about structural change, because of the way jurisdiction makes visible the (indeterminate and therefore contestable) relationship between norms and experience. Attending to jurisdiction allows us to resist the caricatures of law and democracy that can be produced by populist politics and by constitutional law, and in this way, the story of the Caring Society litigation provides rich resources for responding to the challenges of contemporary democracy. By scrutinizing the democratic credentials of jurisdictional practice and the quality of the relationships among jurisdictions, we can attend to the embodied relationships of caregiving and the institutional relationships of self-governance; we can ‘seek out technical forms through which it is possible to take responsibility’. (Dorsett and McVeigh, 2012: 135). We also seek technical forms through which it is possible to promote and sustain equality, and through which it is possible to promote and sustain care between self-governing people and their institutions.