Analysis of Proposed First Nations Education Act - author unknown

7/27/2019 Analysis of Proposed First Nations Education Act - author unknown

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ANALYSIS OF THE HARPER GOVERNMENT

PROPOSAL TO WORK TOGETHER

IN PREPARING A BILL FOR FIRST NATION EDUCATION

October 22, 2013

The Minister has sent out further details of what the Government of Canada is intending to do

with itsFirst Nations Education Act.

The Minister states the Government of Canada is committed to working with First Nations to

develop the Act. The record is that to date, there has been very little evidence of such a

commitment. There is still time to make good on the commitment, however.

The Minister states the Act will be in line with the 1972Indian Control of Indian Education,

reports of the Auditor General of Canada, and the Standing Senate Committee on Aboriginal

Peoples and similar reports. The Blueprint setting out the Governments plan for the Act showed

little evidence that the proposed Act was in line with any of these reports. In fact, in manyrespects, the Governments plan is contrary to the recommendations in those reports. There is

still time for the Government to go back to the reports and learn from them.

The Minister sets out a long list of things the Government has done to consult. There is no

evidence that anything coming from these items is reflected in the proposed Act. There is still

time for the Government to have an independent body hold true consultation and to demonstrate

the Government is listening.

The Minister states the proposed Act will respect existing Aboriginal and Treaty rights. At

present, that is not the case. The Ministers draft Act has many areas in which it breaches the

UN Declaration on the Rights of Indigenous peoples, inherent human rights, Treaty rights andFirst Nation sovereignty.

The Minister states that under the Act, First Nations will be able to exercise their rights over

education by running community-operated schools and forming education authorities. First

Nations have those rights now. What the Government must do is to commit itself to respecting

those rights. The Minister says to avoid having to follow the Act, First Nations may negotiate

self-government arrangements over education. First Nation rights to educate their own children

exist now, must be respected and are not negotiable.

The Minister states the Act will provide the legal base it wants First Nation education to have, it

will set service levels, it will improve the funding mechanism which is very different than

providing adequate funding and it will strengthen access to quality education. All of these

matters are impositions on the existing jurisdiction of First Nations to educate their children.

There already is an inherent legal base. The problem is the Government refuses to recognize it.

The Minister states that the proposed Act will offer the opportunities to develop and implement

language and culture programs. First Nations already have the right to do this. The Government


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is offering opportunities rather than providing the funding necessary to do this.

The Minister promises community education committees so parents can express their

concerns. Such committees would not be necessary if the right of communities to control their

education was recognized and there was sufficient funding to provide quality education.

The Minister proposes to set up standards for diplomas, but there is no promise of funding to

achieve those standards except for funding to go to provincial schools. The most glaring

deficiency in the proposed Act is a simple provision that the funding provided for every First

Nation child will be the same whether the child attends a provincial school or a First Nation

community-controlled school.

The Act proposes there are two categories of choices, with two options for each category. A First

Nation community can send children to a provincial school or bring in the provincial school

system to run the communitys school, and the government will pay the going provincial tuition

fees for each child. Or, in category two, the community can run its own school or form a

collective of First Nation schools with other communities, in which case it will receive the goingIndian Affairs rates usually less than half the provincial rates. This is discriminatory,

unconscionable, and a violation of fundamental rights.

The Government states it is offering the new act in a spirit of reconciliation. The fact is that so

far, the proposed Act has caused deep opposition, resentment, and anger across Canada.

Reconciliation has been severely damaged by the Act.

The Minister states that many details would be spelled out in regulations. Regulations can be

imposed unilaterally by the Government without the involvement of Parliament. First Nations

will have no control over the regulations. Yet the regulations will have the binding effect of law.

This is unacceptable. The Government states it is committed to developing mechanisms thatwould involve First Nation representatives to establish these regulations. The commitment is a

political one, not a part of the legislation, and where there has been similar commitments, the

record shows unilateral imposition of regulations by Government.

The material supplied by the Minister made no mention of the number of public servants or the

budget required for the administration of the Act. Each Council across Canada would be

responsible for sending the Minister numerous reports, evaluations, assessments, etc., requiring a

massive bureaucratic apparatus to manage.


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After this preliminary view of the proposed legislation, the Minister turns to a clause-by-clause

review of the Act.

Preamble. Preambles usually have glorious language, but note: they are not legally binding.

General. The government will commit to s. 35 of the Constitution. Of course! It has no choicethere. Will clarify that Councils have legal rights to enter contracts and the other side of that

coin is that Councils will have legal obligations to fulfill their contracts or pay the penalties.

The non-abrogation clause is tricky. It states, Nothing in this Act is to be construed so as to

abrogate or derogate from the protection provided for existing Aboriginal or treaty rights. All

other non-abrogation clauses state that shall be no abrogation or derogation from the rights

themselves. This one is no abrogation or derogation from the protection of the rights, rather than

the rights themselves.

Access. Councils will be made responsible to provide access to education for students age 6-21.

There is no provision for the Government to ensure there are corresponding funds. Parents willbe legally responsible for ensuring their children are registered for school and attend regularly.

All parents must provide the Council with written notice of the school in which their children are

registered. The Council must be able to confirm that it has met its obligation to offer access to

education to every child on reserve. There would be regulations dealing with home schooling.

Governance. If a Council operates a school, it will have the responsibility of setting up the

education program, budget, policies, and approving a school success plan. Services may be

provided or purchased. The Minister may set regulations as to the matters that must be addressed

in the budgets and reports. The Council must appoint a community education committee and

must consult with that committee before establishing a school policy. The Minister may set

regulations setting out how community education committees are to be established and theholding of their meetings. The Act is silent on the obligation of government to provide funding to

a Council for the meeting of these objectives.

A Council may contract with a provincial school system to provide education. Instead of

operating a school directly, a Council could enter into an agreement to form an education

authority if the Minister approves the agreement, and then delegate its responsibilities to the

education authority. The Minister could also set standards for such matters as governance,

operations, etc., and then fund the authority directly. The education authorities would become

incorporated. If the education authority was not complying with the rules, the Ministger could

revoke a designation of the agreement.

A First Nation school could accept students from off reserve, but payment of tuition would come

from the province or the students families.

A Council must establish an annual budget for education and submit it to the Minister. The

Council is also obligated by law to establish policies and procedures related to financial

management. A Council must also approve the schools success plan, submit it to the Minister,

make it public, monitor its implementation, monitor the quality of education in the school,


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manage the schools property, approve the school safety plan, prepare the schools annual report

and any other report require by regulations, submit them to the Minister, and make them

available to the general public, and also to make available any other information required by the

regulations. The specific responsibilities would be set out in the regulations. There is no

commitment for funding the Councils obligation.

School Operations. The Act will set the minimum standards for instruction, materials,

transportation, required equipment, professional services, etc. A Director of Eeducation must be

hired to be responsible for administration and management. A Principal would be responsible for

instruction and a school success program setting out educational objectives and measures for

students to move on to the next stage of education or to enter the workforce. The duties of the

Principal are set out in the Act. There is no requirement for the Minister to provide funding to

meet the standards.

The Council or authority would be required to provide to the schools that it administers services

relating to the management of human resources, information and information technology, of

finances and property and other services provided for in regulations. There is no provision for thefunding of a Council or authority to comply with these provisions.

A Council is responsible for maintaining insurance against loss or or damage to property,

liability, and other insurance required by regulations. There is no provision for the funding of a

Council or authority to comply with these provisions.

Regulations would set out the number of instructional hours and instructional days, including

school terms, school holidays, and professional activity days. The Director of Education would

be required to keep a record of student registration and submitting the record to the Minister.

The Councils policies must enable students with special needs to participate in the schoolseducation program. There is no requirement for the Minister to provide funding for any costs

involved.

Each year, there would be an inspection of each school by a School Inspector as to whether

there is compliance with the Act. The Council is responsible for providing the Minister with a

copy of the Inspectors report within 10 days after receiving it. If the inspection report finds

problems, the responsible authority must take measures to remedy those problems. If the problem

is not being resolved, the Minister could require a special advisor, the equivalent of a co-

manager. If the problem is still not resolved, the Minister could appoint a third-party manager to

run the school and take necessary action to remedy the problem. The Director of Education,

Principal, teachers and other staff must comply with any direction given by the Third Party

Manager. There is no requirement in the Act that a Council be provided funding to employ the

services of a School Inspector, special advisor or Third Party Manager.

he Minister could also appoint a Third Party Manager is there was a risk that the Council would

not be able to comply with all the requirements under the Act due to it being in serious financial

difficulties.


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Funding. Payments to a school would be made by calculations to be described in regulations.

The Minister could pay for tuition agreements or make his own agreements with a school board

or province. Under section 9, education of all children on reserve must be provided at the cost

of the Council of a First Nation.

Liability. The Government would not be liable for anything connected with the operation of aschool. However, there is no release from liability for the Council, authority, or community.

Bylaws. The Act would recognize certain bylaws about education as stipulated in the Act.

Regulations. The Minister can make regulations to implement the Act.

Indian Act. Sections 114-122 of theIndian Actwould be repealed. The new Act would also

replace the currentBritish Columbia Tripartite Education Framework Agreement. October 23,

2013.

Documents

Analysis of Proposed First Nations Education Act - author unknown