NATIONAL FIRST NATIONS EDUCATION ACT: FOLLY OR A USEFUL TOOL?

Back to School caused a buzz in the capital from the Opposition parties that the next Omnibus Budget Bill would include a First Nations Education Act. Media reports today do not include that as a possibility but one never knows. The Budget speech said there would be a First Nations Education Act by 2014 so it is a reality on the horizon. Question is, will be it useful tool to help deal with the current issues in education for our precious youth or will it be a folly?
 
The recommendation for the National First Nation Education Act came from the National Panel on First Nations Elementary and Secondary Education for Students on Reserve whose report was made public on February 8, 2012. The panel, an independent body was appointed by AANDC and the AFN. The complete report can be found at firstnationeducation.ca/wp-content/themes/clf3/pdfs/Report_02_2012.pdf and a summary of the report can be found at www.afn.ca/uploads/files/education/sr_summary_of_the_national_panel_report_feb_14_2012_final.pdf.
The issue of whether a National First Nations Education Act is very controversial with First Nations across Canada and a special assembly to deal with this issue and education has been called for October 1-3 in Ottawa. At the AFN AGA there was no consensus to move ahead with a motion on the Education Act and wisely, a special meeting was called to work through the issues.
 
What is the recommendation of the National panel for a National Education Act?
 
·       CO-CREATION of a CHILD-CENTERED First Nations Education Act
·       First Nations will enact law for the management and administration of First Nations schools based on First Nations legislative jurisdiction
·       Contain a non derogation clause that the act does not take away from treaty and aboriginal right to education
·       Will be OPT in (again-if you don’t like it, don’t use it)
 
·       Part 1 will be for all First Nations children regardless of where they go to school
  • Contain the objectives of a First Nations education system
  •  Roles and responsibilities and accountabilities of all partners within the First Nation education system including First Nation, First Nation organizations, provinces/territories and federal government.
  • Coordination of curriculum, standards, performance measure and accountabilities
  •  Strengthening cultural identity through education
  • Statutory funding for First Nation education
Have to ask, what would be left for First Nations own law?
 
·       Part 2 would be specifically for First Nations schools and would include
 
  •  Student testing and assessment
  •  Policies and regulation of First Nation education
  • Teacher employment, remuneration and standards
  • School management
  • Attendance and student retention
  • Reporting based on outcomes and performance measures
  • Dispute resolution
Does this list sound child centred?
 
These are of course recommendations of the Panel and the Chiefs across the country can establish their own framework but let’s look closely at some of what is proposed.
 
A CO-CREATED First Nations Education Act. The authors of the paper also throw in the Federal government’s duty to consult and the right of free prior and informed consent from the Declaration of the Rights of Indigenous people for good measure but you have to ask: When has this ever happened in this country? We can look at all the recent legislation passed or in the process of being passed such as the Safe Water Drinking Legislation, Matrimonial Real Property Act, Financial Accountability Act, First Nations Election Act, and now the proposed Real Property Ownership Act and you can see how little input First Nations people have had. The Matrimonial Real Property Act also had a panel that made recommendations for the Act and many of those recommendations were ignored. Why would an Education Act be any different?  Is a National First Nations Education Act just another Indian Act about education?
 
Also, provinces have sole jurisdiction over education in the provinces (except on reserve) and would not be bound by any federal legislation on First Nations Education so Part 1 as it applies to Provinces would not be binding.
 
There is a very strict process on how legislation is drafted and passed and First Nations are not a part of it. Anything drafted by First Nations can be changed by the House of Commons or the Senate. First Nations do not have a final say on any legislation. Best you can do is lobby people to propose changes. The constitution is set up so that there is specific responsibility in who is part of the legislative process. A quick look at the Guide to Making Federal Laws and Regulations confirmed what I already knew but it is worth a quick gander www.pco-bcp.gc.ca/docs/information/publications/legislation/pdf-eng.pdf.
 
The other point I would like to address is that the Federal National First Nations Education Act would allow First Nations to pass their own laws WITHIN THEIR OWN JURISDICTION in relation to the management and administration of education. A Federal Law that has a provision that recognizes First Nations jurisdiction to pass laws on education. Interesting! Is it a delegation of federal authority? Is it a s. 35 self government power? If you look at existing models such as the First Nations Land Management Act (FNLMA), First Nations can pass their own Land Codes based on approval of the Minister and under authority of the FNLMA. Or membership codes under the Indian Act, again with Ministerial authority. If federal legislation has a provision in it that allows a First Nation to pass a law the authority comes from the federal government, not the First Nation. I cannot see how federal authority can recognize First Nation jurisdiction under the current constitution. If you look closely at what would be in the Act, it does not leave a lot of room for what the First Nation could actually pass a law about as the Act would be the main legislation that would have to be followed.
 
If a law could be co created and have all these elements in it, it may be ok but is a melting pot solution for all First Nations in Canada a good idea? Many First Nations have different ideas and issues in education. Can one act help? Has the Indian Act helped all First Nations? Big questions. There will always be some First Nations that would not be happy with a Federal First Nations Education Act and many would say they weren’t properly consulted. 
 
Obviously solutions have to be found to deal with these issues and it is a shame that the Panel looked at only one solution of an Act.
 
There are good models in education out there, many best practices, they could be solutions as well. One only has to look at the BC First Nations Jurisdiction over Education Act and how it has not been implemented even though it was passed in 2006. 6 years later and a lot of negotiations and meetings and it is not an effective tool yet. This is the government that we have to work with. Many lessons learned. That is why I don’t believe that a National First Nations Education Act is the solution in the current political climate and the fact that First Nations do not have a final say over the legislation and in fact very little input into the drafting process. Any amendments to a law will again be in the hands of the Canadian government and not First Nations governments. This is not First Nations control over First Nations Education. 
 
This is not an easy issue to grapple with and as leaders and educators struggle with an issue for all of First Nations in Canada on October 1st, I hope they can find a multi pronged approach to dealing with education and a strategy that can truly help keep our children in school, graduating and going onto furthering their education and skills. Let's not let another Act be folly for First Nations but let us find what will work within First Nations authority and jurisdiction and not having another government decide what is best for us - again.

 

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