UNDERSTANDING BILL C-33: “FIRST NATIONS CONTROL OVER FIRST NATIONS EDUCATION (FNCFNEA)”: A GUIDE

 

 A controversy and political backlash has arisen over the contents of Bill C-33 the so called “First Nations Control over First Nations Education Act” since it was tabled in parliament on April 10, 2014.

 In a grandiose fashion, the National Chief Shawn Atleo, Prime Minister Harper and AANDC Minister Bernard Valcourt on Feb. 7, 2014 announcing $1.9 million dollars in funding for secondary education over several years and a framework for First Nations control over First Nations Education.  Harper said it was done with “unprecedented consultation “ though I am not sure he consulted with other than the National Chief, and a few others. Why the National Chief would blindly accept a framework without having reviewed it shows a lack of political savvy for surely if he was aware of what is now in Bill C-33, would he have been so quick to get up publicly in Standoff and announce a “wonderful deal”.   

 It is surprising to me that the National Chief didn’t insist on First Nation people helping to draft the “First Nations Control over First Nations Education” or at the very least, the chance to review the legislation and make changes before it was tabled.  All of this is possible if there is political will and in other instances, I am aware of that Atleo has been party to those kinds of processes. 

 On the defense, Atleo says he gave the 5 principles to the PM and Minister to incorporate in the draft.  Atleo is not that naïve to have expected the government to understand and incorporate those 5 principles into the legislation.  He knew what would happen.  Why didn’t the National Chief insist on a strong role for First Nations people in the drafting of the legislation? That it should go to First Nations for review and consultation before it was tabled.  No wonder it has been a disaster in its acceptance with First Nations across Canada. Once legislation is tabled, it is difficult to get amendments.

 I would like to provide a guide to Understanding the “First Nations Control of First Nations Education” described as a “framework” to enable First Nations control of elementary and secondary education. Hopefully such a guide will help people more fully understand the almost total control of First Nations by the Minister of AANDC. A.   

A. WHAT IS PURPOSE OF ACT?  s. 3

 The purpose of the Act if to provide “control” to First Nations of their education by allowing Chief and Council to ADMINISTER schools on reserve. 

 ***Note the lack of governance and jurisdiction in this section which was one of the conditions the Chiefs set for any federal legislation.

 B.    TREATY and ABORIGINAL RIGHTS  s. 4

 The Act does not take away in whole or in part treaty and aboriginal rights. 

 ***Does not acknowledge right to education is a treaty or aboriginal right which was one of the 5 conditions Chiefs gave for proposed legislation

 C.    WHO DOES ACT APPLY TO?

 Applies to all First Nations with schools on reserve-list of exceptions next

 D.    WHO DOES ACT NOT APPLY TO?  s. 5

 1. First Nations in BC who are named in the schedule to the First Nations Jurisdiction over Education in BC.  To date, no First Nations in BC have become a participating First Nations under this Act.  63 First Nations submitted Letters of Intent and 14 are negotiating agreements.  So at the moment, Bill C-33 applies to all First Nations in BC.

 2. Sechelt First Nation  (have own Self Government Act)

 3. Any First Nation named in a schedule to the Mi’kmaq Education Act

 4. Any First Nation with power to make laws for elementary and secondary education by an Act of Parliament or a self-government agreement.

 E.    STATUS/CAPACITY  of C&C  s. 6

 This act says that the Chief and Council have the capacity, rights, powers and privileges of a natural person. 

 ***Note:  Giving the Chief and Council the powers of a person does not in any way recognize First Nations as governments or acknowledge their jurisdiction.  This is very disrespectful and unacceptable.  (takes 3-12 C&C members to make one person)

 F.    WHO ISSUES DIPLOMAS FROM SCHOOLS? S. 7(2)

 1.    Minister of Education of Province

 2.    First Nation- if the graduation certificate is equivalent and has been approved by Minister of AANDC.  The requirements for this will be in a regulation that has yet to developed and passed by House of Commons.

 3.    An International Baccalaureate Foundation if an International Baccalaureate diploma

***Note: If First Nations had control over First Nations education, they would not need the approval of the Minister of AANDC

 G.    RESPONSIBILITIES/POWERS OF CHIEF AND COUNCIL (C&C)

 1. Access to Education  s. 7(1)

  • Must provide access to elementary and secondary education to any persons aged 6-21 living on reserve  (not just to First Nations members-all people) (age of majority in Indian Act is 18 so not sure why it is for up to 21 year olds.) s/ 8(1)
  • If the C&C provides a program for 4 & 5 year olds, it has to be offered to all 4&5 year olds. 
  • Chief and Council may also delegate their power to  a First Nations education authority (must be a corporate body)  to enter into tuition or administration agreements
  • C&C or First Nation Education Authority cannot charge tuition or other fees for attendance at school. (s.9). Can charge for optional activities or deposit for using education materials and school equipment. (s. 26)

 2. Passing By-laws

  • C&C can pass a by law to make children 4, 5 and 17 years of age go to school-C&C will set date known as the reference date to which the age of children will apply.  Can be anywhere from September 1 to December 31. 
  • C&C can pass a by law making 18 year olds who live on the reserve attend school  s. 8(4)
  • C&C can only pass a by-law requiring children 4 & 5 years old to attend school if they have a program to offer them. S. 8(6)
  • C&C can pass by laws about persons who do not live on the reserve but come on reserve to go to school  s. 30(1)
  • Council has to publish their by laws on their website, in the First Nations gazette or First Nations paper that is read on the reserve s. 47(1)
  • Council has to provide a copy of the by laws to any person who asks s. 47(2)
  • By-law comes into affect on day that it is put on website and placed in paper s. 47(4)
  • By-laws are not Statutory Instruments  s. 46(7)
  • A by-law certified to be a true copy by an officer of the First Nation is proof of the original by-law.  S. 47(7)

3. “Governance”  S. 20 AND 21

  • C&C may administer one or more schools on reserve S. 20
  • Set annual budget and provide Minister and JCEP with a copy
  • Have policies and procedures around financial management
  • Establish education programs
  • Set school policies including registration and attendance
  • Approve a school success plan, provide copy to Minister and JCEP, make it public and watch over its implementation
  • Watch over quality of education
  • Manage schools’ property
  • Approve a school safety plan
  • Prepare an annual report any other reports required by the regulation and provide to Minister, JCEP, and make them public
  • Make sure public has any information that is meant to be public
  • MAY give students an opportunity to study First Nations language or culture
  • May enter into contracts for services relating to human resource and other services they are required to provide to operate the school
  • Offer programs in the language of choice English or French, with the addition of the First Nations language-only as set out in regulations

 4.    Tuition Agreements (s. 23 and 24)

  • C&C can enter into tuition agreements with a responsible authority/First Nations Education authority or other entity under provincial legislation for schools on reserve.
  • C&C can enter into tuition agreements with province when non residents come onto reserve to go to school s. 30(2)
  • C&C can set the tuition for non residents who come on reserve to go to school whose tuition is not covered by agreement with province s. 30(3)

 5.    Community input (s. 25)

  • C&C must seek all members, parents of students, advice on school’s success plans, school policies, extra-curricular activities and education program including language and culture.

 6.    Delegation by C&C to Education Authority (s. 27)

  • C&C may delegates its authorities to administer schools on reserve (s. 20-23) and all of the governance areas listed in G3 above.  They can also delegate community input (s. 25) and optional activities fees (s. 26)
  • C&C can delegate its authority to a corporate body that has been incorporated under federal or provincial authority.
  • C&C has to delegate all of the authority under this section, cannot keep part of it.
  • Regulations will set out what must be in agreement
  • Corporate body must give Minister a copy of its agreement and any amendments
  • The corporate body must be designated by the Minister as a First Nation Education Authority.  Minister will seek the advice of the JCEP before the designation is made.
  • Once designation is made Minister will tell corporate body and C&C and will post on list on AANDC website.  (s. 29)
  • Minister may take away designation if the agreement to delegate is not in keep with Act and Regulations.  Has to seek advice of JCEP before it takes away the designation.  A temporary administrator may recommend revoking the designation (s. 42(1))
  • Minister will tell corporate body and C&C when designation is taken away

 7.    Provide input to JCEP

  • Provide input to JCEP regarding the 5 year review about how the Act and regulations are working and issues around it. S. 49(2)
  • Provide input to JCEP regarding the regulations that the Minister will pass  s. 48.

***Note:  C&C can also delegate their authority to enter into tuition agreements and administration agreements under s. 23.  Why would a C&C delegate that to a First Nations Education Authority who then enters into another agreement with another body?

 H.   RESPONSIBILITIES/POWERS OF JOINT COUNCIL OF EDUCATION PROFESSIONALS  (JCEP)

 1. Composition of JCEP

  • A Joint Council of Education Professionals is established  s. 10
  • Will have 5-9 members.  S. 10
  • Cabinet will appoint 1-4 members to the JCEP  s. 12(1)
  • “any entity representing First Nations interests” will appoint 1-4 members to the JCEP  s. 12(1)
  • Members will be appointed for 5 years.  Will stagger appointments so no more than 3 members change at a time.  S. 13(1)
  • Cabinet will appoint Chairperson of Board on advice of Minister who has consulted with “any entity representing First Nations interest.” 12(2)
  • Cabinet can take away appointments at any time.  The Chairperson or a person recommended by “an entity representing First Nations interests”, Minister must consult with them before removing that person.  S. 14

 2. Who is eligible to be on JCEP?

  • Persons with knowledge of or experience in elementary or secondary education  (note:  Not solely First Nations persons)  s. 12(3)
  • Cannot be a non Canadian citizen, member of the Senate, House of Commons or the legislature of the province, work for federal government, be on C&C or on the board of a tribal council.  S. 12(4)

 3. What will JCEP do?  S. 11

  • Will advise Minister of AANDC, C&C, and First Nations Education Authorities on any matter that deals with FNCFNEA.
  • Minister must seek advice of JCEP when required under FNCFNEA.
  • Minister can add more responsibilities to JCEP after consultation with “any entity representing First Nations interests”  (not defined in act-could just be AFN National Chief or one regional chief)
  • Do a review every 5 years of the Act and regulations  s. 49(1)
  • While doing review, JCEP must hear First Nations representations and take that into account while doing review s. 49(2)
  • Review Report must be submitted to the Minister within one year from the date review is started s. 49(3)

4. Process of JCEP

  • JCEP will appoint a Vice Chair  s. 15(1)
  • If Chair not able to act, Vice Chair can fill the position for up to 90 days. S. 15(2)
  • Must meet at least 3 times a year  S. 16
  • Will be paid according to rate set by cabinet and be reimbursed for reasonable travel expenses (not paid out of Education money set aside by Cabinet for First Nations education)  S. 17
  • Will make rules on how meetings are run  S. 18
  • Minister will provide administrative services to JCEP (if this is a person on staff with government-that is not independent. If JCEP can hire someone would be better)  S. 19
  • Other duties as assigned by Minister

 I.      RESPONSIBILITIES OF PARENTS (parents include anyone who has custody) 

  • Parents with children aged 6-16 must have their children registered in a school in the province. S. 8(1)
  • Parents living on reserve have to give a copy of the registration to the Chief and Council.  S. 8(1)
  • If there is a by law in place by C&C, then children ages 4, 5 and 17 are included and must go to school.   S. 8(3)
  • Parents must make sure their children go to school  s. 8(3)
  • Home schooling can be done but must be within the regulation that has not yet been drafted.  If registered with a provincial school to do home schooling, must be done within the laws of the province.  (S. 31(1))

 J.      RESPONSIBILITIES/POWERS OF MINISTER of AANDC

  • Designate or revoke a designation of a responsible authority (Chief and Council or corporate body) to be a First Nations Education Authority (s. 27(3))
  • Appoint a temporary administrator to administer the schools-s. 40(2) or revoke the appointment of the temporary administrator s. 40(4)
  • Ask Responsible authority to appoint a Special Adviser s. 39(2)
  • Seek advice of JCEP before: appointing a temporary Administrator (s. 40(1)), designating or removing designation as a First Nation Education Authority (s. 27(3)), entering into a funding agreement with a province or provincial entity (s. 44(1)), and pass regulations s. 48
  • Will recommend to cabinet the amount of money every year for First Nations education  s. 45(1)
  • Must pay amounts to responsible authorities to administer schools s. 43(1)
  • Pass regulations under s. 48
  • Recommend to cabinet 1-4 names to be appointed to JCEP S. 12(1)
  • Recommend to cabinet who should chair the JCEP and when they should be removed.  S. 12(2)
  • Can approve a school inspector that does not have the required qualifications if it necessary and fits within the regulation yet to be drafted. S. 37(2)
  • Minister must table the JCEP 5 year review report in the House of Common within 6 months of its receipt. S. 49(4)
  • Minister may also table his own report on operation of the act and regulations and the operation of the JCEP s. 49(4)

 K.    OPERATIONS OF SCHOOLS  s. 32-34

  • The C&C/First Nations School authority (called the responsible authority) must provide instruction, access to educational materials, school equipment and transportation.  (s. 32)
  • Must provide any other services as is required by the regulations that have yet to be drafted. 
  • Must provide services for the management of human resources, information and information technology, finances and property (s. 33)
  • Must have insurance that is required by regulation and have an insurable interest in each school it administers. (s. 34)

***Note: FNCFNEA requires the hiring of a Director and a principal.  It makes a school very top heavy in administration.  The Act does not reflect that there are smaller schools who can not afford to have two high level administrative positions.  Most schools have always operated with just a principal and bringing in a Director will really change how schools will operate.  May bring up constructive dismissal issues for the principal as their authorities will be taken away and changed.

 L.    RESPONSIBILITIES/POWERS OF DIRECTOR (s. 35)

  • A Director MUST be hired for every school on reserve
  • Will supervise the day-to-day management and operations of the school
  • Will implement school policies
  • Establish policies for students with special needs-so that they may be part of schools education program
  • Manage human resources, hire principal and teacher who are in good standing with the right qualifications
  • Make sure there is the required instructional hours and days, set school years and terms, holidays and professional days
  • Provide a record of students and give copy to Minister
  • Set up policies for the collection of information on students, teachers, staff and ensure the protection of the information
  • If students have special needs that does not allow them to participate in
    the education program, must still provide them with education at no cost to the student
  • Director cannot be a member of C&C if the council administers the school or if the Council is a party to an agreement with a First Nations Education authority.

 M.   RESPONSIBILITIES/POWERS OF PRINCIPAL (s. 36) 

  • Is under supervision of the Director
  • Must prepare and implement a school success plan
  • Implement the schools education program
  • Plan extra-curricular activities
  • Plan schools daily schedule
  • Supervise teachers
  • Evaluate students based on grade level, schools education program and the culture of the First Nation
  • Send reports to parents regularly on student progress
  • Implement policies of school including registration and attendance
  • Provide a safe learning environment
  • Attend to student well bing
  • Ensure maintenance of school
  • Provide information to Responsible authority, director and school inspector
  • Cannot be a member of C&C if the council administers the school or if the Council is a party to an agreement with a First Nations Education authority
  • Must follow direction of Temporary Administrator if one is ever appointed.

 N.    School Success Plan (s. 36(2)) 

  • Sets out educational objectives with a time frame as to when the objectives will be accomplished
  • Must have measures for preparing students so they continue with post secondary institutions or to enter the work force
  • Must prepare students to enter into their next school year successfully

 O.    School Inspector (s. 37)

  • Schools must hire an inspector
  • Cannot be the Director or Principal
  • Must do inspections as set out in regulations (yet to be drafted)
  • Must be qualified by provincial laws to inspect schools
  • Minister can approve the hiring of a person not qualified to inspect schools if he thinks the circumstances warrant it. (qualifications for such person will be in the regulations)
  • Will verify the programs, policies, procedures and plans required under this Act have been set up and are being carried out.
  • Evaluate whether the school is meeting the objectives in its success plan
  • Other duties as set out in regulations
  • Must prepare a report on this work and make recommendations to remedy any deficiencies.
  • Report must go to the responsible authority.  If it is a First Nation Education Authority, it must also go to the Chief and Council. 

 P.    Compliance with the Act After Inspector’s Report s. 39

  • Responsible authority has to provide inspector’s report to Minister within 10 days.  If Responsible authority is C&C, must provide report to JCEP as well.
  • If there are deficiencies or issues in the Inspectors report, the responsible authority must take action to fix the problems.
  • Minister can require the Responsible authority to employ a special advisor to provide advice on the development and measures that were recommended.  Minister must seek advice of JCEP before doing that.

 Q.    Temporary Administrator

  • Minister may appoint a temporary administrator for a specific time period to administer the school.  Again, will seek advice of JCEP before appointment. Can appoint temporary administer if:

i)          Minister is not provided with a copy of the inspectors report

ii)            If there are significant problems on non compliance with the Act and no adequate measures have been put in place to remedy the situation

iii)          Minister believes immediate action is need to deal with a significant risk to the students

iv)           Minister believes because of serious financial difficulties, the responsible authority will not be able to deal with the significant risk and bring school back into compliance with the Act.

  • Minister must appoint a temporary administrator that is qualified to administer schools in the province or other person who is otherwise qualified to administer a school
  • Temporary administrator  can carry out any function of the responsible authority that the Minister sets out after consulting with JCEP. 
  • The responsible authority cannot exercise or carry out any of its functions while temporary administrator is in place. 
  • Minister can remove temporary administrator at any time after consulting the JCEP. 
  • Director, Principal, teacher and staff must assist temporary administrator and follow any direction of that person.
  • Temporary Administrator must submit a report to Minister and JCEP telling what step were taken to remedy the problems and recommend future measures.
  • Temporary Administrator may recommend that the designation for a First Nations Education Authority be revoked.  (s. 42(1))
  • Temporary Administrator must give report to the First Nations education authority and C&C
  • Report of Temporary Administrator must be in 30 days or earlier, before the end of their appointment.
  • Minister can terminate appointment of temporary administrator if he believes problems have been fixed
  • Minister upon receiving report and consulting with JCEP can revoke the designation as a First Nations Education Authority. 

***Note:  The Chiefs resolution called for the development of mechanisms for reciprocal accountability with no unilateral federal oversight or authority; None of this is present in the act, as it is all about unilateral federal oversight.  Consulting with the JCEP that has no power would not be considered reciprocal)

 R.    FUNDING  (s. 43) 

  • Minister will pay to responsible authority for each year as set out in the regulations
  • Payments will be based on services provided under the act
  • Payments must be comparable to that of similar services offered by a public school in the province and is in the region
  • In the region means the same province and area has similar geographic and demographic characteristics.
  • Must include payments to support language and culture.
  • Must include payments to manage property of the school
  • The total amount for First Nations education cannot exceed that which is set by order of the Cabinet for the fiscal year.  The minister makes a recommendation to cabinet on the amount after conferring with the Minister of Finance. S. 45(1)
  • Minister must pay amounts set out in an agreement with a responsible authority-to First Nation or First Nations Education authority s. 44(3)

 Provincial agreements s. 44(1) and (2)

  • Minister may enter into agreement about funding with province or an entity administering a school under provincial law if the agreement is necessary to carry out the Act.  Minister must seek advice of JCEP before doing this. 
  • Minister has to pay the agreed upon amount to the provincial government or other entity.

(***Note: The Chiefs resolution required a statutory guarantee of funding, including a predictable annual growth rate to ensure funding keeps pace with costs of delivering quality education; This of course is not included in this proposed Act. Another reason this act should not be accepted and shows the need for First Nations themselves being involved in the drafting and content of a federal Act if there is to be one.)

 S.     Liability of Minister s. 46

  • Minister is not liable for anything done by JCEP, C&C, First Nations Financial Authority, director, principal, inspector or temporary administrator or any person exercising powers under this act.
  • No action can be taken against Federal Government, Minister, or employee of the federal government, a member of the JCEP, temporary administrator for anything done or not done in good faith in exercising powers of this Act.

 T.    UNCERTAINTIES:  COMPREHENSIVE REGULATIONS YET TO BE DRAFTED AND PASSED

  • Minister can pass regulations to carry out the act but must first seek the advice of the JCEP.
  • JCEP must give First Nations an opportunity to make representation and consider their input fully before giving advice to Minister.
  • Regulations will include

i)              First Nations ability to give out graduations certificates and diplomas

ii)             How budgets must look and contain

iii)           What must be in schools annual report and what must be public

iv)           What language of instruction means and what extent the use of First Nation can be used as a language of instruction

v)             Management of human resources-all hiring of all positions

vi)           What must be in a school success plan and safety plan, what must be in school policies including registration and attendance, policies on students with special needs and management of information

vii)          How school property is managed, operated and maintained

viii)        What must be in a delegation agreement, and how designations are made and revoked

ix)           Tuition and administration agreements-what should be in them and the conditions for how the Minister will  approve these agreements

x)             How home schooling can be done

xi)           Minimum requirements for instructional hours and days

xii)          Required insurance

xiii)        What would be in a record of student registration and how to provide copy to Minister

xiv)        How school inspections are to be done, what needs to be in inspectors report, qualifications of the inspectors

xv)          How to calculate the amount of money needed for First Nations education

xvi)        How information for purposes of the Act is collected, used, disclosed, retained and disposed of

xvii)       Prescribing anything that the Act prescribes (anything and everything) 

  • Regulations can incorporate by reference provincial laws with any adaptations the Minister thinks is necessary
  • Regulations can be passed for each province

***Note:  Regulations will be comprehensive for every area of education.  There is no First Nations control.  First Nations can only make representations to the JCEP and not be consulted fully.  The fact that the Minister can incorporate provincial laws guarantees that the regulations will not be based on First Nations values and needs.  The Chiefs resolution for terms needed in a Federal Education law included “ongoing meaningful dialogue and development of options by First Nations and Canada for an enabling framework that will ensure the success of First Nations students and schools”  The way this act is structured, this is not a framework, this is a comprehensive, detailed method of how to run a school on reserve from who needs to be hired, what polices are needed and what must be in them. 

CONCLUSIONS

 If you have read blog through, and I realize it is long, but it sets out logically who does what and how, you realize why First Nations across this country have rejected this act.  The title of the Act is “First Nations control of First Nations Education” is a farce.  This is the Minister’s control of First Nations Education.  The conditions the Chiefs set out in the Assembly of First Nations resolution December 2013 are not fulfilled.  The National Chief did not take control of the agenda and be active in the drafting of the legislation to ensure the Chief’s conditions were incorporated with the full spirit and intent of those conditions.  The Federal Government will never learn how to work with First Nations in drafting legislation that impacts them if they solely follow the direction of the National Chief.  It is the First Nations that must be talked to, involved, and approval sought. 

 Education is key to First Nations’ members. Our future is dependent on quality education with First Nations values, culture and language.  The solution for First Nations control of First Nations education must come from First Nations themselves and not the federal government who has illustrated more than once that they do not have a clue on how education should be carried out on reserve.  Putting a title on an Act does not mean it is so.

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