MYTHS AND FACTS 1. What is wrong with the current system? Who is asking for a new system for education on reserve? First Nations are not asking for a new system of education on reserve. First Nations are formulating education laws to assert their jurisdiction, developing new and modern funding formulas as well as cultural and linguistic paradigms for pedagogy and curriculum to meet education standards that exceed those of the province. Education reform is a dynamic and constant process in First Nations education systems. Our professional educators seek to meet the goals of cognitive excellence, be responsive to the social and emotional needs of students, respond to the demands for the development of optimal physical capacity within a framework of the cultural, linguistic and spiritual foundation needed by youth to live balanced, productive and healthy lives. Without a doubt the education systems run by First Nations have grown and matured since the 1960 s day school system run by AANDC. Their growth and success has not been due to the conciliatory nature of AANDC, but because some First Nations have consistently fought AANDC for jurisdiction, control, governance, and increased funding levels to build their systems for parity with those of the surrounding School Boards of the province. More institutional structure needs to be built. Demands by First Nations for second level services such as those provided by School Boards and for third level types of services offered by a Ministry of Education are the next stage of development required for First Nations education. Partnership is the key concept in the next evolutionary stage of development of systems. To date, the history of any AANDC/First Nations partnership continues to be socially engineered as power based and unequal. What is wrong with the current system? Every day the vast majority of First Nations educators and leadership tackle the attitudes, policies and funding limitations imposed by federal and provincial governments. The locus of control of First Nations education program decision-making, funding levels and assessment of standards is in AANDC in Ottawa, not in the hands of most First Nations Governments in Ontario. 1
The NIB policy of Indian Control of Indian Education from 1972 and the AFN policy of First Nations Control of First Nations Education from 2010 continue to be window dressing for the government of Canada to ensure that Canadians believe that First Nations have control over their systems. Real control lies in the hands of those at AANDC through the Indian Act with access to the money from Treasury Board. First Nations have inherited an old program based system of education from the 1980 s from the education division of AANDC. This type of education system has a long history of being centralized in Ottawa, funded by Treasury Board based on AANDC submissions, and managed by an education directorate that in no way resembles the professional staff of a Ministry of Education. Old funding formulas from the 1980 s called Band Operated Funding Formulas (BOFF) are still used today to fund First Nations schools. This formula was never intended to run a modern education system. The current systems on reserve now are largely a mirror of the planning processes of AANDC who hold funding authority and determine program frameworks under which First Nations can apply annually for funding. Program changes occur on a regular basis, which means instability. The question is not whether there is something wrong with education systems on reserve but what is wrong with colonial attitudes of government that persist over 150 years in determining educational priorities, goals, programming and funding levels for First Nations education. Those curricular and education standards types of decisions need to be made at the level of the First Nation School Authority in compliance with the First Nation Government who hold jurisdiction over education for their members. First Nations are now asserting jurisdiction to make decisions locally for governance, management and delivery of education programs. First Nations are developing their own funding formulas based on need, indexing to current costs, using escalators to catch up to provincial school board funding after decades of underfunding by AANDC since the 2% cap in 1996, factoring in geographical remoteness for costs of delivery, and raising teacher salaries to parity with those of provincial counterparts. The Government of Canada needs to redefine its relationship with First Nations Governments politically in order to re-build its own internal system of education funding delivery. The federal government should recognize First Nations Governments jurisdiction over education and see its own role as a funding agent only. 2
2. The consultation process was not comprehensive and did not include all First Nations. According to government perceptions, the consultation process was wide ranging, open and conducted within reasonable time limitations through 8 regional meetings, webinars, web site commentary, and meetings with First Nations leadership. In its design of consultation processes, the Government of Canada is treating the First Nations as special interest groups not rights holders with constitutionally protected rights. The perception of consultation to First Nations is contrary to that of the Government of Canada. As a Rights Holders of inherent rights and Treaty rights, each First Nation member, through its leadership, is entitled to be consulted where there is potential endangerment to rights. First Nations must be provided the opportunity to express opinions in local community meetings where the Government of Canada representing the Crown is present such as at Treaty making times. Deep consultation is required where the rights at play are well established, the rights and their potential infringement are of high significance to the Aboriginal peoples involved, and the risk of non-compensable damage is high. (Haida Nation vs. British Columbia, 2004, para. 44) As education is a key aspect of the right to self-government and self-determination, the First Nations Education Act has the potential to cause very significant infringements. Therefore, in contemplating the adoption and implementation of the First Nations Education Act, the Crown owes First Nations a duty of deep consultation-that is, a duty to consult with the aim of arriving at a satisfactory solution to accommodate First Nations rights and interests. (Haida, para 44) Where the Crown is contemplating a course of action or a decision that could have a negative effect on established or aboriginal rights, it must consult with the relevant aboriginal groups and if appropriate, seek to achieve a reasonable accommodation of their rights. (Legal Opinion, Hutchins Legal Inc., 2013) The duty to consult is triggered by decisions with high level strategic consequences. (Woodward, Native Law, 2011) 3
3. First Nations would be forced to join provincial school boards, or fall under provincial ministries of education. The Government of Canada is proposing to shift the current governance structure of First Nations education managed by the First Nations Government and its subsidiary School Authority, School Board or other delegated authority for the past 40 years. In the draft FNEA, the federal government states that the First Nation Governments must select one of their three options to receive federal funds to run the education system: 1. Continue to operate a community school under the authority of the First Nation Government; however, no funds will be forthcoming from the federal government for education resources or administration 2. The education system can be aggregated with a First Nation Education Authority designed and authorized by the federal government. 3. Or the First Nation Government can abandon the right to run their own First Nation education system and sign jurisdiction to the province for the application of provincial laws on reserve. Why are community schools managed by First Nations penalized by being denied funding for education resource and administration dollars if AANDC is supporting inherent rights, treaty rights and First Nations control of First Nations Education? What are the funding implications for those First Nations who are taking jurisdiction over education as their right and creating new schools under their jurisdiction? Why are the governance options tied to the funding options preferred by the federal government as option two, aggregate with a First Nation Education Authority or option three, delegate jurisdiction to the province to run Schools on reserve? 4
4. The legislative proposal would create a Ministry of First Nation education or other national level body to govern schools. The draft First Nations Education Act places all authority for decision making in the hands of the Minister of AANDC in section 34. AANDC still retains control and authority much like the Indian Act of the 1873. The Minister has all of the authority and none of the liability, while the First Nation Government has all of the liability and none of the authority. 5. The legislative proposal would increase the reporting requirements and increase the burden on First Nations. The Government of Canada has made no effort to disclose the new reporting requirements that accompany the proposed First Nations Education Act. Currently First Nations report quarterly and annually to AANDC in thousands of pages of reports with data in order for funding to flow consistently. Without AANDC approval of those reports from First Nations, no further funding would flow. Therefore, AANDC must already have an adequate reporting system in place for First Nations. How much more accountability or transparency is required? 6. The legislative proposal would cause gaps in education services. The proposed First Nations Education Act does not contain any information on funding formulas, funding arrangements, or mechanisms. Changing a system means discussions on funding come first to properly plan outcomes and methodology. Equitable partnerships of government and First Nations are a prerequisite to such important work. Gaps in services are more likely when deep consultation has not occurred with First Nations. 5
7. The legislative proposal would be a top down approach and First Nations will not have control over education. From the residential school system and day school system of the 1970 s, the devolution policy of AANDC was instituted in the 1980 s to provide First Nations with administrative control over their education systems. Real control was still held by AANDC under the Indian Act, sections 114-122. The proposed First Nations Education Act continues to vest authority in the Minister of AANDC as described in section 34 and in various other sections particularly regarding third party management by a Temporary Administrator should the Minister decide that a First Nation is not meeting financial or educational standards. Little priority is given in the draft FNEA to language or culture, but much attention is given to accountability. 8. What is needed is more money and First Nation education on reserve will improve greatly. Studies have shown in Manitoba at the Frontier School Board that education on reserve improved exponentially in achievement levels and attendance when more funds were provided to the reserve school to match the funding at the local schools off reserve. First Nations students have human rights expressed in the right to an education of the same quality of access and opportunity as Canadian students regardless of where they live. Since 1996, a 2% cap has existed for First Nations education, thus preventing growth of education systems to rise to match the rise in the First Nations population and costs of living during an 18-year period. Provincial School Board budgets have grown 4%-7% annually during this time while First Nations education budgets rose only 2% annually. The result is that the fastest growing segment of the Canadian population has been institutionally underserviced for decades. The Auditor General has identified a 28-6
year gap until the graduation rates of First Nations students reach the same levels as that of the Canadian population provided equitable funding begins immediately. It is interesting to note that the beginning of the education gap in achievement levels closely mirrors the period of government policy to restrict First Nations education budgets to 2% per year. The infrastructure for school systems for capital planning is decades behind as the need for replacement or repair of schools lags behind in First Nation communities due to small allotments of capital funding from the federal government and long waiting lists for building and repairs. 9. The proposal for legislation would infringe on Aboriginal or treaty rights. How does the proposed legislation honour treaty and inherent rights for lifelong learning? How does the draft legislation specify funding formulas or mechanisms for First Nations education? How does the proposed Bill safeguard cultural and language and spiritual traditions of First Nations? How does the FNEA specifically recognize the jurisdiction over First Nations education by First Nation Governments? None of these critical pieces are addressed to the satisfaction of the First Nations leadership and their professional education personnel in the draft bill of the FNEA. 10. The draft legislative proposal speaks of regulations that would be developed once the Act is in place. First Nations and stakeholders would not be able to influence or shape the development of the regulations, and this is just a hidden way to force changes on First Nations. Each of the draft papers created by AANDC to describe the proposed First Nation Education Act has followed the same pattern of authority and governance with more details added each time to their framework. The Discussion Guide released in 7
December 2012 was a framework followed by the Blueprint in July of 2013 and the Draft Proposal for a Bill in October 2013 that offered more particulars. It is notable that many of the comments of First Nations made during the information sessions in 2013 were subsumed in the foreword to the draft bill and not part of the bill itself. Given the belief that First Nations opinions were not adequately addressed in writing the draft Act and that the method of producing the Act was unilateral by the federal government without First Nations at the table, it is safe to assume that significant First Nations representation to draft the regulations will not occur. Reform first, funding discussions later as stated by Minister Valcourt is not acceptable as equitable or fair as business practice. 11. The legislative proposal would take a one size fits all approach to First Nations education. The draft bill has taken a one size fits all approach in governance by only offering 3 options to organize a local education system without acknowledgement of 4 decades of building education systems and infrastructure by First Nations Governments. Regionally and locally there have been First Nations education laws, tripartite agreements and Memoranda of Understanding in place that structure education systems for thousands of students. These agreements will no longer be valid once the FNEA comes into effect. How can AANDC declare to uphold First Nations control of education? 12. The federal government would be simply passing the problem and challenges of First Nation education into the hands of First Nation communiies. A national law in First Nations education is needed for the federal government to authorize its own statutory obligation to fund First Nations education for life long learning and direct its federal departments with regard to funding and authorities. The law is not for First Nations but for the government of Canada and its departments and Treasury Board. 8
The law must also specify the re-alignment required in relevant federal and provincial laws to support First Nations jurisdiction over education. Subsequently, AANDC should restructure its own departmental structure to shift from education administration to education funding. Ontario Native Education Counselling Association -2014 Prepared for the Ontario Native Education Counselling Association Author Kahontakwas Diane Longboat Jan. 18, 2014 9