April 25, 2014 ANALYSIS OF ASSEMBLY OF FIRST NATIONS ANALYSIS OF BILL C-33, FIRST NATION CONTROL OF FIRST NATION

EDUCATION Introductory Note: While one might hope that the AFNs analysis is objective, the fact that the AFN had already virtually endorsed the Bill before it was tabled and has since said it meets all the conditions set by the Chiefs in Assembly in Gatineau on 9 December 2013, including adequate consultation and some measure of joint drafting, it is not in a position now to be overly critical of the Bill. In the text below, the original AFN analysis is interrupted from place-to-place by this independent analysis in indented paragraphs in bold italics.

Analysis: Bill C33 First Nation Control of First Nation Education

April 24, 2014

CONTEXT : THE STATUS QUO AND FORTY YEARS OF EFFORT TO ACHIEVE CHANGE To conduct an analysis of current efforts in advancing First Nation Education, it is important to first recall what currently exists in Canadian law under the Indian Act. At present the Minister has absolute and sole authority over every aspect, including outdated and highly objectionable authorities from the residential school era.

The statement is inaccurate. The Indian Act provides only that the Minister may decide which school a child shall attend, and that power is obsolete and unused. Beyond that, any control the Minister exercises is through contribution agreements for funding. These are entered into independently of the Indian Act. The statement also ignores an extremely important point: Bill C33 would give the Minister great powers which he does not have at the present time. The Bill could be accurately titled, Increasing Ministerial Control of First Nation Education.

Moreover, under current systems, there is no recognition of First Nation language and First Nation culture . . .

Neither is there any current prohibition of First Nation language and culture. First Nation schools already teach language and culture if they choose to do so. The permission of the Minister is not required. Under Bill C33, however, the Minister may pass regulations which will set out how language and culture will be taught, the amount of money which can be spent for that purpose, who is qualified to teach language and culture, and whether the laws of the province apply to the teaching of language and culture. The end result is that the First Nation will have less control over the teaching of language and culture than it has now.

-2 [Moreover, under current systems] . . . [there are] arbitrary funding allocations on an annual basis as well as restrictions and regulations imposed through contribution agreements. The arbitrary funding allocations now done as a matter of policy through contribution agreements will under Bill C-33 continue to be done under authority of statute. S. 45(1) of Bill C-33 provides:
45. The aggregate amount that may be paid by the Minister under this Act in any fiscal year must not exceed the amount that is specified by order of the Governor in Council for that fiscal year. The order is made on the recommendation of the Minister with the concurrence of the Minister of Finance.

In other words, despite any other provision of the Act, the Minister will set a total amount that can be spent. At this time the government has announced that rather than the current cap of 2% on increases to funding, there will be a cap of 4.5%. Schools will have to accommodate inflation, increases in enrollment, increases in the costs of education as the result of new technologies, etc., accumulated deficiencies in funding over many years within the 4.5% limit. Further, such funding allocations have been subject to caps and cutbacks for the past 15 years and beyond.

Bill C-33 gives authority of law to the Minister to make whatever caps and cutbacks he wishes to make. This is greater control which is now possible through contribution agreements. First Nation children have no right to education or access to fairness and opportunity in Canadian law. This status quo is absolutely and fundamentally contrary to Treaty, inherent and human rights and must change. Bill C-33 does not address or change this status quo. While there are hints in this regard in the Preamble to the Bill, a preamble does not have force of law. Successes achieved in First Nation education over the past forty years have been despite these incredible challenges and have been achieved thanks to the dedication of First Nation educators. Where we see increased graduation and achievement in all aspects including language and culture, it is thanks to the leadership and determination of Nations or regions to move out of the Indian Act through agreements, Acts, advancing Treaty implementation and other initiatives on their own terms.

Let us look to international instruments to appreciate the broader context and responsibilities and obligations for Canada set out in key conventions and declarations to which Canada is signatory. This year, 2014 marks the 25th anniversary of the United Nations Convention on the Rights of the Child. Article 28 recognizes the right of the child to education with a view to achieving this right on the basis of equal opportunity. The United Nations Declaration on the Rights of Indigenous Peoples sets out that States and Indigenous

-3 peoples are to work in mutual respect and partnership to achieve standards. With regard to education Indigenous peoples must have access to schools consistent with language, cultures and values, and Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages and cultures. Let us look at Article 13 of UNDRIP, Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons. Bill C-33 gives no recognition to any of these international instruments nor does it acknowledge that Canada has any responsibilities and obligations in these regards. Many First Nations are currently undergoing this transformation and reclamation. For example, on December 31, 2013 the name of the Hobbema community was changed to Maskwacis (Bear Hills), the original name. The return of the name to the traditional one is a demonstration of resilience and the incremental steps required to achieve change. This commendable change was accomplished without the benefit of Bill C-33. The change is irrelevant to Bill C-33. BACKGROUND : CONSISTENT VISION FOR OVER FORTY YEARS Beginning in 1972, First Nations engaged a formal conversation with Canada to advance a vision of First Nations control of First Nations Education (FNCFNE). Canada responded by affirming the policy paper, Indian Control of Indian Education and assured it was committed to realizing the goals outlined. In 1998, Canada provided a Statement of Reconciliation and committed to renewal and to take an opportunity to correct wrong doings and to move forward to cooperative relationships. This was to be an essential step in building trust. The Statement of Reconciliation was limited entirely to residential schools. Canada formally acknowledged past failures in First Nation education through the historic Statement of Apology - June 2008 - and committed to advancing a new beginning to move forward together, with First Nations, on the basis of reconciliation and partnership. The renewal of the Crown-First Nations relationship, including the recognition and implementation of inherent and Treaty rights is essential to rebuilding trust. Dedicated action to recognize and implement First Nation Treaty and rights is needed across all sectors as well as meaningful dialogue to support First Nation economic, social, and education outcomes. The education of our children is a fundamental and sacred responsibility and duty of our Nations. First Nations are resolved to resume our responsibility fully to First Nation education. While our ways, our rights and our responsibilities were pushed aside by the federal government in the residential school era, we are resolved to achieve this better day for our children now.

-4 These statements are irrelevant to the contents of Bill C-33. No evidence is offered nor is evidence apparent that Bill C-33 conforms with these statements. As reflected in 1972 the core values of First Nations regarding education remain the foundation of change and advancement now:

First Nations advance the centrality of our jurisdiction and responsibility to shape our children as First Nation citizens through education based in on our history, culture, values, spirituality, language and traditional knowledge. These statements are not reflected in Bill C-33. No evidence is offered nor is evidence apparent that Bill C-33 conforms with these statements. CURRENT STATUS AND MANDATE

We want education to give our children the knowledge to understand and be proud of themselves and the knowledge to understand the world around them. We believe in education: as a preparation for total living as a means of free choice of where to live and work; and as a means of enabling us to participate fully in our own social, economic, political and education advancement.

Most importantly, we have worked together over several years and have arrived at a place that can truly support and enable First Nations to drive the work forward, drive it at a local level. Every First Nation must have a full range of opportunity and options including: to determine their vision, laws, policies in relation to education, to determine options for First Nation education systems through working with other First Nations potentially as part of broader nation-building efforts or within existing arrangements with provincial systems, to advance self-government agreements or legislation or to advance a treaty implementation approach enabling a Treaty system and recognition by Canada, and to advance existing or new Memorandums of Understandings (MOUs) or other regional agreement processes to develop and enable First Nation education systems.

First Nations have continually affirmed our right, responsibility and jurisdiction to control education. There has been consistent and dedicated advocacy and support to move forward commitment and investments to make First Nation control a reality. This work requires a combination of a national effort as well as regionally and locally directed efforts and understanding of respective roles.

None of these imperatives are addressed in Bill C-33. To the contrary, Bill C-33 empowers the Minister to make regulations which would limit the ranges of options set out above.

The February 7th federal announcement signalled we are in a moment of opportunity, and that there is significant work ahead to ensure First Nations Control of Education supported through enabling legislation. This work requires dialogue and community identification of FNE and it involves all levels of First Nations participation with particular emphasis on the work in the regions.

-5 There is no analysis or evidence provided as to how Bill C-33 relates to the above statement. The enabling referred to is enabling the Minister to exercise the additional controls provided for in Bill C-33 that are not in the Indian Act. The tabling of Bill C-33 is an important and necessary first step in terms of identifying and putting in place requirements and obligations of the federal government; such requirements must be carefully considered by all First Nations to ensure that regions and individual First Nations are fully engaged in driving forward the development of regulations as well as other options to achieve First Nations control. INTERPRETATIVE CLAUSES Bill C -33 Act establishes a framework to enable First Nations control of elementary and secondary education and to provide for related funding and to make related amendments to the Indian Act and consequential amendments to other Acts.

There is no reason to believe Bill C-33 is a first step any more than the Indian Act was passed decades ago as a first step.

This language is Orwellian. In many respects, Bill C-33 actually does exactly the opposite of what this statement suggests. First Nations already have much of the control mentioned. Unfortunately, the control is limited by statements in the contribution agreements providing funding, as well as the lack of funding to make their control meaningful. This existing control, often confirmed by Treaty and recognized by international conventions (see above) will be limited by Bill C-33, and the powers of the Minister will be markedly increased.

The Bill begins with a title, purpose and preamble or interpretative clause that sets the overall scope and intent of the Bill. These sections contain references that directly reflect statements from Indian Control of Indian Education (1972) and commits Canada to a new approach of recognition and affirmation of First Nation control as the guiding principle for change.

Words in a preamble do not have the effect of committing Canada to do anything. To the contrary, Bill C-33 explicitly sets out the control which is to be held by the Minister.

These sections also contain references to language and culture, confirm that education must be child-centred, affirms the critical role of parents and families, and, provides an acknowledgment that K-12 is important but, only part of, the lifelong learning continuum.

Whereas the Government of Canada, in its Statement of Apology on June 11, 2008 to former students of Indian residential schools, acknowledged past failures in the field of First Nations education and committed to moving forward in partnership with First Nations in a spirit of reconciliation; Whereas the Government of Canada recognizes the importance of quality, child-centred education for the success of First Nations children;

-6 Whereas First Nations education systems should be designed and implemented in accordance with the principle that First Nations have control of their childrens education;

Whereas First Nations must receive support that enables them to exercise their rights and fulfil their responsibilities relating to the elementary and secondary education provided to their children;

Whereas First Nations children attending schools on reserves must have access to elementary and secondary education that allows them to obtain a recognized high school diploma and to move between education systems without impediment;

Whereas First Nations children attending schools on reserves must have access to education that is founded on First Nations history, culture and traditional values and enables them to participate fully in the social, economic, political and educational advance;

Whereas parents and families of First Nations students must have the opportunity to play a meaningful role in the academic success of their children and to ensure that their children receive a quality education that is culturally appropriate; Whereas elementary and secondary education is an essential part of lifelong learning; Whereas the Government of Canada and First Nations must have ongoing and meaningful dialogue with respect to the continuous improvement of education outcomes for First Nations children; And whereas the Government of Canada acknowledges the protection provided for existing Aboriginal or treaty rights of the Aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982 ... Simply repeating the Preamble in an analysis is not an analysis of the Preamble. The task of the analyst is to show how the Bill itself fulfils the promise of the Preamble. Such an analysis reveals, however, that the Bill utterly fails to fulfil the Preambles beautiful words and in fact works in a manner contradictory to the statements in the Preamble. Such an exercise reveals the Preamble as a cruel deception. This statement above combined with non-derogation clause below are important in relation to respecting Aboriginal and Treaty rights. The non-derogation clause is presented as follows under the heading General in Bill C-33:
4. For greater certainty, nothing in this Act is to be construed so as to abrogate or derogate from the protection provided for existing Aboriginal or treaty rights of the Aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

Whereas First Nations education systems must receive adequate, stable, predictable and sustainable funding that provides for the teaching of First Nations languages and cultures as well as for education support services;

-7 The Senate Committee on Legal and Constitutional Affairs, led in this matter by Senator Charlie Watt, has recommended that such statements should read:
Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.1 The Committees recommendation provides for non-derogation of rights. The wording of Bill C-33 speaks of non-derogation of the protections. Such a statement offers redundant assurance, since it is already provided for in the Constitution itself. Bill C-33 is deceptive in this regard.

It is important to ensure that the references made in the preamble are supported throughout the bill.

Precisely. The problem is that the preamble is not supported throughout Bill C-33.

PURPOSE 3. The purpose of this Act is to provide for the control by First Nations of their education systems by enabling councils of First Nations to administer schools situated on their reserves, to delegate that power to First Nation Education Authorities or to enter into tuition or administration agreements in accordance with this Act

There is a considerable difference between control by First Nation of education and enabling councils to administer schools. The structure of Bill C-33 is to give control over First Nation education to the Minister, and then provide for the administration of the Ministers powers at the local level. In other words, the Bill does not fulfil the stated purpose.

The purpose of the Bill sets out the overall scope and intent and, all aspects must be therefore consistent with the stated purpose. By providing for the control and also acknowledging that First Nations can delegate that power, these important statements affirm First Nation control of First Nation education.

No. The power which can be delegated by a First Nation is the power to administer schools. Bill C-33 does not provide power and control. Rather, it limits it for the First Nation and confirms it for the Minister. The First Nation position is that First Nations have the inherent right to educate their own children. This right was not surrendered at Treaty. Therefore the right continues. It is not necessary to have an Act of Parliament to confirm an existing right. What is needed is a mechanism so that right can be fulfilled and the means provided to do it. In fact, letting Parliament give the right makes it a legislated right, not an inherent right.

This is not delegation but rather, enabling recognition of First Nation control that includes the power to delegate or enter into agreements. ICIE in 1972 pressed for the direct relationship between the First Nations (Bands) and the federal government.
1

http://www.parl.gc.ca/content/sen/committee/392/lega/rep/rep05dec07-e.pdf

-8 Again, the stated purpose of the Act is to enable Councils to administer schools. NON-DEROGATION ABORIGINAL AND TREATY RIGHTS 4. For greater certainty, nothing in this Act is to be construed so as to abrogate or derogate from the protection provided for existing Aboriginal or treaty rights of the Aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982. See discussion above on this subject. The critical problematic words have been underlined.

5. This Act does not apply to (a) a First Nation that has the power to make laws with respect to elementary and secondary education under an Act of Parliament or an agreement relating to self-government that is given effect by an Act of Parliament, including a First Nation that is named in the schedule to the Mikmaq Education Act or the schedule to the First Nations Jurisdiction over Education in British Columbia Act; or (b) the Sechelt Indian Band established by subsection 5(1) of the Sechelt Indian Band SelfGovernment Act. This provision exempts self-government agreements under acts of Parliament. ACCESS TO FIRST NATION EDUCATION The next section requires that all First Nation children have access to a First Nation school and sets out standard provisions in terms of school age and access. While these provisions are largely what is currently required under contribution agreements or tuition agreements these provisions do recognize ability of First Nation to make adjustments pertaining to their circumstances.

The provisions of the Act do not recognize ability of First Nations to make adjustments pertaining to their circumstances. The only adjustments permitted are those provided for in Bill C-33. The provisions provide ability, not recognize it.

7. (1) The council of a First Nation must, in accordance with this Act, provide access to elementary and secondary education to any person who is ordinarily resident on a reserve of the First Nation and who is between the ages of six and 21 years. Thus Bill C-33 imposes obligations on a First Nation Council to provide education whether or not resources are provided to do so. Neither is there freedom of the Council in how it complies. It must do so in accordance with this Act. (2) If the council of a First Nation establishes an education program for persons who are four or five years of age and who are ordinarily resident on a reserve of the First Nation, the program must be offered to all such persons. (3) The education provided by virtue of subsection (1) must enable a student to obtain (a) a certificate or diploma issued by the Minister of Education of a province; (b) an International Baccalaureate diploma issued by the International Baccalaureate foundation; or (c) any equivalent graduation certificate or

-9 diploma approved by the Minister.2

Following the tabling of a proposed Bill in October 2013 and its subsequent rejection, First Nations were very clear that unilateral authority of the Minister was completely unacceptable and not consistent with the principle of First Nation control. As a transition step, it has been recognized that support and assistance with capacity development will be required as First Nations develop education authorities and/or self-government, other agreements or acts including Treaty implementation. The second sentence of the above paragraph is a double non-sequitur. What is the transition which is required or results from the first sentence? Also, where in Bill C-33 is there mention of support and assistance with capacity development which will be required as First Nations develop education authorities and/or selfgovernment, other agreements, or acts including Treaty implementation. The Bill is silent about such support.

The proposed Joint Council of Education Professionals is, in part, a response to First Nations insistence on reciprocal accountability. Working together, the members of the Council will support First Nations control of their education.

There is no indication in Bill C-33 or provided by the AFN analysis to show how in any way the Joint Council is in any way an instrument to provide reciprocal accountability. This term has generally meant that if First Nations are to be held accountable for the education of their children, the Minister must be accountable for providing the resources necessary to provide quality education. There is nothing in Bill C-33 which empowers the Joint Council to do much more than respond to requests from the Minister on certain matters, no obligation to follow the advice received. As advice to a Cabinet Minister, any advice provided would be confidential and protected from release. There is no obligation on members of the Council to work together nor to support First Nations control of education.

For certain, the most important element is that the JOINT COUNCIL be established with sufficient independence and legitimacy through a clear and open nomination process. The Bill falls short of providing either independence and legitimacy.

We have seen in other areas in recent years that Joint Councils have been established with regard to the implementation of regional management boards and authorities.

It is important to ensure the council is co-chaired by a First Nation education professional and that First Nation appointments of other First Nation education professionals are linked directly to First Nation decision-making processes.
2

If this is important, why is it not in Bill C-33? There is no requirement in the Bill that

The AFN Analysis offered this caveat: *This matter requires further consideration as First Nations should set the criteria for what an equivalent graduation certificate or diploma could be and possibly there is a role here for the Joint Council of Education Professionals.

-10 the members of the Joint Council be indigenous, nor that they be First Nation education professionals, nor that the First Nation appointments are linked to First Nation decision-making processes. The only requirement is that they are with knowledge of or experience in elementary or secondary education. The JOINT COUNCIL must also report and advise both First Nations and the Government of Canada on a regular basis, this ensures ongoing meaningful dialogue.

While the role of the council is to advise the Minister, councils of First Nations and First Nation Education Authorities, the only obligation to do so set out in Bill C-33 is in relation to the confidential advice it offers the Minister.

If this is what is anticipated, why is there not something to this effect in Bill C-33? If a clear and confirmed plan for this involvement is required, why is Bill C-33 silent in this regard? Minister Bernard Valcourt has formally invited the development of a political protocol with the Assembly of First Nations on this matter. Political protocols between Canada and First Nations have been used in recent efforts including the establishment and operation of the Aboriginal Healing Foundation, the effort to establish the Specific Claims Tribunal as well in regions such as in the British Columbia Health Accord. In addition, a political protocol has been suggested specifically with regards to education by regions, notably Ontario in January 2014. Political protocols have no legal meaning. A political protocol cannot contravene legislation. At any rate, there is no obligation or even suggestion in Bill C-33 that any Minister should enter into or honour such a political protocol. The examples given of political protocols were used primarily in the establishment of such institutions as the Aboriginal Healing Foundation. Such protocols so not affect the operation of the institutions. Had the Minister entered into such a protocol when the Education Act was first being contemplated, the problems he has now in tabling a Bill no one has ever seen might have been avoided. Now the Minister is asking for the Bill first to be adopted by Parliament, and to discuss the protocol after the fact. There are several options and considerations with regard to the Joint Council that includes pressing for clearly distinct regional components of the regulatory work and, designated regional representation to ensure that regional variation is fully respected. GOVERNANCE The next section describes basic functions relating to the operation of a school that a First Nation will prepare including setting an annual budget, school success plans, education

The JOINT COUNCIL is anticipated to have an important role in ensuring First Nation involvement in the proposed regulatory process. A clear and confirmed plan for this involvement as well as access points for direct First Nation engagement is required.

Bill C-33 does not provide for any such options to be considered or applied. If it is important that the concept stated by adopted, provisions for it should be in the Bill.

-11 programs and school policies. There is no Ministerial oversight of these functions, rather they are described as part of education governance by the First Nation. Bill C-33 provides authority for the Minister to impose regulations which set out how the form and contents of the budgets, plans, programs and policies. The Minister may also impose provincial law to govern such matters.

This section also includes First Nation language as a language of instruction in addition to English and French. Based on interpretations comparing other statutes dealing with education the reference language of instruction confirms immersion programming in a First Nation language. A First Nation already may provide language instruction as well as immersion. There is nothing in the Bill which implies there will be any funding whatsoever for this purpose, much less increased funding. The language instruction must be provided according to the regulations which are unilaterally imposed by the Minister. Subject to the regulations, the council of a First Nation is to offer English or French as the language of instruction and may, in addition, offer a First Nation language as a language of instruction. The council of a First Nation may, as part of an education program, give students the opportunity to study a First Nation language or culture. [The AFN analysis notes] There have been questions raised regarding the inclusion of in addition of First Nation language of instruction as First Nations want to ensure that this is inclusive of First Nation language immersion. It is important to note that in a letter to all First Nations on April 14, 2014, the Minister states that Bill C-33 legally supports the incorporation of First Nations language and culture programming in the education curriculum, including the ability to administer immersion in a First Nation language . This implies a First Nation does not have the right to include its language and culture program in the curriculum, and that Bill C-33 is required to provide legal support for such incorporation.

FIRST NATION DELEGATING POWER TO A RESPONSIBLE AUTHORITY OR EDUCATION SYSTEM First Nation control of First Nation education has always insisted on the need to build and develop second and third level First Nation education services. Bill C-33 recognizes this power and authority of First Nations and sets a process where this is enabled. The ongoing role of the Minister and the Joint Council as well as what is required through regulation must be carefully considered to ensure respect to regional and provincial variation. Under section 48 (4), variation is contemplated: the regulations may vary from province to province.

When did a First Nations language and culture become second and third level education services? In the public schools, Canada teaches language and culture as a primary function of education. If First Nations already has an inherent right to teach their language and culture in the school, why do they need Bill C-33 to make it legal?

-12 This section will require careful consideration to ensure regional diversity. The council of a First Nation may, by written agreement, delegate its powers and functions to a body corporate incorporated under federal or provincial legislation if the agreement meets the conditions set out in the regulations. In other words, under Bill C-33 a First Nation Council may delegate its powers and functions to administer education to a corporation created under federal or provincial law providing the agreement meets the conditions the Minister has set out in the regulations. This is First Nation control of First Nation education? After seeking the advice of the Joint Council, the Minister may, subject to the regulations, revoke a designation if the agreement is no longer in compliance. So under Bill C-33 the Minister may set out the conditions which must be in an agreement, and if in the opinion of the Minister he feels there is noncompliance with the agreement, the Minister may cancel the agreement. Zap.

COMPLIANCE WITH ACT 39 (1) If a school is the subject of a report submitted under subsection 38(2) that identifies problems of noncompliance with the requirements under this Act, the responsible authority administering the school must ensure that measures are taken to remedy those problems. (2) After seeking the advice of the Joint Council, the Minister may require the responsible authority to employ a special advisor to provide advice on the development and implementation of the measures referred to in subsection (1).

40. (1) After seeking the advice of the Joint Council, the Minister may appoint a temporary administrator to administer a school for a specified period (if Minister does not receive report, that there is significant problems of non-compliance and if immediate action is required due to significant risk to student well-being) To put this in terms currently in use, if the Minister feels a school is not in compliance with the Act and its regulations, it may put a school under comanagement at its own expense, and if there is still not compliance, the Minister may place the school under third-party management. There are no alternatives provided for obtaining compliance, no recourse, no appeal, no due process. It is acknowledged that education and provision of schools clearly require rigorous oversight for safety and outcomes for students. The objective should be to have that oversight provided by First Nation authorities - with the support and capacity building required through First Nation education entities and/or the Joint Council whenever possible. There is merit in the AFNs suggestion. However, it is not reflected in Bill C-33. Consideration is required to ensure Ministerial and departmental involvement is limited or eliminated wherever possible.

-13 If this is the opinion of the AFN, and the AFN participated in the making of the legislation, why is this view not included in Bill C-33? The Bill is the Bill. STATUTORY GUARANTEE OF FUNDING First Nations have consistently demanded a statutory guarantee for fair funding for their schools. Bill C-33 is the first time that the obligation of the Canadian government to fund First Nation education has been confirmed and at a rate that is comparable to regions sharing the same geographic and demographic characteristics.

The AFNs analysis is clearly in error on this very important point. There is no such statutory guarantee in Bill C-33. In fact, there are provisions quite to the opposite.

By a stroke of the pen, the Minister can and will limit the total amount to be spent on this legislation. It has currently said it will cap any increases at 4.5% instead of the current cap of 2%. The facts are that First Nation schools are at least 50% under-funded. So do the arithmetic. Statistics Canada states that First Nations had the largest population growth, with an increase of 22.9% between 2006 and 2011.3 Thats 4.8% annually. So on that one factor alone without considering inflation, increased costs, depreciation, accumulated deficiencies, etc., 4.5% increase per year will not even cover population growth. There will not only be no improvement in quality of education, there will be a decrease! This is obviously not statutory growth in funding. In addition, Canada must also fund language and culture programming. Exact funding allocations will be set through regulatory development which must be done in a cooperative process directly with First Nations.

There is nothing in Bill C-33 calling for funding for language and culture programming. The Prime Ministers announcement on February 4, 2014, included language and culture as a part of core-funding, subject to the 4.5% annual cap. There will be $40-million per year for four years to implement Bill C-33 and for education enhancement.

The $1.9 billion budget commitment in the 2014 budget is a key component with the intention that such additional investment will close existing gaps in funding and, create a stable funding transfer relationship that is no longer reliant on annual contribution arrangements. If there is such an intention, why is it not stated as a commitment? Again the government is asking trust us. Pass the Bill, and then we will fulfil our commitment. No Bill passed, no commitment.

The $1.9-billion will be averages out to $633-million for three years, and after that, 4.5% increase annually.

http://www4.hrsdc.gc.ca/.3ndic.1t.4r@-eng.jsp?iid=36

-14 Of that money, $402-million will start flowing two years from now and continue for three years to support the implementation of the Act starting in two years; $40-million will start flowing in a year and continue for four years into an Enhanced Education Fund. And $500-million will start flowing in a year and continue for 7 years for new educational infrastructure. The government has not been clear if this is new money on top of existing expenditures, or simply new levels of expenditure. Furthermore, the funding will no longer be subject to a cap but rather a reasonable rate of growth similar to transfer payments between federal and provincial governments starting at 4.5%. Bill C-33 provides for the Minister to set the total amount as he wishes each year. There is no provision for a reasonable rate of growth. There is no justification for saying the 4.5% is a starting amount, implying it will be increased.

Through funding projections as demonstrated in AFNs funding fact sheet released after the Federal Budget annual contributions for First Nations governments will have grown to $2 billion annually by 2012-22, an increase of $800 million from current funding and it will be annualized. This information about First Nation governments in the AFN analysis is irrelevant to the question of educational funding. 43. (1) The Minister must pay to a responsible authority, in respect of each school year and at the time and in the manner prescribed by regulation, the amounts determined in accordance with the methods of calculation established in the regulations for providing access to elementary or secondary education in accordance with this Act.

(2) The methods of calculation must allow for the provision under sections 32 and 33 of services to each First Nation school and to persons referred to in section 7 attending such a school that are of a quality reasonably comparable to that of similar services generally offered in a similarly sized public school that is regulated under provincial legislation and is located in an analogous region. (3) For the purposes of subsection (2), an analogous region means a region that is in the same province as the First Nation school in question and whose geographic and demographic characteristics are similar to those of the region in which that school is located. (4) The amounts payable under subsection (1) must include an amount to support the study of a First Nation language or culture as part of an education program.

The AFN Analysis conveniently skips from s. 43 of Bill C-33 to s. 49. That is a leap over the all-important section 45 which has been quoted on page 2 of this analysis. It is important enough to quote again:

-15 45. (1) The aggregate amount that may be paid by the Minister under this Act in any fiscal year must not exceed the amount that is specified by order of the Governor in Council for that fiscal year. The order is made on the recommendation of the Minister with the concurrence of the Minister of Finance. In other words, no matter what the rest of the Bill says about comparable funding, the Minister simply makes a recommendation agreeable to the Minister of Finance about the total amount of spending, and an Order in Council is issued. That is the way it is done. As part of the statute, this provision will supercede and promise made anywhere else, including in this years Budget. 49. (1) The Joint Council must, five years after the day on which section 21 comes into force and every five years after that, undertake a review of the provisions and the operation of this Act and the regulations. (2) In carrying out the review, the Joint Council must give First Nations an opportunity to make representations and must consider fully any representations made. (3) The Joint Council must, no later than one year after the day on which the review is undertaken, submit to the Minister a report on its review. (4) The Minister must cause the Joint Councils report to be tabled in each House of Parliament. Thus a review of the operation of Bill C-33, if passed, will not take place until 2019. Five years will have passed. AFN has received comments that the reciprocal relationship and accompanying accountability between Canada and First Nations evidenced through the Joint Council should be reflected through an independent report to parliament without edit from the Minister. Unfortunately, this provision does not appear in Bill C-33. REPEAL OF INDIAN ACT PROVISIONS All provisions referenced in the context section of this analysis (sections 114- 122 ) will be permanently deleted by Bill C-33 - ending unilateral Ministerial control of First Nation education in law. This provision also means that the Minister no longer has any power to place First Nation children in residential or other schools. The statement is incorrect. Bill C-33 does not end unilateral Ministerial control of First Nation education in law. Rather Bill C-33 replaces the weaker control of the Minister set out in the Indian Act with the much stronger control provided for in Bill C-33. NEXT STEPS - CONCLUSION Recalling that local control, parental responsibility and sufficient funding were called for in 1972 as a response to the abhorrent conditions that First Nation children were exposed to and forced to participate in through residential school systems moving forward to resume First Nation control remains a paramount need.

-16 Bill C-33 is enabling legislation which means that much detail will be in regulation. Bill C-33 states that the Joint Council must ensure that First Nations are engaged in this process. This next step will be critical First Nations are very diverse and have distinct needs, circumstances and approaches. April 24, 2014 Page 10 Bill C-33 provides for transition to local control and increased funding that is guaranteed. As well, it recognizes and puts in place the requirement that First Nation languages and cultures will be part of a First Nation education system.

As has been explained above, Bill C-33 provides for a lessening of local control and an increase in the Ministers control.

The AFN Analysis is also incorrect in that there is a requirement that First Nation languages and cultures will be part of a First Nation education system. Bill C-33 contains no such requirement. Bill C-33 does not replace nor does it create any barrier to Treaty implementation, selfgovernment and self-determination.

Bill C-33 blocks First Nation control of First Nation education and ignores inherent rights confirmed by Treaty.

Through increased resources and support, Bill C-33 creates a transition to these steps as directed and advanced by First Nation citizens and their leaders.

Bill C-33 does not provide for increases resources and support. To the contrary, Bill C-33 provides the minister with powers to limit resources. Legislation is not required to begin the transition of restoring the inherent right of First Nations to control their own education. What is required is for the government to change its policies which today prevent that from happening. There is no provision for the transition to be directed and advanced by First Nations citizens and their leaders. Bill C-33 provides power to the Minister to control the transition.

Based on the foregoing analysis and summary charts, discussion and engagement on Bill C33 is a constructive and necessary step supportive of the goals expressed by First Nations for control, respect for Treaty and Aboriginal rights, recognition of language and culture and a clear statutory guarantee for fair funding.

The AFN Analysis provides no evidence to support its conclusion that Bill C-33 is a constructive and necessary step supportive of the goals expressed by First Nations. There is no evidence to support the conclusion that Bill C-33 supports control and respect for Treaty and Aboriginal Rights. To the contrary, Bill C-33 is a legislative effort to supercede those same Treaty and Aboriginal Rights. Bill C-33 provides no recognition for language and culture. To the contrary, Bill C33 increases the Ministers power to control the teaching of language and culture.

-17 Bill C-33 contains no clear statutory guarantee for fair funding. To the contrary, it gives the Minister sole power to limit the amount of funding even if this means inequitable unfair funding will result. Details associated with reciprocal accountability including the Joint Council, joint regulation development, and further clarity on the ongoing meaningful dialogue are important matters which may be addressed through the proposed political protocol between First Nations and Canada - and must now be considered by all First Nations.

If these are important matters, why are they not in Bill C-33? Rather they are being left to an unenforceable proposed political protocol whose contents have yet to be revealed.