CONSEIL

ENDUCATION D DESPREMIRES R

FIRST NATIONS
N EDUCATION

NATIONS

COUNCIL

ANALYSISOFBILL C33
a looks s at whether not Bill C33 3 meets the f five minimum m conditions demanded b by This analysis the AFN A (Resolutio on no. 21/20 013), which in nclude the th hree minimum m conditions demanded b by theAFNQL(letterof o December20,2013fromtheAFNQL LChieftotheMinister). To no oones great surprise, the t preamble e implies th at the bill d does meet t these minimal conditions.Buttogetatrueide eaconcerning gthismatter, ,onemustlo ookatthesum mmaryandth he onsofthebill,andnotbaseonesasses ssmentonap preamblethat thasnobindingpower. sectio In the ese pages, the e FNEC sets out o its positio on regarding respect of th he five condit tions, followe ed byref ferencesinea ach case toth hesummaryandsections orabsenceo ofsectionsin the bill,whic ch servetosupportth hisposition. FIRST TCONDITION AFN: Respect and re ecognize inhe erent rights, Aboriginal ti itle, treaty rights and First ations legal ju urisdiction an nd control ove er First Natio ons education n. First Nation ns Na mu ust retain all options to ad dvance their education an nd any agree ement made in thi ismattermus stbefullyrespected,imple ementedand dsupported. Recognize and d respect First Nations legal jurisd diction and control ove er education, ther reby allow th hem to impl ement their solutions without outsid de sup pervisionimp posedonthem m.

AFNQ QL:

FNECAnalysis The first f condition is not me et because the bill does not in any way recogn nize the lega al jurisdiction of the First Nations s, nor does it t promote im mplementatio on of the poli icy statement FirstNationsCont trolofFirstNationsEducation.* *The FNEC is able e to make this assertion based b on a c comparative a analysis that it conducted d betwe eenBillC33and a FirstNa ationsControl lofFirstNatio onsEducation n.1 mary: Summ The summary mak kes it unambi iguously clear that the co ntrol referred d to in the bi ill refers solely ntrolofanad dministrativenature. tocon
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htt tp://www.afn.ca/uploads/file es/education/3 3._2010_july_a afn_first_natio ons_control_of f_first_nations s_ education_final_ _eng.pdf

 Sections20,23,27and47: These sections confirm that the role of a FN council (or responsible authority) is limited to schooladministration. Furthermore, the bill contains no section that recognizes the right of First Nations to self government in terms of exercising their jurisdiction over education in implementing this legislation. The exercise of legal jurisdiction entails the power to pass laws, but in this case the power of First Nations is limited to adopting administrative regulations in accordance with the bill. Section48: This section specifies the extent of control (powers) of the Minister who, after seeking the adviceoftheJointCouncil,mayadoptregulationsincludingthose: 48 (1 d) concerning the language of instruction and providing for the extent of the use of a FirstNationlanguageasalanguageofinstruction; 48(1e):respectingthemanagementofhumanresources; 48(1h):respectingthedesignation of a body corporate as the First Nation Education Authority and respecting revocation of such designation; 48 (3): incorporating by reference laws of a province, as amended from time to time, with any adaptations that the Minister considers necessary

Section35: Thissectiondefinestheresponsibilitiesofthedirectorofeducation. Section36: Thissectiondefinestheresponsibilitiesoftheschoolprincipal. Sections23and24: These sections specify that a council can sign an agreement with a responsible authority administering an onreserve school. In all cases, these authorities must, like the council, ensure respectofthebill. Note: The Joint Council, the school inspector and the temporary administrator as an extension oftheMinisterinexercisinghiscontrolaredealtwithunderthefourthcondition. SECONDCONDITION AFN: Establishasapreconditionthelegislativeguarantee thatFirstNationseducation will receive funding which is sustainable, which reflects the needs and which is consistentwithCanadasobligations. Provide the guarantee that First Nations education will receive necessary, adequate,fairandstablefunding.

AFNQL:

 FNECAnalysis Therearesignificantimprovementsin termsofincreasedfunding,butthisdoesnotallowusin any way to affirm that the funding will match the needs or that it will be adequate. Therefore, suchimprovementscannotensurethatthisconditionwillberespected. Because the bill does not specify the amounts, we must refer to the February 7, 2014 announcementtogetaninitialideaofwhetherornottheadditionalfundingmadeavailablewill be adequate and whether or not it will correspond to the needs. The table below compares the amountsintheannouncementtoestimatesofneedsobtainedfromtheAFNandareportbythe ParliamentaryBudgetOfficer. Typeoffunding
Corefunding(includeslanguage &culture) 3yearsbeginning201617 Languages 3years Implementationfunding/ Educationimprovementfunding 4years Infrastructures 7years Infrastructures 1year

Announcement
$1.25billion Includedinthe$1.2 million $160million $500million Announcement+ actualAANDCcost $271.4million

AFNestimates
$1.22billion (1.22+0.68) $1.90billion $766million (RMOonly) $732million D. Parliamentary BudgetOfficer $410million

Gap
+$0.03billion $650million 34% $606million 79% $232million 32% Gap $138.6million 34%

Section43: This section deals with the methods of calculation for offering services comparable to those offeredbysimilarlysizedpublicschoolslocatedinanalogousregions.Butnoaccountistakenof thevariouscostfactorsassociatedwiththeFirstNationsreality. 43(1):referstoamountsestablishedaccordingtoregulatorybasedcalculationmethods. o The February 7 announcement establishes the total amount, whereas this total amount should be the result of adding up the funding of all First Nations schools following application of the regulatory calculation methods which are not yet known andarenotyetbeingapplied. 43 (2): mentions calculation methods for offering services at a quality level comparable to thatofsimilarservicesofferedinsimilarlysizedpublicschoolslocatedinanalogousregions. o Such an affirmation is made even though the public schools do not offer education services based on First Nations history, culture and traditional values, which the preamblementionsasbeingthenecessaryfoundationforFirstNationseducation.

 43 (3): specifies that analogous region refers to a region which is located in the same provinceandwhichpresentssimilargeographicanddemographiccharacteristics. o This is simplistic and it does not allow one to take account of certain costs factors specific to the reality in the First Nations (linguistic and cultural factors) and factors that are more preponderant in First Nations (special needs, socioeconomic conditions).

Section48(1)(o): This section specifies that it is the Minister who makes regulations to set the calculation methods and there is no reference in the bill to a joint process for doing so, nor of any consultationoftheFirstNations.Thisfailstomeetthefourthcondition. Section33: This section indicates that the responsible authority must offer services concerning human resources/financial/property/information&technologymanagement,aswellasmanagementof any other service prescribed by regulation. This is without a guarantee anywhere in the bill that thecalculationmethodswilltakeaccountofthecostsassociatedwithalltheseservices. Sections35(4)&45(1): Section 35 (4) requires the director of education to ensure that students with special needs preventingthemfromparticipatingintheschoolseducationprogramswillreceiveaneducation that takes account of their needs, at the school where they are registered and at no cost to them. Section 45 (1) indicates that the aggregate amount paid by the Minister for a fiscal year may not exceed the ceiling established by decree. This means it cannot be guaranteed that the calculation methods and the total available amount will take account of the high costs associatedwithmeetingsuchanobligation. Section36(c): This section makes the school principal responsible for planning extracurricular activities. But there is no guarantee anywhere in the bill that the calculation methods include amounts for theseactivities. Section9vs.section26: Section 9 mentions that neither the council nor the school authority may require payment of tuition fees or any other expenses related to school attendance. Section 26 indicates that the council may require payment of reasonable costs to take part in optional activities (which may include extracurricular activities) and payment of an appropriate amount as a deposit for use of theschoolsmaterialsandequipment.

 THIRDCONDITION AFN: Implement and support systems which allow all education to be fully immersed andgroundedwithintheframeworkofAboriginallanguagesandcultures. Provide adequate support for the teaching of First Nations languages and culturalvalues.

AFNQL:

FNECAnalysis The little importance given to the teaching of First Nations languages and cultures in the bills sections and the absence of references to any kind of analysis of the real costs for financial support to meet the above condition does not allow us to conclude that this condition will be met. There are two sections, namely 21 (2) & (3), which refer to teaching of languages, placing it at a lower level of importance, plus section 48 (1 d), which gives the Minister the power to define the language of instruction and to set the conditions for its use, and section 43 (4), which indicates that financial support will be given but without reference to cost analyses or to the participationofFirstNationsinsuchanalysesanywhereinthebill. In addition, it is clear that these sections do not respect international rights in this regard, as coveredbyarticle14(1)oftheUnitedNationsDeclarationontheRightsofIndigenousPeopleor article30oftheUnitedNationsConventionontheRightsoftheChild. Section21(2): This section mentions that the council must offer English or French as the language of instruction and that it may offer a First Nations language as an additional language of instruction. Section21(3): Thissectionmentionsthatthecouncilmay,aspartofateachingprogram,givethepossibilityof studying a First Nations language and culture. This contrasts squarely with the assertion in the preamble that children must have access to an education based on the history, culture and traditionalvaluesofFirstNations. Section48(1d): Thissectionmentionsthatafterseekingtheadvice oftheJointCouncil,theMinistermaydefine thelanguageofinstructionandmayprovidefortheextentoftheuseofaFirstNationslanguage asalanguageofinstruction. 5

 Section43(4): Thissectionconfirmsthatfundingforlanguagesandculturewillbeallocatednotonthebasisof analyses of the real costs but rather as a part of overall funding, without giving any further specification. FOURTHCONDITION AFN: Develop oversight, evaluation and reciprocal accountability mechanisms, therebyensuringnounilateralapplicationoffederalsupervisionorauthority.

FNECAnalysis This condition is not met in any way. The oversight, evaluation and accountability mechanisms stem directly from the Minister and/or are assigned to intermediary resources who come directlyunderhisauthorityandmustreporttohim. Thenumberofreportsthatmustbeproducedandthenumberofworkersinvolvedmeansthere istheriskof aneven heavieradministrativeburden thanwhatweseeinthe currentsituationas described by the Auditor General of Canada. Also, there is no planned measure for reciprocal accountability;thegovernmentdoesnotrecognizeitsownaccountabilityinanyway. Sections10to19: These sections deal with a Joint Council, whose members are all appointed upon recommendation by the Minister and whose role is to monitor and provide advice concerning thebillsapplication. 11 (1): the Joint Councils role is to advice the Minister, FN councils and school authorities onanymatterrelatedtothebillsapplication; 12(1):onetofourmembersareappointed uponrecommendationby the Ministerandone to four members are appointed upon recommendation by the Minister from among the candidatesproposedbyanyentityrepresentingtheinterestsoftheFirstNations; 12 (2): the chairperson is appointed upon recommendation by the Minister following consultationwithanyentityrepresentingtheinterestsoftheFirstNations. Sections37&38: These sections deal with the school inspector, whose role is to verify compliance with the requirements under the bill and to submit a report to the responsible authority, who in turn givesacopytotheMinister. 37(1):obligationtoemployaschoolinspector; 37 (2): the inspector must be qualified to conduct inspections in provincial schools, but therearenosuchrequirementswithregardtoFirstNationsculturesandrealities; 37(3):theinspectorverifiescompliancewiththerequirementssetoutunderthebill;

 38(1):theinspectorproducesareportconcerningtheaspectscoveredunderparagraph37 (3)andrecommendscorrectivemeasures; 38(2):theinspectorsubmitsthereporttotheresponsibleauthority; 38(3):theresponsibleauthoritysubmitsacopytotheMinister.

Sections40to42: ThesesectionsdealwiththeappointmentofatemporaryadministratorbytheMinister. 40 (1): after seeking the advice of the Joint Council, the Minister may appoint a temporary administratortoadministeraschool; 40(2):theMinistermayappointanadministratorwhoisqualifiedtoadministeraschoolin the province, but who does not have to meet any qualification requirement concerning the cultureandrealityoftheFirstNations; 42 (5): after seeking the advice of the Joint Council, the Minister may revoke the designation of a school authority upon receiving a report and recommendation by the temporaryadministrator. Section21: This section makes certain clarifications about the reporting requirements for the councils. Theseincludetherequirementto: 21 (1 a): establish an annual budget and present a copy of it to the Minister and the Joint Council; 21(1e):approvetheschoolsuccessplancoveredby paragraph36(1a),submittheplanto theMinisterandtheJointCouncil,andmaketheplanpublic; 21 (1 i): prepare the schools annual report and any other report required by the regulations, submit such reports to the Minister and Joint Council, and make these reports public; Section48(1c): ThissectiongivestheMinisterthepowertodecidethetopicsthatreportsmustcover. Section 46 (2) guarantees immunity to Her Majesty, Her Minister, Her employees, agents, temporary administrators, and members of the Joint Council for what they do or omit to do in good faith in the course of their duties under this Act. The only mention of immunity for First Nationsappearsinsection41(2),whichreferstosituationswheredirectorsofeducation,school principals, teachers and other staff members have the obligation to assist temporary administratorsandareactingingoodfaith.Whentheymeettheobligationtoassistatemporary administratorandareactingingoodfaith. 7

 FIFTHCONDITION AFN: Ensure a meaningful support process allowing these conditions to be met by means of a commitment towards working together within a framework of co developmentthatfullyreflectsFirstNationsrightsandjurisdiction.

FNECAnalysis Thereisnothinginthebillwhichallowsustoconcludethatthisconditionisbeingmet. Preamble: ThepreambleincludesawhereasindicatingthattheCanadaandtheFirstNationsmustengage in an ongoing and meaningful dialogue with respect to the continuous improvement of education outcomes for First Nations children. But it does not mention any commitment towardsworkingwithinaframeworkofcodevelopment. In addition, no section mentions any commitment towards working within a framework of co development.Atbest,afewsectionsrefertothepossibilityofconsultingwithorrequestingthe opinions of First Nations, but without any reference to measures for ensuring the preliminary, freelygivenandwellinformedconsentoftheinvolvedFirstNationsorrightsholders. Sections11(3),12(1&2)&14: ThesesectionsmentiontheconsultationofanyentityrepresentingtheinterestsofFirstNations in relation to the appointment (or revocation of appointment) of members on the Joint Council. ThisgivestheMinisterfullleewayfordecidingwhatFirstNationswillbeconsultedorignored. Section48(2): This section mentions that the Joint Council will give its opinion to the Minister (concerning compliancewithregulations)onlyafterhavinggiventheFirstNationstheopportunityofmaking theirrepresentations. Section49(2): This section mentions that in its review after five years have passed, the Joint Council will give theFirstNationstheopportunityofmakingtheirrepresentations. OTHERCONSIDERATIONS Comparison between the bill and the policy First Nations Control of First Nations Education (FNCFNE) This comparison conducted by the FNEC shows that there are important gaps between the bill and the FNCFNE policy. One of these major differences is that the bill is limited to

 elementary/secondary education, whereas the policy deals with lifelong learning, which thus includespostsecondaryeducation. Several other differences correspond to and confirm several of the points raised in the above analysisconcerningthefiveminimumconditionsthatwererequired(seethedocument). OPTOUTCLAUSENONAPPLICATIONOFTHEBILL The "optout" clause in Bill33 (s. 5) is for all intents and purposes the same as it was in the October draft: only those First Nations that sign selfgovernment agreements or whose self government over education is already provided for by federal statute are exempt. It is not a form of recognition of selfgovernment, but a mechanism to ensure that the new law does not conflict with existing laws. It is not an option available to the vast majority of First Nations. A First Nation that does not already benefit from special federal legislation with respect to educationinordertoexercisethisoptoutclausewouldhavetoeither1)signaselfgovernment agreementor2)convincethefederalgovernmenttopasslegislationallowingittomakeitsown FirstNationlaw.