first nations education council (quebec) analysis on bill c-33, april 2014
TRANSCRIPT
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Sections 20, 23, 27 and 47:
These sections confirm that the role of a FN council (or responsible authority) is limited to
school administration.
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.
Section 48:
This section specifies the extent of control (powers) of the Minister who, after seeking the
advice of the Joint Council, may adopt regulations including those:
48 (1 d) concerning the language of instruction and providing for the extent of the use of a
First Nation language as a language of instruction;
48 (1 e): respecting the management of human resources;
48 (1 h): respecting the designation 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
Section 35:
This section defines the responsibilities of the director of education.
Section 36:
This section defines the responsibilities of the school principal.
Sections 23 and 24:
These sections specify that a council can sign an agreement with a responsible authority
administering an on‐reserve school. In all cases, these authorities must, like the council, ensure
respect of the bill.
Note: The Joint Council, the school inspector and the temporary administrator as an extension
of the Minister in exercising his control are dealt with under the fourth condition.
SECOND CONDITION
AFN: Establish as a precondition the legislative guarantee that First Nations education
will receive funding which is sustainable, which reflects the needs and which is
consistent with Canada’s obligations.
AFNQL: Provide the guarantee that First Nations education will receive necessary,
adequate, fair and stable funding.
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FNEC Analysis
There are significant improvements in terms of increased funding, but this does not allow us in any way to affirm that the funding will match the needs or that it will be adequate. Therefore, such improvements cannot ensure that this condition will be respected.
Because the bill does not specify the amounts, we must refer to the February 7, 2014
announcement to get an initial idea of whether or not the additional funding made available will
be adequate and whether or not it will correspond to the needs. The table below compares the
amounts in the announcement to estimates of needs obtained from the AFN and a report by the
Parliamentary Budget Officer.
Type of funding Announcement AFN estimates Gap Core funding (includes language & culture) 3 years – beginning 2016‐17
$1.25 billion $1.22 billion + $0.03 billion
Languages 3 years
Included in the $1.2 million
(1.22 + 0.68)$1.90 billion
‐ $650 million‐ 34%
Implementation funding / Education improvement funding 4 years
$160 million
$766 million (RMO only)
‐ $606 million ‐ 79%
Infrastructures 7 years
$500 million
$732 million ‐ $232 million
‐ 32%
Announcement + actual AANDC cost
D. Parliamentary Budget Officer
Gap
Infrastructures 1 year
$271.4 million
$410 million ‐ $138.6 million
‐ 34%
Section 43:
This section deals with the methods of calculation for offering services comparable to those
offered by similarly‐sized public schools located in analogous regions. But no account is taken of
the various cost factors associated with the First Nations reality.
43 (1): refers to amounts established according to regulatory‐based calculation methods.
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
and are not yet being applied.
43 (2): mentions calculation methods for offering services at a quality level comparable to
that of similar services offered in similarly‐sized public schools located in analogous regions.
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
preamble mentions as being the necessary foundation for First Nations education.
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43 (3): specifies that ‘analogous region’ refers to a region which is located in the same
province and which presents similar geographic and demographic characteristics.
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, socio‐economic
conditions).
Section 48 (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
consultation of the First Nations. This fails to meet the fourth condition.
Section 33:
This section indicates that the responsible authority must offer services concerning human
resources/financial/property/information & technology management, as well as management of
any other service prescribed by regulation. This is without a guarantee anywhere in the bill that
the calculation methods will take account of the costs associated with all these services.
Sections 35 (4) & 45 (1):
Section 35 (4) requires the director of education to ensure that students with special needs
preventing them from participating in the school’s education programs will receive an education
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
associated with meeting such an obligation.
Section 36 (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
these activities.
Section 9 vs. section 26:
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
the school’s materials and equipment.
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THIRD CONDITION
AFN: Implement and support systems which allow all education to be fully immersed
and grounded within the framework of Aboriginal languages and cultures.
AFNQL: Provide adequate support for the teaching of First Nations languages and
cultural values.
FNEC Analysis
The little importance given to the teaching of First Nations languages and cultures in the bill’s 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
participation of First Nations in such analyses anywhere in the bill.
In addition, it is clear that these sections do not respect international rights in this regard, as
covered by article 14 (1) of the United Nations Declaration on the Rights of Indigenous People or
article 30 of the United Nations Convention on the Rights of the Child.
Section 21 (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.
Section 21 (3):
This section mentions that the council may, as part of a teaching program, give the possibility of
studying a First Nation’s 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
traditional values of First Nations.
Section 48 (1 d):
This section mentions that after seeking the advice of the Joint Council, the Minister may define
the language of instruction and may provide for the extent of the use of a First Nations language
as a language of instruction.
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Section 43 (4):
This section confirms that funding for languages and culture will be allocated not on the basis of
analyses of the real costs but rather as a part of overall funding, without giving any further
specification.
FOURTH CONDITION
AFN: Develop oversight, evaluation and reciprocal accountability mechanisms, thereby ensuring no unilateral application of federal supervision or authority.
FNEC Analysis 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 directly under his authority and must report to him. The number of reports that must be produced and the number of workers involved means there is the risk of an even heavier administrative burden than what we see in the current situation as described by the Auditor General of Canada. Also, there is no planned measure for reciprocal accountability; the government does not recognize its own accountability in any way.
Sections 10 to 19: 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 the bill’s application. 11 (1): the Joint Council’s role is to advice the Minister, FN councils and school authorities
on any matter related to the bill’s application;
12 (1): one to four members are appointed upon recommendation by the Minister and one
to four members are appointed upon recommendation by the Minister from among the
candidates proposed by any entity representing the interests of the First Nations;
12 (2): the chairperson is appointed upon recommendation by the Minister following
consultation with any entity representing the interests of the First Nations.
Sections 37 & 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 gives a copy to the Minister. 37 (1): obligation to employ a school inspector;
37 (2): the inspector must be qualified to conduct inspections in provincial schools, but
there are no such requirements with regard to First Nations cultures and realities;
37 (3): the inspector verifies compliance with the requirements set out under the bill;
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38 (1): the inspector produces a report concerning the aspects covered under paragraph 37
(3) and recommends corrective measures;
38 (2): the inspector submits the report to the responsible authority;
38 (3): the responsible authority submits a copy to the Minister.
Sections 40 to 42: These sections deal with the appointment of a temporary administrator by the Minister. 40 (1): after seeking the advice of the Joint Council, the Minister may appoint a temporary
administrator to administer a school;
40 (2): the Minister may appoint an administrator who is qualified to administer a school in
the province, but who does not have to meet any qualification requirement concerning the
culture and reality of the First Nations;
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
temporary administrator.
Section 21: This section makes certain clarifications about the reporting requirements for the councils. These include the requirement to: 21 (1 a): establish an annual budget and present a copy of it to the Minister and the Joint
Council;
21 (1 e): approve the school success plan covered by paragraph 36 (1 a), submit the plan to
the Minister and the Joint Council, and make the plan public;
21 (1 i): prepare the school’s annual report and any other report required by the
regulations, submit such reports to the Minister and Joint Council, and make these reports
public;
Section 48 (1 c): This section gives the Minister the power to decide the topics that reports must cover.
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
Nations appears in section 41 (2), which refers to situations where directors of education, school
principals, teachers and other staff members have the obligation to assist temporary
administrators and are acting in good faith. When they meet the obligation to assist a temporary
administrator and are acting in good faith.
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FIFTH CONDITION
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‐development that fully reflects First Nations rights and jurisdiction.
FNEC Analysis
There is nothing in the bill which allows us to conclude that this condition is being met.
Preamble:
The preamble includes a ‘whereas’ indicating that the Canada and the First Nations must engage
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
towards working within a framework of co‐development.
In addition, no section mentions any commitment towards working within a framework of co‐
development. At best, a few sections refer to the possibility of consulting with or requesting the
opinions of First Nations, but without any reference to measures for ensuring the preliminary,
freely‐given and well‐informed consent of the involved First Nations or rights holders.
Sections 11 (3), 12 (1 & 2) & 14: These sections mention the consultation of any entity representing the interests of First Nations
in relation to the appointment (or revocation of appointment) of members on the Joint Council.
This gives the Minister full leeway for deciding what First Nations will be consulted or ignored.
Section 48 (2): This section mentions that the Joint Council will give its opinion to the Minister (concerning
compliance with regulations) only after having given the First Nations the opportunity of making
their representations.
Section 49 (2): This section mentions that in its review after five years have passed, the Joint Council will give
the First Nations the opportunity of making their representations.
OTHER CONSIDERATIONS
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
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elementary/secondary education, whereas the policy deals with lifelong learning, which thus
includes post‐secondary education.
Several other differences correspond to and confirm several of the points raised in the above
analysis concerning the five minimum conditions that were required (see the document).
“OPT‐OUT” CLAUSE – NON‐APPLICATION OF THE BILL
The "opt‐out" clause in Bill‐33 (s. 5) is for all intents and purposes the same as it was in the
October draft: only those First Nations that sign self‐government agreements or whose self‐
government over education is already provided for by federal statute are exempt. It is not a
form of recognition of self‐government, 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
education in order to exercise this opt‐out clause would have to either 1) sign a self‐government
agreement or 2) convince the federal government to pass legislation allowing it to make its own
First Nation law.