Education Act may end up in the courts

Lise Bastien holds little hope that First Nations education will be handled the way it should. If Aboriginal Affairs Minister Bernard Valcourt rescinds his bill, she believes it will come at a heavy price for First Nations children.

“I don’t think the minister has the humility to back track … and say let’s revisit the process,” said Bastien, director with the First Nations Education Council, in Quebec. “If he feels that communities are getting into a mobilization, he will abandon the project, and he will say … status quo, no more change, no more money and he will so some cuts.”

First Nations across the country made their displeasure known before Valcourt introduced the First Nations Education Act in the House of Commons on Oct. 23. All accused the government of not consulting fully with First Nations and proposing a one-size-fit-all solution.

Added to the voice of discontent was United Nations Special Rapporteur James Anaya, who, before he left Canada following a whirlwind eight-day visit in October, urged the federal government to hold back on introducing the bill.

“The Harper government hasn’t listened to anybody and they have kind of a disdain for the UN, which is pretty unfortunate because we see someone like the special rapporteur as someone looking at us with fresh eyes, not leaning one way or another, but hearing from both of us and coming to a conclusion,” said Tyrone McNeil, president of the First Nations Education Steering Committee in British Columbia.

Among the criticisms levied at the act is the role the minister plays.

“We’ve had an issue with the minister’s and federal government’s involvement in our education other than as a funding source, but now this proposed legislation firmly plants them in our system. It’s legislatively entrenching the minister as a superintendent of First Nations education,” said McNeil.

The bill calls for First Nations to submit their annual education budget to the Aboriginal Affairs minister; gives the minister final approval over tuition agreements between First Nations and other school authorities; allows the minister to appoint a temporary administrator if a school is having difficulty; and makes the minister responsible for developing any regulations necessary in order to implement the act.

The lack of a funding mechanism is also a concern. First Nations children educated on reserve is the federal government’s responsibility and First Nations proponents of education  have long claimed that the funding dollars received from the federal government fall far below – in some cases as much as 40 per cent – that of their provincial counterparts.

The First Nations Education Act states that funding will be “in accordance with the methods of calculation prescribed by regulation.”

“There’s so little language in there with respect to funding, you can hardly even speak to it,” said McNeil.  “In terms of the bill itself, the funding isn’t relevant, at least as it appears from the fed’s perspective.”

“If you have a legal framework money is needed to provide services and to take action,” added Bastien. “I know it’s not proper to say we need additional funding, but we do.”

The act also bypasses another concern voiced by First Nations: that of culture and language in the schools.

“This act has to recognize the identity, the language, the cultural heritage and what it says in the draft legislation is that the school would have the possibility to or could. What’s that? It’s not saying the minister will have the obligation,” said Bastien.

She also expresses concerns with what she sees as the federal government downloading educational responsibilities to the provinces. Under the act, First Nations can enter into a tuition agreement allowing a provincial school board to operate a school on the reserve.

FNESC finds itself in a unique situation, specified in the act as being the only group of Nations exempt from immediate implementation of the new legislation. This past summer, the federal government, BC and FNESC signed a five-year extension to continue negotiations on a tripartite education agreement.
When this extension expires in June 2017, FNESC is expected to come under the First Nations Education Act umbrella.

The tripartite agreement, which was approved through federal legislation in 2006 and provincial legislation in 2007, provides additional funding to FNESC for on-reserve education. However, the federal government is presently pushing FNESC to have its members use own-source revenue to top up dollars as the federal government claws back funding. However, McNeil is confident that once First Nations demonstrate that funding education out of their own pockets presents a hardship government dollars will be forthcoming.  But if the First Nations Education Act is approved, any headway in funding FNESC makes will only be temporary.

Like many other First Nations and education organizations, FNESC is still in the process of analysing the First Nations Education Act. And while the federal government is soliciting feedback and comments, little hope is being held that the minister will listen now.
In fact, the Anishinabek Nation has been succinct in its feedback. Recently its chiefs endorsed a resolution “vehemently” condemning the federal First Nations Education Act as “an unwelcome intrusion into Anishinabek Nations inherent jurisdiction.”
Bastien says FNESC will likely go further. At a recent meeting of Quebec Chiefs, legal action was discussed.
“It’s a strong possibility,” she said. “And we are going to talk to other regions to see if they want to do the same.”