It
is important to understand that Atleo has absolutely no independent political
power as National Chief. The AFN’s Charter is very specific about this. So, all
of his deal-making with Canada is outside the legal scope of this authority.
The Prime Minister, who is not a signatory to the treaties between First
Nations and Her Majesty, is also acting outside the legal scope of his power.
Harper has no power to unilaterally amend treaties or violate constitutionally-protected
treaty rights. Yet, this political duo is taking matters into their own hands
and changing the rules in education and treaty rights – just like they both
promised at the Crown-First Nation Gathering.
The
opposition to this deal is not new – it has been significant and consistent
throughout the last few years. Three provinces of First Nations pulled out of
the National Panel on Education – Saskatchewan, Quebec and Ontario – as a strong
message to Atleo that he did NOT have the mandate to make a deal on First
Nation education. Atleo did not listen. He forged ahead despite the growing
opposition. The Chiefs in Assembly passed numerous resolutions AGAINST Atleo
making any deals on First Nation education and specifically against education legislation.
Atleo hung on tightly to Harper and forged ahead despite growing calls for his
impeachment.
Then
came the “deal” - the promise of adequate funding, First Nation control, and
legislation that would recognize our Aboriginal and treaty rights to education.
From the moment Atleo-Harper held their joint press conference, First Nations
knew we were in trouble. Atleo sang songs about how he was saving our children
from the status quo while Harper countered every point Atleo made – although with
great tact. When Atleo realized that Harper wasn’t singing the same song, Atleo
send a strongly worded letter asking whether or not any of the promises Atleo
made to First Nations were in fact going to be kept by Harper. The answer was
no. Instead of throwing away his pride, admitting to his colossal mistake and
standing with First Nations against Harper’s assimilation agenda, Atleo stood by
Harper.
What
followed was political propaganda from Harper, Minister Valcourt and Atleo
meant to save the deal from being challenged in the public arena. AFN’s open letters,
statements, clarifications, and press releases were desperate acts of damage
control. It was too late - Chief Gilbert Whiteduck filed a judicial review
against Canada about the proposed legislation. First Nations spoke honestly and
critically in the media about the damage this proposed Act would do. Lawyers,
academics, analysts and political commentators all seem to come to the same
conclusion: the Act did not reflect First Nations control or protect treaty rights,
and even the funding was an illusion.
The
proof is in the act – Bill C-33 which was supposed to be called First Nations Control
of First Nations Education Act actually reads:
An
Act to establish 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
The
Act establishes a “framework” and that framework is to “enable” First Nations
control over elementary and secondary schools. But what does this mean exactly?
First Nations have been very specific that they want recognition of their
exclusive jurisdiction and control over all aspects of education in First Nations.
The Summary portion of the Act provides more clarity:
This
enactment provides for the control by First Nations of their elementary and
secondary education systems. It establishes a framework to enable First
Nations to exercise that control by administering schools situated on
their reserves, by delegating the power to administer schools to a First
Nation Education Authority or by entering into a tuition or administration
agreement. (emphasis
added)
First
of all, any “control” by First Nations is limited only to elementary and
secondary education. In addition, that control is limited to the administration
of on reserve schools only. That administrative control is further limited to a
power to delegate – i.e. that control MUST be exercised by giving up all
control to First Nation Education Authorities – a new level of bureaucracy.
In
simple terms, Canada is retaining all of its control over First Nation
education – this is clear throughout the Act. At best, this Act outlines a complex
process for how Canada will DEVOLVE limited ADMINISTRATIVE control over some,
not all, education to First Nation organizations (not First Nations themselves).
In case there was any doubt, the Summary goes on to explain that it is Canada
that will set out the roles and responsibilities of First Nation educators and
will create a National Organization, in addition to this Education Authorities
as yet another layer of control over First Nations education.
This
cumbersome new bureaucratic system will not be adequately funded, and the
majority of the funds will be eaten up by this bureaucracy. The only people
that will benefit are those waiting in the wings to gain favour from the Harper
government and be appointed to one of these new boards. While newly appointed
bureaucrats suck up the already inadequate funding that should be going to
First Nations to operate their schools, a new financial burden is being placed
them – the requirement to provide education to non-First Nation people.
One
doesn’t even have to read the actual provisions contained inside the Act to know that this is not in the best
interests of First Nations. Yet, Atleo continues to vehemently defend the deal
he made with Harper. Atleo’s most recent “analysis” of the Act is a sign that the
AFN stopped working for First Nations and is more concerned about gaining
favour with Harper to the detriment of our children and future generations.
The
analysis is not really an analysis so much as it is AFN’s spin on their colossal
failure. A simple, plain language analysis could have been done in relatively
few pages. However, their analysis does not even start until the 4th
page of their document. The first three pages simply outline history – what we
already know. What’s worse is that when the analysis does start, it begs us to
read into the Act what isn’t there – legal recognition, implementation,
enforcement and funding of First Nations controlled education systems according
to First Nation laws, rights and priorities.
Highlights of
AFN’s Analysis:
“Principle”
of First Nation Control:
AFN
uses the same weasel words that Justice Canada and Aboriginal Affairs and
Northern Development Canada (AANDC) uses. Instead of a direct recognition of
First Nation jurisdiction over all education systems, AFN and AANDC say that
First Nation education should be “designed” based on a “guiding principle” of
First Nation control. The design of First Nation education is being done by
AANDC through this Act, and the guiding principles of First Nation control are
not law – they are fluffy statements used to give the illusion of control
without actually recognizes a legal right.
“Reference”
to language and culture:
AFN
argues that a mere reference to language and culture is significant, but fails
to highlight how this is limited by the actual provisions within the Act that
make provincial standards the norm and English and French the standard
languages of instruction.
K-12
Education is part of life-long learning:
AFN
highlights that this is an important statement in the preamble of the Act, yet
ignores the fact that this Act is specifically limited to K-12 education. In an
analysis, we would expect AFN to highlight the substantive promises, not the
fluff. This Act does not state that
First Nations have jurisdiction over every level of education, thus the
lifelong learning statement is just more fluff.
Protecting
the Treaty Right to Education:
AFN
claims that the preamble which states that Canada protects Aboriginal and
treaty rights in section 35 of the Constitution
Act, 1982 should give comfort that this Act respects treaty rights. All the
preamble actually says is that Canada protects treaty rights in section 35. It
does not say this Act protects treaty rights. These weasel words are meant to
distract our people and give them false comfort.
AFN
asks us to believe that the non-derogation clause contained within the Act is
further protection of our Aboriginal or treaty right to education. Yet, that is
not what the clause says. The clause speaks to the non-derogation (to take away
from) or abrogation (to end or cancel) of Aboriginal and treaty rights
generally. There is no positive protection of the treaty right to education, no
specific mention of the treaties which protect education being exempt from the
Act, and no acknowledgment of Canada’s legal obligations to recognize and
implement the treaty right to education. Instead, this Act purports to
legislate that treaty right without our consent. The very act of introducing
this Bill without the free, informed and prior consent of First Nations,
violates the treaty right and/or Aboriginal to education. Further, the failure
to fully fund education in First Nations violates the treaty provisions, which
in turn violates the constitution. AFN
should be advocating and defending our rights – plain and simple.
Access
to Education:
Instead
of focusing on the necessary funding to ensure that First Nations can provide
robust education (of their own design) to First Nations, this part of the Act
is not focused on First Nations at all. This section speaks to forcing First
Nations to provide education (as outlined by AANDC) to non-First Nation residents.
This is an added burden and could impede the ability to direct their education
system as per Indigenous values and traditions.
AANDC, as part of its assimilation agenda, is trying to transition the rights-based obligations of Canada to First Nations, to a discretionary one of programs and services to generic residents. This is the transition from First Nations to provincial municipalities. This is not the first Act to do this. Look at the Matrimonial Real Property Act which purports to give non-Indians property rights on reserve in contravention of treaties and the Indian Act itself. This will also create an administrative and financial burden on First Nations. The fact that AFN would not highlight this and defend First Nation rights shows they are no more than an arm of the federal government facilitating the assimilation agenda.
Joint
Council of Education Professionals:
Again,
this is another provision that First Nations did not ask for, but is a
mandatory aspect of this Act. The very fact that this Council is created and
governed by federal legislation speaks to the lack of independence. Either way,
whether federally-controlled or jointly AFN-Harper controlled – this is not the
vision of First Nations regarding jurisdiction over education. If the funding
component was addressed, First Nations would be able to build their own
capacity with whatever “expert” assistance they determine to be relevant.
Instead,
this Act, like the Matrimonial Property Act, gives the illusion of control and
independence, while mandating Centres of Excellence, National Joint Council,
controlled by the federal government to oversee federal legislation. None of
this speaks to First Nation control. All of AFN’s hopes with regards to this
Joint Council are based on “anticipated” roles, not actual roles contained in
the legislation.
Even
after all of this, AFN still expects First Nations to follow blindly down this
legislative path in “anticipation” of good results. The way I see it, once
Canada lives up to its current legal and treaty obligations, I might be more
inclined to have some faith in their intentions to live up to the hopes of AFN
in this legislation. Until then, we owe our future generations a little more
than pie in the sky false hopes.
First
Nation Languages:
Nice
try AFN, but the legislation is clear. The language of instruction in schools
is French and English. There is no way you can interpret the law as written in
any other manner. The First Nation “is to”, i.e. must offer French or English.
They “may” “in addition” offer First Nation languages. This is an optional, permissible
action, in addition to regular instruction. Given that First Nations are also
being forced to adopt provincial standards and curriculum, there’ll be little
room for English-French as core instruction to provincial standards, as well as
First Nation immersion. The two are incompatible.
I
don’t want the courts left to interpret our rights. We have domestic and
international legal rights to speak our own languages and educate our children
in our own languages and on our own standards. This is also an inherent right
based on our sovereignty and jurisdiction over education. If Canada had
intended that First Nations would be “allowed” to educate their children in
First Nation languages in immersion, they would have written it that way.
Justice Canada’s legislative drafters are skilled in writing the intentions of
the instructing Minister. There was no mistake here.
First
Nation Governance?
First
Nation Education Authorities are the heart of this Act. It is intended that
First Nation “control” is exercised through First Nation Authorities. These
authorities are defined by Canada. They are agents of AANDC. Similarly, AANDC
defines who is to be hired by these authorities, including Directors and
Principles, and prescribes their roles. AANDC takes it a step further and
includes a school inspector – modern day Indian agent to oversee and “verify”
compliance with the Act. This Act goes even further and gives the power to
AANDC to require that the First Nation Authority hire a Special Advisor, and
can even appoint a third-party educator known as a “temporary administrator” against
the will of the First Nation.
In
comparison to the current Indian Act, this act gives AANDC much more detailed
and expansive powers over First Nation education. The Act makes it mandatory
for the Director, principal and staff of a First Nation school to comply with
the third-party educator. Given the horrific outcomes of federally-run
residential schools, First Nations have a right to fear such invasive control
over their education systems – far more intrusive than now. The difference
between residential schools and modern-day federally-controlled schools under
this Act is that the federal government was liable for the damages they caused
in residential schools. In this Act, they absolve themselves of any and all
liability for any harm done to First Nations.
Other Issues
with the Act:
The
funding is inadequate and will be eaten up by new federal and regional
education bureaucracies;
The
Act limits First Nation “control” to on reserve schools and excludes First Nation
control over their students within their territories but off reserve;
The
Act mandates the provision of already-stretched education services to non-First
Nations;
The
Act mandates parents to register and force attendance of their children – not unlike
residential schools, which could result in increased abductions of First Nation
children by Child and Family Service agencies into already swollen foster care;
The
functions and powers of the National Joint Council are unlimited and could be substantially
expanded under the yet-to-be-written regulations;
There
is no requirement that the regulations be approved by or jointly drafted by
First Nations – Canada retains all the power to enact any regulation regarding
this Act;
The
provisions around the Joint Council membership seem to be more about saving the
AFN as an organization, than of representing the views and choices of First Nations
– although not defined in the Act, the regulations will determine who is the
representative organization;
A First Nation is not permitted to charge tuition fees to any of its attendees (I’m thinking specifically non-First Nation attendees) which precludes the design of special schools or funding options for schools;
The Act prescribes who can and cannot
act as a Director or Principal, which in very small communities could severely
limit whether local people could apply for these jobs;
Methods of calculation for funding
purposes have skewed comparators in “similarly-sized provincial” schools given
that the treaty right is not comparable with those who do not have
similarly-protected constitutional rights, histories, experiences,
socio-economic conditions, governance capacity or catch-up to do from harms in
residential schools;
Finally, the height of an undemocratic, irresponsible,
unaccountable government:
Canada reserves all these powers to
direct First Nation education, but will not allow itself to be held accountable
if it causes harm – by insulating itself from liability.
This isn’t what First Nations meant by
recognition of First Nations jurisdiction over their own education systems, nor
does it recognize and implement the treaty right to education. The AFN’s
continued defense of Atleo-Harper’s education deal. At any time the regional
chiefs of the AFN could have stopped Atleo by impeaching him; they could have
resigned in protest; they could have spoken up loud and clear.
While it’s true that some regional
chiefs were ostracized and excluded from information and decision-making, staying
silent about what is happening does not protect the people. I am a strong
believer in unity, but not at the expense of unifying ourselves out of existence.
Our ancestors were kind, respectful people who guarded their protocols to
ensure good working relationships with other Nations. But our ancestors were
also warriors and knew when to stand up and protect their people from harm.
Atleo’s three-piece suits, photo-ops,
club speeches, international travel, and fancy dinners with Harper and his
Ministers are an insult to the First Nations women who go murdered and missing,
to our kids who die in foster care, to the children without hope who die of
suicide; and the many people who die pre-mature deaths from purposeful, chronic
federal underfunding.
The problem and the solution have been
identified in hundreds of reports. Recognition of First Nation jurisdiction and
adequate funding could change lives of First Nations and Canadians as we know
it. Even the economic analysis says we’d all live much richer, fuller lives –
First Nation and Canadian – if we invested in First Nation education. You don’t
need legislation or any more studies to do this – it’s a simple choice by
Canada. Not all pressing problems have such simple solutions, but it’s the
solution itself – funding – that Canada has taken great pains to avoid.
It’s time to stop shaking hands with those who are trying to eliminate us and start defending the rights of our people.
Related blogs:
What do people expect from Harper and his government. Right from his so called apology and everything since, Harper cares nothing for First Nations. Atleo is sucking up to Harper because maybe he would like to be in that Senate too
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