Mr. John DuncanMember of Parliament

CcR. Donald Maracle, Chief, Mohawk of the Bay of QuinteBernard Valcourt, Minister AANDC

Re: First Nations Control of First Nation Education Act

Dear Sir:

I currently live in British Columbia in the village of Gold River. This village is in your constitutency.After reading and analyzing Bill C-33, I have serious and significant issues with it. I do not believe that the legislation has been fully consulted with all concerned parties to address issues such as access to language and cultural instruction which cannot be certified within the current accreditation processes.

I believe that the current definition of a joint council is too broad and will not appropriately prioritize language and cultural instruction. Language programs are often treated in schools that are not based on the inherent culture of the Sovereign First Nation as rewards or in other ways that marginalize the programs and the language and culture. The assumption that it keeps them back is part of the assimilation that all have endured as intergenerational Indian Residential School Survivors. I have significant concern that in order to meet the criteria for inclusion into the joint councilwe will in fact exclude voices of Elders, Indigenous Knowledge Holders and Language speakers.

I also believe that giving the Minister of Aboriginal and Northern Development Canada the ability to remove, replace or implement any educational policy is a huge step backwards in the history of relationship within our Nations. As a Treaty Nation, the Simcoe Deed, this is a huge set back akin to the re-instatement of an Indian Agent and Supervisors of the Indian Residential Schools. It is exceptionally problematic because it assumes that the Minister will act in good faith. The last time the Minister had direct control over Education, the open agenda of the time was to assimilate children through education. There is nothing within this document which indicates that this is still not the intent.

Whereas, Education falls within the scope of Treaty negotiations, it is also problematic that this deal was consulted through an agency which is not a Treaty title holder especially for those of us who are Treaty members. I am respectfully asking you to seriously consider the document within the scope of what this means historically and futuristically and remove support for it. Please look beyond the dollar amount and look at the long term erosion of what true language, culture and pedagogy exists.Finally, I ask that you review the following document. It is an analysis done by the AFN. Inserted in the AFN analysis is a further independent analysis that highlights the problem of using lobby groups to circumvent the Crowns constitutional obligation to consult with Treaty owners before implementing policy that modifies or impacts Treaty conditions.

Upon reading this report I think it puts the onus on you to advise your colleagues that Bill C-33 must be properly negotiated within the terms of a Treaty negotiation with each Treaty partner. After all would you not expect the public to be upset if Public Works Canada and DNFD went to a lobby group to buy fighter jets? I think you would expect they question both your judgement and your intentions.

Sincerely,

April 25, 2014 ANALYSIS OF ASSEMBLY OF FIRST NATIONS ANALYSISOF BILL C-33, FIRST NATION CONTROL OF FIRST NATION EDUCATIONIntroductory Note:While one might hope that the AFNs analysis is objective, thefact that the AFN had already virtually endorsed the Bill before itwas tabled and has since said it meets all the conditions set bythe Chiefs in Assembly in Gatineau on 9 December 2013,including adequate consultation and some measure of jointdrafting, it is not in a position now to be overly critical of the Bill.In the text below, the original AFN analysis is interrupted fromplace-to-place by this independent analysis in indentedparagraphs in bold italics.April 24, 2014Analysis: Bill C33 First Nation Control of First Nation EducationCONTEXT: THE STATUS QUO AND FORTY YEARS OF EFFORT TO ACHIEVE CHANGETo conduct an analysis of current efforts in advancing First Nation Education, it isimportant to first recall what currently exists in Canadian law under the Indian Act. Atpresent the Minister has absolute and sole authority over every aspect, including outdatedand highly objectionable authorities from the residential school era.The statement is inaccurate. The Indian Act provides only that the Minister maydecide which school a child shall attend, and that power is obsolete and unused.Beyond that, any control the Minister exercises is through contribution agreementsfor funding. These are entered into independently of the Indian Act.The statement also ignores an extremely important point: Bill C33 would give theMinister great powers which he does not have at the present time. The Bill could beaccurately titled, Increasing Ministerial Control of First Nation Education.Moreover, under current systems, there is no recognition of First Nation language and FirstNation culture . . .Neither is there any current prohibition of First Nation language and culture. FirstNation schools already teach language and culture if they choose to do so. Thepermission of the Minister is not required. Under Bill C33, however, the Ministermay 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 teachlanguage and culture, and whether the laws of the province apply to the teaching oflanguage and culture. The end result is that the First Nation will have less controlover the teaching of language and culture than it has now.-2[Moreover, under current systems] . . . [there are] arbitrary funding allocations on anannual basis as well as restrictions and regulations imposed through contributionagreements.The arbitrary funding allocations now done as a matter of policy throughcontribution agreements will under Bill C-33 continue to be done under authority ofstatute. 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 yearmust not exceed the amount that is specified by order of the Governor in Council for thatfiscal year. The order is made on the recommendation of the Minister with the concurrenceof the Minister of Finance.In other words, despite any other provision of the Act, the Minister will set a totalamount that can be spent. At this time the government has announced that ratherthan 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 inthe costs of education as the result of new technologies, etc., accumulateddeficiencies in funding over many years within the 4.5% limit.Further, such funding allocations have been subject to caps and cutbacks for the past 15years and beyond.Bill C-33 gives authority of law to the Minister to make whatever caps and cutbackshe wishes to make. This is greater control which is now possible throughcontribution agreements.First Nation children have no right to education or access to fairness and opportunity inCanadian law. This status quo is absolutely and fundamentally contrary to Treaty, inherentand human rights and must change.Bill C-33 does not address or change this status quo. While there are hints in thisregard 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 despitethese incredible challenges and have been achieved thanks to the dedication of First Nationeducators. Where we see increased graduation and achievement in all aspects includinglanguage and culture, it is thanks to the leadership and determination of Nations or regionsto move out of the Indian Act through agreements, Acts, advancing Treaty implementationand other initiatives on their own terms.Let us look to international instruments to appreciate the broader context andresponsibilities and obligations for Canada set out in key conventions and declarations towhich Canada is signatory. This year, 2014 marks the 25th anniversary of the United NationsConvention on the Rights of the Child. Article 28 recognizes the right of the child toeducation with a view to achieving this right on the basis of equal opportunity. The UnitedNations Declaration on the Rights of Indigenous Peoples sets out that States and Indigenous-3peoples are to work in mutual respect and partnership to achieve standards. With regard toeducation Indigenous peoples must have access to schools consistent with language,cultures and values, and Indigenous peoples have the right to establish and control theireducational systems and institutions providing education in their own languages andcultures. Let us look at Article 13 of UNDRIP, Indigenous peoples have the right torevitalize, use, develop and transmit to future generations their histories, languages, oraltraditions, philosophies, writing systems and literatures, and to designate and retain theirown names for communities, places and persons.Bill C-33 gives no recognition to any of these international instruments nor does itacknowledge that Canada has any responsibilities and obligations in these regards.Many First Nations are currently undergoing this transformation and reclamation. Forexample, on December 31, 2013 the name of the Hobbema community was changed toMaskwacis (Bear Hills), the original name. The return of the name to the traditional one is ademonstration of resilience and the incremental steps required to achieve change.This commendable change was accomplished without the benefit of Bill C-33. Thechange is irrelevant to Bill C-33.BACKGROUND: CONSISTENT VISION FOR OVER FORTY YEARSBeginning in 1972, First Nations engaged a formal conversation with Canada to advance avision of First Nations control of First Nations Education (FNCFNE). Canada responded byaffirming the policy paper, Indian Control of Indian Education and assured it was committedto realizing the goals outlined. In 1998, Canada provided a Statement of Reconciliation andcommitted to renewal and to take an opportunity to correct wrong doings and to moveforward 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 historicStatement of Apology - June 2008 - and committed to advancing a new beginning to moveforward together, with First Nations, on the basis of reconciliation and partnership. Therenewal of the Crown-First Nations relationship, including the recognition andimplementation of inherent and Treaty rights is essential to rebuilding trust. Dedicatedaction to recognize and implement First Nation Treaty and rights is needed across allsectors as well as meaningful dialogue to support First Nation economic, social, andeducation outcomes.The education of our children is a fundamental and sacred responsibility and duty of ourNations. First Nations are resolved to resume our responsibility fully to First Nationeducation. While our ways, our rights and our responsibilities were pushed aside by thefederal government in the residential school era, we are resolved to achieve this better dayfor our children now.-4These statements are irrelevant to the contents of Bill C-33. No evidence is offerednor is evidence apparent that Bill C-33 conforms with these statements.As reflected in 1972 the core values of First Nations regarding education remain thefoundation of change and advancement now:We want education to give our children the knowledge to understand and be proud ofthemselves and the knowledge to understand the world around them. We believe ineducation: as a preparation for total living as a means of free choice of where to live andwork; and as a means of enabling us to participate fully in our own social, economic,political and education advancement. First Nations advance the centrality of our jurisdiction and responsibility to shape ourchildren 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 isevidence apparent that Bill C-33 conforms with these statements.CURRENT STATUS AND MANDATEFirst Nations have continually affirmed our right, responsibility and jurisdiction to controleducation. There has been consistent and dedicated advocacy and support to move forwardcommitment and investments to make First Nation control a reality. This work requires acombination of a national effort as well as regionally and locally directed efforts andunderstanding of respective roles.Most importantly, we have worked together over several years and have arrived at a placethat can truly support and enable First Nations to drive the work forward, drive it at a locallevel. 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 otherFirst Nations potentially as part of broader nation-building efforts or within existingarrangements with provincial systems, to advance self-government agreements or legislation or to advance a treatyimplementation approach enabling a Treaty system and recognition by Canada, and to advance existing or new Memorandums of Understandings (MOUs) or otherregional agreement processes to develop and enable First Nation education systems.None of these imperatives are addressed in Bill C-33. To the contrary, Bill C-33empowers the Minister to make regulations which would limit the ranges ofoptions set out above.The February 7th federal announcement signalled we are in a moment of opportunity, andthat there is significant work ahead to ensure First Nations Control of Education supportedthrough enabling legislation. This work requires dialogue and community identification ofFNE and it involves all levels of First Nations participation with particular emphasis on thework in the regions.-5There is no analysis or evidence provided as to how Bill C-33 relates to the abovestatement. The enabling referred to is enabling the Minister to exercise theadditional 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 andputting in place requirements and obligations of the federal government; suchrequirements must be carefully considered by all First Nations to ensure that regions andindividual First Nations are fully engaged in driving forward the development ofregulations as well as other options to achieve First Nations control.There is no reason to believe Bill C-33 is a first step any more than the Indian Actwas passed decades ago as a first step.INTERPRETATIVE CLAUSESBill C -33 Act establishes a framework to enable First Nations control of elementary andsecondary education and to provide for related funding and to make related amendmentsto the Indian Act and consequential amendments to other Acts.This language is Orwellian. In many respects, Bill C-33 actually does exactly theopposite of what this statement suggests. First Nations already have much of thecontrol mentioned. Unfortunately, the control is limited by statements in thecontribution agreements providing funding, as well as the lack of funding to maketheir control meaningful. This existing control, often confirmed by Treaty andrecognized 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 theoverall scope and intent of the Bill. These sections contain references that directly reflectstatements from Indian Control of Indian Education (1972) and commits Canada to a newapproach of recognition and affirmation of First Nation control as the guiding principle forchange.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 theMinister.These sections also contain references to language and culture, confirm that educationmust be child-centred, affirms the critical role of parents and families, and, provides anacknowledgment 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 toformer students of Indian residential schools, acknowledged past failures in the field ofFirst Nations education and committed to moving forward in partnership with FirstNations in a spirit of reconciliation;Whereas the Government of Canada recognizes the importance of quality, child-centrededucation for the success of First Nations children;-6Whereas First Nations education systems should be designed and implementedin accordance with the principle that First Nations have control of theirchildrens education;Whereas First Nations must receive support that enables them to exercise theirrights and fulfil their responsibilities relating to the elementary and secondaryeducation provided to their children;Whereas First Nations children attending schools on reserves must have accessto education that is founded on First Nations history, culture and traditionalvalues and enables them to participate fully in the social, economic, political andeducational advance;Whereas First Nations children attending schools on reserves must have access toelementary and secondary education that allows them to obtain a recognized highschool diploma and to move between education systems without impediment;Whereas parents and families of First Nations students must have the opportunity toplay a meaningful role in the academic success of their children and to ensure that theirchildren receive a quality education that is culturally appropriate;Whereas First Nations education systems must receive adequate, stable, predictableand sustainable funding that provides for the teaching of First Nations languages andcultures as well as for education support services;Whereas elementary and secondary education is an essential part of lifelong learning;Whereas the Government of Canada and First Nations must have ongoing andmeaningful dialogue with respect to the continuous improvement ofeducation outcomes for First Nations children;And whereas the Government of Canada acknowledges the protection provided forexisting Aboriginal or treaty rights of the Aboriginal peoples of Canada by therecognition 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 thePreamble. Such an analysis reveals, however, that the Bill utterly fails to fulfilthe Preambles beautiful words and in fact works in a manner contradictory tothe statements in the Preamble. Such an exercise reveals the Preamble as acruel deception.This statement above combined with non-derogation clause below are important inrelation to respecting Aboriginal and Treaty rights.The non-derogation clause is presented as follows under the heading General inBill C-33:4. For greater certainty, nothing in this Act is to be construed so as to abrogate or derogatefrom the protection provided for existing Aboriginal or treaty rights of the Aboriginalpeoples of Canada by the recognition and affirmation of those rights in section 35 of theConstitution Act, 1982.-7The Senate Committee on Legal and Constitutional Affairs, led in this matter bySenator Charlie Watt, has recommended that such statements should read:Every enactment shall be construed so as to uphold existing Aboriginal and treatyrights recognized and affirmed under section 35 of the Constitution Act, 1982, andnot to abrogate or derogate from them.1The Committees recommendation provides for non-derogation of rights. The wording ofBill C-33 speaks of non-derogation of the protections. Such a statement offers redundantassurance, since it is already provided for in the Constitution itself. Bill C-33 is deceptive inthis regard.It is important to ensure that the references made in the preamble are supportedthroughout the bill.Precisely. The problem is that the preamble is not supported throughout Bill C-33.PURPOSE3. The purpose of this Act is to provide for the control by First Nations of their educationsystems by enabling councils of First Nations to administer schools situated on theirreserves, to delegate that power to First Nation Education Authorities or to enter intotuition or administration agreements in accordance with this ActThere is a considerable difference between control by First Nation of educationand enabling councils to administer schools. The structure of Bill C-33 is to givecontrol over First Nation education to the Minister, and then provide for theadministration 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 betherefore consistent with the stated purpose. By providing for the control and alsoacknowledging that First Nations can delegate that power, these important statementsaffirm First Nation control of First Nation education.No. The power which can be delegated by a First Nation is the power to administerschools. Bill C-33 does not provide power and control. Rather, it limits it for theFirst Nation and confirms it for the Minister.The First Nation position is that First Nations have the inherent right to educatetheir own children. This right was not surrendered at Treaty. Therefore the rightcontinues. It is not necessary to have an Act of Parliament to confirm an existingright. What is needed is a mechanism so that right can be fulfilled and the meansprovided to do it. In fact, letting Parliament give the right makes it a legislatedright, not an inherent right.This is not delegation but rather, enabling recognition of First Nation control that includesthe power to delegate or enter into agreements. ICIE in 1972 pressed for the directrelationship between the First Nations (Bands) and the federal government.http://www.parl.gc.ca/content/sen/committee/392/lega/1 rep/rep05dec07-e.pdf-8Again, the stated purpose of the Act is to enable Councils to administer schools.NON-DEROGATION ABORIGINAL AND TREATY RIGHTS4. For greater certainty, nothing in this Act is to be construed so as to abrogate or derogatefrom the protection provided for existing Aboriginal or treaty rights of the Aboriginalpeoples of Canada by the recognition and affirmation of those rights in section 35 of theConstitution Act, 1982.See discussion above on this subject. The critical problematic words have beenunderlined.5. This Act does not apply to (a) a First Nation that has the power to make laws withrespect to elementary and secondary education under an Act of Parliament or anagreement 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 theschedule to the First Nations Jurisdiction over Education in British Columbia Act; or (b) theSechelt Indian Band established by subsection 5(1) of the Sechelt Indian Band Self-Government Act.This provision exempts self-government agreements under acts of Parliament.ACCESS TO FIRST NATION EDUCATIONThe next section requires that all First Nation children have access to a First Nation schooland sets out standard provisions in terms of school age and access. While these provisionsare largely what is currently required under contribution agreements or tuitionagreements these provisions do recognize ability of First Nation to make adjustmentspertaining to their circumstances.The provisions of the Act do not recognize ability of First Nations to makeadjustments pertaining to their circumstances. The only adjustments permittedare 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 toelementary and secondary education to any person who is ordinarily resident on a reserveof 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 educationwhether or not resources are provided to do so. Neither is there freedom of theCouncil 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 arefour 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 ofsubsection (1) must enable a student to obtain (a) a certificate or diploma issued by theMinister of Education of a province; (b) an International Baccalaureate diploma issued bythe International Baccalaureate foundation; or (c) any equivalent graduation certificate or-9diploma approved by the Minister.2Following the tabling of a proposed Bill in October 2013 and its subsequent rejection, FirstNations were very clear that unilateral authority of the Minister was completelyunacceptable and not consistent with the principle of First Nation control. As a transitionstep, it has been recognized that support and assistance with capacity development will berequired as First Nations develop education authorities and/or self-government, otheragreements or acts including Treaty implementation.The second sentence of the above paragraph is a double non-sequitur. What is thetransition which is required or results from the first sentence? Also, where in BillC-33 is there mention of support and assistance with capacity development whichwill be required as First Nations develop education authorities and/or selfgovernment,other agreements, or acts including Treaty implementation. The Billis silent about such support.The proposed Joint Council of Education Professionals is, in part, a response to FirstNations insistence on reciprocal accountability. Working together, the members of theCouncil 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 inany way the Joint Council is in any way an instrument to provide reciprocalaccountability. This term has generally meant that if First Nations are to be heldaccountable for the education of their children, the Minister must be accountablefor providing the resources necessary to provide quality education.There is nothing in Bill C-33 which empowers the Joint Council to do much morethan respond to requests from the Minister on certain matters, no obligation tofollow the advice received. As advice to a Cabinet Minister, any advice providedwould be confidential and protected from release. There is no obligation onmembers of the Council to work together nor to support First Nations control ofeducation.We have seen in other areas in recent years that Joint Councils have been established withregard to the implementation of regional management boards and authorities.For certain, the most important element is that the JOINT COUNCIL be established withsufficient independence and legitimacy through a clear and open nomination process.The Bill falls short of providing either independence and legitimacy.It is important to ensure the council is co-chaired by a First Nation education professionaland that First Nation appointments of other First Nation education professionals are linkeddirectly to First Nation decision-making processes.If this is important, why is it not in Bill C-33? There is no requirement in the Bill that2 The AFN Analysis offered this caveat: *This matter requires further consideration as First Nations should set the criteriafor what an equivalent graduation certificate or diploma could be and possibly there is a role here for the Joint Council ofEducation Professionals.-10the members of the Joint Council be indigenous, nor that they be First Nationeducation professionals, nor that the First Nation appointments are linked toFirst Nation decision-making processes. The only requirement is that they arewith knowledge of or experience in elementary or secondary education.The JOINT COUNCIL must also report and advise both First Nations and the Government ofCanada on a regular basis, this ensures ongoing meaningful dialogue.While the role of the council is to advise the Minister, councils of First Nations andFirst Nation Education Authorities, the only obligation to do so set out in Bill C-33 isin relation to the confidential advice it offers the Minister.The JOINT COUNCIL is anticipated to have an important role in ensuring First Nationinvolvement in the proposed regulatory process. A clear and confirmed plan for thisinvolvement as well as access points for direct First Nation engagement is required.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-33silent in this regard?Minister Bernard Valcourt has formally invited the development of a political protocol withthe Assembly of First Nations on this matter. Political protocols between Canada and FirstNations have been used in recent efforts including the establishment and operation of theAboriginal Healing Foundation, the effort to establish the Specific Claims Tribunal as well inregions such as in the British Columbia Health Accord. In addition, a political protocol hasbeen suggested specifically with regards to education by regions, notably Ontario inJanuary 2014.Political protocols have no legal meaning. A political protocol cannot contravenelegislation. At any rate, there is no obligation or even suggestion in Bill C-33 thatany Minister should enter into or honour such a political protocol.The examples given of political protocols were used primarily in theestablishment of such institutions as the Aboriginal Healing Foundation. Suchprotocols so not affect the operation of the institutions. Had the Minister enteredinto such a protocol when the Education Act was first being contemplated, theproblems he has now in tabling a Bill no one has ever seen might have beenavoided. 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 includespressing for clearly distinct regional components of the regulatory work and, designatedregional representation to ensure that regional variation is fully respected.Bill C-33 does not provide for any such options to be considered or applied. If it isimportant that the concept stated by adopted, provisions for it should be in the Bill.GOVERNANCEThe next section describes basic functions relating to the operation of a school that a FirstNation will prepare including setting an annual budget, school success plans, education-11programs and school policies. There is no Ministerial oversight of these functions, ratherthey are described as part of education governance by the First Nation.Bill C-33 provides authority for the Minister to impose regulations which set outhow the form and contents of the budgets, plans, programs and policies. TheMinister may also impose provincial law to govern such matters.This section also includes First Nation language as a language of instruction in addition toEnglish and French. Based on interpretations comparing other statutes dealing witheducation the reference language of instruction confirms immersion programming in aFirst 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 forthis purpose, much less increased funding. The language instruction must beprovided according to the regulations which are unilaterally imposed by theMinister.Subject to the regulations, the council of a First Nation is to offer English or French as thelanguage of instruction and may, in addition, offer a First Nation language as a language ofinstruction.The council of a First Nation may, as part of an education program, give students theopportunity to study a First Nation language or culture.[The AFN analysis notes] There have been questions raised regarding the inclusion of inaddition of First Nation language of instruction as First Nations want to ensure that this isinclusive of First Nation language immersion. It is important to note that in a letter to allFirst Nations on April 14, 2014, the Minister states that Bill C-33 legally supports theincorporation of First Nations language and culture programming in the educationcurriculum, 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 andculture program in the curriculum, and that Bill C-33 is required to provide legalsupport for such incorporation.FIRST NATION DELEGATING POWER TO A RESPONSIBLE AUTHORITY OR EDUCATION SYSTEMFirst Nation control of First Nation education has always insisted on the need to build anddevelop second and third level First Nation education services. Bill C-33 recognizes thispower and authority of First Nations and sets a process where this is enabled. The ongoingrole of the Minister and the Joint Council as well as what is required through regulationmust be carefully considered to ensure respect to regional and provincial variation. Undersection 48 (4), variation is contemplated: the regulations may vary from province toprovince.When did a First Nations language and culture become second and third leveleducation services? In the public schools, Canada teaches language and culture asa primary function of education. If First Nations already has an inherent right toteach their language and culture in the school, why do they need Bill C-33 to make itlegal?-12This 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 agreementmeets the conditions set out in the regulations.In other words, under Bill C-33 a First Nation Council may delegate its powers andfunctions to administer education to a corporation created under federal orprovincial law providing the agreement meets the conditions the Minister has setout 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 anagreement, and if in the opinion of the Minister he feels there is noncompliancewith the agreement, the Minister may cancel the agreement. Zap.COMPLIANCE WITH ACT39 (1) If a school is the subject of a report submitted under subsection 38(2) that identifiesproblems of noncompliance with the requirements under this Act, the responsibleauthority administering the school must ensure that measures are taken to remedy thoseproblems.(2) After seeking the advice of the Joint Council, the Minister may require the responsibleauthority to employ a special advisor to provide advice on the development andimplementation of the measures referred to in subsection (1).40. (1) After seeking the advice of the Joint Council, the Minister may appoint a temporaryadministrator to administer a school for a specified period (if Minister does not receivereport, that there is significant problems of non-compliance and if immediate action isrequired due to significant risk to student well-being)To put this in terms currently in use, if the Minister feels a school is not incompliance with the Act and its regulations, it may put a school under comanagementat its own expense, and if there is still not compliance, the Ministermay place the school under third-party management. There are no alternativesprovided for obtaining compliance, no recourse, no appeal, no due process.It is acknowledged that education and provision of schools clearly require rigorousoversight for safety and outcomes for students. The objective should be to have thatoversight provided by First Nation authorities - with the support and capacity buildingrequired through First Nation education entities and/or the Joint Council wheneverpossible.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 oreliminated wherever possible.-13If this is the opinion of the AFN, and the AFN participated in the making of thelegislation, why is this view not included in Bill C-33? The Bill is the Bill.STATUTORY GUARANTEE OF FUNDINGFirst Nations have consistently demanded a statutory guarantee for fair funding for theirschools. Bill C-33 is the first time that the obligation of the Canadian government to fundFirst Nation education has been confirmed and at a rate that is comparable to regionssharing the same geographic and demographic characteristics.The AFNs analysis is clearly in error on this very important point. There is no suchstatutory 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 spenton this legislation. It has currently said it will cap any increases at 4.5% instead ofthe 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 largestpopulation growth, with an increase of 22.9% between 2006 and 2011.3 Thats4.8% annually. So on that one factor alone without considering inflation,increased costs, depreciation, accumulated deficiencies, etc., 4.5% increase per yearwill not even cover population growth. There will not only be no improvement inquality 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 fundingallocations will be set through regulatory development which must be done in acooperative process directly with First Nations.There is nothing in Bill C-33 calling for funding for language and cultureprogramming. The Prime Ministers announcement on February 4, 2014, includedlanguage 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 foreducation enhancement.The $1.9 billion budget commitment in the 2014 budget is a key component with theintention that such additional investment will close existing gaps in funding and, create astable funding transfer relationship that is no longer reliant on annual contributionarrangements.If there is such an intention, why is it not stated as a commitment? Again thegovernment is asking trust us. Pass the Bill, and then we will fulfil ourcommitment. No Bill passed, no commitment.The $1.9-billion will be averages out to $633-million for three years, and afterthat, 4.5% increase annually.3 http://www4.hrsdc.gc.ca/.3ndic.1t.4r@-eng.jsp?iid=36-14Of that money,$402-million will start flowing two years from now and continue for three yearsto support the implementation of the Act starting in two years;$40-million will start flowing in a year and continue for four years into anEnhanced Education Fund.And $500-million will start flowing in a year and continue for 7 years for neweducational infrastructure.The government has not been clear if this is new money on top of existingexpenditures, or simply new levels of expenditure.Furthermore, the funding will no longer be subject to a cap but rather a reasonable rate ofgrowth similar to transfer payments between federal and provincial governments startingat 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 forsaying the 4.5% is a starting amount, implying it will be increased.Through funding projections as demonstrated in AFNs funding fact sheet released after theFederal Budget annual contributions for First Nations governments will have grown to $2billion annually by 2012-22, an increase of $800 million from current funding and it will beannualized.This information about First Nation governments in the AFN analysis is irrelevantto the question of educational funding.43. (1) The Minister must pay to a responsible authority, in respect of each school year andat the time and in the manner prescribed by regulation, the amounts determined inaccordance with the methods of calculation established in the regulations for providingaccess 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 ofservices to each First Nation school and to persons referred to in section 7 attending such aschool that are of a quality reasonably comparable to that of similar services generallyoffered in a similarly sized public school that is regulated under provincial legislation and islocated in an analogous region.(3) For the purposes of subsection (2), an analogous region means a region that is in thesame province as the First Nation school in question and whose geographic anddemographic characteristics are similar to those of the region in which that school islocated.(4) The amounts payable under subsection (1) must include an amount to support thestudy 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 leapover the all-important section 45 which has been quoted on page 2 of this analysis.It is important enough to quote again:-1545. (1) The aggregate amount that may be paid by the Minister under this Act in anyfiscal year must not exceed the amount that is specified by order of the Governor inCouncil for that fiscal year. The order is made on the recommendation of theMinister 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 Financeabout the total amount of spending, and an Order in Council is issued. That is theway it is done. As part of the statute, this provision will supercede and promisemade anywhere else, including in this years Budget.49. (1) The Joint Council must, five years after the day on which section 21 comes into forceand every five years after that, undertake a review of the provisions and the operation ofthis Act and the regulations. (2) In carrying out the review, the Joint Council must give FirstNations an opportunity to make representations and must consider fully anyrepresentations made. (3) The Joint Council must, no later than one year after the day onwhich the review is undertaken, submit to the Minister a report on its review. (4) TheMinister 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 accompanyingaccountability between Canada and First Nations evidenced through the Joint Councilshould be reflected through an independent report to parliament without edit from theMinister.Unfortunately, this provision does not appear in Bill C-33.REPEAL OF INDIAN ACT PROVISIONSAll provisions referenced in the context section of this analysis (sections 114- 122 ) will bepermanently deleted by Bill C-33 - ending unilateral Ministerial control of First Nationeducation in law. This provision also means that the Minister no longer has any power toplace First Nation children in residential or other schools.The statement is incorrect. Bill C-33 does not end unilateral Ministerial control ofFirst Nation education in law. Rather Bill C-33 replaces the weaker control of theMinister set out in the Indian Act with the much stronger control provided for in BillC-33.NEXT STEPS - CONCLUSIONRecalling that local control, parental responsibility and sufficient funding were called for in1972 as a response to the abhorrent conditions that First Nation children were exposed toand forced to participate in through residential school systems moving forward to resumeFirst Nation control remains a paramount need.-16Bill C-33 is enabling legislation which means that much detail will be in regulation. Bill C-33states that the Joint Council must ensure that First Nations are engaged in this process. Thisnext step will be critical First Nations are very diverse and have distinct needs,circumstances and approaches. April 24, 2014 Page 10Bill 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 andcultures will be part of a First Nation education system.As has been explained above, Bill C-33 provides for a lessening of local control andan increase in the Ministers control.The AFN Analysis is also incorrect in that there is a requirement that First Nationlanguages and cultures will be part of a First Nation education system. Bill C-33contains no such requirement.Bill C-33 does not replace nor does it create any barrier to Treaty implementation, selfgovernmentand self-determination.Bill C-33 blocks First Nation control of First Nation education and ignores inherentrights confirmed by Treaty.Through increased resources and support, Bill C-33 creates a transition to these steps asdirected 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 notrequired to begin the transition of restoring the inherent right of First Nations tocontrol their own education.What is required is for the government to change its policies which today preventthat from happening. There is no provision for the transition to be directed andadvanced by First Nations citizens and their leaders. Bill C-33 provides power to theMinister to control the transition.Based on the foregoing analysis and summary charts, discussion and engagement on Bill C-33 is a constructive and necessary step supportive of the goals expressed by First Nationsfor control, respect for Treaty and Aboriginal rights, recognition of language and cultureand a clear statutory guarantee for fair funding.The AFN Analysis provides no evidence to support its conclusion that Bill C-33 is aconstructive 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 andrespect for Treaty and Aboriginal Rights. To the contrary, Bill C-33 is a legislativeeffort to supercede those same Treaty and Aboriginal Rights.Bill C-33 provides no recognition for language and culture. To the contrary, Bill C-33 increases the Ministers power to control the teaching of language and culture.-17Bill C-33 contains no clear statutory guarantee for fair funding. To the contrary, itgives the Minister sole power to limit the amount of funding even if this meansinequitable unfair funding will result.Details associated with reciprocal accountability including the Joint Council, jointregulation development, and further clarity on the ongoing meaningful dialogue areimportant matters which may be addressed through the proposed political protocolbetween 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 beingleft to an unenforceable proposed political protocol whose contents have yet tobe revealed.