First Nations Education: First Nations Control of First Nations Education Act, the UNDRIP, and New Promises
By Tony (Hao Nan) Zhou
The education of First Nations in Canada is an ongoing issue in Canadian domestic politics and may present new challenges for Canada in meeting its international obligations if the new federal government follows through on its promise to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
There are currently 518 schools on First Nations reserves in Canada. Eleven numbered treaties with different First Nations contain education provisions, agreements which were subsequently recognized and affirmed by s. 35 of the Constitution Act, 1982. “The strict reading of the treaties, however, binds the government only to provide ‘a school in each reserve’ (Treaties 1 and 2) or ‘to maintain schools for instruction’ (Treaty 3 and Treaty 5) or ‘to pay such salaries of teachers to instruct the children of said Indians, and also to provide such school buildings and educational equipment as may seem advisable to His Majesty’s government of Canada’ (Treaty 9)”.
Historically, there has been a lack of consensus with respect to what the Crown’s treaty obligations require and the nature of any corresponding treaty rights. The “federal government’s long-standing practice…has been to deliver educational services within the context of the education provisions of the Indian Act…[which] deal largely with truancy and make no reference to substantive education issues or the quality of education to be delivered”. According to Paquette and Fallon, “[n]either party to the treaties could have foreseen… the rapid increase over the last century…in levels of educational attainment necessary for an economically prosperous, socially fulfilling, and politically engaged life”.
Today, the education provided to First Nations (and Canada’s Aboriginal peoples in general) continues to underperform in both quality and outcome. According to Statistics Canada, less than half of Aboriginal people aged 25 to 64 had a postsecondary education in 2011. In comparison, almost 65% of non-Aboriginals did. A large portion of qualifications from Aboriginal schools are also not recognized by employers. This is because the Treaties do not guarantee the funding or the standards on the provision of education to First Nations. While the former dilemma is alleviated by various financial acts, such as annually passed Appropriation Acts and the Financial Administration Act, regulation on staff quality and educational standard is still a vacuum. The lack of standardization with respect to the provision of Aboriginal education makes those who fund and provide the education effectively unaccountable, and leads to barriers in acquiring employment for individuals who pass through the system.
In 2014, then-Minister of Aboriginal Affairs and Northern Development, Hon. Bernard Valcourt, introduced the First Nations Control of First Nations Education Act (Bill C-33) to address the lack of regulation in Aboriginal education. The Bill proposed the establishment of standards in the quality of education that Aboriginal schools would have to provide to their students, and promised increased funding to facilitate the development of a new infrastructure. The Bill also attempted to clarify roles and responsibilities to introduce accountability into the new system, in an attempt to measure progress and ensure continual improvement of both quality and employability of Aboriginal education.
Many individuals, however, expressed concerns regarding how the Bill might affect Aboriginal treaty rights; caps on federal funding were met with suspicion, and there was a concern that the Bill ultimately failed to grant First Nations autonomy over education. In addition, First Nations leaders desiring a nation-to-nation negotiation process held the belief that leaders of the Assembly of First Nations, with whom the federal government consulted, did not possess authority over Aboriginal affairs, or have the independent political power to negotiate on their behalf. The Bill was ultimately unable to gather the wide support it required, and Canada has yet to establish guaranteed funding and standards in the provision of education to First Nations.
In November of 2015, Hon. Carolyn Bennett, Minister of Indigenous and Northern Affairs, confirmed that Canada would implement the UNDRIP. With respect to education, the UNDRIP asks that States recognize the following rights:
- Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.
- Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination.
- States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.
- Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.
- States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.
The implementation of the UNDRIP, in a way, will effectively require the federal government to enact legislation that can accomplish what its implementation demands. Any future legislation should be in accordance with and ensure the rights set out in Articles 14 and 21. This will present new challenges in negotiating legislation on First Nations education, which appears to be a priority for Prime Minister Trudeau, who promised nation-to-nation negotiations, and pledged to invest $2.6 billion dollars into First Nation education.
 Joanna Smith, “Canada will implement UN Declaration on Rights of Indigenous Peoples, Carolyn Bennett says”, Toronto Star (12 November 2015), online: <http://www.thestar.com/news/canada/2015/11/12/canada-will-implement-un-declaration-on-rights-of-indigenous-peoples-carolyn-bennett-says.html> [Smith].
 Robert Laboucane, “Canada’s Aboriginal Education crisis” The Aboriginal Multi-Media Society (AMMSA) 28:7, 2010, online: <http://www.ammsa.com/publications/windspeaker/canada’s-aboriginal-education-crisis-column>.
 Jerry Paquette, Gerald Fallon, First Nations Education Policy in Canada: Progress or Gridlock (Toronto: University of Toronto Press, 2010) at 182.
 Report of the Standing Senate Committee on Aboriginal Peoples, “Reforming First Nations Education: From Crisis to Hope” (December 2011) at 10, online: <http://www.parl.gc.ca/content/sen/committee/411/appa/rep/rep03dec11-e.pdf>.
 Ibid at 182-183.
 The educational attainment of Aboriginal peoples in Canada, Statistics Canada, online: <http://www12.statcan.gc.ca/nhs-enm/2011/as-sa/99-012-x/99-012-x2011003_3-eng.cfm>.
 Katrina Clarke, “Native education problems won’t be fixed through more funding, study says”, National Post (7 August 2014), online: <http://news.nationalpost.com/news/canada/native-education-problems-wont-be-fixed-with-more-funding-study-says>.
 Michael Mendelson, “A Second Look at the First Nations Control of the First Nations Education Act”, Caledon Institute of Social Policy (August 2014) at 3, online: <http://www.caledoninst.org/Publications/PDF/1049ENG.pdf> [Mendelson].
 Indigenous and Northern Affairs Canada, ARCHIVED – Bill C-33: First Nations Control of First Nations Education Act, online: <https://www.aadnc-aandc.gc.ca/eng/1358798070439/1358798420982>.
 Mendelson, supra note 9 at 7.
 Pamela Palmater, “Chief Shawn Atleo should tear up First Nations Education Act”, Rabble (30 April 2014), online: <http://rabble.ca/blogs/bloggers/pamela-palmater/2014/04/chief-shawn-atleo-should-tear-first-nations-education-act>.
 Smith, supra note 1.
 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295, at Arts 14 and 21, online: <http://www.refworld.org/docid/471355a82.html>.
 Susana Mas, “Justin Trudeau promises $2.6B for First Nations Education”, CBC News (13 August 2015), online: <http://www.cbc.ca/news/politics/canada-election-2015-liberal-justin-trudeau-first-nations-1.3189872>.