Tuesday, September 23, 2014
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First Nations Education Act 101: A settler's guide

By Correy Baldwin

rabble.ca

You may not be aware of this, but there is an important and heated debate going on among Indigenous communities right now. The issue at hand is a federal bill designed, ostensibly, to return control of First Nations education to the First Nations themselves.

But there's a larger issue at play -- one that those of us who are non-Indigenous would do well to pay attention to. The debate is a uniquely colonial one, the kind that is provoked when one nation refuses to give up control over what is rightfully the jurisdiction of another nation (or in this case, 633 nations). It's impossible to understand the debate around the First Nation Education Act without an understanding of Indigenous people's inherent and treaty rights.

What do inherent rights have to do with it?

Inherent rights are the fundamental and existing rights of Indigenous peoples, based on their original and long-standing occupation of and governance over their land. Canada's top court first recognized Indigenous people's inherent rights in 1973 in its Calder decision. The key word here is recognized. It's important to note that Canada has never had, nor ever will have, the power to grant such rights -- it can only recognize that which has always existed.

The Supreme Court has since held back from specifically defining what those inherent rights are. Luckily, there are people who are more than happy to do this for you -- those who hold these rights: the Indigenous peoples themselves.

You can also check out the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has signed, and which provides a handy list. One of these inherent rights is control over education and educational institutions, in their own languages, appropriate to their own cultures (see Article 14).

This is what people are referring to when they talk about First Nation control over education. Even the official title of the current bill acknowledges this -- after recent amendment it was renamed the First Nation Control Over First Nation Education Act.

Now, there are also treaty rights to education. The original treaties that Canada signed with the First Nations granted the colonists access to Indigenous land, with provisions for things like settlement and access to resources. In exchange, the colonists agreed to certain conditions and obligations, one of which was to provide the necessary resources for education.

This obligation appears in the first numbered treaties as some variation of: "Her Majesty agrees to maintain schools for instruction." Later numbered treaties affirm "the policy of the government to provide ... for the education of the Indian children."

Rights violated, rights reclaimed

Basically, we are obliged to provide the resources, but they have the right to provide the education. Very quickly, however, this agreement fell apart. Canada's takeover of First Nations education began immediately, and in earnest, culminating in the notorious residential schools.

The residential schools were designed to purge First Nations children of their language and culture, and to turn them into "proper Canadians." It resulted in systemic abuses -- cultural, physical and sexual -- that continue to affect not just survivors, but their children and their children's children.

When First Nations say they want control over their own education, their words are tinged with the memory of residential schools. This is also why, when Canada offers a new bill on education, it cannot be received with anything but wariness and suspicion.

The last federally operated residential school closed in 1996, and the Government of Canada apologized for the system in 2008, but First Nations activists began fighting for control of education in the early 1970s, with some significant successes.

And yet Canada has always maintained solid control. And boy have the results been shoddy. Just over half of Indigenous students nationally make it to Grade 12. High school graduation on reserves is at 35.5 per cent, compared to 78 per cent for the whole country.

The main reason for this "performance gap," as it's often referred to, is most likely chronic underfunding. The provinces spend an average of $10,000 per student, while the federal government's core funding for First Nations schools is around two-thirds that, at less than $7,000 (the federal government argues it spends more than that, and it does, but on ad hoc projects and programs).

Furthermore, in 1996 the government capped funding increases for First Nations schools at two per cent annually, despite the First Nation population growing at least twice that much at the time. This population growth has only increased, which means every year funding must be spread even more thinly.

The First Nation Education Act

Clearly things have got to change. That much, at least, everyone agrees on: thus the First Nation Education Act. So what's in the bill? Honestly, there's a lot of really good stuff there. It provides for not just a massive boost in funding, but "adequate, stable, predictable and sustainable" funding. It allows for funding and curriculum to be dedicated to First Nations language and culture. It allows First Nations to develop their curriculums. It calls for ongoing discussions over the implementation of the bill. It's light years ahead of where we are today.

And yet First Nations criticism persists -- even outright rejection -- which leaves a lot of people dumbfounded: Doesn't this bill give them everything they need? What else could they possibly want? To answer this, we have to go back to inherent and treaty rights, and to Canada's colonial relationship with these rights. For despite everything in the Act, the fundamental problem remains: Canada still refuses to give up control.

Here are some examples: Under the Act, teachers must be certified by the province, and diplomas will be issued by provincial Ministers of Education. Curriculums, while incorporating aspects of Indigenous culture, must meet provincial standards.

There are also these juicy bits: Under the Act, the Minister of Aboriginal Affairs has control over who sits on and chairs the Joint Councils (the main decision-making bodies under the Act). If a school fails an inspection report, the Minister can unilaterally appoint a "temporary administer" to run the school, and this person can ask the Minister to revoke a First Nation Education Authority's status.

There's also this caveat: all new funding is tied to this bill, meaning that if First Nations refuse to accept this bill, there will be no new funding. Even if they do accept it, no new funding will come until 2016.

Details aside, the simple concept of this bill -- telling First Nations what they are allowed to do, and granting them powers -- is inherently paternalistic. It's inherently colonial: if we stand by the concept of inherent rights, we can only relinquish our control, we have no right to grant it.

What should Canada do?

The funny thing is, the federal government claims that it does indeed stand by the concept of inherent and treaty rights. According to the Act itself: "nothing in this Act is to be construed so as to abrogate or derogate from the protection provided for existing Aboriginal or treaty rights of the Aboriginal peoples of Canada."

So are we handing over control, or aren't we? Do we acknowledge their inherent and treaty rights, or don't we? No we aren't, and no we don't.

Acknowledging Indigenous inherent and treaty rights over education would mean funding their schools appropriately, and doing so with no strings attached. We need to accept their own qualifications for teachers, their own standards for high school graduation, their own curriculum and their own standards for assessing the quality of that curriculum. This is not a foreign concept: if we can acknowledge the educational standards of other nations, surely we can acknowledge theirs.

I realize how unpopular this would be, but we signed the treaties, and that's the deal. It's the price we agreed to pay. And not just that: if we want to live peacefully alongside our Indigenous neighbours, and if we want to treat them with respect, we must give them what is rightfully theirs. Anything else just keeps colonialism alive.

Correy Baldwin is a freelance writer and editor based in Montreal, and an editor-at-large with the Media Co-op. Baldwin's writing has previously been published on rabble.ca, as well as in the Dominion, Maisonneuve and This Magazine.

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