First Nations education bill fails the test

Politics is a messy business, so it is helpful to have clarity now and then. 

Certainly, partisan posturing often can muddy the issues and impede progress. On First Nations issues, entrenched positions and a high volume of uninformed rhetoric from both sides doesn’t help either. As a result, before the bill had been tabled many blindly rejected the new education legislation, while others absurdly insisted it should be adopted. 

Those early positions were both unfair, but this much is now perfectly clear: unless it is amended before passing, the Bill the government tabled in parliament yesterday is a failure. 

This judgement can be made so clearly because everyone agreed on the criteria for assessing the legislation, and Bill C-33 -- the "First Nations Control of First Nations Education Act" -- simply doesn’t meet them.

In December of 2013, faced with a draft bill that satisfied no one outside the Harper government, First Nations Chiefs-in-Assembly passed a resolution setting down five conditions that must be met. 

According to the resolution, the legislation would need to:

a.     Respect and recognize inherent rights and title, Treaty rights and jurisdiction.

b.     Provide a statutory guarantee for funding of First Nations education.

c.      Enable and support full immersion and grounding of all education in Indigenous languages and cultures.

d.     Provide mechanisms for reciprocal accountability and ensure there not be unilateral federal oversight and authority.

e.     Ensure a process to address these conditions.

This was followed by an exchange of letters with Aboriginal Affairs Minister Bernard Valcourt and, on behalf of the Government of Canada, he committed to meeting those five conditions in re-drafting the legislation. Yesterday, Bill C-33 was tabled. In presenting it, Minister Valcourt again claimed the five conditions were met. 

For his part, National Chief Atleo was more cautious yesterday, saying First Nations need to assess the language of the bill on their own. That position is consistent with his mandate. His job was to get the government to draft the best bill possible, while it is the task of First Nations, as rights holders, to judge the result.

The problem is that it fails so obviously only those willing to ignore the conditions set in December's resolution, to which all have committed, could think otherwise.

Although there is room to debate it, one need not worry about whether the funding, scheduled to begin in 2015, actually meets needs or enables language immersion. Nor is the degree to which the legislation acknowledges and respects First Nation jurisdiction the key question, although that is closely related to the main issue.

What is absolutely clear is that Bill C-33 does not respect the condition set down by Chiefs that there be reciprocal accountability. While the bill has plenty of language on how First Nations must be accountable for their schools, there is a complete absence of reciprocity.

Bill C-33 creates a joint council of education professionals to provide advice to the Minister and the Minister is compelled to seek that advice. He is then free to ignore it.

The bill also commits the Minister to take certain actions, most importantly to meet the funding levels that will be established by regulation. However, the Minister is authorized to set those regulations unilaterally, after seeking the advice that he is permitted to choose to ignore.  

The right to sue if the Minister fails to observe process -- which is all this amounts to given the Minister’s sole authority over content -- is the same one administrative law provides to all Canadians under all legislation.  

As a result, no one can claim that the bill meets the condition for reciprocal accountability as it was described in the December resolution, a resolution that explicitly and specifically identifies the exercise of unilateral authority by the Minister as the defining feature of non-reciprocity. 

Regardless of one's partisan stripe, position on First Nation rights, feelings about the role of the AFN, or any other issue that might prejudice opinion, when everyone agrees on the criteria for assessment and the assessment is this easily made, the bill is clearly a failure.