Expanding the horizons of education self-government in Canada
By Donald B. Shanks, Rachael M. Paquette and Jordan R.D. Lester
The Anishinabek Nation Education Agreement (the “ANEA”) is a proposed self-government agreement between Canada and the Anishinabek First Nations, where Canada would recognize First Nation jurisdiction over primary, elementary and secondary education. The ANEA was recently voted upon by member communities, and subject to ratification by the individual communities, it would be Ontario’s first education self-government agreement, and the largest of its kind in Canada. This paper explores the history of education self-government in Canada, the proposed terms of the ANEA, and the impact it would have on First Nations’ education in both Ontario and across Canada.
While debating the now-defunct First Nations Control of First Nations Education Act in Parliament, MP Carolyn Bennett (now Minister of Indigenous Affairs) stated that “improving educational attainment for First Nations students is one of the most pressing social justice issues in Canada. It is absolutely fundamental in ensuring the equality of opportunity for first nations in Canada.”
This goal of improving educational attainment of First Nations students is paramount in the Anishinabek Nation Education Agreement (the “ANEA”).
The structure of the ANEA, its importance, and its implications will be highlighted throughout this paper, but to start, and as a very basic description, the agreement is a paradigm shift for the delivery of education to First Nations students who live on and off reserve. Essentially, it will be an education framework for First Nations; by First Nations.
Ontario’s Minister of Indigenous Relations and Reconciliation David Zimmer explains it as follows:
The idea here is to get the First Nation on-reserve education system, which is the responsibility of the federal government, up to the same level as the provincial school system off-reserve and, indeed, the school boards in Toronto and so on. There’s no reason why there should be a gap in the equality of education that’s available in the elementary and high schools between on-and-off reserve.
The ANEA was initiated by the Union of Ontario Indians (the “UOI”) and the federal government in July 2015. The parties to the ANEA are the Anishinabek First Nations that ratify the agreement and Canada, represented by the Minister of Indian Affairs and Northern Development.
The Anishinabek Nation represents forty (40) member First Nations across Ontario, through the UOI, which was incorporated in 1949. Its forty (40) member First Nations have a combined population of nearly 60,000, which represents roughly one-third of Ontario’s aboriginal population. It covers an area from the western corner of Lake Superior to the Ottawa River to the southern shore of Lake Huron.
Between November and December 2016, member First Nations of the Anishinabek Nation held a ratification vote on the proposed framework of the ANEA. On December 7, 2016, it was announced that the ratification vote was successful.
Now that the ratification stage has passed, the framers of the ANEA have begun the negotiations (which are ongoing at the time of drafting this paper) to establish what exactly the agreement is, how it will work, and who’s going to pay for it.
It’s anticipated that a final agreement will be in place by April 1, 2018.
How did the ANEA come to be?
As with anything related to the law, the best starting point is the Constitution. Under section 91(24) of the Constitution Act, Parliament has the exclusive jurisdiction and legislative authority over “Indians, and lands reserved for Indians”. However, section 93 of the Constitution Act gives the provinces exclusive jurisdiction and legislative authority over education.
This constitutional dichotomy has led to a significant amount of confusion and dispute between the federal government, the provinces, and First Nations, and is primarily to blame for the large gaps in the delivery of education to First Nations students, mainly those who live on-reserve.
For example, in a report released on December 1, 2016, Canada’s Parliamentary Budget Officer Jean-Denis Fréchette (the “PBO”) released a report titled Federal Spending on Primary and Secondary Education on First Nations Reserves. In this report, after comparing available information and data on federal and provincial education spending, the PBO’s analysis found that federal funding mechanisms:
- do not adequately account for important cost drivers related to operating band schools;
- favour students living on reserves who attend provincial schools; and
- put small schools in remote and northern regions at significant disadvantage.
Using the example of the Superior-Greenstone District School Board, which is based in Marathon, Ontario and covers a large geographical area in northern Ontario (roughly an area the size of Slovakia), the PBO noted that the federal government pays roughly $22,000 in tuition to the Superior-Greenstone board for every First Nations student residing on-reserve attending one of its schools. In contrast, the core allocation for children attending band-operated schools in Ontario was roughly $11,600 per student in 2008-09 and remained flat through 2014-15. The difference is due to funding models relating to core funding to on-reserve schools and tuition agreements for students to attend school off-reserve.
Ontario’s deputy Minister of Ontario Ministry of Indigenous Relations and Reconciliation Deborah Richardson calls it “a disconnect”:
Because what happens is that the federal government provides funding to schools on-reserve at a level that is less than what the provincial government funds, so if you’re a principal running a school, you can imagine running a school at, let’s say, $6,400 a kid when the Patricia Kenora school board [sic] would have, let’s say, $15,000 a kid. You’re not able to recruit the same level of teachers, you’re not able to have the same supplies […] So then what happens is that the children come into the provincial school system and – surprise, surprise – sometimes they don’t do that well because they don’t have the same educational background as others.
In terms of student success, the statistics are even more deplorable. According to the 2006 census, only 39% of First Nations people living on reserve between the age of 20 and 24 had graduated from high school, as compared to 78% of the general population. This represents a gap of nearly 40%.
In October of 2013, the federal government proposed a bill to repeal the sections of the Indian Act dealing with education, and introduced the First Nations Control of First Nations Education Act. The purpose of this act was to establish a framework to enable First Nations governance of elementary and secondary education and to provide for related funding. The bill was sponsored by then-Minister of Aboriginal Affairs and Northern Development Bernard Valcourt.
At first reading of the bill, Minister Valcourt stated:
Bill C-33 legally enables First Nations control of First Nations education in several specific ways. First Nations will choose their governance system from a number of options to manage their own schools. First Nations will develop their own curriculum. Ottawa will not impose any of the curriculum; First Nations will develop it themselves.
First Nations will choose how they will incorporate language and culture into their curriculum. They will choose their own education inspectors, control the hiring and firing of teachers and determine how their students will be assessed. First Nations will determine how the school calendar will be structured to meet a set number of days. All of that is designed to give them control over their education.
The bill was not without controversy, as some First Nations leaders felt there was inadequate consultation and that the bill was simply being imposed on First Nations. Nevertheless, the bill made it to second reading, but died after the October 2015 general election when a new government was formed.
At the time of writing this paper, a new bill has not been introduced, however, Prime Minister Justin Trudeau did include $2.6 Billion in funding spread out over 5 years in the 2016 budget. The money is meant to keep pace with cost growth over the medium term, invest in language and cultural programming, and invest in literacy and numeracy programs.
Some of the $2.6 Billion earmarked for First Nations Education will go towards the establishment and implementation of First Nations school boards, such as the proposed board under the ANEA, or the recently-created Manitoba First Nations School System (“MFNSS”).
The MFNSS was created on December 16, 2016, after negotiations between the Manitoba First Nations Education Resource Centre and the federal government. In 2012, a resolution from the Assembly of Manitoba Chiefs mandated the Manitoba First Nations Education Resource Centre to offer similar services which in a provincial education system are provided by a school board. The MFNSS will administer and manage elementary and secondary education programs and services for those First Nations participating.
The MFNSS is expected to provide education programming and supports up to 2,220 First Nations students in 9 different communities in Manitoba. It’s heralded as the first of its kind anywhere in Canada, and has laid the groundwork for similar agreements, such as the ANEA.
Like the MFNSS, the ANEA has no specific legislative underpinning. It’s agreement between the federal government and First Nations regarding the not-so-simple transfer of control of the delivery of education.
Structure of the ANEA
Twenty-two communities within the Anishinabek Nation ratified the ANEA. After the ratification vote, the Kinoomaadziwin Education Board (the “KEB”) was established as a central administrative body.
Each member community is represented on the KEB by a regional education council. There are 4 regional councils, each with 3 elected representatives. The 12 elected representatives on the KEB will be tasked with negotiating the ANEA terms and funding arrangements, as well as deciding on administrative matters such as where the Anishinabek Education System (the “AES”) will be based.
Each regional education council can use pooled resources to provide member communities with services they might not be able to afford or coordinate on their own, such as specialists in learning disabilities or in physical education. The regional education councils are also meant to coordinate the member schools with the central administration (ie/ the KEB). Interestingly, it’s up to the individual member First Nations to decide if they want to join a regional council, meaning an individual community could jump over this layer of administration and take a seat directly on the KEB.
Additionally, each member First Nation can choose to set up a local educational authority, which acts like a school board or an education committee to the band council. Alternatively, each member First Nation can leave responsibility not in the hands of a local educational authority, but with Chief and Council directly.
Each participating First Nation will have the power to make laws with respect to primary, elementary and secondary education on behalf of its members, however, these laws will be made in a manner consistent with the ANEA and the First Nation’s constitution.
The participating First Nations will also establish and maintain system-wide education standards that will support the transfer of students between the AES and the provincial education system “without academic penalty”.
This goal of transferring with provincial counterparts “without academic penalty” suggests that the curriculum taught to students in the AES will be in line with the provincial curriculum. Ontario’s Ministry of Education has publicly acknowledged its policy initiative of working with the federal government and First Nation organizations to strengthen coordination on First Nation’s education, further evidenced by the signing of a Master Education Framework Agreement (“MEFA”) between Ontario and the Anishinabek Nation on November 19, 2015.
The parties to the ANEA will also negotiate an Education Fiscal Transfer Agreement (“Fiscal Agreement”) setting out the terms and conditions by which funding will be provided by Canada to support the agreement and the establishment and operation of the AES. The participating First Nations will then receive their education funding as a grant from the KEB.
The Participating First Nations will decide how to spend the education funding; however, according to a plain language version to the Fiscal Agreement, the education funding must be spent on:
(a) the Anishinabek Education System;
(b) the delivery of Primary, Elementary and Secondary Education;
(c) Post-Secondary Education support;
(d) Implementation activities; and
(e) other responsibilities under the ANEA.
Each participating First Nation and the KEB will make sure that there are financial accountability processes in place that are similar to how school boards report on their education funding.
To ensure this accountability, each participating First Nation will prepare an annual report on education programs and services, make it publicly available and send it to the KEB. The KEB will then consolidate the First Nation reports with its own report on education programs and services. The consolidated report will ultimately be sent to the federal government and made available to the public.
Interestingly, the Fiscal Agreement will only be effective for five (5) years, starting from the effective date of the ANEA, which is expected to be April 1, 2018. While there is a provision for KEB and federal government to begin negotiating at least twenty-four (24) months before the expiration of the Fiscal Agreement, if the term runs out before a deal is in place, the Fiscal Agreement will simply carry forward until a new deal is in place.
According to the PBO report referred to earlier, by 2020-2021, the allocation of new money from the federal government to First Nations education will be just over $1 Billion. About 80% will be invested in education program spending (ie/ investments in the current system and supporting system transformation). The rest is targeted for capital spending (ie/ learning environments).
Presumably, the new money earmarked by the federal government for system transformation will go towards establishing education systems similar to the ANEA and the MFNSS.
As stated above, the ANEA and its structure represents an emerging, yet paradigm change for the delivery of education to many First Nations students. This paper will now analyze why and the importance of the change being introduced by the ANEA.
Why is the ANEA important?
Before discussing the importance of the ANEA, First Nations education policy in Canada first needs to be examined in order to understand why the Anishinabek Nation negotiated for over twenty (20) years to make the ANEA a reality.
It is now generally recognized and accepted that the purpose of the residential school education system was “to ‘re-educate’ … First Nation students by completely replacing their ancestral cultures and languages through a process of repression, exclusion, and especially intellectual marginalization of First Nations ways of being, thinking, and acting”. On June 11, 2008, Prime Minister Stephen Harper formally apologized for Canada’s role in this lamentable chapter of our collective history and recognized “the policy of assimilation was wrong, caused great harm” and the “consequences of the Indian Residential School were profoundly negative and that this policy has had a lasting and damaging impact on aboriginal culture, heritage and language.” Space does not allow for a recounting of all the details of a long and troubling history relating to the “education” of First Nations people.
In an effort to bring Aboriginal education to a new direction from the failed residential school system, the National Indian Brotherhood (the predecessor to the Assembly of First Nations) released a policy statement in 1972, called “Indian Control of Indian Education” (“ICIE”). The ICIE sent a clear message after years of First Nations being subject to failed federal, provincial and territorial government policy in relation to First Nation education, that First Nations autonomy in education was paramount. Unfortunately, ICIE identified ‘Indian control’ exclusively with ‘local control’.
In response to ICIE, the federal government adopted “a ‘devolution’ approach, transferring the administration of education to Aboriginal education authorities in reserve communities.” This transfer of administrative responsibility was, in reality, simply a transfer of low-level management, whereas its intended purpose was to provide First Nations people the opportunity to “reclaim control over their educational responsibilities, to set a philosophy of education, and to implement it in their schools.”
This devolution process resulted in small First Nation communities attempting to run all aspects of school administration, curriculum development and supervision. According to Paquette and Fallon, “First Nations communities joined together into tribal and educational councils [but] the idea persisted that ‘real’ Indian control is ‘local’ at the community level”, when the “best interest of the students would … [have been better] served by sacrificing [a significant degree of] local control to obtain meaningful functional and program control over what goes on in community schools”.
The federal government expected that these schools meet provincial education requirements with scarce resources. This expectation resulted in small First Nation schools being responsible for reproducing diverse and expensive services that a provincial school board would provide. As a result, resources for culturally specific curriculum development, and often the necessary expertise were lacking. This result led to systemic problems such as curriculum with little to no cultural relevance, no standardization of education programs, and poor graduation rates compared to their provincial counterparts. As mentioned above, as of 2006, only 39% of First Nations people living on reserve in Ontario between the age of 20 and 24 had graduated from high school, as compared to 78% of the general population. This represents a gap of 40%.
In practice, First Nation teaching methodology continues to be supplanted by contemporary school pedagogy and curricula that “replace[s] Indigenous students’ worldviews with lessons framed by English literacy, numeracy, and citizenship standards, seen as rational-technological approaches to teaching and learning”. Paquette and Fallon state, “[s]urely if the history of ‘structural failure’ of colonial education for assimilation has taught us anything, it is that the legacy of educational failure will endure as long as the central philosophical assumptions (or underlying sociocultural and educational paradigm) of Aboriginal education remain entrenched in mainstream cultural tradition.” The ICIE is not the panacea the National Indian Brotherhood thought it might be for First Nations education for the reasons discussed above.
An Agreement with respect to Mi'kmaq Education in Nova Scotia (1997)
In 1999, the Mi’kmaq Education Authority in Nova Scotia entered into an agreement with Canada to resume management of education for their First Nations. Education journalist Jennifer Lewington describes the Authority as an education authority that provides central services so that “local Mi’kma[q] schools deliver language immersion courses, culturally-appropriate teaching pedagogy and other initiatives to promote student success.”
The Mik'maq Education Act (Nova Scotia) at section 6(2) requires that “the educational programs and services provided by a community must be comparable to the programs and services provided by other education systems in Canada in order to permit the transfer of students to and from those systems without academic penalty, to the same extent as the transfer of students between those other educational systems.” The aforementioned provisions were legislated in the Mi'kmaq Education Act (Canada) and the Mi’kmaq Education Act (Nova Scotia). The Mi'kmaq Education Act (Canada) and the Mik'maq Education Act (Nova Scotia) came into force on April 1999 and is legislation that is unique to the Mi’kmaq at this time.
As of 2010-11, Mi’kmaw Kina’matnewey (“MK”), the Mi’kmaq Education Authority, reported a high school graduation rate of 75 percent for its students. This graduation rate rose 70 percent from the two previous years and was almost on par with Nova Scotia. Scott Haldane, chair of the National Panel on First Nation Elementary and Secondary Education for Students On Reserve reports a 75 percent graduation rate, which he observes, “is double the national average and close to triple the average of what we saw in some of the worst performing schools.” MK also reports more than 100 Mi’kmaw-speaking students have earned their bachelor of education and some of those graduates have returned to teach in their education system. MK has, to the best of its ability, worked very hard building education, particularly at the elementary level, around their culture and language. The difference between MK and other First Nations is that MK encompasses one language, rather than multiple languages with numerous dialects, as is the case with AES First Nations. This difference is an important example of what can be achieved when students begin education with a strong grounding in their ancestral language. Sociolinguistic theory generally provides that you enhance the probability that students will do better in second language instruction when they first master their own language. This theory is known as the ‘threshold level hypothesis’, and was first proposed in 1976 by Finnish researchers Skutnabb-Tangas and Toukomaa as follows:
“…only when children have reached a threshold of competence in their first language can they successfully learn a second language without losing competence in both languages. Further, only when a child has crossed a second threshold of competence in both languages will the child’s bilingualism positively affect intellectual development, a state which they called ‘additive bilingualism.
What the success of MK demonstrates is that First Nations control of First Nations education can lead to positive results in graduation rates, student success, and preservation of culture.
Why is the Anishinabek Education System needed?
After decades of failed government policy in relation to First Nation education, as described above, the Anishinabek Nation is in the process of exercising its jurisdiction over education. This means the Anishinabek First Nations will, within the terms and conditions of the ANEA, have full authority to make decisions on all aspects of First Nation education.
The KEB is responsible for distributing federal funds for education, developing educational policies and guidelines, implementing standards for graduation, and managing education service agreements and relationships with the provincial government. The KEB serves and provides advice, rather than directing the activities of participating First Nation local schools which is a departure from the role of provincial school boards. The ANEA empowers each participating First Nation “to make laws and exercise authorities with respect to primary, elementary and secondary education on behalf of its Members on its Reserve. The laws are made by First Nation Councils in a manner consistent with the Education Agreement and the First Nation’s constitutions”. By April 2018, it is anticipated that each participating First Nation will have developed and ratified their own education law. Despite this requirement, the AES, participating First Nations (either through their respective local education authority or band council) and the KEB bear responsibility for maintaining academic standards to ensure the seamless transfer of students between the AES and provincial schools.
The AES provides participating First Nations with a governance structure large enough to command critical mass to secure funding that is needed to develop curriculum, provide sufficient administrative support and meet operational needs. The Anishinabek Nation envisions “the Anishinabek Education System will make positive advances in:
- Anishinabek student success;
- Increasing graduation rates;
- The development of culturally relevant curriculum and educational programs;
- Effective and efficient financial management and administration of education funding;
- Reliable and relevant First Nation education research, records, reporting and accountability; and
- Viable education partnerships that support the Anishinabek First Nation’s educational goals.”
Anishinabek student success and increasing graduation rates
From a philosophical perspective, one must ask what student success is and how it might be measured or not? Is success preparing a student for a career and job or is success becoming a more fulfilled human being or can it be both? With limited information available on what this means to the AES for the purpose of this paper, it is assumed the measure of success is the degree to which a student leads a deeper, richer, more meaningful life as a result of their education that is grounded in First Nation culture and language. Furthermore, increased graduation rates can be an important indicator of such success, but not the sole indicator.
Drawing on the MK experience, although AES faces challenges with respect to standardized curriculum development and program delivery due to the number of languages and dialects within each First Nation community, it is likely that over time, and if implemented correctly, there will be an increase in graduation rates and matriculation into diverse credible and challenging Indigenous and mainstream post-secondary programs. What constitutes student success is more complicated than just looking at graduation rates and paper programs (course syllabi and course description) – it requires an examination of real experiences, in the classroom and other learning milieu, and the overall health of the community. After all, the word “education” comes from the latin word educere meaning to lead forth and make free; this is the ultimate goal for student success.
Participating First Nations schools at the local level will not only have the ability to control the development and delivery of culturally relevant curriculum, but also as part of a larger system, will have the support and the resources to make those programs successful. As individual communities, First Nations will not have the resources to do meaningful development – at least on their own because of diseconomies of scale. To reiterate, individual small entities in education will never command resources sufficient to develop programming, particularly where very challenging language preservation and restoration is at stake.
The authors of First Nations Education Policy in Canada: Progress or Gridlock discuss a conceptual framework that:
[P]rovides a solid ground for advocating a functionally aggregated, authentic, self-determining Aboriginal education system – a governance structure that would balance two opposing tendencies: an integrative tendency for individual Aboriginal communities to work together as part of a larger whole, and a self–assertive tendency for aboriginal communities to preserve their individual specificity and autonomy”.
The AES should enable the Anishinabek Nation to bring together a critical mass of resources, fiscal, methods and material, and above all, human resources, to carry out the imposing task of developing such curricula for use by participating First Nations. With a view to improving overall student academic performance and success, this curriculum would emphasize credible First Nation content including, but not limited to, First Nation history, language, values, philosophies, recognition of appropriate learning styles, while integrating with and complementing provincially sanctioned curriculum or programming that is necessary for student success and to walk in both worlds (meaning confidently and authentically in the First Nation world and the mainstream world).
The AES structure provides economies of scale that might allow for adequate resourcing of First Nation education programs, administration, and operations; in addition to, implementation of funding required at the outset might provide the ability for AES to develop programming at the regional level. The per pupil funding allocation was approximately $11,600 (as noted above) and is now $15,242.79, though not static. Presumably the increase is intended to recognize the increased operating and program development costs involved in delivering education to First Nations.
Based upon the Anishinabek Nation MEFA AES negotiators will develop an agreement setting out terms and conditions of education service agreements that are currently governed by the Ontario Education Act regulations. This MEFA is significant to AES First Nations that do not have schools of their own because the only control they have is through the terms and conditions set forth in the funding agreements.
The ANEA is important to bringing about meaningful change to education for students within the Anishinabek Nation. As the first agreement of its kind in Ontario (and one of the first in Canada), it will undoubtedly have significant implications for all education stakeholders.
Implications of the ANEA
This portion of the paper examines how the structure of the AES is intended to operate, and how its interactions with teachers and administrators may play out as the system engages with students, parents and others, with a stake in a new First Nations jurisdiction over education.
Structure of the AES
As stated in the Anishinabek Education web site, the structure of the AES is three levels of administration:
“The Anishinabek Education System consists of a central education body, regional education councils and Anishinabek First Nations. The First Nations will make their own education laws, and will appoint the central body’s board. They can also choose to set up local and regional bodies to coordinate services, draw upon regional expertise, and respond to their concerns.
- The Kinoomaadziwin Education Body will act like a school board. It will provide services to First Nations schools. It will handle relations with the provincial schools that Anishinaabe students attend.
- This education body will take direction from First Nations. It will provide advice. But it will not tell First Nations what to do.
- Education councils will help First Nations in each region to share services and work together.
- Like the central education body, the regional education councils will work for the First Nations.
The First Nations that join the education system will work together through Kinoomaadziwin to identify and manage their educational priorities, and the systems’ governance. They will appoint 10 directors to oversee this central body, and 5 of the directors will also be members of a Finance Committee that will monitor the distribution of the education funds.
REGIONAL EDUCATION COUNCILS
Anishinabek First Nations have agreed to set up regional councils to coordinate the support for education programs and services. Each Regional Education Council’s exact roles and duties will be determined by its member First Nations.
LOCAL EDUCATION AUTHORITIES
Each First Nation may set up a local education board or committee to manage its’ educational programs and services at the community level.”
The KEB is to act like a school board within the provincial education systems, with each of 22 First Nations having the obligation to create a constitution of education laws for its individual reserve. The individual First Nations then create another level of administration being a local education board or committee at each First Nation community.
This suggests the analogy to a provincial school board is not entirely accurate. Interposed on this structure are regional bodies to co-ordinate services with regional expertise and are to help each individual First Nation work together with other regional member First Nations. This is a significant administrative tangle of interrelated obligations: considering each First Nation will likely only have one school, likely elementary, the costs of creating and administering each First Nation school may take more of the education funding than is necessary.
The difficulty in creating this structure is likely the fact each First Nation sees itself as a sovereign entity and requires the autonomy to set its own priorities for education and goals. How this will work when KEB is structured to provide the general framework that will permit transition of students to the provincial system is unclear. It seems optimistic when each First Nation creates its own education laws, and KEB has no authority to “tell First Nations what to do…”. This seems to create a system destined for conflict. Add in a regional body to this mix and the red tape may become overwhelming.
Does the Anishinabek Nations’ analogy of KEB acting like a school board for the First Nation in the similar manner as within the Provincial Education system appear accurate? On the face of it, it does not. Provincial School boards have a clear hierarchy of laws and obligations. At the top is the Ministry of Education, which works within Ontario’s Education Act in a highly structured legislative environment. School Boards are created by statute to deliver the provincial standardized curriculum to its students through its many schools, with a unionized and professional complement of teachers and support staff. Oversight of delivery and enforcement of the statutory obligations to a standardized education is done through professional administrators with significant teaching experience, education degrees and statutory professional qualifications (for example, Supervisory Officers, Directors of Education, Principals and Vice-Principals). Each school board usually has a significant number of individual schools, both elementary and secondary, that operate under the same legislative framework, policies and procedures, subject to standardized working conditions and obligations created by school board wide collective agreements.
Compare this provincial system to the AES. The ANEA sets out the rights and obligations creating the system. Rather than a “top down” system with a common education act, each First Nation is responsible for making its own individual community laws and exercise individual authority for education on its reserve. This contemplates 22 potentially different education laws for each First Nation within the AES. Rather than one comprehensive law (such as the Education Act) as within the Provincial System, AES may have 22 separate laws with varying enactments to follow. It may be that there will be a move to substantively similar systems of laws as the best practices and most effective choices become clear, but to start, what education laws apply to what First Nation may be somewhat confusing and complex. Added to this is that each First Nation can create offenses related to its own Education Law, with the responsibility to prosecute for violations of its laws. Where the monies for investigation, prosecution and court or tribunal processes will come from is not clear, but creating an effective court system will be daunting.
Provincial school boards have the legislative authority and obligation to operate all the schools within its geographic area under consistent policies and procedures, and ensure through professional administrators, a provincial standard of education for students is met. KEB is to create a standard curriculum for its First Nation constituents, but it has no authority to tell individual First Nations “what to do” and the education laws are created within the individual First Nations. The analogy to KEB being like a provincial school board is weakened considerably when the fact KEB has no direct authority over any of the schools operated by a First Nation. KEB is not the employer of teachers or school staff; instead, the member First Nation is the employer. First Nations can even shift direct authority to the local education authority or committees of the First Nation, diluting the role of KEB in delivery of services and oversight of the quality of the services with standard policies and procedures, such that KEB really looks very little like a traditional provincial school board.
KEB’s ability to monitor and enforce standards for a standardized curriculum will likely depend on its ability to control the flow of funding received from the Federal government, as KEB is the entity that receives the education funding directly from the Federal government. Through the Fiscal Agreement, as described above, funding flows to KEB, and KEB distributes the monies to the First Nation. The constitution of KEB with the participating First Nation will determine if and when funding can be withheld from a First Nation, and what oversight KEB will have to determine if the necessary education standards are being maintained. From discussions with some of the participating bodies setting up the systems, it appears there will be oversight, but withholding of funds will only be for breaches of standards that have been determined through dispute resolutions systems. How lengthy these resolution systems are will be important in having effective supervision of education standards.
Provision of education services with qualified educators
The structure of the AES assumes each First Nation will hire its own teachers, support staff and system and school administrators. Based on concerns from many present northwestern First Nation education authorities operating under the present system, delivery of education services in remote First Nations has been compromised by difficulty in getting and retaining for a school year (or years) teachers who know the community and students. This problem would not seem to be addressed in the AES, other than perhaps with increased salaries for teaching staff if there is increased funding. With a fragmented system of individual employment contracts with individual First Nations’ authorities, the question of attracting and retaining qualified teachers and administrators remains a probable weakness in the system as contemplated. Based on acting for both teachers and Education Authorities over several decades, it is clear there are often disputes about the protections teachers have or don’t have to make difficult decisions about students. Problems that keep appearing include:
- Lack of protection from “interference” by Chief and Council (as opposed to oversight by professional administrators hired to supervise teachers) into the delivery of classroom syllabus materials and tests;
- Concerns about safety and perceived harassment from parents or guardians unhappy with teachers’ grading, assignments and attendance policies;
- Lack of employment agreements that provide job security beyond one year limited term individual employment contracts with onerous conditions on termination or dismissal without procedural or substantive protections;
- Concern about teachers’ ages with limited amenities;
- Issues related to being “BCR’d” off a reserve despite contract terms or conditions.
With the unionization within the public school system for teachers in Ontario being a statutory obligation of school boards, one wonders whether provincial teacher Federations will consider organizing drives for AES schools to create collective agreement rights to mitigate the perceived short comings of working on First Nations and within First Nations’ schools. At first blush, given the fragmented number of employers (each First Nation), and the limited number of teachers likely working within the single elementary school on a First Nation, it would seem unlikely the Federations will take on a daunting task of creating multiple small bargaining units. If a common employer such as KEB could be unionized, the likelihood of unionization would be greater, but that is an issue for a different paper. The question of whether the Canada Labour Code would apply to First Nations’ schools, or the Ontario Labour Relations Act, may play a part in determining whether organizing drives for the AES will be undertaken as the ability to have common or single employer declarations varies depending on the labour laws applied. Within the Federal sphere, the experience with attempting to unionize different branches of banks might provide impetus to unions, but the actual structure of KEB and the First Nations as they ultimately are created will dictate whether the protections of sophisticated professional associations will come to the AES.
First Nations’ AES school within Ontario
Presently, First Nations’ schools in Ontario are dealt with by the Ministry of Education as private schools, some of which at the secondary school level are inspected by the Ministry to determine if they meet the standards to be offering credit courses leading to the Ontario Secondary School Diploma. How the AES schools will fit within the existing system will be determined by a Master Education Agreement (“MEA”) with the province of Ontario and KEB. As described above, a MEFA was signed in November of 2015 outlining the principles, processes and topics for the formal MEA. A draft of the actual MEA was reached in December of 2016, and subject to ratification by the First Nations, signing of the agreement may take place in June of 2017.
Presumably the issue of support for the AES and transitions between First Nations’ schools and the Ontario schools will be part of this agreement, but the understanding presently is Ontario will have no control or inspection of the AES schools, and the First Nations will have control over what is taught within the AES schools. Until the terms of the agreements are known, little can be commented on beyond the assistance of Ontario with the AES, and data information sharing will be key to permitting transfers of students across systems.
Summary and conclusion
The AES agreements with Canada and Ontario represent a leap forward to self-government by Ontario First Nations. The impetus to a First Nations’ system for much Ontario will be up and running within a short period of time, and will be the template for further initiatives in creating a system that is effective and creates outcomes for education of First Nations’ students that will equal or better that of the present education system in Ontario. While there is still much work to be done in finalizing the agreement, it will certainly be a significant change for the delivery of education to many First Nations students.
The information provided in this Newsletter is not intended to be professional advice, and should not be relied on by any reader in this context. For advice on any specific matter, you should contact legal counsel, or contact Rachael Paquette. Paquette & Associates Lawyers disclaims all responsibility for all consequences of any person acting on or refraining from acting in reliance on information contained herein.
 Donald B. Shanks (BA, LLB, LLM [Cambridge]) is a partner at Cheadles LLP in
Thunder Bay with over 35 year experience. He devotes a significant portion of his
practice to Education Law, where he acts for and advises numerous school boards
and education institutions. In addition to Cheadles LLP being a founding member
of CAPSLE, Mr. Shanks is also a former board member.
Rachael M. Paquette (BA, JD) is an associate lawyer at Cheadles LLP.
She practices aboriginal law. Prior to law school, Ms. Paquette worked with several
First Nation organizations in designing, implementing and supporting specialized
education programs. More broadly, she was involved in research, and in
developing and analyzing policy. Ms. Paquette is fluent in Northern Ojibwe.
Jordan R.D. Lester (BJH, JD) is an associate lawyer at Cheadles LLP.
He practices civil litigation, education law, and human rights law.
Before entering the exciting world of law, Mr. Lester was a reporter for the CBC.
 House of Commons Debates, 41st Parl, 2nd Sess, No 77 (30 April 2014)
at 1635 (Hon Carolynn Bennett).
 Ontario, Legislative Assembly, Standing Committee on Public Accounts,
41st Leg, 1st Sess (28 September 2016) at 1557 (Hon David Zimmer).
 Anishinabek Nation. Draft Anishinabek Nation Education
Agreement: The Plain Language Version. Page 1.
 Constitution Act, 1867(UK), 30 & 31 Vict, c 3 s 91(24), reprinted in RSC 1985, App II, No 5.
 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 93, reprinted in RSC 1985, App II, No 5.
 Office of the Parliamentary Budget Officer, Federal Spending on Primary and Secondary Education on
First Nations Reserves (Ottawa: Office of the Parliamentary Budget Officer, 2016) Online: <Here>.
 Ibid at 18.
 Ibid at 20 & 21.
 Ontario, Legislative Assembly, Standing Committee on Public Accounts, 41st Leg, 1stSess
(28 September 2016) at 1557 (Hon Deborah Richardson).
 Ontario, Legislative Assembly, Standing Committee on Public Accounts, “Education of Aboriginal Students”
in Committee Report at 841
(Toronto: Standing Committee on Public Accounts, 2016). Online: <Here>.
 Indian Act, R.S.C., 1985, c. I-5, s 114 - 122.
 Bill C-33, First Nations Control of First Nations Education Act, 41st Parl, 2nd Sess, 2014.
 House of Commons Debates, 41st Parl, 2nd Sess, No 77 (30 April 2014) at 1545 (Hon Bernard Valcourt).
 “How the First Nations education act fell apart in matter of months”, CBCNews.ca (11 May 2014)
 Department of Finance Canada, Growing the Middle Class (Ottawa: Department of Finance, 2016) at 138 & 139.
 Manitoba First Nations Education Resource Centre Inc.,“Historic Signing of the MB First Nations School System Agreement”,
(16 December 2016) Online: <Here>. Mia Robson.
“Manitoba First Nations to get school board”, The Winnipeg Free Press (16 December 2016).
 Anishinabek Nation. Operation of the Anishinabek Education System. Page 1.
 Ibid at 1.
 Supra note 4 at 3.
 Ministry of Education, Ontario First Nation, Métis, and Inuit Education Policy Framework: Delivering Quality Education to
Aboriginal Students in Ontario’s Provincially Funded Schools (Toronto: Ministry of Education, 2007) at pg. 7.
 “Historical Master Education Framework Agreement signed by Anishinabek and Ontario” AnishnabekNews.ca (19 November 2015).
 Ogemawahj Tribal Council. “Proposed Anishinabek Education System (AES)” (4 November 2016).
Online: < Here>.
 Anishinabek Nation. Anishinabek Nation Education Fiscal Transfer Agreement: The Plain Language Version. Page 2.
 Ibid at 1.
 Supra note 7 at 4.
 Jerry Paquette & Gerald Fallon, First Nations Education Policy in Canada: Progress or Gridlock,
(Toronto: University of Toronto Press, 2010) at pg. 5.
 Canada, Indigenous and Northern Affairs Canada Statement of Apology to
Former Students of Indian Residential Schools (11 June 2008). Online: <Here>.
 Supra note 28 at 5.
 Report of the Royal Commission on Aboriginal Peoples: Gathering Strength, vol 3 (Ottawa: Supply and Services Canada, 1996).
Jerry Paquette & Gerald Fallon, Book review of First Nations Education Policy in Canada: Progress or
Gridlock Reviewed by Jonathon Anuik (2013) 59, No. 3, Alberta Journal of Educational Research, Volume 59, No. 3, Fall 2013, at page 529.
 Supra note 1 at 79.
 Indian and Northern Affairs Canada, Elementary/Secondary Education: National Program Guidelines (2003)
(Ottawa: Indian and Northern Affairs Canada, 2003).
Online: < Here>.
 Supra note at 11.
 Supra note 1 at 36.
 Ibid at 17.
 Jennifer Lewington, “In Nova Scotia, a Mi’kmaw Model for First Nation Education” Canadian Education Association (N.D.),
online: Canadian Education Association <Here>
 Mi’kmaq Education Act, C 1998, c 17, s 6(2).
 Canada, Indian and Northern Affairs Canada, First Nation Education Partnerships and Agreements (Canada: Indian and Northern Affairs Canada, 2016).
Online: <Here> accessed April 5, 2017.
 Supra note 10.
 Jessica Ball, Enhancing Learning of Children from Diverse Language Backgrounds:
Mother Tongue-based Bilingual or Multilingual Education in the Early Years (Paris: UNESCO, 2011) at page 17.
Online: < Here>.
 Supra note 4 at 3.
 Supra note at 19.
 Supra note 47.
 Compact Oxford English Dictionary, 3rd ed, sub verbo “education”.
 Supra note 1 at xvi.
 Education Act, R.S.O. 1990, c. E.2
 “BCR’d” references a First Nation passing a Band Council Resolution (BCR) that requires an individual to leave the reserve,
and prevents them from remaining anywhere on the reserve.
 Canada Labour Code, RSC 1985, c L-2.
 Labour Relations Act, 1995, SO 1995, c 1.