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Indigenous Nationhood

Pamela Palmater's picture
Dr. Pamela D. Palmater is a Mi'kmaw lawyer and member of the Eel River Bar First Nation in New Brunswick. She teaches Indigenous law, politics and governance at Ryerson University and heads their Centre for Indigenous Governance.

Chief Shawn Atleo should tear up First Nations Education Act

| April 30, 2014
Image: wikimedia commons

The National Chief of the Assembly of First Nations (AFN) Shawn Atleo made a "historic" deal with Prime Minister Stephen Harper on First Nation education. What makes this deal so historic? Well, it's the deal that no First Nation asked for and it's one that Atleo had no power to make. It's historic because not only will Atleo go down in history as the worst National Chief, but he has taken the AFN down with him. For the most part, many Regional Chiefs sat by and watched him do it. Now, the AFN thinks that by analyzing its own deal, this will help make the bitter taste of assimilation wash down more easily. They are wrong.

It is important to understand that Atleo has absolutely no independent political power as National Chief. The AFN's Charter is very specific about this. So, all of his deal-making with Canada is outside the legal scope of this authority. The Prime Minister, who is not a signatory to the treaties between First Nations and Her Majesty, is also acting outside the legal scope of his power. Harper has no power to unilaterally amend treaties or violate constitutionally protected treaty rights. Yet, this political duo is taking matters into their own hands and changing the rules in education and treaty rights -- just like they both promised at the Crown-First Nation Gathering.

The opposition to this deal is not new -- it has been significant and consistent throughout the last few years. Three provinces of First Nations pulled out of the National Panel on Education -- Saskatchewan, Quebec and Ontario -- as a strong message to Atleo that he did not have the mandate to make a deal on First Nation education. Atleo did not listen. He forged ahead despite the growing opposition. The Chiefs in Assembly passed numerous resolutions against Atleo making any deals on First Nation education and specifically against education legislation. Atleo hung on tightly to Harper and forged ahead despite growing calls for his impeachment.

Then came the "deal" -- the promise of adequate funding, First Nation control and legislation that would recognize our Aboriginal and treaty rights to education. From the moment Atleo-Harper held their joint press conference, First Nations knew we were in trouble. Atleo sang songs about how he was saving our children from the status quo while Harper countered every point Atleo made -- although with great tact.

When Atleo realized that Harper wasn't singing the same song, Atleo sent a strongly worded letter asking whether or not any of the promises Atleo made to First Nations were in fact going to be kept by Harper. The answer was no. Instead of throwing away his pride, admitting to his colossal mistake and standing with First Nations against Harper's assimilation agenda, Atleo stood by Harper.

What followed was political propaganda from Harper, Minister Valcourt and Atleo meant to save the deal from being challenged in the public arena. AFN's open letters, statements, clarifications and press releases were desperate acts of damage control. It was too late -- Chief Gilbert Whiteduck filed a judicial review against Canada about the proposed legislation. First Nations spoke honestly and critically in the media about the damage this proposed Act would do. Lawyers, academics, analysts and political commentators all seemed to come to the same conclusion: the Act did not reflect First Nation control or protect treaty rights, and even the funding was an illusion. 

The proof is in the act -- Bill C-33 which was supposed to be called First Nations Control of First Nations Education Act actually reads:

An Act to establish a framework to enable First Nations control of elementary and secondary education and to provide for related funding and to make related amendments to the Indian Act and consequential amendments to other acts 

The Act establishes a "framework" and that framework is to "enable" First Nations control over elementary and secondary schools. But what does this mean exactly? First Nations have been very specific that they want recognition of their exclusive jurisdiction and control over all aspects of education in First Nations. The Summary portion of the Act provides more clarity: 

This enactment provides for the control by First Nations of their elementary and secondary education systems. It establishes a framework to enable First Nations to exercise that control by administering schools situated on their reserves, by delegating the power to administer schools to a First Nation Education Authority or by entering into a tuition or administration agreement. (emphasis added) 

First of all, any "control" by First Nations is limited only to elementary and secondary education. In addition, that control is limited to the administration of on reserve schools only. That administrative control is further limited to a power to delegate -- i.e. that control must be exercised by giving up all control to First Nation Education Authorities -- a new level of bureaucracy.

In simple terms, Canada is retaining all of its control over First Nation education -- this is clear throughout the Act. At best, this Act outlines a complex process for how Canada will devolve limited administrative control over some, not all, education to First Nation organizations (not First Nations themselves). In case there was any doubt, the Summary goes on to explain that it is Canada that will set out the roles and responsibilities of First Nation educators and will create a National Organization, in addition to this Education Authorities as yet another layer of control over First Nations education.

This cumbersome new bureaucratic system will not be adequately funded, and the majority of the funds will be eaten up by this bureaucracy. The only people that will benefit are those waiting in the wings to gain favour from the Harper government and be appointed to one of these new boards. While newly appointed bureaucrats suck up the already inadequate funding that should be going to First Nations to operate their schools, a new financial burden is being placed them -- the requirement to provide education to non-First Nation people.

One doesn't even have to read the actual provisions contained inside the Act to know that this is not in the best interests of First Nations. Yet, Atleo continues to vehemently defend the deal he made with Harper. Atleo's most recent "analysis" of the Act is a sign that the AFN stopped working for First Nations and is more concerned about gaining favour with Harper to the detriment of our children and future generations.

The analysis is not really an analysis so much as it is AFN's spin on their colossal failure. A simple, plain language analysis could have been done in relatively few pages. However, their analysis does not even start until the fourth page of their document. The first three pages simply outline history -- what we already know. What's worse is that when the analysis does start, it begs us to read into the Act what isn't there -- legal recognition, implementation, enforcement and funding of First Nations controlled education systems according to First Nation laws, rights and priorities.


Highlights of AFN's Analysis: 

1. "Principle" of First Nation Control: 

AFN uses the same weasel words that Justice Canada and Aboriginal Affairs and Northern Development Canada (AANDC) uses. Instead of a direct recognition of First Nation jurisdiction over all education systems, AFN and AANDC say that First Nation education should be "designed" based on a "guiding principle" of First Nation control. The design of First Nation education is being done by AANDC through this Act, and the guiding principles of First Nation control are not law -- they are fluffy statements used to give the illusion of control without actually recognizes a legal right.

2. "Reference" to language and culture:

AFN argues that a mere reference to language and culture is significant, but fails to highlight how this is limited by the actual provisions within the Act that make provincial standards the norm and English and French the standard languages of instruction. 

3. K-12 Education is part of life-long learning:

AFN highlights that this is an important statement in the preamble of the Act, yet ignores the fact that this Act is specifically limited to K-12 education. In an analysis, we would expect AFN to highlight the substantive promises, not the fluff. This Act does not state that First Nations have jurisdiction over every level of education, thus the lifelong learning statement is just more fluff. 

4. Protecting the Treaty Right to Education:

AFN claims that the preamble which states that Canada protects Aboriginal and treaty rights in section 35 of the Constitution Act, 1982 should give comfort that this Act respects treaty rights. All the preamble actually says is that Canada protects treaty rights in section 35. It does not say this Act protects treaty rights. These weasel words are meant to distract our people and give them false comfort.

AFN asks us to believe that the non-derogation clause contained within the Act is further protection of our Aboriginal or treaty right to education. Yet, that is not what the clause says. The clause speaks to the non-derogation (to take away from) or abrogation (to end or cancel) of Aboriginal and treaty rights generally. There is no positive protection of the treaty right to education, no specific mention of the treaties which protect education being exempt from the Act, and no acknowledgment of Canada's legal obligations to recognize and implement the treaty right to education.

Instead, this Act purports to legislate that treaty right without our consent. The very act of introducing this Bill without the free, informed and prior consent of First Nations, violates the treaty right and/or Aboriginal to education. Further, the failure to fully fund education in First Nations violates the treaty provisions, which in turn violates the constitution. AFN should be advocating and defending our rights -- plain and simple.

5. Access to Education:

Instead of focusing on the necessary funding to ensure that First Nations can provide robust education (of their own design) to First Nations, this part of the Act is not focused on First Nations at all. This section speaks to forcing First Nations to provide education (as outlined by AANDC) to non-First Nation residents. This is an added burden and could impede the ability to direct their education system as per Indigenous values and traditions.

AANDC, as part of its assimilation agenda, is trying to transition the rights-based obligations of Canada to First Nations, to a discretionary one of programs and services to generic residents. This is the transition from First Nations to provincial municipalities. This is not the first Act to do this. Look at the Matrimonial Real Property Act which purports to give non-Indians property rights on reserve in contravention of treaties and the Indian Act itself. This will also create an administrative and financial burden on First Nations. The fact that AFN would not highlight this and defend First Nation rights shows they are no more than an arm of the federal government facilitating the assimilation agenda.

6. Joint Council of Education Professionals:

Again, this is another provision that First Nations did not ask for, but is a mandatory aspect of this Act. The very fact that this Council is created and governed by federal legislation speaks to the lack of independence. Either way, whether federally-controlled or jointly AFN-Harper controlled -- this is not the vision of First Nations regarding jurisdiction over education. If the funding component was addressed, First Nations would be able to build their own capacity with whatever "expert" assistance they determine to be relevant.

Instead, this Act, like the Matrimonial Property Act, gives the illusion of control and independence, while mandating Centres of Excellence, National Joint Council, controlled by the federal government to oversee federal legislation. None of this speaks to First Nation control. All of AFN's hopes with regards to this Joint Council are based on "anticipated" roles, not actual roles contained in the legislation.

Even after all of this, AFN still expects First Nations to follow blindly down this legislative path in "anticipation" of good results. The way I see it, once Canada lives up to its current legal and treaty obligations, I might be more inclined to have some faith in their intentions to live up to the hopes of AFN in this legislation. Until then, we owe our future generations a little more than pie in the sky false hopes.

7. First Nation Languages:

Nice try AFN, but the legislation is clear. The language of instruction in schools is French and English. There is no way you can interpret the law as written in any other manner. The First Nation "is to," i.e. must offer French or English. They "may" "in addition" offer First Nation languages. This is an optional, permissible action, in addition to regular instruction. Given that First Nations are also being forced to adopt provincial standards and curriculum, there'll be little room for English-French as core instruction to provincial standards, as well as First Nation immersion. The two are incompatible.

I don't want the courts left to interpret our rights. We have domestic and international legal rights to speak our own languages and educate our children in our own languages and on our own standards. This is also an inherent right based on our sovereignty and jurisdiction over education. If Canada had intended that First Nations would be "allowed" to educate their children in First Nation languages in immersion, they would have written it that way. Justice Canada's legislative drafters are skilled in writing the intentions of the instructing Minister. There was no mistake here.

8. First Nation Governance?

First Nation Education Authorities are the heart of this Act. It is intended that First Nation "control" is exercised through First Nation Authorities. These authorities are defined by Canada. They are agents of AANDC. Similarly, AANDC defines who is to be hired by these authorities, including Directors and Principles, and prescribes their roles. AANDC takes it a step further and includes a school inspector -- modern day Indian agent to oversee and "verify" compliance with the Act. This Act goes even further and gives the power to AANDC to require that the First Nation Authority hire a Special Advisor, and can even appoint a third-party educator known as a "temporary administrator" against the will of the First Nation. 

In comparison to the current Indian Act, this act gives AANDC much more detailed and expansive powers over First Nation education. The Act makes it mandatory for the Director, principal and staff of a First Nation school to comply with the third-party educator. Given the horrific outcomes of federally-run residential schools, First Nations have a right to fear such invasive control over their education systems -- far more intrusive than now. The difference between residential schools and modern-day federally-controlled schools under this Act is that the federal government was liable for the damages they caused in residential schools. In this Act, they absolve themselves of any and all liability for any harm done to First Nations.


Other Issues with the Act

- The funding is inadequate and will be eaten up by new federal and regional education bureaucracies

- The Act limits First Nation "control" to on reserve schools and excludes First Nation control over their students within their territories but off reserve

- The Act mandates the provision of already stretched education services to non-First Nations

- The Act mandates parents to register and force attendance of their children -- not unlike residential schools, which could result in increased abductions of First Nation children by Child and Family Service agencies into already swollen foster care

- The functions and powers of the National Joint Council are unlimited and could be substantially expanded under the yet-to-be-written regulations

- There is no requirement that the regulations be approved by or jointly drafted by First Nations -- Canada retains all the power to enact any regulation regarding this Act

- The provisions around the Joint Council membership seem to be more about saving the AFN as an organization, than of representing the views and choices of First Nations -- although not defined in the Act, the regulations will determine who is the representative organization

- A First Nation is not permitted to charge tuition fees to any of its attendees (I'm thinking specifically non-First Nation attendees), which precludes the design of special schools or funding options for schools

- The Act prescribes who can and cannot act as a Director or Principal, which in very small communities could severely limit whether local people could apply for these jobs

- Methods of calculation for funding purposes have skewed comparators in "similarly-sized provincial" schools given that the treaty right is not comparable with those who do not have similarly protected constitutional rights, histories, experiences, socio-economic conditions, governance capacity or catch-up to do from harms in residential schools

Finally, the height of an undemocratic, irresponsible, unaccountable government:

Canada reserves all these powers to direct First Nation education, but will not allow itself to be held accountable if it causes harm -- by insulating itself from liability.

This isn't what First Nations meant by recognition of First Nations jurisdiction over their own education systems, nor does it recognize and implement the treaty right to education. The AFN's continued defense of Atleo-Harper's education deal. At any time the regional chiefs of the AFN could have stopped Atleo by impeaching him; they could have resigned in protest; they could have spoken up loud and clear.

While it's true that some regional chiefs were ostracized and excluded from information and decision-making, staying silent about what is happening does not protect the people. I am a strong believer in unity, but not at the expense of unifying ourselves out of existence. Our ancestors were kind, respectful people who guarded their protocols to ensure good working relationships with other Nations. But our ancestors were also warriors and knew when to stand up and protect their people from harm.

Atleo's three-piece suits, photo-ops, club speeches, international travel and fancy dinners with Harper and his Ministers are an insult to the First Nations women who go murdered and missing, to our kids who die in foster care, to the children without hope who die of suicide and the many people who die premature deaths from purposeful, chronic federal underfunding.

The problem and the solution have been identified in hundreds of reports. Recognition of First Nation jurisdiction and adequate funding could change lives of First Nations and Canadians as we know it. Even the economic analysis says we'd all live much richer, fuller lives -- First Nation and Canadian -- if we invested in First Nation education. You don't need legislation or any more studies to do this -- it's a simple choice by Canada. Not all pressing problems have such simple solutions, but it's the solution itself -- funding -- that Canada has taken great pains to avoid.

It's time to stop shaking hands with those who are trying to eliminate us and start defending the rights of our people.

Image: wikimedia commons



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