Ottawa’s reform legislation falls victim to competing agendas

Ottawa published two major Aboriginal policy reviews in the 1960s. One was the infamous “White Paper” presented to Parliament in 1969 by Jean Chrétien, at the time Minister of Indian Affairs in Pierre Trudeau’s first government. It recommended abolition of the Indian Act and phasing out of reserves in favour of complete integration of First Nations into Canadian society. The White Paper served as a foil for Harold Cardinal’s “Red Paper,” an early statement on behalf of indigenous autonomy and an expansive interpretation of treaty rights.

The other document, now largely forgotten, was a more nuanced review. The Hawthorn Report, named for the study’s director, Harry B. Hawthorn, insisted that policy not be directed at assimilation (“the research on which the Report is based was not directed to finding ways in which Indians might be assimilated”), but it also insisted “that individuals be given the capacity to make choices which include the decision to take jobs away from reserves, play a part in politics, and move and reside where they wish.”1 Central to Hawthorn’s vision was expansion of the capacity of individuals, which required provision of high-quality on-reserve social services. Hawthorn predicted that once health care and schools of decent quality were available, many reserve residents would choose to leave the reserve and participate in mainstream society – as equals with other Canadians. He acknowledged that many would not make that choice, and that living on-reserve was an equally valid option.

Bill C-33, the First Nations Control of First Nations Education Act, tabled in Parliament in the spring of 2014, was the product of a tempestuous three-year reform project intended to provide a legislative basis for reserve schools across Canada. Over the half-century since Hawthorn wrote, apart from providing cash transfers to reserves, Ottawa has played a very limited role in K–12 education. Since the 1960s individual First Nation councils have, with exceptions and qualifications, managed their respective schools on a stand-alone basis. In effect, Bill C-33 took up Hawthorn’s challenge to make reserve-based social programs – schools in this case – of sufficiently high quality that First Nation youth would have “the capacity to make choices.”

Bill C-33 was a compromise drafted by the Department of Aboriginal Affairs (AANDC) with the active participation of Assembly of First Nations (AFN) leaders. The provisions of the legislation are pragmatic and, it can be argued, would make First Nation control of their schools more effective. On the other hand, Bill C-33 can be interpreted as an infringement of the absolute treaty right of individual First Nations over education. Such was the case made by Bill C-33’s opponents, who argued in the tradition of the Red Paper. The resignation of Shawn Atleo, AFN National Chief during the previous three years, and the subsequent withdrawal of Bill C-33 illustrate the difficulty of reconciling the Hawthorn and Red Paper agendas.

The census evidence

Relative to the tragedy of residential schools in the first half of the 20th century, policy since 1970 has obviously been an improvement. But it has not lived up to expectations. The gains in education have disproportionately accrued to First Nation individuals living off-reserve and Métis. While education outcomes for these two groups should not invite complacency, they are far superior to those among First Nation members living on-reserve.

The importance of high school completion in predicting whether someone avoids poverty over his or her lifetime is hard to exaggerate. While it is a low rung on the education ladder, it remains the crucial rung for getting a job. Whether someone is identified in the latest census (conducted in 2011) as North American Indian / First Nation, as Métis or as non-Aboriginal, the probability of being employed was below 40 per cent if he or she lacked high school certification.2 For the three identity groups, it jumped by over 25 percentage points for those with high school certification but no further education. At higher education levels, the probabilities of employment converged for the three groups, and for those with university degrees they were all above 75 per cent.

6_figure 1

Figure 1 illustrates high school completion profiles for four groups, by four age cohorts. Ages 20–24 is the youngest cohort to expect high school completion. The statistics are derived from the 2011 census; hence those in the oldest cohort illustrated were born prior to 1965 and all but a few of those who completed high school can be expected to have done so before 1980. Within the non-Aboriginal population, over one in five of those age 45 or older did not complete. For the three younger cohorts high school completion is roughly constant, at 90 per cent. This profile illustrates that, for non-Aboriginal adults below age 45, near-universal high school completion has become the norm. The analogous profile for Métis tracks that for non-Aboriginals, but is roughly 10 percentage points lower for all cohorts.

The story among First Nation cohorts is more complex. Their maximum high school completion rates occur at middle age (the age 35–44 cohort). The middle-age off-reserve high school completion rate approaches 80 per cent, not far below the analogous statistic for Métis. For on-reserve First Nations the middle-age completion rate is well below 60 per cent. The completion rate for the on-reserve age 20–24 cohort is only slightly above 40 per cent. This cohort will presumably increase its education credentials as it ages, but its present high school completion rate is below that for its parents’ generation (age 45 or older).

6_figure 2

National averages hide substantial provincial variations. Figure 2 illustrates provincial high school completion at ages 20–24 for the four groups in six provinces, Quebec to British Columbia. Collectively the six provinces include nine tenths of the Aboriginal-identity population. The data are presented here as deviations from the national averages for ages 20–24 illustrated in figure 1. Immediately evident is the superior on-reserve result in B.C. Ontario is 10 points lower; Saskatchewan is 17 points lower and close to the national average; the remaining three (Alberta, Manitoba and Quebec) are at least 25 points lower than B.C.

The present “non-system”

In trying to explain education outcomes, it is useful to divide relevant factors into those affecting the demand by families for formal education for their children and those operating on the supply side. The weak performance of Aboriginal relative to non-Aboriginal students arises from both kinds of factors. An important distinction to make here is between the contribution of school and of a student’s family. Parents with higher education and income contribute more, on average, to their children’s education. Disproportionately, Aboriginal students come from low-income families with low formal education. Many Aboriginal parents harbour a mistrust of formal education as an instrument of assimilation and place limited importance on mastery of core subjects (reading, science and mathematics).

Aboriginal students are also more likely to reside in isolated communities. Despite higher per-student funding in rural than in urban schools, the education outcomes in small schools in isolated communities are, for all students, generally inferior to outcomes in urban communities. Negative peer effects play a role. In schools with large Aboriginal student cohorts, Aboriginal students tend to perform less well. Finally, discrimination may exist in the school system. For example, teachers and administrators may form low expectations of Aboriginal student potential.3

In explaining B.C.’s superior performance, above-average on-reserve incomes, employment rates and education levels among parents are all relevant. In addition however, many have insisted on institutional factors. In B.C., relative to most other regions of the country, encompassing First Nation education associations have a longer history of assuming some functions of school districts in provincial systems. B.C. also has more organized links between reserve and provincial schools.

There are about 500 reserve schools across Canada. Some of these schools have close links with adjacent schools in a provincial system. In all provinces, associations – some weak, some strong – provide secondary services for reserve schools. However, for most reserve schools, the reserve council makes the managerial decisions, with little coordination with other reserve schools or the provincial school system.

Dedicated teachers can achieve remarkable results in stand-alone schools, but the overall results are never likely to be satisfactory. Michael Mendelson has described the status quo as a “non-system” and compared it to the situation in the Prairies a century ago when rural municipalities each ran one- and two-room schools.4 In a broad discussion of reserve governance in Inroads, John Graham stated his pessimistic conclusion about individual band governance of major social programs: “In the rest of Canada and elsewhere in the Western world, local governments serving 600 or so people have responsibilities … No countries assign to such small governments responsibility for the ‘big three’ areas of education, health and social assistance.”5

In mid-20th century, rural municipalities, often reluctantly, yielded strategic direction of schools to provincial education ministries. A necessary condition for children growing up on reserves to realize decent education outcomes, Mendelson and Graham argue, is that individual First Nations agree to entrust many decisions over school policy (such as teacher certification) and secondary services (such as curriculum design) to professionally managed First Nation school authorities.

The reform initiative and Bill C-33

In 2011, Shawn Atleo of the AFN and Chuck Strahl, at the time federal Aboriginal Affairs Minister, agreed to a joint panel to evaluate reserve schools. The panel based much of its analysis on institutional factors:

In the early 1970s, following the dissolution of the residential school system, and the devolution of First Nation education to individual First Nations, virtually no thought was given to the necessary supporting structure for the delivery of First Nation education. There was no clear funding policy, no service provision and no legislation, standards or regulations to enshrine and protect the rights of a child to a quality education and to set the education governance and accountability framework.6

The panel discussed the case for statutory funding for reserve schools that would be comparable on a per-student basis to the funding provided by provinces for comparable provincial schools. Stating the case for comparable funding has proved much easier than identifying the size of the “funding gap” in any province. A recent attempt to analyze the gap concluded that present data do not allow for a convincing conclusion.7 The explanation for this agnosticism is incompatibility between federal and provincial accounting procedures and the difficulty of defining what provincial schools should serve as benchmark for comparison with reserve schools.

The panel also highlighted the role of several encompassing institutions that provide secondary services and enjoy some of the authority exercised by school districts within provincial education systems.8 The most elaborate of these is the First Nations Education Steering Committee (FNESC) and the associated First Nations School Association (FNSA) in B.C.

Many First Nation children living on-reserve are attending provincial schools, and many families move frequently between their reserve and an off-reserve community, or between provincial communities. At any point in time approximately 40 per cent of children living on-reserve are attending a nearby school within a provincial system. To the extent that institutional factors explain B.C.’s superior high school completion rate, it is not only First Nation institutions that matter. So too do policies of B.C.’s school system and the regional Aboriginal Affairs office. In summary, B.C.’s institutional advantage has four components:

There are well-established encompassing First Nation education organizations: Virtually all First Nations in B.C. belong to FNESC and FNSA. FNESC represents First Nations in negotiations with the provincial education ministry in Victoria and the federal Aboriginal Affairs department. FNSA provides secondary services to schools, assesses reserve school performance in reading, arithmetic and other metrics, and designs curriculum.

Since the 1990s, B.C.’s education ministry has provided incentives for provincial school districts to reduce the performance gap between Aboriginal and non-Aboriginal students: For two decades the B.C. education ministry has provided school districts with additional funds based on the number of Aboriginal students in district schools, and required the districts to prepare Aboriginal Education Enhancement Agreements in conjunction with local Aboriginal leaders having a stake in education. The intent is that districts use their incremental funds for Aboriginal education projects and that the Enhancement Agreements define proximate goals, such as targets for Aboriginal students in provincial core competency tests or in attendance rates.

The province gathers and publishes better Aboriginal student performance data: The B.C. education ministry has a tradition of publishing detailed Aboriginal student performance in provincial schools, disaggregated to the school level. B.C. is the only province that reports Aboriginal student results on core competency tests (in mathematics and reading) disaggregated by school. While it is not as comprehensive, FNSA publishes on-reserve student performance.

Relations with the regional Aboriginal Affairs office have been more productive than in most regions: Thanks to well-established encompassing First Nation education organizations and a provincial tradition of affirmative action, it has been easier in B.C. than in most provinces for the regional office to build working relationships with the provincial education ministry and to coordinate education policy with First Nations.

Bill C-33’s authors sought to create a legislative framework that would require First Nations across Canada to provide clearer lines of authority for professional management of reserve schools and enable creation of larger encompassing education associations like the ones in B.C. Simultaneously, the bill legislated the principle of comparable per-student funding. The key provisions of Bill C-33 can be summarized as follows:

Preamble: The preamble contains 11 “whereas” clauses that state the dual goals of the legislation as perceived by the AFN national office and AANDC. As illustration, one clause refers to the appropriate cultural dimension of First Nation education (“Whereas First Nations children attending schools on reserves must have access to education that is founded on First Nations history, culture and traditional values”). Another clause refers to a curriculum enabling students to acquire competence in core subjects and hence be mobile between school systems (“Whereas First Nations children attending schools on reserves must have access to elementary and secondary education that allows them to obtain a recognized high school diploma and to move between education systems without impediment”).

Creation of Joint Council of Education Professionals (ss. 10–19): Though the legislative powers of the minister of Aboriginal Affairs are rarely used, wide ministerial discretion exists. Bill C-33 reduces this discretion by creating the Joint Council, to be composed of an equal number of members appointed by the minister and by “any entity representing the interests of First Nations that is prescribed by regulation” (s. 12) – expected to be the AFN. The duties of the Joint Council are ill defined but open-ended. The expectation is that it would assume a progressively more important role in elaboration of reserve school policy.

Enabling First Nation councils to delegate powers to a First Nation Education Authority (s. 27): The bill enables First Nation councils to delegate their education powers to “a body corporate incorporated under federal or provincial legislation if the agreement meets the conditions set out in the regulations” (s. 27). This enables councils to create collectively a reserve equivalent of a school district in provincial systems. While instances are expected to be rare, this section enables a First Nation council, if it desires, to join a provincial school district.

Specifying minimum structure for schools run by a First Nation council: Bill C-33 requires that any council operating schools on a “stand-alone” basis meet certain statutory requirements:

The council must prepare the school’s annual budget and provide the minister and the Joint Council with a copy (s. 21).

The council must appoint individuals to three positions: director of education (s. 35) responsible for overall management of education programs; principal (s. 36) responsible for running a school, and school inspector (s. 37) to evaluate school programs.

The principal must, among other duties, construct a “success plan” stipulating proximate school goals that he or she deems appropriate (s. 27).

Principle of statutory funding (ss. 43–45): Payments to a reserve school must be such as to enable provision of services “of a quality reasonably comparable to that of similar services generally offered in a similarly sized public school that is regulated under provincial legislation and is located in an analogous region” (s. 43). Funding “must include an amount to support the study of a First Nation language or culture as part of an education program” (s. 43).

The response, the conflict and the future

Once the bill was tabled, the AFN published a detailed analysis that elaborated on the case for it.9 The AFN stressed the extent to which the legislation limited existing ministerial discretion and enhanced the AFN’s objectives with respect to the goals and funding of reserve schools. However, the AFN’s analysis did little to persuade the majority of chiefs who, from the beginning of the reform initiative in 2011, had been sceptical of any legislation requiring change to reserve school organization. These chiefs argued that the core remedy was to close the elusive “funding gap” via much-increased funding of reserve schools. In addition, many opposed Bill C-33 on grounds that the treaty right over K–12 education is absolute: any legislation that constrains the autonomy of First Nations in managing reserve schools is unacceptable. Opponents cited the provisions specifying minimum structure for schools run by a First Nation council as examples of such constraints.10

Yet others noted the many sections in the legislation referring to as yet unwritten regulations and the extent of remaining ministerial discretion. Given a history of mistrust, many chiefs interpreted all such qualifications as loopholes whereby Ottawa would symbolically enhance First Nation control while, in fact, maintaining control itself. The gap between the intent of Bill C-33’s advocates and interpretation of the bill by critics is stark. According to Manitoba Grand Chief Derek Nepinak, Bill C-33 is:

an attempt to create the illusion of First Nations control over education. At the same time it maintains – in the spirit of Canadian colonial lawmaking – an unfettered discretion accruing to the minister and granting him or her with sweeping power and control over a variety of educational matters … Indigenous peoples living in the successor state of Canada (with or without treaties), have rights of self-determination, recognized under international law and are blatantly denied in the current form of this bill.11

Perhaps not surprisingly, many of the most prominent critics of Bill C-33, including Nepinak, head First Nation reserves in the Prairies. These chiefs represent a disproportionate share of the most isolated reserves, whose members have few local off-reserve employment opportunities. In his assault on Bill C-33 Nepinak did not attempt to explain why high school completion among young First Nation adults in his province is so low or why completion in Atleo’s province is double that in Manitoba. It seems fair to conclude that, for many of the chiefs who opposed Bill C-33, discussing managerial and administrative changes likely to improve reserve school outcomes is not the point. What matters is affirmation of the treaty right to run reserve schools autonomously.

Put crudely, the opponents argue in the tradition of the Red Paper; the supporters are in the tradition of Hawthorn. Bill C-33 is the product of collaboration – at times strained – between an articulate, largely urban and well-educated First Nation leadership and senior government officials committed to institutional reform. Implicitly, the AFN under Atleo acknowledged the widespread weakness of reserve school management and the legitimacy of Bill C-33’s attempt to create a “space” on-reserve for leaders interested in education as opposed to other political concerns. Implicitly, the engaged government officials acknowledged the absence of professional knowledge on school management within AANDC. Ironically, the people with the best practical knowledge of running schools, those engaged in provincial school systems, have been largely absent from this debate.

Less than a month after the tabling of Bill C-33 in Parliament, the conflicts among First Nation leaders came to a head. A factor encouraging opposition to Atleo was the refusal by both NDP and Liberal caucuses to support Bill C-33 in second reading. This allowed Bill C-33’s opponents to characterize it as a partisan Conservative undertaking. Atleo chose to resign as National Chief while reiterating his support for Bill C-33: “The current proposal on education is the latest attempt and a sincere, constructive effort on the part of Prime Minister Stephen Harper to take a step forward.”12 In response to Atleo’s resignation, the government has withdrawn Bill C-33, at least until the chiefs select a new leader for the AFN.

At the time of writing (October 2014), Bill C-33 is in purgatory. Given time for passions to cool, the AFN may choose a new national chief who, like Atleo, is committed to fundamental education reform. With some amendments, a version of Bill C-33 may in due course be enacted.

Alternatively, both AANDC and AFN may abandon education reform. In which case, the best prediction for reserve schools over the coming decade is a continuation of the status quo. There will be pockets of on-reserve education excellence led by exceptional chiefs and councils. Coalitions of First Nation and provincial politicians will undertake tentative reform initiatives in some provinces. Overall, however, there will be far too many underperforming schools.

Notes

1 Harry B. Hawthorn, ed., A Survey of the Contemporary Indians of Canada: Economic, Political, Educational Needs and Policies, Vol. 1 (Ottawa: Information Canada, 1966), p. 10.

2 For further discussion of census data on Aboriginal education and employment levels, see my Are We Making Progress? New Evidence on Aboriginal Education Outcomes in Provincial and Reserve Schools, Commentary No. 408 (Toronto: C.D. Howe Institute, 2014), retrieved here.

3 The explanation for low Aboriginal education invites controversy. William Demmert and Peggy McCardle (“Improving the Education of Native American Children,” Journal of American Indian Education, Vol. 45 No. 3 ) survey empirical research on education among American Indians.

4 Michael Mendelson, Why We Need a First Nations Education Authority Act (Ottawa: Caledon Institute of Social Policy, 2009).

5 John Graham, “Dysfunctional Governance: Eleven barriers to progress among Canada’s First Nations,” Inroads, Summer/Fall 2012, p. 38.

6 Assembly of First Nations / Aboriginal Affairs and Northern Development Canada, Nurturing the Learning Spirit of First Nation Students, Report of the National Panel on First Nation Elementary and Secondary Education for Students on Reserve (Ottawa: AFN/AANDC, 2012), p. 9.

7 Don Drummond and Ellen Rosenbluth, The Debate on First Nations Education Funding: Mind the Gap, Working Paper 49 (Kingston, ON: Queen’s University, School of Policy Studies, 2013).

8 The three highlighted are the Akwesahsne School District covering Mohawk schools in Ontario, Quebec and New York state; the Mi’kmaq Kinamatnewey Agreement in Nova Scotia; and the First Nations Education Steering Committee (FNESC) in B.C.

9 Assembly of First Nations, Analysis: Bill C33 – First Nation Control of First Nation Education (Ottawa: Author, 2014), retrieved here.

10 In A Second Look at the First Nations Control of First Nations Education Act (Ottawa: Caledon Institute of Social Policy, 2014), Michael Mendelson discusses the complexities of accommodating treaty rights within the context of a liberal parliamentary democracy. Any constitutional provision (in this case treaty rights) can only be rendered operational via legislation specifying what actions the government of the day must undertake.

11 Derek Nepinak, “New First Nations Education Act an ‘illusion of control,’” CBC News, April 11, 2014, retrieved here.

12 Assembly of First Nations, Statement from AFN National Chief Shawn A-in-chut Atleo, May 2, 2014, retrieved here.