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The most powerful weapon: the ongoing fight against the First Nations Education Act

In the shadow of the shelved FNEA, First Nations struggle for self-determination over education

by J.W. Coady

Deidre Kahwinétha Diome and traditional elders protest the FNEA on Parliament Hill
Deidre Kahwinétha Diome and traditional elders protest the FNEA on Parliament Hill
Kahwinétha's granddaughters protesting the Act that would threaten their Mohawk immersion school
Kahwinétha's granddaughters protesting the Act that would threaten their Mohawk immersion school

For over a century, the Canadian state sought to eradicate indigenous languages and cultures through the residential school system. Asked to reflect on this, Deidre Kahwinétha Diome is quick to point out the larger picture.

“It would be easy if I could just say that there was a break between generations relating to language, but people have to understand that it’s far more complex than that,” she says. “If you take generations of children from their homes and families, destroy their language, culture and identity, and physically, emotionally and sexually abuse them, what possible outcome do you expect for their societies? When the European settlers arrived here in North America, all they could see was the wealth, power and prosperity that they could harness for themselves. If they could suppress our language and our cultural identity, then they could erase our people and the truth of our title to the land.”

Deidre Kahwinétha Diome is a mother and activist from the Mohawk nation of Kahnawà:ke. She is the chairperson of the Kahnawake Combined Schools Committee, the body that oversees education in the community. Its board is elected by and composed of parents of the students - a system put in place in 1968 based on the principle that parents should have the most say in determining their children's education.

For Kahwinétha, it is important to stress the rationale behind that organizing principle.

"You have to remember that we're a society where parents had no control over our children's education up to 1969,” she says. “We had school systems imposed on us; what we were taught we had no say in. So when they wanted to put parents in place, there was a kind of history behind it - of feeling powerless.”

Since 1969, Kahnawà:ke has been turning this history around. In 1979, a Mohawk immersion pilot project was established for children at the nursery level. Today, the pilot has evolved into the Karonhianonhnha Tsi Ionterihwaiensthakwa School, where students are totally immersed in the Mohawk language up until Grade 4. This has energized the community, given it a sense of pride and created new generations of fluent speakers.

Among her many responsibilities under the Kahnawake Combined Schools Committee, Kahwinétha works on the committee's social policy file and is engaged in community-driven process to rewrite the committee’s 1996 Constitution. She is also engaged in a collective effort to draft a new Kahnawake Education Responsibility Act. The subcommittee working on that bill came to the conclusion that the current Kahnawake Education Responsibility Act could be improved, but the federal government doesn't recognize the community's right to do so.

"We are a sovereign nation, a sovereign community, a sovereign people. We create legislation that our community supports, that follows a process that is established by our people and for our people,” she says. “And the problem that we run into is that the Canadian government insists that we do not have the legal right to make laws - that only they do. This is where we run into the battle of ideologies, where they continue to feel that we are Canadian citizens and that we have to follow Canadian law. And then Indigenous people are still, 500 years after the arrival of Europeans, resisting the notion that we must give up who we are to become what the newcomers determined we need to be."

In this vein of resistance, another of Kahwinétha 's committees, the Kahnawake Education Working Group, has been central. For over two years, with the aid of 10 colleagues on the committee, Kahwinétha was passionately engaged in fighting the impositions of the government's most recent, wide-reaching legislative effort aimed at First Nations, C-33.

Bill C-33, also known as the First Nations Education Act, was introduced by the Conservative government on 10 April 2014. It was championed as a fix for the problems ailing First Nations education across the country, where graduation rates lag behind the national average. It would have applied to all reserves not currently covered by self-government agreements in education, like those signed in British Columbia and Nova Scotia. Currently, there is no education system in place for First Nations in Canada.

The bill would have created mandatory education standards for on-reserve schools and would have enforced provincial teacher certification requirements. It also would have handed over power to the Minister of Aboriginal Affairs to unilaterally define the scope and criteria of almost all important aspects of First Nations education.

The bill was developed with very little input from First Nations as rights-holding bodies. 

"We were not consulted, and neither were any of the 21 other communities in Quebec," Kahwinétha states flatly. "Our entire region had never been consulted. And we have a complete consultation structure in place, so when Stephen Harper stood up there and said, 'We consulted them,' it's not true."

On December 11th, 2012, the Federal government announced that consultations would be conducted for the development of a First Nations Education Act. A two-phase consultation process was determined: the first phase would consist of eight one-day regional consultation sessions in urban centers as well as about thirty teleconference and video sessions where First Nations could provide submissions; the second phase would involve sharing the draft legislation with First Nations for comment.

Despite the fact that various First Nations expressed discontent with the process from the outset, the government paid little heed to their concerns. And when the Assembly of First Nations (AFN) chief Shawn Atleo and Stephen Harper jointly announced the intention to move forward with a final draft of the legislation on February 7, 2014, many regional Chiefs were taken by surprise, left in the dark by what they considered a closed-door process. Discontent with Atleo's secret dealing, as well as increasing opposition to the contents of the bill, inadequate funding promises, and an insufficient consultation process, ignited a groundswell of opposition to the bill which that also led to Atleo's resignation on May 2, 2014. Having lost, through the resignation of Atleo, its sole source of legitimacy in brokering with First Nations, the government deemed its recently tabled bill 'on hold' until further notice. 

Bill C-33 has not been withdrawn. It passed second reading but has yet to be taken up by a parliamentary committee. For Kahwinétha, until the bill is withdrawn and the de facto policies therein are officially discredited and disavowed, the bill is a direct threat to local autonomy in the community.
  
"There is no commitment to the true needs of Indigenous communities. Nowhere in there are they saying that they're going to meet our financial needs, for one. Second, there would be a complete loss of control by families, communities, and nations to have any say in what would be taught in our schools. First Nations people have the right to self-determination, and unfortunately the First Nations Education Act is a continuation of the dark history Canada has of being motivated to eradicate or to erase or to assimilate indigenous people into mainstream society."

The expected negative effect that the bill would have on First Nations rights to exercise jurisdiction over education, in addition to the unsatisfactory process of consultation and accommodation of First Nations' concerns and interests, caused the Assembly of First Nations of Quebec and Labrador (AFNQL) to file on February 19, 2014 an application for judicial review of the process by which the bill was developed.

Under Section 35 (1) of the Constitution Act, 1982, the government has a duty to consult when it contemplates action that may affect an Aboriginal right. The AFNQL argued that the government failed in its duty to consult when contemplating legislative action that would have affected a particular right under section 35 - the right to self-government with respect to education. 

The case was never given a hearing date, and it was eventually suspended after the government repeatedly declared its intention not to move forward with the bill. But the complex issues touched on by the case go to the heart of the fight for local autonomy in and control of education by First Nations communities like Kahnawà:ke.

The government’s view was and is that the key powers for defining aboriginal education reside with the Minister of Aboriginal Affairs - namely, sections 114 to 122 of the Indian Act giving the Minister discretionary authority to make laws with respect to Indian children on reserve. The AFNQL’s argument, on the other hand, is based on what are commonly referred to as inherent rights: the interpretation that Aboriginal rights existed long before the arrival of Europeans and are defined by their customary practices and collective use of land.

The courts have defined an Aboriginal right as “a custom or a practice that pre-exists European culture and is integral to the distinctive Aboriginal society that asserts it.' According to the Van der Peet decision, the purpose of Section 35 was to reconcile the sovereignty of the Crown with the prior presence of Aboriginal peoples, their occupation of the land as well as the prior social organization and distinctive culture of aboriginal peoples on that land. What made the suspended case so interesting – and potentially precedent-setting – was that it made the case for education to be construed as a component of the existing Aboriginal right to self-determination and self-government. The argument is that the recognition of distinctive cultures embodied in Section 35 of the Constitution necessarily involves the recognition that these cultures determined their manner of being governed. And the crucial mechanism for perpetuating all the distinctive elements of the culture – its distinctive ways of being and its political and economic relations - was education. 

Zach Davis, former legal counsel for the AFNQL in their application for judicial review, summarizes the legal arguments succinctly.

"If, prior to contact, the manner in which education was governed was distinctive to the society, and it is a right today, it has not been extinguished by the Indian Act. To the contrary, the Indian Act says that the Minister may do certain things with respect to education. Presently, in the absence of the Minister's actions, First Nations retain the legal power and jurisdiction to do what they want with respect to education, irrespective of the Minister's oversight.”

“So, far from being extinguished, First Nations presently hold jurisdiction over their own education and any law that would come and bind the manner in which they must come to exercise that jurisdiction - certainly, any laws that would appropriate powers that they currently have and give them to the Minister exclusively - would negatively affect the right to self-government and self-determination."

What is more, Davis argues, these rights are collective and legal. The laws that underlie Aboriginal rights come from the beginnings of British North America, when British colonial policy was to protect Aboriginal communities and their land from settlers. The pre-existing customary laws of Aboriginal peoples were incorporated into English common law and they continued to exist unless they were explicitly displaced by statute. This is why, Davis says, when we talk about the aboriginal right to self-determination and self-government, we are talking about Aboriginal laws. These laws form part of our present-day common law, and since the repatriation of the constitution in 1982 and its recognition and affirmation of Aboriginal rights, they have been constitutionalized. But the rights do not make sense unless they are thought of in terms of collective rights: "The right to self-determination and to govern education must necessarily be collective. It is a right held by First Nations as nations," says Davis.

In 1995, the Canadian government recognized the right to self-government as an existing Aboriginal right, through its Inherent Right Policy. The policy clearly enumerates 'education' as a subject that can be negotiated under a self-government agreement. It also states that the recognition of the inherent right of self-government is "based on the view that Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions."

The government reiterated its commitment to this policy in its August 2014 interim comprehensive claims policy, declaring its commitment to seek ‘legal certainty’ with regard to non-land related rights negotiated through its preferred approach to reconciling rights, modern treaties. It defines certainty as a legal technique that “reconciles the coexistence of existing Section 35 Aboriginal rights with treaty rights” by stipulating that the agreement of the parties in modern treaties cannot be undermined by the use of Section 35 rights when inconsistencies arise between them. 

The Inherent Right Policy is clear with respect to the relevance of education. However, the document states that because there are ‘different views about the nature, scope and content’ of the right to self-government, the government’s preferred approach is to avoid legal definitions and to negotiate its terms in treaties with Aboriginal peoples. The government's de facto policy is that only First Nations that have signed self-government agreements on education are considered to possess jurisdiction over education, and that in the absence of such agreements, the government retains the sole power to make laws with regard to First Nations education.

For Zachary Davis, this policy is entirely flawed and self-serving.

"What the policy says is that the right to Aboriginal self-government only exists as a limit to government power if the government agrees that it does. But as a constitutional right, the right to self-government is not something that the government had to agree to; it is something that limits the government's power anyway. The government has been able to rely on that policy - and in the great inequity of resources in negotiating those agreements - to minimize the recognition of true self-government for First Nations and to limit the application of the right to self-government for First Nations in the context of modern treaties."

In the recent Tsilhqot’in decision, the Supreme Court of Canada for the first time affirmed Aboriginal title over a specific land area –namely, 1,700 square kilometres in the interior of British Columbia as belonging to the Tsilhqot’in First Nation. The decision's analysis described Charter rights and Aboriginal rights as sister provisions of the constitution, in that, as Davis points out, they both function to restrict the government's ability to act, operating as limits to federal and provincial legislative powers.

In chief respects, the government’s presumption of sole authority over First Nations education creates a zero-sum game: the more cards that are placed in the hands of the government, the less autonomy is possible on the ground in places like Kahnawà:ke.

For Deidre Kahwinétha Diome, it is important to stress that First Nations do not want a 'loophole' to avoid accountability.

"What we're saying is, we have our methods of doing things and we need the latitude to keep that flexibility,” she says, citing the example of elders who are teaching but don’t necessarily have a Master's degree. “According to the new standard in the Act, an elder would not be allowed to be a teacher anymore because she doesn't have a Master's degree. Now does that mean that we don't want to have qualified teachers? No. But that's how it was distorted in the media to make it sound like that's what we wanted, and the government were coming in to do what's best for us because we're all too stupid to realize that we need standards."

This hypocrisy is especially frustrating for Kahwinétha: First Nations are portrayed as unaccountable, while the government is let off the hook. A particular point of consternation is clause 46 (2) in the First Nations Education Act, which insulates the federal government against any legal action connected to the Act. Kahwinétha connects this to the massive lawsuit that The Assembly of First Nations brought against the government for the harms that it inflicted on First Nations in residential schools.

Furthermore, the concentration of power in the Minister's hands would further restrict accountability and preclude effective control over curriculum. According to the bill, if the Minister determines that a school is not following the provisions of the Act, he or she can put the school under third party management. There would be no grievance or appeal procedure for First Nations to dispute this unilateral designation.

 Kahwinétha relates that her community currently practices “curriculum unwrapping” - a democratic process kickstarted by the First Nations Education Council that involves identifying core components of education derived from provincial curricula (Kahnawà:ke takes most of its curriculum from Ontario) and removing the material that isn't necessary so as to provide space for culture and language programming. Under the First Nations Education Act, Kahwinétha says, that discretion would no longer exist.

"The Minister has final say over everything,” she says.

The importance of local control of education is never clearer than when language is involved. In indigenous cultures, the two are often one and the same: language is a repository for the culture and is imbued with the nation’s history, lessons and knowledge of the natural world. Unfortunately, the First Nation Education Act would place limits on the use of language as part of curriculum.

According to Davis, the bill's requirement that the language of instruction be in French and English, as well as the Minister's power to regulate First Nations' languages as languages of instruction, would make the provision of First Nations' language immersion programs illegal.

"Our understanding of the bill is that there is mandatory French or English instruction. There is room for First Nations language instruction but the extent of the instruction would be subject to ministerial approval. So, at best it might be taught as a second language. And frankly, if you want to revive languages that are on the verge of extinction, you need full immersion programs. And the only way to ensure that they will survive is to make sure that they can be taught in a manner that will reinvigorate their vitality."

Central to the process of reinvigorating languages on the brink of extinction is funding. The funding formula for First Nations' education was first set in 1987 and was last updated in 1996 to reflect population and living costs. Since that time, it has been capped at two per cent per year. Given the rise in population and the cost of living, this has created major shortfalls in funding. In a 2012 backgrounder on First Nations education, the AFN calculated a cumulative funding shortfall of $ 3 billion since 1996. Irrespective of whether the First Nation has a self-government agreement in education, like the community of Eskasoni in Cape Breton island in Nova Scotia, or its own unique arrangement independent of the Indian Act, like Kahnawà:ke, the lack of sustained and reliable funding for education, and in particular for language curriculum, has meant that communities struggle to keep their cultures alive.

In Eskasoni, the school board gets its federal money funnelled through Mi'kmaw Kinatmatnewey, the corporate body created under the Mi'kmaw Education Act in 1997 which provides second level education services to the communities in the region. Through the federal nominal roll system, the school receives funding for students ordinarily resident on reserve on a per-head basis. The board must also apply for grants. The problem is that the core funding does not take into account the costs of developing materials for a culturally relevant pedagogy. That includes funding for libraries, technology, sports and recreation, and most importantly, language. In particular, the school would like to make enough money to provide separate quarters for its immersion school, which currently resides in a wing of the English school. Grants are becoming more difficult to attain, and there is a dire need for funding of specialists - gym teachers, music teachers, speech and language pathologists and occupational therapists - who are trained in the language. Applying for government grants is a full-time job that the community of Eskasoni cannot afford.

Similarly, in Kahnawà:ke, no funding is allotted to language programming, acquisition or retention or language curriculum development. The community relies on core funding from Aboriginal Affairs and Northern Development (AANDC), as well as less predictable project proposal-driven funding from AANDC that is released and transferred through the First Nations Education Council, the second level education authority of the Quebec region. The Director of Finance Operations, Louie John Diabo, is forced to find creative ways to disburse the allotted funding in a manner that will meet the community's needs – a process he refers to as the “cannibalization” of his own internal budget to find money for the development of curriculum. Recently, the community learned that its sole source of federal money for curriculum development - the $130,000 Student Success Program - was being cut. Many believe that the cut is punishment for the community’s principled fight against the Education Act.

For Louie John, the cut is a form of coercion, and the band is faced with the choice of going it alone or of adopting the government’s standards and giving up its inherent rights in exchange for money.

“It’s as though they’re choking us and saying, ‘Sign on the dotted line and you’ll get what you want,’” he says.

When the Harper government announced the First Nations Education Act, they also announced $1.9 billion in new education funds. But there was a catch: the funds were tied to the Act itself. The government would not be providing any new money if First Nations failed to support the Act.

To Kahwinétha, this was blackmail. "If you leave your culture, leave your curriculum behind, and you follow the Canadian standard and curriculum, then we'll give you this money," she characterizes it. 

Kahwinétha sees language education as a redemptive force in the community. The struggle is both personal and political.

"Nelson Mandela had a very famous quote. 'Education is the most powerful weapon which you can use to change the world.' As an Indigenous person, I have been witness to so many challenges, and so much knowledge of the pain that my people suffered, and yet I feel such tremendous hope for our people. I believe that education is really the root of what can save us. If we can use our education systems to combine our history and our past and our culture and our identity and our language and our thinking with powerful modern curricula, then we can raise children who have a strong identity and who are proud of who they are. They can have anything in this world."


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