EDUCATION JURISDICTION: AN OVERVIEW SEPTEMBER 2018 FIRST NATIONS - - PDF document

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EDUCATION JURISDICTION: AN OVERVIEW

SEPTEMBER 2018 FIRST NATIONS EDUCATION STEERING COMMITTEE

Overview

• 1. Context – BC First Nation Education System
• 2. Education Jurisdiction – what is it?
• 3. Where are we now?
• 4. Steps to becoming a Participating First Nation
• 5. Education Jurisdiction Resources, including glossary
• f key terms

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BC First Nations Education System

For over 20 years, First Nations in BC have worked collectively to build a comprehensive and responsive BC First Nations Education System. The BC First Nations Education System is unique within Canada: 1. We have an existing regional model, endorsed by BC chiefs and recognized in existing agreements with BC and Canada. 2. We have a wide range of second level services for schools and communities and dedicated funding to support them. 3. BC First Nations’ jurisdiction over education has been recognized in jurisdiction agreements and legislation (but is not yet fully implemented). 4. We have a Tripartite Education Framework Agreement with Canada and BC (that is currently being renegotiated).

The system reaches out to support First Nations students in First Nations schools and in public schools.

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BC First Nations Education System

The BC First Nations Education System is focused on

supporting First Nations in achieving their goals of economic viability and sustainability through a learning system that includes:

• high expectations,
• sound, holistic and inclusive curriculum,
• well-trained educators,
• focused leadership,
• parental involvement,
• accountability, and
• safe, healthy, and adequate facilities.

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Current Framework – First Nation Schools

There is currently a legislation and policy gap:

• First Nations education currently subject to national

policy being imposed by the federal government.

• First Nations education system is vulnerable to

political changes.

• There is no recognized legislation that provides a

foundation for First Nation Schools. Implementing education jurisdiction is an important step towards filling that gap.

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Education Jurisdiction – What is it?

 Rationale for Education Jurisdiction  Key milestones  Key documents  Key players

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Rationale for Education Jurisdiction

First Nations’ jurisdiction over First Nations education

• Will make “First Nations control over First Nations

education” a reality A First Nation with jurisdiction will be able to

• Make decisions in the best interests of their learners

(rather than having those decisions made by others)

• Pass an education law that establishes its own school

system, teacher certification, school certification, curriculum and exam standards

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Rationale for Education Jurisdiction

Education jurisdiction will

• Support First Nations schools in achieving increased educational

success for their learners by setting higher standards of education, creating a better learning environment

• Allow First Nations to establish a community-tailored education

system that

• meets the specific needs of First Nations learners
• is appropriate, compatible with, and relevant to the lives of First

Nations students

• ssupports cultural integrity, protects First Nations’ identities, and

preserves and perpetuates First Nations languages and cultures

• is consistent with their own priorities, values and ideals
• Increase accountability to the parents of First Nations learners

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Rationale for Education Jurisdiction

Under its own education law, a First Nation can

• Establish a Community Education Authority – the legal

equivalent of a school board – on its own or with other First Nations

• clarify the relationship between the First Nation Council

and the Community Education Authority or education advisory committee An Education Jurisdiction Agreement is considered a “sectoral self-government agreement” and would likely be protected from future federal legislation initiatives. Participating First Nations can be shielded from negative impact of new federal initiatives (e.g. would have been exempt from the federal legislation proposed by the previous Conservative Government)

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Key Milestones in Jurisdiction

• Jul. 25, 2003
• MOU signed (Canada, BC and FNESC)
• Nov. 26, 2005
• Education Jurisdiction Framework Agreement initialed
• Jul. 5, 2006
• Framework Agreement signed
• Dec. 12, 2006
• Federal Supporting Legislation passed
• Nov. 29, 2007
• Provincial Supporting Legislation passed
• Dec. 2010
• Canada announced that its Own Source Revenue

(OSR) policy would apply to this initiative

• Negotiations stalled from 2010 to 2015 as the parties

sought to resolve the OSR issue June 28, 2013

• Framework Agreement extended until 2018

July 2015

• Canada released new policy, “Canada’s Fiscal

Approach for Self-Government Arrangements” June 2016

• Canada re-engages in negotiations

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Key Documents

• 1. Framework Agreement
• 2. Education Jurisdiction Agreement
• 3. Funding Agreement
• 4. Federal and Provincial Supporting Legislation

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Framework Agreement

The Education Jurisdiction Framework Agreement (“Framework Agreement”) signed in 2006:

• Sets the road map for implementing First Nations’ jurisdiction
• ver education in BC,
• Committed Canada and BC to passing enabling legislation

(which they did),

• Was extended for five years in 2013 to 2018, and
• Includes four appendices:
• 1. British Columbia-First Nation Education Agreement
• 2. Template Canada-First Nation Education Jurisdiction

Agreement (“Education Jurisdiction Agreement”)

• 3. Template Canada-First Nation Education Jurisdiction Funding

Agreement (“Funding Agreement”)

• 4. Template Implementation Plan.

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Signing of the Jurisdiction Agreement – July 2006

Education Jurisdiction Agreement

• It brings a First Nation’s exercise of jurisdiction to life,

and sets the scope of its law-making powers.

• It recognizes a First Nation’s jurisdiction over

education on First Nation Land (i.e. First Nation’s reserve).

• This jurisdiction will extend to Members of the First

Nation and to Non-Members whose children attend the First Nation’s school.

• It is an agreement between a Participating First Nation

and Canada, based on the agreed template (attached to the Framework Agreement).

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Funding Agreement

• It provides funding to support the implementation of an

Education Jurisdiction Agreement.

• It is an agreement between a Participating First Nation

and Canada, based on the agreed template (also attached to the Framework Agreement).

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Supporting Legislation

Canada and BC have both passed supporting legislation.

• Federal legislation – First Nations Jurisdiction over Education in British

Columbia Act (2006):

• brings individual Education Jurisdiction Agreements into effect,
• recognizes Participating First Nations’ authority to pass education

laws and to establish Community Education Authorities, and

• establishes the First Nations Education Authority and sets out its

powers.

• Provincial legislation – First Nations Education Act (2007)
• recognizes Participating First Nations’ authority to pass education

laws, and

• requires BC to consult with the First Nations Education Authority
• n changes to provincial education.

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BC Education Jurisdiction Legislation Introduced to House of Commons – November 2006

Key Players

First Nations that vote on and ratify an Education Jurisdiction Agreement will have their names added to the schedule of the Federal Legislation and become Participating First Nations. A Participating First Nation can establish a Community Education Authority and clarify the relationship between the First Nation’s Government and the Community Education Authority through its law. The Education Jurisdiction Agreements and Supporting Legislation provide for the creation of a First Nations Education Authority (FNEA) and define its authority. This regulatory body is unique and created to specifically serve the interests of BC First Nations exercising Jurisdiction over education.

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About the FNEA

The First Nations Education Authority (FNEA) will have two representatives from each Participating First Nation.

• It will formally come into existence once there are at least three

Participating First Nations.

• Each Participating First Nation will sign an Education Co-

Management Agreement with the FNEA, which confirms the FNEA’s terms of reference.

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Chalo School

More about the FNEA

The FNEA will provide support to Participating First

• Nations. It will only exercise jurisdiction over matters that

have been delegated to it by Participating First Nations. The powers that will be delegated to the FNEA include:

• Teacher Certification,
• School Certification, and
• Curriculum and exam standards for courses required

to graduate. Since Participating First Nations will have seats on the FNEA, they will all be part of the process for determining standards.

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Still more about the FNEA

If requested, the FNEA will also take on other duties, such as:

• Certification of language and culture teachers,
• Organizing bulk purchasing initiatives for Participating First

Nations, and

• Issuing First Nation graduation certificates.

Under BC-First Nation Education Agreement, the FNEA will also:

• Set educational program standards,
• Standardize an assessment process for literacy and

numeracy for Participating First Nations Schools,

• Play a role in consulting and being consulted by BC, and
• Grant First Nations graduation certificates.

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Where are we now?

 Federal self-government funding policy  BC Tripartite Education Agreement (BCTEA)  BC Jurisdiction-Related Advances  Terms of Reference for Education Jurisdiction Initiative  Advancing priority issues – funding and governance

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Federal Self-Government Funding Policy

In 2015, Canada released a new policy

• “Fiscal Approach for Self-Government Arrangements”
• The 2015 policy confirmed that the federal Own Source

Revenue (OSR) policy no longer applies to sectoral self- government agreements, including education jurisdiction agreements In 2017, Canada established a collaborative process to develop fiscal policy for self-governing Indigenous Groups.

• To date, there is no sign of any reversal of the decision to

exempt education self-government agreements from the application of any federal OSR policy.

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BC Tripartite Education Agreement (BCTEA)

BC First Nations have always been committed to ensuring all BC First Nation Schools are resourced appropriately to provide quality education to First Nation learners.

• BC First Nations do not want funding to become the primary

incentive for signing jurisdiction agreements. In 2012, FNESC signed the Tripartite Education Framework Agreement (TEFA 1) linking First Nation school funding to the province’s Operations Grants Manual (OGM) with specific adaptations.

• TEFA provided a framework for education funding and policies

to support the BC First Education System

• This brought most schools close to comparable funding to

provincial schools.

• TEFA 1 expired on June 30, 2018 and BCTEA was negotiated

and replaced TEFA.

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Highlights of BCTEA

We are very pleased to have signed a renewed BC Tripartite Education Agreement (BCTEA) with BC and Canada. BCTEA includes new and significant funding for BC First Nations education over 5 years, including funding for:

• Language and Culture
• Transportation
• Technology

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Highlights of BCTEA

New and strengthened processes to support First Nation students, including:

• Tripartite arrangement to permanently replace Master Tuition

Agreement

• Requirement for Local Education Agreement (LEA) where requested by

First Nation

• Process to issue Adult Dogwood in First Nation schools
• New approach to ensure transportation to BC Public Schools
• 6th Professional Development Day in BC Public Schools
• Second First Nation Student Count (February)

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Highlights of BCTEA

New accountabilities by BC and Canada, including:

• Report on First Nation Student outcomes in BC Public Schools, including

community-specific data

• Report on progress on implementing UN Declaration on the Rights of

Indigenous Peoples as it pertains to education

• New commitment to strategic data collection and sharing for the

purpose of implementing changes to support First Nation Students

• Limit on Canada’s discretion regarding increases to funding

formula

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Comparison – Jurisdiction & TEFA

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TEFA EDUCATION JURISDICTION Status of Agreement TEFA is a legal contract between Canada, BC and FNESC (on behalf

• f First Nations).

The Education Jurisdiction Agreements are “sectoral self-government arrangements”. Law-making authority There is no law-making authority under TEFA. Participating First Nations will have law-making authority. Term TEFA 1 was a five-year agreement (2013 to 2017), which was extended for one year to 2018. The term of TEFA 2 is not yet known. Education Jurisdiction Agreements do not have a termination date. Approval process for First Nation Band Council Resolution required to participate in TEFA. Education Jurisdiction Agreements will be approved by First Nation members through a ratification vote.

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Comparison – Jurisdiction & TEFA

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Funding approach Funding under TEFA 1 based on the funding formula used by BC to fund provincial school boards, with specific adaptations. Funding likely to be determined by TEFA 2 funding methodologies, plus additional funds for governance costs. Federal Own Source Revenue policy application No – Federal Own Source Revenue (OSR) policy does not apply to TEFA funding. No – Federal OSR policy will not apply to Education Jurisdiction Agreements. Reciprocal tuition arrangement Yes – First Nations under TEFA can sign Reciprocal Tuition Agreements with BC. Yes – Participating First Nations can enter into reciprocal tuition arrangements. Graduation In development – interim process allows students at First Nations schools to obtain a Dogwood, if eligible. Yes – Students may obtain a Dogwood, if eligible. Establishing a Community Education Authority No authority to establish a Community Education Authority under TEFA, but can establish a society under Societies Act. Yes – A Participating First Nation can establish a Community Education Authority under its law.

Comparison – Jurisdiction & TEFA

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Teacher Certification No authority for First Nations to certify teachers under TEFA. Must hire teachers certified by BC or a recognized Canadian authority. Yes – The FNEA will have authority to certify teachers. School Certification No – No authority to to certify schools under TEFA. (The FNSA monitors schools under its own school certification initiative.) Yes – First Nations schools will have to be certified. The FNEA will have authority to certify schools. Second level services Yes – FNESC/FNSA provide second level services to First Nations. Maybe – Participating First Nations may be able to access FNESC/FNSA services on a fee for service basis or if not already funded by Canada. Relationship between TEFA and education jurisdiction TEFA recognizes that First Nations may opt into the education jurisdiction initiative. TEFA would no longer apply to a Participating First Nation, as it would be funded under education jurisdiction.

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Ottawa Trip with students from Fort Nelson and Bella Bella– November 2006

BC Jurisdiction-Related Advances

The British Columbia-First Nation Education Agreement is one

• f the agreements attached to the Framework Agreement.

Since it was signed, BC has implemented two of the key commitments: 1. Reciprocal tuition (expanded to be available for all First Nations schools; and 2. Worked with FNESC to develop a course that is equivalent to English 12 – English First Peoples 12 (then went on to develop English First Peoples 10 and 11).

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Education Jurisdiction Terms of Reference

With the resumption of jurisdiction negotiations in 2016, the Negotiating First Nations decided it would be helpful to develop Terms of Reference to guide the conclusion of the jurisdiction negotiations. Education Jurisdiction Terms of Reference were initially adopted on January 23, 2017 and have been updated several times since then.

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Priority Issues

Negotiating First Nations are working together to review and confirm that the templates for Education Jurisdiction Agreements and Funding Agreements continue to meet the

• bjectives of First Nations’ Education Jurisdiction.
• These template agreements, which were originally

negotiated in 2005, need to be updated in some areas. Over the next few months, we will be engaging in negotiations with with Canada and BC to amend the agreements as appropriate. Two priority issues are: costing for core governance (PFNs) and FNEA, which are closely tied to one another.

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Funding Issues

• 1. Funding issues:
• Scope and adequacy of funding
• Terms and conditions of funding
• Local Education Agreement
• bligations
• Funding for Second and Level

Services

• Funding for Community

Education Authorities and the FNEA

• Lessons learned from TEFA:
• Volatility of funding
• Funding areas where there is

a shortfall

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Governance Issues

• 2. Governance issues:
• Capacity building – preparing for self-governance over education

(including law-making, review and amendment)

• Further explore relationship between First Nations and the

Community Education Authorities or education advisory committees established by First Nations

• FNEA – need to establish the FNEA infrastructure and ensure it

works effectively with existing institutions (including FNESC and FNSA) to avoid duplication 36

Aqamnik School

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Steps to Becoming a Participating First Nation

Overview

 If a First Nation is interested the education jurisdiction initiative, it should take steps to become an Interested First Nation.  If a First Nation determines it wants to negotiate an Education Jurisdiction Agreement, it should take steps to become a Negotiating First Nation.  Once a Negotiating First Nation has concluded a ratified its Education Jurisdiction Agreement, it will be added to the schedule of the federal supporting legislation and become a Participating First Nation.  The process is open to more First Nations becoming Interested First Nations and to more Interested First Nations becoming Negotiating First Nations.

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Becoming an Interested First Nation

If a First Nation wishes to become an Interested First Nation,

• it must pass a Band Council Resolution (BCR)

indicating its interest in exercising jurisdiction over education (the form for the BCR is set out in the Terms

• f Reference), and
• forward the BCR to FNESC.

When FNESC receives the BCR, it will add the name of that First Nation to the list of Interested First Nations that it maintains.

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Becoming a Negotiating First Nation

If an Interested First Nation wishes to become a Negotiating First Nation, it must

• have a a First Nation school for students in K-4 to grade 12 (or

some of these grades) on its reserve land,

• pass a 2nd BCR , appointing a negotiator and providing the

negotiator with instructions (the form for the BCR is set out in the Terms of Reference), and

• provide formal notice to FNESC it wants to become a Negotiating

First Nation. Negotiating First Nations will then review the documentation to make sure everything is in order and confirm the First Nation as an Interested First Nation.

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What happens as a Negotiating First Nation?

 Negotiating First Nations will direct the negotiations to revise the template Education Jurisdiction Agreement and Funding Agreement.  Once the approach to determining program funding and funding for governance has been determined, Canada will provide each Negotiating First Nation with a funding offer.  Individual Negotiating First Nations would finalize their Education Jurisdiction Agreements and Funding Agreements, including funding amounts.  Canada and each Negotiating First Nation that is ready would initial an Education Jurisdiction Agreement and a Funding Agreement.  Each Negotiating First Nation, which has initialed agreements, would carry out community development work over a transition period (of up to 3 years) and prepare for ratification vote. 40

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Becoming a Participating First Nation

 Each Negotiating First Nation would hold ratification vote to approve:

• its Education Jurisdiction Agreement, and
• its Education Law-Making Protocol, establishing the process

under which a First Nation will pass its own education law.  If ratification vote is successful (i.e. 50% plus 1 of those who cast a ballot, vote in favour of the Education Jurisdiction Agreement and the Education Law-Making Protocol):

• The Negotiating First Nation and Canada would sign Education

Jurisdiction Agreement and Funding Agreement,

• The Negotiating First Nation and the FNEA would sign an

Education Co-Management Agreement, and

• Canada would pass an Order in Council (OIC, a form of cabinet

directive) adding the name of the First Nation to Schedule 1 of the federal act. 41

Becoming a Participating First Nation

 Once the name of the First Nation has been added to Schedule 1 of the federal act:

• The First Nation becomes a

“Participating First Nation”.

• The First Nation can pass its
• wn education laws.

This would mark the transition to the exercise of a First Nation’s jurisdiction over education.  Once three Participating First Nations are confirmed, the FNEA will formally come into existence.

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Chalo School

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First Education Jurisdiction Meeting 2007 – post Federal Legislation

Education Jurisdiction Resources

• Community Template PowerPoint Presentation (this presentation)
• Web Resources (jurisdiction videos, template BCRs and letters,

checklist, etc.)

• Jurisdiction Webpage:

http://www.fnesc.ca/about-fnesc/jurisdiction

• A jurisdiction video file is also available online and is a great

resource to provide a historical overview.

• Additional opportunities to learn about education jurisdiction:
• Jurisdiction Meetings (open to Negotiating First Nations

and Interested First Nations)

• Jurisdiction Toolkit (under development)

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Glossary of Key Terms

Community Education Authority = a separate legal entity established by a First Nation to operate the First Nation’s school (similar to a school board) Education Jurisdiction Agreement = an agreement between a First Nation and Canada that recognizes the First Nation’s jurisdiction over education Funding Agreement = a funding agreement between a First Nation and Canada that supports the implementation of that First Nation’s Education Jurisdiction Agreement Education Law-Making Protocol = document that establishes the process under which a First Nation will pass its own education law (voted on at the same time as the Education Jurisdiction Agreement) Negotiating First Nation = a First Nation that has agreed to negotiate an Education Jurisdiction Agreement with Canada Participating First Nation = a First Nation that has ratified an Education Jurisdiction Agreement and whose name has been added to the Schedule attached to the federal enabling legislation 45

Thank You

If you have any further questions, please contact:

Jan Haugen, Manager of Executive Services First Nations Education Steering Committee Suite 113 – 100 Park Royal South West Vancouver, BC V7T 1A2 Email: janh@fnesc.ca Phone: 604-925-6087 Fax: 604-925-6097

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QUESTIONS & DISCUSSION

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