Order Bringing Individual Agreements with First Nations into Effect: SOR/2023-128

Canada Gazette, Part II, Volume 157, Number 14

Registration
SOR/2023-128 June 19, 2023

FIRST NATIONS JURISDICTION OVER EDUCATION IN BRITISH COLUMBIA ACT

P.C. 2023-575 June 16, 2023

Whereas an individual agreement has been entered into with each of the bands referred to in the annexed Order;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Crown-Indigenous Relations makes the annexed Order Bringing Individual Agreements with First Nations into Effect under subsection 5(1) of the First Nations Jurisdiction over Education in British Columbia Act footnote a.

Order Bringing Individual Agreements with First Nations into Effect

Individual Agreements in Effect

Individual agreements

1 For the purposes of the First Nations Jurisdiction over Education in British Columbia Act, the following individual agreements are in effect:

Related Amendment to the First Nations Jurisdiction over Education in British Columbia Act

2 The schedule to the First Nations Jurisdiction over Education in British Columbia Act footnote a is amended by adding the following in numerical order:

Coming into Force

Registration

3 This Order comes into force on July 1, 2023, but if it is registered after that day, it comes into force on the day on which it is registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Order.)

Issues

Indigenous peoples’ diverse histories, world views, languages and cultures are often not reflected in the education system and the current system continues to displace Indigenous youth from their families, leading to a further breakdown of the continuity of culture within Indigenous communities.

One way Indigenous communities have started to reclaim their identities, cultures and governance systems is through education. Some First Nations have been working to become fully responsible for the delivery of education services on their lands for students in grades K-12, subject to their own laws, including the ability to develop their own education curricula, graduation requirements, teacher certification, and school certification.

In British Columbia, negotiations towards recognizing First Nations jurisdiction over education have been ongoing since 2006, and the negotiating First Nations have been working to advance their vision of education self-determination since the 1990s. Agreements with these First Nations recognize their jurisdiction over education on their lands.

This Order brings three agreements into effect, per subsection 5(1) of the First Nations Jurisdiction over Education in British Columbia Act (the Act) and includes an amendment that adds these First Nations to the schedule of the Act. This is the final step to recognizing the authority of Squamish Nation, Ditidaht First Nation, and Canim Lake to make laws related to primary and secondary education on reserve in their communities. These First Nations will also receive financial resources to assist in delivery of education services to eligible students under the terms of those laws, as set out in the education jurisdiction agreements signed between Canada and these First Nations.

Background

First Nations across Canada have long sought recognition of the right to self-determination over the education of their members on their lands. First Nations currently negotiating education jurisdiction agreements with Canada have been working to advance their vision of education self-determination since the 1990s.

Discussions over education jurisdiction in British Columbia have been underway since 2006 when Canada signed the Education Jurisdiction Framework Agreement with the provincial government of British Columbia and the First Nations Education Steering Committee. This agreement included a template Canada–First Nation Education Jurisdiction Agreement and the related Canada–First Nation Education Jurisdiction Funding Agreement and Implementation Plan, which allows First Nations to assume control over education once ratified by individual First Nations and Canada.

Subsequently, Canada enacted the First Nations Jurisdiction over Education in British Columbia Act, which allows the education jurisdiction agreements between Canada and First Nations to be operationalized. These individual education jurisdiction agreements will help ensure that the participating First Nations have the tools and authority they need to develop culturally relevant and community-tailored education programs.

The Act also established the First Nations Education Authority, which supports participating First Nations in developing capacity for the delivery of education services on their lands, for example, as they develop their own education curricula, graduation requirements, teacher certification, and school certification. Participating First Nations delegate authorities over school certification, teacher certification, examination and graduation standards to the First Nations Education Authority.

Together, these instruments provided a negotiating framework for both education jurisdiction agreements and education jurisdiction funding agreements, as well as a legislative foundation for their implementation. The Province of British Columbia also has a bilateral agreement with the First Nations Education Steering Committee and brought forward legislative changes to amend the First Nations Education Act, the Teachers Act and the Criminal Records Review Act on October 25, 2021, to make it possible for the Province to provide operational support for the new teacher certification and regulation process.

In June and July 2021, Canada and 13 First Nations in British Columbia concluded negotiations to establish sectoral self-government arrangements in the area of education, pursuant to the Act. Through the education jurisdiction agreements, law-making authority of signatory First Nations in the area of primary and secondary education on reserve will be recognized; as a result, signatory First Nations will be able to develop their own education curricula, graduation requirements, teacher certification, and school certification in harmonization with provincial standards.

Since then, four of those First Nations — ?aq’am, Seabird Island, Cowichan Tribes, and Lil’wat Nation — ratified the agreements and assumed jurisdiction over education on July 1, 2022. The First Nations Education Authority became operational with a board of directors made up of representatives of the participating First Nations following the implementation of the first four agreements.

Objective

This Order and related amendment have the following objectives:

The objective of the education jurisdiction agreements is to support increased success for First Nations learners. Jurisdiction gives participating First Nations the ability to direct their own education systems to best meet the needs of their communities and equip their learners with the skills they need for life and continuing education. Recognizing First Nations’ inherent rights to make laws related to the education of their children via implementation of jurisdiction over education supports political, economic, social and cultural development for these First Nations. This also supports work by Canada and Indigenous peoples to co-develop solutions regarding the implementation of rights and title through discussion and negotiations while advancing their self-determination over governance institutions and regimes. These outcomes are also in line with Canada’s commitments to implement the United Nations Declaration on the Rights of Indigenous Peoples.

Description

This Order gives force of law, per subsection 5(2) of the Act, to education jurisdiction agreements with Squamish Nation, Ditidaht First Nation, and Canim Lake, thereby recognizing their jurisdiction over education for their First Nations as set out in the agreements. The related amendment schedules the following three First Nations to the Act: Squamish Nation, Ditidaht First Nation, and Canim Lake.

Regulatory development

Consultation

The discussions over education jurisdiction in British Columbia have been underway since 2006 when Canada signed the Education Jurisdiction Framework Agreement with the government of British Columbia and the First Nations Education Steering Committee and subsequently enacted the First Nations Jurisdiction over Education in British Columbia Act. The Steering Committee coordinates the negotiations between Canada and negotiating First Nations to reach agreements pursuant to the Act. Together, the framework agreement and the Act provide a negotiating framework for both education jurisdiction agreements and education jurisdiction funding agreements, as well as a legislative foundation for their implementation. Negotiations among the parties have been ongoing since.

Canada and 13 First Nations in British Columbia concluded negotiations between June and July 2021. Then, in August 2021, Canada made fiscal offers to the 13 negotiating First Nations. Four of those First Nations (?aq’am, Cowichan Tribes, Lil’wat Nation and Seabird Island First Nation) successfully conducted community ratification votes and implemented their education jurisdiction agreements. These four nations were added to the Schedule of the First Nations Jurisdiction over Education in British Columbia Act on July 1, 2022 (SOR/2022-158).

Three additional First Nations have successfully conducted community ratification votes with a view to assuming education jurisdiction in 2023:

Given that the education jurisdiction agreements are with these specific First Nations, it is not considered necessary to undertake consultations over and above those already conducted by the First Nation with its members.

There are existing education agreement holders in other parts of the country: An Agreement With Respect to Education in Nova Scotia (Mi’kmaq Education Act) and the Anishinabek Nation Education Agreement (Anishinabek Nation Education Agreement Act). Discussions took place between the Mi’kmaq and Anishinabek First Nations and the British Columbia First Nation signatories confirm that there would be no impacts of this initiative on existing education sectoral agreement holders. It has been determined that there will be no adverse effects on these agreement holders in other parts of Canada.

Modern treaty obligations and Indigenous engagement and consultation

This initiative is expected to have a positive impact on First Nations people in British Columbia. The education jurisdiction agreements will help ensure that the participating First Nations have the tools and authority to develop culturally relevant and community-tailored education programs that will advance the quality of education for First Nations learners in British Columbia and support brighter futures for their students and communities. This initiative contributes to the Government of Canada commitment to rebuilding and renewing the relationship with Indigenous peoples, and to implementing the United Nations Declaration on the Rights of Indigenous Peoples by supporting greater self-determination. With the agreements coming into effect, there are implementation obligations that Canada will need to uphold.

?aq’am, Cowichan Tribes, Lil’wat Nation and Seabird Island became the first four Participating First Nations in British Columbia when their education jurisdiction agreements came into effect on July 1, 2022. Participating First Nations under education jurisdiction in British Columbia each have a seat on the Board of the First Nations Education Authority and work together to advance the initiative.

There are existing sectoral agreement holders in other parts of the country: An Agreement With Respect to Education in Nova Scotia (Mi’kmaq Education Act) and the Anishinabek Nation Education Agreement (Anishinabek Nation Education Agreement Act). It has been determined that there will be no adverse effects on these other agreement holders.

There are no potential modern treaty implications, as this Order responds to the needs and interests of Squamish Nation, Ditidaht First Nation, and Canim Lake. This Order does not require the Government of Canada to fulfill any consultations or engagement requirements described in a modern treaty.

Instrument choice

The First Nations Jurisdiction over Education in British Columbia Act specifies the need for a Governor in Council order to bring the education jurisdiction agreements into effect and to schedule signatory First Nations to the Act. For this reason, no other instruments were considered.

Regulatory analysis

Benefits and costs

Improving education for Indigenous peoples through agreements is an important step towards the path of reconciliation by advancing Indigenous interests, fostering self-determination, and helping close socio-economic gaps.

The amendment adding three First Nations to the Schedule of the Act is expected to cost $8.09 million over 10 years starting in Fiscal Year (FY) 2023–2024 through FY 2032–2033. This amount represents

This funding will support the new governance responsibilities that these First Nations will take on when their agreements go into effect. This funding supports the incremental responsibilities taken on by the participating First Nations, which include law and policy making, intergovernmental relations and coordination, consultation with members, and delegation of co-management authorities to the First Nations Education Authority.

The methodologies to support both participating First Nations governance activities and First Nation Education Authority operations are benchmarked to relevant positions within the British Columbia public service. Operating and capital costs were estimated based on actual costs of the First Nations Education Steering Committee. Costing methodologies were developed in alignment with the principles and practices of Canada’s Collaborative Self-Government Fiscal Policy.

The three First Nations currently receive funding for education services from Indigenous Services Canada (ISC), which they will continue to receive. The use of these funds will not change once the education jurisdiction agreements are in force. Currently this funding flows through ISC; however, under the new agreements, the funds will flow through Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) so that participating First Nations have a single source of federal government funding for education and autonomy over expenditure. Funding may fluctuate from year-to-year for education programming, based on the number of students.

The implementation of education self-government arrangements has already proven to be successful with Mi’kmaq First Nations in Nova Scotia and Anishinabek First Nations in Ontario, with improved graduation rates and increased enrolment in post-secondary institutions. For example,

While it is too early to see long-term results (e.g. in terms of improvements in graduation rates, well-being, etc.), early positive outcomes shared by the first group of education jurisdiction agreements holders in British Columbia, who highlighted that assuming jurisdiction over education has continued to gain positive recognition for their traditional, cultural and locally developed courses, and that the progress in education jurisdiction has caused a clearly defined working relationship with their Chiefs and Council.

This Order is not expected to have any adverse impacts on businesses, consumers, the environment, health and safety, competitiveness, trade, or investment.

The Order is expected to have positive impacts on participating First Nations communities. For example,

Governance over education is important to nation rebuilding, which supports Canada’s goals of increased self-governance and reconciliation with First Nations.

Small business lens

The small business lens does not apply, as the Order has no associated impacts on businesses.

One-for-one rule

The one-for-one rule does not apply, as the Order has no impact on businesses.

Regulatory cooperation and alignment

The assumption of jurisdiction by First Nations is consistent with Article 14 of the United Nations Declaration on the Rights of Indigenous Peoples, which recognizes Indigenous peoples’ right to establish and control their own systems of education. The initiative also aligns with both the Province of British Columbia’s Declaration on the Rights of Indigenous Peoples Act and Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act, which is predicated on Indigenous peoples’ inherent right to self-determination and self-government and, among other things, provides that Indigenous peoples have a right to control their own educational systems in a manner consistent with their cultures and traditional practices.

The education jurisdiction agreements brought into force by this order are between Canada and individual First Nations. The Province of British Columbia has a separate bilateral agreement with the First Nation Education Steering Committee and brought forward their own legislative changes on October 25, 2021, to make it possible for the Province to provide operational support for the new teacher certification and regulation process.

This initiative does not impact other regulatory jurisdictions.

Strategic environmental assessment

There are no actions resulting from this Order that could have a direct impact on the environment at this time.

Gender-based analysis plus

The gender-based analysis plus (GBA+) was co-developed by the First Nations Education Steering Committee, the negotiating First Nations, and Crown-Indigenous Relations and Northern Affairs Canada.

The Truth and Reconciliation Commission of Canada noted that the Indian Residential School System was an “education system in name only” and its true intent was to separate Indigenous children from their parents in order to weaken family and cultural linkages and indoctrinate Indigenous children in Euro-Christian Canadian culture. The Truth and Reconciliation Commission documented the many negative effects of the Indian Residential School system including abuse, racism, poor-quality education, and intergenerational impacts that echo to today.

While the last Indian Residential School closed in 1996, gaps in educational outcomes persist between Indigenous and non-Indigenous populations in Canada. In the province of British Columbia, on average for the years 2016–2017 through 2020–2021, 70% of Indigenous students finished Grade 12 within six years of entering Grade 8. This compares with 92% of non-Indigenous students. When broken out by gender, only 67% of young Indigenous men complete Grade 12 within six years, compared with 89% of non-Indigenous men. While 73% of Indigenous women complete Grade 12 within six years, 94% of non-Indigenous women do so. Education jurisdiction agreements are aimed at closing gaps in education outcomes. While data is limited on 2SLGBTQQIA+ people overall, and even more so on a regional basis such as within British Columbia, the Missing and Murdered Indigenous Women and Girls Inquiry (MMIWG) noted the special vulnerability of transgender people. The participating First Nations will include a gender breakdown (male, female, other) in their reporting.

Drawing on Statistics Canada’s 2013 General Social Survey, the MMIWG Inquiry indicated that “Indigenous women who have experienced discrimination are much more likely to report having a somewhat or very weak sense of belonging to their local community.” Indigenous children report higher levels of bullying and teasing compared with non-Indigenous children in British Columbia. In both grades 4 and 7, 15% of children say that they were bullied, teased or picked on all of the time or many times, compared with 10% of non-Indigenous children. This may be a contributing factor to Indigenous children’s comparative lack of a sense of safety in school, with fewer than two-thirds of Grade 7 and Grade 10 Indigenous children reporting that they feel safe at school.

The recognition of First Nations’ jurisdiction over education will support First Nations control over First Nations education, thereby helping to provide First Nations students of all identities and backgrounds with access to educational opportunities that ensure they are confident in their self-identity, their families, their communities and traditional values, languages and cultures; give them the skills they need to thrive in contemporary society; and prepare them to access any opportunities they choose for higher learning and employment. Implementing First Nations education jurisdiction for K-12 education will enhance the quality of educational opportunities available to all First Nation students, which will include specific attention to promoting their self-confidence and understanding of their own identity — respecting each student’s unique backgrounds, strengths, abilities, and specific needs.

Implementing education jurisdiction will also involve specific approaches that will contribute to enhanced opportunities for students in the participating First Nations and for the First Nations’ citizens more broadly. The British Columbia jurisdiction agreements over education include specific plans for the collective review and certification of schools, which will involve monitoring how effectively the schools are supporting students and providing safe school environments for all students and staff, regardless of their diverse characteristics.

Additionally, the implementation of education jurisdiction agreements provide a new pathway for the certification of teachers who work in participating First Nations schools, which will broaden and enhance employment opportunities for First Nations people, including people of various gender identities, rooted in their own communities and cultures.

All of these aspects of the education jurisdiction initiative are directly related to the report on Missing and Murdered Indigenous Women and Girls and the related Calls to Justice, including

Implementation, compliance and enforcement, and service standards

Implementation

For the signatory First Nations, this order confers force of law, per subsection 5(2) of the Act, on their bilateral education jurisdiction agreements. This recognizes the First Nation education law and discontinue the application of sections 114 to 122 of the Indian Act in respect of the First Nation and on the First Nation’s lands. These agreements are in effect as of July 1, 2023, allowing the participating First Nations to prepare for annual school operations to begin in September 2023.

This initiative is implemented by Crown-Indigenous Relations and Northern Affairs Canada in collaboration with the participating First Nations, the First Nations Education Steering Committee, the First Nations Education Authority and Indigenous Services Canada. The parties will designate senior officials to monitor implementation of Canada–First Nation education jurisdiction agreements. An implementation working committee may be established.

This Order and related amendment enables the start-up activities of each of the participating First Nations including the drafting and enactment of their education laws, the establishment of a publicly accessible registry of laws and the establishment of policies, as well as ongoing governance activities of the individual participating First Nations, which include

Key dates

Communications

Opportunities for events/announcements with the First Nations who have ratified their agreements will be explored by a communications working group including Canada and the participating First Nations. Messaging and events/announcements will be co-developed by the working group. Opportunities for announcements to further profile and celebrate the work that has been achieved could also be considered.

Performance measurement

All outcomes and performance indicators for this initiative are drawn from Crown-Indigenous Relations and Northern Affairs Canada’s Performance Information Profiles and Departmental Results Framework, as well as the objective of the Government of Canada’s Delivery and Results Charter, “Improving Relationships and Outcomes with Indigenous Peoples.” Actual results for Departmental Results Framework indicators will be reported in the Departmental Results Reports. The departmental result “Indigenous peoples determine their political, economic, social and cultural development” includes the following indicators:

The above indicators will also be reported publicly through GC InfoBase, which shows the number of active Indigenous rights and self-determination processes underway.

In accordance with CIRNAC’s Five-Year Evaluation Plan 2021–2022 to 2025–2026, an evaluation of the Negotiations of Claims and Self-Government Agreements is being concluded in 2023. As per the Policy on Results and the Financial Administration Act, the evaluation will cover issues of performance and relevance. As applicable and upon Deputy Head approval, the Head of Evaluation will inform the Treasury Board Secretariat of any changes that result from this evaluation process.

Contact

Corey Dekker
Director
Negotiations West Branch
Treaties and Aboriginal Government
Crown-Indigenous Relations and Northern Affairs Canada
Telephone: 604-417-2805
Email: Corey.Dekker@rcaanc-cirnac.gc.ca