A Settler’s Guide to Understanding the First Nations Education Act

This post was republished on rabble.ca.

A comment on the title: A lot of people take issue with using the word “settler” to describe non-Indigenous peoples. I recognize that many of us do not claim lineage back to those original settlers who colonized this country and dispossessed its people. It’s important to recognize, however, that we still live in a colonial (or “settler”) society—colonialism is not just an historical phenomenon; it continues today, and all non-Indigenous peoples benefit from colonialism, both past and present. Those involved in Indigenous issues use the word “settler” as a way of recognizing this, as well as to express a desire for this to change.

The First Nations Education Act

You may not be aware of this, but there is an important and heated debate going on among Indigenous communities right now. The issue at hand is a federal bill designed, ostensibly, to return control of First Nations education to the First Nations themselves.

But there’s a larger issue at play—one that those of us who are non-Indigenous would do well to pay attention to. The debate is a uniquely colonial one, the kind that is provoked when one nation refuses to give up control over what is rightfully the jurisdiction of another nation (or in this case, 633 nations). It’s impossible to understand the debate around the First Nation Education Act without an understanding of Indigenous people’s inherent and treaty rights.

What do inherent rights have to do with it?

Inherent rights are the fundamental and existing rights of Indigenous peoples, based on their original and long-standing occupation of and governance over their land. Canada’s top court first recognized Indigenous people’s inherent rights in 1973 in its Calder decision. The key word here is recognized. It’s important to note that Canada has never had, nor ever will have, the power to grant such rights—it can only recognize that which has always existed.

The Supreme Court has since held back from specifically defining what those inherent rights are. Luckily, there are people who are more than happy to do this for you—those who hold these rights: the Indigenous peoples themselves. You can also check out the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has signed, and which provides a handy list. One of these inherent rights is control over education and educational institutions, in their own languages, appropriate to their own cultures (see Article 14).

This is what people are referring to when they talk about First Nation control over education. Even the official title of the current bill acknowledges this—after recent amendment it was renamed the First Nation Control Over First Nation Education Act.

Now, there are also treaty rights to education. The original treaties that Canada signed with the First Nations granted the colonists access to Indigenous land, with provisions for things like settlement and access to resources. In exchange, the colonists agreed to certain conditions and obligations, one of which was to provide the necessary resources for education. This obligation appears in the first numbered treaties as some variation of: “Her Majesty agrees to maintain schools for instruction.” Later numbered treaties affirm “the policy of the government to provide . . . for the education of the Indian children.”

Rights violated, rights reclaimed

Basically, we are obliged to provide the resources, but they have the right to provide the education. Very quickly, however, this agreement fell apart. Canada’s takeover of First Nations education began immediately, and in earnest, culminating in the notorious residential schools. The residential schools were designed to purge First Nations children of their language and culture, and to turn them into “proper Canadians.” It resulted in systemic abuses—cultural, physical, and sexual—that continue to affect not just survivors but their children and their children’s children. When First Nations say they want control over their own education, their words are tinged with the memory of residential schools. This is also why, when Canada offers a new bill on education, it cannot be received with anything but wariness and suspicion.

The last federally operated residential school closed in 1996, and the Government of Canada apologized for the system in 2008, but First Nations activists began fighting for control of education in the early 1970s, with some significant successes.

And yet Canada has always maintained solid control. And boy have the results been shoddy. Just over half of Indigenous students nationally make it to Grade 12. High school graduation on reserves is at 35.5%, compared to 78% for the whole country.

The main reason for this “performance gap,” as it’s often referred to, is most likely chronic underfunding. The provinces spend an average of $10,000 per student, while the federal government’s core funding for First Nations schools is around two-thirds that, at less than $7,000 (the federal government argues it spends more than that, and it does, but on ad hoc projects and programs). Furthermore, in 1996 the government capped funding increases for First Nations schools at 2% annually, despite the First Nation population growing at least twice that much at the time. This population growth has only increased, which means every year funding must be spread even more thinly.

The First Nation Education Act

Clearly things have got to change. That much, at least, everyone agrees on: thus the First Nation Education Act. So what’s in the bill? Honestly, there’s a lot of really good stuff there. It provides for not just a massive boost in funding, but “adequate, stable, predictable and sustainable” funding. It allows for funding and curriculum to be dedicated to First Nations language and culture. It allows First Nations to develop their curriculums. It calls for ongoing discussions over the implementation of the bill. It’s light years ahead of where we are today.

And yet First Nations criticism persists—even outright rejection—which leaves a lot of people dumbfounded: Doesn’t this bill give them everything they need? What else could they possibly want? To answer this, we have to go back to inherent and treaty rights, and to Canada’s colonial relationship with these rights. For despite everything in the Act, the fundamental problem remains: Canada still refuses to give up control.

Here are some examples: Under the Act, teachers must be certified by the province, and diplomas will be issued by provincial Ministers of Education. Curriculums, while incorporating aspects of Indigenous culture, must meet provincial standards.

There are also these juicy bits: Under the Act, the Minister of Aboriginal Affairs has control over who sits on and chairs the Joint Councils (the main decision making bodies under the Act). If a school fails an inspection report, the Minister can unilaterally appoint a “temporary administer” to run the school, and this person can ask the Minister to revoke a First Nation Education Authority’s status.

There’s also this caveat: all new funding is tied to this bill, meaning that if First Nations refuse to accept this bill, there will be no new funding. Even if they do accept it, no new funding will come until 2016.

Details aside, the simple concept of this bill—telling First Nations what they are allowed to do, and granting them powers—is inherently paternalistic. It’s inherently colonial: if we stand by the concept of inherent rights, we can only relinquish our control, we have no right to grant it.

What should Canada do?

The funny thing is, the federal government claims that it does indeed stand by the concept of inherent and treaty rights. According to the Act itself: “nothing in this Act is to be construed so as to abrogate or derogate from the protection provided for existing Aboriginal or treaty rights of the Aboriginal peoples of Canada.”

So are we handing over control, or aren’t we? Do we acknowledge their inherent and treaty rights, or don’t we? No we aren’t, and no we don’t.

Acknowledging Indigenous inherent and treaty rights over education would mean funding their schools appropriately, and doing so with no strings attached. We need to accept their own qualifications for teachers, their own standards for high school graduation, their own curriculum, and their own standards for assessing the quality of that curriculum. This is not a foreign concept: if we can acknowledge the educational standards of other nations, surely we can acknowledge theirs.

I realize how unpopular this would be, but we signed the treaties, and that’s the deal. It’s the price we agreed to pay. And not just that: if we want to live peacefully alongside our Indigenous neighbours, and if we want to treat them with respect, we must give them what is rightfully theirs. Anything else just keeps colonialism alive.


  1. Donnie

    Just curious but what would you say if the Canadian government gave up total control as you demand but then stated that unless FN run schools used Canadian certified teachers, any degrees, diplomas or certificates would not be recognized by Candian Universities, Trade Schools or Colleges.

    • correy baldwin

      That’s a good question. Honestly, a lot of those sorts of details could be worked out through negotiations. I don’t really know how these things work, but I assume there’s ongoing negotiations with other nations over synching educational and professional standards. I appreciate that the treaty relationship is a unique one, and Canada could certainly request a higher level of coordination than usual. All I really care about is that the Crown and First Nations negotiate as equal, sovereign partners—whatever agreement they come to is fine by me.

      As to your specific question, I simply don’t see how Canada is in a position to demand that sort of thing. Having said that, I imagine it’s within Canada’s rights to refuse to accept a First Nation-approved teaching certificate if it didn’t meet certain criteria. But I just don’t see that issue staying unresolved for very long—Canada is going to want to access the Indigenous student body and workforce just as much as they are going to want to access Canada. Again, complete sovereignty is the only way to have equal negotiation.

    • Shmohawk

      That already happens. I believe the James Bay Cree school board is one example. It develops the curricula for schools within its nine territories across central Québec. They work with provincial education authorities or with provincial standards in mind. The idea is to build a solid foundation for students so they may pursue a range of options upon graduation meeting or exceeding provincial standards – but without having surrendered their language, culture or identity. Graduates may be trilingual, apply to McGill or Osgoode Hall, hop onto a Cat 4 or a commercial pilot’s seat, or stay home to teach, run a trapline, or do a combination of any of the above. The idea should be to open opportunities denied in the past – not kill them before they have a future.

      • correy baldwin

        Yes indeed! This bill doesn’t supersede existing self-government (or otherwise?) treaties that deal with education (it’s amazing they didn’t try to do this). Good to know about the James Bay Cree school board. If such solid examples already exists, and if they’re working so well, then why are bills like this one still being drafted??

  2. Janyce Elser-Ethier

    Canada has never had the legal authority to grant or deny Canada’s First Peoples any rights or resources. When the British North America Act that created the original colonial Canadian government was enacted in the British Parliament, the legal authority to make treaty with &/or to grant or deny rights to Canada’s First Nations, Metis,& Inuit was not transferred from the English crown to the colonial government. Canada’s First Peoples rights have been covered under the British Royal Proclamation of 1763 since that time. The Frist Nations, Metis, & Inuit Peoples are therefore legally entitled to negotiate nation to nation with the national government of England unless & until the legal mechanism, granting Canada the authority to make treaty with , grant &/or deny rights to Canada’s First Peoples is transferred from the English crown to Canada’s Parliament. This is the legal hoop thru which our First Peoples have had to jump for centuries. It is unfair to them & unjust of the different governments involved.
    Janyce Elser-Ethier, Nepean, Ontario, Canada

    • correy baldwin

      Thanks for this, Janyce. I read something about this recently but can’t remember where. I was under the impression that legal authority had in fact been transferred to the Canadian government at this point (with the 1982 Constitution Act, maybe?), but I could be wrong. I’ll try to look into this.

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  4. vadeux

    sad that the title throws me off already.
    i am not a settler…the food my ancestors ate from this land created my body.
    i need more than this to begin a realistic discussion.
    an insult is no beginning.

    • correy baldwin

      I’m sorry you feel this way. It is not meant as an insult. Using the term “settler” is merely a recognition that we still live in a colonial society, a “settler society” — that colonialism is not just historical. Of course we are not settlers ourselves, but non-Indigenous people like myself benefit from the continued existence of colonialism, and the term is both a recognition of this and an expression of our desire for this to change.

      Like you, I cannot trace my spiritual lineage any further back than Canada. I am from this land, only, and my connection with it is strong. I have always lived here, but I’ve done so with unequal benefits.

      If it helps, only the term “non-Indigenous” is used in the article itself.

  5. dan

    ….a year and more later…. “settler” yes, it’s offensive. Do we really need another polarizing term out there that does more to separate/pigeon hole/offend people than unite us? Time to meet and get to know our neighbors, no matter our ethnic backgrounds. We are all human. We’re all here, let’s do all we can to find our human connections and build on these.

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