Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 6 - Evidence - April 30, 2014
OTTAWA, Wednesday, April 30, 2014
The Standing Senate Committee on Aboriginal Peoples met this day at 6:46 p.m. to examine the subject matter of Bill C-33, An Act to establish a framework to enable First Nations control of elementary and secondary education and to provide for related funding and to make related amendments to the Indian Act and consequential amendments to other Acts.
Senator Dennis Glen Patterson (Chair) in the chair.
[English]
The Chair: Good evening, ladies and gentlemen. I'd like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room or via CPAC or the web.
I am Dennis Patterson from Nunavut, chair of the committee. Our mandate is to examine legislation and matters relating to the Aboriginal peoples of Canada generally.
This evening we will continue testimony on an order of reference authorizing us to examine the subject matter of Bill C-33, An Act to establish a framework to enable First Nations control of elementary and secondary education and to provide for related funding and to make related amendments to the Indian Act and consequential amendments to other Acts, in advance of the bill coming before the Senate.
Tonight, we will hear from witnesses from Aboriginal Affairs and Northern Development Canada and the Department of Justice Canada. Before proceeding to the testimony, I would like to go around the table and please ask members of the committee to introduce them.
Senator Moore: Senator Wilfred Moore, Nova Scotia.
Senator Dyck: Lillian Dyck, deputy chair of the committee, from Saskatchewan.
Senator Watt: Senator Watt from Nunavik.
Senator Beyak: Senator Beyak from Ontario.
Senator Wallace: John Wallace, New Brunswick.
Senator Tannas: Scott Tannas from Alberta.
The Chair: Thank you.
I know members of the committee will help me welcoming our witnesses. From Aboriginal Affairs and Northern Development Canada, Françoise Ducros, Assistant Deputy Minister, Education and Social Development Programs and Partnerships Sector; and Chris Rainer, Director, Strategic Policy and Planning Directorate, Education Branch. With them at the table, from the Department of Justice Canada, is Martin Reiher, Acting General Counsel and Director, Operations and Programs, Legal Services Unit.
Witnesses, we look forward to your presentation, which will be followed by questions from senators. I understand, Ms. Ducros, you will give the presentation.
Françoise Ducros, Assistant Deputy Minister, Education and Social Development Programs and Partnerships Sector, Aboriginal Affairs and Northern Development Canada: Thank you very much for the invitation to appear before you today regarding the First Nations Control of First Nations Education Bill.
There have been significant discussions over the last two years about First Nations education and these discussions have been very much influenced by the work of this committee. Before I get into the bill, I would like to provide some context on how the government came to introduce Bill C-33.
Today, First Nations students who live on reserve are the only students in Canada who do not have access to a comprehensive statutory framework underpinning their education or to a formal system to ensure they receive a quality education like all other students in Canada. The current system of First Nations schools is a patchwork of authorities, guidelines and policies for standards, services and administration. At any given time, 40 per cent of First Nations students living on reserve attend off-reserve schools. In some provinces that number rises as high as 60 per cent. First Nations students need better ways to ensure a smooth and successful transition between systems without academic penalty.
The high school graduation rate for First Nations students living on reserve is only 38 per cent, which contrasts to 87 per cent for non-Aboriginal students. Everyone has agreed this is unacceptable. It fails First Nations students, First Nations families, First Nations communities and Canada as a whole, both socially and economically. We've all agreed that despite some pockets of success, the status quo for First Nations education is not working. We also agree that this is key to reconciliation and in keeping with the Prime Minister's apology in 2008.
The call for change has been heard as far back as 1972 when the Indian Brotherhood released its report called Indian Control of Indian Education. Since then the call for First Nations education legislation has been repeated in studies, audits and reports, including this committee's 2011 report. That report was fully considered in moving on the legislation.
[Translation]
The following four recommendations were made in the report: first, that the government, in consultation with First Nations, develop a new education act that recognizes the authority of First Nations for on-reserve education; second, that a new funding formula be developed under the legislation in collaboration with First Nations; third, that a Canada-First Nations Action Plan for education reform be developed; and fourth, that a joint task force, in consultation with First Nations, be established to oversee and monitor the progress made and to report on it.
According to the report, funding is not the only solution; structural reforms are also needed to improve First Nations education on reserves. Bill C-33 takes into account the recommendations made by the committee and the national panel, which were submitted to the Department of Aboriginal Affairs and Northern Development and to the National Chief of the Assembly of First Nations.
[English]
Bill C-33 recognizes that First Nations are best placed to choose their governance model. The act sets out five basic standards, three governance options that First Nations would choose from based on their needs and their community. Those First Nations that do not choose to form the First Nations education authority or to enter into agreements with the provincial school boards would continue to operate schools directly while still being required to meet the standards set out in the legislative framework.
The act also provides for predictable and stable funding guaranteed through a statutory fund. Under the act, the First Nations would choose their governance options; develop their curriculum; determine how they will incorporate language and culture into that curriculum; choose their own inspectors; control the hiring and firing of teachers; determine how their students will be assessed; and how the school calendar will be structured to meet a set number of days.
Building on the 2011 report's recommendation for a joint action plan, the Government of Canada and Assembly of First Nations jointly launched the National Panel on First Nation Elementary and Secondary Education. The national panel engaged with First Nations across Canada over the course of about a year and provided recommendations in their 2012 report of the National Panel on First Nation Elementary and Secondary Education for Students on Reserve entitled Nurturing the Learning Spirit of First Nation Students. The recommendations made by the national panel were fully considered in developing the bill now before Parliament.
[Translation]
Bill C-33 is a follow-up to an extensive consultation process launched in December 2012, which took place through face-to-face meetings, discussions, emails, videoconferences and teleconferences. All that hard work shows the will of many people and organizations to improve First Nations elementary and secondary education.
[English]
On June 12, the minister sent a letter to all First Nations chiefs and councils as well as grand chiefs to provide an update on the consultation process and to outline the next steps in the development of a proposed act.
In July 2013, the government released a blueprint for legislation, which built on the results of the consultations held between December 2012 and May 2013, and set out the Government of Canada's proposed approach to a legislative proposal. Funding was also made available for First Nations to hold sessions within their communities to discuss the legislative approach and provide further feedback. The government received input by email, through video and teleconference sessions and face-to-face discussions between government officials and hundreds of First Nations leaders, educators and parents across the country.
That feedback received from the consultations guided the development of a draft legislative proposal, which was shared in October 2013 with over 600 chiefs across the country. The draft legislative proposal opened the door for more dialogue, and in November 2013, the National Chief of the Assembly of First Nations issued an open letter to the Minister of Aboriginal Affairs and Northern Development laying out five conditions for success in First Nations education. In December 2013, the minister responded to the national chief and committed to engage in a cooperative approach with First Nations leadership to resolve outstanding issues and committed to working with the Assembly of First Nations and First Nations communities to improve on-reserve education.
Bill C-33 responds directly to the five conditions for success that were not only identified by the National Chief of the Assembly of First Nations but also endorsed in a resolution by chiefs in assembly in December 2013. Specifically, Bill C-33 addresses the call for respect and recognition of inherent rights and title, treaty rights and First Nation control of First Nations education jurisdiction; a statutory guarantee of funding; First Nations education systems that must be enabled, supported and funded to support designing and implementing languages and cultural programming; mutual accountability, including recognition of the principle of First Nations control and supports without unilateral federal oversight; and an ongoing meaningful dialogue. First Nations and the government will continue to work together to develop and confirm an enabling framework in law for the success of First Nations schools and students. This includes collaborative development of mechanisms and regulations moving forward.
[Translation]
The First Nation control of First Nation education act will make it possible to be accountable to parents and communities, while establishing a legislative framework that sets out standards consistent with provincial standards off reserve.
The act would set five core standards: access to education, recognized certificates or diplomas, certified teachers, a minimum number of instructional hours and days, and the possibility to move between education systems without being penalized.
[English]
For example, the act would require that First Nations schools teach core curriculum that meets or exceeds provincial standards and that students meet minimum attendance standards. It will require that teachers be certified and that First Nations schools award recognized diplomas and certificates.
Every decision from how to run a school to which curriculum to develop and which teachers and inspectors to hire will all be under the sole control of First Nations. Regulations to support standards will be developed in collaboration with First Nations through a joint council of education professionals as announced by the Prime Minister and the National Chief of the Assembly of First Nations on February 7.
As part of the announcement, the $1.9 billion in new funding would consist of three streams: statutory funding with an unprecedented rate of growth of 4.5 per cent escalator; transition funding to support the new legislative framework; and funding for long-term investments in on-reserve school infrastructure.
In addition, the core funding in the amount of $1.252 billion over three years, beginning in 2016-17, would be implemented through the act and would also increase by 4.5 per cent. The core transfer would include funding for language and cultural programming.
With regard to governance, under the proposed legislation First Nations would choose their governance models: continuing to operate community-operated schools; establishing and delegating their the authority to operate schools to a First Nation education authority that would operate multiple schools on behalf of First Nations; or entering into or continuing agreements with a provincial school board to operate on-reserve schools. It would be up to First Nations to determine which governance model would work for their community.
Further, Bill C-33 would not impede the efforts of First Nations who choose to enter into education self-government agreements. In fact, the legislation will complement the efforts of those First Nations that choose to pursue education self-government agreements in the future.
First Nations have echoed what we already know, that children benefit when parents and communities participate in a decision-making of the overall management and daily operations of education systems. That is why parents and community involvement is a central figure of the long-standing call for First Nations control over First Nations education.
[Translation]
In fact, parents and communities play a large role in the success of schools and their students. Clause 25 of the bill gives a voice to parents and members of the community, more specifically to elders and youth, in developing school policies and programs, particularly those related to First Nations languages and cultures.
[English]
In addition, First Nations would control their systems of education with the benefit of stable and sustainable statutory funding.
One of the key components of Bill C-33 is the creation of a joint council of education professionals that would provide advice and support to the Government of Canada and to First Nations on the implementation of the act. Members would be chosen for their recognized experience in education and their knowledge of education in First Nations communities.
The joint council of education professionals is a key change to the draft legislative proposal shared in October 2013. It responds directly to First Nations concerns about the unilateral authority of the minister to intervene in the administration of First Nations education. In fact, the council would have a robust oversight role in ensuring that the best advice is provided on implementation and that ministerial powers are only used as a last resort, with the benefit of the joint council's expert advice. It would also help to develop regulations by bringing together First Nations views and input and be obligated by law to review the act in five years.
[Translation]
Further, the council would support First Nations councils and First Nations education authorities in improving their education systems, as well as the oversight role of ensuring that the ministerial powers provided by the act are exercised with the benefit of the First Nations perspective and used only as a last resort.
The proposed legislation would establish clear structures, roles and responsibilities, service delivery standards, and accountabilities in a measurable way. It would introduce a system of rigour and accountability that has not existed in the past.
The issue of inspectors has been debated at length. The bill sets out that First Nations or First Nations education authorities will hire and manage their own education inspectors, will oversee school activities, and will handle situations in which schools do not provide quality education to students.
[English]
Results and the achievement of standards would be monitored and reported on regularly by the responsible education authority selected by the community. Where required, school success plans would set out how to improve performance. These reports would be sent to the joint council of education professionals, who would make recommendations to the minister when further steps are necessary to protect student well-being.
Only under exceptional circumstances and as a last resort would the minister be able to appoint a temporary administrator after seeking advice from the joint council of education professionals. As mentioned, this provision would only be exercised in exceptional circumstances such as where inspection reports have not been submitted or there is significant risk to student well-being and success.
I think everyone can agree that every child in this country has a right to quality education no matter where they live in Canada. Bill C-33 aims to create a comprehensive education system controlled by First Nations and supporting the goal of better outcomes for First Nation children.
Thanks again for having me.
The Chair: Thank you, Ms. Ducros.
Members of the committee, we received Ms. Ducros' opening remarks just before this meeting and, to my surprise, it usually doesn't happen with your department, the remarks aren't translated, although they have French and English portions. It's customary to have bilingual documents prepared for the committee.
However, with the agreement of the committee, I have taken the liberty of making copies and I can distribute those copies to members if it's agreed. As I say, they're in English and French, but there are no English or French versions of the document. If it's agreed, I will circulate those.
Maybe while that's happening, I will take the liberty of opening with a question.
Madam, you have outlined the consultation process that has led us here today. You described the consultation process beginning, I believe, in 2011 on into 2012 and 2013. There was the release of a blueprint for legislation in July 2013 and then a draft legislative proposal, which was shared with 600 chiefs in October 2013 and I believe posted on the Web.
We now have Bill C-33. Could you describe how it differs from the draft legislative proposal tabled and published beginning in October of this last year? How is it different? What does it add that wasn't in the earlier draft?
Ms. Ducros: There are several differences and I will call on my colleagues to supplement it.
One of the major differences of Bill C-33 is the whole issue around the joint council. The bill that was circulated earlier spoke to governance models and to various issues and roles and responsibilities. What happens in the current bill is that there are several overarching differences, but one of the principal differences is the establishment of a joint council. Throughout the bill, it goes through all of the roles and responsibilities. This joint council would be of nine individuals, up to four of whom would be nominated by First Nations, up to four of whom would be nominated by the minister, all OIC appointments, and then a chair who would be appointed by the Governor-in-Council with input from First Nations.
Chris Rainer, Director, Strategic Policy and Planning Directorate, Education Branch, Aboriginal Affairs and Northern Development Canada: Some of the other key differences in the bill from the previous version would be the addition of a preamble and a purpose clause that clearly state out the intention that this be about First Nations control of First Nations education. We also have an express commitment in the bill for adequate, stable, predictable and sustainable funding, which was not in the blueprint and the previous draft.
We have also the support for the incorporation of language and culture into curriculum in this bill.
Last, one of the other key differences is the commitment for the collaborative development of the act's regulations directly in the bill.
The Chair: If I may ask one more question before I turn it over to our deputy chair, we've heard some response to the bill. One of the concerns expressed is about standards being included in the legislation. I think there are some spokespersons for First Nations who feel that this is dictatorial or inappropriate and that the government should give funding without those kinds of conditions. I wonder if you could address the reason why the legislation includes standards. Why is that necessary, please?
Ms. Ducros: There are actually just five minimal standards included in the bill, and they are access to education, calling upon both parents to send their kids to schools and First Nations to ensure that their schools are operational. There is the notion of setting out a recognized diploma, so putting in place a curriculum that allows a student to go from Grade 4 on reserve to Grade 5 off reserve, or to graduate from a school; the idea of certified teachers and the minimal number of instructional hours as well as for the capacity for kids to go back and forth. They're pretty basic standards and they are in response to calls that we've had since 1972 that talk about standards and structures and systems.
The idea is to establish what should be a part of a structure or system but not to develop how those standards are to be delivered. The basic reason for including standards is to ensure that kids who have to go back and forth between systems or into post-secondary education or the workforce have the same proficiencies that they would get if they were in a provincial school, but it's not to get into the development of any of the design as to how that would be delivered.
The Chair: Is there anything in the education provisions of the Indian Act now about standards?
Ms. Ducros: No. The way education is currently delivered is largely through contribution agreements that are negotiated between the federal government and First Nations either on a yearly or a five-year basis. In those contribution agreements, there is the requirement to deliver education that would be comparable to the provinces. We've been told by First Nations themselves that the ability or the structures and systems to deliver those things don't exist.
Currently, the Indian Act has eight provisions, which speaks generally to making available a school or truancy provisions, but it doesn't speak directly to standards. Part of the reason for that are educational standards and the provisions that have been included in various education systems have been developed by provinces through reforms over the last decades.
Senator Dyck: Thank you for your presentation this evening. I'm going to step even further back and ask the question, when you decided to initiate this bill, when you actually had a blank piece of paper in front of you, how did you start? Did you look at legislation that has already been passed that essentially gave control to the Mi'kmaq and to the Cree in B.C., I think is the other one? Did you look at provincial laws regarding education?
Ms. Ducros: Well, we actually stepped even further back than that. We looked at all of the reports. We actually had a group of advisers, and we did a review of both the current systems and non-systems that exist on-reserve. The examples we used, we looked at the Mi'kmaq system, yes; we looked at the FNESC system in B.C., yes; and we looked at the Cree system. We also looked at pretty much 40 years of reports that started in 1972 with the Indian control paper, which talked about the need to be able to provide those tools that the provinces currently have to deliver systems. We looked at all of the various reports from some of the witnesses that appeared here — Harvey McCue, John Richards and others — who had done an examination of where the gaps are between systems on-reserve and off-reserve.
We then looked at systems that currently exist in the provinces. Over the last 20 years, the provinces have developed standards with regard to curriculum and certification. They've also looked at how they fund these systems, and the way they do that is basically based on anywhere between 4 and 14 components, taking into account if you have to deliver this system and you've got the need for special education or other issues, how do you deliver it?
We looked at the provincial systems, but we also went back and looked at all of the reports that talked about the gaps among provincial systems.
Senator Dyck: In Bill C-33, as I read it, it doesn't actually transfer jurisdiction to the First Nations. It gives them administrative power, but it does not give them the legal authority that is given to the Mi'kmaq, for example.
Ms. Ducros: What the Mi'kmaq and the other self-government agreements do is transfer full control through a self-government agreement. The truth is, it doesn't transfer jurisdiction completely, but I think it replaces the default. Currently, you can negotiate a self-government agreement through mandates and we can get all the powers negotiated, hence the James Bay Cree and the Mi'kmaq, but if you don't have that, the backup position is literally contribution agreements and it excludes self-government. What it says is as you move forward to negotiate that jurisdictional agreement, the default position is that you will control and design your systems.
Senator Dyck: Okay.
Now, in your previous answer you talked about looking at provincial laws on education and other funding formulae to determine what the funding is to a particular school and that there were 4 to 14 categories.
As I recall, in 2005, I was talking to then Premier Calvert, and he was talking about the funding of education in Saskatchewan where the category that said a school could apply for funding were huge, but the categories to apply for funding for a First Nation were several. When I look at this, I see maybe a dozen categories to apply for funding, so doesn't that seem like it's not a fair situation if you compare it to provincial legislation?
Ms. Ducros: I'm not quite sure what you mean by categories, but what we did for the Saskatchewan example and examples across the country, a provincial system says we'll spend X amount on education this year, and the way we'll flow that money is through the boards based on these following components. We're trying to actually mirror those same components.
Senator Dyck: For example, when you talk about developing curriculum and language, the opportunity is there to do that, but I think in the list of areas that you could apply for funding, you don't actually have funding listed.
Ms. Ducros: I'm sorry. I misunderstood your first question.
I don't know what currently happens in Saskatchewan. My understanding is that whatever was happening in 2005, what's currently happening in Saskatchewan is that you fund based on size of the school, remoteness, transport, et cetera. What we have done in Aboriginal Affairs in the past when the federal government has been funding through schools is we've said this is what you get as a basic instructional service, so in Saskatchewan it would be the number of children. Then for everything else, if you needed special programming on literacy or numeracy or student retention or anything else, you would have to apply through a program. In the provincial governments, that's funded based on a socio-economic profile and the needs of others.
Am I understanding your question?
Senator Dyck: I think so.
Mr. Rainer: If I may add, the way that funding is currently structured to go to First Nations education and to schools on-reserve is that we have a mix of a core amount of funding that goes to schools but then a whole host of programs that are proposal-based, that First Nations have to apply for to get money for the element of special education or for the First Nation Student Success Program. There are seven or eight of those.
We recognize that that structure causes some difficulty for First Nations, as there is a lot of energy and time spent just putting proposals together to get the funding needed to deliver education for their students.
What we propose in this bill through the funding structure is that there be a core statutory fund that would be formulaic in nature. That formula will have to be developed in collaboration with First Nations in the development of the regulation so that they don't have to keep applying for funding on a year-to-year basis for a large portion of their funding. As is done in the provinces, it would be formulaic, which is transparent, and everyone can see how they can plan from year to year for their students, something that they can rely on and they don't spend so much time proposing and then reporting back on each of those various elements in terms of funding.
Senator Dyck: If I could, you brought up the concept of developing the regulations, which I think is obviously a very important future aspect of the bill. I think one of the concerns, certainly with regulations, is how impactful the First Nation input will be and will there actually be true consultation and accommodation of First Nation input into the development of the regulations to cover things such as funding and that whole host of other things that are listed under regulations.
Currently, you are saying that First Nations have been consulted and you've done this extensive, unprecedented consultation. Yet we see all the news releases and we hear from individual regional leaders that they haven't been consulted. So there's obviously a disconnect between the two perspectives.
How are you going to guarantee that this aspect of consultation truly does meet what First Nations are asking for in the development of regulations?
Ms. Ducros: The bill actually sets out a fairly stringent approach on how to develop the regulations, including the fact that the government would develop them collaboratively through the joint council. There's no question that the joint council would be used as the body to deal with the regulations.
There's a provision in there, 48(1), that the minister can actually not make regulations without seeking the advice of the joint council. There's a provision in the regulations portion of the bill, 48(2), that the joint council must give First Nations an opportunity to make representations and must fully consider any representations.
Senator Dyck: But where is the guarantee that there will actually be a true consultation process? I think you said that was in the preamble but —
Ms. Ducros: No, it's in the core of the bill.
Senator Dyck: But that says joint council. It doesn't say —
Ms. Ducros: It says that the joint council must provide the opportunity for First Nations to make representations. I'll let Justice speak to it, but I don't think there's any provision currently that arduous in existing legislation.
The joint council, with whom we would work collaboratively, must provide the opportunity for First Nations to make representations.
One of the issues that came up, one of the other changes in the current bill compared to the last bill was that there was a discussion around whether we would be making national regulations. There's a provision in the bill that says these regulations can incorporate provincial regulations or could be made province by province. That was to respond to the worry that had been expressed that we were somehow going to engage in one overriding national regulation and not respect regional specificities.
The Chair: Thank you. Of course, we will want to look more closely at it.
Senator Dyck asked about the funding formula. It was one of four recommendations of this committee's 2010 report that a funding formula be established. I wanted to note that for the benefit of the newer members of the committee.
Senator Meredith: As a segue with respect to funding, you had mentioned $1.9 billion. There are 612 bands across this country. How was this figure arrived at in terms of the magnitude of starting boards of education, hiring teachers and potential infrastructure issues that are on First Nation reserves?
Ms. Ducros: First of all, the $1.9 billion is incremental in addition to what the department currently provides, which was $1.55 billion in 2011.
I'll tell you how we arrived at it, but there are three different components to it. There is the $1.2 billion statutory funding that will begin in 2016, which is incremental to the current funding to programs. There's also a $160 million transition fund that would begin on April 1, 2015, to get at how to build the capacity in order to develop a First Nations education authority. Then there is a separate infrastructure fund in addition to what is currently provided in infrastructure.
With regard to the $1.2 billion, it's a little bit in the vein of Senator Dyck's question. Currently, absent per capita funding, what we've heard for the last 30 years is that you have to deal with comparable services, not comparable per capita. What we tried to do was in consultation with the provinces as to how they've developed their reforms over the last 20 years, what they've said was, in Ontario, for example, the funding needs, in order to achieve the same comparable services in northern Ontario, will be greater than in southern Ontario, not only because of remoteness but because of the way children are spread over a long distance, transport needs and remoteness.
The provinces have said this is what we give to a student, as Chris said. Plus, if we have a lower socio-economic profile, we know there will be greater needs. Plus, if we know there's a demographic with higher special needs, we know that it will cost more. If there is long distance travel, we know it will cost more.
What we've tried to do is look across the country at the First Nation schools that exist, and if we were to develop with proxies — which we needed to do — a system whereby they were able to provide comparable services as a neighbouring school or school in the same area, how much would you need to increase that statutory element? Then the idea was if you were to fund it directly, with an escalator of 4.5 per cent over time, what you would be doing is increasing efficiencies and effectiveness because you could plan over multi-years. Rather than get this amount for this year and flow it through a contribution agreement, there would be a statutory flow that would allow you to plan: "This year I'm going to focus on a numeracy project and this year on high-tech investment."
It really was in consultation with the provinces, the idea of getting to a comparable service as opposed to a comparable funding mechanism.
Senator Meredith: I have another question with respect to the allocation of the funds. What safeguards are in place to ensure the funds aren't transferred to other potential infrastructure needs on a First Nation? Or are the chief and council given these funds directly? Are there safeguards in place so they cannot spend it on anything else?
Ms. Ducros: Currently, before the legislation, the funds are, as I said, provided through contribution agreements, and the recipients have to report back on all of those funds. It's either a First Nations community or another structure, and there's a recipient audit policy whereby they have to report back. They have to report back on a whole range of issues. They have to report back on all the proposals. They have to report back on the basic student instruction fee.
The bill foresees the idea of getting into a system, again like the provincial system, where you fund to education and you report back both on outcomes and the resourcing, but you can design it so you can get a predictability year over year and a plan.
Senator Meredith: Mr. Rainer, you talked about this just briefly or it was mentioned in the presentation. A First Nation must be enabled, supported and funded to support the design of implementing languages and cultures. These were your comments.
However, Mr. Rainer, in terms of the allocation of funds geared towards maintaining culture and language, that has come up time and time again. As a result of First Nations losing their languages and their culture, what are you going to do to safeguard that?
We also talked about the hiring of teachers. There's criticism already around the structure of this new board and how it's going to report and the individuals that need to be hired that have the cultural experience of First Nations so that it's not just individuals coming from outside trying to implement a structure. How is that going to be? Both of you can comment in terms of how the structure is going to be maintained and to ensure the culture and language is also maintained.
Ms. Ducros: What we've heard in all these reports as well as from First Nations is they want to design their systems so they can incorporate language and culture, but they haven't been resourced to do it. As we've developed the $1.2 billion statutory fund, we've incorporated the cost. There are examples of that currently in the provinces where you basically identify the need through numbers as to what would be dedicated to cultural programming, and that would be incorporated into the formula. It's incorporated into the $1.2 billion, it would flow to the First Nations and the First Nations would then design the curriculum.
On the hiring and firing of teachers, the bill puts that entirely in the control of First Nations communities. Some of the criticisms in the past have been that they haven't been able to compete with neighbouring schools because they haven't been sufficiently resourced and they haven't had the overarching efficiencies you would get from a school board. So through the funding and through the stated intent to have First Nations hire and fire those teachers, inspectors, administrators, directors of education and principals, they would be able to address that.
Mr. Rainer: If I could add to that, I wanted to comment about how the funding is allocated. We don't know yet. The First Nations have to be in the development of the regulation that would determine the funding formula.
We know a global amount with the additional investments of the $1.25 billion, the $500 million infrastructure and the $160 million over four years, but we have to work with First Nations to develop what that formula would be in terms of how much they want to see allocated to language and culture versus transportation factors and from there. Once that formula is developed, it will be up to each individual First Nation when they receive that money to determine how they best want to spend it in their community for their education system.
While an allocation formula would produce a number for the funding that would be provided to the First Nation, that First Nation would still have the liberty to reallocate within their budget if they want to put greater emphasis in one area to meet the needs of their students versus another.
The Chair: Do you have a rough estimate of how long it will take to develop those regulations in consultation with First Nations?
Ms. Ducros: We have planning targets, but it will depend on how the joint council wants to proceed and how the First Nations want to move on representation, so we're trying not to be prescriptive on that. We do know that we will need regulations as you move forward for various things, so the creation of First Nations educational authorities and the funding formula.
The Chair: You're hoping things can be ready to roll out beginning in 2016-17?
Ms. Ducros: Yes, and we're hoping that the regs will be developed long before that.
Senator Wallace: Ms. Ducros, I would like to come back to the issue touched upon by Senator Dyck and the consultation process that was followed leading up to this bill. You described it as being a vast consultation process, and you give us some details on that. I would like you to expand upon that.
We're reminded that there are over 600 First Nations communities across the country. I know the department has had extensive negotiations with Chief Atleo and the AFN, but how has that been worked through so you would be satisfied that the various communities across the country have had a chance to make input into the bill as we see it today?
Ms. Ducros: We've actually tried to do iterative processes.
The Chair: What does that mean, please? Pardon me my ignorance — iterative?
Ms. Ducros: It means that in 2011, the national chief and the minister announced a joint panel. That joint panel on First Nations primary and secondary education travelled across the country and went to various communities, and we have the numbers of communities that we can provide. It also had regional consultations. It brought in a chair and two commissioners. That's how it started.
That joint panel, which visited various communities across the country, happened at the same time as our RDGs, who are in all of our regions and worked with communities.
I'm sorry; I'm not trying to be obtuse. Regional Director Generals visit all of these communities regularly for all kinds of reasons, including developing contribution agreements and dealing with it, so they would have shared that information.
So the national panel did that. They visited 30 First Nations communities and 25 schools across all the regions. There were meetings with stakeholders across the board. At the same time that they did that, we tried to use — in some places it worked, and in some places it didn't work — all of the constant letter writing campaign, pamphlets going out, and allowing First Nations to respond to us and to the joint panel. We tried to use new and old media.
Mr. Rainer: In December of 2012, following on the report of the national panel and the consultations that they had undertaken, the minister sent a letter to all chiefs across the country and to other interested parties to say we want to start a consultation process on the development of an act. He developed a basic outline that he sent to all chiefs and said, based on the national panel, based on the Senate study and based the Auditor General's report, here are some issues and considerations we want to take into account as we move towards development of an act.
We scheduled national face-to-face meetings, eight of them across the country, and invited chiefs to come, and educational professionals, parents and teachers, to make representations and tell us what they thought and what they wanted to see in an act.
We then followed that up with a report or a study in the summer that laid out what we had heard in those consultations, what we had heard through letters from chiefs and communities, what we heard through our online engagement process and emails that we had received. We also did an online survey for which we received over 460 pieces of information from First Nations and individuals about how they wanted to see the construct of a bill.
This then led to a draft based on what we heard, a construct of what a bill could look like, which was again sent to all chiefs across the country to seek their input, to educators and other professionals. We then provided money for First Nations to be able to come together, discuss that outline of a potential bill and provide comments and feedback.
Once we had taken in what we had heard again through letters, through the feedback from these sessions, this was followed with a draft legislative proposal, which the minister sent to all chiefs again.
The Chair: We would appreciate getting a list of communities that the panel visited. I believe we do have the blueprint for legislation for July 2013. Was that publicly released?
Ms. Ducros: It is.
The other thing we did iteratively, even the communities that we didn't visit, is make ourselves available for 35 video conferences. We did a lot of video conferencing and teleconferencing through various remote and other communities as well. We can get you all of that.
Senator Wallace: In addition to the individual chiefs, as I understand it, you had extensive discussions with Chief Atleo as head of the AFN. Maybe you could give us a bit of detail on those discussions, extended consultations and feedback and response to feedback between your department and the AFN.
Ms. Ducros: Throughout the two-year process, starting with the joint panel, we had weekly meetings with the AFN, and then recent discussions over the last couple of months were undertaken directly by the Prime Minister and the minister with the national chief.
Senator Wallace: Were there any suggestions or reactions to what was being considered from Chief Atleo and the AFN? Was anything received from them? Did the department respond in anyway?
Ms. Ducros: Throughout the joint panel process, there were weekly meetings. We took recommendations from the joint panel's process and constructed our response and spoke with the AFN, but the discussions with the AFN, the national chief, were at the ministerial and prime ministerial level over the last couple of months, so I'd have to let the minister speak to that.
Mr. Rainer: The national chief had written an open letter to the minister laying out his conditions for success, which was then mirrored through chiefs and council assembly. They passed a resolution that laid out those conditions for success, which the minister then responded to, and we have reflected those conditions in this current bill that you see in front of you today.
Senator Wallace: So the response to Chief Atleo's five conditions of success resulted in an adjustment to what was being proposed at that point, in other words?
Ms. Ducros: Absolutely. A significant adjustment. There were five points, which we can run through, but they were recognition of treaty and inherent rights, the need for statutory funding outlined in legislation, First Nations control and joint oversight, which led to the joint council of education professionals, meaningful engagement, which lead to the collaborative approach to regulatory processes moving forward.
Senator Moore: Thank you, witnesses, for being here. I want to talk a bit about this joint council. At the beginning, there was a national panel, and they made these various visits, but they recommended the creation of a national commission for First Nation education, which would be co-appointed. That didn't happen. Tell me why it didn't happen.
Ms. Ducros: There are a couple of reasons. First, some of the functions that were talked about in the commission, some of those roles, support to First Nations, collecting reports and providing rollup are actually now performed by the joint council.
The other issue that came up throughout consultations —
Senator Moore: No, no. They recommended there be a national commission for First Nation education. You just said that that was rolled up into the joint council. That's not the point. What happened to the recommendation of the national panel?
Ms. Ducros: The recommendation of the national panel was further informed by the consultations that took place after the national panel, and some of the roles of the national commission are now played by the joint council, but it was also influenced by further consultations where First Nations themselves across the country wanted First Nations education authorities at a local level and that was some of the responses that we've been hearing in the last couple of days about not having the one-size-fits-all.
Senator Moore: I know that some of the First Nation leaders are very upset. They're saying there is a lack of consultation, not appropriate consultation. This leads to this joint council and nine members max, minimum five, all appointed by the Governor-in-Council, including the chair. So I look at the five conditions that were chronicled by Minister Valcourt in December. He talked about ensuring Aboriginal communities retain control. I don't know how you retain control. How many of those nine are going to be First Nations people?
Ms. Ducros: Well, they could all be First Nations people but up to four will be appointed on the direct recommendation by First Nations. Up to four would be appointed based on the recommendation of the minister and then the minister would consult with the Assembly of First Nations on the consultation of the chair.
I would take a little bit of issue on the notion that the joint council is to provide supports and oversight. The joint council has no role in telling the First Nation what governance model it takes, who it hires and fires, and what curriculum it develops. The joint council is set out, and in keeping with some of the joint panel recommendations, to provide those supports and feedback and to act as an interlocutor.
Senator Moore: That may be, but it's still the entity that's sitting on top. I understand the statutory funding, recognition of First Nations languages and culture. All of that is in this clause 21, (2) and (3). It says "may." There is no requirement for that. It says "may."
Shared oversight, I don't understand that, when the council is being appointed by the Crown. This is a long way from the national commission that the First Nations people were looking for, and I find it disturbing. I just don't know how this will work without having First Nations people in some very key roles. The minister is going to consult, but he's still going to make the appointments. He doesn't have to make the appointment of somebody that he might not want to have there. There may be games being played and this sort of thing. I'm just concerned about that.
I don't see the guarantee that's there. We heard this the other day from a witness about the importance of classroom connection, particularly in this situation of First Nations, so that the children can be proud and can know who they are, where they came from, and have their culture and language the subject of study and discourse in the classroom.
I don't see it. This to me looks like a White man sitting on top, telling these people again what to do. It bothers me.
Ms. Ducros: The joint council has no say in how the First Nation community chooses to run its school or the governance model or the teachers or the curriculum development. The joint council may provide support to those First Nations and, where there are pervasive issues around outcomes, may advise the minister.
I hear your point. I'm not debating it, but the joint council doesn't have a say as to the governance model of the curriculum development and how the First Nations education authority delivers the system.
Senator Moore: But the cheques are being written by the minister and they're advising the minister.
Ms. Ducros: Yes. In the February 7 announcement, the national chief and the minister supported this approach, recognizing that they didn't have a view in governance systems.
Senator Moore: They're doing the overall rating. I look at the comments of Chief Nepinak and he said there wasn't enough consultation done. I heard you say the panel visited 30, but there are 614 First Nations, we've been told, and I don't know if they all received and responded to the letters. I would be interested to know if they did and what they had to say.
Ms. Ducros: The answer to that is all 630 chiefs received all the documents and there were many responses to various issues, and we can provide those lists.
Senator Moore: It will be interesting to read that.
The Chair: Just for the clarification of the committee, the joint council has a minimum of five persons and a maximum of nine. Under clause 12(1), this is about Aboriginal ancestry, I guess, in the committee. Clause 12(1) says the Governor-in-Council is to appoint "on the recommendation of the minister, one to four other members from among persons nominated by any entity representing the interests of First Nations . . . ."
Assuming those First Nations nominate an Aboriginal person, is that a guarantee that there would be Aboriginal persons in the joint council, Ms. Ducros or Mr. Rainer?
Martin Reiher, Acting General Counsel and Director, Operations and Programs, Legal Services Unit, Department of Justice Canada: Yes, indeed, the minister will recommend to the Governor-in-Council to appoint individuals based on nominations received, so depending on the nomination these will be the recommendations.
So if four individuals are nominated and four persons are to be appointed, those four persons would have to be recommended by the minister.
The Chair: Let's chase this down.
Senator Dyck: For clarification, who is this entity representing the interests of First Nations?
Mr. Reiher: The bill is designed to allow an evolution so this will apply over time, so the entity may change from time to time. The importance is that the entity represents the interests of First Nations. I understand the intent is that initially this organization will be the AFN and in the future the entity could change, depending on the situation.
The Chair: On this point, Senator Wallace, did you have a supplementary question?
Senator Wallace: I want to come back to the point raised by Senator Moore and I want to make sure I'm not confused. He raises questions about the role of the joint council and the suggestion that pressure comes from the top, and the minister — I'm getting the sense — is controlling the whole education system. My understanding is that it is the First Nations communities, the First Nations themselves that will control governance options, curriculum, the incorporation of culture and language in the curriculum, the education inspectors, the hiring and firing of teachers, how students will be assessed, even down to the school calendar and how that's established. Am I correct in that, that it's the First Nations that control those issues and not the minister?
Ms. Ducros: Absolutely. The First Nation would control all the things that you just raised, and those First Nations would report to the minister. The minister would have no say unless there were a real pervasive and persistent lack of achieving incomes or danger to the health and well-being of children. The minister couldn't come in and say, even based on this report, "I want you to choose a different curriculum or a different teacher or different design." The minister wouldn't hold those powers.
The joint council supports the First Nations, and that was to respond to the recommendations that we heard, including the recommendation of the joint panel, but the First Nations would still hold that authority. It would be up to the First Nations themselves to decide whether they wanted to run a community-run school, to delegate that to a First Nations educational authority, to come to an agreement with the province, to how they wanted to design or deliver that curriculum. The minister would not have a role in doing that. Chris can walk through the actual powers.
The Chair: Senator Moore, you have inspired a number of your colleagues.
Senator Watt: First of all, thank you for your presentation. I'm a bit confused in terms of what we're trying to do. I don't think I'm the only one.
The nature of what is being presented to us is, I would say, very unusual if we are thinking in terms of reaching a point some time down the road to set up a real genuine school board. If this is what we want to do at the end of the day, is it really necessary to go through the steps that we are going through now when there is a good possibility, with the federal and provincial governments along with the individual groups or band councils, to move in the directions of setting up a school board? I think that's what you want to do at the end of the day down the road.
Before you get to that point, what is the relationship going to be between a so-called joint council of educational professionals and the community basis therein? What is the relationship between the two? Is it a community base, a national base, a regional entity? I don't know how many of those in Canada you're going to be setting up, but it may be 640 because there are 640 band councils across the country. What are we talking about here? Eventually, down the road, do we want to see one giant super school board, or do we want to see a school board designed for each of those regions? What is your picture? Can you try to paint the picture in such a way so I can understand it better?
Ms. Ducros: I will try my best.
What currently exists is that, of the 630 communities, there are 415 schools. What started to happen since 2008, earlier for some provinces, is those schools have tried to come together to create their own school boards. In some provinces, like Nova Scotia, that's one school board. In British Columbia, 87 out of 88 communities have come together as a school board. In Ontario, Saskatchewan and elsewhere, they have different aggregations. They told us they want to come together; First Nations have. First Nations have told us quite categorically that they don't want the federal government deciding what is that aggregation, whether 10 in the Battlefords or 87 in B.C. They said, "We want to decide how we come together."
What we are trying to do through this legislation is to provide First Nations with the tools to say, "Do we want to operate a community school, or how can we get to that place where we design our First Nations educational authority and we decide how big they are?" So that's what we're trying to get at, providing through the legislation the tools and the funding and the predictability of funding to allow them to come together.
Senator Watt: Has there been any dialogue between the federal and provincial governments on that subject?
Ms. Ducros: Since 2008, we've created tripartite tables where First Nations and their representative bodies sit down at the table with the federal government and the provinces. In every single province, we've got various groups of First Nations who sit down with the province, and they have said a couple of things. They said, "In some instances we want to draw down on those tools that the provinces have, and in some instances we want to aggregate directly with a neighbouring provincial school board." In Saskatchewan, a couple of schools said, "We want to work with the province. We're going to run our school in our community from K to 2, and then from Grade 3 onwards we want them to go to the provincial school board, but we want an agreement whereby this is the representation we have." In British Columbia and Nova Scotia, which is now a self-government agreement, they said, "We want to provide supporting roles, but we don't want to get right in there in British Columbia where we say if the school isn't doing well, we're going to go in there. You're going to maintain some of those rules, and we're going to maintain some of the rules."
We're trying to provide the tools whereby First Nations can decide, "Do we want to work alone?" Some communities will say, "We want to run our own community schools." In some communities, they say, "We want to control our schools and we've got a critical mass and that's what we want to do." In Saskatchewan and Saskatoon and the Battlefords, they say, "We want to come together and create a body." In Ontario, there will probably be three or four bodies. We're trying to be sufficiently flexible and adaptable but not so divorced that we're not providing them with the tools.
On your direct issue, though, First Nations have said categorically that they don't want us to decide how big that authority will be. Since 2008, two programs have been put into place — the First Nations Student Support Program and the Education Partnership Program — and what has resulted is the creation of these embryonic First Nations education authorities where you can have eight or nine schools that come together. What they've said to us throughout this consultation is they do want the capacity building and the ability to come together and create a First Nations educational authority. This is not at all divorced from the practices that have been instituted in an embryonic fashion coming up from that or in response to current practices.
Mr. Rainer: To add to that, as Ms. Ducros said, the choice is that of the First Nations, so the vision will be theirs. Based on the discussions we have had to date, we will see a mixture of what these school board-like structures would look like. Some might align along treaty lines. Others will likely be along tribal council lines and others for other historical or geographic reasons. It will be up to First Nations to decide what will work best for the students.
As you pointed out at the beginning of your question, yes, we do want to encourage the development of these larger aggregations because we know that it will make it easier for First Nations to be able to deliver all the services their students need, including the professional supports to their teachers, things like the hiring of special education professionals and speech pathologists that are difficult to deliver to their students on a community-by-community basis.
Senator Watt: Neither does the federal government have expertise in that. The provincial governments do.
Mr. Rainer: Exactly, but First Nations control means it will be up to First Nations to decide what will work best for their students. We would like to encourage that and will provide the structures and supports through this bill to encourage them to develop these aggregations; but, at the end of the day, they will have the choice how to best meet the needs of their students.
Senator Watt: In that case, I guess what we're looking here at a very long process. I think our chair mentioned the year 2016 possibility. That's when the funding is going to be available, but it might even go beyond that. Setting up a school board is not an easy thing to do.
Ms. Ducros: One of the things that has happened since 2008 is that there isn't a single province where there is not an example of a body that comes together to try to create a school board. So in every one of those provinces, there are these embryonic organizations where they said, "We need some funding for the capacity building," which currently exists and will continue to exist through the 160 million, "to prepare ourselves to be able to develop this curricula and to be able to expend based on the funding through the funding formula."
Senator Watt: At this point, as a representative from the federal government, you don't see any other way of getting there faster than the way we are dealing with it now? Is that mainly because the First Nations need to be occupied to a certain extent?
Ms. Ducros: I think there are examples of bodies out there that are ready to go almost immediately. There are examples in Saskatoon and Winnipeg where they've currently got agreements with the provincial government and they're part of the school board. Northern Alberta and I think British Columbia and Ontario have models where they can become First Nations education authorities fairly quickly.
I don't think this is 5 or 10 years down the road. This is how to build capacity quickly so that by the time 2016 comes and we receive funding in a core transfer way, as opposed to piecemeal way where we can't plan, it will move fairly quickly. I'm very hopeful as a federal official.
Senator Watt: I hope you're right. Ten years is a long time already because we know kids are becoming victims due to the lack of education and the lack of availability of certain things they need in order to have a better life.
The Chair: Senator Watt, thank you very much. I will put you on second round if you like. We have one more brief supplementary from Senator Meredith.
Senator Meredith: This joint council, how much will it cost? Why don't we have a hybrid, getting to Senator Watt's point, of a super board where we have a mixture of both individuals reporting directly to government but also working alongside to create a super board? Why don't we do that rather than create another bureaucracy? I sense that's what's happening here. Is there going to be a short term for this council while super boards are being set up or several boards across the country or is it going to continue in parallel? I'd hate to see those funds being sent to the nine individuals rather than being directed towards the pupils in the classroom.
Ms. Ducros: I don't have a cost for the joint council yet. It's the nine individuals and we haven't worked that through yet.
I can tell you what we've heard loud and clear from First Nations is that there isn't going to be one overarching First Nations board. First Nations don't want it. They say that in the same way there are regional authorities across the provinces and different school systems, they want to come together with the critical mass. One thing we've heard is we don't want a national board. It's different to a national commission, which would perform certain roles, but the First Nations have said they don't want a board and they want to control that.
Senator Watt: Who wants to control that?
Ms. Ducros: First Nations have said, "We don't want the control of our system going to a super board," as Senator Moore has said, "or a joint council. We want that control of how we run the First Nations education authority at the regional or provincial level." The joint council provides supports and that was again to respond to what we had heard.
Mr. Reiher: If I may, to quickly address the issue of the use of money for the joint council as opposed to First Nation education, the administrative support for the joint council will be provided by the department and will not be provided with the funding that we talked about for First Nations education. That's separate.
Senator Meredith: Yes, I get that, but in terms of having those funds go towards the First Nations rather than setting up this other bureaucracy, basically, was my point. Why not do that? I understand that if I were to be paid by the department, those funds could be directed towards the First Nations.
Mr. Rainer: If I could respond, the concept of the joint council was not for the creation of a board for the delivery of services. Rather, it was created as a direct result of what we heard from the consultations and from the Assembly of First Nations through the conditions that First Nations did not want to see unfettered ministerial powers to oversee and control an education system from above. The joint council was a direct response to that call. It would be created to limit the minister's power while maintaining the ability for the minister to be accountable to Parliament for the expenditure of public resources. The minister must seek the advice of this council before the minister would exercise any of the powers laid out through the designation of some of the accountability structures to make sure that students are safe and that they are receiving a sound education.
One of the alternatives is that the minister would oversee and control when we didn't think that things were working in the community. The creation of the joint council tempers this now and it creates a body of education experts who would be providing advice to the minister of an exceptional circumstance when they think the minister needs to step in to protect students if something disastrous were to occur. It is not the creation of a school board structure; it is the tempering of the powers of a minister in overseeing an education system.
Senator Raine: Thank you very much. I think everyone on our committee feels a proprietary relationship to this bill because we've worked hard in the past and, like all kinds of Canadians, would like to see things change for the better. I have a few questions and I hope you don't mind, because I've always believed there are no stupid questions.
In the operation of schools, I put myself in the place of a small, very remote community, too far to bus to the next community, very small population, and they want to have a school. Must they have a director of education and must they have a principal if they only have 20 students?
Ms. Ducros: As you read it, they must. That is a direct result from what we've heard, including the testimony before this committee — because I reread the report — that you do need structures and supports to be able to provide a proper education system. We've heard from chiefs and council that you must do that. Where the issue is and where there has been some confusion is that it doesn't have to be a full-time director of education or a full-time principal.
We've heard over and over again that you do need to have someone whose principle job or primary responsibility is to ensure that the school is functioning.
Senator Raine: In an ideal world I would agree, but it's not easy to find people who live in small remote communities and have the skills to do those jobs, so we might be setting ourselves up to fail. We need to find a creative way of allowing that information, leadership and guidance to flow, perhaps electronically. But I agree it must be at the direction of the First Nation.
When we put in the legislation that it must be and then we have listed — I was quite surprised to see that it was almost like a job description. I realize there are responsibilities involved in being a principal and a director of education, but if you're a small community and you look at that, you may say "Oh my God, how will we find anybody who can do all that and will live here?"
Ms. Ducros: I understand that. I can tell you that what went into it was the thinking that came out of this and other committee reports that you don't have to have a principal or a teacher to be in that school. The principal or the teacher, even in a remote community, can be responsible for five or six schools. There's no reason why we have to create a school board that isn't taking into account virtual and other tools, but we have heard consistently — and we've heard it from some of the folks who are now objecting to these job descriptions — that we need someone whose role it is "to do the following."
There's no reason why the director of education has to be a full-time person. There's no reason why a teacher couldn't also be a principal. But for the idea of putting in those structures and roles and accountabilities, this committee, the joint panel and the Auditor General talked about clarity of roles and responsibilities, of a legislative base and service standards. We're trying to get at that. There's no reason why, as we develop those regulations — or as First Nations themselves develop them — it can't be creative. That's what we've heard from First Nations.
Senator Raine: So I would just ask, then, will the funding formula for a school with 20 students provide for a living wage for a principal and a director of education?
Ms. Ducros: The funding formula would be based on the same proxies that exist for all currently remote schools. You're asking me whether that principal and that director of education have to be full-time and deal with those things. It should reflect what's going on in the community, but in every consultation, the communities themselves have said, he teachers and educators have said, "We want someone to be responsible as the director of education or as the principal. Whether they're full-time or part-time, whether they're responsible only for my school of 20 kids or for four or five schools of 40 kids in a range of 500 miles, we want that clarity."
I'm not dodging your question. The answer to the funding formula is it should take into account the salaries and the base. All of that should be taken into account. The answer is yes.
Senator Raine: In your studies, you visited very small and very remote rural schools.
Ms. Ducros: We visited very small, very remote rural schools, and we heard from them. It was often those very remote, very rural schools — I have actually visited remote rural schools in B.C. We did visit very remote schools in northern Ontario, and the educator stood up and said, "We want clarity of roles and responsibilities." I'm not saying those same educators didn't say, "Okay, we have other political concerns about the act," but they said, "We want to know who's responsible for what. We want to know if it's the chief and council and how this is designed so they deliver those tools." One of the most forceful representations to that effect was in northern Ontario.
Senator Raine: How will the funding formula be set up to fund what is commonly referred to as second- and third-level services? I'm not that familiar with this fact, but I've heard that in the provinces sometimes a percentage of the per capita core funding goes to the administration costs of the regional education authority. Are you envisioning a similar type of arrangement?
Ms. Ducros: What we've done in coming up with the $1.2 billion is take into account what it would cost to deliver to those schools with the proxies. In the current British Columbia formula, they say that as a benchmark, about 7 to 10 per cent of the funding we give, depending where you are, goes to those second- and third-level services.
I should say we use second- and third-level services loosely, and different people have different definitions as to what those are. For the purposes of our discussion, we've taken all the studies we can. Usually there is the operation of the school. The second-level services are the supports to the teachers and the principals and the delivery of some of the supports in the schools; and the third level becomes certification of teachers, curriculum and other such issues. People have different definitions.
Certainly in coming up with the $1.2 billion, we said if we were to fund schools across the country in every province through the proxies that currently exist, that is the amount we would need with an escalator, and the 4.5 per cent escalator is based on an average with the provinces. So you would fund that to a school.
What we do know is there are efficiencies in coming together. You would take into account what it would cost to get that administration for a remote school, but they would probably have to go and buy those second- and third-level services. If you have a school of 20 people, you will have to buy the speech pathologist or the teacher support. We've taken that into account in the funding, and we're trying to reflect this notion of if you're a remote school, you're going to have to buy those services. If you're a First Nations education authority, then you will get efficiencies because you might have a speech pathologist or someone who understands how to assess it.
One of the great examples is in Labrador where as they've come together and developed their own assessment tools, which are turning out very different results from when they used to use the provincial assessment tools.
So yes to the funding, and there is a policy incentive to suggest, without pushing or taking the control away from First Nations, that aggregations not only increase efficiencies, but they increase some of the effectiveness because then you can learn how we develop the curriculum and culturally appropriate assessments. So yes to the funding, but there are going to be incentives on how to deal with that small remote community with the 40 students.
Some of the ways currently being dealt with, by the way, in Canada, New Zealand, Australia and elsewhere is to have a teacher in a classroom with the 20 to 40 students and some of that being virtually projected. You might have a math teacher in Vancouver, and with the teacher in the classroom in the remote school of 40 people, that's how they would deal with it. Or you might have a bunch of iPads with the teacher dealing with their supports. We do have to be creative in how to deal with that, but the funding would be there.
Mr. Rainer: I wanted to add that we have to be careful when we talk about the formula because it doesn't exist yet. This has to be developed with the First Nations about how it will be allocated out.
We do know that from the investments on February 7, there will be funding there to accommodate the design of these education structures, systems and supports that students need. But the exact amount and how much would go for administrative oversight, that would have to be dealt with in discussions moving forward with First Nations in the development of that formula through the regulations.
Senator Raine: I want to talk about community participation, and that is in the bill. That calls on the council of a First Nation. They must, in respect to the schools, regularly give students and their parents as well as elders an opportunity to provide. It's saying they must set up an education committee or a forum somewhere involving the whole community.
Ms. Ducros: That's right.
Senator Raine: Could you give a little bit of background on that?
Ms. Ducros: That comes directly starting from 1972, the Indian control paper, through all the other papers and studies, that students tend to do better when parents and elders are involved in their education system. That comes directly from what we have heard throughout all of the consultations and the studies done by various academics.
By the way, it also reflects what exists — although it changes sometimes — in the provincial systems where you have to create a parent-teacher council. Some provinces create those and then get rid of them, but there has always been an understanding that it's an indicator of success when parents are involved.
Senator Raine: Put me on the second round, then.
Senator Tannas: First of all, let me say that I think it's great to see the provisions in the bill that ensure First Nations students can graduate with a recognized diploma, that there's a need for a minimum number of days in terms of attendance, that instruction would be in either English or French, with the ability to incorporate native language and certified teachers and so on. We know that a lot of these things don't currently exist.
But you mentioned in your remarks that the bill would also help achieve the objective of having a student transfer from Grade 4 in a First Nations school to Grade 5 in a public school. I wonder if you could point me to specifically where you think that is achieved, because that's a pretty tight symmetry that you are advertising, and I'm just not sure that I see it here. I would like your help with that.
Ms. Ducros: Specifically where it's referred to in the bill?
Senator Tannas: Yes. I see it in the preamble. I don't necessarily see where specifically we're going to say that a Grade 3 child would be able to go to Grade 4 or Grade 4 to Grade 5.
Ms. Ducros: Yes.
Can you track it down?
We'll find it. It's in the section that talks about transition plans. We'll track it down for you momentarily.
Senator Tannas: Perfect. Thank you.
Ms. Ducros: That idea is again drawn from best practices that currently exist. For example, in many of these schools, both where they have agreements between the on-reserve system and the provincial system, what they have are student success plans and student transfer and transition plans. Where school boards have come together through these programs, the 2008 First Nation Student Success Program and the provincial partnership program, that's what they do. They ask, "How do we transfer?" Understanding that if I'm going to be in a fully immersed program from K to 2, how do I then prepare my student who might have to go off-reserve in Grade 3?
Mr. Rainer: When we talk about the roles and responsibilities of the principal, in clause 36, subsection (2), it talks about the school success plans, that they are to include the objectives and the time and manner in which they are to be achieved, and measures for preparing students who obtain a certificate or diploma referred to back in clause 25, and preparing them to continue their education successfully after completing any school year. How this is achieved will be choices of First Nations in the development of their curriculum. As they incorporate their language and culture, we want to ensure that the basic skill sets are there for students. When we talk about numeracy and literacy, in Grade 3 when you learn to multiply, all children are learning to multiply at that age level. How that's done are choices to be made in the development of the curriculum that might be more relevant for their students. It could be land-based learning or whichever approach that First Nation would like to take from there.
Senator Tannas: We think these words capture what you just said in 2(b)(ii), that that's where it is, is basically where you're saying we'll have children from Grade 4 at an Aboriginal school be able to seamlessly transfer to Grade 5 in a public school, and these are the words that require the school's success plan and educational objectives to include that.
Mr. Rainer: That's correct.
Senator Tannas: Thank you.
Senator Raine: One of the most amazing schools I've ever seen anywhere was the Onion Lake immersion school. I don't see a student in Grade 4 transitioning, flowing over into another school at the age of 5, because they would have only been speaking Cree. I was surprised that clause 21(2) says "to offer English or French as the language of instruction and may, in addition, offer a First Nation language." This doesn't take into consideration immersion at the elementary school level. I think there's more and more research coming out to show that it's a very good thing for children at the elementary school level. As you move on to secondary school and middle school, I know they have to catch up and move to English or French, but is there a need for a maybe "notwithstanding (2), is encouraged to have immersion schools in elementary schools"?
Ms. Ducros: There is research that shows that. A lot of it comes out of British Columbia as the indicators that show that a child who has been exposed to their own language before Grade 2 is an indicator of success. Some of that comes out of James Bay as well.
The intent there was to read that clause 21(2) with paragraph 48(1)(d), which basically says:
(d) defining, for the purposes of subsection 21(2), "language of instruction" and providing for the extent of the use of a First Nation language as a language of instruction for the purposes of that subsection.
I can let the lawyers walk it through, but the intent there is to combine two things. One of the key success factors is exposure at early grades. There are many successful schools across the country including K to 12 in Kahnawake and several schools in downtown Toronto and the Cree schools. What we heard is how do you address the issue of full immersion programs and dealing with the proficiencies that allow you to graduate from Grade 12 and get into a system? What happens in various other systems, both First Nations and French and English and Ukrainian in Saskatchewan, is how do you address both the proficiencies and the immersion program? That's what we were trying to get at.
Senator Raine: This will do it, then?
Ms. Ducros: That's our understanding. I'll let the lawyers add if they want to.
Mr. Reiher: That's the intent, to balance the need to speak initial French and at the same time to allow for the possibility for immersion. How this is going to be achieved will depend on the regulations, which will be developed in consultation with First Nations, which is why 21(2) says, "Subject to the regulations. . . ."
Senator Raine: Thank you.
Ms. Ducros: There was no intent in this legislation to in any way do anything but build upon successful immersion programs, but there was intent to address the issues of how to get to a recognized degree and the ability to transfer back and forth.
The Chair: I just have one quick question, then. If we heard anything in our two years of work on education in this committee, it was to get rid of the 2 per cent cap. It was put in place in 1996 by a finance minister and sustained since then. What will happen to the 2 per cent cap under this legislation?
Ms. Ducros: A commitment was announced on February 7 to deal with an escalator of 4.5 per cent. There are two things happening. There's no 2 per cent cap on education after this legislation. There is an escalator of 4.5 per cent on the statutory amount. Basically, it goes to 4.5 per cent for education.
I should say that on the 2 per cent cap, the programs that were introduced in 2008, the First Nations Student Success Program and the Education Partnerships Program were in addition. The $268 million announced to develop these First Nation Student Success Programs and these embryonic boards and to working with the provinces was in addition to the basic instructional services that were under the 2 per cent cap.
The Chair: Thank you.
Senator Dyck: As a follow-up on the question on removing the cap, you say it's going to go up to 4.2?
Ms. Ducros: 4.5.
Senator Dyck: For how long?
Ms. Ducros: Indefinitely.
Senator Dyck: Indefinitely?
Ms. Ducros: Yes. That was the commitment.
Senator Dyck: I have a request. Could you give the committee a flow chart that outlines the various bodies described in the bill, such as the principals, the directors, inspectors, joint council, minister, et cetera, that shows us the relationship, the actual structure, the First Nation education authorities, so we can see how they're linked together?
Ms. Ducros: We can get that to you. We've developed who performs what role, starting with the parent-teacher.
Senator Dyck: If we had that in front of us, it would make it a lot easier to visualize and conceptualize what the bill is all about. Thank you.
I want to go back for a minute to consultation. You described a process that sounds like good consultation. You have met with a lot of people; you've listened to what they said and have included it into reports and what we have before us now. Nonetheless, we are hearing that many First Nation organizations and individual First Nations are still saying they haven't been consulted. Clearly, we're operating under different definitions and expectations. I would suggest that perhaps the consultation hasn't been finished, the accommodation hasn't been finished and that perhaps the step that's missing might have been when you had this bill, you then would have gone back and actually gone through and have someone choose how many select organizations have to go through, and you sit down and describe to them at a table, like you're doing with us, what the various clauses mean. Maybe then there would be a greater understanding. Maybe then it would be acceptable and maybe then it would be further amended. Why didn't we do that?
Ms. Ducros: I would humbly suggest that throughout all these iterations you can always have a consultation on the next process, but we were hearing two things that were a little bit at counter-purposes. One of them was the comment that we cannot go on for another 10 years and not move on some of these issues.
Senator Dyck: Who was saying that?
Ms. Ducros: All First Nations. I've heard it from educators. I've heard it from the Auditor General. I've heard it from the joint panel. I've heard it from parents. I've heard it at consultations. You need to move quickly. I can remember one of them is in Vancouver; one of them is in northern Ontario. We can't wait any longer. We have to get to a place of statutory funding, at the same time as we're hearing we need to consult more.
I can't imagine with the history of this country anything more intimate, scary or potentially as devastating as moving on education. I hear that and we've tried to respond to it. It should flow through the legislation in the preamble, the notion that we aren't going to impose choices. At the same time, we're being told we have to move quickly, and we're being told right across the country and have been told since I've been here. I can only speak for the last three and a half years, but I heard it for 20 years. We need to get to, in this case, where there is statutory funding, the description of clarity around roles and responsibilities and where there is a base.
I would humbly say that on something as intimate as education, you will never finish consultation; it's never going to be done.
The minister's response to the fifth point about meaningful engagement was: We have to continue to speak and we have to continue to move throughout the regulatory process. But it wasn't that we need to stop until everyone agrees.
Senator Dyck: I will come to the regulations in a minute. But to carry on with that conversation, I did receive a letter from the Treaty 4 Student Success Program and I spoke to the chief, and he said that I could mention his letter. He's the chief of the Muskowekwan First Nation, and they represent 11 First Nations. You're probably aware of them, and they're probably one of these embryonic aggregates that you were talking about, and he's saying that they've spoken with your department as late as October 22, 2013. They've met with senior officials from your department, and they were going to meet with you, but that was postponed because of the announcement of the new bill.
You're looking puzzled.
Ms. Ducros: I don't remember if we did postpone it because of the new bill.
Senator Dyck: They had received a meeting date for April 10 and it was postponed.
Ms. Ducros: That's right.
Senator Dyck: But they're saying they're feeling as though the education act is being imposed unilaterally, and they are wondering what this means to all the work they have done, so that's an example of a group that has worked with the department, yet they feel they haven't been part of the loop.
Ms. Ducros: Yes, and I have personally met with them; we're working with them and they want to move on a body.
I'm not going to deny some of those things are out there, and we have to continue to speak with it. There is always going to be angst around something like this, but as we move forward to develop some of these authorities — and that's an example — we will have to continue to consult.
Senator Dyck: They want to move forward, and they're not saying they're going to block the highway. They want to keep going and they feel like they don't know what's happened.
Ms. Ducros: There is a bit of a paradox here because they want to keep going. I can name several organizations here — probably have to get their permission — but even as they're talking about this, they're also preparing for the First Nations education authority and they want to get to a statutory funding mechanism.
Senator Dyck: I think they want to go the same route.
Ms. Ducros: I will personally undertake to call Treaty 4.
Senator Dyck: As you were saying, the development of regulations is really the key aspect, and you made a commitment that you're going to work in consultation with First Nations. It's mentioned in the preamble, and you read out a couple of clauses from the bill that sort of indicate that this is supposed to happen.
I guess the question is: How are the regulations actually going to be directly developed with First Nation chiefs and councils, with First Nations families or with the teachers? What actually is going to happen? Can you walk us through and tell us what the process is actually going to look like in detail, and perhaps it will assure not only the committee but other Canadians and First Nation people specifically how they're actually going to be involved in the regulations?
Ms. Ducros: The truth is, the process as to how we're going to get there is also a process, so basically we've tried to outline commitments in legislation to say a couple of things. One, regulations can be developed regionally, province by province, and take into account those practices that currently take place. That's the first thing. These are just principles. The second thing is you're not going to practically get to a place where you're developing regulations with upwards of 615 to 630 nations. You're going to have to figure out how we do that, and, therefore, that was, in part, the creation of the joint council who would receive those representations because First Nations don't always want to come directly to the federal government. So we will work on developing that process both with the joint council. There are ongoing discussions with both the AFN, but also with First Nations education authorities that I speak with on a regular basis, so we're still working that through.
I know it sounds very bureaucratic, and I haven't always been a bureaucrat, but I would say that the provision in the current act that requires the joint council to provide every opportunity to receive representations could go so far as to have every First Nation provide it. But we are trying to juggle letting people make their representations and getting to a place where we can move forward.
On Treaty 4, Treaty 6, 7, and 8 in Alberta and others, we've reached out to Meadowlake Tribal Council, the Battlefords, and we've reached to all of those to ask, "How do we get to a place where you feel like you're involved in developing these First Nations agreements and the regulations?"
Senator Dyck: Why did you reach out to some and not others? Or did they respond?
Ms. Ducros: Our regional director generals as a matter of practice every year have to go out and conclude these contribution agreements. There are discussions every year and every week with most of these communities right across the country, not at the ADM level, but at the regional director level or finance service officer level or director of education level. So the notion that it was all just consultations in the ordinary course of business in British Columbia, in Alberta and in Saskatchewan, across the country, we are having constant discussions. Whether or not you call it consultation — and I'm sorry about that letter, but I can tell you that I go to Saskatchewan all the and I am regularly meeting with those groups and asking, "What is it you need for your First Nations education authority?" and our RDGs are doing it on a weekly basis.
Part of it is the big consultation process. In Alberta, for example, they are divided into treaty groups and they have developed a process for moving forward. They may not agree with the legislation, but we are working at developing these things. It's not like we're not reaching out to everyone. Some don't want to work with us, but not a lot. I can't think of many examples where they aren't in discussion as to how we manage this because either they deal with it through creating these authorities, or they have to come back to the old, "This is our contribution for this year, and it's based on the number of students, and it doesn't take into account all these other ways of moving forward."
The Chair: You said there were regional consultations before Bill C-33 was released in 2013. I think you said seven. What was the level of participation in these consultations at the regional level? Were they engaged? Were there some protests? Were there any where people walked out? Can you give us a picture of that?
Ms. Ducros: In British Columbia, we co-hosted a regional representation with the First Nations Education Steering Committee, so it was jointly organized. I'll have to get the direct numbers, but there were upwards of 100 people, and we met with both educators and chiefs. So that was the regional consultation, and it was supplemented by an ongoing relationship that we have with the First Nations education committee where we have to meet regularly to oversee their agreement.
In Alberta, there was a regional consultation with the three treaty groups. There was some discussion, and then some forks walked out and then the minister went back and met with the treaty, so I led a first discussion in Alberta. There was some protest and the minister went back and met with the treaty groups in Alberta.
In Saskatchewan, we had a regional consultation that was well attended, I would say. About half the chiefs walked out, but there was a discussion which then again came down to working with educators.
In Manitoba, we had a consultation. I can get you the numbers; I just don't know them off the top of my head.
The Chair: It's okay.
Ms. Ducros: In Manitoba, all chiefs were invited. There was a protest outside because folks asked to come in, so we invited them in. We had a fairly good meeting in Manitoba, which was then supplemented by ongoing discussions that we currently have with the Manitoba First Nations Education Resource Council.
In Ontario, there happened to be two consultations, one in Kenora and one in Thunder Bay. They were very well attended. There was a protest outside. Everyone was invited in, so there was a protest inside and outside, and then the discussions carried on.
In Quebec, the chiefs were invited, and they left. Those consultations continued with the various education bodies through video conference and other —
In the Atlantic, which was the first consultation, which started on January 21, I think it was very well attended. It was over a day and a half that we met with chiefs and then educators.
As I indicated earlier, there were 32 video conferences, which were both information sessions and further discussions. Then there were other consultations that took place from some of my officers who went to Labrador, is what I'm thinking off the top of my head, Treaty 6, 7, and 8 in Alberta. There were various other consultations at the working level, and those would have been more amongst educators than national leadership.
The Chair: Thank you very much.
We have just four minutes left, and I would ask Senator Watt and Senator Raine to bear that in mind.
Senator Watt: The point raised by the senator across from me in regard to spending three or four years being taught in their mother tongue, does that have any influence on the outcome of that youngster, whoever that person is?
I do have a bit of an experience in that field, because we are wrestling with that. There is a give and take to a certain extent. If you allow an Inuk person to be taught in Inuktitut for the first two years, that in a sense takes certain things away. Otherwise that kid will be two years advanced, and it's degraded two years rather than being advanced, so there is a problem there. Even though there is a problem there, the fact that they are being taught at a young age with their mother tongue makes them very solid, so we see the outcome of that. What we are wrestling with now is to find a way to teach them with the two languages at the same time. At the end of the day, they will become very solid, and they succeed. When they have to deal with their counterparts, let's say in Montreal, for example, then they are not two years behind, but at this point they are still two years behind, just to let you know.
The point I would like to raise, if I have the time, is knowing the fact the minister is not a minister of education, I do believe that he would like to retain a certain set of authorities like a minister of education having at least power over what might take place within the language of instruction. It could also be applied to administrative fields. I would imagine that the minister will have disallowing power just like the minister of education.
Ms. Ducros: There are provisions in the act for the minister's ability, having sought the advice of the joint council and where there is persistent non-performance of non-achievement of outcomes or kids are placed in an insecure situation, to appoint a temporary administrator who would assume the functions that currently exist, but he couldn't disallow on the whole range of governance curriculum. He could appoint a temporary administrator who would go the structure that has already been created by the First Nations to deal with issues where there was pervasive non-performance.
Whether the bill is sufficient, according to some, nothing in this bill enhances the minister's power. Anything that exists in this bill currently constrains the minister's power. Right now, the education systems are run through contribution agreements where the minister has pretty much complete authority.
Senator Watt: I have one point to make. Do you think the minister would be agreeable if an amendment takes place within the act itself to take that power away, that he doesn't have a disallowing power when it comes to language of instruction?
The Chair: Let's ask the minister when he comes. We can't expect the officials to answer that. He now knows what he might expect.
Senator Raine: I would like to say thank you very much, all of you, for this session. It is the start of our pre-study. I hope that we might have a chance to have you back if we get more questions as we move along, but that's all for me. Thanks.
The Chair: I think you covered a lot of ground, colleagues. Thanks to the witnesses, and thank you, honourable senators.
Ms. Ducros: Thank you very much.
(The committee adjourned.)