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Summary of October 16, 2006 draft of the
"First Nation Jurisdiction over Education in British Columbia Act"
Title
The short title of the Act will be the "First Nations Jurisdiction over Education in British Columbia Act".
Definitions
"Education" will be defined as programs and services generally offered to students in kindergarten to grade 12.
"First Nation Council" will have the same meaning as "Band Council" in the Indian Act.
"First Nation Land" will be defined as a "reserve" under the Indian Act set apart for a First Nation and will specifically include land administered by that First Nation under the First Nations Land Management Act.
"Participating First Nation" will mean a First Nation named in the schedule to the Act.
General provisions
This Act and Canada-First Nation Education Jurisdiction Agreements ("Jurisdiction Agreements") will prevail over any other federal statutes to the extent of any conflict.
The purpose of the Act is to bring individual Jurisdiction Agreements into effect.
The mechanism for bringing individual Jurisdiction Agreements into effect will be to add the name of the First Nation to the schedule to the Act. This will also have the effect of giving them the force of law.
The Governor in Council may delete a First Nation's name from the schedule if that First Nation concludes a comprehensive self-government agreement, a treaty or a land claims agreement that provides for jurisdiction over education.
Effect of individual Jurisdiction Agreements
Individual Jurisdiction Agreements will confer powers, rights, privileges and obligations on the persons and bodies named in them. Jurisdiction Agreements will be binding on and may be relied on by all persons.
Participating First Nations will have the power to pass laws relating to education and to delegate their law-making powers to the First Nation Education Authority (FNEA).
Individual Jurisdiction Agreements may contain provisions that are not specifically provided for in the Act.
Community Education Authority
A Participating First Nation may, on its own or together with other Participating First Nations, establish a Community Education Authority to operate its school system.
A Community Education Authority will have the powers, rights, privileges and obligations conferred on it by a First Nation education law in accordance with a First Nation's Jurisdiction Agreement.
FNEA
The Act establishes FNEA as a legal entity and provides it with powers (e.g. to enter into contracts, sue and be sued). A board of directors, consisting of at least 6 directors, will manage FNEA (the "Board"). FNEA will have a President and a Vice-President. FNEA will not be an agent of the federal crown.
Each Participating First Nation will be able to appoint two directors to the Board, at least one of whom must be a member of the First Nation. The initial term of office for directors will be two years. The Board will establish the length of subsequent terms of office. Directors may be re-appointed.
Directors will be appointed "at the pleasure" of the Participating First Nation which appointed them and may be removed at the discretion of that First Nation. The Board itself may remove a director "for cause" or for breach of the rules established by the Board.
The President and Vice-President of FNEA will be appointed by the Board for an initial term of no more than two years. The Board will establish the length of subsequent terms of office. The President and Vice-President may be re-appointed and may be removed for cause.
The Board may establish rules of procedure respecting how it carries out the work of FNEA, including rules setting out grounds for removal of directors, the management of its internal affairs and the duties of its officers, employees and contractors.
FNEA's head office will be located in British Columbia.
The Act confirms that FNEA may hire staff as necessary and determine their duties and conditions of employment, as well as their salary and benefits.
Purpose and powers of FNEA
The purpose of FNEA is to assist Participating First Nations in developing their capacity to provide education to their members and other matters agreed upon by FNEA and a Participating First Nation.
FNEA will, at the request of a Participating First Nation, enter into a co-management agreement with that First Nation regarding education.
FNEA must, as provided for by a Co-Management Agreement, establish standards for the curriculum and examinations for courses required for graduation, provide a teacher certification process for teachers working in First Nations schools (other than language and culture teachers), provide a school certification process for First Nations schools and carry out other duties consistent with Jurisdiction Agreements and the Act. At the request of a Participating First Nation, FNEA may also provide a teacher certification process for language and culture teachers.
FNEA must consult with BC regarding the establishment of standards for the curriculum and examinations for courses required for graduation.
The Board may authorize FNEA to enter into agreements with First Nations that have comprehensive self-government agreements, treaties or a land claims agreements providing for jurisdiction over education. Where authorized to do so, FNEA may enter into an agreement with such a First Nation at that First Nation's request. That agreement must address standards for curriculum and examinations, teacher certification and school certification in a manner consistent with how these matters are to be addressed for Participating First Nations with Jurisdiction Agreements.
FNEA may also exercise jurisdiction delegated to it by a Participating First Nation or a First Nation with a self-government agreement, treaty or land claims agreement.
Other Acts
When a First Nation passes its own education law, sections 114 to 122 of the Indian Act cease to apply to the First Nation and its members.
Liability
A First Nation will not be liable for anything done or omitted to be done by Canada prior to the coming into force of its Jurisdiction Agreement. As well, Canada will indemnify the First Nation for any loss suffered by the First Nation as a result of its actions or omissions during that time period. Canada is similarly not liable for anything done or omitted to be done by the First Nation after the coming into force of its Jurisdiction Agreement and the First Nation will indemnify Canada for any loss suffered by Canada as a result of its actions or omissions during that time period.
Minister's powers and duties
The Minister retains the power to establish and maintain schools on First Nations land. This ensures that the federal government will be able to continue to fund the construction and maintenance of First Nations schools on reserve.
The Minister must ensure that copies of Jurisdiction Agreements are filed at the DIAND library and at their regional offices.
Miscellaneous matters
Judicial notice shall be taken of the Jurisdiction Agreements and First Nations education laws passed pursuant to those agreements. This will be helpful if First Nations end up in court in relation to an issue connected with their Jurisdiction Agreement or their law.
The Act confirms that First Nations education laws will not be "statutory instruments" subject to the provisions of the Statutory Instruments Act. The purpose of the Statutory Instruments Act is to provide a process for the examination, publication and scrutiny of federal regulations and other federal statutory instruments.
FNEA and Community Education Authorities will not be considered to be "federal" entities for the purposes of the Federal Courts Act.
If someone wishes to challenge the interpretation or validity of a Jurisdiction Agreement or the validity or applicability of this Act or a First Nation education law, he or she must serve the Attorney General of Canada and the First Nation in question.
Regulations
The Governor in Council may make regulations and orders to give effect to Jurisdiction Agreements and to establish standards for buildings, equipment and inspections for First Nations schools administered under the Act.
Consequential amendments
The Access to Information Act and the Privacy Act are amended to include references to First Nations' Councils.
Access to Information Act
The Access to Information Act currently provides, under "Exemptions", that government institutions must refuse to disclose any record requested under the Access to Information Act that contains information that was obtained in confidence from an aboriginal government. The term "aboriginal government" is defined as meaning the Nisga'a Government, the council of the Westbank First Nation, the Tlicho Government, or the Nunatsiavut Government.
The First Nations Jurisdiction over Education in British Columbia Act will result in an amendment to the Access to Information Act that adds "First Nation councils" to this list of exemptions for the purposes of the First Nations Jurisdiction over Education in British Columbia Act.
Privacy Act
The purpose of the Privacy Act is to protect the privacy of individuals with respect to personal information about themselves held by a government institution and to provide individuals with a right of access to that information. Subject to other statutes, personal information under the control of a government institution may be disclosed to any aboriginal government, association of aboriginal people, Indian band, government institution, or to any person acting on their behalf, for the purpose of researching or validating the claims, disputes or grievances of any of the aboriginal peoples of Canada.
The Privacy Act defines "aboriginal government" as the Nisga'a Government, the council of the Westbank First Nation, the Tlicho Government and the Nunatsiavut Government.
The First Nations Jurisdiction over Education in British Columbia Act will result in an amendment to this definition to add "First Nation councils", for the purposes of the First Nations Jurisdiction over Education in British Columbia Act.
Coming into force
The Act comes into force on a day or days fixed by order of the Governor in Council.