First Nations Jurisdiction over First Nations Education

This project is an expansion of Pam Palmater’s current unfunded research activities in the area of First Nation jurisdiction over First Nation education.

First Nations in Canada are at the bottom of all socio-economic indicators. They have the highest rate of youth suicide of all cultural groups in the world, and many live without running water, sewer or heat. Recent statistical analysis shows that conditions on reserve are once again growing worse. According to the United Nations, Canada is the 4th best place in the world to live, but if the conditions of First Nations were singled out, this would make Canada 78th below countries like Cuba and Paraguay.The Royal Commission on Aboriginal Peoples raised the alarm in 1996 and now even federal officials like the Auditor General of Canada, the Office of the Correctional Investigator and others have called the situation a "crisis", a "national disgrace" and a national "emergency". Yet, these same officials have also highlighted the primary causes of the dysfunction as (1) inter-generational effects of colonial laws and policies, (2) inequitable federal funding and (3) lack of First Nations control.

Education is now seen at the ultimate solution to building First Nations skills and capacity, yet education, in the form of residential and day schools are what caused the inter-generational dysfunction to begin with. PM Harper apologized for the physical and sexual abuse inflicted on First Nations in these schools and the large scale loss of culture, language and identity. However, federal laws have not been amended to reflect this new policy direction. Thus, legal and policy considerations around education must be considered in this light so as not to repeat past mistakes.

This project looks at the issue of First Nation jurisdiction over First Nation education from legal, policy, political and cultural perspectives with a view to designing viable legislative and policy alternatives. Normally, provinces have jurisdiction over education pursuant to section 91(24) of the Constitution Act, 1867. However, pursuant to section 91(24), the federal government has assumed jurisdiction over "Indians and lands reserved for the Indians". Section 88 of the Indian Act, 1985 expressly incorporates provincial law except to the extent that it would regulate areas already legislated by the federal government, like First Nation education. Recently, a scathing report from the Auditor General for Canada criticized Canada for failing to address the widening gap in living conditions between First Nations and Canadians and highlighted the gap in education as a critical issue. This, together with the formal endorsement of the United Nations Declaration on the Rights of Indigenous Peoples, which gives Indigenous Peoples the right to control their own educational systems, led Canada to establish a National Expert Panel on First Nation Education to come up with recommendations for legal and policy options. This research was used to prepare a report on Pam Palmater’s own recommendations, presentations on her research for various First Nation and government audiences, and a journal article.