Agenda item 4
For First Nations Education Committee February 8-9, 2007
February 6, 2007
Issue: Devolution of Education Jurisdiction and Template Service Contracts
Background:
After many years of work on the part of governments and First Nations, especially
FNESC, enabling federal legislation (Bill C-34, Chapter 10 Statues of Canada: An Act to
provide for jurisdiction over education of First Nations lands in British Columbia) has
now been passed and awaits proclamation. There are presently at least 43 bands in B.C.
who have indicated a desire to assume jurisdiction. Once a band has gone through the
process and entered into a jurisidiction agreement with Canada, it becomes a
Participating First Nation (“PFN”).
We expect there will be School Act amendments in the upcoming legislative session
allowing school boards to enter into agreements with PFNs.
These service contracts between PFNs and School Boards are required wherever
members of the band wish to enroll their children in public school. It is an important
principle of the agreements that parents have the right to choose either a public school
program or a First Nations school program. BCSTA and FNESC began a process of
negotiating a template agreement for bands and boards in April 2005. The template was
not finished at that time because the framework agreements and the legislation had not
been finalized at that point.
The template agreement includes provisions for tuition payments, movement of students
and teachers and information sharing.
As school boards consider the impact of devolution and the negotiation of service
contracts, a number of questions will need to be considered including:
1. What incentive does a PFN have to enter into and comply with a contract?
2. What incentive does a school board have to enter into and comply with an
agreement?
BCSTA First Nations Education Meeting
February 8-9, 2007
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3. What points need to be clarified to ensure that the school board can deliver on its
promises?
4. How are the board’s interests protected if relationships deteriorate?
1.
Factors influencing PFN
One of the obligations of the Canada/FN funding agreement (in its present draft
form) is that a PFN must enter into a service contract with a public school board
or independent school authority where the PFN determines that its members wish
to enroll their children with such a service provider. The service contract must be
in good standing for its full term. If the PFN is in breach of this or other terms of
the funding agreement, then Canada can hold back funds, or may decide not to
renew the funding agreement after its expiry. (The funding agreement is expected
to provide PFNs with a higher level of funding than is provided to other band
schools.)
The PFN also obtains benefits under the BC/First Nations agreement (in its
current draft state) including payment of tuition to the First Nation’s Community
Education Authority for FN school students who are not status on reserve and
would otherwise be eligible for provincial funding and the ability (subject to
conditions) to issue a Dogwood graduation diploma. Part of this agreement is that
FNESC and PFNs accept that PFNs are obligated to pay tuition to provincial
school boards in respect of students from PFNs who are enrolled to receive
educational programs from provincial public schools. BC’s obligations under the
agreement are also conditional on the PFN remaining in compliance with the
obligations under the agreement and also maintaining a valid Canada-FN
Education Jurisdiction Agreement. Thus BC could decline to comply with its
obligations if the FN were in default of its tuition obligations to a school board.
It can be concluded that a PFN has a strong incentive to enter into and maintain a
service contract in good standing in order to ensure that its benefits from Canada
and BC are not jeopardized.
2.
Factors influencing school boards
The central part of the service contract, as with a local education agreement, will
be payment of tuition by the PFN to the school board for nominal roll or status on
reserve students enrolled with the public board. If the PFN defaulted, the School
Board could ask Canada or BC for assistance or could sue for a civil debt if other
means of putting pressure on the PFN failed. Without an agreement, the path to
recovering tuition may be more difficult.
BCSTA First Nations Education Meeting
February 8-9, 2007
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It should not be assumed that with or without an agreement a school board would
have the right as a response to non-payment of tuition to withhold services from
FN students enrolled with the board.
3.
Can the school board fulfill its obligations under the contract?
Some of the obligations outlined in the template agreement involve BCPSEA
approval; others may need amendment in light of the devolution legislation or the
terms of other provincial legislation.
4.
What provisions should govern termination of the contract?
This is not included in the present draft. Lack of clarity in this area can lead to a
great deal of confusion and expense if relationships break down.
Recommendation:
(1) That FNEC consider any questions it would like to raise with Nathan Matthew.
(2) That FNEC consider any advice it would provide to the Board of Directors about
continuing negotiation and distribution of the template agreement to member school
boards.
Prepared by: Judith Clark, BCSTA General Counsel
BCSTA First Nations Education Meeting
February 8-9, 2007
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