1. Education JURISDICTION: an Overview
NOVEMBER 28, 2017
FIRST NATIONS EDUCATION STEERING COMMITTEE

2. Overview Context – BC First Nation Education System
07/09/2018
Overview
Context – BC First Nation Education System
Education Jurisdiction – what is it?
Where are we now?
Steps to becoming a Participating First Nation
Education Jurisdiction Resources, including glossary of key terms
55% of students transition from First Nations schools to public schools, as some First Nations do not have schools and many First Nations do not have a secondary school.
This system is recognized by our partners.
You may have seen a CBC story in 2016 talking about First Nations education being a ‘non-system’. Well here in BC we DO have a system.

3. BC First Nations Education System
07/09/2018
BC First Nations Education System
For over 20years, First Nations in BC have worked collectively to build a comprehensive and responsive BC First Nations Education System.
The BC First Nations Education System is unique within Canada:
We have an existing regional model, endorsed by BC chiefs and recognized in existing agreements with BC and Canada.
We have a wide range of second level services for schools and communities and dedicated funding to support them.
BC First Nations’ jurisdiction over education has been recognized in jurisdiction agreements and legislation (but is not yet fully implemented).
We have a Tripartite Education Framework Agreement with Canada and BC (that is currently being renegotiated).
The system reaches out to support First Nations students in First Nations schools and in public schools.
55% of students transition from First Nations schools to public schools, as some First Nations do not have schools and many First Nations do not have a secondary school.
This system is recognized by our partners.
You may have seen a CBC story in 2016 talking about First Nations education being a ‘non-system’. Well here in BC we DO have a system.

4. BC First Nations Education System
The BC First Nations Education System is focused on supporting First Nations in achieving their goals of economic viability and sustainability through a learning system that includes:
high expectations,
sound, holistic and inclusive curriculum,
well-trained educators,
focused leadership,
parental involvement,
accountability, and
safe, healthy, and adequate facilities.

5. Current Framework – First Nation Schools
There is currently a legislation and policy gap:
First Nations education currently subject to national policy being imposed by the federal government.
First Nations education system is vulnerable to political changes.
There is no recognized legislation that provides a foundation for First Nation Schools.
Implementing education jurisdiction is an important step towards filling that gap.
BC First Nations expressed support for pursuing education jurisdiction. Regional sessions were held in the early 2000s, specifically on education jurisdiction. The feedback from those sessions showed that there was province-wide support to move ahead with jurisdiction.

6. Education Jurisdiction – What is it?
Rationale for Education Jurisdiction
Key milestones
Key documents
Key players

7. Rationale for Education Jurisdiction
First Nations’ jurisdiction over First Nations education
Will make “First Nations control over First Nations education” a reality
A First Nation with jurisdiction will be able to
Make decisions in the best interests of their learners (rather than having those decisions made by others)
Pass an education law that establishes its own school system, teacher certification, school certification, curriculum and exam standards
This slide refers to the underpinnings of why a First Nation would want to enter in education jurisdiction – FN Control of FN Education

8. Rationale for Education Jurisdiction
Education jurisdiction will
Support First Nations schools in achieving increased educational success for their learners by setting higher standards of education, creating a better learning environment
Allow First Nations to establish a community-tailored education system that
meets the specific needs of First Nations learners
is appropriate, compatible with, and relevant to the lives of First Nations students
ssupports cultural integrity, protects First Nations’ identities, and preserves and perpetuates First Nations languages and cultures
is consistent with their own priorities, values and ideals
Increase accountability to the parents of First Nations learners

9. Rationale for Education Jurisdiction
Under its own education law, a First Nation can
Establish a Community Education Authority – the legal equivalent of a school board – on its own or with other First Nations
clarify the relationship between the First Nation Council and the Community Education Authority or education advisory committee
An Education Jurisdiction Agreement is considered a “sectoral self-government agreement” and would likely be protected from future federal legislation initiatives.
Participating First Nations can be shielded from negative impact of new federal initiatives (e.g. would have been exempt from the federal legislation proposed by the previous Conservative Government)
This slide refers to the underpinnings of why a First Nation would want to enter in education jurisdiction – FN Control of FN Education

10. Key Milestones in Jurisdiction
Jul. 25, 2003
MOU signed (Canada, BC and FNESC)
Nov. 26, 2005
Education Jurisdiction Framework Agreement initialed
Jul. 5, 2006
Framework Agreement signed
Dec. 12, 2006
Federal Supporting Legislation passed
Nov. 29, 2007
Provincial Supporting Legislation passed
Dec. 2010
Canada announced that its Own Source Revenue (OSR) policy would apply to this initiative
Negotiations stalled from 2010 to 2015 as the parties sought to resolve the OSR issue
June 28, 2013
Framework Agreement extended until 2018
July 2015
Canada released new policy, “Canada’s Fiscal Approach for Self-Government Arrangements”
June 2016
Canada re-engages in negotiations
As the jurisdiction initiative has been around for so many years it is important to remember/identify the key steps along the way, including policy issues that have caused delays in the negotiations such as OSR.

11. Key Documents Framework Agreement Education Jurisdiction Agreement
Funding Agreement
Federal and Provincial Supporting Legislation

12. Framework Agreement
The Education Jurisdiction Framework Agreement (“Framework Agreement”) signed in 2006:
Sets the road map for implementing First Nations’ jurisdiction over education in BC,
Committed Canada and BC to passing enabling legislation (which they did),
Was extended for five years in 2013 to 2018, and
Includes four appendices:
British Columbia-First Nation Education Agreement
Template Canada-First Nation Education Jurisdiction Agreement (“Education Jurisdiction Agreement”)
Template Canada-First Nation Education Jurisdiction Funding Agreement (“Funding Agreement”)
Template Implementation Plan.

13. Signing of the Jurisdiction Agreement – July 2006

14. Education Jurisdiction Agreement
It brings a First Nation’s exercise of jurisdiction to life, and sets the scope of its law-making powers.
It recognizes a First Nation’s jurisdiction over education on First Nation Land (i.e. First Nation’s reserve).
This jurisdiction will extend to Members of the First Nation and to Non-Members whose children attend the First Nation’s school.
It is an agreement between a Participating First Nation and Canada, based on the agreed template (attached to the Framework Agreement).

15. Funding Agreement
It provides funding to support the implementation of an Education Jurisdiction Agreement.
It is an agreement between a Participating First Nation and Canada, based on the agreed template (also attached to the Framework Agreement).

16. Supporting Legislation
Canada and BC have both passed supporting legislation.
Federal legislation – First Nations Jurisdiction over Education in British Columbia Act (2006):
brings individual Education Jurisdiction Agreements into effect,
recognizes Participating First Nations’ authority to pass education laws and to establish Community Education Authorities, and
establishes the First Nations Education Authority and sets out its powers.
Provincial legislation – First Nations Education Act (2007)
recognizes Participating First Nations’ authority to pass education laws, and
requires BC to consult with the First Nations Education Authority on changes to provincial education.

17. BC Education Jurisdiction Legislation Introduced to House of Commons
– November 2006

18. Key Players
First Nations that vote on and ratify an Education Jurisdiction Agreement will have their names added to the schedule of the Federal Legislation and become Participating First Nations. A Participating First Nation can establish a Community Education Authority and clarify the relationship between the First Nation’s Government and the Community Education Authority through its law. The Education Jurisdiction Agreements and Supporting Legislation provide for the creation of a First Nations Education Authority (FNEA) and define its authority. This regulatory body is unique and created to specifically serve the interests of BC First Nations exercising Jurisdiction over education.
The next few slides will provide more information about the First Nations Education Authority, as it is a unique body.

19. About the FNEA
The First Nations Education Authority (FNEA) will have two representatives from each Participating First Nation.
It will formally come into existence once there are at least three Participating First Nations.
Each Participating First Nation will sign an Education Co- Management Agreement with the FNEA, which confirms the FNEA’s terms of reference.
Currently staff and NFNs are focusing on setting out the scope, form and functions of the FNEA, to be followed by costing. Many processes related to the FNESC, such as provincial curriculum and exam standards, have changed or evolved since jurisdiction was first established. It has been necessary to review the current status of Teacher Certification, School Certification (FNSA process), curriculum and exam standards and figure out what the functions of the FNEA would be in relation to current practices and processes.
Chalo School

20. More about the FNEA
The FNEA will provide support to Participating First Nations. It will only exercise jurisdiction over matters that have been delegated to it by Participating First Nations.
The powers that will be delegated to the FNEA include:
Teacher Certification,
School Certification, and
Curriculum and exam standards for courses required to graduate.
Since Participating First Nations will have seats on the FNEA, they will all be part of the process for determining standards.
Currently staff and NFNs are focusing on setting out the scope, form and functions of the FNEA, to be followed by costing. Many processes related to the FNESC, such as provincial curriculum and exam standards, have changed or evolved since jurisdiction was first established. It has been necessary to review the current status of Teacher Certification, School Certification (FNSA process), curriculum and exam standards and figure out what the functions of the FNEA would be in relation to current practices and processes.

21. Still more about the FNEA
If requested, the FNEA will also take on other duties, such as:
Certification of language and culture teachers,
Organizing bulk purchasing initiatives for Participating First Nations, and
Issuing First Nation graduation certificates.
Under BC-First Nation Education Agreement, the FNEA will also:
Set educational program standards,
Standardize an assessment process for literacy and numeracy for Participating First Nations Schools,
Play a role in consulting and being consulted by BC, and
Grant First Nations graduation certificates.

22. Where are we now? Federal self-government funding policy TEFA renewal
BC Jurisdiction-Related Advances
Terms of Reference for Education Jurisdiction Initiative
Advancing priority issues – funding and governance

23. Federal Self-Government Funding Policy
In 2015, Canada released a new policy
“Fiscal Approach for Self-Government Arrangements”
The 2015 policy confirmed that the federal Own Source Revenue (OSR) policy no longer applies to sectoral self- government agreements, including education jurisdiction agreements
In 2017, Canada established a collaborative process to develop fiscal policy for self-governing Indigenous Groups.
To date, there is no sign of any reversal of the decision to exempt education self-government agreements from the application of any federal OSR policy.
Note: FNESC had previously conducted an analysis showing that the federal OSR policy would have had a negative impact on First Nations. This analysis was instrumental in getting Canada to change its policy.

24. TEFA Renewal
BC First Nations have always been committed to ensuring all BC First Nation Schools are resourced appropriately to provide quality education to First Nation learners.
BC First Nations do not want funding to become the primary incentive for signing jurisdiction agreements.
In 2012, FNESC signed the Tripartite Education Framework Agreement (TEFA 1) linking First Nation school funding to the province’s Operations Grants Manual (OGM) with specific adaptations.
TEFA 1 provides a framework for education funding and policies to support the BC First Education System
TEFA 1 expires on June 30, 2018
This brought most schools close to comparable funding to provincial schools.

25. TEFA Renewal
Negotiations for TEFA 2 are underway. BC First Nations are insisting that TEFA 2 include funding for the following areas (which were not addressed in TEFA 1):
Language and culture
Technology
Operations and maintenance
Transportation
Adult education

26. TEFA Renewal – Why it matters?
Funding for implementing Education Jurisdiction will include two main components:
Education program funding
Once the First Nation school funding model under TEFA 2 has been determined, it will serve as the “program funding” for jurisdiction.
Governance funding
In jurisdiction negotiations, we have been focused on determining what funding is required to support the “governance”-related activities that are unique to “self- government” arrangements.
Because of the close connection between TEFA and education jurisdiction, it is easy to confuse the two initiatives.

27. Comparison – Jurisdiction & TEFA
TEFA
EDUCATION JURISDICTION
Status of Agreement
TEFA is a legal contract between Canada, BC and FNESC (on behalf of First Nations).
The Education Jurisdiction Agreements are “sectoral self-government arrangements”.
Law-making authority
There is no law-making authority under TEFA.
Participating First Nations will have law-making authority.
Term
TEFA 1 was a five-year agreement (2013 to 2017), which was extended for one year to The term of TEFA 2 is not yet known.
Education Jurisdiction Agreements do not have a termination date.
Approval process for First Nation
Band Council Resolution required to participate in TEFA.
Education Jurisdiction Agreements will be approved by First Nation members through a ratification vote.
It is important to understand the linkages between TEFA and Jurisdiction (mostly around funding as noted in the slide), however it is also important to understand that they are also very different. One of the biggest differences is that jurisdiction is a form of self-government with law-making powers. Later in the presentation there will be more detail about the differences between TEFA and Jurisdiction. Many people confuse the two initiatives.

28. Comparison – Jurisdiction & TEFA
Funding approach
Funding under TEFA 1 based on the funding formula used by BC to fund provincial school boards, with specific adaptations.
Funding likely to be determined by TEFA 2 funding methodologies, plus additional funds for governance costs.
Federal Own Source Revenue policy application
No – Federal Own Source Revenue (OSR) policy does not apply to TEFA funding.
No – Federal OSR policy will not apply to Education Jurisdiction Agreements.
Reciprocal tuition arrangement
Yes – First Nations under TEFA can sign Reciprocal Tuition Agreements with BC.
Yes – Participating First Nations can enter into reciprocal tuition arrangements.
Graduation
In development – interim process allows students at First Nations schools to obtain a Dogwood, if eligible.
Yes – Students may obtain a Dogwood, if eligible.
Establishing a Community Education Authority
No authority to establish a Community Education Authority under TEFA, but can establish a society under Societies Act.
Yes – A Participating First Nation can establish a Community Education Authority under its law.

29. Comparison – Jurisdiction & TEFA
Teacher Certification
No authority for First Nations to certify teachers under TEFA. Must hire teachers certified by BC or a recognized Canadian authority.
Yes – The FNEA will have authority to certify teachers.
School Certification
No – No authority to to certify schools under TEFA. (The FNSA monitors schools under its own school certification initiative.)
Yes – First Nations schools will have to be certified. The FNEA will have authority to certify schools.
Second level services
Yes – FNESC/FNSA provide second level services to First Nations.
Maybe – Participating First Nations may be able to access FNESC/FNSA services on a fee for service basis or if not already funded by Canada.
Relationship between TEFA and education jurisdiction
TEFA recognizes that First Nations may opt into the education jurisdiction initiative.
TEFA would no longer apply to a Participating First Nation, as it would be funded under education jurisdiction.

30. Ottawa Trip with students from Fort Nelson and Bella Bella– November 2006

31. BC Jurisdiction-Related Advances
The British Columbia-First Nation Education Agreement is one of the agreements attached to the Framework Agreement.
Since it was signed, BC has implemented two of the key commitments:
Reciprocal tuition (expanded to be available for all First Nations schools; and
Worked with FNESC to develop a course that is equivalent to English 12 – English First Peoples 12 (then went on to develop English First Peoples 10 and 11).
The landmark 2009 reciprocal tuition agreement allows the provincial government to pay the tuition fees of off-reserve students attending First Nations schools.
According to the agreement, the BC Ministry of Education provides full per pupil funding for students who are:
attending a First Nations school as of Sept. 30
school age as defined by the BC Ministry of Education (at least five years of age by Dec. 31 of the current school year and up to age 19 before July 1 of the current school year); and
ineligible for federal education funding.
These are students who would be funded by the Province of BC if they attended a public or independent school.
A First Nations school is only eligible for reciprocal tuition if it is certified under the School Assessment and Certification Process.
Nearly $15 million is transferred annually under reciprocal tuition.
*See our Reciprocal Tuition Handbook on the FNESC website for details.
(EDIT to shorten)

32. Education Jurisdiction Terms of Reference
With the resumption of jurisdiction negotiations in 2016, the Negotiating First Nations decided it would be helpful to develop Terms of Reference to guide the conclusion of the jurisdiction negotiations.
Education Jurisdiction Terms of Reference were initially adopted on January 23, 2017 and have been updated several times since then.
The Terms of Reference (TOR) describe the process for negotiations, including the composition of the negotiation team, decision making process and importantly the process for how to become an Negotiating First Nation

33. Priority Issues
Negotiating First Nations are working together to review and confirm that the templates for Education Jurisdiction Agreements and Funding Agreements continue to meet the objectives of First Nations’ Education Jurisdiction.
These template agreements, which were originally negotiated in 2005, need to be updated in some areas.
Over the next few months, we will be engaging in negotiations with with Canada and BC to amend the agreements as appropriate.
Two priority issues are: funding and governance, which are closely tied to one another.

34. Funding Issues 1. Funding issues: Scope and adequacy of funding
Terms and conditions of funding
Local Education Agreement obligations
Funding for Second Level Services
Funding for Community Education Agreements and the FNEA
Lessons learned from TEFA:
Volatility of funding
Funding areas where there is a shortfall

35. Governance Issues 2. Governance issues:
Capacity building – preparing for self-governance over education (including law-making, review and amendment)
Further explore relationship between First Nations and the Community Education Authorities or education advisory committees established by First Nations
FNEA – need to establish the FNEA infrastructure and ensure it works effectively with existing institutions (including FNESC and FNSA) to avoid duplication
Aqamnik School

36. Steps to Becoming a Participating First Nation
Overview
If a First Nation is interested the education jurisdiction initiative, it should take steps to become an Interested First Nation.
If a First Nation determines it wants to negotiate an Education Jurisdiction Agreement, it should take steps to become a Negotiating First Nation.
Once a Negotiating First Nation has concluded a ratified its Education Jurisdiction Agreement, it will be added to the schedule of the federal supporting legislation and become a Participating First Nation.
The process is open to more First Nations becoming Interested First Nations and to more Interested First Nations becoming Negotiating First Nations.

37. Becoming an Interested First Nation
If a First Nation wishes to become an Interested First Nation,
it must pass a Band Council Resolution (BCR) indicating its interest in exercising jurisdiction over education (the form for the BCR is set out in the Terms of Reference), and
forward the BCR to FNESC.
When FNESC receives the BCR, it will add the name of that First Nation to the list of Interested First Nations that it maintains.

38. Becoming a Negotiating First Nation
If an Interested First Nation wishes to become a Negotiating First Nation, it must
have a a First Nation school for students in K-4 to grade 12 (or some of these grades) on its reserve land,
pass a 2nd BCR , appointing a negotiator and providing the negotiator with instructions (the form for the BCR is set out in the Terms of Reference), and
provide formal notice to FNESC it wants to become a Negotiating First Nation.
Negotiating First Nations will then review the documentation to make sure everything is in order and confirm the First Nation as an Interested First Nation.

39. What happens as a Negotiating First Nation?
Negotiating First Nations will direct the negotiations to revise the template Education Jurisdiction Agreement and Funding Agreement.
Once the approach to determining program funding and funding for governance has been determined, Canada will provide each Negotiating First Nation with a funding offer.
Individual Negotiating First Nations would finalize their Education Jurisdiction Agreements and Funding Agreements, including funding amounts.
Canada and each Negotiating First Nation that is ready would initial an Education Jurisdiction Agreement and a Funding Agreement.
Each Negotiating First Nation, which has initialed agreements, would carry out community development work over a transition period (of up to 3 years) and prepare for ratification vote.

40. Becoming a Participating First Nation
Each Negotiating First Nation would hold ratification vote to approve:
its Education Jurisdiction Agreement, and
its Education Law-Making Protocol, establishing the process under which a First Nation will pass its own education law.
If ratification vote is successful (i.e. 50% plus 1 of those who cast a ballot, vote in favour of the Education Jurisdiction Agreement and the Education Law-Making Protocol):
The Negotiating First Nation and Canada would sign Education Jurisdiction Agreement and Funding Agreement,
The Negotiating First Nation and the FNEA would sign an Education Co-Management Agreement, and
Canada would pass an Order in Council (OIC, a form of cabinet directive) adding the name of the First Nation to Schedule 1 of the federal act.

41. Becoming a Participating First Nation
Once the name of the First Nation has been added to Schedule 1 of the federal act:
The First Nation becomes a “Participating First Nation”.
The First Nation can pass its own education laws.
This would mark the transition to the exercise of a First Nation’s jurisdiction over education.
Once three Participating First Nations are confirmed, the FNEA will formally come into existence.
Chalo School

42. First Education Jurisdiction Meeting 2007 – post Federal Legislation

43. Education Jurisdiction Resources
Community Template PowerPoint Presentation (this presentation)
Web Resources (jurisdiction videos, template BCRs and letters, checklist, etc.)
Jurisdiction Webpage:
A jurisdiction video file is also available online and is a great resource to provide a historical overview.
Additional opportunities to learn about education jurisdiction:
Jurisdiction Meetings (open to Negotiating First Nations and Interested First Nations)
Jurisdiction Toolkit (under development)
Community Templates and Resources
Comparison Table explaining the differences between Jurisdiction and the Tripartite Education Framework Agreement
BCR Wording Sample (1st BCR)
Mandate BCR Wording Sample (2nd BCR)
Draft Model First Nation Law-making Protocol
Draft Model First Nation Education Law
Transfer of Jurisdiction Handbook on Employment Issues (2008)
Memorandum for Negotiating First Nations (2008)
Transition to Jurisdiction Over Education (2006)
Reciprocal Tuition Backgrounder
Jurisdiction Agreements and Legislation
Overview of the Jurisdiction Agreements
Annotated CFNEJ Agreement (2007)
Annotated CFNEJ Funding Agreement (2007)
FNEA Terms of Reference
First Nations Jurisdiction Over Education (2009)  – (Compiled Legislation / Agreements)
Provincial Enabling Legislation, 2007: First Nations Education Act
Federal Enabling Legislation, 2006: First Nations Jurisdiction over Education in BC Act
Education Jurisdiction Framework Agreement, 2006
BC First Nation Education Agreement
Canada-First Nation Education Jurisdiction Agreement Template
Canada-First Nation Education Jurisdiction Funding Agreement Template
Implementation Plan Template
Additional Resources
Hansard, Bill C-34
Indian Act 114 to 122

44. 07/09/2018
Glossary of Key Terms
Community Education Authority = a separate legal entity established by a First Nation to operate the First Nation’s school (similar to a school board)
Education Jurisdiction Agreement = an agreement between a First Nation and Canada that recognizes the First Nation’s jurisdiction over education
Funding Agreement = a funding agreement between a First Nation and Canada that supports the implementation of that First Nation’s Education Jurisdiction Agreement
Education Law-Making Protocol = document that establishes the process under which a First Nation will pass its own education law (voted on at the same time as the Education Jurisdiction Agreement)
Negotiating First Nation = a First Nation that has agreed to negotiate an Education Jurisdiction Agreement with Canada
Participating First Nation = a First Nation that has ratified an Education Jurisdiction Agreement and whose name has been added to the Schedule attached to the federal enabling legislation

45. Thank You If you have any further questions, please contact:
Jan Haugen, Manager of Executive Services
First Nations Education Steering Committee
Suite 113 – 100 Park Royal South
West Vancouver, BC V7T 1A2
Phone:
Fax:

46. QUESTIONS & Discussion