Bill C-33
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2nd Session, 41st Parliament,
62-63 Elizabeth II, 2013-2014
house of commons of canada
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
Whereas the Government of Canada, in its Statement of Apology on June 11, 2008 to former students of Indian residential schools, acknowledged past failures in the field of First Nations education and committed to moving forward in partnership with First Nations in a spirit of reconciliation;
Whereas the Government of Canada rec-ognizes the importance of quality, child-centred education for the success of First Nations children;
Whereas First Nations education systems should be designed and implemented in accordance with the principle that First Nations have control of their children’s education;
Whereas First Nations must receive support that enables them to exercise their rights and fulfil their responsibilities relating to the elementary and secondary education provided to their children;
Whereas First Nations children attending schools on reserves must have access to education that is founded on First Nations history, culture and traditional values and enables them to participate fully in the social, economic, political and educational advancement of First Nations;
Whereas First Nations children attending schools on reserves must have access to elementary and secondary education that allows them to obtain a recognized high school diploma and to move between education systems without impediment;
Whereas parents and families of First Nations students must have the opportunity to play a meaningful role in the academic success of their children and to ensure that their children receive a quality education that is culturally appropriate;
Whereas First Nations education systems must receive adequate, stable, predictable and sustainable funding that provides for the teaching of First Nations languages and cultures as well as for education support services;
Whereas elementary and secondary education is an essential part of lifelong learning;
Whereas the Government of Canada and First Nations must have ongoing and meaningful dialogue with respect to the continuous improvement of education outcomes for First Nations children;
And whereas the Government of Canada acknowledges the protection provided for existing Aboriginal or treaty rights of the Aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Short title
1. This Act may be cited as the First Nations Control of First Nations Education Act.
INTERPRETATION
Definitions
2. The following definitions apply in this Act.
“council of a First Nation”
« conseil »
« conseil »
“council of a First Nation” has the meaning assigned by the definition “council of the band” in subsection 2(1) of the Indian Act.
“Department”
« ministère »
« ministère »
“Department” means the Department of Indian Affairs and Northern Development.
“education program”
« programme d’enseignement »
« programme d’enseignement »
“education program” includes the subjects that are taught at a school as part of a course of study, the learning objectives and the manner of assessing the students’ achievement of those learning objectives.
“First Nation”
« première nation »
« première nation »
“First Nation” has the meaning assigned by the definition “band” in subsection 2(1) of the Indian Act.
“First Nation Education Authority”
« autorité scolaire »
« autorité scolaire »
“First Nation Education Authority” means a body corporate whose name appears on the list referred to in section 29.
“First Nation school”
« école d’une première nation »
« école d’une première nation »
“First Nation school” means an elementary or secondary school situated on a reserve and administered under this Act by a responsible authority.
“Joint Council”
« Comité mixte »
« Comité mixte »
“Joint Council” means the Joint Council of Education Professionals established under section 10.
“Minister”
« ministre »
« ministre »
“Minister” means the Minister of Indian Affairs and Northern Development.
“parent”
« parent »
« parent »
“parent” means the father or mother of a person, including one who legally adopted the person and one who adopted the person in accordance with the custom of a First Nation, or any other person who has, in law or in fact, the custody of a person.
“reserve”
« réserve »
« réserve »
“reserve” means
(a) the lands described in the definition “reserve” in subsection 2(1) of the Indian Act; and
(b) the lands referred to in the definition “Kanesatake Mohawk interim land base” in subsection 2(1) of the Kanesatake Interim Land Base Governance Act.
“responsible authority”
« autorité responsable »
« autorité responsable »
“responsible authority” means the council of a First Nation or a First Nation Education Authority, as the case may be.
PURPOSE
Purpose
3. The purpose of this Act is to provide for the control by First Nations of their education systems by enabling councils of First Nations to administer schools situated on their reserves, to delegate that power to First Nation Education Authorities or to enter into tuition or administration agreements in accordance with this Act.
GENERAL
Rights of Aboriginal peoples
4. For greater certainty, nothing in this Act is to be construed so as to abrogate or derogate from the protection provided for existing Aboriginal or treaty rights of the Aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
Non-application of Act
5. This Act does not apply to
(a) a First Nation that has the power to make laws with respect to elementary and secondary education under an Act of Parliament or an agreement relating to self-government that is given effect by an Act of Parliament, including a First Nation that is named in the schedule to the Mi’kmaq Education Act or the schedule to the First Nations Jurisdiction over Education in British Columbia Act; or
(b) the Sechelt Indian Band established by subsection 5(1) of the Sechelt Indian Band Self-Government Act.
Capacity
6. For greater certainty, the council of a First Nation has, for the purposes of this Act, the capacity and the rights, powers and privileges of a natural person.
ACCESS TO EDUCATION
Access to elementary and secondary education
7. (1) The council of a First Nation must, in accordance with this Act, provide access to elementary and secondary education to any person who is ordinarily resident on a reserve of the First Nation and who is between the ages of six and 21 years.
Persons — four or five years of age
(2) If the council of a First Nation establishes an education program for persons who are four or five years of age and who are ordinarily resident on a reserve of the First Nation, the program must be offered to all such persons.
Certificate and diploma
(3) The education provided by virtue of subsection (1) must enable a student to obtain
(a) a certificate or diploma issued by the Minister of Education of a province;
(b) an International Baccalaureate diploma issued by the International Baccalaureate foundation; or
(c) any equivalent graduation certificate or diploma approved by the Minister.
Mandatory registration — age
8. (1) The parents of a person who is at least six years of age but not more than 16 years of age on the reference date fixed in accordance with subsection (5) must ensure that the person is registered for the school year at a First Nation school, at a school within a provincial school system or at any other school and must provide the council of the First Nation on whose reserve the person is ordinarily resident with written notice of the registration.
Mandatory attendance
(2) Subject to subsection 31(2), the parents must also ensure that the person regularly attends the school in question for the full school year, except as otherwise permitted by the applicable attendance policy.
Increased mandatory age — four, five or 17 years of age
(3) The council of a First Nation may make a bylaw that requires the parents of persons who are four, five or 17 years of age on the reference date and who are ordinarily resident on a reserve of the First Nation to meet the obligations under subsections (1) and (2).
Increased mandatory age — 18 years of age
(4) The council of a First Nation may make a bylaw that requires persons who are 18 years of age on the reference date and who are ordinarily resident on a reserve of the First Nation to register for the school year at a school referred to in subsection (1) and regularly attend that school for the full school year, except as otherwise permitted by the applicable attend-ance policy.
Reference date
(5) For the purposes of subsections (1), (3) and (4), the council of a First Nation may make a bylaw fixing for each school year the reference date, within the period starting on September 1 and ending on December 31, by which the age in question must be reached. In the absence of such a bylaw, the reference date is December 31.
Bylaws relating to persons four or five years of age
(6) A bylaw may be made under subsection (3) in relation to persons who are four or five years of age only if the council of a First Nation offers them access to an education program.
Free education
9. Subject to this Act, no tuition fees or any other expenses relating to attendance at a school are to be charged by the council of a First Nation or a First Nation Education Authority, as the case may be, to persons referred to in section 7.
JOINT COUNCIL OF EDUCATION PROFESSIONALS
Establishment
10. There is established a council, to be known as the Joint Council of Education Professionals, consisting of a minimum of five and a maximum of nine members, including a Chairperson and Vice-chairperson.
Role
11. (1) The role of the Joint Council is to advise the Minister, councils of First Nations and First Nation Education Authorities on any matter relating to the application of this Act.
Advice of Joint Council
(2) The Minister must seek the advice of the Joint Council when required to do so by this Act.
Additional functions
(3) The Minister may, following consultation with any entity representing the interests of First Nations that is prescribed by regulation, assign any other functions to the Joint Council that are related to its role.
Appointment of members
12. (1) The Governor in Council is to appoint one to four members on the recommendation of the Minister and 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 that is prescribed by regulation.
Chairperson
(2) The Governor in Council is to appoint the Chairperson on the recommendation of the Minister following consultation by the Minister with any entity representing the interests of First Nations that is prescribed by regulation.
Qualifications of members
(3) The Governor in Council must appoint as members persons with knowledge of or experience in elementary or secondary education.
Ineligibility
(4) A person is not eligible to be appointed or to continue as a member of the Joint Council if the person
(a) is neither a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act nor a Canadian citizen;
(b) is a member of the Senate, the House of Commons or the legislature of a province;
(c) is an employee or agent of Her Majesty in right of Canada; or
(d) is a member of the council of a First Nation or an elected member of the board of a tribal council.
Term of office
13. (1) Members hold office for a term not exceeding five years.
Staggered terms
(2) In determining the term of appointment of members, the Governor in Council must endeavour to ensure that the terms of no more than three members expire in any one calendar year.
Removal from office
14. A member may be removed from office at any time by the Governor in Council. However, the Chairperson or any member who was appointed after being nominated by an entity representing the interests of First Nations that is prescribed by regulation may be removed, on the recommendation of the Minister, only if the Minister first consults with such an entity.
Vice-chairperson
15. (1) The Joint Council is to select a Vice-chairperson from among its members.
Absence or incapacity of Chairperson
(2) In the event of the absence or incapacity of the Chairperson, or if the office of Chairperson is vacant, the Vice-chairperson may act as Chairperson. However, the Vice-chairperson is not to act in that capacity for a period exceeding 90 days without the approval of the Governor in Council.
Meetings
16. The Joint Council must meet at least three times a year at the times and in the locations that it considers appropriate.
Remuneration
17. (1) The members are to be paid the remuneration that may be fixed by the Governor in Council.
Travel and living expenses
(2) Members are to be paid the reasonable travel and living expenses incurred by them in the course of performing their functions while absent from their ordinary place of work, if full-time members, or ordinary place of residence, if part-time members.
Payable by Minister
(3) The remuneration and expenses payable under subsections (1) and (2) are to be paid by the Minister.
Rules
18. The Joint Council may make rules respecting the conduct of its meetings.
Administrative services
19. The Minister must provide administrative services to the Joint Council, the expense of which is payable under an appropriation by Parliament.
GOVERNANCE
Administration by the Council of a First Nation
Administration of schools
20. The council of a First Nation may administer one or more schools situated on a reserve of the First Nation.
Functions
21. (1) Subject to the regulations, the council of a First Nation must, in respect of each school that it administers,
(a) establish an annual budget and provide the Minister and the Joint Council with a copy;
(b) establish policies and procedures relating to financial management;
(c) establish education programs;
(d) establish the school policies, including registration and attendance policies;
(e) approve the school success plan referred to in paragraph 36(1)(a), provide the Minister and the Joint Council with a copy, make it public and monitor its implementation;
(f) monitor the quality of education at the school;
(g) manage the school’s property;
(h) approve the school safety plan referred to in paragraph 36(1)(i);
(i) prepare the school’s annual report and any other report required by the regulations, provide the Minister and the Joint Council with copies and make the reports public; and
(j) make public any information that is required by the regulations to be made public.
Language of instruction
(2) Subject to the regulations, the council of a First Nation is to offer English or French as the language of instruction and may, in addition, offer a First Nation language as a language of instruction.
First Nation language and culture
(3) The council of a First Nation may, as part of an education program, give students the opportunity to study a First Nation language or culture.
Contracts for services
22. The council of a First Nation may, in respect of a school that it administers, enter into contracts for the provision of services referred to in sections 32 and 33.
Agreements Respecting Tuition and Administration of Schools
Tuition agreement
23. Subject to the regulations, the council of a First Nation may enter into a tuition agreement with a responsible authority administering an elementary or secondary school situated on a reserve or with an entity administering a school regulated under provincial legislation for the provision by that authority or entity of an education program at the elementary or secondary level to persons referred to in section 7.
Administration agreement
24. Subject to the regulations, the council of a First Nation may enter into an agreement with an entity administering a school regulated under provincial legislation for the administration by the entity, in compliance with that legislation, of a school situated on a reserve of the First Nation.
Community Participation
Students, parents and elders
25. The council of a First Nation must, in respect of the schools that it administers, regularly give students and their parents as well as elders and other members of the First Nation the opportunity to provide advice on school success plans, school policies, extra-curricular activities and education programs, including school policies or education programs relating to First Nations languages or cultures.
Optional Activities
Fees and deposits
26. The council of a First Nation may require students of a school that it administers to pay any reasonable fees for participating in optional activities or a deposit of a reasonable amount for using educational materials and school equipment.
Administration by a First Nation Education Authority
Delegation — administration of schools
27. (1) The council of a First Nation may, by written agreement, delegate its powers and functions under sections 20 to 23, 25 and 26 to a body corporate incorporated under federal or provincial legislation if the agreement meets the conditions set out in the regulations. Any such delegation must be in respect of all of those powers and functions.
Copy of agreement
(2) The body corporate is to submit to the Minister and the Joint Council, within the time limit prescribed by regulation, a copy of the agreement and of any amendment to the agreement.
Designation of First Nation Education Authority
(3) After seeking the advice of the Joint Council, the Minister may, subject to the regulations, designate as a First Nation Education Authority the body corporate that is a party to the agreement.
Designation — obligation to advise
(4) The Minister must, without delay, advise in writing the body corporate in question of the designation as well as the council of each First Nation that is a party to the agreement and post on the list referred to in section 29 the name of the First Nation Education Authority and the name of each First Nation whose council is a party to the agreement.
Revocation of designation
(5) After seeking the advice of the Joint Council, the Minister may, subject to the regulations, revoke a designation if the agreement is no longer in compliance with subsection (1), if a temporary administrator recommends under subsection 42(1) that the designation be revoked or if the designated body corporate is dissolved.
Revocation — obligation to advise
(6) The Minister must, without delay, advise in writing the body corporate in question of the revocation as well as the council of a First Nation that is a party to the agreement and delete from the list referred to in section 29 the name of the First Nation Education Authority and the name of each First Nation whose council is a party to the agreement.
Deletion — name of First Nation
28. If the council of a First Nation ceases to be a party to the agreement, the Minister must delete the name of the First Nation from the list referred to in section 29.
List
29. The Minister must publish on the Department’s Internet site a list setting out the names of the First Nation Education Authorities and the name of each First Nation whose council is a party to an agreement entered into under section 27.
Persons not Ordinarily Resident on Reserve
Bylaws
30. (1) The council of a First Nation may make bylaws respecting the attendance at a school situated on a reserve of the First Nation of persons who are not ordinarily resident on that reserve.
Agreement
(2) If persons referred to in subsection (1) are registered at a school administered by a responsible authority, the responsible authority may enter into an agreement with the government of the province where those persons ordinarily reside for the payment by that government to the responsible authority of the cost of providing education to those persons.
Tuition fees
(3) A responsible authority may, in respect of a school that it administers, set tuition fees to be paid by persons referred to in subsection (1) who are registered at the school but the cost of whose education is not paid under an agreement entered into under subsection (2).
Home Schooling
Education — parents
31. (1) The parents of a person referred to in section 7 may provide, or cause to be provided, schooling to that person at home or elsewhere if the schooling is provided in accordance with
(a) in the case of a person registered at a First Nation school, the regulations; or
(b) in the case of a person registered at any other school, the legislation of the province in which the school is located, whether it is on or off a reserve.
Mandatory attendance
(2) The parents of a person receiving schooling under subsection (1) must ensure that the person regularly attends the place where they receive schooling for the full school year.
Supervision and support
(3) The entity administering the school where the person is registered must ensure that the schooling is supervised and may provide support for the schooling.
OPERATION OF SCHOOLS
Services
Services — students
32. A responsible authority must provide the persons registered in each school that it administers with the instruction and the access to educational materials, school equipment and transportation, as well as to any other service prescribed by regulation, that enable those persons to participate in the school’s education programs.
Services — schools
33. A responsible authority must provide each school that it administers with services relating to the management of human resources, of information and information technology, of finances and of property, as well as any other service prescribed by regulation, that enable the school to be managed and operated effectively.
Insurance — obligation
34. (1) A responsible authority must purchase and maintain, in respect of each school that it administers, insurance in accordance with the regulations.
Insurable interest
(2) A responsible authority has an insurable interest in respect of each school that it administers.
Director of Education
Supervision of schools
35. (1) A responsible authority is to employ a director of education to supervise the day-to-day management and operation of each school that it administers.
Responsibilities
(2) A director of education is, in respect of each school whose day-to-day management and operation they supervise, responsible for
(a) implementing the school policies established by the responsible authority;
(b) establishing school policies respecting students with special needs;
(c) managing human resources, including employing teachers and principals with a teaching certificate in good standing issued by the Minister of Education of a province or a recognized Canadian teacher certification authority and any other qualifications required by the regulations;
(d) subject to the minimum requirements respecting the number of instructional hours and instructional days, establishing for each school year the school terms, school holidays and professional activity days;
(e) establishing and maintaining a record of student registration and providing the Minister with a copy;
(f) establishing school policies respecting the management of information concerning students, teachers and other staff of the school, including the collection and protection of that information; and
(g) performing any other function assigned to them by the responsible authority.
Students with special needs
(3) School policies respecting students with special needs must enable those students to participate in the school’s education programs.
Alternative education
(4) Despite subsection (3), if a student has special needs that prevent them from participating in the school’s education programs, the director of education must ensure that they are provided with an education that takes account of their needs and abilities, at the school at which they are registered or elsewhere, at no cost to the student.
Member of council of a First Nation
(5) A director of education must not, in respect of a school whose day-to-day management and operation they supervise, serve as a member of the council of a First Nation if
(a) that council administers the school; or
(b) that council is a party to an agreement with a First Nation Education Authority for the administration by that Authority of the school under section 27.
Principal
Responsibilities
36. (1) Under the supervision of the director of education, the principal of a First Nation school is responsible for
(a) preparing and implementing a school success plan;
(b) implementing the school’s education programs;
(c) planning extra-curricular activities;
(d) planning the school’s daily schedule;
(e) supervising the teachers;
(f) ensuring that the students are evaluated, having regard to grade level, the school’s education programs and the culture of the First Nation in question;
(g) ensuring that regular reports on the students’ progress are sent to the students’ parents;
(h) implementing any policy applicable to the school, including its registration and attendance policies;
(i) preparing and implementing a school safety plan;
(j) providing a safe learning environment;
(k) attending to the students’ well-being;
(l) ensuring the maintenance of the school;
(m) providing the responsible authority, the director of education or the school inspector with any information that they consider necessary to enable them to exercise their powers or perform their functions; and
(n) performing any other function assigned to them by the responsible authority.
School success plan
(2) The school success plan is to include
(a) the school’s educational objectives and the time within which and manner in which they are to be achieved; and
(b) measures for
(i) preparing students who obtain a certif-icate or diploma referred to in subsection 7(3) to continue their education successfully at a post-secondary institution or to enter the work force, and
(ii) preparing students to continue their education successfully after completing any school year other than the year leading to the issuance of such a certificate or diploma.
Member of council of a First Nation
(3) The principal of a First Nation school must not serve as a member of the council of a First Nation if
(a) that council administers the school; or
(b) that council is a party to an agreement with a First Nation Education Authority for the administration by that Authority of the school under section 27.
School Inspector
Employment
37. (1) A responsible authority administering a school must employ a person, other than the school’s principal or director of education, as school inspector. The school inspector must conduct an inspection of the school in accord-ance with the regulations.
Qualifications
(2) The school inspector must be qualified to conduct inspections of schools in the province in which the school is located. However, if, in the Minister’s opinion, employing such a person would not be practical in the circumstances, the Minister may, on request, allow the responsible authority to employ a person who is otherwise qualified to conduct the inspection of a school.
Inspection
(3) The school inspector must verify compliance with the requirements under this Act and, in particular, must
(a) verify that the programs, policies, procedures and plans required to be established under this Act have been established and implemented;
(b) evaluate the extent to which the objectives of the school success plan referred to in paragraph 36(1)(a) have been achieved; and
(c) perform any other function prescribed by regulation.
Duty to assist
(4) The director of education, the principal, the council of the First Nation, the First Nation Education Authority, if the school is administered by such an Authority, and their employees must provide all reasonable assistance to enable the school inspector to perform their functions.
Inspection report
38. (1) A school inspector must, on completion of an inspection, prepare a report on the matters referred to in subsection 37(3) and include recommendations to remedy any problems of non-compliance with the requirements under this Act.
Submission of report to responsible authority
(2) The report must be submitted to the responsible authority administering the school. If the responsible authority is a First Nation Education Authority, it must also be submitted to the council of a First Nation that delegated its powers and functions under subsection 27(1) to the Authority for the administration of the school.
Submission of copy of report to Minister and Joint Council
(3) The responsible authority is to submit a copy of the report to the Minister within 10 days after the day on which it is received. If the responsible authority is the council of a First Nation, that council must also submit a copy to the Joint Council within the same period.
Compliance with Act
Remedial measures
39. (1) If a school is the subject of a report submitted under subsection 38(2) that identifies problems of non-compliance with the requirements under this Act, the responsible authority administering the school must ensure that measures are taken to remedy those problems.
Special advisor
(2) After seeking the advice of the Joint Council, the Minister may require the responsible authority to employ a special advisor to provide advice on the development and implementation of the measures referred to in subsection (1).
Temporary administrator
40. (1) After seeking the advice of the Joint Council, the Minister may appoint a temporary administrator to administer a school for a specified period if
(a) the Minister is not provided with an inspection report in respect of the school under subsection 38(3);
(b) after receiving an inspection report in respect of a school that identifies significant problems of non-compliance with the requirements under this Act, the Minister is of the opinion that adequate measures to remedy the problems have not been put in place;
(c) the Minister is of the opinion that immediate action is required to deal with a significant risk to student well-being and success at the school; or
(d) the Minister is of the opinion that immediate action is required to deal with a significant risk that the responsible authority will not be able to comply with the requirements under the Act due to its being in serious financial difficulties.
Qualifications
(2) The Minister must appoint as temporary administrator a person qualified to administer schools in the province in which the school is located or, if the appointment of such a person would not be practical in the circumstances, a person who is otherwise qualified to administer a school.
Powers and functions
(3) The temporary administrator may exercise any powers and perform any functions of the responsible authority that the Minister, after seeking the advice of the Joint Council, specifies and the responsible authority is not authorized to exercise those powers or perform those functions during the period for which the temporary administrator is appointed.
Removal of temporary administrator
(4) After seeking the advice of the Joint Council, the Minister may remove the tempo-rary administrator at any time.
Duty to assist
41. (1) The director of education, the principal, the teachers and the other staff of a school must provide all reasonable assistance to enable the temporary administrator of the school to exercise their powers and perform their functions and must provide any information relevant to the administration of the school that the temporary administrator requires. They must also comply with any direction given by the temporary administrator relating to the administration of the school.
Immunity
(2) No proceedings lie against any person referred to in subsection (1) for having in good faith provided the temporary administrator with assistance or information or complied with their directions.
Submission of report to Minister and Joint Council
42. (1) A temporary administrator must submit a report to the Minister and the Joint Council outlining the measures taken to remedy the problems that gave rise to their appointment, the results of those measures and any recommendations regarding future measures. The recommendations may include a recommendation that a designation made under subsection 27(3) be revoked.
Submission of copy of report to responsible authority
(2) A copy of the report must be submitted to the responsible authority administering the school. If the responsible authority is a First Nation Education Authority, it must also be submitted to the council of a First Nation that delegated its powers and functions under subsection 27(1) to the Authority for the administration of the school.
Report — timing
(3) The report and the copy must be submitted 30 days before the day on which the period specified under subsection 40(1) ends. They may be submitted on any earlier day if the temporary administrator is of the opinion that the problems have been remedied.
Minister’s response
(4) On receipt of the report and after seeking the advice of the Joint Council, the Minister may terminate the temporary administrator’s appointment if the Minister is satisfied that the problems in question have been remedied.
Revocation of designation
(5) On receipt of the report and after seeking the advice of the Joint Council, the Minister may, on the recommendation of the temporary administrator, revoke the designation as a First Nation Education Authority of the body corporate in question.
FUNDING
Amounts payable to responsible authorities
43. (1) The Minister must pay to a responsible authority, in respect of each school year and at the time and in the manner prescribed by regulation, the amounts determined in accord-ance with the methods of calculation established in the regulations for providing access to elementary or secondary education in accord-ance with this Act.
Methods of calculation — quality of services
(2) The methods of calculation must allow for the provision under sections 32 and 33 of services to each First Nation school and to persons referred to in section 7 attending such a school that are of a quality reasonably compa-rable to that of similar services generally offered in a similarly sized public school that is regulated under provincial legislation and is located in an analogous region.
Definition of “analogous region”
(3) For the purposes of subsection (2), “analogous region” means a region that is in the same province as the First Nation school in question and whose geographic and demographic characteristics are similar to those of the region in which that school is located.
First Nation language and culture
(4) The amounts payable under subsection (1) must include an amount to support the study of a First Nation language or culture as part of an education program.
Management of property
(5) The amounts payable under subsection (1) must also include an amount to enable a responsible authority to manage the property of any school that it administers.
Agreements regarding funding
44. (1) The Minister may enter into an agreement regarding funding, including with the government of a province or an entity administering a school that is regulated under provincial legislation, if, after seeking the advice of the Joint Council, the Minister is of the opinion that the agreement is necessary for carrying out the purposes of this Act.
Amounts payable under agreements
(2) The Minister must pay to the government of the province or the entity with which he or she has entered into such an agreement the amounts specified in or determined under the agreement.
Amounts payable — agreement under section 23 or 24
(3) The Minister must pay to a responsible authority that has entered into a tuition agreement under section 23 or to the council of a First Nation that has entered into an agreement under section 24 the amounts specified in or determined under the agreement.
Maximum amount
45. (1) The aggregate amount that may be paid by the Minister under this Act in any fiscal year must not exceed the amount that is specified by order of the Governor in Council for that fiscal year. The order is made on the recommendation of the Minister with the concurrence of the Minister of Finance.
Payments out of the Consolidated Revenue Fund
(2) Any amount payable by the Minister under this Act, except under section 19, may be paid out of the Consolidated Revenue Fund.
LIABILITY
Her Majesty not liable
46. (1) Her Majesty is not liable in respect of anything done or omitted to be done by a member of the Joint Council, the council of a First Nation, a First Nation Education Authority, a director of education, a principal, a school inspector or a temporary administrator — or by any person or body authorized by any of them — in the exercise of their powers or the performance of their functions under this Act.
No liability
(2) No action lies against Her Majesty, the Minister or any employee or agent of Her Majesty, a temporary administrator or a member of the Joint Council for anything done or omitted to be done in good faith in the exercise of their powers or the performance of their functions under this Act.
BYLAWS
Publication
47. (1) The council of a First Nation must publish a copy of every bylaw made by the council under this Act on its Internet site, in the First Nations Gazette or in a newspaper that has general circulation on a reserve of the First Nation, whichever the council considers appropriate in the circumstances.
Copies
(2) The council of a First Nation must also, on request by any person, provide the person with a copy of the bylaw.
For greater certainty
(3) For greater certainty, publishing a bylaw in accordance with subsection (1) does not discharge the council of the First Nation of its obligation under subsection (2) to provide a copy of the bylaw to any person who requests one.
Coming into force
(4) A bylaw made by the council of a First Nation under this Act comes into force on the day on which it is first published under subsection (1) or on any later day specified in the bylaw.
Duration of publication — Internet site
(5) A bylaw that is published by the council of a First Nation on its Internet site under subsection (1) must remain accessible in that manner for the period during which it is in force.
Not statutory instruments
(6) Bylaws made by the council of a First Nation under this Act are not statutory instruments for the purposes of the Statutory Instruments Act.
Proof
(7) In the absence of evidence to the contrary, a copy of a bylaw appearing to be certified as a true copy by an officer of the First Nation is proof of the original without proof of the officer’s signature or official character.
REGULATIONS
Minister
48. (1) After seeking the advice of the Joint Council, the Minister may make any regulations that are necessary for carrying out the purposes and provisions of this Act, including regulations
(a) respecting the approval of the equivalent graduation certificates and diplomas referred to in paragraph 7(3)(c);
(b) respecting the establishment of the annual budgets for the purposes of paragraph 21(1)(a), including their form and the matters that the budgets are to address;
(c) respecting reports for the purposes of paragraph 21(1)(i), including the matters that the reports are to address, and the information that must be made public for the purposes of paragraph 21(1)(j);
(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;
(e) respecting the management of human resources, including the employment of principals, directors of education, teachers and other school staff, the hiring process and the qualifications required of those persons;
(f) providing for the matters that must be addressed in the school policies referred to in paragraphs 21(1)(d) and 35(2)(b) and (f), the school success plan referred to in paragraph 36(1)(a) and the school safety plan referred to in paragraph 36(1)(i);
(g) respecting the management of a school’s property for the purposes of paragraph 21(1)(g), including its operation and maintenance;
(h) setting out the conditions that an agreement referred to in subsection 27(1) must meet and respecting designations made or revoked under subsections 27(3) and (5), respectively;
(i) respecting tuition agreements and administration agreements for the purposes of sections 23 and 24, respectively, including providing for the Minister’s approval of the agreements and the conditions of approval;
(j) respecting schooling provided at home or elsewhere for the purposes of section 31, including the supervision of that schooling and the circumstances in which the schooling may be discontinued;
(k) providing for minimum requirements for the number of instructional hours and instructional days in a school year;
(l) respecting insurance for the purposes of section 34;
(m) respecting the establishment and maintenance of records for the purposes of paragraph 35(2)(e), including providing for their content, and the provision of copies to the Minister;
(n) respecting school inspections, including when, and the manner in which, they are to be conducted and the preparation and submission of inspection reports for the purposes of sections 37 and 38, and specifying the qualifications of a person who is otherwise qualified for the purposes of subsection 37(2);
(o) establishing the methods of calculation referred to in subsection 43(1);
(p) respecting the collection, use, disclosure, retention and disposal of information for the purposes of this Act; and
(q) prescribing anything that by this Act is to be prescribed.
Representations of First Nations
(2) Before providing advice to the Minister for the purposes of subsection (1), the Joint Council must give First Nations an opportunity to make representations and must consider fully any representations made.
Incorporation by reference
(3) The regulations may incorporate by reference laws of a province, as amended from time to time, with any adaptations that the Minister considers necessary.
Provincial variation
(4) The regulations may vary from province to province.
REVIEW
Review
49. (1) The Joint Council must, five years after the day on which section 21 comes into force and every five years after that, undertake a review of the provisions and the operation of this Act and the regulations.
Representations of First Nations
(2) In carrying out the review, the Joint Council must give First Nations an opportunity to make representations and must consider fully any representations made.
Submission of report to Minister
(3) The Joint Council must, no later than one year after the day on which the review is undertaken, submit to the Minister a report on its review.
Report to Parliament
(4) The Minister must cause the Joint Council’s report to be tabled in each House of Parliament no later than six months after the day on which he or she receives the report or, if the House is not then sitting, on any of the first 15 days on which that House is sitting after the expiry of that period. The Minister may at the same time table his or her own report on the provisions and the operation of this Act and the regulations as well as on the operation of the Joint Council.
TRANSITIONAL PROVISIONS
Tripartite Education Framework Agreement
50. For the period beginning on the day on which this section comes into force and ending on June 30, 2017, this Act does not apply in any given school year in respect of the council of a First Nation or any person who is ordinarily resident on a reserve of that First Nation if, in the 12 months preceding June 30 of that given year,
(a) a school situated on a reserve of that First Nation received assistance or services under clause 4.1 or 4.2, respectively, of the Tripartite Education Framework Agreement between Her Majesty the Queen in right of Canada, Her Majesty the Queen in right of British Columbia and the First Nations Education Steering Committee that came into force on January 27, 2012; and
(b) the council of that First Nation or an entity acting on its behalf was a party to a funding arrangement that complied with clause 5.1 of that Agreement.
Schools operated by Minister
51. (1) The Minister has all the powers and functions of a responsible authority under this Act in respect of a school that, on the day on which this section comes into force, is being operated by the Minister under subsection 114(2) of the Indian Act, as it read immediately before the day on which section 54 comes into force.
Deemed compliance with subsection 7(1)
(2) The council of the First Nation on whose reserve a school referred to in subsection (1) is situated is deemed to have complied with subsection 7(1).
Transition plan
(3) The council of the First Nation may, in respect of the school, develop a transition plan in which it indicates
(a) the date as of which it intends to administer a school situated on a reserve of the First Nation;
(b) the date as of which a First Nation Education Authority to which it has delegated its powers and functions under subsection 27(1) is to administer the school; or
(c) the date on which an agreement entered into under section 23 or 24 takes effect.
Approval of transition plan
(4) The council of the First Nation must submit the plan to the Minister for approval and must provide the Joint Council with a copy.
Application of this Act
(5) Subsections (1) and (2) do not apply in respect of the school as of the date indicated in the approved transition plan.
Sections 114 to 122 of the Indian Act
52. Despite section 54, sections 114 to 122 of the Indian Act, as those sections read immediately before the day on which that section 54 comes into force, continue to apply to a First Nation, and to the Sechelt Indian Band established by subsection 5(1) of the Sechelt Indian Band Self-Government Act, in respect of which, immediately before that day, those sections 114 to 122 applied under an Act of Parliament or an agreement relating to self-government that is given effect by an Act of Parliament, as the case may be, to the extent provided for in that Act or agreement.
R.S., c. I-5
RELATED AMENDMENTS TO THE INDIAN ACT
53. Subsection 4(3) of the Indian Act is replaced by the following:
Certain sections inapplicable to Indians living off reserves
(3) Unless the Minister otherwise orders, sections 42 to 52 do not apply to or in respect of any Indian who does not ordinarily reside on a reserve or on lands belonging to Her Majesty in right of Canada or a province.
R.S., c. 32 (1st Supp.), s. 21; 1993, c. 28, s. 78 (Sch. III, item 74); 2002, c. 7, s. 184
54. The heading before section 114 and sections 114 to 122 of the Act are repealed.
CONSEQUENTIAL AMENDMENTS TO OTHER ACTS
1998, c. 24
Mi’kmaq Education Act
55. Section 11 of the Mi’kmaq Education Act is repealed.
2006, c. 10
First Nations Jurisdiction over Education in British Columbia Act
56. Section 23 of the First Nations Ju-risdiction over Education in British Columbia Act is replaced by the following:
Indian Act
23. Sections 114 to 122 of the Indian Act, as those sections read immediately before the day on which section 52 of the First Nations Control of First Nations Education Act comes into force, continue to apply to a participating First Nation and its members if
(a) the participating First Nation has not exercised its power under subsection 9(1); or
(b) the participating First Nation or the Authority, as the case may be, has enacted a First Nation law under subsection 9(1) that is not in force.
COORDINATING AMENDMENTS
C-428
57. (1) Subsections (2) and (3) apply if Bill C-428, introduced in the 2nd session of the 41st Parliament and entitled the Indian Act Amendment and Replacement Act (in this section referred to as the “other Act”), receives royal assent.
(2) If section 52 of this Act comes into force before section 4 of the other Act, then that section 4 and sections 14 to 18 of the other Act are deemed never to have come into force and are repealed.
(3) If section 52 of this Act comes into force on the same day as section 4 of the other Act, then that section 52 is deemed to have come into force before that section 4 and subsection (2) applies as a consequence.
COMING INTO FORCE
Order in council
58. (1) Subject to subsection (2), the provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Sections 52 to 56
(2) Sections 52 to 56 come into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
Explanatory Notes
Indian Act
Clause 53: Existing text of subsection 4(3):
(3) Sections 114 to 122 and, unless the Minister otherwise orders, sections 42 to 52 do not apply to or in respect of any Indian who does not ordinarily reside on a reserve or on lands belonging to Her Majesty in right of Canada or a province.
Clause 54: Existing text of the heading before section 114 and sections 114 to 122:
SCHOOLS
114. (1) The Governor in Council may authorize the Minister, in accordance with this Act, to enter into agreements on behalf of Her Majesty for the education in accordance with this Act of Indian children, with
(a) the government of a province;
(b) the Commissioner of Yukon;
(c) the Commissioner of the Northwest Territories;
(c.1) the Commissioner of Nunavut;
(d) a public or separate school board; and
(e) a religious or charitable organization.
(2) The Minister may, in accordance with this Act, establish, operate and maintain schools for Indian children.
115. The Minister may
(a) provide for and make regulations with respect to standards for buildings, equipment, teaching, education, inspection and discipline in connection with schools;
(b) provide for the transportation of children to and from school;
(c) enter into agreements with religious organizations for the support and maintenance of children who are being educated in schools operated by those organizations; and
(d) apply the whole or any part of moneys that would otherwise be payable to or on behalf of a child who is attending a residential school to the maintenance of that child at that school.
116. (1) Subject to section 117, every Indian child who has attained the age of seven years shall attend school.
(2) The Minister may
(a) require an Indian who has attained the age of six years to attend school;
(b) require an Indian who becomes sixteen years of age during the school term to continue to attend school until the end of that term; and
(c) require an Indian who becomes sixteen years of age to attend school for such further period as the Minister considers advisable, but no Indian shall be required to attend school after he becomes eighteen years of age.
117. An Indian child is not required to attend school if the child
(a) is, by reason of sickness or other unavoidable cause that is reported promptly to the principal, unable to attend school;
(b) is, with the permission in writing of the superintendent, absent from school for a period not exceeding six weeks in each term for the purpose of assisting in husbandry or urgent and necessary household duties;
(c) is under efficient instruction at home or elsewhere, within one year after the written approval by the Minister of such instruction; or
(d) is unable to attend school because there is insufficient accommodation in the school that the child is entitled or directed to attend.
118. Every Indian child who is required to attend school shall attend such school as the Minister may designate, but no child whose parent is a Protestant shall be assigned to a school conducted under Roman Catholic auspices and no child whose parent is a Roman Catholic shall be assigned to a school conducted under Protestant auspices, except by written direction of the parent.
119. (1) The Minister may appoint persons, to be called truant officers, to enforce the attendance of Indian children at school, and for that purpose a truant officer has the powers of a peace officer.
(2) Without restricting the generality of subsection (1), a truant officer may, subject to subsection (2.1),
(a) enter any place where he believes, on reasonable grounds, that there are Indian children who are between the ages of seven and sixteen years, or who are required by the Minister to attend school;
(b) investigate any case of truancy; and
(c) serve written notice on the parent, guardian or other person having the care or legal custody of a child to cause the child to attend school regularly thereafter.
(2.1) Where any place referred to in paragraph (2)(a) is a dwelling-house, a truant officer may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant issued under subsection (2.2).
(2.2) Where on ex parte application a justice of the peace is satisfied by information on oath
(a) that the conditions for entry described in paragraph (2)(a) exist in relation to a dwelling-house,
(b) that entry to the dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act, and
(c) that entry to the dwelling-house has been refused or that there are reasonable grounds for believing that entry thereto will be refused,
the justice of the peace may issue a warrant under his hand authorizing the truant officer named therein to enter that dwelling-house subject to such conditions as may be specified in the warrant.
(2.3) In executing a warrant issued under subsection (2.2), the truant officer named therein shall not use force unless he is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
(3) Where a notice has been served in accordance with paragraph (2)(c) with respect to a child who is required by this Act to attend school and the child does not within three days after the service of notice attend school and continue to attend school regularly thereafter, the person on whom the notice was served is guilty of an offence and liable on summary conviction to a fine not exceeding five dollars or to imprisonment for a term not exceeding ten days or to both.
(4) Where a person has been served with a notice in accordance with paragraph (2)(c), it is not necessary within a period of twelve months thereafter to serve that person with any other notice in respect of further non-compliance with this Act, and whenever that person within the period of twelve months fails to cause the child with respect to whom the notice was served or any other child of whom he has charge or control to attend school and continue in regular attendance as required by this Act, that person is guilty of an offence and liable to the punishment imposed by subsection (3) as if he had been served with the notice.
(5) A child who is habitually late for school shall be deemed to be absent from school.
(6) A truant officer may take into custody a child whom he believes on reasonable grounds to be absent from school contrary to this Act and may convey the child to school, using as much force as the circumstances require.
120. (1) Where the majority of the members of a band belong to one religious denomination, the school established on the reserve that has been set apart for the use and benefit of that band shall be taught by a teacher of that denomination.
(2) Where the majority of the members of a band are not members of the same religious denomination and the band by a majority vote of those electors of the band who were present at a meeting called for the purpose requests that day schools on the reserve should be taught by a teacher belonging to a particular religious denomination, the school on that reserve shall be taught by a teacher of that denomination.
121. A Protestant or Roman Catholic minority of any band may, with the approval of and under regulations to be made by the Minister, have a separate day school or day school classroom established on the reserve unless, in the opinion of the Governor in Council, the number of children of school age does not so warrant.
122. In sections 114 to 121,
“child” means an Indian who has attained the age of six years but has not attained the age of sixteen years, and a person who is required by the Minister to attend school;
“school” includes a day school, technical school, high school and residential school;
“truant officer” includes
(a) a member of the Royal Canadian Mounted Police,
(b) a special constable appointed for police duty on a reserve, and
(c) a school teacher and a chief of the band, when authorized by the superintendent.
Mi’kmaq Education Act
Clause 55: Existing text of section 11:
11. Sections 114 to 122 of the Indian Act do not apply to a community or its members.
First Nations Jurisdiction over Education in British Columbia Act
Clause 56: Existing text of section 23:
23. On the coming into force of a First Nation law, sections 114 to 122 of the Indian Act cease to apply to the participating First Nation and its members.