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EDUCATION JURISDICTION FRAMEWORK AGREEMENT
Agreement Signed by Minister of Indian Affairs and Northern Development, Minister of Education and First Nations Education Steering Committee British Columbia, Canada 5 July 2006
The negotiation of this Agreement is guided by the principlesestablished in the tripartite Memorandum of Understandingwith Respect to First Nations Authority and Jurisdictionover Education of July 24, 2003, signed by Canada, BritishColumbia and FNESC on behalf of its members;
...
2.1 The purposes of this Agreement are:
a) to establish a process to enable the recognition ofJurisdiction by a Participating First Nation overEducation on First Nation Land as set out in a Canada-First Nation Education Jurisdiction Agreement;
b) to outline the responsibilities of each of the Parties tosupport the exercise of Jurisdiction by ParticipatingFirst Nations over Education on First Nation Land;
c) to confirm the steps, including the recommendation ofFederal Enabling Legislation to Parliament, requiredfor ratification of a Canada-First Nation EducationJurisdiction Agreement; and
d) to confirm the commitment of British Columbia torecommend Provincial Enabling Legislation to theLegislature.
3.1 Upon receipt of a minimum of 12 band councilresolutions from Interested First Nations, Canada willprepare and recommend Federal Enabling Legislation toParliament.
3.2 Subject to obtaining the approval of the Federal Cabinet,Canada will consult with FNESC and British Columbiaduring the drafting of Federal Enabling Legislation.
3.3 Federal Enabling Legislation will:
a) enable subsequently ratified Canada-First NationEducation Jurisdiction Agreements to be approved,
given effect and declared valid by order-in-council;
b) establish Participating First Nations as having thecapacity, rights, powers and privileges of a naturalperson for the purposes of exercising the duties, powersand functions set out in Canada-First Nation EducationJurisdiction Agreements;
c) establish the First Nation Education Authority and setout its powers, duties, functions and composition;
d) enable Participating First Nations to establishCommunity Education Authorities in accordancewith Canada-First Nation Education JurisdictionAgreements;
e) provide that sections 114 to 122 of the Indian Act will nolonger apply to a Participating First Nation after it haspassed a First Nation Education Law;
f) provide that the Indian Act, and any related regulationsor orders, will continue to apply to Participating FirstNations, their Members and First Nations Land, exceptas set out in subparagraph (e);
g) give effect to consequential amendments to federallegislation in order to implement the Canada-FirstNation Education Jurisdiction Agreements;
h) provide that Federal Enabling Legislation prevails overother federal legislation to the extent of any conflict;and
i) provide that Canada-First Nation Education JurisdictionAgreements are binding on third parties.
3.4 Following the passage of Federal Enabling Legislation, British Columbia will prepare and recommend Provincial Enabling Legislation to the Legislature in accordance with the commitments set out in the British Columbia-First Nation Education Agreement.
3.5 Subject to obtaining the approval of the Attorney General of British Columbia, British Columbia will consult with FNESC and Canada during the drafting of Provincial Enabling Legislation.
3.6 Provincial Enabling Legislation prevails over other provincial laws to the extent of any conflict.
3.7 FNESC will work with Interested First Nations to develop templates for a First Nation Education Law, an Education Co-Management Agreement, a First Nation Education Law Making Protocol, roles and responsibilities for Community Education Authorities, a community consultation and information process and an Interested First Nation ratification process.
3.8 Prior to the introduction of Federal Enabling Legislation, FNESC will work with Canada and British Columbia to ensure the First Nation Education Authority will have the capacity to carry out its responsibilities set out in the Canada-First Nation Education Jurisdiction Agreement and other matters as agreed to by the parties.
4.1 Following the passage of Federal Enabling Legislation, Canada will negotiate and attempt to reach agreement on a Canada-First Nation Education Jurisdiction Agreement with each Interested First Nation.
4.2 Canada intends that the implementation plan to be attached to each Canada-First Nation Education Jurisdiction Agreement will be based on the template implementation plan set out in Schedule D.
4.3 Upon ratification of a Canada-First Nation Education Jurisdiction Agreement by a Participating First Nation and Canada, Canada intends to commence negotiations and attempt to reach agreement on a funding agreement with the Participating First Nation in accordance with the provisions of the Canada-First Nation Education Jurisdiction Agreement. For greater certainty, Canada intends that the template funding agreement set out in Schedule C will form the basis of the first education funding agreement contemplated by the Canada-First Nation Education Jurisdiction Agreement.
5.1 Canada and FNESC will negotiate and attempt to reach agreement on a one-time funding arrangement to support the activities to be undertaken by FNESC and Interested First Nations set out in paragraphs 3.7 and 3.8.
5.2 Every year, or other time periods as may be agreed to in writing, Canada and the First Nation Education Authority will negotiate and attempt to reach agreement on a funding agreement to support the First Nation Education Authority in carrying out its responsibilities set out in Canada-First Nation Education Jurisdiction Agreements.
5.3 The financial provisions of this Agreement applicable to Canada are subject to the appropriation of funds by the Parliament of Canada.
6.1 In the event of a dispute between the Parties arising out of or relating to this Agreement, the Parties agree to meet, negotiate in good faith and attempt to resolve the dispute amicably.
7.1 This Agreement is not a treaty or a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982.
7.2 This Agreement does not, of its own force and effect, recognize, affirm or deny any aboriginal or treaty rights of a Participating First Nation, nor does it abrogate or derogate from the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
7.3 Nothing in this Agreement will be construed so as to affect in any manner the Constitution of Canada.
7.4 Nothing in this Agreement restricts Participating First Nations from entering into other agreements with Canada, British Columbia or other parties with respect to any matter, including those not covered in this Agreement.
7.5 The term of this Agreement is seven years, commencing on the date that it is signed by all Parties, unless extended or renewed in writing by the Parties.
7.6 Six months prior to the expiration of the term set out in paragraph 7.5, the Parties will meet to discuss the necessity of extending or renewing this Agreement.
7.7 The Parties will each designate a representative to review and monitor progress towards the completion of the responsibilities set out in this Agreement, with meetings to be held on a quarterly basis or at intervals as otherwise agreed to by the parties, and the forum for such meetings to be an existing forum or as otherwise agreed by the Parties.
7.8 Subject to paragraphs 7.9 and 7.10, this Agreement may be amended with the written consent of each Party.
7.9 Schedule “A” (the British Columbia First Nation Education Agreement) may be amended with the written consent of British Columbia and FNESC. Prior to British Columbia executing an amendment to Schedule “A”, British Columbia will notify and give reasons for the intended amendment to Canada.
7.10 Schedule “B” (the Canada-First Nation Education Jurisdiction Agreement) and Schedule “C” (the Education Jurisdiction Funding Agreement) may be amended with the written consent of Canada and FNESC. Prior to Canada executing an amendment to Schedule “B”, Canada will notify and give reasons for the intended amendment to British Columbia.
7.11 An amendment to this Agreement takes effect on a date agreed to by the Parties to the amendment, but if no date is agreed to, on the date that the last Party required to consent to the amendment gives its consent.
7.12 This Agreement is the entire agreement among the Parties in respect of the subject matter of this Agreement and, except as set out in this Agreement, there is no representation, warranty, collateral agreement, condition, right, or obligation affecting this Agreement.
7.13 A provision of this Agreement, or the performance by a Party of an obligation under this Agreement, may not be waived unless the waiver is in writing and signed by the Party or Parties giving the waiver.
7.14 No written waiver of a provision of this Agreement, of performance by a Party of an obligation under this Agreement, or of default by a Party of an obligation under this Agreement, will be a waiver of any other provision, obligation, or subsequent default.
7.15 In this Agreement:
a) unless it is otherwise clear from the context, a reference to a “Part” or “paragraph” means a Part or paragraph of this Agreement;
b) headings and sub-headings are for convenience only, do not form a part of this Agreement and in no way
define, limit, alter or enlarge the scope or meaning of
any provision of this Agreement;
c) unless otherwise provided, a reference to a statute includes every amendment to it, every regulation made under it and amendment made to such regulation, and any successor legislation;
d) unless it is otherwise clear from the context, the use of the singular includes the plural and the use of the plural includes the singular; and
e) where one or more Parties are mentioned in a provision of this Agreement, this will not be interpreted as implying or inferring any obligation or acknowledgement by any Party not mentioned in that provision.
7.16 Sections 26 to 28 of the Interpretation Act (Canada) apply to the computation of time for the purposes of this Agreement.
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Thiis landmark agreement was signed following six years of negotiation between the Federal and Provincial Governments and First Nations. It is a significant landmark recognising First Nations’ jurisdiction over education on reserves in Canada.
The full text of this document is available online at: <http://www. fnesc.ca/Attachments/Jurisdiction/ed_agreement.pdf>
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2006/60.html