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Re: Implementing Recommendations on First Nations Special Education

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November 20, 2017

Hon. Mitzie Hunter
Minister of Education
Mowat Block 22nd Flr
900 Bay St
Toronto,ON M7A 1L2

Dear Minister Hunter:

Re:      Implementing Recommendations on First Nations Special Education

I hope this letter finds you well. As you know, Ontario just celebrated Treaties Recognition Week to promote public education and awareness about treaties and recognize the importance of honouring treaty rights and relationships in the journey towards reconciliation. Education is an inherent treaty right for First Nations which both the federal and provincial governments must honour. This is why I am writing to ask that you implement the recommendations in the May 2017 Ontario First Nations Special Education Review Report (the FN Special Education Report)[1] that relate to concerns with Ontario’s role in First Nations special education. I am seeking your commitment to resolve these issues as quickly as possible, and by no later than January of 2018.

The Ontario Human Rights Commission’s (OHRC) 2017-2022 Strategic Plan identifies both education and Indigenous reconciliation as priority focus areas. I know that the Ministry of Education is also committed to improving Indigenous education through measures such as the Indigenous Education Strategy, The Journey Together – Ontario’s Commitment to Reconciliation with Indigenous Peoples, the First Nations Lifelong Learning Table and the Master Education Agreement with the Anishinabek Nation.

The recent FN Special Education Report, the product of in-depth and collaborative work by First Nations educators and administrators from across the province, shows that particular attention needs to be paid to the intersectional needs of First Nations students with special needs.

The FN Special Education Report identifies serious human rights concerns with Ontario’s approach to First Nations children with special education needs attending provincial schools, and off-reserve First Nations students who wish to attend First Nations schools. This directly affects the services available to First Nations children with special needs. It also has an adverse effect on the level and quality of education services available for other First Nations children. More specifically, concerns raised include:

  1. Public school boards need to be culturally responsive to better meet the needs of First Nation learners; 
  2. Improvements in consistent and clear communication between schools, school boards and First Nations must be made to alleviate issues of inadequate provincial support;
  3. The province must work in partnership with First Nations to address these shortcomings through developing appropriate policy and regulations;
  4. Provincial regulations must be changed to prevent school boards from overcharging First Nations for special education services and to require that First Nations students with special needs be treated equitably in provincial schools; and
  5. Steps must be taken to ensure that funding automatically flows to a First Nations school for any off-reserve student attending the First Nations school.

A detailed breakdown of the recommendations in the FN Special Education Report that relate to Ontario is provided in Appendix A.

The recommendations were incorporated into a Chiefs of Ontario position paper[2] and received the full support of First Nations leadership from all of Ontario at the recent All Ontario Chiefs Conference held by the Chiefs of Ontario in June. In Resolution 38/17, the Ontario Chiefs in Assembly declared that they “fully support and accept the recommendations.”

Under human rights laws, students with special needs are entitled to meaningful access to the same level of education available to other students [Moore v. British Columbia (Education), 2012 SCC 61]. Meaningful access includes taking positive steps to remove barriers and to remedy the adverse impact of neutral practices.

Further, funding models for Indigenous children’s services that result in service levels below the provincial standard or what non-Indigenous children receive may be discriminatory. Higher levels of funding may even be necessary to overcome historic disadvantage and meet the unique challenges that Indigenous children face. Jordan’s Principle confirms that First Nations children should not experience gaps in levels of service, including in education, due to funding disputes between the provincial and federal governments or within government departments. See First Nations Child and Family Caring Society of Canada v Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2.

The FN Special Education Report says that First Nations children living off a reserve who want to attend a school on reserve may not be able to, because local school boards may not be flowing the funding they receive from the province for such students to First Nations schools. If the First Nations school admits them without receiving that funding, it may not be able to meet their special education needs. There will also be fewer funds available to provide services to all First Nations students. In contrast, funding flows automatically between school boards when non-Indigenous students attend school outside of their local board’s jurisdiction. This discrepancy may result in a claim of unequal treatment under Ontario’s Human Rights Code.

Similarly, the amount a provincial school board can charge the province to meet the needs of a child with high needs is capped, but some school boards are charging First Nations more than the cap to meet the needs of one their children. This, too, could result in a claim of discrimination.

The FN Special Education Report also states that First Nations have increased need for supports to achieve substantive equality. Supports are not consistently available in provincial schools, and where the supports are being paid for by First Nations, they are not always used to meet their students’ needs.

In addition to raising concerns based on Ontario’s Human Rights Code and Ontario’s treaty commitments, this situation is inconsistent with international human rights obligations towards Indigenous children and children with disabilities as recognized in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the United Nations Convention on the Rights of the Child and the United Nations Convention on the Rights of Persons with Disabilities. For example, UNDRIP emphasizes that Canada (including the provinces) has a responsibility to make sure that Indigenous children have the right to all levels and forms of State education without discrimination, and access, when possible, to an education in their own culture and provided in their own language (Article 21). Article 22 affirms that particular attention must be paid to the rights and special needs of Indigenous children and persons with disabilities in implementing UNDRIP.

Further, First Nations students, including students with disabilities, continue to experience the impact of the residential school system. The Truth and Reconciliation Report Calls to Action stress the importance of addressing the legacy of residential schools in the current education system, particularly related to First Nations language, culture and history. This makes it all the more important that off-reserve children who wish to attend First Nations schools are able to do so without barriers caused by lack of provincial funding.

Following the Bushie Inquest into the deaths of seven First Nations students attending school in Thunder Bay, the Coroner’s jury released 145 recommendations aimed at preventing similar tragedies from occurring in the future. Several of these relate to the funding and tuition structure for First Nations students, and emphasize that a child’s education should not be determined by whether they are First Nations or live on a reserve.

Ontario’s domestic and international human rights obligations and recommendations from the TRC Report and Bushie Inquest all underscore the need for Ontario to act quickly to implement the recommendations in the FN Special Education Report. As you will see from Appendix A, recommendations 11 to 16 are concrete changes that could be implemented now. That is why I am calling on you to implement the necessary changes by January 2018. Doing so will help the government comply with its human rights and treaty obligations and reach its important goals of promoting reconciliation and closing the achievement gap between Indigenous students and all students.

Thank you for your attention to this matter. I look forward to receiving a response at your earliest convenience. If you wish to discuss this further, please do not hesitate to contact me. In keeping with the OHRC's commitment to public accountability and its duties in serving the people of Ontario, this letter may be made public.

Yours sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner
Ontario Human Rights Commission

cc:       Hon. Yasir Naqvi, Attorney General
Chief Stacey Laforme, Mississaugas of the New Credit First Nation
Chief Isadore Day, Chiefs of Ontario
Sylvia Maracle, Ontario Federation of Indigenous Friendship Centres
Chief Commissioner Marie-Claude Landry, Canadian Human Rights Commission
OHRC Commissioners

 

APPENDIX A – Ontario First Nations Special Education Review Report Recommendations Applicable to the Province of Ontario

The Provincial Education Regulations section, recommendations 11 – 16, is directed at the Ontario government. The recommendations include proposed changes to regulations for the tuition funding structure, to make sure the level of funding provided for on-reserve students attending provincial schools is the same as for First Nations students living off reserves, or non-First Nations students.

The Report recommends a new tuition funding arrangement to ensure the flow of funding for First Nations students who live off reserve and want to attend a First Nations school on a reserve. It also recommends that First Nations be notified of special education decisions, subject to the consent of the parents, so they can provide additional supportive services to these students.

Recommendation 11: That the fees regulation under Ontario’s Education Act be amended to cap the fees that provincial school boards can charge for special education at the level that the school board would receive from the province for an equivalent resident pupil of the board. First Nations must continue to be able to negotiate for extra services above and beyond those normally provided by a school board.

Recommendation 12: That education regulations be amended to state that a board shall provide at least the same level and quality of services to First Nations tuition-fee-paying pupils as it would to its resident pupils, including special education services.

Recommendation 13: That the Ontario Ministry of Education work with First Nations and First Nations Organizations to develop a protocol for school boards to follow to better welcome, integrate, and support First Nations staff housed in provincial schools.

Recommendation 14: That a working group be struck to develop amendments to Ontario regulations to recognize the right of First Nations to be notified of decisions about the special education services to be provided to their members and to appeal those decisions, subject always to a parent’s right to override any actions by the First Nation in this regard and to opt-out of any future involvement by the First Nation.

Recommendation 15: That Ontario amend its education regulations to require school board registration forms to authorize school boards to share student information with the relevant First Nation, notify the First Nation about special education identification and placement decisions, and allow the First Nation to appeal those decisions, all subject to a parent’s right to opt-out of these items on the registration form.

Recommendation 16: That the Ontario Ministry of Education direct tuition funding for First Nations students who reside off reserve and who wish to attend or who are attending a First Nations school to the First Nations school if no agreement has been reached for a school board to flow funds to the First Nations school, and to amend education regulations to allow this if necessary.

Recommendations 2 – 4 are broad recommendations to ensure equality and appropriate levels of service for First Nations students. They may apply to both the federal and provincial governments.

Recommendation 2: That the terms and conditions of the special education program include the objective of achieving equality of educational outcomes between First Nations children and other children with special needs and require that adequate funding be provided to achieve that objective.

Recommendation 3: That funding levels be based on a holistic and bottom-up assessment of all needs and be updated annually to address increases in population, special education costs, and need in a process that is transparent and led by First Nations.

Recommendation 4: That special education funding levels be set in a process that explicitly ensures that all needs are met, including, but not limited to:

…

(h) Staff hired by First Nations to be housed in provincial schools to provide specialized support, advocate for student needs, and monitor the level and quality of services being provided;

…

(j) Resources for First Nations to advocate for students in provincial schools to ensure that they are receiving the services they need, including through formal appeals under the Ontario Education Act;

…

(l) Resources, support, and guidance for parents to advocate for the interests of their children with special needs and to take advantage of procedures that are available to them to appeal decisions regarding their children, including sufficient support to overcome the present and past systemic racism that impedes some parents in being able to advocate for their children;

The Report recommends that recommendations 11-16 and 2 be implemented before the 2017-2018 school year, a deadline which has now passed, and that recommendations 3 and 4 be implemented before the 2018-2018 school year:

Recommendation 27: That implementation occur by the following target dates:

• Prior to the 2017-2018 school year for recommendations regarding policy or regulatory changes (#s 1, 2, 7, 9, & 11-16);

• Prior to the 2018-2019 school year for the creation of a new funding model and new reporting system (#s 3-6, 8, 10, 17-19, & 25-26);