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2013-07-24 Legal Memo Ed Info Systems Final (3)

2013-07-24 Legal Memo Ed Info Systems Final (3)

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Published by Russell Diabo

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Published by: Russell Diabo on Jul 30, 2013
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09/24/2013

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1
 Assembly of First Nations
Legal Memorandum
Privileged and Confidential”
 
TO:
Jon Thompson
CC:
Peter Dinsdale, Tim Thompson
FROM:
Stuart Wuttke
 DATE:
July 24, 2013
 RE: AANDC Education Information System ProjectSummary
The AFN legal department was asked to provide an analysis on Aboriginal Affairs and NorthernDevelopment’s (AANDC) Education Information System (EIS). The specific concerns raised byAFN’s Education Unit are: the potential of the EIS project to violate the federal and provincialprivacy laws; unknown use of the data provided by First Nations; the potential of the EIS tointerfere with the exercise of the Aboriginal right to self-government; and the lack of consultation and accommodation of First Nations interests surrounding the EIS. This memoaddresses these concerns and provides a potential framework for First Nations to seek changesto the policy to address their concerns and/or legally challenge the EIS program.
The EIS:
The EIS is AANDC’s attempt to consolidate reporting by First Nations schools by replacing thepaper record keeping system with an electronic system. AANDC set aside $27 million over 5years for development and implementation of the EIS, which is currently in its fourth year of development and implementation began in the fall of 2012. AANDC’s objective for developingEIS was to create a database capable of combining all education related reports into a singlenational system that is web based in order to enhance the Department’s ability to extracteducation related data from First Nations.AANDC anticipates that the EIS will streamline the process for obtaining funds for educationprograms. First Nations would be able to use the system to submit proposals and reports foreducation programs. The system would contain features that could make the reporting processeasier, timelier, and reduce the work burden for First Nations and AANDC. A key stated featurefor development is the ability to generate and analyze aggregate results on national and
 
2regional education outcomes and enable departmental officials to advocate more effectively tocentral agencies within the federal government.EIS will be owned, operated and controlled by AANDC. However, the data is expected to bedirectly populated by the First Nations. The data will be related to the education records andoutcomes of all First Nations students, details of teaching staff and their salaries and otherprivate information of First Nations students and employees. The EIS is being sold as a singleintegrated education dataset, performance measurement and management system. The mostnotable difference is that under the current paper system, education data is owned by FirstNations Chiefs and Councils. In the new system, AANDC will own and control a complete copyof the dataset.As the implementation of EIS is rolled out, First Nations are becoming increasingly concernedthat the data collected under the EIS will not be readily useable by First Nations, nor containthe data and information First Nations require to monitor program effectiveness and thequality of education. First Nations are concerned that the data of the EIS will be limited to thenominal role, special education reporting, staffing and proposals, which is tied to AANDC’sfunding process. The annual funding is based on the number of students enrolled on one‘representative’ day in early September or October (nominal roll).
1
There is no provision in thecurrent system to provide funding for children who are added after that day and no provisionto recoup funds provided to provincially run schools if students drop out of school after thenominal roll day. These all reinforce the perception of AANDC control over First Nationeducation, rather than supporting and moving towards First Nation control over First Nationeducation.Limited funding and funding timing issues seriously hampered the ability of First Nations tobecome fully involved in the development of the EIS. First Nations were provided with limitedfunding to participate, making it virtually impossible to review materials and provide input inany meaningful way. This left First Nations disheartened with a process and circumstances thatprohibited their genuine feedback and use of their knowledgeable expertise. This was furtherexacerbated when feedback offered by First Nations didn’t appear to be reflected in theongoing development of the EIS.Despite limited First Nations consultation and engagement, AANDC continued to develop theEIS and it is now clear that the Department is moving forward with its agenda for theimplementation of the EIS database regardless of concerns that had been repeatedly raised byFirst Nations. AANDC justifies imposing the implementation of this system on First Nationsbecause of pressures it is receiving to address accountability and transparency issues in itscurrent reporting practices. These pressures, the AANDC contends, are a result of departmentalaudits, reports from the Auditor General and from the Treasury Board.
1
The Elementary/Secondary Education Program - National Program Guidelines 2013-2014 states that the AANDCregional office will establish the level of attendance during this period that is required for a student to beconfirmed on the nominal role for funding purposes (e.g., the number of days in September and October, or apercentage in each month). http://www.aadnc-aandc.gc.ca/eng/1362163764112/1362163843424.
 
 
3AANDC asserts that EIS is exempt from the duty to consult given it is implementing a newsystem rather than a new program. First Nations assert that this is bureaucratic arrogance incontradiction to the Government’s own principles and guidelines on the duty to consult andaccommodate First Nations on any Government initiative that impacts Aboriginal or TreatyRights.In September, 2011 First Nations convened a series of conference calls to discuss theirconcerns, which were identified, prioritized and presented to AANDC. Areas of concernsincluded:
 
AANDC’s continued disregard of First Nations Inherent and Treaty Rights and FirstNations Control over First Nations education throughout the EIS process;
AANDC’s failure to honor its duty to consult and accommodate;
privacy and ethical considerations;
purpose and ongoing use and access to data; and
adequate and sustainable funding.Ongoing recommendations highlighted the need to:
ensure an adequate system of consultation is established to implement the EIS;
determine the kind of data required and the purpose for the collection of specific data;
protect First Nations data and ensure OCAP principles are respected;
build First Nations information systems; and
strengthen First Nations jurisdiction in education.AANDC conducted a series of regional visits across Canada to speak with Chiefs at regionalgatherings. While AANDC maintained consultation was not required to implement a newsystem, regions sought to find ways and means to protect and advance their interests, andreaction was varied across the country. While some regions rejected EIS outright and otherswere interested in hearing about EIS, it was nonetheless clearly communicated to AANDC thatthese information sessions were to determine how to minimize harms and disruption, andcannot be construed as consultation.
LEGAL ANALYSIS1. Privacy Concerns
First Nation governments recognize the privacy interests of their citizens and an individual’sright to be free from intrusion or interference by others. Individuals have privacy interests inrelation to their personal information, expressed thoughts and opinions, personalcommunications, health records, education records and a whole host of information. The EIShas the potential to affect the privacy interests of First Nations citizens in different ways. Themost notable privacy breach for First Nations governments is the potential loss of its right tocontrol information about their students.

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