Advancing the right to education for First Nations children: Lessons in administrative dialogue from the South African constitutional experience

As First Nations people in Canada look to advance their right to the non-discriminatory provision of public primary and secondary education services under the Canadian Human Rights Act, lessons from the post-apartheid South African experience with socio-economic rights litigation can serve to inform institutional dialogue and democratic deliberation surrounding the realization and enforcement of the right, and help to create a space for reconciliation between Indigenous and non-Indigenous Canadians. Inadequate and discriminatory funding of First Nations education remains a live issue for courts and administrative decision-makers in Canada, and this thesis adopts a comparative approach to contrast the South African socio-economic rights model with existing Canadian administrative mechanisms to advance the right to education and promote broad-based dialogue between state and non-state actors. In Chapter 1, the thesis examines the existing legal framework in which to advance the right to education under international, Canadian, and South African law. Although the Canadian Charter of Rights and Freedoms does not enshrine a generalized right to education as found in the Constitution of the Republic of South Africa, it can nonetheless be said to find domestic expression in the service provision clause of the quasi-constitutional Canadian Human Rights Act. In Chapter 2, the thesis adopts a dialogic perspective to examine challenges and opportunities surrounding the realization of the right to education for First Nations people under administrative law mechanisms. In anticipation of a justiciable, constitutionalized right, quasi-constitutional administrative law provides a compelling venue in which to challenge the inferior quality and differential funding of education services for First Nations children on reserve. The South African experience with the principles of reasonableness and fundamental values is juxtaposed with the requirement in Canada for administrative-decision makers, and reviewing courts, to consider Charter values. This could shape the role of administrative law mechanisms in determining the reasonableness of state funding of education services on reserve, and lay the groundwork for a more dialogue-rich quasi-constitutional venue for human rights claims. In Chapter 3, the thesis examines the bounds of remedial orders to address and enforce the right to education in both a Canadian and South African context, where judicial efforts towards democratic deliberation in the form of systemic relief has challenged the dialogue between state actors. In light of inevitable jurisdictional tensions between the various branches of government, and in an effort to nurture the important institutional dialogue between these bodies surrounding the right to education, the Canadian Human Rights Tribunal can aspire to be bold and innovative when fashioning remedial orders to foster broad-based participation among actors and effect real change in the lives of First Nations children.

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