The right to education is well recognized in the
international community. International legal documents such as the Convention
on the Rights of the Child (CRC) and the Convention against Discrimination in
Education (CDE) set out requirements that governments must meet to comply with
international standards. The Canadian government, as a party to both of these
conventions, has promised to provide high quality education. Importantly,
according to Article 28(1) of the Convention on the Rights of the Child, the
Canadian government must provide this education to all Canadians on an equal
basis.
However, in practice, the quality of education
provided to Aboriginal Canadians is much lower than that provided to the
average Canadian. In the Canadian government, the education of Aboriginals
falls under the jurisdiction of the federal government while provincial
governments have the responsibility to educate non-Aboriginal individuals. As a
result, Aboriginal students receive over $5000 less towards their education
than non-Aboriginal students. Not surprisingly, consistently inadequate levels
of funding for Aboriginal education has resulted in low quality education and
dismal education outcomes. The UN Special Rapporteur on Indigenous People
highlighted the high drop-out rates, low education attainment and low quality
schooling available for Aboriginal students. On many reserves, less than half
of the population has graduated from high school and the proportion of
Aboriginals without a high-school diploma is more than 30% higher than that of
non-Aboriginal Canadians.
The disparity between the quality of education
offered to Aboriginal children and that offered to non-Aboriginal children has
consistently been criticized both locally and internationally. Politically, the
federal government has been under pressure to provide better education to
Aboriginal students for over 30 years and yet little has been done. Is the
Canadian government also under a legal
obligation to improve the quality of education of Aboriginal Canadians? Are
they breaching their international obligations by violating provisions of the
CRC? I think the answer is yes. First, Article 2 of the CRC provides a right
against non-discrimination that is supported by Article 28(1) of the CRC that
creates a duty on States Parties to recognize the right to education on the
basis of an equal opportunity. The Canadian government has discriminated
against Aboriginal children by consistently under-funding their education
systems when compared to non-Aboriginal children. In doing so, they have failed
to provide the right to education on an equal basis across Canada. In addition,
the Canadian government is also breaching the CDE which bans any distinction
based on race that has the effect of impairing equality of treatment in
education and in particular of limiting any group of persons to an education of
inferior standard.
Based on international law, the Canadian
government is discriminating against Aboriginal children by not providing them
with equal access to education. If the Canadian government is not willing to
improve Aboriginal education on-reserves, legal action may be the only way forward
to ensure that Aboriginal children have a meaningful right to education.
This is an interesting and important point. You can take this further by considering the application on the case of Ponomorovi v Bulgaria (2011), see reading list, in which two Roma boys successfully complained that Article 2 of the First Protocol was violated because the costs of obtaining education were higher for them than for other children with Bulgarian nationality.
BeantwoordenVerwijderenBut the facts of this Canadian situation also shows similarities with cases like D.H. (reading list), in which the European Court condemned the State for discrimination against Roma children, who were placed in separate schools.