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A group of First Nations adults and youth finish a spiritual journey from Attawapiskat First Nation to Parliament Hill in Ottawa on Monday, February 24, 2014. The 25 walkers traveled 1,700 km with concerns about broken treaties, land and water protection and human rights issues.

Sean Kilpatrick/THE CANADIAN PRESS

There was a familiar ring to the news that the federal Conservative government wants to absolve itself of legal liability for the actions and inactions of First Nations police forces.

It was the word liability – something that appeared prominently in another government document that has been making headlines recently.

The First Nations Control of First Nations Education Act contained a section that says the Crown can not be held liable for anything done or not done as a result of the Act.

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Some lawyers say the government's attempts to extricate itself from liability for the programs it is obligated to fund will not hold up to legal scrutiny.

Imposing liability on First Nations through statutory means "as well as being morally questionable," says Katherine Hensel, a Secwepemc lawyer, "is legally and constitutionally questionable when you look at the fiduciary obligations of the federal government and their treaty obligations as well. So I think it's ripe for a challenge."

And Carolyn Bennett, the Liberal critic for Aboriginal Affairs, said downloading the liabilities on communities that don't have the resources to address the responsibilities is appalling. The government, she said "is indemnifying itself along the lines of 'it's not our fault if things go wrong, it's your fault, even though we didn't give you the stable, predictable funding that you needed.'"

The education bill is now "on hold." The majority of chiefs have panned it as a paternalistic attempt by the government to keep control of First Nations schools while downloading liability onto the back of native communities.

If it were to be resuscitated, the chiefs say they fear their communities could be liable for the quality of education in a system that sees two-thirds of students drop out before graduating from high school – and which First Nations leaders say had been chronically underfunded by Ottawa, which is responsible for paying for it.

A spokeswoman for Aboriginal Affairs Minister Bernard Valcourt said non-liability clauses are frequently added to federal legislation. They are in the education bill, she said, to make it clear that the funding of First Nations schools does impose liability on government for the actions or omissions of the various players in the native education systems.

That clause does not increase the First Nations potential liability for their own actions or omissions or those of their employees, she said, nor does it impose any responsibility on First Nations for actions or omissions of the minister or government officials.

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But it does mean that, if parents were to launch a suit over the poor quality of education provided to their children, or because a child was injured in one of the rundown buildings that passes for a reserve school, the federal government would be able to walk away.

And now the Public Safety department is pressuring First Nations that have their own police forces to sign agreements that says the receipt of federal funding "does not imply that Canada assumes responsibility for the policing services received by the communities."

The agreements stipulated that reserves had to meet the "standards usually expected from a police service" or the agreements could be cancelled and the funding withdrawn. The government is aware that most reserve police services, which are chronically understaffed and under-resourced because of lack of funds, do not now and likely will never meet the police standards.

Those First Nations that did not sign the agreements saw their funds cut off at the end of March. So many native communities capitulated just to meet their police payrolls.

Julian Falconer, a lawyer for two First Nations police forces, said it would be naive not to realize that inserting non-liability clauses into First Nations acts and agreements has become a standard practice of the government.

"The way of doing business with First Nations is to dangle funds in circumstances where these communities are desperate and vulnerable and then they have them signing releases that take the federal government off the hook going forward," Mr. Falconer said. "I think it's shameful and unconscionable."

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Charlie Angus, the New Democrat MP whose riding is home to First Nations that have refused to sign the policing agreements, said downloading liability is a moral question. "This is a government that says we insist of safe communities except for First Nations," said Mr. Angus. "This is a government that says we will stand up for victims unless they are aboriginal."

Gloria Galloway is a parliamentary reporter in Ottawa.

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