The Cree-Naskapi Commission expresses its gratitude to those individuals and representatives from Cree and Naskapi communities and federal government officials who cooperated in the preparation of the 1991 Biennial Report to parliament.

This year, special recognitionis given to Marsha Smoke, Roger Jones and Brian Shawana for their dedication and demonstrated teamwork in the preparation and management of this year's biennial Report. We also thank Teresa Mark, Micheline Ayotte, Allen Eshkakogan and Kenny Loon for their contribution to the final report.

A special thanks to Janie Pachano and Elijah Einish whose personal dedication and loyalty ensured that our translations were accurate and complete.

A CALL FOR A NEW APPROACH

As we prepared this, our third biennial report to Parliament on the implementation of Canada's first Native self-government, one question stood out as most crucial: What methods are there for solving the difficult issues facing Canada and its aboriginal peoples? This question has great importance, not just for the James Bay Cree and the Naskapi, but for Native peoples across the country.

Events of the past year underscore the urgency of this question. Paramount among these were the failure of Meech Lake and the crisis at Oka. On June 22, 1990, Native peoples noted the failure of the Meech Lake Accord with approval. Meech Lake, they felt, contained nothing of benefit to them; indeed, they felt it held significant dangers. A few weeks later, on July 11, 1990, Native people joined all Canadians in mourning the death of Corporal Marcel Lemay. For 77 days, Canadians witnessed first-hand the division and discord between Natives and government as they followed daily reports of the Oka stand-off.

To date, Oka has been the exception. By and large, Canada's Native peoples have not expressed their frustration in violent action. There is, however, evidence that civil disobedience is seen increasingly as an effective means of resistance and protest. The phrase "enough is enough" is heard repeatedly across the country.

That the call to civil disobedience is being raised suggests that traditional methods of dealing with Native issues are not succeeding. The old methods-- government policies, commissions, and court litigation --have, during the past two years, held little promise for Native peoples as they struggle to establish their rights and position in Canadian society. What is needed is a new approach.

GOVERNMENT POLICIES

In the past, the response of governments to Native problems and crises has been to review policies and legislation and to carry out further studies. As a result, recent pronouncements by the federal government have been greeted with scepticism by Native peoples. For example, in its Speech from the Throne, on May 13, 1991, the federal government reminded parliamentarians and Canadians of the continuing debate over national unity:

Let no one doubt the seriousness of the challenges we face as a country. You will have the responsibility and the opportunity to forge an historic accommodation that embraces all Canadians, overcomes division and discord and charts a course for prosperity for generations to come.1

Later, after reviewing its initiatives with respect to aboriginal peoples, the government states:

The goal is to work with Canada's aboriginal peoples so that they control their own lives, can contribute to Canadian prosperity and can share fully in it.2

The national unity and national prosperity agenda, however, seem meaningless in the aboriginal communities. Specific conflicts over land, harvesting, the control of local affairs and economic opportunity are the daily concerns in the communities and initiatives and proposals at the national level offer little promise of solutions to these problems.

Similarly, the government's more specific initiatives hold little promise for Natives dealing with their concerns. Following the end of the Oka stand-off, Prime Minister Brian Mulroney described to the House of Commons the federal government's agenda for Native issues.³ In his speech, he outlined four main pillars:

• accelerating resolution of both specific and comprehensive land claims;

• improving economic and social conditions on reserves;

• establishing a new, improved relationship between aboriginal peoples and governments; and

• addressing the concerns of aboriginal peoples in contemporary Canadian life.

This four-part agenda and subsequent initiatives, such as the new Special Claims Commission,⁴ are seen by some aboriginal peoples as measures aimed at defusing discord rather than solving the real issues which give rise to it. Repackaging old federal policy will not gain favour among the aboriginal peoples.

COMMISSIONS

Commissions struck by the federal government with mandates to deal with Native issues are seen no more favourably. In November 1990, the federal government appointed Keith Spicer to head a Citizens' Forum on National Unity. Aboriginal issues were a part of the commission's examination. However, aboriginal peoples were concerned that the commission's mandate to look at aboriginal issues was limited. The commission's report recommended the prompt settlement of land and treaty claims and the definition and implementation of self-government.⁵

Of considerably more promise was the Statement on Federal Aboriginal Policy issued by the Canadian Human Rights Commission.⁶ The Statement recommended fundamental changes to the way the federal government deals with Natives and argued that only such changes would begin removing barriers that keep aboriginal peoples from the prosperity and rights that other Canadians enjoy. The Commission's recommendations were far-reaching. They included a commission of inquiry, an independent land claims commission to replace existing policies and processes, and an ongoing forum where aboriginal and government leaders could discuss issues. In key recommendations, the Commission called for elimination of the Department of Indian and Northern Affairs and the replacement of the Indian Act by an appropriate constitutional and legislative scheme implementing aboriginal self-government. The Commission also advocated that the aboriginal peoples be assured the economic opportunities they need to meet their fundamental needs. While such recommendations go to the heart of the problem, aboriginal peoples realize that they have meaning only if they are given substance in action.

More recently, on April 23, 1991, the Prime Minister announced plans for a Royal Commission on Aboriginal Peoples and appointed the Right Honourable Brian Dickson, former Chief Justice of the Supreme Court, to consult widely on its terms of reference and membership.⁷ On August 27, 1991, the Prime Minister announced that Georges Erasmus, former National Chief of the Assembly of First Nations, and Justice Rene Dussault of the Quebec Court of Appeal would chair the Commission and outlined wide terms of reference.⁸ Again, aboriginal peoples responded cautiously fearing that placing too many expectations on the Commission could only lead to further disappointment.

LITIGATION

For Natives peoples, the courts have increasingly become the means of solving problems. For many aboriginal peoples, May 31, 1990, seemed a major turning point. On that day, the Supreme Court of Canada delivered its decision in the Sparrow case. The case was the first to reach the Supreme Court where the issue was the interpretation of section 35, the treaty and aboriginal rights clause of the Constitution Act, 1982.⁹ Aboriginal peoples were told that the treaty and aboriginal rights in the Act represented a constitutional affirmation of preexisting legal rights. As well, the Court held that section 35 confirms the special relationship between aboriginal peoples and the federal government and that the federal government and Parliament are obligated to act in a fiduciary capacity in this relationship. The Court signalled clearly that governments and Native peoples must work together to improve the political, social and economic welfare of aboriginal peoples in Canada. "Section 35(1), at the least," the Court states, "provides a solid constitutional base upon which subsequent negotiations can take place."¹⁰ At the same time, the Court signalled its readiness to resolve disputes if required to do so:

By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected.11

The Court spoke clearly of the struggles aboriginal peoples have waged against governments which have ignored their rights and a society which has been insensitive to and disrespectful of their traditions and aspirations. Unquestionably, aboriginal peoples hopes were raised by this friendly forum in which issues crucial to them could be resolved.

Less than one year later, however, on March 8, 1991, their trust in litigation as a means of solving problems was dashed when the Gitksan Wet Su Weten received its long-awaited decision on self-government and land rights from the British Columbia Supreme Court.¹² The Gitksan Wet Su Weten plaintiffs lost on virtually every point. A further disappointment was the Bear Island Foundation case in the Supreme Court of Canada.¹³ While the appeal process may change the Gitksan Wet Su Weten decision, these cases are major disappointments for Natives looking to the courts as a forum in which their problems can be recognized and solved.

The Cree-Naskapi Commission believes that litigation is a poor tool for fashioning practical solutions. Disputes that wind up in the courts drag on for years while important issues go unresolved. Moreover, litigation exacts an enormous social and economic cost. Ultimately, the courts can only provide a legal framework for change. They are not equipped to change attitudes or social values. The Gitksan Wet Su Weten case, for example, has already cost at least $25 million and is now expected to proceed through the remaining stages of appeal. More damaging perhaps, it has given rise to charges of racism and has left many people feeling pain and bitterness.

AN ALTERNATIVE APPROACH

Clearly, the three traditional methods - government policies, commissions and Native litigation - are not working. The Cree-Naskapi Commission believes, however, that there is an alternative which does work: direct dialogue and negotiation between aboriginal peoples and governments coupled with dispute resolution mechanisms to resolve matters when they reach an impasse.

Such a method promises success for three reasons. First, it allows aboriginal peoples to express what they want. Here, the Commission believes that it is important that dialogue and negotiation take place directly at the community level. Too often in discussions, aboriginal leaders and administrators are heard on issues while the voices of experience and desperation are ignored. It is important that community elders and young people play a part so that the vast gulf between aboriginal and non-aboriginal societies can be bridged with understanding.

Second, it allows governments to find ways to accommodate aboriginal aspirations. Canada's aboriginal peoples are diverse. They are made up of many different societies with widely differing traditions, cultures, social and physical needs, and visions of their futures. Such diversity defies generalization and cannot be accommodated in unilateral policies and procedures. Differing policies and arrangements are necessary. By negotiating directly with native communities, governments can come to solutions which address the circumstances which are unique and fundamental in each case.

Third, by incorporating a dispute resolution mechanism, this method overcomes the obstacle which has defeated negotiations in the past. Frequently, negotiations require an experienced but independent body to bring sensitivity, perspective and fairness to bear on matters. While there are risks in referring disputes to such a body, there is even greater risk in not meeting the challenge of resolving disputes.

The Commission bases its belief in such a method on its five years' experience monitoring implementation of the Cree-Naskapi (of Quebec) Act. The Crees and the Naskapi have articulated in great detail, through the lames Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, their relationship with both federal and provincial governments. The Crees and the Naskapi are not convinced, however, that the federal and provincial governments have always made sincere attempts to implement and accommodate the unique political, economic and social relationship that is described in these, Canada's first modern Indian treaties. And the James Bay Crees feel that their attempts to negotiate have been aggravated by the absence of a dispute resolution mechanism. However, where the federal and provincial governments have negotiated directly with the Cree and Naskapi communities under the facilitation of a mediator, genuine successes have been achieved and we have been pleased to document these successes in both this and in our previous reports.¹⁴

Given our experience, we believe that mediation, facilitation and other forms of assisted negotiation coupled with mechanisms for resolving impasses should be given much wider opportunities to succeed, especially where other methods have so obviously failed. Such a method is innovative, cost-effective and comprehensive. It achieves results and minimizes discord; it is a quick and efficient process; and it offers genuine hope of improving the way our society functions for aboriginal peoples, while promoting fairness and harmony.

A FORMALIZED ROLE FOR ELDERS

In preparing our reports over the past five years, we have attempted to solicit the views of those people most directly affected by the Cree-Naskapi (of Quebec) Act. We have made every effort to develop a report preparation process which is open and accessible to everyone who wishes to present his or her views. We regret that we have not always been successful in motivating people to come forth and speak. Our failures mean that there are sectors of Cree and Naskapi society from which we have not heard. Yet, it is the communities as a whole which should examine the options and make the choices that will determine the future. The community elders and youth have a particularly important role to play in this process: the elders because their wisdom, knowledge and experience is each community's most valuable guide, and the youth because it is their aspirations which must be realized.

During the past five years, we have noted that the Grand Council of the Crees (of Quebec) and the Cree Regional Authority tend to consult external experts and specialists in different fields. It is, of course, necessary to call upon these people; however, we urge the Grand Council and the Cree Regional Authority to consult the elders in their deliberations and decisions. The elders have acquired a vast knowledge during their lives and may be valuable advisors. To this end, we suggest that the Grand Council and the Cree Regional Authority consider creating a formalized mechanism for receiving advice from community elders. In the current debate regarding future hydro-electric developments, the wisdom and experience of the elders, acquired during the harnessing of La Grande River, could be invaluable when important decisions are taken on projects that may seriously disrupt the Crees' traditional way of life. We were greatly moved and impressed by our meetings with community elders and believe that the way to the future must be based on their vast knowledge of the past.

A REVIEW OF PAST ISSUES

In our 1986 and 1988 reports to Parliament, we described fundamental problems facing the Cree and Naskapi communities. For this report, we state, with regret, that these problems continue to exist. We are forced to return to these problems because the Crees and the Naskapi are anxious to raise them and because Cree-Naskapi (of Quebec) Act self-government depends on their solution. In this chapter, we will examine problems connected with training and staff development, operations and maintenance funding, land registry and the Cree-Naskapi Commission Inquiry. In subsequent chapters, we will examine policing and justice, and housing and infrastructure.

TRAINING AND STAFF DEVELOPMENT

As we described in our earlier reports, self-government under the Cree-Naskapi (of Quebec) Act has been a challenge for Cree leaders and administrators. At the heart of this challenge are the extensive rules and procedures of the Act and the expectation that Cree personnel will follow accepted administrative practices and principles. In 1986, we noted that the Crees were not sufficiently trained to handle their new roles and responsibilities. In 1988, we reported that the problem of training for Cree government personnel had not substantially changed.²In 1991, the problem persists. Training and professional development are not just one-time, start-up expenditures. The need to train both existing and new staff is ongoing. Moreover, by providing training for local administration and employment, bands hope to keep young people in their communities and thereby have them contribute to local growth and prosperity. Among the new initiatives needed are a community-based inventory of human resources; training which incorporates local cultural and traditional beliefs; and an educational program to enhance knowledge of the James Bay and Northern Quebec Agreement, the Northeastern Quebec Agreement, and the Cree-Naskapi (of Quebec) Act.

In its submission to the Commission, the federal government recognized the problem of training and staff development. The government spoke of a lesson learned from experience of the Cree-Naskapi (of Quebec) Act:

One important lesson learned since 1984 has been to recognize the value of planning the implementation of self-government legislation in close cooperation with the communities. Determining in advance who will have to do what, when, and at what cost has become an integral part of the negotiation process leading to community self-government.

Obviously, this lesson is not restricted to training and staff development but refers to all aspects of implementation. Nevertheless, the government's statement clearly implies that qualified personnel are key to an orderly and efficient government. Current federal policy, therefore, recognizes that costs and planning for training and staff development are essential to implementing aboriginal self-government.

In their need for training and staff development, the Cree and the Naskapi communities are no different from other Canadian communities. Most government and business administrators and personnel come to their jobs with preparatory education, and in order to improve efficiency and ensure adaptability to new techniques, are provided opportunities for further training and professional development. Cree and Naskapi officials and employees must have similar opportunities. Like those who work in non-aboriginal governments, Cree and Naskapi personnel are accountable to the citizens they serve. Moreover, as with other Canadian governments, Cree government decisions, laws and administrative practices are subject to the scrutiny of the courts. Effective administration is not a luxury; it is an expectation placed on all governments.

There is a difference, however. Unlike those in most other Canadian municipalities, Cree and Naskapi administrators and personnel require assistance and training from people who are not only expert in administration, but who are also sensitive to concerns specific to the Crees and Naskapi, and the kinds of difficulties they encounter in their particular form of self-government. Training programs and qualified instructors appropriate to specialized Cree and Naskapi needs are essential if the bands are to develop management styles and administrative structures which reflect their objectives.

With respect to training and personnel, two measures stand out as necessary given the current state of Cree and Naskapi self-government. First, there must be adequate funding to finance proper training and professional development. Second, rules and procedures of the Cree-Naskapi (of Quebec) Act must be revised and simplified so that local administrators and personnel can master them readily and make them work.

The need for adequate funding for training and professional development is crucial. At our 1991 report consultations, Chief Isaac Meskino of the Nemaska Band stated:

Training programs for local human resources have not changed but, rather, the bands and the Cree Regional Authority have had to prepare, implement and fund training for their human resources. The onetime implementation funding as set out in the Act or in that letter of understanding is quickly shrinking because of the lack of adequate resources and funding. It is extremely difficult for any of the bands to have any training for their staff, even more for the turnover in the elected leadership. With the financing we have,we cannot update new members on councils and new chiefs. We don't have the adequate resources other than the Act itself.4

In most communities, education is already a major expenditure. What is required is specialized training to prepare band members for the unique administrative duties presented by self-government under the Cree-Naskapi (of Quebec) Act. The federal government under the Department of Employment and Immigration and the Department of Indian and Northern Affairs has contributed some funding to employment and training projects and has provided some relief for overburdened band training budgets. However, additional federal funding for specialized training for self-government administration remains, as it was in 1986 and 1988, a fundamental need.

As for the Cree-Naskapi (of Quebec) Act, five years' experience has shown that Cree-Naskapi Act government is overly corporate and bureaucratic. A key step to addressing the problems the Crees and Naskapi are having adapting to self-government, therefore, is to change the Act so that it meets Cree and Naskapi needs in a way which is bureaucratically and organizationally less complex. This is an important point which we return to in Chapter 8.

The Commission believes therefore that a combination of increased financial support for training and professional development, and changes to the Cree-Naskapi (of Quebec) Act which will simplify and lessen the burdens of administration are key measures which must be undertaken.

OPERATIONS AND MAINTENANCE FUNDING

The lack of adequate operations and maintenance funding for the local governments continues to be a serious problem, a problem aggravated by the fact that day-to-day demands for facilities and infrastructure are growing. Mistissini Band member, Robert Jimiken, described the situation as follows:

I think the biggest problem with [operations and maintenance] and the Cree-Naskapi (of Quebec) Act funding is that it's not sufficient to properly administer and provide the necessary services to the community. If you look at the formula and how it's calculated for each community, it takes into consideration only the population growth, without really looking at the physical growth of the community. And every year we are expanding. There are a lot of new buildings coming up and there are a lot of houses being built. The infrastructure systems have to be dealt with. The amount of money received to maintain these services is very, very limited. You can only do so much.5

This situation is not unique to the Mistissini. Bands are barely coping, given the current levels of funding, and there is no immediate relief in sight.

Although we addressed this issue in our two previous reports,⁶ it has yet to be resolved to the satisfaction of all parties. While there has been movement, the matter is far from settled. At present, operations and maintenance funding levels are based on an interim agreement concluded in July 1988. The July 1988 agreement was intended to be a temporary measure until the conclusion of another five-year funding agreement. Negotiations on this five-year agreement must begin as soon as possible.

As with many issues in this report, operations and maintenance funding will require negotiation of a formula which finds favour among all parties. The Commission, if asked to contribute to these negotiations, will consider it reasonable and necessary to incorporate into a formula increasingly important factors such as the growth in population; the growth of community infrastructures; the burden of maintaining large community facilities and infrastructure; the repair and replacement of old facilities and infrastructure; and the higher costs of living in the north.

LAND REGISTRY

The stewardship of land is important in both Cree and Naskapi culture. The Crees and Naskapi have always observed an orderly yet simple system of land management which met their needs. Land as real estate and the usage of land as determined by zoning regulations are concepts foreign to these peoples. Land has always been a matter of collective interests and stewardship.

It was a dispute over competing claims of ownership and interest in the lands that brought about the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, and ultimately the Cree-Naskapi (of Quebec) Act. With the Agreements and the Act came a complex and bureaucratic⁷ land regime which involved the categorization of lands and the principle that registering an interest in land is the means by which competing land claims should be resolved. It is not surprising, as we noted in a previous report, that the Crees and Naskapi have great difficulty implementing the land registry system prescribed by the Cree-Naskapi (of Quebec) Act.⁸

The Crees and Naskapi are genuinely committed to implementing the land registry system required in the Act. There are, however, differences as to how this should be done. John Mameamskum of the Naskapi pointed out that his community is waiting for outside assistance in implementing the system:

As far as the information I have now, the Band appointed a Land Registry Officer about three to four years ago. We are still waiting for someone to call us so that this person can be trained with the Cree registry officers.9

The Waswanipi Band, on the other hand, wants complete independence in dealing with lands:

... the Land Registry System should be developed solely by Waswanipi and should not be controlled by any outside government or agency. No expropriation authority should be allowed to "expropriate" Waswanipi's traditional lands without consent from the Waswanipi people. The right to expropriate under the Act is an invasion of Waswanipi's territorial rights as a nation.10

It is important that the land registry system soon be in place. The Crees have not adopted the non-aboriginal notion of land as a commodity which can be bought and sold. In the Cree communities, there is no real-estate market. To date, therefore, the Crees have maintained a semblance of order and control over the possession and occupation of Category IA lands. But this order and control are threatened. The population growth and the introduction of commercial and industrial ventures in the communities will bring disruption and property disputes in the absence of a properly functioning registry system.

The Department of Indian and Northern Affairs has actively promoted local land management and control within its Indian Act policy framework. Under the Indian Act, delegation of local management is a discretionary matter. Authority to manage lands is transferred to the band, subject to the approval of the Minister of Indian and Northern Affairs. Moreover, the Department provides funding and training for land management where it considers it advisable. The Department should direct similar resources to the Cree communities where the authority for local land management is not discretionary, but obligatory.

CREE-NASKAPI COMMISSION INQUIRY

In our 1988 report, we described the mandate and role of the Cree-Naskapi Commission.¹¹ On the basis of extensive consultations with the Cree and Naskapi bands, we reported two key findings: that the Crees and Naskapi regarded continuation of the Commission to be vital; and that the Commission should be given an expanded mandate. We added our own voice in support of the notion of an expanded mandate.

Recent events have added further support to these findings. Section 172 of the Cree-Naskapi (of Quebec) Act establishes a process for review of the Cree-Naskapi Commission after five years of its operation. In accordance with this section, the federal government issued a press release on September 18, 1990, announcing the Inquiry into the Cree-Naskapi Commission.¹²

The Commission of Inquiry was chaired by Ian Cowie. The other Commissioners were Mark Dockstator and Tony Price. The purpose of the Commission, as set out in the Act, was to "inquire into the powers, duties and operations of the [Cree-Naskapi] Commission."¹³ The Commission of Inquiry consulted several Cree communities and the Naskapi community as well as the Cree-Naskapi Commission, the Grand Council of the Crees (of Quebec) and the federal government. The Government of Quebec did not acknowledge the three letters the Commission of Inquiry sent in connection with its work. The Commission of Inquiry submitted its report to the Minister of Indian and Northern Affairs, who in turn tabled the report in the House of Commons and the Senate on April 11, 1991.¹⁴

The Cree-Naskapi Commission is pleased with the report's favourable review and assessment. Major recommendations of the Inquiry include the following:

• The Cree-Naskapi Commission's mandate should be modified to enable it to serve a broader dispute resolution mandate. This mandate should include not only Cree-Naskapi (of Quebec) Act issues, but also matters arising from the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

• Reporting on the implementation of the Act should be less frequent, that is, every three or four years instead of every two years.

• Consideration should be given to expanding the Commission's investigative powers to include powers such as the power to issue subpoenas and the power to make binding decisions.

• Sufficient funding should be made available to enable the Commission to discharge its functions.¹⁵

The Department of Indian and Northern Affairs has made a commitment to assessing the report and planning follow-up action in cooperation with the Crees, the Naskapi and the Cree-Naskapi Commission. Shortly after the release of the report, representatives met to discuss the findings. This initial meeting did not give rise to any particular process, plan or schedule for following through with the recommendations. However, the Cree-Naskapi Commission understands that the federal government, the Crees and the Naskapi have begun a review of the Commission of Inquiry's findings and hope to produce an all-party proposal on the future of the Cree-Naskapi Commission by October 1991.

Moreover, other signs are promising. The Department of Indian and Northern Affairs now accepts that dispute resolution processes are fundamental to agreements that they have concluded with the Inuit and the Naskapi relating to the Northeastern Quebec Agreement and the Inuit sections of the James Bay and Northern Quebec Agreement.¹⁶ The Commission of Inquiry report specifically recommends that our role be expanded to include such dispute resolution, in addition to our existing reporting and investigative functions. And as we document here and in our 1988 report, we have been called upon to intervene on issues outside the Cree-Naskapi (of Quebec) Act and our interventions have been successful. We have, therefore, expressed in both words and actions our willingness to accept an expanded role, and have shown the benefits that such an expanded mandate can bring.

A REVIEW OF PAST ISSUES

Recently, policing and justice related to aboriginal people have been subject to extensive examination in Canada. Inquiries and investigations report the frequently disastrous consequences for aboriginal peoples of their contact with legal and law enforcement institutions. Many factors contribute to inequitable treatment: lower education levels, unemployment, lack of social planning and counselling services, cross-cultural differences, value biases and discrimination. The impact of these factors has been documented by the Manitoba Aboriginal Justice Inquiry,¹ the Marshall Inquiry, the Ontario Osnaburgh-Windigo Investigation, the Cawsey Inquiry and the Canadian Bar Association Report, Locking Up Natives in Canada.² Furthermore, as these investigations make clear, the framework and standards of non-aboriginal legal and enforcement institutions are irreconcilable with the needs of aboriginal peoples. Yet, the application of institutional concepts, principles and procedures which are totally unsuited to aboriginal peoples and their communities continues. Corrective measures must be taken.

Part of the solution lies in the development of Native-oriented justice systems. Despite recommendations, such development is not being carried out. The point is made clear in the report of the Manitoba Aboriginal Justice Inquiry:

Aboriginal people are tired of being studied and are concerned that reports on aboriginal issues have a history of being placed on the shelf to gather dust.

There was a recurring request that we provide for a process by which our recommendations could be implemented and longterm change facilitated. Given the problems that have arisen in the past where the implementation of reforms for aboriginal issues are concerned, and the loss of momentum that has occurred in some areas, we have decided that it is appropriate for us to make suggestions in this area.

We cannot, of course, offer any assurance that any of our recommendations will be accepted or acted upon. The decision to implement our recommendations is, we recognize, a matter for both federal and provincial governments. Whether they do so will depend upon the overall persuasiveness of the report, the degree to which there is support among aboriginal and non-aboriginal people for the initiatives, the governments' ability and inclination to make the changes recommended, and their overall responsibility to govern in a manner that takes into account the interests of all members of society.

However, we do believe that a special process is called for, by which the issues we have concluded need to be resolved are dealt with. We have found that the nature of government decision making in the past, where aboriginal people and their interests were concerned, has been cumbersome and inappropriate. In addition, aboriginal people are in a unique position in so far as their right to self-determination is concerned. It appears to us, therefore, that in future, aboriginal issues will be approached and resolved on a government-to-government basis.³

The report goes on to outline a plan of action that could be followed were both governments and aboriginal people willing to act.

The same point is made in a research paper presented by the Indigenous Bar Association to the Law Reform Commission of Canada as part of the latter's study of aboriginal justice:

The criminal justice system is conservatively oriented and does not change easily. In 1975, the National Conference on Native Peoples held in Edmonton made a number of recommendations that were easily achievable. They recommended that courts sit in Native communities, that provision be made for judges to increase their awareness of the Native communities, and that resident judges or justices of the peace be appointed from within Native communities. Sixteen years later, in 1991, the Alberta Task Force on the Impact of the Criminal justice System on the Indian and Metis People of Alberta found it necessary to make essentially the same recommendations.4

Experience under the James Bay and Northern Quebec Agreement has been similar. Sections 18 and 19 of the Agreement, at the very least, entitle the Crees to the types of measures recommended in Edmonton in 1975. According to Cree leaders, 16 years after the signing of the Agreement these sections have still not been implemented to the degree or in the spirit they expected.

This lack of progress and the fact that policing and the administration of justice have not evolved with the changes in Cree society have contributed to the social ills that are apparent in the Cree communities. The situation promises to worsen if it is not remedied by imaginative and cooperative initiatives.

DEVELOPMENT OF A CREE-BASED JUSTICE SYSTEM

As a result of this lack of progress, the Crees have taken the initiative. Section 18 of the James Bay and Northern Quebec Agreement promises that Quebec will ensure that the Crees have access to justice and receive equitable treatment through measures orienting the justice system to Cree society. It is apparent that these promises have not been kept. Because of this, the Crees are determined to develop a Cree-designed justice system. The federal government reported that, in the summer of 1990, the Department of Justice, the Ministry of the Solicitor General and the Department of Indian and Northern Affairs funded "a $98,000 project proposed by the Crees to assist research leading to design and development of community-based and culturally appropriate systems of justice within existing constitutional arrangements." The report continues: "The results of the project, expected in the summer of 1991, may provide a basis for a long-term solution of administration of justice within the James Bay territory."5 In August 1991, a report entitled Justice for the Cree: Final Report, was presented to the Annual General Assembly of the Grand Council of the Crees (of Quebec) and the Cree Regional Authority.⁶ The report will he reviewed extensively by the Cree communities in the coming months.

On the basis of our experience with the Cree communities, and our observation of the lack of federal and provincial response to the disturbing treatment of aboriginal peoples under the legal systems, we conclude that the initiatives undertaken by the Crees are necessary. We hope that Quebec and Canada will endorse and complement this new development by whatever means are reasonable. Section 18 of the Agreement forms a foundation on which Quebec and Canada can embody the positive proposals advocated by the Crees.

The positions on jurisdiction taken by Canada and by Quebec are, however, major obstacles to a Cree-developed justice system. Our understanding is that Canada still insists upon its jurisdiction over the Crees and that Quebec maintains its jurisdictions over all matters related to policing and the administration of justice.⁷ While these positions reflect the traditional constitutional division of powers, they neglect the legal and constitutional reality that, according to the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act, the Cree communities have responsibility for and entitlement to community responsive policing and justice. Legal institutions, therefore, cannot be left at the discretion of Canada and Quebec. Canada and Quebec must abandon their jurisdictional positions and recognize that, constitutionally, the Cree communities have local governments with responsibilities to provide good government for their citizens.

LOCAL COURTS

The itinerant provincial court is the only justice system currently available to the Cree communities. The Crees feel, however, that this system is inadequate and is not suited to their needs. The court makes irregular visits to the Cree communities, and, when it does, it often fails to deal with all the cases. Cases not dealt with in the time set aside are postponed. The resulting delays cause frustration and diminish the court's effectiveness. Moreover, such delays may well infringe upon the individual's legal right to be tried within a reasonable time as guaranteed by the Canadian Charter of Rights and Freedoms.

A further problem is the unavailability of Quebec Superior Court at the local level. The result is serious inequalities in access to justice. The Cree-Naskapi Commission considers itunacceptable that Superior Court proceedings are not held in Cree territory. At present, Cree litigants in Superior Court matters such as divorce must travel to a southern location at great cost, a cost which they must bear. This lack of court services is particularly difficult to accept when comparison is made to the services available at similarly remote locations. For example, Cree-Naskapi Commission Chairman, Justice Rejean F. Paul, is a deputy judge of the Supreme Court of the Northwest Territories. He and some of his colleagues sit in such remote areas as Poulatuk and Resolute Bay in the Northwest Territories. The Commission fails to see why the Superior Court of Quebec, both civil and criminal jurisdictions, cannot sit, on a regular basis, in the Cree communities.

POLICING: RELATIONS WITH THE SÛRETÉ DU QUÉBEC

Section 19 of the James Bay and Northern Quebec Agreement calls for the establishment of Cree local community police forces and states that they should have the same duties and functions as non-Cree police forces. Despite these provisions, locally controlled and accountable policing has yet to be realized. Part of the problem stems from the particularly poor relations between the Crees and the Surete du Quebec.

The Crees claim that the Surete du Quebec has been uncooperative and has failed to provide adequate policing services to their communities. Moreover, they insist that the Sûreté du Québec is abusing its control of Cree policing units by using them to gather information related to threats of civil unrest. The situation is one of conflict and tension. The Crees believe the Sûreté du Québec has been particularly uncooperative since the 1990 Oka crisis. They complain about the attitude of the Sûreté du Québec towards Quebec Natives in general. The allegations of harassment and arbitrary vehicle searches on Mohawks during the summer of 1990 have become a major concern to representatives of the Grand Council of the Crees (of Quebec) and the Cree Regional Authority who sit on the Joint Quebec-Cree Advisory Committee on Justice and Public Security. As a result, in January 1991, discussions between the Sûreté du Québec and Cree leaders were suspended and will not be resumed until the Crees have consulted with their communities on the issue.

A number of other problems seriously aggravate relations between the Crees and the Sûreté du Québec, some of which, we believe, are amenable to immediate measures. One problem the Crees cite is that because Cree constables are classified as "special constables' they receive insufficient training and are not accorded the respect of regular police officers by the people the serve. These special constables must, nevertheless exercise the same duties and responsibilities as police officers elsewhere in the province. Thus, while the Cree constables are not full-fledged officers, legally speaking, they are expected to protect their communities and their traditional territories as part of self-government. In addition, the Sûreté du Québec has not provided them with the psychological and sociological training required for policing their own communities and relatives. The Crees also contend that the Surete du Quebec does not pay the special constables equal wages and does not provide them with proper policing equipment or protection which they would be entitled to as regular police officers. Finally the Crees believe that the formula of one Cree special constable for every 500 Cree persons does not meet the policing needs of the communities.⁸

The Crees have concluded that the failure of the Surete du Quebec to cooperate and to implement section 19 of the Agreement means that it does not recognize the Cree governments as legitimate local governments and, therefore, does not recognize the Cree-Naskapi (of Quebec) Act as establishing legitimate self-government.

POLICING: SPECIAL MEETING ON POLICE AND OTHER RELATED JUSTICE MATTERS

The Cree leaders have pressured the Surete du Quebec to relinquish its control of Cree police services and to transfer that responsibility to the Crees as contemplated in section 19 of the James Bay and Northern Quebec Agreement. To this end, the Grand Council of the Crees (of Quebec) and the Cree Regional Authority organized a Special Meeting on Police and Other Related Justice Matters in May 1991. The object of the Meeting was to improve understanding and communication with regard to Cree policing services and to develop strategies for future action in the name of Cree self-government. The following recommendations were drawn up at the Special Meeting and will be reviewed by the Grand Council of the Crees (of Quebec) and the Cree Regional Authority:

1. A Cree Regional Police Force should be established as a framework within which each community should retain control over local policing.

2. Development of this Cree Regional Police

   Force should correspond with the development of a Cree system of justice.

3. The policing agreements should be modified to provide the Cree bands or village corporations with more autonomy in appropriating funds for policing.

4. A Cree Police Commission should be established as a governing body for Cree police forces on Category IA lands. This police commission should plan, direct and determine policies related to crime prevention, law enforcement and the general maintenance of peace and order on IA lands. It should be responsible for recruiting and selecting of constables, undertaking disciplinary actions, and handling complaints through a code of ethics

5. The development of a Cree Regional Police Force should not preclude service and training agreements with other police forces in Quebec and Canada.

6. Section 19 of the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act should be amended to reflect the changes proposed by these recommendations.⁹

Over the past five years, we have visited the Cree communities, consulted Cree leaders and heard from Cree citizens about policing and justice issues. We are convinced that policing and the administration of justice are in desperate need of remedial action by Canada, Quebec and the Crees. We support the work of the Crees on these issues and encourage them to expedite their developmental work. We encourage Canada and Quebec to receive the Cree initiatives in the spirit of self-government contemplated in the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act. Until these initiatives yield results, provincial authorities should, at the very least, make special efforts to promote regular and adequate community access to courts. In particular, they should provide, in the communities, for civil proceedings and for jury trials in criminal proceedings under Superior Court jurisdiction. In addition, they should increase their efforts to improve policing services, especially with respect to providing services equal to those in the rest of the province and to providing equal treatment for Cree police officers.

HOUSING AND INFRASTRUCTURE

A CRISIS IN HOUSING

In our 1988 report, we identified housing and capital project requirements as important and urgent matters for the Crees. We stated that the Cree communities had fallen seriously behind in meeting housing needs and cited specific cases where the Crees lacked much-needed municipal and community infrastructures. The lack of capital funding and ministerial guarantees for housing, we noted, put tremendous strain on Cree compensation funds.¹

Since our report, the crisis has worsened and there has been no long-term planning to relieve the situation. Romeo Saganash, Executive Chief of the Grand Council of the Crees (of Quebec), put the crisis in numerical terms:

The housing shortage now stands at approximately 1,100 units. In addition, major renovations are required for approximately another 500 units and the need for housing will continue to grow by approximately 100 units a year as a result of new family formations.2

In addition, he noted that the lack of adequate housing has resulted in overcrowding in existing units, given rise to serious social problems, and caused physical deterioration of current housing stock.³ The Commission has also learned of the need for housing types other than the basic models currently being built. The handicapped, the elderly, single parents, widows and independent young men and women who are living at home with their parents because they have no other place to live: all have special housing needs.

With respect to future demand, Mr. Saganash offered statistics which show a rapid increase of those over the age of 19, that is, the group for which new housing will be required.

From 1984 to 1989, the Cree resident population increased by 1,451 people or 19 percent. However, the segment of the population older than 19 years of age increased by 924 people or 25 percent. An additional 1,219 people will have joined the over19 age group by 1994.4

The number of houses requested of the federal government by the Crees was reported to the 1991 report consultations by Bill Clevette, Director of Implementation, Self-Government Section of Indian and Northern Affairs:

Our housing people advised me that ... within the last four or five months, they have asked all regions across the country -- and also asked the Crees -- to produce a housing plan for the next three-year period. They told me last week that they received a submission from the Crees that indicates the need of, I think, 200 units for the next fiscal year.5

However, what the government promises to provide is woefully inadequate. The Crees point out that where they have, in the past, received over 100 units per year, the initial allocation for this year was significantly lower.⁶ In March 1991, when the Commission asked the Crees and the federal government for the housing allocations for 1991, we were informed that the allocation was set at 15 for all Cree communities. Since then, we have heard that the federal government has increased the allocation to 69 housing units.⁷ It is worth noting that one band alone, the Mistissini, has established its current need as in excess of 300 units, which does not include any future needs.⁸

FUNDING SCHEDULES AND COSTS

Another dimension of the problem is created by fiscal scheduling and its relation to the seasons and to costs. For the Crees, funding has to be arranged early enough for materials to be shipped in the winter months. Norman Cheezo, Eastmain's Housing Administrator, explained the problem this way:

The problem we have is the financing. When the financing gets accepted, it's around March. In order to decrease the cost of material purchased, we have to use the winter road which is only used January to March. By the time March comes along, we have to find other means of transportation. The only access is by plane.⁹

The Waskaganish Band further explained the problem by pointing out that in order to have any kind of construction in the summer, all funding issues have to be decided prior to September of each previous year. Such requirements are totally incompatible with the fiscal calendars of the funding bodies. Because Canada Mortgage and Housing Corporation (CMHC) allocates funds after December 31, and the Department of Indian and Northern Affairs does so after March 31, funding questions cannot be answered until April. Such schedules are impractical in isolated communities which rely on winter roads and marine transportation to bring in the necessary supplies and construction equipment.¹⁰ A possible solution to this problem is to alter the approval process itself. Norman Cheezo suggested the idea this way:

Provided that we can get approvals around the months of November or December, we can get a release of funding in order to buy materials.¹¹

FEDERAL REVIEW

Since 1987, the federal government has been engaged in a policy review and development aimed at improving housing on reserves across the country. First Nations representatives have participated in this process. In February 1991, the Department of Indian Northern and Affairs produced a discussion paper entitled Laying the Foundations of a New On-Reserve Housing Program.¹² The Department is now consulting with First Nations on the contents of the paper, a process which will require a further six to twelve months. Following consultations, the Department will prepare a document describing the new policy for Cabinet approval. No specific date has been forecast for implementation of the new policy.

With respect to Indian housing entitlements, the paper states that Indian organizations see the federal government as obliged to providing housing to Indian people as a right:

The Indian organizations involved in preparing this paper (Assembly of First Nations, Federation of Saskatchewan Indian Nations, Dakota-Ojibway Tribal Council) have stated that the Government of Canada has special obligations to provide adequate housing to Indian people, as a right. They believe that these obligations of the Government of Canada flow from a combination of treaty rights, basic aboriginal rights, and the Constitution.¹³

The government, on the other hand, sees the obligation as arising from the responsibilities of the government and the Minister of Indian and Northern Affairs under the Constitution:

The Government's commitment to on-reserve housing flows from the responsibilities of the federal government and the Minister under the Constitution. The Government has not recognized any universal Indian entitlements to government-financed housing.¹⁴

The paper goes on to assert that:

... the Government does firmly believe that all Indian people should have access to adequate, suitable and affordable housing. It proposes a policy of providing financial support to First Nations, at a level comparable to that available to other Canadians with similar housing and financial needs, to enable them to ensure that their people have housing that meets basic national standards. This means that the Government of Canada would provide money to First Nations, to help ensure that Indian families and communities in need could get appropriate housing without having to pay more than other Canadians with similar needs.¹⁵

For the federal government, therefore, housing is a limited and discretionary responsibility; it is not a right. For this reason, Chief Billy Diamond prefers to use the term "shelter":

I will use the word "shelter" rather than "housing" and "housing infrastructure" because shelter is a fundamental right. Shelter is also recognized as a right in certain international covenants. That is why shelter is very important.¹⁶

The Crees took part in the initial stages of the review process but discontinued participation in 1988. In their assessment, a five-year policy review and development process is too long and the length of time required for the process indicates that it is not result oriented. Bill Namagoose, speaking for the Grand Council of the Crees (of Quebec), summed up the position with this observation:

Either you want to make the funds available to supply the housing units or you want to keep on talking for the next two years.¹⁷

More central to their decision, however, are the two views on housing described above. The Crees have solid reason to avoid the process, given the premise of the anticipated policy. As we noted above, the federal government sees Indian housing under the anticipated policy as a discretionary and limited responsibility. The Crees, on the other hand, base their expectations for housing units on the James Bay and Northern Quebec Agreement. As Chief Diamond has pointed out,¹⁸ the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act give the Crees and the federal government the proper instrument for dealing with housing. Now, in times of federal fiscal restraint, the federal government wants to abandon that instrument.

Prior to 1986, the Crees and the federal government dealt with housing through agreement based negotiations and agreements on an extended basis to cover housing allocations. Then, in 1986, the federal government unilaterally abandoned the practice even though it had made commitments that the practice would continue. The situation since 1986 has not been encouraging. The Crees, along with other First Nations, are faced with constant or decreasing funding levels which means that the federal government expects them to make greater contributions to all aspects of housing.

There is, in the Commission's view, no reason for the federal government to reinvent policy or to adhere to inappropriate and Indian Act-based policy when agreed upon processes and practices, based on the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act, have already worked.

The Commission believes that long-term negotiated arrangements in this area are absolutely necessary. The federal government cannot wait for the outcome of its housing policy development. Such a policy, based on a narrow perspective of its obligations to Indians, is neither suitable nor applicable to the Crees.

OUJE-BOUGOUMOU CREE

On May 30, 1991, Chief Abel Bosum and members of the Ouje-Bougoumou Band hosted a ground-breaking ceremony on the shores of Lake Opemisca where their new village will be constructed. Speaking to the people gathered for the event, Chief Bosum reminded his listeners that the ceremony was the culmination of many years of struggle for recognition as a First Nation and as beneficiaries of the James Bay and Northern Quebec Agreement.

It certainly is a new phase and a turning point for our people. Today represents also a culmination, a culmination of many years of struggle which were required to gain acknowledgement of our legitimacy as a First Nation and acknowledgement of our role in the territory.1

NEGOTIATIONS

The journey taken by the Ouje-Bougoumou Cree has been a long one. Since 1940, and without compensation, the Ouje-Bougoumou have been displaced seven times because of mining and forestry developments in the Chibougamou-Chapais region. In the recent past, some Ouje-Bougoumou Cree were living in third-world conditions, without basic necessities such as shelter, sanitation and health services. In our 1988 report, we drew attention to the deplorable social, economic and political conditions of Ouje-Bougoumou Cree.² Their situation was especially tragic given that they have been beneficiaries under the James Bay and Northern Quebec Agreement since its signing in 1975.

At the heart of the problem has been a disagreement over the construction cost of the Ouje-Bougoumou village. Despite repeated promises from politicians, including the Right Honourable Brian Mulroney, Prime Minister of Canada, the Honourable Rene Levesque, Premier of Quebec, and many of their cabinet colleagues, no agreement was reached during a six-year period. The disagreement concerned a gap between government offers to correct the situation and the demands of the Ouje-Bougoumou Cree, demands which this Commission saw as justified.

In March 1988, Justice Rejean F. Paul, Chairman of the Cree-Naskapi Commission, was appointed interim mediator for a number of difficult issues, including instatement of the Ouje-Bougoumou as a Cree band under the Cree-Naskapi (of Quebec,) Act. In January 1990, after months of inconclusive discussions, Justice Paul, with support from Roger Gagnon, Assistant Deputy Minister for Self-Government at the time, summoned the Cree, federal negotiators, and observers from Quebec to a "mini summit" for intensive negotiations. These negotiations, Justice Paul insisted, were to be based on "sincerity, justice and equity." The Ouje-Bougoumou Cree, though frustrated by previous experiences, gave this new process a chance and intensive negotiations followed. Federal positions, unacceptable to Ouje-Bougoumou Cree, were set aside and essential information was profitably exchanged. Then, following long and arduous negotiations, an Agreement in Principle for construction of an Ouje-Bougoumou Cree village emerged in late December 1990.

THE AGREEMENT IN PRINCIPLE

The focuses of the Agreement in Principle are two: 1) agreement on the federal contribution toward village construction costs; and 2) the recognition in principle of the Ouje-Bougoumou Cree as distinct legal entities under the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act.

The complete federal financial commitment under the Agreement in Principle is indeterminable at this point because construction costs for educational facilities are unavailable. However, the Agreement in Principle does specify the following federal contributions:

• $13,750,000 for construction of 125 housing units;

• $17,317,747 for village infrastructure; and

• $540,000 for a "community workshop" and for a day-care facility.³

A SOCIO-ECONOMIC DEVELOPMENT FUND

The site of the new Ouje-Bougoumou village is in the heart of traditional Ouje-Bougoumou territory. However, because of previous mining and forestry developments, the Ouje-Bougoumou community cannot continue its traditional way of life--hunting, fishing and trapping--and the area provides no other readily available economic development opportunities. For this reason, the Agreement in Principle calls for negotiation of a complementary agreement on a socio-economic development fund.

Negotiations for the Ouje-Bougoumou Socio-Economic Development Fund--a tool essential to the survival of this new ninth Cree community--were concluded, by Agreement in Principle, on April 11 1991. The Agreement in Principle received Cabinet approval on June 18, 1991. The Agreement states that the fund "will be used by the Ouje-Bougoumou Cree for the purpose of financing community business and service ventures, developing human resources and promoting the economic self-reliance of the community."⁴ The total amount of the Fund, to be paid on a schedule extending to April 10, 1993, is $ 12,300,000

LESSONS FROM THE OUJE-BOUGOUMOU EXPERIENCE

The Ouje-Bougoumou did not achieve concessions or gratuities from the governments of Quebec and Canada. Rather, through struggle and determination, they secured their entitlements as aboriginal peoples and as beneficiaries under the James Bay and Northern Quebec Agreement. Chief Bosum believes his people's efforts have empowered them:

We have learned the importance of asserting our rights as aboriginal people, and furthermore, we have learned how to assert those rights.5

Without doubt, the Ouje-Bougoumou Cree have been their own champions; and, as Chief Bosum pointed out, their struggle is far from over. Thus, at the ground-breaking ceremonies he spoke not only of the past, but also of the future:

We still have a great deal of planning to do in the areas of housing, education, health, our local administration, the development of policing and fire services, communications and economic development. It will be important for our future as a community to view these future areas of development in the same way that we have viewed our struggle until now. We, as a community, will need to approach our future development with the same sense of dedication and the same sense of determination.⁶

Nation building is not easy, but, as Chief Bosum also noted, the Ouje-Bougoumou have their elders, their youth and their leaders to meet further challenges.

Canadians and their political leaders, for their part, must not relegate the experience of the Ouje-Bougoumou Cree to memory. They must remember that at issue for the Ouje-Bougoumou, and for many other Native peoples, are basic human rights. Shelter, sanitation and relief from poverty are not privileges, and obtaining them must not be tied to positions and moves in political negotiations.

In its Speech from the Throne, the federal government spoke of building "a prosperous society in which all men and women have an equal opportunity to participate, in which benefits and responsibilities are fairly shared and in which the most vulnerable among us are protected."⁷ If Canada is to remain true to this ideal, measures similar to the Ouje-Bougoumou Socio-Economic Development Fund must be available to all First Nations. The signs are promising. Prospects for social and economic healing are improving with such progressive agreements as the Ouje-Bougoumou Cree Fund described above, as well as a $50-million socio-economic development fund for the Northwest Territories.

This Commission asserts, categorically, the necessity of such funds. Government budgets must provide substantial monies for such development if Canada is to allow aboriginal peoples to participate equitably in its society.

THE NASKAPI BAND

The Naskapi of northern Quebec are a small community with a population of approximately 550. Although distinct in language and geography, the Naskapi work essentially within the same legal framework as the Crees of northern Quebec. Like the Crees, their self-government is set up according to the Cree-Naskapi (of Quebec) Act. And while their land claims settlement is not the James Bay and Northern Quebec Agreement, but a separate agreement, the Northeastern Quebec Agreement, the two agreements are virtually identical.

The Naskapi are fairing far better under self-government than are the Crees. The Naskapi's report of healthy relations with both Canada and Quebec is in stark contrast to the situation of the Crees. Because they face no threat from Phase Il of the James Bay Hydro-Electric Project and because they do not have to forge a consensus with other communities dealing with federal and provincial governments, their agenda is simpler. In addition, the Naskapi have made significant economic and social progress, despite their isolated location and the shutdown of the nearby town of Schefferville. Since signing the Agreement in 1978, their community has undergone considerable change in political, social, economic and community organization. They have worked hard to improve their way of life while maintaining respect for their roots and traditions. And their prospects for the future continue to be bright. They recently elected a new chief and council to carry them into the 1990's. Joe Guanish, their Chief at the signing of the Northeastern Quebec Agreement in 1978, served continuously until December 13, 1990.

Despite this very optimistic picture, it would be misleading to suggest that the Naskapi have not had problems implementing their Agreement and the Cree-Naskapi (of Quebec) Act. Because the Naskapi negotiated the Northeastern Quebec Agreement and the Cree-Naskapi (of Quebec) Act in step with the Crees, they share many problems arising from disputes with federal and provincial governments. In particular, the lack of implementation agreements and implementation plans have given rise to problems similar to those experienced in the Cree communities. However, the Naskapi have recently negotiated important agreements with the federal government in the areas of operations and maintenance funding and implementation of the Northeastern Quebec Agreement. The Crees and the federal government have yet to achieve similar successes. Other areas where the Naskapi have experienced problems and made recommendations include justice, bylaws relating to alcohol, andhousing.

AN AGREEMENT ON OPERATIONS AND MAINTENANCE FUNDING

In March 1989, the federal government and the Naskapi, through a mediated process guided by Tony Price, reached an agreement on annual operations and maintenance funding.¹ The agreement covers a period extending to March 31, 1994. The funding covers costs for local government services and regional support services. It does not include costs relating to the land registry system, the band membership registry system, and policing.

The base-year funding level (commencing April 9, 1989) was established at $1,259,888. In subsequent years, until 1994, this level will be adjusted up from the base-year level, taking into account population changes and changes in the Consumer Price Index. The agreement commits the Naskapi and the federal government to further negotiations, prior to March 31, 1994, for extending the agreement to March 31,1999.

AN AGREEMENT ON IMPLEMENTATION

In September 1990, the Naskapi and the federal government executed An Agreement Respecting the Implementation of the Northeastern Quebec Agreement.² This Agreement does not in any way amend, modify or derogate the Northeastern Quebec Agreement.³ The major components of the Agreement are as follows:

• Canada will establish an internal organization and structure to deal with the Naskapi.

• A dispute resolution mechanism will resolve disputes between the Naskapi and the federal government.

• Provision will be made for capital funding. A joint working group will study and report on ways to increase employment for the Naskapi.

• Canada will contribute funding for Naskapi conservation officer training.

• Canada will make a onetime payment of $1,639,840 to settle Naskapi grievances and claims relating to implementation of the Northeastern Quebec Agreement and the Cree-Naskapi (of Quebec) Act.

JUSTICE

In the area of justice, one issue which continues unresolved among the federal government, the Quebec government and the Naskapi is who should prosecute Naskapi bylaws. Robin Pratt, legal counsel for the Naskapi, explained the matter this way:

We have a long-standing problem. Quebec is not accepting the responsibility to prosecute band bylaws; nor are they accepting to pay the costs of the Band hiring a lawyer to do the same thing. They [Quebec] say they still have it under review, but they have not come up with any money. The Band spent a lot of money prosecuting Naskapis under its alcohol bylaw. Then the law was eventually upset as being contrary to the Charter of Rights and Freedoms.⁴

The source of the problem is conflicting assignments of responsibility. The Cree-Naskapi (of Quebec) Act, an act of Parliament, specifically recognizes Cree and Naskapi bylaw authority.⁵ On the other hand, according to the Northeastern Quebec Agreement, the Quebec government is responsible for the administration of justice for the Naskapi.⁶ The situation, as it presently stands, has the Naskapi, who are least equipped for the task, bearing the burden.

Also at issue is who receives the revenues from fines imposed in application of the Cree-Naskapi (of Quebec) Act or band bylaws. The Naskapi recommend that the Act should be amended so that fines are recovered by the band. Such a measure, they argue, would partly cover the cost of prosecutions. The Cree-Naskapi Commission believes that this recommendation should be implemented immediately. The Commission notes, however, that such a measure can also be accomplished by a directive from the Quebec Department of Justice.

Finally, the Naskapi are concerned that Naskapi offenders often do not have access to community-oriented or Native-oriented legal services when they appear in court. The Naskapi believe that the principles of equity and equal access to justice dictate that, at the very least, the services of Native court workers should extend to their community.⁷ The Commission's view is that Quebec, the federal government and the Naskapi should meet to explore this issue and agree on a solution.

BYLAWS CONCERNING ALCOHOL

The Naskapi feel that existing Cree-Naskapi alcohol bylaw authority is not equal to the authority possessed by bands under the Indian Act. Their attempts at dealing with alcohol abuse through strict legislative control have been found contrary to the Charter of Rights and Freedoms by the courts. The courts have determined that the Cree-Naskapi (of Quebec) Act does not have sufficient authority to overcome challenges based on the Charter. The solution, the Naskapi believe, lies in increasing the power of alcohol bylaws so that alcohol can be prohibited in public as well as in private places.⁸

HOUSING

On the issue of housing, John Mameamskum, speaking for Naskapi Chief George Shecanapish, told the 1991 report consultations that anticipated housing from CMHC is insufficient for Naskapi needs.

[We] need to build at least four houses a year for the next four years. But [CMHC is] willing to give us only nine houses over three years, three in each. We don't think that's sufficient because it's going to cost the Band over a million dollars just to put in the infrastructure, such as water and sewer and electrical lines.

And we told them that, because the capital cost to the Band would be a lot, we need some assurances that we're going to have more houses to build.⁹

As did the Crees, the Naskapi noted that about 50 percent of their population is under 25 years of age. This fact means that there will be problems in the future with housing allocations.¹⁰ Currently, the Naskapi use small apartments as a temporary stopgap for their housing needs.¹¹

CHANGES TO THE CREE-NASKAPI (OF QUEBEC) ACT

The Naskapi have recommended a number of changes to the Cree-Naskapi (of Quebec) Act.¹²

With respect to conflict of interest, the Cree-Naskapi (of Quebec) Act prohibits a council member from voting on a matter in which he or she has a financial interest.¹³ This creates considerable inconvenience when the salaries of council members are established. The Naskapi recommended that the problem be addressed by inserting a new section, 38.(1), into the Act. The new section would read as follows:

38.(1) For the purposes of section 38, a council member shall be deemed not to have a pecuniary interest in any matter before the council by reason of its relating primarily to his or her remuneration as a council member.

This solution would be similar to that found in the Canada Business Corporations Act, 1985, which allows a director to vote on a resolution approving a contract "relating primarily to his remuneration as a director, officer, employee or agent of the corporation ..."¹⁴

Concerning certification of band documents, two subsections, 42.(2) and 203.(1), of the Act overlap. Both subsections address the certification of band documents by the band secretary. The Naskapi recommend that subsection 42.(2) be amended to read as follows:

(2) The band secretary has the power to issue certified copies of any bylaw or resolution of the band, of minutes of council meetings, special band meetings and ordinary band meetings, and of any other document issued under the authority of the band.

With this amendment, subsection 203.(1) could be repealed. The Naskapi further suggest that section 43 be renumbered subsection 43.(1), subsection 203.(2) be redesignated as the new subsection 43.(2), and subsection 203.(3) be redesignated the new subsection 42.(3).

The Naskapi have also pointed out other problems of inconsistency and incomparability.

• The word "special" in the second line of subsection 77.(2) should read "ordinary" to make it consistent with subsection 76.(4).

• Two provisions relating to the communication of band bylaws to the Minister within a 30-day period are potentially incompatible. Each uses different language to signify when the 30-day period commences. Subsection 86.(4) states that the 30-day period commences on the date of enactment of the bylaw; subsection 53.(3) states that the 30-day period commences on the day on which the bylaw comes into force. Moreover, subsection 86.(4)is redundant. As a special requirement relating to band meetings and referenda, it is already covered by subsection 53.(3) which applies to all bylaws. The Naskapi recommend that 86.(4) be removed.

• Subsection 150.(1) explicitly deals only with rights granted after the coming into force of Part X of the Cree-Naskapi (of Quebec) Act. Paragraph 150.(1)(c), however, refers to rights which were necessarily granted before the coming into force of Part X of the Act. These pre-existing rights and their effect on Category IA and IA-N lands are addressed in the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. Paragraph 150.(1)(c), therefore, serves no useful purpose and should be removed.

The points raised by the Naskapi illustrate one kind of revision which should be made to the Cree-Naskapi (of Quebec) Act. In Chapter 8 of this report, we discuss more generally the kinds of revisions to the Act that are necessary. The points raised by the Naskapi and their recommended revisions are not contentious. Therefore, they should be part of a general inventory of changes that should be made to the Act.

TRANSLATION OF THE CREE-NASKAPI (OF QUEBEC) ACT

The Naskapi are anxious to have a version of the Cree-Naskapi (of Quebec) Act in the Naskapi language.¹⁵ A Naskapi translation of the Act would help elders, councillors and students understand the Act and would signal to the Naskapi the dignity and importance of their language.

THE MANDATE OF THE CREE-NASKAPI COMMISSION

Despite recent Naskapi successes at resolving issues with the federal government and the establishment of the dispute resolution mechanism mentioned above, the Naskapi continue to support a broader mandate for the Cree-Naskapi Commission. They believe thatthe Commission's mandate should include implementation of the Northeastern Quebec Agreement. As do the Crees, the Naskapi believe that the Commission's mandate, if enlarged, would help ensure that both the federal and provincial governments fulfil their obligations under the Agreements.¹⁶

IMPLEMENTATION OF THE JAMES BAY AND NORTHERN QUEBEC AGREEMENT

When the James Bay and Northern Quebec Agreement was signed in 1975, it was hailed as the most significant victory for Canada's aboriginal people to date. The Agreement had its origin in Quebec Premier Robert Bourassa's 1970 announcement that hydro-electric development in the James Bay region represented the economic future of Quebec. The James Bay Crees soon realized that this development would take place on lands they claimed were their traditional territories, and they began a long struggle to assert their rights. The Agreement, which embodies their land claims settlement, was the culmination of their struggle. The magnitude of the claim, the complexity of the litigation which led to negotiations, and the scope and innovative nature of the resolution embodied in the Agreement ensured that it would be a landmark in Canadian history.

Now, after 16 years' implementation, the Crees no longer see the Agreement as the victory they once believed it to be. For the Crees, many parts of the Agreement remain unfulfilled. Repeatedly, in their presentations to the Commission's report consultations, the Cree bands and Cree agencies reported problems and issues connected with implementation of the Agreement. They stressed four areas in particular: the proposed James Bay II hydro-electric development, the status of the Agreement (and the consequent relations between the Crees and the federal government), capital funding, and education. While these matters lie outside our mandate, we feel compelled at least to draw attention to them.

THE JAMES BAY II HYDRO-ELECTRIC

DEVELOPMENT PROJECT

On the proposed Phase II of the James Bay Hydro-Electric Development Project, the Crees and the Government of Quebec are embroiled in a conflict which is far from resolution. In simple terms, the Crees seek to block permanently any further development. The Crees contend that the James Bay and Northern Quebec Agreement establishes that any future development requires their consent. This consent, they say, will never be forthcoming because further development will cause irreversible damage to the environment and will affect Cree rights. The Crees assert that the federal and provincial governments have failed to comply with the environmental provisions set out in sections 22 and 23 of the Agreement.¹ The safeguards contained in these sections, they say, cannot be enforced because there is no adequate secretariat or staff to certify compliance. Moreover, the so-called "environmental committees" created under terms of the Agreement have not been permitted to operate in a satisfactory manner.²

To assert their rights, the Crees have once again turned to the courts. For instance, in the Federal Court of Canada, Trial Division, the Crees have secured an order to invoke the federal government's Environmental Assessment Review Process. In the Reasons for Order, Judge Rouleau states:

I conclude that, under the terms of sections 22 and 23 of the JBNQ Agreement, ... the federal Administrator has a public, non-discretionary duty to carry out an independent federal environmental review of the Great Whale Project.³

The Crees have also fought the projects in the markets where the energy is destined. In New York State and Vermont, the Crees have generated support for their opposition to the projects.

The hydro-electric projects also present a different kind of reality the Crees must face. Over the past 15 years, the projects have produced economic benefits for Crees, other than those based directly on the Agreement. Under the shadow of the projects, the Crees have made significant economic gains. These economic gains have not come easily; but with determination and an ability to adapt, the Crees have become a positive economic force in Northern Quebec. There is, nevertheless, a growing need for additional social and economic resources, especially given the demography of the Cree nation. Today, young people, i.e., those under 25 years old, are the largest component of the Cree nation. And many of these Cree youths no longer take up the traditional harvesting pursuits which were the main economic activity of their predecessors. The Crees seek, therefore, to develop further a non-traditional economic base. However, unlike the Quebec government, they are not prepared to link their economic future to further hydro-electric development.

STATUS OF THE JAMES BAY AND NORTHERN QUEBEC AGREEMENT AND RELATIONS BETWEEN THE CREES AND THE FEDERAL GOVERNMENT

The purpose of the Crees' legal actions is not just to halt hydro-electric development. These actions are also attempts to use the courts to fully implement the James Bay and Northern Quebec Agreement and thereby force Canada to respect its own law. At issue, therefore, in the Crees' attempt to invoke the federal government's environmental assessment review process for James Bay II is the status of the James Bay and Northern Quebec Agreement. Is the Agreement a part of the law of Canada or is it simply a contract? If the Agreement is a part of Canadian law, then the federal government may be bound to carry out the review. If the Agreement is a contract, then the government may not be so bound. In its consideration of the case, the Federal Court of Appeal has summarized background to the issue as follows:

In recent months the Government of Quebec, the James Bay Corporation and Hydro-Quebec have made public their intention to proceed with Phase II of the hydro-electric power development, and there has been a calling of tenders for the clearing for, and construction of, an access road. Federal ministers initially took the position that an environmental assessment should precede Phase II but in November 1990, Robinson [the federally appointed Administrator of the environmental and social protection regime in sections 22 and 23 of the James Bay and Northern Quebec Agreement] informed the Crees that he had no mandate to apply a federal environmental assessment. Then, on February 12, 1991, the Government of Canada entered into an agreement with the Government of Quebec excluding the federal environmental impact assessment procedures under sections 22 and 23 of the Agreement. One week later, on February 19, 1991, the Native applicants brought this application in the Trial Division [of the Federal Court of Canada] to compel Robinson to undertake these environmental assessment procedures.⁴

The federal government argued here that the Federal Court, Trial Division, lacked jurisdiction to compel Mr. Robinson to undertake the assessment because Mr. Robinson did not exercise jurisdiction or powers conferred by or under an Act of Parliament. They argued, in other words, that the James Bay and Northern Quebec Agreement is a contract, and not an Act of Parliament.

Trial Division agreed with the Cree claim and asserted that the Agreement is part of the law of Canada. The case was taken to the Federal Court of Appeal and, three months later, after extensive consideration of the arguments and case law, the Federal Court of Appeal concluded:

Authority, as well as reason, thus leads to the conclusion that the federal Administrator is a "federal board, commission, or other tribunal" under ss. 18 and 44 of the Federal Court Act, and the Trial Division has jurisdiction in this matter.⁵

Quebec's and Hydro-Quebec's application to appeal the decision to the Supreme Court of Canada has been denied. The decision means, therefore, that while the Agreement is not an Act of Parliament, it is, nevertheless, a law of Canada.

The status of the James Bay and Northern Quebec Agreement has also been at issue over which laws govern federal-Cree relations. Despite the Agreement, the federal government continues to conduct its business with the Crees under authority of section 91.(24) of the Constitution Act, 1867. This provision says that the federal government has exclusive legislative authority on matters relating to "Indians and lands reserved for the Indians." Here, the Crees have sought, on certain matters, to work under a preferred arrangement based on the Agreement--recognized under section 35.(3) of the Constitution Act, 1982 as embodying treaty rights--while claiming entitlement to program benefits under section 91.(24) of the Constitution Act, 1867.

Overall, ongoing negotiations on implementation of the Agreement dominate Cree-federal relations and discussions are progressing slowly. This lack of progress arises from disagreements, including those just described, over the interpretation of the various provisions of the Agreement. A further stumbling block is the refusal of some federal officials to acknowledge that the relationship between the Crees and the federal government is unique. Our review of these disputes suggests that the federal government interprets the Agreement too narrowly and that the federal position does not conform to what the courts have said about interpreting Indian treaties and agreements. Moreover, the federal government does not abide by statements of the Supreme Court of Canada that the federal government is obliged to adopt a fiduciary role in its dealings with aboriginal peoples.

CAPITAL FUNDING: A NEW FRAMEWORK FOR NEGOTIATIONS

On March 2, 1988, the federal government and the Grand Council of the Crees (of Quebec) established a new framework for negotiating capital funding. The framework is embodied in an agreement entitled Parameters, Principles, Objectives, and Framework for Negotiations on the James Bay and Northern Quebec Agreement between Canada and the Grand Council of the Crees (of Quebec).⁶ It is signed by Bill McKnight, the then Minister of Indian and Northern Affairs, and Matthew Coon-Come, Grand Chief of the Grand Council of the Crees (of Quebec). Two features are fundamental to this framework: 1) the appointment of a mediator to oversee negotiations and 2) the recognition of certain principles to govern negotiations.

In accordance with this agreement, the Cree-Naskapi Commission's Chairman, Justice Rejean F. Paul, was appointed, on an interim basis, as mediator. According to the agreement:

The mediator is authorized to oversee and, where appropriate, to lead negotiations between the Federal Government and the Grand Council of the Crees (of Quebec) respecting implementation by Canada of the legal obligations it has assumed under the James Bay and Northern Quebec Agreement and related legislation (including the Cree-Naskapi (of Quebec) Act) and legal documents or arrangements.⁷

While negotiations are to cover differences in interpretation of the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act, the agreement specifically states that "this mandate is not to be construed as an authorization to reopen [these documents] for the purpose of any amendment whatsoever."⁸ A time frame of six months is set out in the agreement and while this six-month period has passed, Justice Paul has, from the date of his appointment to the present, undertaken mediation on the basis described in the agreement.

With respect to principles, the agreement states that "the negotiations shall take into account the spirit and intent of the James Bay and Northern Quebec Agreement, related legislation, legal documents or arrangements."⁹ The concept of "spirit and intent" is fundamental here. Both the federal government and the Crees consider the James Bay and Northern Quebec Agreement a modern-day treaty. Moreover, section 35, the treaty and aboriginal rights provision, of the Constitution Act, 1982⁽¹⁰⁾ states that "treaty rights" includes rights that now exist in land claims agreements. The James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act are to be interpreted, therefore, in the "spirit and intent" of a treaty. The concept of"spirit and intent" as applied to treaty interpretation is defined as a set of general principles in the case of Claxton v. Saanichton Marina Ltd.¹¹ as follows:

In approaching the interpretation of Indian treaties, the courts in Canada have developed certain principles which have been enunciated as follows:

1. The treaty should be given a fair, large and liberal construction in favour of the Indians;

2. Treaties must be construed not according to the technical meaning of their words, but in the sense that they would naturally be understood by the Indians;

3. As the honour of the Crown is always involved, no appearance of "sharp dealing" should be sanctioned;

4. Any ambiguity in wording should be interpreted as against the drafters and should not be interpreted to the prejudice of the Indians if another construction is reasonably possible;

5. Evidence by conduct or otherwise as to how the parties understood the treaty is of assistance in giving it content.¹²

These principles create the context in which negotiations on the Cree share of normal capital program funding for 1987/88 and 1988/89 are to take place.

CAPITAL FUNDING: THE ISSUE

Negotiations have focused on the deduction of electricity capital and education capital from the overall Cree capital allocation, a practice of the federal government since 1986. The Crees contend that these deductions deny them their fair share of normal capital funding. The federal government, on the other hand, contends that not to deduct electricity and education capital from the Cree allocations is to duplicate funding and award the Crees funds to which they have no right. It should be noted that Cree allocations for electricity and education have both capital and operations and maintenance portions. It is only the capital portions that are under dispute.

Both the Crees and the federal government acknowledge that the James Bay Agreement provides for special funding in certain areas and allows for regular, ongoing, Indian Affairs program funding in other areas. The point under dispute is whether the electricity and education funding provided for in the James Bay and Northern Quebec Agreement is separate from and independent of normal Indian Affairs program funding or whether it is blended in, a part of, such program funding.

CAPITAL FUNDING: THE CREE POSITION

The Crees argue the first position and claim that specific funding obligations under the James Bay Agreement must be severed from the obligations of normal Indian Affairs program funding. The Crees claim that in deducting electricity and education capital from normal capital program funding, the federal government, has combined, or failed to distinguish, two separate entitlements. On the one hand are entitlements for education under section 16, Cree Education, of the Agreement and entitlements for electricity in northern Quebec agreed upon in a Protocole d'Entente¹³ signed in 1973 and 1974 and guaranteed as independent of the Agreement in section 8.6.8. On the other hand are entitlements to general federal and provincial program funding. That these two entitlements are separate and independent, the Crees claim, is made abundantly clear in the Agreement. Sections 2.11 and 2.12 read:

Nothing contained in this Agreement shall prejudice the rights of the Native people as Canadian citizens of Quebec, and they shall continue to be entitled to all of the rights and benefits of all other citizens as well as those resulting from the Indian Act (as applicable) and from any other legislation applicable to them from time to time.¹⁴

Federal and provincial programs and funding, and the obligations of the federal and provincial governments, shall continue to apply to the James Bay Crees and the Inuit of Quebec on the same basis as to the other Indians and Inuit of Canada in the case of federal programs, and of Quebec in the case of provincial programs, subject to the criteria established from time to time for the application of such programs.¹⁵

Also relevant is section 28.1.1, which, in part, reads:

Programs, funding and technical assistance presently provided by Canada and Quebec, and the obligations of the said governments with respect to such programs and funding shall continue to apply to the James Bay Crees on the same basis as to other Indians of Canada in the case of federal programs, and to other Indians in Quebec in the case of provincial programs, subject to the criteria established from time to time for the application of such programs, and to general parliamentary approval of such programs and funding.¹⁶

Thus, according to the Crees, blending the two kinds of funding by deducting electricity and education funding from general program funding is a violation of the Agreement.¹⁷ Moreover, they say, it is inconsistent with previous government undertakings and previous government practice.¹⁸ On this point, they cite examples such as the Treasury Board Submission of 1985,¹⁹--on which Treasury Board allocations of funds for normal Cree capital funding was based which acknowledges that electricity and education capital are separate. The submission states:

This submission requests authority to establish capital funding (excluding education and electricity) for the Cree (only) in 198586 (only) on the same basis as local government operations funding: grants and two instalments (75 percent and 25 percent). Capital for education is provided through a separate arrangement with Quebec. Electricity and future year funding will be the subject of later submissions.²⁰

CAPITAL FUNDING: THE FEDERAL GOVERNMENT'S POSITION

The federal government argues the second position and considers that funding obligations arising from the James Bay Agreement must be included in normal Indian Affairs program funding so that the Crees receive only their fair share. This approach, say federal government officials, is the general practice employed by the federal government in dealing with Indian funding. Such practice means that the government is dealing equally with all of the Indian bands in Canada. It means that the Crees receive their fair share for capital needs relative to the allocations for other Indian bands and avoids the Crees getting more capital funding than their entitlements dictate.²¹ Also in this context, the federal government approaches funding as relative to the Constitution Act, 1867, and the Indian Act (that is, regular program funding). In general, the government sees funding as discretionary in so far as its spending on Indians has to be considered within its overall financial appropriations. This implies that government funding is decided upon by policy and not in legal accordance with an agreement.

CAPITAL FUNDING: A SHIFT IN THE FEDERAL APPROACH

The federal government's deductions of electricity and education capital funding from normal Cree capital allowances is part of a broader shift in its approach to federal-Cree relations. The deductions are a major departure from government practice and Cree-federal understandings prior to 1986. Until that time, the Agreements were dealt with according to "a negotiated implementation." In the words of the James Bay and Northern Quebec Agreement Implementation Review of February 1982 (known as the Tait Review):

The agreement was not intended to be a fixed and static legal document but rather a flexible agreement which would allow problems to be worked out through ongoing interaction.²²

A survey of Cree-federal interactions prior to 1986 reveals that interim agreements commonly served as bridges until more comprehensive and more mutually satisfactory arrangements could be worked out.²³ The 1986 decision by the federal government tounilaterally determine capital funding and to include electricity and education in their Cree capital allocation was a major departure from this approach. Clearly, the government wanted to deal with the Crees within the policy and programs that stem from the Constitution Act, 1867, and the Indian Act and not the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act. The government viewed this as a discretionary exercise of jurisdiction and authority. The government's new approach is characterized in a passage from the Tait Review of four years earlier:

Indeed, many of the key obligations assumed by Canada are worded in such a way as to give Canada wide discretion in fulfilling them. The determination of when and how commitments are fulfilled and the level of funding are, in the context of the agreement, usually matters of public policy and not law.²⁴

Such an approach is a denial that the James Bay and Northern Quebec Agreement is capable of specific legal interpretation.

CAPITAL FUNDING: SPIRIT AND INTENT

The concept of "spirit and intent" and the principles enunciated in Claxton v. Saanichton Marina Ltd. offer a legal and equitable approach towards addressing this issue. As we noted above, the James Bay and Northern Quebec Agreement is a legally binding agreement and a part of the law of Canada.²⁵ Moreover, it is, as we also noted, recognized as a modern-day treaty with constitutional recognition under the Constitution Act, 1982. ²⁶ These legal properties mean that the Agreement is not simply a contract and that it is inappropriate to apply principles of contract law to it when dealing with its content or intent. Rather, the judicially developed rules of interpreting Indian treaties must be applied. In the case of this dispute, the first two principles of judicial interpretation described above are particularly important:

1. The treaty should be given a fair, large and liberal construction in favour of the Indians; and

2. Treaties must be construed not according to the technical meaning of their words, but in the sense that they would naturally be understood by the Indians.

Following these principles, one assumes that the Crees' goal in signing the Agreement was to obtain benefits and services for their people which were over and above those already applicable to them. Prior to the Agreement, the Crees were entitled to federal funding relating to the Constitution Act, 1867, and to Indian Act programs, services and benefits. Such funding included capital for housing, infrastructure, health, education, and electricity (where it was not readily available for purchase from hydro-electric installations). Given sections 2.11, 2.12 and 28.1 of the Agreement, the Cree naturally assumed that normal capital program funding by all federal agencies, and in particular by the Department of Indian and Northern Affairs, was to continue on the same basis-- and without reduction--as before the Agreement was signed. At the same time, the Crees naturally understood the education and electricity provisions of the Agreement to mean that for these areas there would be special funding outside of normal program funding. In simple terms, if the provisions for electricity and education did not provide the Crees with benefits over and above what they already had, they would not have agreed to them. A detailed examination of the two disputed areas, electricity and education, supports this view.

CAPITAL FUNDING: ELECTRICITY

The Protocole d'Entente states that Canada is committed to upgrading the electrical facilities in communities served by diesel-generated electricity to a standard that will allow Quebec to deliver hydro-electrical services.²⁷ Prior to the Protocole and the Agreement, the Crees had no obligation to provide electricity to communities that were not served by hydro-electric power. It was the federal government which paid the full cost of the diesel service. Moreover, according to section 8.6.8, nothing in the Agreement affects this situation.

Nothing herein shall affect the rights and obligations of the parties to the Protocole d'Entente presently in force between Canada, Quebec and Hydro-Quebec concerning the supply of electrical power in isolated northern Quebec communities executed by the parties on March 1, 1974, January 29, 1974, and December 21, 1973, respectively.²⁸

It appears, therefore, that the federal government's deducting electricity capital from the Crees' overall capital allocations violates section 8.6.8. In effect, the federal government is transferring its obligations to supply electricity to the Crees, including Cree bands which had received no benefit from the diesel-generated operations.

A similar situation exists with the Wemindji Electricity Agreement.²⁹ This Agreement outlines federal obligations to provide electricity to the Wemindji community by buying the electricity from the Wemindji Band itself, through its Mini-Dam facility. Article 9 of the Agreement states that:

... nothing in this agreement shall affect the operation of other programs and services and Canada's obligations with respect thereto shall continue to apply to the Wemindji Band and the band members on the same basis as to other James Bay Cree bands and band members.³⁰

Article 9 is further elaborated in a letter dated March 27, 1986, from David Crombie, then Minister of Indian Affairs, to Walter Hughboy, Wemindji Chief. The letter states:

... it is understood that any payments receivable by the Wemindji Band under or pursuant to the Wemindji Electricity Agreement shall not affect the Wemindji Band's entitlement to its share either of the annual capital grants payable to the Cree bands or of the annual operating subsidy grants payable to Cree bands pursuant to the Cree-Naskapi (of Quebec) Act.³¹

Thus, like section 8.6.8 of the James Bay and Northern Quebec Agreement, Article 9 of Wemindji Electricity Agreement directs the federal government to provide electricity solely at its own costs.

Deducting electricity costs from Cree entitlements to normal capital program funding is, therefore, an unwarranted transfer of federal financial obligations to the Cree bands. It seriously affects each band's annual capital grant, a situation which is especially disturbing because, in some cases, it applies to bands which do not even benefit from electricity arrangements.

CAPITAL FUNDING: EDUCATION

In the area of education, the Crees contend that section 16 of the James Bay and Northern Quebec Agreement clearly establishes that the federal government has special capital funding obligations outside normal capital funding. They argue the point by referring to the overall scheme of section 16, and also by referring to specific provisions such as section 16.0.27:

The budget of the Cree School Board shall take into account the unique characteristics of the Cree School Board's geographical location and of its student population.

It is important to note that the Cree School Board is an entity distinct from the Cree bands, the Cree Regional Authority and the Grand Council of the Crees (of Quebec). It is reasonable to expect, the Crees say, that determining the needs of the Board and securing the financial resources to meet those needs is a process completely separate from the processes involved in determining the capital needs of the hands. Moreover, section 16 contains no language which refers to federal and provincial governments' budgetary constraints as determining what the Cree School Board is to receive. Determination of the Board's financial entitlement is to be based on need. This point and the notion that the Board's entitlements are not to be affected by what occurs in other areas of funding is made clear in section 16.0.22:

Programs and funding by Quebec and Canada, and the obligations of such governments in favour of the James Bay Crees, shall continue, subject to the Agreement. As a result thereof there shall be no decrease in the quality and quantity of educational services presently available to Native persons for their education and the operational and capital funding necessary to ensure services will be provided by Quebec and Canada.³²

It has been suggested that the provisions of section 16 (as well as the electricity provisions of section 8.6.8 and the Wemindji Electricity Agreement) are vague, ambiguous and open to widely varying interpretations. Such suggestions are difficult to maintain given the relatively clear wording of the provisions. Moreover, the principles of treaty interpretation described above address the problem of ambiguity and vagueness where it exists: "Any ambiguity in wording should be interpreted as against the drafters and should not be interpreted to the prejudice of the Indians if another construction is reasonably possible."³³

The principles of treaty interpretation found in recent case law such as Claxton v. Saanichton Marina Ltd., section 35.(3) of the Constitution Act, 1982, and the fact that Canadian law has progressed in its dealings with aboriginal litigation, suggest strongly that the federal government's position that it is not obliged to pay electricity and education funding over and above normal program funding is untenable. The federal government's discretionary powers under the Constitution Act, 1867, if they really are discretionary, have been transformed by the enforceable and constitutionally protected rights of aboriginals as found in land claims settlements such as the James Bay and Northern Quebec Agreement.

EDUCATION: PROVISIONS IN THE JAMES BAY AND NORTHERN QUEBEC AGREEMENT

Education is fundamental to the James Bay and Northern Quebec Agreement. Section 16, Cree Education, is a cornerstone of the Agreement and, according to Chief Billy Diamond, one of the principal architects of the Agreement, "without section 16, which is the basis of the future of the Crees, I don't think there would have been a James Bay and Northern Quebec Agreement."³⁴ The centrality of education is underscored by the federal government's recent announcement that it will make education an essential element in its prosperity agenda. "In the dawning knowledge age," the government says in the Speech from the Throne, "how well we live will depend on how well we learn."³⁵

Building an education system is a major undertaking. In negotiating the James Bay Agreement, the Cree leadership anticipated the challenge and arranged for local control of all facets of the education system. The Agreement establishes the Cree School Board, composed of commissioners elected from each of the eight Cree communities, with responsibility for elementary, secondary and adult education. The Crees also negotiated guarantees that Canada and Quebec would provide funding which ensures that Cree students receive an education of the same standard and quality as that received by other students in Canada:

Programs and funding by Quebec and Canada, and the obligations of such governments in favour of the James Bay Crees, shall continue, subject to the Agreement. As a result thereof there shall he no decrease in the quality and quantity of educational services presently available to Native persons for their education and the operational and capital funding necessary to ensure services will be provided by Quebec and Canada.³⁶

Moreover, funding is to be comprehensive. The Agreement provides for buildings, facilities and equipment; increases in the student population; transportation; special curricula; residences for students attending schools outside their community; kindergarten programs and facilities; physical education and sports programs; adult education programs; northern allowances; and conditions and benefits to attract and retain competent teaching personnel.³⁷

EDUCATION: THE CURRENT SITUATION

From the start, the Cree School Board considered that its mandate under the Agreement was "to rebuild the provision of education services to the Cree students from the ground up"³⁸ In the early stages of implementation, building is precisely what the School Board did. Schools, residences, and administrative facilities were given first priority to ensure that a minimum infrastructure was available in each community.

Despite all this initial activity, the conditions surrounding Cree education are sadly inadequate. The Cree-Naskapi Commission has witnessed this deplorable situation first-hand. In our visit to the Waskaganish school facilities, we observed dramatic shortages and deficiencies with respect to classroom space, library books, science labs, physical education facilities, audiovisual equipment, up-to-date and culturally appropriate teaching materials, and numbers of teachers. We viewed overcrowded classrooms and classrooms in portable facilities that were drafty, damp or overheated. This situation will worsen, we were warned, as the student population increases, as it does on a yearly basis.

We were told how the shortage in proper teachers' residences affects the quality of the teaching staff since qualified and experienced teachers are often not satisfied with the housing available to them. As a result, inexperienced teachers, committed though they are, are being thrust into difficult teaching situations without proper experience and supervision. The seriousness of the problem was underlined by Chief Diamond when he suggested that, as a remedial measure, and in the best interests of its students, Waskaganish may have to arrange to send its students outside their own community to receive their education at the hands of non-Cree educators and administrators.³⁹

EDUCATION: INADEQUATE FUNDING

According to the Cree School Board, the source of the problem is inadequate funding from federal and provincial governments. The Cree School Board contends that the federal and provincial governments have not devised funding policies or made adjustments to their old ways of dealing with the Crees so as to meet their responsibilities and obligations under the Agreement. Though the Agreement states that the Cree School Board's annual budget for operating and capital costs shall be provided according to a formula determined by Quebec, the Department of Indian Affairs and the Crees,⁴⁰ and that budgets have to be approved by Canada and Quebec,⁴¹ it also states that:

The budget of the Cree School Board shall take into account the unique characteristics of the Cree School Board's geographical location and of its student population.⁴²

The Crees interpret the Agreement, therefore, as providing a constitutional guarantee that resources for Cree education will be secure and will be determined according to necessary operating and capital costs as well as special needs (such as delivering education in Cree, French and English and providing special, culturally oriented, courses.) Yet, in its 1990/91 Annual Report, the Cree School Board states:

One of the greatest difficulties faced by the Cree School Board is related to the fact that the governments of Canada and Quebec persistently attempt to apply inappropriate national and southern standards to the Cree School Board in spite of specific obligations to fund the defined and agreed-to powers of the Board as set out in the James Bay and Northern Quebec Agreement.⁴³

In its submission to the consultations for this report, the Cree School Board traced the funding issue back to 1978 when the Board attempted to negotiate a financial parameters agreement with the federal and provincial governments.⁴⁴ According to the Board, "chronic underfunding" is due in large part to deliberate decisions by the governments to limit their obligations. One example the Board cited was an attempt by the federal government to frame a bilateral Quebec-Canada agreement for funding Cree education. The federal solution was to impose Indian Affairs federal program standards on Cree education entitlements.⁴⁵ The result would have been the application of normal Department of Indian Affairs programming to Cree education, despite the specific education rights guaranteed in the Agreement. Fortunately, that scheme was not implemented. As for the Quebec government, the Board reported that it too had intended to impose its own unilateral solution to the constant budgetary dispute. The Board resisted an attempt by the Quebec government to impose budgetary rules that had not been developed in conjunction with either the federal government or the Crees.⁴⁶

The Cree School Board did report that it is presently engaged in negotiations with Quebec aimed at resolving the disagreements over funding levels and that Quebec has undertaken these negotiations partially as an attempt to redress past underfunding.⁴⁷ The Board did not make any such positive observations about Canada's initiatives in this area, even though Canada is required to pay 75 percent of the Cree School Board budget.

EDUCATION: A CALL FOR SOLUTIONS

It is the view of the Cree-Naskapi Commission that the federal and provincial governments are minimizing their financial obligations to the serious determent of Cree education. According to the James Bay and Northern Quebec Agreement, funding for education is to be determined by an assessment of needs, and we believe that the federal and provincial governments must abide by this principle. The conditions endured by the Crees, their teachers and by Cree School Board officials, we believe, would not be tolerated in southern, non-Indian communities. We have, as well, received many complaints about the conduct of the federal and provincial governments on this issue and fear that this conduct is jeopardizing the future of the Crees.

The Cree School Board is not an entity created or governed by the Cree-Naskapi (of Quebec) Act and therefore it is not formally within the mandate of the Cree-Naskapi Commission. Nevertheless, community members, band councils and the Cree School Board itself have repeatedly drawn our attention to the problems of Cree education. Since such problems are so central, so long-standing and so far from solution, we feel compelled to address them. In addition, we believe that the success of self-government as envisaged in the Cree-Naskapi (of Quebec) Act depends on an effective educational system. In its presentation to our consultations, the Cree School Board specifically requested that we consider areas of capital funding which remain in dispute.⁴⁸ We have, therefore, undertaken to help address this most critical problem. We recommend that the parties agree to a mediated negotiation process. Such a process would eliminate disagreements and lay a strong foundation for cooperative efforts to provide the best possible Cree education. We are prepared to offer our services in such an endeavour provided that the parties are willing to negotiate in good faith until the issues are resolved.

As an area which holds so much promise and in which such great necessity is couched, Cree education must not fail. The "learning culture" that the federal government describes in its Speech from the Throne must also be available to Cree men and women if they are to participate fully in creating and sharing prosperity.

REVISIONS TO THE CREE-NASKAPI (OF QUEBEC) ACT

The purpose of the Cree-Naskapi (of Quebec) Act is to provide the framework for "an orderly and efficient system of Cree and Naskapi local government."¹ In the more than six years since its enactment, the Crees and Naskapi have found that certain provisions in the Act do not contribute to this purpose. Some provisions impose too much order; others impede efficiency rather than promote it.

In many instances, the Cree-Naskapi (of Quebec) Act is an intrusion on a society and people with no experience in working within a highly defined set of rules and regulations. Cree and Naskapi communities have, therefore, not adjusted well to the rigid rules that the Act imposes on them. While band administrators and leaders strive to ensure that their activities comply with the Act, they do not wholeheartedly embrace it. As a result, the Crees and the Naskapi do not always look to the Act for solutions. In the Commission's experience, when the Crees require solutions to their problems they often resort to measures outside the Act. For example, certain Cree communities, operating outside the authority of the Act, have set up perimeter checkpoints to stop the free flow of alcohol and drugs into their communities. Despite the lack of authority, the communities considered the measure necessary because the drugs and alcohol were causing great social problems and the Act provided them with no powers to deal with the situation.

PROPOSAL TO REVIEW THE CREENASKAPI (OF QUEBEC) ACT

Clearly, the Cree-Naskapi (of Quebec) Act needs revision. Unfortunately, the Crees and the Naskapi are virtually powerless to carry out such revision. They have no control over amendments and changes which may be desirable or even necessary. They depend completely on federal officials --Department of Indian and Northern Affairs employees, Department of Justice lawyers and members of Parliament --to make changes on their behalf. This is as true for minor changes as it is for major ones. In this situation, it is increasingly likely that the communities will resort to self-help measures in areas where the Act is deficient or is overly complex. Any changes to the Act, therefore, which simplify the administrative and law-making processes and enable the Crees and the Naskapi to act quickly, collectively and decisively should be implemented.

To remedy this situation, the Grand Council of the Crees (of Quebec) has proposed that the Cree-Naskapi Commission pursue a comprehensive examination of each provision of the Cree-Naskapi (of Quebec) Act

The Cree-Naskapi (of Quebec) Act, in place since 1984, has never been amended. Moreover, there are elements of the Act and related regulations which deserve special attention. We believe that it is now time for the Commission to conduct an investigation into the functioning of the Act with a view to recommending certain amendments to the Act to improve it. In addition, it is time for a balance sheet to set out what remains to be done to fully implement the Act. We believe that the Commission should begin the second five years of its work on the basis of a clearly set out summary of the progress to date, and an equally clear review of what remains to be done.²

The federal government supports such a review and has promised to cooperate in it. In its presentation to the report consultations, the government stated:

The [Cree-Naskapi] Commission has asked each community to review the Act, section by section, to identify areas of concern and to highlight where specific problems have occurred. The Department will review the Act on a section by section basis as well. Working together with the collected reviews, the Department, the Commission, and the communities should be able to find ways of overcoming identified problems and perhaps, where appropriate, consider the possibility of amendments to the Act.³

The Cree-Naskapi Commission is prepared to initiate a major review of the Cree-Naskapi (of Quebec) Act as proposed by the Crees and the federal government. The purpose of such a review would be to revisit the Cree-Naskapi (of Quebec) Act in cooperation with the Cree and Naskapi bands and the federal government and recommend appropriate and necessary modifications which will overcome the problems bands are having with the Act and permit the Act to fulfil its original purpose. The Commission warns, however, that for such an exercise to be successful, it must be received by all parties in the cooperative spirit with which it was advanced.

RECOMMENDATIONS FOR IMMEDIATE CHANGES

As the federal government points out in the passage cited above, the Cree-Naskapi Commission has taken some first steps towards reviewing the Act by preparing a questionnaire so that the Cree and Naskapi bands can comment on the 215 sections of the Act. Some communities are currently completing the questionnaire.

The one questionnaire already completed has provided the Commission with valuable information. Moreover, in our consultations for this report, a number of bands proposed changes that we believe should be made without waiting for a comprehensive review as described above. In Chapter 6 above, we reported a number of recommendations made by the Naskapi that can and should be implemented without delay. In what follows, we describe problems and recommendations from the Cree bands which should likewise receive immediate attention.

QUORUMS

In our previous reports, we described the corporate design of Cree and Naskapi governments and explained that many decisions and laws must be voted upon by community members.⁵ We also drew attention to the problems bands were having convening sufficient numbers to constitute a quorum for a vote.⁶ Presentations to the consultations for this report raised the problem once again.⁷ Part of the difficulty is that under the Cree-Naskapi (of Quebec) Act some quorum requirements are too high. For instance, long-term borrowing by the Cree governments must be endorsed by at least 20 percent of eligible voters; bylaws respecting hunting, fishing and trapping by at least 10 percent; taxation bylaws by at least 10 percent; land or resource use plans by at least 25 percent; and land cessions by at least 65 percent.

At this point, we can make no specific recommendation as to what appropriate quorum requirements would be in various areas. A reasonable solution, however, may be to amend the Act so as to allow each community to determine its own quorum requirements or to establish processes other than voting at community meetings for making key decisions.

TAXATION

The Cree bands have expressed to the Commission the need to amend the Act so as to extend tax exemptions to Cree legal entities. Canadian courts have been willing to attribute "Indianess" to a corporation which serves Indian society in a way which is taken into account for tax purposes. For example, the Federal Court of Appeal, in a case involving the Native Communications Society of British Columbia,⁸ broadly interpreted a section of the Income Tax Act⁹ which exempts a registered charity from income tax. Although the goals of the Native Communications Society of British Columbia did not fit into traditional definitions of "charity," the court held that the definitions of "charitable activity" may change as time passes. Taking into consideration the special cultural, economic and political circumstances of Indians, and the educational, cultural and training functions of the society, the court found that the society's purposes were beneficial to the community and therefore within the spirit and intent of the statute. The federal government should follow the courts and give due regard to the "Indianess" of Cree and Naskapi corporations in recognition of the essential economic functions they serve in Indian communities. Extending tax exemption status to band corporations in this way would avoid imposing disadvantage on already disadvantaged societies.

SEIZURE EXEMPTIONS

In its presentation to the report consultations, the Mistissini Band pointed out that the exemption from seizures status which the Cree-Naskapi (of Quebec) Act confers upon Cree and Naskapi individuals can have a negative effect.¹⁰ Because of the status, financial institutions are not prepared to give persona: loans or mortgages to an individual Cree without a guarantee by his or her Cree government. Some Cree want to obtain loans but find that Cree governments are reluctant to act as guarantors. One solution may be to amend the Act to allow individuals the right to waive their protection under the exemption provisions.

AUDITED FINANCIAL STATEMENTS

The Cree-Naskapi (of Quebec Act directs the Cree governments to submit to the Minister of Indian and Northern Affairs audited financial statements within four months of the end of the fiscal year. Many bands find it difficult to meet this deadline. In its presentation to the report consultations, the federal government summarized the problem:

Recently, the audits in a number of cases have been coming in long after the July 31 deadline. For instance, this past year the first audit was not received until mid-September. Four were outstanding by the end of December and to date two are still outstanding. Similar delays have also occurred in previous years.¹¹

Moreover, this requirement is inconsistent with certain principles embodied in the Act and with the broader principles of self-government. The rules and regulations set forth in the Cree-Naskapi (of Quebec) Act are based on the principle that band governments are accountable to their members on matters of financial administration. The requirement that bands report to the Minister is clearly a carry-over from the Indian Act. Band governments should not be excused from preparing audited financial statements and from general accountability. However, the current requirement that bands prepare audited statements within a specific time frame for the Minister is unnecessary. The Act should be amended so that bands are required to prepare audited financial statements soon after the fiscal year has ended, that these statements be directed to the band membership and that copies be delivered to the federal government.

TRADE AND COMMERCE

In his presentation to the report consultations Chief Walter Hughboy of Wemindji argued that the Cree-Naskapi (of Quebec) Act should be specifically amended to give Cree governments authority to regulate trade and commerce within their communities.¹² According to Chief Hughboy, authority over trade and commerce would be used by the communities to foster Cree economic development and to protect vulnerable Cree enterprises.

Given their geographic location, problems of unemployment, and patterns of spending, allowing Cree communities to regulate their local economies could be highly beneficial. Authority over trade and commerce authority would prepare the Cree communities for a market economy in which Cree money would be spent and retained in Cree territory.

It is unlikely that this report discloses new information or ideas to people familiar with aboriginal and federal relations. Indeed, significant parts of the report inevitably describe the situation in many Canadian aboriginal communities. Problems with capital funding, operations and maintenance funding, policing, the administration of justice, housing and infrastructure, and education are the daily concerns of aboriginal leaders and administrators across the country.

That these problems are still so much a part of Cree and Naskapi life may suggest that the Crees and the Naskapi do not benefit from the full promise of self-government. Indeed, the presence of these problems may be indications that Cree and Naskapi expectations of self-government are not fully realizable under the present design and content of the Cree-Naskapi (of Quebec) Act. Critics may argue that the Cree-Naskapi (of Quebec) Act is nothing but a modern version of the Indian Act. The corporate design, the many rules and procedures, the absence of institutions such as policing and courts and the inability of the Crees and the Naskapi to change the Act appear to make Cree-Naskapi governments simply versions of the Indian Act administrative bodies that exist in other Indian communities. Critics could further argue that the federal government's treatment of Cree and Naskapi aspirations and entitlements as part of their overall burden of Native responsibilities is a denial of the promise that the land claims agreements and the Cree-Naskapi (of Quebec) Act establish new relationships with the federal government and new premises upon which the federal government's conduct towards Cree and Naskapi communities is to be guided.

In the long run, such suggestions are unfounded. They ignore the obvious fact that while the first five years of implementation have involved major disputes, they have also brought about mechanisms and common understandings, based on flexibility and trust, which have produced significant results. We have been happy to record these successes in both this and in past reports.

Such suggestions, however, also point to important realities which must be acknowledged. They underscore the vital importance of the call in Chapter 8 for a comprehensive review and revision of the Cree-Naskapi (of Quebec) Act. Even more important, they emphasize that the federal government must demonstrate its commitment to Cree and Naskapi self-government by abandoning its adversarial approach and adopting an approach which is based on cooperation and a willingness to negotiate in good faith. In its recent decision on the Sparrow case, the Supreme Court of Canada observed that with respect to aboriginal people, the federal government must act in a fiduciary capacity:

As a general guiding principle for section 35.(1) [of the Constitution Act, 1982], the government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The sui generis nature of the Indian title, and the historic powers and the responsibilities assumed by the Crown constitute the source of the fiduciary obligation. The relationship between the aboriginal peoples is trust-like, rather than adversarial, and the contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship.¹

A fiduciary acts with honesty and care, and it is honesty and care which are so urgently needed in the federal government's dealings with Cree and Naskapi governments.

The Cree-Naskapi Commission looks to the future with optimism. Over the next two years, the Cree-Naskapi (of Quebec) Act will continue to present difficult challenges to the Crees, the Naskapi, the Government of Canada and the Government of Quebec. We look forward to working cooperatively with all concerned on a review and revision of the Cree-Naskapi (of Quebec) Act. We anticipate that this enterprise will form the substance of our next report to Parliament and we hope in that report to record significant progress in fulfilling the promise of self-government as envisioned under the Cree-Naskapi (of Quebec) Act.

ENDNOTES FOR CHAPTER 1

1. Canada, Parliament, Speech from the Throne to Open The Third Session Thirty-Fourth Parliament of Canada, May 13, 1991 (Ottawa, 1991).

2. Speech from the Throne, May 13, 1991.

3. Canada, Parliament, House of Commons, Debates, September 25, 1990, p. 13320.

4. Order in Council, July 15, 1991, P.C. 1991-1329.

5. Supply and Services Canada, Citizens' Forum on Canada's Future: Report to the People and Government of Canada (Ottawa, 1991).

6. Canadian Human Rights Commission, Statement on Federal Aboriginal Policy (Ottawa, 1990).

7. Canada, Prime Minister's Office, Notes for an Address by Prime Minister Brian Mulroney, First Nations Congress, Victoria, B.C., April 23, 1991 (Ottawa, 1991), p. 2.

8. Graham Fraser, "Erasmus appointed to commission, Quebec judge to co-chair inquiry on native issues," The Globe and Mail [Toronto], August 28, 1991, p. 1.

9. The Constitution Act, 1982, as amended by the Constitution Amendment Proclamation, 1983.

10. R. v. Sparrow [1990] 3 C.N.L.R. 160 at p. 178.

11. R. v. Sparrow at p. 181.

12. Delgamuukv v. R. [1991] Supreme Court of British Columbia. Unreported at date of publication of this report.

13. The Bear Island Foundation, et al. v. the Attorney General for the Province of Ontario [1991] Supreme Court of Canada. Unreported at date of publication of this report.

14. Cree-Naskapi Commission, 1988 Report of the Cree-Naskapi Commission (Ottawa, 1989) p. 17-28.

ENDNOTES FOR CHAPTER 2

1. Cree-Naskapi Commission, 1986 Report of the Cree-Naskapi Commission (Ottawa, 1987) p. 13-14.

2. Cree-Naskapi Commission, 1988 Report of the Cree-Naskapi Commission (Ottawa, 1989) p. 17.

3. Cree-Naskapi Commission, Consultations in Preparation for the 1991 Report of the Cree-Naskapi Commission, March 5, 1991, Submission by the Department of Indian and Northern Affairs to the Cree-Naskapi Commission on Implementation of the Cree-Naskapi (of Quebec) Act, p. 9. (Hereafter cited as Consultations, followed by the date, name of the presenter [or the title of the submission], and the page number.)

4. Consultations, March 5, 1991, Chief Isaac Meskino, p. 9.

5. Consultations, March 6, 1991, Robert Jimiken, p. 21.

6. 1986 Report of the Cree-Naskapi Commission, p. 27-28; 1988 Report of the Cree-Naskapi Commission, p. 20.

7. For an explanation of the categorization, see 1986 Report of the Cree-Naskapi Commission, p. 2-3.

8. 1988 Report of the Cree-Naskapi Commission, p. 32.

9. Consultations, March 14, 1991, John Mameamskum, p.10.

10. Consultations, March 18, 1991, Submission of the Waswanipi Band, p. 5.

11. 1988 Report of the Cree-Naskapi Commission, p. 13 - 14.

12. Canada, Department of Indian and Northern Affairs Press Release: Inquiry on the Cree-Naskapi Commission (Ottawa, September 18, 1990).

13. Cree-Naskapi (of Quebec) Act, s. 172.

14. Canada, Department of Indian and Northern Affairs, Report of the Inquiry into the CreeNaskapi Commission (Ottawa, 1991).

15. Report of the Inquiry into the Cree-Naskapi Commission, p. 142-152.

16. Consultations, March 5, 1991, Submission by the Department of Indian and Northern Affairs: An Agreement Respecting the Implementation of the Northeastern Quebec Agreement, s. 5, Annex A, Dispute Resolution Mechanism.

ENDNOTES FOR CHAPTER 3

1. Manitoba, Report of the Aboriginal Justice Inquiry of Manitoba: The Justice System and Aboriginal People (Winnipeg, 1991);

2. Nova Scotia, Report of the Royal Commission on the Donald Marshall, Jr. Prosecution (Halifax, 1989); Ontario, Report of the OsnaburghWindigo Tribal Council Justice Review Committee (Toronto, 1990); Alberta, Justice on Trial: Report of the Task Force on the Criminal Justice System and its Impact on the Indian and Metis People of Alberta (Edmonton, 1990); the Canadian Bar Association, Locking Up Natives in Canada: A Report of the Canadian Bar Association Committee on Imprisonment and Release (Ottawa, 1988).

3. Report of the Aboriginal Justice Inquiry of Manitoba, p. 640-641.

4. Indigenous Bar Association, The Criminal Code and Aboriginal People, prepared for Law Reform Commission of Canada (Ottawa, 1991) p. 10-11.

5. Consultations, March 5, 1991, Submission by the Department of Indian and Northern Affairs, p. 8.

6. Grand Council of the Crees (of Quebec) and the Cree Regional Authority, Justice for the Cree: Final Report (Mistissini, August 1991).

7. These jurisdictions are outlined in The Constitution Act, 1867, s. 91.(24) and s. 92.(14).

8. Grand Council of the Crees (of Quebec) and the Cree Regional Authority, Policing Our Home and Our Land: Today and Tomorrow. Special Meeting on Police and Other Related Justice Issues (Chibougamau, May 1991).

9. Policing Our Home and Our Land: Today and Tomorrow.