Ottawa, Ontario
June, 1998

On a personal note, the Commissioners would like to acknowledge the efforts made over the years by the Honourable Mr. Justice Rejean Paul as Chairman of the Commission. Judge Paul's work in the mediation process with the Ouje-Bougoumou Cree has been especially appreciated by all concerned.

The work of the staff of the Cree-Naskapi Commission : Brian Shawana, Micheline Ayotte, Gloria Dedam, Nicole Cheechoo and Charlotte Kitchen has been consistently first rate and is very much appreciated by the Commissioners.

The Commissioners were made welcome in every Cree and Naskapi community in which hearings and meetings were held. They received full cooperation from everyone, which made their job easier and more enjoyable. Other Cree and Naskapi individuals and organizations were most helpful. The Grand Council of the Crees (Eeyou Istchee), for example, provided a useful critique of previous reports and offered many suggestions for this one.

Various federal departments and agencies also provided much useful information at the hearings. These included the departments of Human Resources Development, Transport, and Indian Affairs and Northern Development, as well as the Canada Mortgage and Housing Corporation.

An informal meeting was held with Dr. Ted Moses and Mr. Michel Vennat, OC. QC., concerning the Cree-federal negotiation process. Their insightful comments and ideas are much appreciated.

The Assembly of First Nations also made an informative and helpful presentation.

The 1998 Report of the Cree-Naskapi Commission is the result of a series of community hearings, and meetings with Cree and Naskapi Chiefs and Councils, government officials and others. The Commissioners met to analyze and review the presentations made and the concerns raised, as well as to prepare the report.

LIMITATIONS OF THE 1998 REPORT

Because the financial resources of the Cree-Naskapi Commission are substantially lower than either the Commissioners or the independent Cowie Inquiry consider necessary, the report is not of the standard appropriate for a statutory Commission whose reports are tabled in the House of Commons and the Senate. Its main limitations stem from the following:

1. a lack of research as to the validity of representations involving detailed factual assertions, resulting in the Commission's inability to make findings in relation to those matters;
2. a lack of legal opinions on certain questions related to technical legal issues;
3. insufficient numbers of community visits to hear from all interested parties;
4. no resources for community accountability sessions to report on how representations have been dealt with; and
5. inadequate resources to fully prepare the report for consideration by the standing committees.

REASONS FOR OPTIMISM

My colleagues and I have serious concerns about the limitations of this report, but there is reason for optimism with respect to the overall outlook for Aboriginal-federal relations, which may work to alleviate some of the concerns of the Cree and Naskapi of Northern Quebec.

In Gathering Strength: Canada's Aboriginal Action Plan and in other public statements, the recently appointed Minister of Indian and Northern Affairs, the Honourable Jane Stewart, has recognized that serious mistakes have been made in the past with respect to the treatment of Aboriginal Canadians. She has made a substantial commitment to a change in direction and to the forging of a new partnership. In discussions we have had with her, she has indicated the same intentions with regard to the Cree and the Naskapi. I believe that she is sincere. Being realistic, however, I do not feel that she can achieve her objectives unless there are profound changes in the way government as a whole handles treaties and agreements. The current structure is geared to afully discretionary model of governance, not to a treaty implementation model. In addition, it is my observation, based upon our hearings, that many of the Minister’s officials neither understand the government’s direction nor agree with the new approach. Regrettably, they appear committed to the old approaches, which have led to the current unhappy state of federal-aboriginal relations. If the Minister is to implement the improved approaches she and her colleagues have adopted, she will need a long term in office, the consistent support of Cabinet, an improved resource base, new departmental and extra-departmental structures and new attitudes on the part of officials.

RECOMMENDATIONS TO BE IMPLEMENTED BY THE COMMISSION

Previous reports contained many recommendations for action by government and other parties. The Cree-Naskapi Commission has repeatedly heard the concern that many of these recommendations are never acted upon. In this report, the Commissioners have identified a number of suggestions that the Commission will implement itself. These include:

• A limited expansion of our mandate to include some matters arising out of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, provided that they involve powers and duties specified, or referred to, in the Cree-Naskapi (of Quebec) Act, for example in Section 21(j).
• Requesting that the Report of the Cree-Naskapi Commission become an item on the agenda of the standing committees on Aboriginal Affairs of the House of Commons and the Senate. Guy Saint-Julien M.P., the chairman of the House Committee has agreed to this proposal.
• Presenting the Report at regional and community meetings so that the communities may have some accountability from the Commission as to how it has dealt with their representations. This is also an opportunity to review issues that can be addressed by the Cree and Naskapi Bands, regional organizations, etc.
• Serving as a record-keeping and resource centre on the Cree-Naskapi (of Quebec) Act, the Agreements and related matters. This suggestion is being implemented on an on-going basis.

GOOD NEWS

When a body such as the Cree-Naskapi Commission holds hearings in communities, concerns and complaints tend to dominate the presentations. This is entirely reasonable, after all, part of the Commission’s job is to listen to people’s concerns. It should be noted, however, that there are many examples of success relating to developments in the communities. Some of the more obvious ones brought to our attention were:

• Nemaska's innovative plans for the development of Old Poste as a historic and cultural site;
• Ouje-Bougoumou's overall development of a functional, uplifting and inspiring community in the face of formidable odds;
• the Naskapi's continued development and progress as a strong and growing community, despite the virtual shutdown of Schefferville;
• Mistissini's challenging concepts of the need for a Cree Constitution;
• the vigorous pursuit of their traditional economy by the Cree trappers in the face of difficult new challenges;
• the spirit and determination of the Washaw Sibi Eeyou with respect to maintaining their identity and establishing themselves as a community;
• the resurgence of the recognition of Elders as a force for Cree values throughout the territory;
• the development of a model forest at Waswanipi, together with a successful sawmill operation;
• the establishment of an effective recreation program with broad community participation at Chisasibi; and
• many outstanding individual achievements, including the National Aboriginal Achievement Award granted to Chief Abel Bosum, and the honourary doctorates conferred on Chief Billy Diamond and Cree ambassador Ted Moses.

There are far more success stories than can be mentioned here. We must not forget that, despite the difficulties and problems mentioned in this report, many positive things are happening in all Cree and Naskapi communities.

CONCLUSION

The problems outlined in this report are substantial and often complex. However, I believe that, given the determination and skill of the Cree and the Naskapi, and the clear intentions of the current minister, these problems can be resolved. Whether or not they are depends largely upon the capacity of government structures to evolve and adapt. Can the existing bureaucracy handle the changed reality of Aboriginal-federal relations created by the modified Constitution, the changed jurisprudence, the Agreements and the Act, and the new attitude of the Government of Canada? The evidence so far is that the bureaucracy cannot change quickly enough to keep pace with the realities of today. Clear, persistent and detailed direction from the Minister, together with some major legislative and structural innovations are imperative. I remain optimistic.

In June 1984, the Cree-Naskapi Commission was established in accordance with Part XII of the Cree-Naskapi (of Quebec) Act, a special statute of the Government of Canada. The Act, which relates mainly to Cree and Naskapi local government, and the land regime governing Category I A and Category I A-N land, is the special legislation contemplated by Section 9 of the James Bay and Northern Quebec Agreement (signed on November 11, 1975) and Section 7 of the Northeastern Quebec Agreement (signed on January 31, 1978). The provisions, including the said sections of the Agreements mentioned above, provide for the exercise of local government and other rights recognized and affirmed by Section 35 of the Constitution Act, 1982. The Cree-Naskapi (of Quebec) Act replaces the Indian Act mainly in relation to Cree Bands and the Naskapi Band and their respective Category I A and 1A-N land. The duties of the Cree-Naskapi Commission, as established by Section 165 of the Cree-Naskapi (of Quebec) Act are as follows:

1. "prepare biennial reports on the implementation of this Act . . . ; and

2. ". . . investigate any representation submitted to it relating to the implementation of this Act, including representations relating to the exercise or non-exercise of a power under this Act and the performance or non-performance of a duty under this Act."

(In particular, the Commission "shall prepare and submit to the Minister a report in English, French, Cree and Naskapi on the implementation of this Act"). The present report constitutes the sixth biennial report to the Minister in the Commission's fourteen-year history.

The current members of the Cree-Naskapi Commission were appointed on November 4, 1997 by the Governor in Council, on the recommendation of the Cree Regional Authority and the Naskapi Band. The delay in the appointment of the members led to a serious time constraint when it came to preparing this report, which had to be submitted to the Minister by June 5, 1998. The report and its recommendations result from public consultations conducted in a short period of time and with limited resources. The Commission is faced with insufficient resources, making it extremely difficult for it to exercise its duties properly. The duties of the Cree-Naskapi Commission to investigate and report on the implementation of the Cree-Naskapi (of Quebec) Act promote understanding and awareness of the issues and concerns of the parties.

After fourteen years of implementation of the Cree-Naskapi (of Quebec) Act, without a single amendment, it has become evident to the Cree-Naskapi Commission that the essential element in any righting of wrongs in the quest for justice for Cree and Naskapi local governments eludes law and morality because justice depends on the political will of the powers that be. A more viable future for Cree and Naskapi local government can only be secured in the context of a more sincere and vigorous effort to examine the previous and present recommendations of the Cree-Naskapi Commission and formulate realistic measures with timely action and adequate resources.

It should be stressed that the normal and primary means of implementation is the expressed or implied obligation placed upon the Government of Canada in the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement to take appropriate legislative and administrative action. Therefore, the primary focus of this report is to determine whether appropriate legislation and administrative measures are in place for the proper exercise of Cree and Naskapi local government and administration.

END NOTES

    1. Section 171, Cree-Naskapi (of Quebec) Act

During the 1998 Special Implementation Hearings, the concern most frequently raised was the failure of the federal and Quebec governments to honour their obligations under the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. This situation has existed since our first hearings, held in 1986. At that time, the Commission stated:

"In the course of Canadian history, a notion persists that governments make promises to induce natives to surrender their lands and other rights and then routinely break these promises, frequently hiding behind legal technicalities. Regrettably, the evidence supporting this notion is extensive".₁

Today, while this observation is still true, there may be some cause for optimism. The Honourable Jane Stewart, the new Minister of Indian Affairs and Northern Development, has taken some steps towards improving relations between First Nations and the Government of Canada. The recent "Statement of Reconciliation", issued by the government is evidence of its intention to acknowledge some of the mistakes of the past and to move towards improved relations. The Statement includes two sections that the Commission regards as reason for cautious optimism. The first one reads as follows:

"Sadly, our history with respect to the treatment of Aboriginal people is not something in which we can take pride".₂

This statement does not deal with the historical and current problem of broken treaties, but it does acknowledge a general problem and is a definite step towards reconciliation. The other section deals with the process:

"Reconciliation is an ongoing process. In renewing our partnership, we must ensure that the mistakes which marked our past relationship are not repeated".₃

This statement reflects good intentions. If it is applied consistently and continually throughout the government, the results will be positive. If not, skepticism will deepen into cynicism, crisis will follow crisis in sure succession until some future government finally acts upon those intentions.

With respect to the current concerns about governments' failure to honour their obligations under the Agreements, it is important to fully understand the nature of the problem. After that, workable solutions can be considered. The problem is complex. The Commission believes, however, that it results from the fact that several of the basic concepts of governing processes and structures, while generally useful, are totally inappropriate, and indeed counter-productive, when dealing with treaties and agreements. For purposes of this discussion the Commission shall identify the conceptual issues as the "public mandate issue", the "collective awareness issue", the "corporate memory issue", and the "ministerial impotence issue". Taken together, these issues account for much of governments' history of broken treaties.

THE PUBLIC MANDATE ISSUE

In a democratic society such as Canada, the vast majority of public issues should be defined and resolved through the political process. A few are, and should be, defined and resolved by law. The protection of minority rights in the Constitution is an example of this, applied in a societal context. The idea that governments are in general obligated to honour contracts in much the same way anyone else does is an example applied in a narrower context. In both cases, the rights and duties involved are defined, not through political processes, but by the parties concerned and, failing that, by the courts.

The Aboriginal and treaty rights of Aboriginal people are enshrined in the Constitution Act, 1982. Section 35 of the Act constitutionalizes treaty rights, including land claim settlements. This is an example similar to the protection of minority rights in the Charter sections of the Constitution. The parties themselves (government and Aboriginal peoples) work out agreements, or treaties. When necessary, the courts interpret and apply those agreements. This would be quite workable were it not for what the Commission has termed the "public mandate issue".

If one considers for a moment the feelings of a newly elected prime minister and a newly sworn-in Cabinet, the situation becomes clear. In such circumstances, most of us would feel that as democratically elected leaders we had a mandate to govern, make choices and set priorities. This mandate would encompass most of the state's activities. There would be partisan political opposition to some decisions, interest groups would object to certain priorities, and so on. The remedy in every case would be political action. They could lobby, write letters, submit petitions, hold demonstrations or vote for someone else. We would see that it was legitimate to decide, for example, to cut health care funding to the provinces, adjust Canada Pension Plan premiums or reduce the size of the public service. Various interests could campaign against these initiatives; however, making the decisions and objecting to them would both be seen as legitimate and essentially political processes.

The Canadian government undoubtedly sees itself as exercising its powers legitimately in making such decisions about rates of taxation, spending on social services, defence policy, transfer payments, Indians Affairs policy, etc. Indian Affairs officials carry this to the next logical step and see the implementation of treaty provisions as an aspect of Indian Affairs policy. As a policy, it can, of course, vary according to budgetary and other considerations. So the act of implementing treaty provisions is seen as essentially similar to other policy-making, priority-setting and program-management functions of government.

First Nations generally consider the implementation of treaty provisions as an obligation, rather than a policy option. They generally consider treaties sacred. When treaty provisions are fulfilled only partially or not at all, First Nations regard this as dishonourable in the extreme. Arguments that First Nations ought to negotiate about implementation are seen as deceitful and redundant, after all, the Agreement has already been concluded and the obligations have already been undertaken.

Is there any objective truth in these differing perceptions? We say that there is and that it has already been discerned. We believe that the closest we have come to objective truth can be found in the decisions rendered by the Supreme Court of Canada since 1982, when treaty and Aboriginal rights were "recognized and affirmed" in the Constitution.

In 1996, in the Badger case, the Supreme Court stated in the clearest language:

"Treaties are analogous to contracts, albeit of a very solemn and special, public nature. They create enforceable obligations based on the mutual consent of the parties".₄

The Court did not say that treaties create "policy options"; it said that they create "enforceable obligations".

Some will be quick to argue that treaties are ambiguous and open to interpretation. Here again, the Supreme Court has provided useful (and authoritative) direction. In the Badger case the Court stated:

"At the onset, it may be helpful to once again set out some of the applicable principles of interpretation. First, it must be remembered that a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. Second, the honor of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned. Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favor of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. Fourth, the onus of proving that a treaty or aboriginal right has been extinguished lies upon the Crown. There must be "strict proof of the fact of extinguishment" and evidence of a clear and plain intention on the part of the government to extinguish treaty rights".₅

This clearly states that any ambiguity "must be resolved in favor of the Indians". The other rules of interpretation provide ways to understand and apply the treaties.

When one finally understands that treaty obligations are enforceable, and when the labyrinth of supposed difficulties of interpretation is eliminated, there always remains the obstacle of "there is no money". Again, this is a matter of seeing an "enforceable obligation " as a "policy option" or an "expenditure choice". It is not. The more persistent advocates of treaty-obligation avoidance will explain that the Minister cannot spend what "Cabinet" or the "Minister of Finance" or "Treasury Board" has not approved. This reasoning is inherently flawed because treaty obligations are not obligations of the Minister. They are existing obligations of Canada. They are existing obligations of the Cabinet. They are existing obligations of Treasury Board. The proper fulfillment of those existing obligations is a fiduciary duty of the government, that is, of Cabinet. Once again, the courts have provided useful (and authoritative) direction. In the Kruger case, Mr. Justice Heald of the Federal Court of Canada (Appeals Division) wrote:

"The Governor in Council is not able to default its fiduciary relationship to Indians on the basis of other priorities and considerations".₆

Other priorities are not excuses for default. The problem is that governments have consistently failed to understand that treaty obligations are enforceable, that there are rules for interpreting them and that they cannot be juggled with competing "policy" options.

It is a mistake to include the treaty implementation process in the regular "policy option" and "program management" structure of the public service. The management of an "enforceable obligation" implementation process is entirely different from the management of discretionary programs. Using a choice-making structure to manage the observance of lawful obligations has been dysfunctional.

Some will argue, no doubt, that there is really no evidence of government considering treaty provisions to be mere "policy options" that may be changed at will or simply ignored. Unfortunately, there are numerous examples of both in the older numbered treaties, and in the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

Treaty 6 is an example of the problem as it affects the older treaties. This treaty, signed in 1876, included the well-known "medicine chest clause". As early as 1935, long before the entrenchment of treaty rights in the Constitution, and long before liberal rules of interpretation were developed, the Exchequer Court of Canada (roughly equivalent of the Federal Court of Canada) had decided in the Dreaver case that the medicine chest included "all medicines, drugs or medical supplies . . . free of charge". In spite of this, Health Canada stated, as recently as 1990, that "no . . . treaties confer on Indians the right to free health care . . ."

The government practice of signing treaties and then refusing to honour them is not confined to the older treaties signed in the nineteenth century and earlier. It also applies to the modern land claim Agreements, as well as to other Agreements signed by the Cree and Naskapi of Northern Quebec.

In the case of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, as well as various sub-agreements made pursuant to them, there are literally scores of specific federal and provincial obligations that are yet to be implemented. The dispute over the "Statement of Understanding", discussed in detail in our 1986 report is an excellent example.

THE COLLECTIVE AWARENESS ISSUE

Governments are large and complex organizations that deal with a vast number of disparate issues. The departments and agencies are seldom aware of all the relevant activities the others are engaged in. Even the central agencies seem to lack a general awareness of overall issues, other than some specific common elements (mainly financial controls, personnel policy, etc.). As for the implications of this problem with respect to the Agreements, we have observed that senior officials responsible for administering the implementation of those Agreements are unaware of recent decisions of the Supreme Court of Canada concerning the nature of treaties, how they are to be interpreted, etc. It is clear that the perspective of the bureaucracy is limited to its own views on very specific issues. There is an almost total lack of any consideration of other perspectives. Many of the cases involving Aboriginal and treaty rights that both levels of government have lost could have been avoided if senior officials had been aw are of (and had chosen to follow) modern legal precedents. The saving of tax dollars, not to mention the good will of Aboriginal people, would have been substantial. Rather than simply acting as counsel to the government in an adversarial role, the Department of Justice should arrange to provide workshops for senior officials to keep them up to date on the evolving law of Aboriginal and treaty rights legislation, as well as on the government's obligations as a fiduciary.

THE CORPORATE MEMORY ISSUE

In both the federal and provincial governments, there is a high rate of turnover in ministerial, senior management, policy and program positions. All too frequently, successive officials are simply unaware of decisions, including those that create enforceable obligations. Occasionally, specific commitments are even repudiated. Most of the problem can be traced to the fact that senior officials are too often seen as interchangeable "generic" managers by the public service. Process skills are considered essential, while substantive knowledge is regarded as unimportant.

The Commissioners recommend that individuals from the levels of director to deputy minister be appointed only from among those who have demonstrable, substantive knowledge of the issues they will be responsible for managing. In exceptional circumstances, some appointees could be required to successfully complete specific substantive training within their first six months in office.

THE MINISTERIAL IMPOTENCE ISSUE

There is a widespread view that, with rare exceptions, ministers make decisions, or appear to make decisions, that the bureaucracy implements only partially or not at all. In some cases, the bureaucracy simply waits for the minister to be replaced. The succeeding minister frequently is unaware of the decision, or is not willing to honour it.

The significance of this is that, unless senior officials agree with a minister's decision, the chances of that decision being implemented are substantially reduced. The credibility of ministerial undertakings when dealing with First Nations is minimal. Examples of this abound in relations between various ministers and the Cree and Naskapi since the signing of the Agreements.

WHAT ARE THE ALTERNATIVES?

Three steps need to be taken to restore functionality and good will to the treaty implementation process. These include: an Aboriginal treaty implementation secretariat, an Act for the implementation of treaties and agreements with Aboriginal peoples, and the creation of a court of Aboriginal and treaty rights.

TREATY IMPLEMENTATION SECRETARIAT

As discussed above, the implementation of agreements and treaties involve, as the Supreme Court has stated "enforceable obligations". Departments whose role is selecting policy options, managing discretionary programs or prioritizing expenditure decisions are not suited to fulfilling legal obligations. For that reason, a treaty implementation secretariat that would be totally independent from the Department of Indian Affairs and Northern Development should be created to manage the fulfillment of the government's obligations under agreements and treaties.

TREATY IMPLEMENTATION ACT

In 1982, Canada entrenched Aboriginal and treaty rights in its Constitution. Since then, the Supreme Court has begun to define what constitutes a treaty, developed rules for interpretation of treaties, developed a sui generis definition of the fiduciary role of the Crown, and begun to flesh out the constitutional concepts of Aboriginal and treaty rights. What is needed now is clear legislation incorporating much of this new law into a single statute that would serve as an authoritative guide for government officials in carrying out their responsibilities under the various agreements and treaties.

The suggested legislation, or a piece of companion legislation, a treaty implementation (financial arrangements) Act for example, should clearly stipulate how the financial aspects of agreements and treaties are to be handled. Many agreements and treaties appear to have been negotiated without due consideration of their financial implications. This has resulted in unnecessary disputes, litigation and a lasting bad feeling. An Act governing the handling of the financial aspects of agreements and treaties would ensure proper management of the resources, minimal disputes over amounts, etc., and would force the parties into a more disciplined and open process in current and future negotiations. Even today, the handling of financial matters is the basic problem underlying almost every major dispute brought to the Commission's attention as discussed above.

COURT OF ABORIGINAL AND TREATY RIGHTS

Because Aboriginal and treaty rights are evolving, legal concepts are being developed and modified almost every day. The volume of litigation on important questions in this area has increased enormously since the 1982 constitutional amendments. This area of law will probably be active and in transition for the next ten to twenty years. After that time, hopefully, most of the major legal concepts will have been developed and most of the thorniest questions resolved. In the meantime, numerous decisions are reversed on appeal. In some cases, the views of the appeal courts are adjusted by the Supreme Court of Canada. All of this indicates that there is not yet a sufficient body of precedents that would allow the lower courts to approach the issues consistently. In addition, the delays and costs of appeals are often excessive.

For all these reasons, Parliament, acting under Section 101 of the Constitution Act, 1867, should consider creating a superior court of national jurisdiction to handle cases involving treaty and Aboriginal rights. Such a court would have original jurisdiction in these areas as well as in cases arising under the Cree-Naskapi (of Quebec) Act, the Indian Act, the Sechelt Indian Self-Government Act and similar pieces of legislation. In addition, it could be given appellate jurisdiction in cases coming from future First Nations courts. Naturally, an appeal from a court of Aboriginal and treaty rights would be heard by the Supreme Court of Canada.

The justices of such a court could be nominated by First Nations and appointed by the Governor in Council, and the court could be administered as a division of the Federal Court of Canada. After a ten-year period, the continued need for such a court could be reassessed. The body of case law developed by then might have become widely known throughout the judicial system and might be more conveniently applied in the regular courts.

ENDNOTES

1. Cree-Naskapi Commission, 1986 Report of the Cree-Naskapi Commission, p. 36.

2. "Statement of Reconciliation", in Gathering Strength : Canada's Aboriginal Action Plan, 1998, p. 4.

3. Ibid., p. 5.

4. D.W. Elliot, Law and Aboriginal Peoples in Canada, 3rd ed (Toronto: Captus University Publications, 1997),         p. 212.

5. Badger v. Queen, S.C.C., April 3, 1996, para. 41.

6. Kruger v. Queen, 1985, 17 D.L.R. [4th ].

OPERATIONS AND MAINTENANCE FUNDING

When the Cree and the Government of Canada agreed upon the terms and provisions of the Cree-Naskapi (of Quebec) Act, arrangements for funding and implementation of the Act were negotiated and agreed upon by the parties concerned as contemplated by the James Bay and Northern Quebec Agreement. In particular, the parties agreed that the Government of Canada would provide an ongoing operations and maintenance subsidy to support the exercise of local government powers for the Cree communities.

The present 'Operations and Maintenance Funding Transfer Payment Agreement' provides for an annual operations and maintenance subsidy to the Crees by the Government of Canada for the period from April 1, 1995 to March 31, 2000.

According to the Cree, the Government has not respected important and essential provisions of the present Agreement for 'Operations and Maintenance' funding.

The future of the Cree-Naskapi (of Quebec) Act depends on the commitment of the Cree and the Government of Canada and the provision of adequate resources.

The Cree local governments and administrations operate under difficult social, economic and political conditions which are not acknowledged by the Government of Canada.

Instead, according to the Cree, the Government of Canada, contrary to the letter and spirit of the 'Operations and Maintenance funding Transfer Payment Agreement', has engaged in a process to:

1. restrict and cap funding;

2. limit its role and responsibilities ;

3. refuse to review the current situation, changing circumstances and needs of the Cree as such a review is provided for by the said Funding Agreement.

The Cree-Naskapi Commission will review the circumstances and situation respecting the negotiation and implementation of the present 'Operations and Maintenance Funding Transfer Payment Agreement.'

The Naskapi signed their five-year 'Operations and Maintenance Funding Agreement' with the Government of Canada in January 1997. Subsidy payment under the said Agreement is retroactive to April 1, 1996.

FEDERAL FIREARMS CONTROL LEGISLATION

According to the Cree and the Naskapi, their rights established under Section 24 of the James Bay and Northern Quebec Agreement and Section 15 of the Northeastern Quebec Agreement are guaranteed, protected, affirmed and recognized by the Agreements, federal and provincial enabling legislation, and the Constitution of Canada. The said sections of the Agreements enable a traditional way of life based on hunting, fishing, trapping and related activities respecting the use and occupation of the traditional territories of the Cree and the Naskapi.

As such these rights take precedence over all federal and provincial legislation. Consequently, the federal firearms control legislation is an obstacle to the traditional way of life and related activities. The Cree and the Naskapi acknowledge the need to control firearms; however, they request that the Government of Canada amend its legislation so as to allow the Cree and Naskapi local governments to dispense the firearms safety course, and issue firearms licences and registration certificates.

It is recommended that the firearms control regulation be amended to provide for the appointment of Aboriginal firearms officers, who would have the same powers and authority as a chief firearms officer, proposed by the federal legislation. The Cree and the Naskapi also request the automatic and free licensing of the beneficiaries of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

OBLIGATIONS OF THE GOVERNMENTS

Throughout the consultations and public hearings held by the Cree-Naskapi Commission, the complaint most often expressed by the Cree and the Naskapi concerned the failure and refusal by governments to respect and honour specific obligations, responsibilities and commitments under the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. According to the Cree and the Naskapi, these Agreements are falling into the long trail of broken treaties.

The numerous unfulfilled obligations, responsibilities and commitments of the governments will be specified and detailed in the Commission's supplementary report. The Cree and the Naskapi have proposed a thorough and meaningful review of the Agreements and the development of a process and a mechanism that will bind all parties to respect and honour their obligations, responsibilities and commitments under the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

According to the Cree, who call themselves Eeyou, their communal, traditional, ancestral and historical territories have always been designated as "Eeyou Istchee" (the Cree homeland). The Naskapi also have their own homeland. The Cree claim jurisdiction over their homeland, since they regard themselves as the stewards of Eeyou Istchee. Today, other peoples may know these homelands as the James Bay territory.

The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement cover 410,000 square miles of land. They provide for a new land regime for the North with three categories of land. Category I lands are lands set aside for the exclusive use and benefit of the Cree and the Naskapi. All Cree and Naskapi villages are located within these lands. The Cree and the Naskapi have exclusive rights to the harvesting and use of wildlife resources, as well as other important rights, within Category II lands. General access to Category III lands is permitted in accordance with provincial laws and regulations concerning public lands; however, the Cree and the Naskapi enjoy exclusive harvesting and other rights within these lands.

The Governments of Canada and Quebec exercise jurisdiction over the territory within their areas of competence. Cree claims of jurisdiction create conflicts amongst the Cree themselves, provincial and federal governments.

The Cree claim that the Government of Canada has breached its obligations with regards to a social and environmental review of a sawmill project that was to be constructed on Category I A land, which is under federal jurisdiction.

For the Cree, jurisdiction over land and resources is important for them and for other governments. The classification of lands into categories and the application of several statutes perpetuates jurisdictional problems related to governance, administration and enforcement within the territory contemplated by the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. The application of several statutes also complicates law enforcement and leads to confusion when it comes to determining and exercising jurisdiction for local government and administration.

POLICING AND ENFORCEMENT

Some Cree communities have stated that they need funds to provide effective policing services for their communities. According to the Cree local authorities, the local police in Cree communities cannot exercise jurisdiction outside of Category I lands.

The James Bay and Northern Quebec Agreement stipulates that existing regional and provincial roads and main arteries within Category I lands are Category III lands. In addition, a five hundred (500)-foot corridor on either side of those roads is considered Category II land. Since the local Cree police do not have formal jurisdiction on those Category II and III lands, in the vicinity of Cree villages, law enforcement and policing in those areas is a serious problem, which cannot be properly handled by the Sureté du Québec. Waswanipi, which is located along a major provincial road, fears for the safety of its residents, particularly the children.

Cree trappers and hunters have complained about their equipment and supplies being stolen, and their camps being vandalized. Some of this alleged criminal activity is due to uncontrolled access to Cree traplines through commercial forestry roads. The reporting of such activity has not alleviated the problems associated with policing the territory.

The application and enforcement of the federal firearms control legislation and regulations constitute an obstacle to the exercise of the treaty right to hunt, fish and trap throughout the territory. On Category II and III lands, the Sureté du Québec claims and exercises jurisdiction with respect to the application of the firearms control legislation. This has led to problems, as Cree hunters and trappers have complained about harassment by the provincial police.

The Cree are also concerned about the relatively few conservation agents available for the territory. In their submission to the Commission, the Cree Nation of Eastmain state that "there is no jurisdictional powers given to the Crees in protecting the wildlife resources."₁ However, under traditional and customary law, Cree tallymen have the authority to manage and protect wildlife resources. In addition, Section 24 of the James Bay and Northern Quebec Agreement provides for the appointment and training of Native people as conservation officers.

DEVELOPMENT OF NATURAL RESOURCES

The Cree and the Naskapi, the federal government and, in particular, the Quebec government have always claimed jurisdiction over the territory and its abundance of natural resources. An increasing demand for these resources has spurred intensive development policies, exploration and exploitation. The scale and complexity of the demands and needs of government, industry and people have increased greatly with rising levels of population and greater accessibility to the territory.

For the Cree, the rapid pace of commercial forest operations and related activities such as access roads, with the social and environmental impacts, and without Cree consultation and consent have greatly alarmed Cree tallymen, trappers and their families. Cree local authorities as well as tallymen have expressed grave concern about those impacts, as well as the ways and means used in resource development in the territory. Cree local governments lack the resources to effectively respond to the concerns and needs of the members of their communities regarding this issue.

Both the spirit and intent of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement recognize the right of the Cree and Naskapi to benefit from resource development within their territories. They expect to benefit from such development, but they usually do not. As permanent inhabitants and residents of the territory, as well as beneficiaries of the Agreements, the Cree and the Naskapi must be leading partners in the development and management of natural resources, and they must also be full beneficiaries of the resulting economic, employment and revenue potential.

PROTECTION OF THE ENVIRONMENT

The environmental and social protection regime applicable to the Cree area of primary interest is established by and in accordance with Section 22 of the James Bay and Northern Quebec Agreement. In the case of proposed development on Category I lands, the Cree Local Environment Administrator is responsible for the protection of the environment.

On March 21, 1996, a proposal for a sawmill project was submitted by Waswanipi to the Local Environment Administrator, who in turn submitted it to the Environmental and Social Impact Review Panel for a full review and assessment. The said Review Panel is responsible for reviewing and assessing development projects in the territory involving federal jurisdiction. The sawmill, which would receive significant funding from the federal government and would be constructed on Category I A land that is under federal jurisdiction, would have an impact on Cree beneficiaries, or "Indians". Clearly, the project involved matters of federal jurisdiction and was justifiably submitted by the Local Environment Administrator to the federal Review Panel.

The Federal Administrator, the federal members of the Review Panel and federal officials involved improperly and wrongfully interfered with the jurisdiction, decision-making power and authority of the Local Environment Administrator by preventing the Review Panel from reviewing the project. The actions of the federal members of the Review Panel and federal officials in this matter constitute a highly prejudicial precedent in the context of Section 22 of the James Bay and Northern Quebec Agreement, and a breach of the constitutionally protected and recognized treaty rights of the Cree.

The Environmental and Social Impact Review Committee, which has representatives from Quebec and the Cree, and the Eeyou Nabakatuk Environment Review Board, established by the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority, eventually reviewed the impacts of the proposed project. The Eeyou Nabakatuk Environment Review Board reviewed matters of Cree and federal jurisdiction.

JUSTICE

The Canadian justice system was designed primarily to protect private property and uphold the rights and freedoms of individuals. When the Cree speak of the present itinerant court, trials, judgements and punishment, they feel, and have stated, that the current system was developed without their direct participation and imposed from the outside. The justice system not only denies them direct participation in its development and administration, but fails to reflect Cree and Naskapi values and principles.

For the communities and local governments, the administration of justice means far more than the attribution of liability and punishment. It means, in part, the maintenance and restoration of balance in justice, harmony and the well-being of the offender and the community. The communities speak of "healing" as well as "punishment" of offenders.

The communities and local governments have stated that justice must be administered locally by community institutions with adequate resources. The local administration of justice does not simply mean the local application by community institutions of a system of justice that has been developed by outside institutions, agencies and governments. The communities want the present system of justice to be modified in order to achieve the following objectives:

• accountability to the community;

• rendering of justice locally;

• determination of "punishment" locally;

• increased jurisdiction and adequate resources for proper enforcement of law and order;

• greater understanding of nation-to-nation relationships based on mutual rights and responsibilities;

• greater measure of local design of policies and programs;

• use of Cree and Naskapi traditional approaches to justice issues;

• proper recognition and provision of adequate resources for a local justice system with local authorities and institutions.

These changes to the present justice system are warranted by the following concerns of the communities and local governments:

• irrelevance and ineffectiveness of the present system;

• increasing of unlawful activities by outsiders entering the territory;

• long delays between the time of the offence and the date of an appearance in the itinerant court;

• planning, development, implementation and review of justice done by outside institutions, agencies and governments;

• unduly limited jurisdiction of local police for proper enforcement of law and order in the territory;

• lack of funding for Cree and Naskapi conservation and auxiliary conservation officers;

• refusal to recognize Cree tallymen as auxiliary conservation officers;

• lack of resources for Bands and local governments to carry out their roles and responsibilities;

• local justice system for local offenses such as traffic regulations not recognized by Quebec;

• need for a thorough and meaningful review of the justice and police sections of the James Bay and Northern Quebec Agreement to facilitate the establishment and implementation of a local justice system for the proper administration of justice.

ENDNOTES

1. "Cree Nation of Eastmain Submission to the Cree-Naskapi Commission", March 4, 1998, p. 16.

The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement cover 410,000 square miles of land that was transferred to the Province of Quebec under the boundary extension Acts of 1898 and 1912. The traditional, ancestral and historical territories of the Cree and the Naskapi extend beyond that territory. As a result, the Cree and the Naskapi have land claims outside of the territory covered by the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. The Agreements provide for a land regime. In particular, Category I and II lands have been set aside for the following Cree and Naskapi communities:

    Rupert's House or Fort Rupert (presently known as Waskaganish)

    Eastmain

    Paint Hills or Nouveau Comptoir (presently known as Wemindji)

    Fort George (relocated and presently known as Chisasibi)

    Mistassini (presently referred to as Mistissini)

    Waswanipi

    Nemiscau (known as Nemaska)

    Great Whale River (known as Whapmagoostui)

    Naskapi of Schefferville (presently residing in Kawawachikamach)

Historically and traditionally, the Cree of Oujé-Bougoumou have always been a separate group of Eenouch (Cree people), but the Department of Indian Affairs and Northern Development treated them as members of the Mistassini Band during the negotiations leading to the execution of the James Bay and Northern Quebec Agreement. Consequently, the entitlement of Category I and II land for the Cree of Oujé-Bougoumou was calculated and included in the Category I and II lands set aside for the community of Mistassini. During the negotiations, the Cree and the governments of Canada and Quebec undertook to resolve the situation of the Cree of Oujé-Bougoumou.

In 1998, twenty-three (23) years after the execution of the James Bay and Northern Quebec Agreement and twenty (20) years after the execution of the Northeastern Quebec Agreement, major territorial land issues remain to be resolved by the Cree, the Naskapi and the Governments of Canada and Quebec. These issues are essential for a land base and, hence, local governance by the Cree and the Naskapi.

LAND TRANSFER AND ALLOCATION

According to Section 5 of the James Bay and Northern Quebec Agreement, "Category I A lands are lands set aside for the exclusive use and benefit of the respective James Bay Cree Bands". In a similar manner, Section 5 of the Northeastern Quebec Agreement provides for Category I A-N land for the Naskapi. The Cree and Naskapi communities are located within their respective Category I A and Category I A-N lands. The Agreements also contemplate the establishment and setting aside of Category I B lands for the Cree and the Naskapi. They also define Category II lands for the Cree and the Naskapi.

Under the Agreements, the descriptions of the territories and the transfer of Category I lands (I A, I B, I B special, I A-N and I B-N) for the exclusive use and benefit of the Cree or the Naskapi were to be finalized and based upon technical surveys on the ground. The boundaries and allocation of Category II lands, with the exclusive right to hunt, fish and trap and the rights established under Section 24 of the James Bay and Northern Quebec Agreement and Section 15 of the Northeastern Quebec Agreement, were to be finalized in accordance with those Agreements.

The intention of the parties was that the transfer of Category I lands, on the basis of technical ground surveys, would take place "forthwith" when the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement came into force. The parties intended the same for the allocation of Category II lands on the basis of a final territorial description but without a technical ground survey. As of March 1998, however, the final transfers of Category I lands for the Cree and the Naskapi had not taken place. As far as the Cree are concerned, the allocation and technical description of Category II lands have not been agreed upon and finalized by the parties.

In 1979 and 1980, a series of provisional transfers of land to the Cree, by Order in Council and letters patent, did take place on the basis of the preliminary boundary descriptions of Section 4 of the James Bay and Northern Quebec Agreement. The preliminary boundaries of Category II land for the Cree communities were also given recognition by regulation of the Government of Quebec.

The final transfers of Category I (I A and I B) lands were to be based on technical ground surveys for the Cree communities. Most of the required surveys, with the exception of Wemindji, have been completed. However, the Cree have not approved the "plans of survey" due to unresolved issues such as the configuration of boundaries, ground monumentation of boundaries, the 200-foot corridors along shorelines, the form of the plans of survey, the preambles to the draft decrees prepared by Quebec, and other points of conflict which concern the Cree communities and Councils of the Cree First Nations.

In the last three years, it appears that the Government of Quebec has decided to proceed with the final transfers of Category I lands, dealing only with the Government of Canada and not with the Cree. A series of Orders in Council have been published for the said transfers without discussions with the Cree or their consent. The exclusion of the Cree from the process of the final transfers of Category I lands is strongly opposed by the Grand Council of the Crees (Eeyou Istchee) and the Cree Regional Authority.

As far as the Cree are concerned, it was the intention of the parties at the time of the negotiation of the James Bay and Northern Quebec Agreement that the final transfers of Category I lands and the allocation of Category II lands would only take place with the full agreement and approval of the Grand Council of the Crees (Eeyou Istchee) and the local Cree First Nations with regards to the boundaries and related issues.

With respect to the transfer of Category I lands for the Naskapi, the Government of Quebec issued an Order in Council (92-29) concerning the transfer of Category I A-N lands to the Government of Canada for the exclusive use and benefit of the Naskapi Band of Quebec. The Government of Canada, through the Department of Indian Affairs and Northern Development, has delayed, and continues to stall, the transfer of Category I A-N land for the following reasons:

• verification of the technical description of the land;

• equirement of the environmental evaluation;

• eview by Treasury Board.

The delay in finalizing the transfer of Category I A-N land is unacceptable to the Naskapi.

LAND REGISTRY SYSTEM

Part X (Sections 150-152) of the Cree-Naskapi (of Quebec) Act provides for the establishment and maintenance of a land registry system, under the control and supervision of the Minister of Indian Affairs and Northern Development, for the registration of rights and interests in Category I A and I A-N lands. The Governor in Council adopted regulations (SOR/86-1070) dated November 6, 1986 for the establishment, maintenance and operation of such a system pursuant to Section 151 of the Act.

The system is a dual land registry system requiring that the registration of rights and interests in Category I A and I A-N lands be conducted at the central land registry office, as well as at each of the Cree communities and the Naskapi community for their respective interests. Such a dual system complicates the registration of rights and interests.

As of March 1997, land registry offices have been opened in each Cree community with the exception of Waswanipi. The Naskapi Band has its land registry system in operation in Kawawachikamach, Quebec. The Cree Nation of Eastmain has stated that several entities, such as the Department of Transport and the Société d'énergie de la Baie James, were attempting to register documents or plans without the Band's knowledge. The Eastmain Band is presently establishing a protocol of review related to such attempts to register documents or plans. However, there is no funding available for such a review.

TWO HUNDRED (200)-FOOT CORRIDOR AND THREE-CHAIN RESERVE

Sub-section 5.1.5 of Section 5 (Land Regime) of the James Bay and Northern Quebec Agreement states in part that "the seashore, beds and shores of the lakes and rivers identified in the territorial descriptions . . . shall be excluded from Category I lands with respect to the shoreline of such lakes and rivers and lands on both sides of such rivers and around the lakes for a distance of two hundred (200) feet shall be Category II lands . . . however, such two hundred (200) foot restriction does not apply for a distance of one (1) mile in both directions from the centre of the Cree community concerned along the shoreline".

During the negotiations of the land regime in 1975, the Government of Quebec insisted on this two hundred (200)-foot corridor and presented it as the general application of the "three-chain reserve" in favour of the Crown in right of Quebec throughout the province. The corridor prevented the Cree from selecting the shorelines or lands within two hundred (200) feet of any significant body of water. However, Quebec did not apply the two hundred (200)-foot corridor to the Inuit, nor, it appears, to the Naskapi.

The Government of Quebec eventually abolished the three-chain reserve throughout the province but has maintained the application of the two hundred (200)-foot corridor along the shorelines of bodies of water within Category I lands of the Cree communities, with the exception of Nemaska, whose location on the shores of Champion Lake was determined after the James Bay and Northern Quebec Agreement came into force.

According to the Cree, the application of the two hundred (200)-foot corridor was dictated by the principle of the three-chain reserve, and should be treated as such and simply canceled. Furthermore, the application of the corridor or the three-chain reserve to the Cree communities is unreasonable and unwarranted, since the three-chain reserve has been abolished throughout the province. As far as the Cree are concerned, the final transfers of Category I land should not take place until this issue has been resolved by the parties concerned. The restriction of land selection and categorization along the shoreline of bodies of water within Category I land undermines the authority and jurisdiction of Cree local governments and Cree enforcement of law and order.

OFFSHORE ISLANDS, INTERVENING WATERS AND SEABEDS OF JAMES BAY AND HUDSON'S BAY

The Cree, or Eeyou, have claims based on rights and interests to the offshore islands, intervening waters and seabed of James Bay and Hudson's Bay. These areas are not part of the territory covered by the James Bay and Northern Quebec Agreement; the islands are considered part of the Northwest Territories.

When the James Bay and Northern Quebec Agreement was signed, in 1975, the Government of Canada, by letter to the Grand Chief Billy Diamond, undertook, among other things, to resolve the claims of the James Bay Cree to the offshore islands of James Bay and Hudson's Bay, and to negotiate a settlement. Negotiations commenced shortly after the James Bay and Northern Quebec Agreement came into force, but they were discontinued and no settlement was reached. The obligation and undertaking of the Government of Canada to resolve such claims remains outstanding and unfulfilled.

Many Cree coastal communities have expressed a strong desire to have such claims resolved through negotiations with the Government of Canada for the settlement of their rights and interests in a satisfactory and acceptable manner. The coastal communities are also concerned about the implications of the creation of Nunavut in 1999, since it has been proposed that the offshore islands, intervening waters and seabed in question be considered part of the Nunavut territory.

The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority have reported that a mandate to conduct negotiations to resolve the Cree claims will be obtained and that a federal negotiator will be appointed in accordance with a letter from Minister Ron Irwin dated April 25, 1997. The Commission wonders why it is necessary to obtain a federal mandate to negotiate these claims when a federal undertaking to negotiate the Cree claims to the offshore islands (expressed in the letter to Grand Chief Billy Diamond) remains outstanding and unfulfilled.

WASHAW SIBI EEYOU

The Washaw Sibi Eeyou are a group of about two hundred (200) people who live in various towns and Aboriginal communities, such as Algonquin villages, within the territory covered by the James Bay and Northern Quebec Agreement and Northeastern Quebec Agreement. They claim Cree heritage and wish to be recognized as beneficiaries of the Agreements and participate in the governance and development of the Cree Nation. The Washaw Sibi Eeyou also want to enter into a dialogue with the Department of Indian Affairs and Northern Development with respect to their claims, rights and concerns in the territory.

EXTRATERRITORIAL ISSUES

The Cree and the Naskapi have stated that their homelands extend beyond the territory covered by the James Bay and Northern Quebec Agreement and Northeastern Quebec Agreement. The Council of the Cree First Nation of Mistissini has mentioned that the tallymen, hunters and trappers from its community have traplines located outside that territory. Consequently, these tallymen, hunters and trappers are subject to laws of general application, according to the Government of Quebec. They want a hunting, fishing and trapping regime similar to the one established under Section 24 of the James Bay and Northern Quebec Agreement, since Quebec has attempted to restrict Cree activities with respect to the traditional way of life and the exercise of Aboriginal rights.

In December 1989, a Memorandum of Understanding relating to the transfer of land for the Oujé-Bougoumou Cree was signed by Quebec and the Cree First Nation of Mistissini. One of the issues contemplated for negotiation and resolution is the Cree traplines located outside the territory of the James Bay and Northern Quebec Agreement.

The historical, traditional and ancestral territory of the Naskapi Nation of Quebec extends in, and to, Labrador. From the late 1980s to the mid-1990s, the Naskapi conducted and finalized extensive research to substantiate their claim of rights and interests in, and to, Labrador. The Department of Indian Affairs and Northern Development has requested supplementary information respecting that claim. The Naskapi are concerned, as the policy on land claims must evolve to respect the present status of law and jurisprudence related to Aboriginal title and rights.

The territories of the Cree and the Naskapi are a vast storehouse of resources. They have sustained the Cree and Naskapi nations for thousands of years. When the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement were signed, it was expected that these resources, while being shared with others outside the territory, would continue to provide the economic base for the Cree and Naskapi people for generations to come.

The traditional pursuits of hunting, trapping, fishing and harvesting were, and continue to be, viable ways of making a living for many families. It was expected that these livelihoods would not be interfered with or curtailed unless other options were chosen by the people. This expectation has been shattered. Outside interests destroy the habitat of wildlife and ignore trapline rights routinely. The communities, families and individuals affected are not consulted, do not consent and are not compensated. Specific examples cited by witnesses included public agencies putting fences and gates across traplines, individuals erecting buildings on traplines, companies destroying wildlife habitat around traplines, and people stealing traps and equipment.

More recent use of the territory for forestry, mining, hydro-electric power generation and tourism was expected to be carried out in partnership with the Cree and the Naskapi. All these types of development in the territory were expected to be done in consultation with, and with the consent of, the "beneficiaries" of the Agreements. Any truly equal partnership involves full consultation and consent. It was clear in the testimony given at Commission hearings that neither the Cree nor the Naskapi are opposed to development or to sharing the resources of the territory. What they do find unacceptable is unilateral development that is carried out without their input or consent, and violates their existing rights, disrupts their economies, damages the environment and provides few benefits to their people in return.

The Cree and Naskapi who spoke to the Commission take the position that their communities must achieve economic independence and viability both in the short term and for future generations. To do this, they must be equal partners in the planning and managing of resource development and other economic development in the territory. The Cree and Naskapi people must also benefit directly. This needs to be in terms of direct training and employment for individuals, and revenue-sharing for the benefit of the communities. These benefits cannot be limited to those negotiated on a project-by-project basis, but should be at the core of a territory-wide economic development policy. Such a policy should be developed jointly by the Cree, the Naskapi and government.

On August 8, 1974, in Eastmain, Eeyou Istchee, the Cree Chiefs and leaders established the Grand Council of the Crees (of Quebec). Since its establishment and incorporation, the Grand Council, which is currently known as the Grand Council of the Crees (Eeyou Istchee), has been the political arm of the James Bay Cree. It has represented the Eeyouch/Eenouch of Eeyou Istchee and protected their rights and interests as mandated by the Cree communities and Eeyou leadership from time to time.

The Cree Regional Authority, established and incorporated on June 23, 1978 by an Act of the National Assembly of Quebec in accordance with the James Bay and Northern Quebec Agreement, is the administrative arm of the Cree and has the following general powers:

• to appoint representatives of the Cree in all structures, bodies and entities established pursuant to the Agreements; and

• to give a valid consent, when required under the Agreement, on behalf of the Cree people and Nation.

The Cree Regional Authority also provides programs and services as determined by the Cree communities and their Councils.

The Board of Compensation, established under Section 25 of the James Bay and Northern Quebec Agreement, is a component of the Cree Regional Authority but with separate administration, operations and purposes for the receipt, management and investment of compensation payable to the Cree in accordance with the Agreement.

Under customary law of Eeyouch/Eenouch of Eeyou Istchee, the Cree communities and local governments must give valid consent to any process and matters that affect their rights and interests.

For the Cree, the political power base and collective decision-making originates with, and flows from, the Eenouch/Eeyouch at the local level. When the Cree-Naskapi (of Quebec) Act was passed in 1984, Cree local government for the administration, management and control of Category I A land was recognized by the Government of Canada. However, Cree local government through the exercise of the inherent right of self-government was originally established, and continues to evolve, on the basis of Eeyou history, law and Eeyou practice of self-government.

Throughout the Commission's consultation process, the Cree communities, and in particular the local Councils, have emphasized the need to clarify the roles and responsibilities of the local and regional bodies and institutions in the exercise of Cree self-government. The Councils of the Cree Communities wish to conduct and maintain direct relations with the Government of Canada in order to discuss their particular issues and resolve certain problems directly with the Government.

When Cree local Councils wish to resolve particular problems and concerns, the Department of Indian Affairs and Northern Development simply wants to refer such matters to the federal negotiation process referred to as the "Vennat-Moses" process. The Cree communities and their local Councils want the federal negotiation process to continue and proceed on the basis of mandates from local communities and Councils for the resolution of common and particular issues with the Government of Canada. However, the authority of local Cree governments to represent and negotiate their particular interests and concerns directly with the Government of Canada must not be eroded by any federal negotiation process as determined, and agreed to, by the Cree local and regional authorities and the Government of Canada. In the same manner, the delivery of federal programs and services with funding must not be hindered by the present state of Cree local and regional relations, which are perpetuated by the federal government's insi stence on dealing directly with the regional Cree entities.

Historically and traditionally, the Oujé-Bougoumou Cree have always been a distinct group of Eenouch (Cree people) who used and occupied their traditional territory, which comprises about 1,000 square miles of land within Eeyou Istchee (Cree homeland). This traditional territory has abundant natural resources such as minerals, forests and wildlife. The discovery and exploitation of the mining and forest resources has had and continues to have a significant impact on the Oujé-Bougoumou Cree as they were dispossessed of their homeland, denied their rights and excluded from benefits derived from the development, in addition to having to relocate their village several times over a period of fifty (50) years. The non-Native towns of Chibougamau and Chapais, in Northern Quebec, originated from mining development within the traditional territory of the Oujé-Bougoumou.

At the time of negotiations leading up to the James Bay and Northern Quebec Agreement, the Oujé-Bougoumou Cree (who numbered about two hundred (200) Eenouch people) were considered members of the Mistassini Band by the Department of Indian Affairs and Northern Development. However, they were dispersed throughout their traditional territory in several small crude encampments without the benefit of running water and conventional sanitation facilities.

The Cree and governmental parties to the negotiations on the James Bay and Northern Quebec Agreement acknowledged that the situation of the Oujé-Bougoumou Cree, including their claims, interests and concerns, would be addressed after the Agreement came into force. The Governments of Canada and Quebec initially denied such an acknowledgment, but the Oujé-Bougoumou people continued to press for negotiations. In the 1980s, the Government of Quebec came to the negotiation table, with the assistance and participation of the Grand Council of the Crees (of Quebec), and the parties signed the Oujé-Bougoumou Agreement on September 6, 1989. The main provisions of the Agreement deal with, among other things, funding for the construction of a new village and a socio-economic development fund.

In 1990, the Oujé-Bougoumou Cree and the Grand Council of the Crees (of Quebec)/Cree Regional Authority entered into negotiations with the Government of Canada, which led to the signing of the Oujé-Bougoumou/Canada Agreement on May 22, 1992. That Agreement provides for the following:

• the financial participation of Canada in the construction of the new village of Oujé-Bougoumou;

• the creation of an Oujé-Bougoumou socio-economic fund;

• the provision by Canada of operation and maintenance (O&M) funding;

• the Agreement by the parties to amend the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act in order that the Cree of Oujé-Bougoumou be recognized as the ninth Cree Band; and

• the implementation of initial measures under which the Cree of Oujé-Bougoumou will be treated in a manner similar to the other James Bay Cree Bands.

The Oujé-Bougoumou Cree currently has a population of about six hundred and fifty (650). At the consultation hearings and meetings held by the Cree-Naskapi Commission, the Council of the Oujé-Bougoumou Cree Nation, as well as members of the community, raised concerns and issues related to the implementation of the Oujé-Bougoumou/Canada Agreement. They expect all parties to respect their obligations for the proper implementation of the Agreement. In this regard, they expressed the following concerns:

COMPLEMENTARY AGREEMENT

The formal incorporation of the Oujé-Bougoumou Cree into the James Bay and Northern Quebec Agreement requires the negotiation of a Complementary Agreement. These negotiations have not commenced due to issues that must be settled by Quebec, Mistissini and Oujé-Bougoumou regarding the "transfer" of lands. As mentioned earlier, the entitlement of Category I and II land for the Cree of Oujé-Bougoumou (who were registered as members of the Mistassini Band) was calculated and included in the Category I and II lands set aside for the community of Mistassini in the James Bay and Northern Quebec Agreement. In effect, the Cree of Oujé-Bougoumou were not designated as a Band in the Agreement, and since 1975, they have sought to be recognized as a Band under the Agreement and the Cree-Naskapi (of Quebec) Act. The Cree of Oujé-Bougoumou consider the forthcoming negotiations as a treaty process that must take into account the present state of law respecting Aboriginal rights and the present status of the principle of ex tinguishment of Native rights, claims, title and interests.

Once the land transfer issue has been settled and the Complementary Agreement has been concluded in a satisfactory manner, the Oujé-Bougoumou Cree expect a formal amendment to the Cree-Naskapi (of Quebec) Act in order to be incorporated as the ninth Band of the James Bay Cree. Since they are not yet incorporated as a Band under the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act, and their new village is situated on lands that have not yet been designated as Category I A, they are experiencing problems and barriers in the exercise of local government and the delivery of programs and services.

EXERCISE OF LOCAL GOVERNMENT

The by-laws enacted by the Oujé-Bougoumou Cree Nation or by the Council are not recognized by the Department of Indian Affairs and Northern Development. Therefore, it appears that the Department considers the constitution of the Oujé-Bougoumou as a Band to be a prerequisite for the exercise of local government. This prerequisite constitutes a denial of the exercise of the inherent right of the Oujé-Bougoumou Cree to self-government.

ACCESS TO PROGRAMS

The Oujé-Bougoumou Cree have been informed that a range of federal programs and services are deliverable to "Indian" reserves or Category I A lands. Since their community land has not been designated as Category I A, they are denied access to those programs and services. This constitutes a breach of Section 5 (Access to Programs) of the Oujé-Bougoumou/Canada Agreement, which states the following:

"In the interim period prior to the Crees of Oujé-Bougoumou becoming incorporated as a Band under the Cree-Naskapi (of Quebec) Act, the Crees of Oujé-Bougoumou shall have access to departmental program funding . . . In addition, the Crees of Oujé-Bougoumou shall be eligible for all federal programs generally available to individuals or communities".

OPERATION AND MAINTENANCE (O & M) FUNDING

While the Oujé-Bougoumou Cree presently receive O & M funding on the same basis as the other Cree communities, the current formula for annual adjustments to the subsidy is inadequate and does not meet the present reality and new needs and concerns of the community.

FUNDING FOR CAPITAL PROJECTS

Starting in fiscal year 1994-95, the Cree expected to negotiate funding for capital projects on the basis of identified needs, rather than on the basis of the application of the formula for annual adjustments to the subsidy for capital projects. Instead, the Department of Indian Affairs and Northern Development applied the formula for annual adjustments to the subsidy. This approach changes the manner in which future capital projects are funded for the Oujé-Bougoumou Cree and differs from the way the capital projects are funded for the other Cree communities. The Department also maintains that it is not required to reimburse the Cree for the capital funding received by the Oujé-Bougoumou Cree in the amount of $1,700,000 after 1994-95. These actions by the Department are contrary to the letter and spirit of the Oujé-Bougoumou/Canada Agreement.

The Naskapi presentations to the Commission included many of the same issues as those addressed by the Cree communities. There were, however, some issues unique to them. For this reason, as well as because the Naskapi are a distinct nation and are party to a separate agreement (the Northeastern Quebec Agreement), the Commissioners agreed to include a specific chapter in their report on Naskapi concerns and issues. These include the following.

1. Amendments to the Cree-Naskapi (of Quebec) Act

   • reduction of the quorum required for approval of long-term borrowing, and reconsideration of the need for Band member's approval of certain other matters;

   • authority for law enforcement officers to issue tickets instead of summons for by-law offences; and

   • authority for the Chief and Council to make official decisions without a meeting when there is unanimous consent.

2. Federal gun control legislation - The Naskapi local government should be designated as the authority to offer safety courses, issue licences and register firearms, without charge to Naskapi beneficiaries. The federal government would cover the administrative costs.

3. "Cowie" Commission Inquiry Report - The Cree, the Naskapi and the federal government should initiate discussions on the implementation of the report.

4. Land registry system - The land registry system is working well for the Naskapi at the present time.

5. Modernization of Section 15 of the Northeastern Quebec Agreement - The Naskapi wish to begin the process of updating Section 15 of the Northeastern Quebec Agreement (in conjunction with Section 24 of the James Bay and Northern Quebec Agreement). They asked that the Cree-Naskapi Commission encourage the federal government to participate in the process.

6. Review of Section 10 of the Northeastern Quebec Agreement - Section 10, which deals with health matters, is under negotiation with Quebec. An Agreement in principle has been reached and an updated version of Section 10 is being prepared.

7. Review of Section 11 of the Northeastern Quebec Agreement - Discussions are under way between the Naskapi and the Quebec Government to update Section 11 (Education). The Naskapi want the federal government involved as a participant or an observer.

8. Five-year Capital Funding Agreement - The current Five-year Capital Funding Agreement with the Department of Indian Affairs and Northern Development expires in 1999. Discussions are now under way with the Department to review the arrangements.

9. Contract with Transport Canada - The Naskapi have a contract with Transport Canada for the maintenance of airport facilities at Schefferville. They stated that, because of operational efficiency, they have achieved a surplus of $35,000 in the contract.

   Transport Canada, for its part, appears to want to reduce the new contract (which comes into effect in July 1998) by $35,000. The parties have differing views on the matter. An early meeting should be held between representatives of the Naskapi and Transport Canada to clarify the issue and hopefully resolve it.

   The broader issue involves the concept of sole-source contracting versus tendering and whether or not sole-source contracts can, or should, allow for efficiency-based profits. This question needs to be reviewed, especially in light of the spirit and intent of the Aboriginal Procurement Policy.

10. Naskapi Internet access centre - The Naskapi are pleased to report that a $30,000 grant from Industry Canada, under the Community Access Program, will assist in the establishment of an Internet access centre, which will provide access to the "information highway" as well as training opportunities for community members.

11. Transfer of Category I A-N land - There have been many delays on the part of the federal government in implementing its internal technical processes to complete the transfer. This impedes the handling of a number of other matters.

12. Name change - In 1996, the Band approved a by-law to change the name of the Naskapi Band of Quebec to Naskapi Nation of Kawawachikamach (in English), Nation de Naskapi de Kawawachikamach (in French), and Naskapi Eeyouch Kawawachikamach (in Naskapi). The federal government is delaying approval pending its completion of the final land transfer.

13. Labrador claims - The Northeastern Quebec Agreement resolved Naskapi claims only in Quebec. Claims in Labrador remain to be settled. Work in this area is continuing.

14. Housing - The Naskapi report that their housing program is functioning smoothly. They have implemented a number of innovative management procedures. They have also requested that the Canada Mortgage and Housing Corporation and the Department of Indian Affairs and Northern Development take steps to ensure that changes in their housing policy and programs be communicated in a more timely manner.

WHAPMAGOOSTUI (GREAT WHALE)

The Cree of Whapmagoostui have stated to the Cree-Naskapi Commission that the Inuit of Northern Quebec are conducting activities such as the operation of an outfitting camp and the hunting of caribou for commercial purposes within the Cree traditional territory. The master plan concerning land use prepared by the Makavik Regional Government in the territory north of the 55th parallel of latitude covers the traditional territory of the Cree of Whapmagoostui. Section 24 of the James Bay and Northern Quebec Agreement provides for mutual agreement by the Cree and the Inuit as to the areas north and south of the 55th parallel of latitude where they may exercise, respectively, the right to harvest (hunt, fish and trap) and engage in related activities. The Cree and Inuit have not concluded such an agreement.

CHISASIBI

1. During hearings in Chisasibi, the Chief, Charles Bobbish, raised concerns about the status of the area known as Block D. This is the land on which the Chisasibi airstrip is located. The community considers the land as Category I land under the jurisdiction of the Band. Quebec, on the other hand, contends (with no objection from Canada) that it has validly granted the land to the James Bay Development Corporation. The position of the Chief and Council appears to be supported by the evidence the Commissioners have seen, namely:

   1. Subsection 5.1.5 of Section 5 of the James Bay and Northern Quebec Agreement states: "Lands ceded to third parties, by letters patent or owned by third parties prior to the execution of the Agreement, shall be Category III lands".

   2. The James Bay and Northern Quebec Agreement was executed on November 11, 1975.

   3. The James Bay Development Corporation bases its claim to Block D on letters patent dated June 28, 1979.

   The Commissioners recommend that the Government, in its role as a fiduciary to the Chisasibi Cree Nation, particularly as regards Chisasibi's rights under the James Bay and Northern Quebec Agreement, assist Chisasibi in getting recognition of its rights in relation to Block D.

2. The Chief of Chisasibi also raised the concern that the townsite near LG 2, known as Radisson, has been developed into a permanent community in violation of the spirit and intent of the James Bay and Northern Quebec Agreement. He believes that the negotiations leading to the Agreement involved a commitment that long-term disruption to the Cree traditional pursuits over their traditional territories would be kept to an absolute minimum. In this regard, he contends that it was understood that various construction camps, etc., would be temporary and removed once construction was complete. Over the longer term it was understood that only a minimal number of permanent establishments would be created to operate the hydro-electric systems.

It is clear that Radisson was intended to be, and now is, a permanent and substantial community that exceeds the minimum needed for hydro operations. In fact, Radisson is now advertised as the heart of "Radissonie" and as a tourist destination. The Cree have never opposed development in the territory, provided that they are involved in, and consent to, that development.

WASKAGANISH

During the hearings in Waskaganish, a number of issues unique to that community were raised. Among them were the following:

1. Conflict of interest - Concern was expressed that there is an "inherent conflict when employees [of the Band] are members of the Council". Section 68 of the Cree-Naskapi (of Quebec) Act states that "any elector" is eligible to be elected to Council. Some exceptions are listed, and when the overall amendments are considered, it might be advisable to include an additional exception recognizing the right of Councils, through a by-law or the Band members themselves, to stipulate that persons employed by the Band are ineligible. The application of this provision would not be obligatory.

2. In camera meetings - Concern was raised that it is sometimes necessary to hold in camera meetings. Section 37(2) of the Cree-Naskapi (of Quebec) Act states that ". . . Council meetings shall be open to the public." An amendment to the Act would be needed so that Council could meet in camera to discuss personnel matters, certain financial or contract issues, possibly the consideration of legal advice, etc.

   In the meantime, the Commissioners feel that Waskaganish could use its powers under Section 40 of the Act to create a "Committee of the Whole" with the explicit power to consider specific matters in camera. This committee could then tender "advice" at a regular Council meeting, which the Council could treat as it saw fit.

3. c) Council committees - Concern was expressed that certain changes should be made to allow the creation of Council committees with limited delegated decision-making powers.

4. d) River bank and soil stability - The concern was raised that river bank and soil stability issues were a serious threat to the integrity of water and sewage systems, and hampered the proper planning of new facilities. It is necessary for the Department of Indian Affairs and Northern Development to provide for a technical assessment of these issues followed by any remedial measures that may be necessary.

Many issues raised in the Waskaganish presentation were also raised in other communities and are addressed elsewhere in this report.

EASTMAIN

Eastmain raised many issues of concern to most of the Cree and Naskapi communities. These are generally addressed elsewhere in the report. However, some specific issues were raised that primarily concern Eastmain or have a specific application to the community. These are discussed below.

1. Band office - The Eastmain Chief pointed out that the Department of Indian Affairs and Northern Development is unwilling to cover the cost of the new Band office. Such costs are usually covered.

2. Heavy equipment - Heavy equipment used for such activities as road maintenance is old and in need of replacement. Eastmain reports that Indian Affairs officials have asked that this issue be referred to the Vennat/Moses process, rather than considering it as a current issue.

3. Obsolete waste disposal site - The waste disposal site is reported to be in need of replacement. Here again, the response of the Department of Indian Affairs and Northern Development is reported to be: "Refer it to the Vennat/Moses process."

4. Local employment and procurement - The Band reports that the spirit and intent of the federal policies on Aboriginal employment and procurement are not being followed in practice. This has apparently resulted in local works and contracts not benefitting members of the community to the extent they should.

5. Environmental clean-up - It appears that old unused oil tanks and other debris at the site of the former diesel power plant have still not been cleaned up by the Department of Indian Affairs and Northern Development. There is concern about soil and water contamination as well as children's safety.

6. Health - Eastmain can be extremely dusty because of the nature of the townsite as well as wind conditions. This has apparently resulted in unusually high rates of respiratory problems. Measures must be taken to remedy this, including paving, planting vegetation, windbreaks, etc.

   Diabetes is becoming an increasingly serious problem. Eastmain has requested funds for a pilot project to address this specific issue.

7. Youth needs - Unrest is increasing among youth. Violence in schools is a specific example. Resources are needed for youth programs and facilities.

8. Transport Canada concerns - The Band indicated that it has two major unresolved issues with Transport Canada/Nav Canada. The first involves the contract for the services of an observer/communicator at the airport. There is a serious dispute over whether certain payments being deducted by Transport Canada/Nav Canada are allowable under the contract. The second involves the question of whether royalties should be paid for gravel owned by Eastmain when it is required for resurfacing the airstrip.

With respect to these issues, the Cree-Naskapi Commission requested that representatives of Eastmain meet with senior officials from Transport Canada. Given the apparent failure of earlier discussions, it recommended that these talks be at the assistant deputy minister level. The Commission would be willing to facilitate such discussions and to provide any follow-up that may be required.

MISTISSINI

1. Housing backlog - Mistissini's presentation emphasized that the housing backlog is still the main community problem. The community has made dramatic progress in the completion of new units. In spite of this, the considerable backlog, together with the high rate at which new families are being formed, continues to create a very great need for more homes.

2. Nitchiquon site - A former Transport Canada airstrip and related facility site at Nitchiquon is no longer in use. Transport Canada is prepared to transfer the site (via the Department of Indian Affairs and Northern Development) to Mistissini for alternative use. Before that can happen however, it will be necessary to assess the environmental status of the site and clean up any contamination. Transport Canada has undertaken to conduct such an assessment in the summer of 1998. Once the assessment is completed, clean-up operations will be required before the site can be put to alternative use by Mistissini.

3. Mediation role of the Cree-Naskapi Commission - Mistissini, as well as other communities, suggested that the Commission play the role of mediator. It was specifically suggested that this role include mediation involving Quebec.

4. Cree Constitution - The Council of the Cree Nation of Mistissini has suggested the development of a 'Cree Constitution' for a Cree Nation Government.

WEMINDJI

1. Water rights - The Wemindji Council reminded the Commissioners that the water rights of the community had never been negotiated or surrendered, and that these rights were an issue requiring review and discussion.

2. Violence - Violence, in particular alcohol-related violence, is seen to be an increasing problem in the community.

3. Intrusion of non-Cree hunters - The intrusion of non-Cree hunters into Cree hunting areas without the permission of Wemindji is seen as an increasing problem in need of attention. In one case, a non-Native has built a camp on a trapline without permission from either the tallyman or Wemindji.

It should be pointed out that the Commissioners did not attend a community meeting in Wemindji. They will do so, funding permitting, as soon as possible.

WASWANIPI

1. Special needs of Elders - It was noted that new lifestyles often mean that family members are at work during the day. As a result, the need for programs and facilities for Elders is greater than ever. Non-emergency medical transportation is also needed to enable Elders to go to medical appointments, etc.

2. Youth needs - Waswanipi youth make up a large part of the community, one that is growing at a rapid rate. Their needs include not only specific youth programs and facilities, but also major improvements in education and job-related training. There are specific needs in the areas of computer skills, and upgrading mathematics and French-language skills. Major initiatives to improve economic opportunities for youth are also required.

3. Land - A deeply held and strongly expressed concern was that the traditional land is endangered by irresponsible, poorly planned and uncontrolled development practices. More Cree involvement in the planning, management and control of activities affecting the traditional territories is seen to be an urgent priority.

4. Cree-Naskapi Commission - The Cree-Naskapi Commission should have an office in Waswanipi to serve the communities in the area.

It should be noted, due to circumstances beyond the Commissions control the Cree-Naskapi Commission had not held a public hearing in Waswanipi as of the writing of this report. The Commission did hold a brief meeting with the Chief and two Councillors in November 1997 and is committed to holding a community hearing as soon as possible. Matters raised at that time will be addressed in the supplementary report.

NEMASKA

1. Nemaska relocation - Nemaska's relocation was forced by the fact that the Nottaway-Broadback-Rupert would have flooded the community at Old Poste. The relocation had a traumatic effect that is still being felt. This remains a concern. The community has instituted a Wellnesss Program with very limited government funding to deal with this and other problems.

2. Access road - The community used $3.85 million of its own money to pay for a 10 km access road. This was one cost of relocation that should have been covered by those who forced the relocation. Also, no help has been provided for the maintenance of the road.

3. Cree-Naskapi Commission - As noted elsewhere, all the hearings included a call for the Cree-Naskapi Commission to play a mediation role. In Nemaska, it was felt that the Commission should also mediate discussion of issues between the local and regional Cree government entities.

4. Old Poste - The Chief and Council would like Old Poste to be designated a historic site, as it has rock paintings and numerous other features of historic interest. Nemaska is developing cultural and traditional programs at Old Poste. Quebec wants stumpage fees for the timber being used to build cabins for use in programs for youth, etc. These fees should be waived under the circumstances.

PROCESS FOR CONSULTATION ON IMPLEMENTATION AND REVISION OF THE ACT

The Cree-Naskapi (of Quebec) Act requires that the Cree-Naskapi Commission report biennially on the implementation of the Act. In the exercise of its duties, the Commission adheres to certain standard principles of fair and competent inquiry and investigation. It has established a public consultation process that respects all parties concerned, and it has initiated preliminary visits for consultation with the Cree and Naskapi Band Councils on ways to make that process more meaningful and practical. In general, Band Councils want the Commission to establish a presence in the communities and to meet their respective members. Consequently, the Commission has revisited most of the communities to conduct general public hearings.

Fact-finding is part of the general procedures of the Commission, in order to identify, clarify and focus on the problems, issues and concerns of the Cree and Naskapi Bands and the Government of Canada. The Cree-Naskapi Commission also held public hearings in Ottawa, Ontario, to receive submissions from certain Band Councils, the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and various federal departments and agencies.

The public consultation process has involved the following Cree and Naskapi Bands contemplated by the Cree-Naskapi (of Quebec) Act:

Whapmagoostui First Nation

Cree Nation of Chisasibi

Waskaganish First Nation

Cree Nation of Eastmain

Cree First Nation of Waswanipi

Cree Nation of Mistissini

Cree Nation of Wemindji

Nemaska First Nation

Naskapi Nation of Kawawachikamach

The Oujé-Bougoumou Cree Nation, which is not constituted as a Band under the Act, also submitted its concerns and interests to the Commission.

Washaw Sibi Eeyou, a group of about one hundred and fifty (150) to two hundred (200) Cree who live throughout Cree territory, made a presentation to the Cree-Naskapi Commission in Waskaganish, Quebec.

The population of the Cree, Naskapi and Washaw Sibi Eeyou is about thirteen thousand six hundred (13,600) people.

PROPOSED REVIEW AND AMENDMENT OF THE CREE-NASKAPI (OF QUEBEC) ACT

According to the Cree and the Naskapi, they have exercised, and continue to exercise, their inherent right to govern themselves and their lands. Section 7 of the Northeastern Quebec Agreement and Section 9 of the James Bay and Northern Quebec Agreement are partial expressions of the inherent right of self-government for the Naskapi and the Cree. These pertinent sections of the Agreements led to the enactment of the Cree-Naskapi (of Quebec) Act, which provides for Cree and Naskapi local governments, and the administration of their respective Category I community lands.

The Cree-Naskapi (of Quebec) Act came into force in 1984 and has never been amended. The Cree-Naskapi Commission recommended amendments to the Act in its previous biennial reports; however, the Government of Canada has chosen to ignore those recommendations, which were formulated with the direct participation of the Cree and the Naskapi. The Cree and the Naskapi have expressed grave concern about the refusal of the Government of Canada to act upon the Commission's recommendations in a manner that would facilitate, promote and enhance Cree and Naskapi local government and administration, as well as management and control of their respective Category I land. The lack of action and refusal on the part of the Government of Canada seriously undermines the Commission's duty to "report" on the implementation of the Cree-Naskapi (of Quebec) Act.

The Cree have stated that if the Indian Act can be amended so can the Cree-Naskapi (of Quebec) Act.

The Cree and Naskapi have expressed the need for a thorough and full review of the Act. Such a review must be conducted by the authorities concerned in order to amend the Act. According to the Cree and the Naskapi, the Act must be amended in order to achieve the following principal objectives:

• remove barriers or impediments in the decision-making process;

• improve and simplify the process for amending the Act;

• enable and improve law enforcement;

• reflect the present reality and situation of local government; and

• incorporate the Oujé-Bougoumou Cree Nation as a Band.

In particular, the Cree and the Naskapi have suggested the following amendments to the Cree-Naskapi (of Quebec) Act:

QUORUMS

The percentage of electors required to vote on certain matters is too high and should be lowered. The present requirements hinder the decision-making process of the Bands concerning the approval of by-laws related to Band borrowing, hunting, fishing, trapping, and land and resource use plans.

TAXATION

The exemption from taxation under Sections 187 and 188 of the Act must be extended to all Cree (and Naskapi) beneficiaries of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

POLICING

The present provisions of the Act should be amended to allow the Band to establish its own police force. The amendment should permit local police to issue tickets, rather than a summons under the criminal code.

AUTHORITY OF THE CREE-NASKAPI COMMISSION

The Cree-Naskapi Commission should have more that a "reporting" duty. In particular, the Act should be amended to make the Commission a "quasi-judicial" body with the appropriate complaints procedures, so that it reviews the implementation of the James Bay and Northern Quebec Agreement, the Northeastern Quebec Agreement and the Cree-Naskapi (of Quebec) Act. The Commission should also have mediating authority and serve as a mechanism for dispute resolution. As a "quasi-judicial" body, its findings would have to be binding and not simply the basis for mere recommendations to the authority concerned (federal, Cree or Naskapi).

INCORPORATION OF THE OUJÉ-BOUGOUMOU CREE NATION

The Oujé-Bougoumou/Canada Agreement acknowledges that it is appropriate for the Cree of Oujé-Bougoumou to be recognized as a separate Band under the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act. Moreover, the village of Oujé-Bougoumou is situated on land that will be designated as Category I A land within the meaning of the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act. Therefore, Part I of the Act should be amended to incorporate the Oujé-Bougoumou Cree Nation as a Cree Band upon resolution of the land transfer issue concerning Quebec and Mistissini and the conclusion of a Complementary Agreement (amending the James Bay and Northern Quebec Agreement to incorporate the Oujé-Bougoumou Cree into the Agreement).

PROVISIONS FOR AMENDMENTS

The Cree-Naskapi (of Quebec) Act should have provisions that would facilitate and simplify the amendment process for certain sections of the Act.

In addition, the Cree and the Naskapi have restated their position that all the recommendations related to amendments to the Act contained in the previous reports of the Cree-Naskapi Commission should be accepted and acted upon by the Government of Canada in a manner that will respect Cree and Naskapi local government and administration.

Throughout its history, the Cree-Naskapi Commission has received numerous suggestions from individuals, Chiefs and Councils, other First Nations institutions and third parties as to how its mandate should be interpreted and revised. As for the Commission's less formal role, virtually everyone (including the present minister) has offered suggestions. Minister Stewart, for example, recognized some of the obvious limitations and said that the Commission should become "part of the life of the communities" to a greater extent.

The Commission's experience over the past twelve and a half years, when considered in light of the expectations of the communities and others, provides the basis for the discussion that follows. That discussion is focussed on four areas: the existing mandate, the report of the "Cowie" Inquiry, a mediation role and a report follow-up role.

THE EXISTING MANDATE

The legal powers and duties of the Commission are defined in Sections 151 to 172 of the Cree-Naskapi (of Quebec) Act. Some of those duties are worth noting. In particular, Section 165(1) states that the Commission shall:

1. "prepare biennial reports on the implementation of this Act, in accordance with Subsection 171(1); and

2. except as provided by Subsections (2) and (3), investigate any representation submitted to it relating to the implementation of this Act, including representations relating to the exercise or non-exercise of a power under this Act and the performance or non-performance of a duty under this Act".

Section 165 (1) establishes the core activities in terms of the minimum legal duties of the Commission. Many arguments (including some very reasonable ones) have been made to the effect that the Commission should accept a broader role. It is felt that simply doing the minimum that the law will allow is a bureaucratic, inappropriate and unacceptable approach. The Commission respects those views, and indeed agrees with most of them. Before addressing them, however, it is perhaps useful to re-examine the Commission's existing mandate and role.

Many Chiefs and Councils, individuals and organizations have taken the position that the Cree-Naskapi Commission should deal with issues arising not only under the Cree-Naskapi (of Quebec) Act itself, but also under the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. The "Cowie" Inquiry suggested legislative changes to make this an explicit and mandatory function of the Commission.

The Commissioners agree that an amendment to the Act explicitly mandating the Commission to act in this area would be helpful. It is also clear, however, that the present legislation already provides a limited role in this area. While suggesting changes to the Act is an appropriate activity, it is a current responsibility of the Commission to deal with all representations that fall within the existing mandate. Among other things, that mandate requires that the Commission investigate representations relating to the exercise or non-exercise of powers and the performance or non-performance of duties under the Act. The powers and duties referred to include those of the Cree and Naskapi Bands, the federal government and others.

Some of the powers and duties of Bands under the Cree-Naskapi (of Quebec) Act go beyond the scope of the Act itself. For example, Section 21(j) stipulates that the object of a Band include:

"To exercise the powers and carry out the duties conferred or imposed on the Band or on its predecessor Indian Act band by any Act of Parliament or regulations made thereunder, and by the Agreements".

Powers and duties conferred or imposed by other federal legislation or regulations or by the Agreements are therefore part of the responsibility of the Bands under the Cree-Naskapi (of Quebec) Act. If, for example, a representation is made that a Band is not carrying out its duties or exercising its powers as stipulated in Section 21(j), the Cree-Naskapi Commission has a responsibility to consider the representation in the same way as if the matter related to any other part of the Cree-Naskapi (of Quebec) Act. A variety of other legal instruments come to mind, including the legislation giving effect to the Agreements, the Agreements themselves and other legislation.

THE REPORT OF THE "COWIE" INQUIRY

Section 172 of the Act provides for an inquiry into the powers, duties and operation of the Cree-Naskapi Commission five years after its creation. Pursuant to this requirement, in 1990 the federal government appointed a commission of inquiry consisting of Anthony Price, Mark Dockstator and Ian Cowie (who served as chairman). On April 4, 1991, this Commission filed a lengthy and detailed report containing ten and a half pages of recommendations. While it is possible to disagree with one or two of the recommendations, it is hard to argue with the overall report and the vast majority of its specific points. It is, to put it simply, an excellent report based on extensive research, independent analysis and widespread consultation, and it was well received in the communities.

What did the government do about these recommendations? Nothing whatsoever. During the 1998 hearings, the Commission was told repeatedly that the "Cowie" report should be reviewed and most of its recommendations implemented. While each of the recommendations deserves careful review and action, several stand out in terms of their relevance to major issues dealt with in this report. For example, there is widespread concern that the recommendations of the Cree-Naskapi Commission are not acted upon and are generally ignored by government. The "Cowie" report recommended that the Cree-Naskapi (of Quebec) Act be amended to provide for mandatory referral of Cree-Naskapi Commission reports to the House of Commons Standing Committee on Aboriginal Affairs. While no action has been taken on amending the Act to achieve this, the Commission has already made a request to Guy Saint-Julien, the chairman of the Committee, to have the 1998 report considered by the Committee. We are pleased to report that Mr. Saint-Julien has agreed.

Another very widespread suggestion that is echoed in a specific recommendation of the "Cowie" Inquiry is that the Cree-Naskapi Commission should deal with issues arising out of the implementation of the Northeastern Quebec Agreement and the James Bay and Northern Quebec Agreement. Here again, the government has taken no action. The Commission has carefully reviewed the Cree-Naskapi (of Quebec) Act in relation to this matter. As outlined above, the Commissioners have decided that the existing provisions of the Act require and allow the Commission to play a certain role in this area.

A third area addressed by the "Cowie" report was the financing of the Cree-Naskapi Commission:

"In the view of the Inquiry, the approved budget has severely limited the Commission's ability to fully discharge its original mandate, especially at the community level, and has caused specific activities to be curtailed or distorted".₁

The creation of the Cree-Naskapi Commission by federal legislation gives the Commission independence. That independence is almost entirely illusory, however, because of the control the Department of Indian Affairs and Northern Development exercises by refusing adequate funding to allow the Commission to fulfill its legislated mandate. This was shown by the "Cowie" Inquiry during its investigation. In its report, the Inquiry states that a legal opinion was prepared for the Department of Indian Affairs and Northern Development and that:

"Most importantly, the legal opinion advised that this was the best arrangement for the "government to impose terms and conditions that would allow a contribution agreement as a control over the Commission's activities."²

So, in fact, the independence envisioned by Parliament for the Commission has been almost neutralized by the administrative and financial control of the Department of Indian Affairs and Northern Development. This problem continues to plague the Commission to this day. It is true that, as the "Cowie" Inquiry reported, in 1991 the Cree-Naskapi Commission was unable to properly carry out its legislated responsibilities. The core funding in fiscal year 1992-93 was $480,000. There has been no change since then. For purposes of preparing the report every second year, the Commission has received $175,000.

On March 9, 1998 the Commission met with the Honourable Jane Stewart, Minister of Indian Affairs and Northern Development. Although the Commission considered that it was somewhat inappropriate to raise the question of its funding levels, the situation was so serious that it felt compelled to inform the Minister that: a) its long-term funding must be sufficient to enable it to carry out its duties under the Cree-Naskapi (of Quebec) Act; and b) unless some short-term supplement was made available, the 1998 report would not be up to acceptable standards.

The Minister's response was that her department would be willing to discuss funding levels in relation to the 1999-2000 fiscal year. Discussions are now under way. The Commissioners are optimistic that the Minister's view that the Commission should become "part of the life of the communities", as stated earlier, will have some impact on the outcome of the discussions.

In terms of the present report, the Cree-Naskapi Commission does not have adequate resources to prepare a comprehensive report of a standard acceptable for tabling in the House of Commons and the Senate as required by Section 171 of the Cree-Naskapi (of Quebec) Act. For this reason, the Commissioners believe that the Minister, the House of Commons, the Senate and the general public are entitled to know in what way the report is below acceptable standards.

There are three major areas in which a shortage of resources has forced the Commission to compromise acceptable standards. The first relates to the research necessary to validate the various points made by the witnesses appearing at the hearings. Many statements are made about the way in which Chiefs and Councils, federal departments, etc., carry out their responsibilities. In each case, many "facts" are alleged in support of serious complaints or other representations. Any Commission with statutory responsibility has a duty to verify such alleged "facts" before making a finding based upon them.

It has been argued that the Cree-Naskapi Commission should simply regurgitate as fact whatever anyone presents to it as evidence. This is not acceptable, especially if findings are to be accurate and credible. Assessing the credibility of witnesses is an appropriate process in the courts. Courts, after all, can compel testimony, order the seizure of evidence, apply very precise rules concerning evidence and punish severely for perjury. The Commission has none of these powers, so it must verify any allegations through its own research, especially before making any negative findings based upon those allegations. For this reason, many of the issues raised at the hearings could not be dealt with in this report. This is clearly unsatisfactory.

The second area in which inadequate resources have compromised the Commission's work relates to community visits. The Commission did not have sufficient resources to visit the communities often enough to hear the views of all the major groups who wish to have input.

The third area in which the Commissioners consider the report to be inadequate is in relation to legal advise. The number of points raised during the hearings related to technical legal questions. The Commission did not have the resources necessary to obtain legal advice on these questions and has not therefore commented on some of them. This is unsatisfactory.

A MEDIATION ROLE FOR THE COMMISSION

In the past, the Cree-Naskapi Commission has been asked to play a mediation role from time to time. Judge Réjean Paul, as Chairman of the Commission, played a very useful and greatly appreciated role in facilitating discussions leading to the resolution of many issues related to the development of the Oujé-Bougoumou community. The Commission also played a helpful role as an official observer at a recent election of a Chief and Council. These are but two examples of the use of the Commission in this role.

During the hearings in the communities, it was often suggested that the Cree-Naskapi Commission should have a mediation role included in its formal legislated mandate. The "Cowie" Inquiry made the same recommendation. In practice, as noted earlier, mediation has been undertaken on an ad hoc basis, and it can continue until the issue is addressed as part of the overall revisions to the Cree-Naskapi (of Quebec) Act. In the meantime, the Commission will assist with mediation and other forms of alternative dispute resolution whenever possible. This will, of course, be conditional upon the costs being covered apart from the Commission's existing budget. The Commission has, and continues to develop, a capacity in the area of alternative dispute resolution.

REPORT FOLLOW-UP ACTIVITIES

The Cree-Naskapi Commission has been criticized on numerous occasions for preparing and submitting its biennial reports and then leaving follow-up to government and others. This approach has never been satisfactory to the communities and is no longer acceptable to the Commissioners. Unlike a number of other statutory Commissions, tribunals and boards, the Cree-Naskapi Commission does not make binding decisions. If it did, it would be appropriate to regard its job as complete once a report is submitted. The Commission's present role is to make recommendations as part of this role it is appropriate, for the Commission to take reasonable steps to ensure that its recommendations are brought to the attention of the parties affected by them as well as the relevant decision-making bodies. Progress has been made in this area. The House of Commons Committee on Aboriginal Affairs has already agreed to place the 1998 report on its agenda. The Commissioners will also request that the Senate Committee on Aboriginal Af fairs consider the report as well, and Senator Charlie Watt has agreed.

Beyond this, it has been suggested that the report be presented at regional and local annual meetings for review, discussion and, where appropriate, implementation. This would be a mechanism to increase the accountability of the Cree-Naskapi Commission to the communities. Regrettably, this cannot be done because the present budget does not allow the Commission to travel to such meetings.

ENDNOTES

1. Report of Inquiry into the Cree-Naskapi Commission, p. 123.

2. Ibid., p. 124.

ECONOMIC DEVELOPMENT

1. Discussions should be held between senior representatives of the Grand Council of the Crees (Eeyou Istchee), local Cree and Naskapi Governments, the Government of Quebec and the Government of Canada in order to develop parameters for the negotiation of a development agreement covering future development of Category II and Category III lands and resources. Such an agreement should include as a minimum the following elements:

   EDUCATION AND TRAINING

   1. completion and regular updating of an education and skills inventory for the Cree and Naskapi communities;

   2. a requirement that proposals for development include an outline of educational and training needs for short-term and long-term staffing of the project;

   3. a commitment by federal and provincial parties as well as the appropriate Cree and Naskapi entities to provide job-specific, project-related training as required;

   4. a commitment in each project proposal, consistent with Canadian human rights guidelines, to provide employment to appropriately trained Cree and Naskapi applicants.

   INFRASTRUCTURE

   1. development of a long-term plan including target dates and financial resources to develop an infrastructure suited to the emerging needs of the territory and its economic growth;

   2. specific plans to train and employ as many Cree and Naskapi community members as possible in both the development and maintenance of this infrastructure.

   PLANNING AND MANAGEMENT OF DEVELOPMENT

   1. review and implementation of (or where appropriate, modification to improve) mechanisms in the Agreements (or through Complementary Agreements) to ensure that the Cree and Naskapi communities are equal partners in the planning and management process for all development in the territory.

   REVENUE SHARING

   1. development of draft legislation to ensure that the revenues generated by development in Category II and Category III lands will in future years generate revenues for purposes of Cree and Naskapi local and/or regional government and other beneficial uses so determined by the Cree and Naskapi communities.

   GENERAL RECOMMENDATIONS

2. The Department of Justice should arrange to provide workshops for senior officials to keep them up to date on the evolution of Aboriginal and treaty rights legislation as well as on the government's fiduciary obligations.

3. Individuals from the levels of director to deputy minister should be appointed only from among those who have demonstrable, substantive knowledge of the issues they will be responsible for managing. In exceptional circumstances, some appointees could be required to successfully complete specific substantive training within their first six months in office.

4. A treaty implementation secretariat totally independent from the Department of Indian Affairs and Northern Development should be created to manage the fulfilment of the Government's obligations under treaties and agreements.

5. A treaty implementation Act should be developed, incorporating much of the new law relating to Aboriginal and treaty rights as well fiduciary law into a single statue that would serve as an authoritative guide for government officials in carrying out their responsibilities under the various agreements and treaties. This new legislation, or a piece of companion legislation, a treaty implementation (financial arrangements) Act for example, should clearly stipulate how the financial aspects of agreements and treaties are to be handled.

6. A superior court of national jurisdiction should be created to handle cases involving treaty and Aboriginal rights. This court would have jurisdiction in those areas as well as in cases arising under the Cree-Naskapi (of Quebec) Act, the Indian Act, the Sechelt Indian Self-Government Act and similar pieces of legislation. In addition, it could be given appellate jurisdiction in cases coming from future First Nations courts. Appeals from such a court of Aboriginal and treaty rights would be heard by the Federal Court of Appeal and then the Supreme Court of Canada.

   The justices of such a court would be nominated by First Nations and appointed by the Governor in Council, and the court could be administered as a division of the Federal Court of Canada. After a ten-year period, the continued need for such a court could be reassessed.

7. A consultation process should be undertaken by the federal, Cree and Naskapi governments to review the Cree-Naskapi (of Quebec) Act in order to achieve the following objectives:

   • remove barriers or impediments in the decision-making process;

   • improve and simplify the process for amending the Act;

   • enable and improve law enforcement;

   • reflect the present reality and situation of local government;

   • incorporate the Oujé-Bougoumou Cree Nation as a Band;

   • improve the effectiveness of the Cree-Naskapi Commission.

8. The Government of Canada and the Cree authorities should, forthwith, review the present funding arrangement such as the 'Operations and Maintenance Funding Transfer Payment Agreement' by taking into account the present situation, changing circumstances and needs of the Cree communities and local governments.

9. The Department of Justice, in concert with the Department of Indian Affairs and Northern Development, should amend the firearms control legislation to provide for the appointment of Aboriginal firearms officers, who would have the same powers and authority as a chief firearms officer, proposed by the federal legislation. The Cree and Naskapi people should be exempt from licensing and registration fees. In addition, the amendments should permit the Cree and Naskapi local governments to dispense a firearms safety course and issue firearms licences and registration certificates.

10. A thorough and meaningful review of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement should be conducted by all parties concerned. It is also necessary to establish a process and mechanism that will bind all parties to respect and honour obligations, responsibilities and commitments under the Agreements.

11. Cree and Naskapi communities should be provided adequate financial resources to provide effective policing services for their communities and their police should have and exercise jurisdiction outside of Category I lands.

12. The tallymen should be given powers to act as conservation agents for the entire territory.

13. The Federal Administrator, the federal members of the Environmental and Social Impact Review Panel and federal officials should not interfere with the jurisdiction, decision-making power and authority of the Local Environment Administrator. Moreover, the Government of Canada should respect and honour its obligations, responsibilities and roles pursuant to Section 22 of the James Bay and Northern Quebec Agreement

14. Cree and Naskapi traditional approaches to justice issues should be recognized, and a thorough and meaningful review of the justice and police sections of the James Bay and Northern Quebec Agreement should be undertaken to facilitate the establishment and implementation of a local justice system for the proper administration of justice.

15. The final transfers of Category I lands and the allocation of Category II lands should only be completed after discussions and agreement with the Grand Council of the Crees (Eeyou Istchee) and the local Cree First Nations regarding the boundaries and related issues. However, the final transfers of Category I land should be done as soon as possible.

16. The two hundred (200)-foot corridor along the shorelines of lakes and rivers in Cree Category I lands should be abolished.

17. A final land selection and categorization along the shorelines of bodies of water within Cree Category I lands should be finalized by the authorities concerned (including the Cree).

18. The status of the Cree claims to offshore islands intervening waters and seabeds in Hudson's Bay and James Bay should be resolved between the Cree and Canada as soon as possible through negotiations.

19. The federal government should speed up the process for the final transfer of Category I A-N lands to the Naskapi, along with the approval of the Band's formal name change.

20. The Department of Indian Affairs and Northern Development should enter into a dialogue with the Washaw Sibi Eeyou regarding their claims, rights and concerns in the territory.

21. The Department of Indian Affairs and Northern Development should begin a dialogue with the Naskapi Nation with a view to resolving the Naskapi claims in Labrador as soon as possible.

22. The Cree local governments and the Grand Council of the Crees (Eeyou Istchee) should initiate a process to clarify the roles and responsibilities of the local and regional entities and institutions in the exercise of Cree self-government.

23. The formal incorporation of the Oujé-Bougoumou Cree into the James Bay and Northern Quebec Agreement should be finalized.

24. The adjustment formula in the present Oujé-Bougoumou O&M funding Agreement should be re-examined to bring it into line with present realities and the actual needs of the community.

25. The federal government should participate in the process of updating Section 15 of the Northeastern Quebec Agreement, and the Naskapi and the Cree should review the possibility of parallel actions with both Agreements.

26. The federal government should become involved, either as a participant or as an observer, in the review of Section 11 of the Northeastern Quebec Agreement.

    COMMUNITY SPECIFIC RECOMMENDATIONS

    CHISASIBI

27. The federal government, in its role as fiduciary to the Chisasibi Cree Nation, particularly as regards Chisasibi's rights under the James Bay and Northern Quebec Agreement, should assist Chisasibi in getting recognition of its rights in relation to Block D.

    EASTMAIN

28. The Department of Indian Affairs and Northern Development, and the Eastmain Chief and Council should begin discussions to deal with the capital cost of the new Band office and the replacement costs of heavy equipment.

29. An environmental clean-up of old unused oil tanks and other debris at the site of the former diesel power plant should be carried out by the Department of Indian Affairs and Northern Development.

30. The Department of Indian Affairs and Northern Development, in consultation with the Eastmain Chief and Council should develop plans for a new waste disposal site.

31. The health needs of Eastmain, especially in relation to respiratory problems and diabetes, should be addressed jointly by Eastmain, Cree Health and Social Services and the Medical Services Branch of the Department of Health as soon as possible.

32. The Department of Indian Affairs and Northern Development should enter into discussions with Eastmain to develop and fund needed youth programs and facilities.

    MISTISSINI

33. The Department of Indian Affairs and Northern Development, the Canada Mortgage and Housing Corporation and Mistissini should begin developing plans to eliminate the housing backlog by a specified target date.

34. The Grand Council of the Crees (Eeyou Istchee) and Cree local Governments and communities should begin discussions on the development of a Cree Constitution.

35. Transport Canada should conclude the environmental assessment of the Nitchiquon site as scheduled and carry out the necessary environmental clean-up.

    WEMINDJI

36. The Department of Indian Affairs and Northern Development should review concerns regarding the community's water rights, and resolve these concerns with the Wemindji Chief and Council.

37. A process should be established to address the urgent needs of the tallymen for control over unauthorized intrusion on their traplines and hunting territories.

    WASWANIPI

38. The special needs of the Elders and youth should be addressed jointly with the Department of Indian Affairs and Northern Development, and an action plan should be developed.

    NEMASKA

39. Nemaska and the Department of Indian Affairs and Northern Development should enter into discussions to resolve Nemaska's outstanding claim for $3.85 million to cover the cost of the access road, including capital and maintenance.

40. Old Poste should be designated as a historic site, since it has rock paintings and numerous other features of historic interest.

41. Quebec should waive stumpage fees for timber used in developing the Old Poste site.

This report of the Cree-Naskapi Commission deals with a large number of issues. For reasons discussed in other chapter of the present report, it has not been possible for the Commission to properly research and analyze many of the issues raised by the communities. In certain cases, no comments have been made. In others, it would have been desirable to consider the issue in more detail. Finally, the Commission cannot address certain questions without first obtaining and reviewing legal opinions.

he Cree-Naskapi Commission considers all the issues and concerns brought to its attention as being serious and deserving full consideration. With this in mind, it intends to prepare a supplementary report, as soon as funding permits, to address matters that could not be addressed in this report, or were addressed only partially.

Due to financial and time constraints, the Commission was unable to hold hearings specifically dealing with the concerns of the Elders, the youth, trappers, and other Cree and Naskapi interested parties. The Cree-Naskapi Commission recognizes the vital role and specific concerns of each of these important groups. It is committed to meeting with each group as soon as possible and to addressing their issues and concerns in its supplementary report.