COVER

Mr. Jimmy Sam - Chisasibi, Que

WRITERS

Chairman Richard Saunders

Commissioner Philip Awashish

LAYOUT AND DESIGN

The Gordon Creative Group

PRINTING

Gilmore Printing

TRANSLATION

Mr. George Guanish (Naskapi)

Mrs. Mary Mokoush (Naskapi)

C.I.L.F.O. Translation (French)

Mrs. Anna Blacksmith (Cree)

PHOTOGRAPHY

Mr. Jimmy Sam

Mr. John Mameamskum

Mr. Philip Awashish

Edward Saunders Photography

The Nation

Chief George Wapachee

FOR MORE INFORMATION CONTACT:

Cree-Naskapi Commission

222 Queen Street, Suite 305

Ottawa, Ontario K1P 5V9

Tel: 613-234-4288

Fax: 613-234-8102

Toll Free:1-888-236-6603

Web Site: (Http//www.atreide.net/cnc)

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

All three of the Commissioners direct the preparation of the biennial reports, all three also discuss, review and approve in detail every part of the reports regardless of who has written the draft text. Because the positions of Commissioners (including Chairman) are part time and the preparation of the reports is a major task various approaches to research and drafting have been tried since the first report in 1986.

In the early years of the Commission’s existence, regular and temporary staff conducted the necessary research and prepared the initial drafts under the direction of the Commissioners. Lawyers and editors then carried out further revisions. The Commissioners would review the substance and tone of the reports before giving final approval.

Beginning with the 1998 Report a different approach has been adopted. The responsibility of the Commissioners for the entire content of the reports combined with severely limited financial resources have made it a practical necessity that the Commissioners research and write the drafts personally without the benefit of input from lawyers or editors.

In the case of the present report, Commissioner Philip Awashish researched and drafted 75% to 80% of the text. Chairman Saunders prepared the remaining 20% to 25%. All three Commissioners discussed, reviewed and approved in detail every part of the text.

All resolutions, letters and documents referred to in this report are available from the office of the Cree-Naskapi Commission. These materials may also be seen on the Commission web-site.

Acknowledgement

The Commissioners acknowledge with thanks the work of the staff who have been unfailingly professional in their efforts. Brian Shawana, Micheline Ayotte, Gloria Dedam and Charlotte Kitchen have all made outstanding contributions the preparation of this report, without which the task would have been impossible. The Commissioners would also like to recognize the excellent work of Nicole Cheechoo who left the Commission in the past year for studies at Carleton University.

The Commission also acknowledges with thanks the Cree, and Naskapi and federal representatives at the Special Implementation Hearings.

When Tennyson wrote those words in 1842, he expressed the hope and faith which underlies the best instincts of men and women in all times and all places - the belief that we must never stop trying to make our world a better place.

The hopes and dreams (and not merely the practicalities and exigencies) which moved the Crees and Naskapis a quarter of a century ago as they negotiated and signed the first modern-day treaties must never be lost in the morass of political and fiscal expediency or the cynicism of ever declining expectations about what is achievable in Canada.

The ideal of vibrant and vigorous Cree and Naskapi nations flourishing within a strong and progressive Canada cannot be allowed to sink into a swamp of contention and litigation brought on by the failures of treaty implementation.

The year 2000 offers the opportunity both for reflection and for resolve. Given the demands faced by the Cree and Naskapi governments as well as by the Government of Canada, there is all too frequently little time for reflection. The Cree-Naskapi (of Quebec) Act has now been in force for some 16 years. The Act was required under the terms of the James Bay and Northern Quebec Agreement as well as under the Northeastern Quebec Agreement. It provides generally for many aspects of Cree and Naskapi local government, for the land regime contemplated in the Agreements as well as for certain individual and collective rights.

It is not an exaggeration to say that the Act was a bold and innovative step for both the Cree and Naskapi and for the federal government. It represented and honest attempt, not without risk, to bring into operation some of the most creative and definitive plans devised so far to move away from the old internal colonialism represented by the Indian Act. Despite some hard bargaining and difficult compromises, the Agreements and the Act held out the promise of a new day in reconciling the rights and interests of theAboriginal peoples of Northern Quebec with the sovereignty of the Crown and the interests of all Canadians. At the time, and since, critics have argued that Cree and Naskapi conceded too much. Others have argued that the Cree and Naskapi got too rich a deal. Perhaps those criticisms as much as anything else suggest that, as originally agreed upon, the Agreements and the Act represented not a win-lose scenario but a realistic, balanced compromise.

Problems of Implementation of the Agreements

Today the Agreements and the Act are seen in very different terms by the parties. Many senior officials of the government of Canada express the view that the Crees are receiving far too much. "The hugely funded Crees" was the description of one senior official. The Crees for their part feel that Canada is deliberately failing to implement its obligations under the James Bay and Northern Quebec Agreement (JBNQA). Dr. Ted Moses, Grand Chief of the Crees (Eeyou Istchee) in a letter dated March 6, 2000 states:

"Canada’s unwillingness to acknowledge that the JBNQA contains Cree treaty rights is shocking to us. Canada has publicly referred to the JBNQA as Canada’s "first modern treaty", yet both before the courts, and at the negotiating table, Canada reserves its position on the recognition of our rights in the JBNQA as treaty rights…. The direct result of this policy of non-recognition of our treaty rights, is the failure to implement the JBNQA and the failure to recognise other federal obligations to the Crees."²

The Grand Council of the Crees (Eeyou Istchee) as well as each of the Cree local governments and many individuals have brought to the attention of the Commission specific examples of what they believe are breaches of its obligations under the Agreements by the federal government. The federal government has over the years argued that the consideration of matters arising out of the Agreements is beyond the mandate of the Commission.

The Commissioners have addressed this issue on a number of occasions and it is our position that where someone alleges that a Band fails or is unable to properly exercise a power or fails to perform a duty under the Act, the Commission has a duty to investigate whether this is so, and if it is so, then why it is so. Bands derive many of their powers and responsibilities from the Agreements by virtue of the plain words of the Cree-Naskapi (of Quebec) Act. The relevant provisions read as follows:

21. Objects of bands - The objects of a band are

(j) to exercise the powers and carry out the duties conferred or imposed on the band or its predecessor Indian Act band by any Act of Parliament or regulations made thereunder, and by the Agreements.³ (emphasis added)

The objects and powers (including in particular the duties contemplated in subsection (j) ) are comprehensive and costly. The capacity to carry out these responsibilities is dependent for the most part upon the willingness of the federal and provincial governments to fully carry out their obligations under the terms of the Agreements as well as under programs ordinarily provided to First Nations.

Almost from the signing of the James Bay and Northern Quebec Agreement until the present time there have been disputes between the federal government and the Crees concerning questions of the extent and fulfilment of government’s obligations under the Agreement.

Although the Department of Indian Affairs has regularly objected to the Commission’s practice of hearing community concerns based upon issues arising out of the Agreements, that objection has become less strident in the past year. In fact the Director of the James Bay Implementation Office acknowledged during his appearance at the Special Implementation Hearings in February 2000 that the Commission really did have to listen to the actual concerns raised by the communities.

Keeping alive and indeed fulfilling the legitimate hopes and aspirations of the Cree and Naskapi as reflected in the Agreements by approaching the implementation of those Agreements in a positive and good faith manner is part of the Crown’s fiduciary duty. Attempts to "read down" Cree or Naskapi benefits under the Agreements, to secure "signing off" of on-going provisions with one time buyouts and other forms of treaty obligation avoidance are contrary to the letter, spirit and intent of the Agreements, of the James Bay and Northern Quebec Native Claims Settlement Act and to the Government’s own policy as expressed by Minister Nault.

Policy Accountability

At another level, attempts to minimize and circumvent the Agreements demonstrate the problem, which the Commissioners characterized in the 1998 Report as "ministerial impotence".

Minister Nault on behalf of Cabinet has asserted repeatedly that he is committed to finding ways to ensure that the treaties including the Agreements are carried out in letter and in spirit. His predecessor, Minister Stewart had been equally determined to build a new relationship and to turn away from what she called " the mistakes of the past".

The credibility of Minister Nault and his Cabinet colleagues will be determined to a large degree by the extent to which his officials accept his policy direction and carry it out.

Much had been made, in the media and elsewhere, about the need for improved financial accountability particularly in recent months in relation to the Department of Human Resources Development Canada. In spite of serious questions such as this one, the federal government’s overall internal financial controls are formidable. The Financial Administration Act together with regulations, directives etc., does provide a solid framework for the accountability of the public service in managing public funds according to conditions established by Parliament and Treasury Board. Failures and shortcomings in this area are identified by the Auditor General or through the processes of the House of Commons.

The time has come for a similar level of accountability in the area of policy. Just as there are legal requirements for financial accountability so also must there be legal requirements for policy accountability. Canadians elect governments for a variety of reasons and while they may not agree with every decision that their elected representatives make, they do expect that it will be the elected officials whose policy direction will prevail. Many senior officials simply do not accept the direction being taken by Minister Nault. The result is that his policy positions may be seen at best as irrelevant and at worst as insincere. This problem is hardly new or unique to this department. It occurs all too frequently in government and in part accounts for the overall cynicism of a large part of the public towards politicians. The government would do well to consider the need for a Policy Management Accountability Act.

Implementation of Treaties and Agreements: Some Final Thoughts

The Need

There is a need for a just, timely and durable process to implement the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement as well as other existing and future treaties and land claims agreements.

The concept of "just" needs to include a fair and reasonable exercise of the fiduciary duty of government in a manner that is fully consistent with the honour of the Crown in consultation with the Aboriginal parties.

"Timely" involves the idea of resolving implementation issues relating to the Agreements and other treaties and agreements as soon as possible, and in the case of new agreements, upon ratification.

"Durable" suggests that the process must be consistent with applicable principles of law, economically possible and politically sustainable. Governments must take an active responsibility to obtain as broad a measure of political support as possible for the process.

Specific Measures Required

There are many approaches possible, however the approach finally taken must recognize the existing unhappy state of affairs, determine why that exists and introduce processes and structures likely to result in positive change.

The governance function, for the most part, involves making policy choices, establishing expenditure priorities and generally exercising discretion in an atmosphere of primarily political rather than legal accountability.

The implementation of agreements and treaties involves far less exercise of discretion. Treaties create what the Supreme Court has called "enforceable obligations". The overall mind set of institutions whose main task is the management of choice and setting of priorities is not ideal for those whose task is mainly the discharge of "enforceable obligations".⁴ For this reason the Cree-Naskapi Commission in its 1998 Report recommended the creation of a Treaty Implementation Secretariat with a Treaty Implementation Act to guide its work, and a Court of Aboriginal and Treaty Rights to expedite legal resolution of major disputes.

These proposals have been reviewed by the Senate Committee on Aboriginal Peoples which is now considering the possibility of legislative follow-up. Also the proposals have been discussed at various Assembly of First Nations conferences and were endorsed in principle by the Cree and Naskapi Nation as well as the Chiefs at the AFN Confederacy Meeting on December 9, 1999.

The time has come for government to begin a constructive dialogue aimed at developing specific, detailed treaty implementation legislation with "teeth". The time is long past for simple statements of good intentions.

Both our history and our law underscore the desirability of maintaining an on-going dialogue with the Cree, the Naskapi and indeed all of Canada’s Aboriginal peoples. But dialogue alone is not enough. The dialogue must lead to solid legislative development. The Cree and Naskapi and all of the Aboriginal peoples are the founders of our past, they must be part of the development of a national vision of our future. The extent to which we, as a nation, honour our treaties and agreements with them will be a measure of the integrity of our future together as Canadians.

Endnotes

1. Tennyson, A, "Ulyises" from The New Oxford Book of English Verse, Oxford Press, Oxford, 1972. P. 646
2. Letter from Grand Chief, Dr. Ted Moses to the Chairman of the Commission, dated March 6, 2000
3. Cree-Naskapi (of Quebec) Act Section 21 (j)
4. [1996] 2 C.N.L.R. 77 (S.C.C.)

While all states guarantee to their citizens certain civil, political and social rights, it is international law, which guarantees to all peoples certain universal human rights. Indigenous peoples’ rights have been treated as a category of general international human rights law.

Article I of both the UN Covenant on Economic, Social and Cultural Rights and the UN Covenant on Civil and Political Rights provides as follows:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Canada is a signatory to these Covenants and therefore must respect these Covenants that came into force on August 19, 1976.

The right of self-determination provided for in these Covenants is a basic and continuing or permanent right which is also a fundamental principle.

The Cree and Naskapi First Nations consider themselves as ‘peoples’ with a right of self-determination. The Cree and Naskapi First Nations each constitute a people due to the facts that they have a permanent population (about 14,000 people), a defined territory (in which they have a historical and permanent relationship and are the descendants of the original inhabitants of such lands), a system of government (inherent in the Cree and Naskapi First Nations), and the ability to enter into relations with states (nation-to-nation and government-to-government relations through the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement as treaties).¹

(International law does not appear to provide a general acceptable definition of ‘people’. However, the Cree and Naskapi First Nations do not make a distinction between the concepts of ‘people’ and ‘nation’ under traditional law which is that vast body of Eeyou law that exists in and is inherent in the Cree and Naskapi First Nations).

For the Cree and Naskapi peoples, self-determination is taken to mean authentic self-government, that is, the exercise of the right for a people to "freely determine their political status and freely pursue their economic, social and cultural development." By virtue of this right, the Cree and Naskapi peoples may freely determine their relationships with Canada and Quebec, in a spirit of peaceful co-existence and freely pursue their political development in conditions of freedom and dignity.

The Cree and Naskapi peoples consider themselves as always having been self-governing peoples. The Cree and Naskapi First Nations, like other Aboriginal First Nations, were, before contact with the European peoples, fully independent and as the Supreme Court of Canada described "organized in societies and occupying the land as their forefathers had done for centuries."²

In the last quarter of the past millennium, the Cree and Naskapi peoples and nations have experienced, for better or for worse, many significant changes in their lives, culture and societies.

However, there is no more basic principle in aboriginal history and relations than a people’s right to govern themselves and their land in accordance with their will and aspirations.

In its Report of 1996, the Royal Commission on Aboriginal
Peoples states:

The self-governing status of Aboriginal peoples was reflected, for example, in the practices surrounding treaty making and in such notable British documents as the Royal Proclamation of 1763... Although this status was greatly diminished by the encroachments of outside governments during the nineteenth and twentieth centuries, it managed to survive in an attenuated form. We have come to the conclusion that the inherent right of self-government is one of the "existing Aboriginal and Treaty rights" recognized and affirmed by section 35 of the Constitution Act, 1982. Additional support for this conclusion is provided by emerging international principles supporting the right of self-determination and the cultural and political autonomy of indigenous peoples.³

Furthermore, the Government of Canada in August, 1995, released its policy on the inherent right of Aboriginal self-government - Aboriginal Self-Government - in which it states:

The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982.⁴

On November 11, 1975, the Grand Council of the Crees (of Quebec) on behalf of the Eeyou ( Cree ) Nation, signed the James Bay and Northern Quebec Agreement to which the Governments of Canada and Quebec are parties and signatories. (The current year marks the 25^th anniversary of the signing of the James Bay and Northern Quebec Agreement.)

On January 31, 1978, the Naskapis de Schefferville Band, on behalf of the Naskapi Nation, signed the Northeastern Quebec Agreement to which the Governments of Canada and Quebec are also parties and signatories.

A historical milestone in aboriginal history and relations was achieved when, in 1982, the Constitution of Canada - the supreme law of the land - was amended, amongst other reasons, to recognize and affirm existing aboriginal and treaty rights.

Section 35 of the Constitution Act,1982, provides for the affirmation and recognition of existing aboriginal and treaty rights, which includes rights that exist by way of land claims agreements.

The Cree and Naskapi First Nations consider their Agreements as modern day treaties or land claims agreements for the purpose of section 35 of the Constitution Act, 1982.

Furthermore, the Eeyou peoples (Cree and Naskapi) possess Aboriginal rights due to their historical and continuing relationship with their traditional territories and status as self-governing peoples.

Consequently, as far as the Cree and Naskapi First Nations are concerned, the Constitution Act, 1982, recognizes and affirms their "existing aboriginal and treaty rights."⁵ Their treaty rights, according to the Eeyouch, include the rights contemplated by the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

The history, purpose and status of these Agreements as Treaties enhance the status of the Cree and Naskapi Eeyouch as peoples and nations. These Agreements or Treaties provide the foundation for new relationships between the Cree and Naskapi First Nations and the Governments of Canada and Quebec.

These Agreements or Treaties provide for a partial expression of the right of self-government of the Cree and Naskapi peoples.

Section 9 (Local Government over Category 1A Lands) of the James Bay and Northern Quebec Agreement provides that "there shall be recommended to Parliament special legislation concerning local government for the James Bay Crees on Category IA lands allocated to them".⁶

Section 7 (Local Government over Category IA-N Lands) of the Northeastern Quebec Agreement provides for similar undertakings respecting local government for the Naskapis of Quebec on Category IA-N lands allocated to them.⁷

Consequently, pursuant to section 9 of the James Bay and Northern Quebec Agreement and section 7 of the Northeastern Quebec Agreement, the Cree and Naskapi First Nations and the Government of Canada discussed the terms and provisions of the Cree-Naskapi (of Quebec) Act. This special legislation was enacted by Parliament and assented to on June 14, 1984.

Thus, the Cree-Naskapi (of Quebec) Act, provides "for an orderly and efficient system of Cree and Naskapi local government, for the administration, management and control of Category IA and Category IA-N Land by the Cree and Naskapi bands respectfully and for the protection of certain individual and collective rights under the said Agreements."⁸

The Agreements and the Act, however, are not exhaustive of the Cree and Naskapi right of self-government and powers of Cree and Naskapi local government. Furthermore, the Cree-Naskapi (of Quebec) Act, in its preamble, makes it clear that the Act "is not intended to preclude the James Bay Crees and the Naskapis of Quebec from benefitting from future legislative or other measures respecting Indian government in Canada that are not incompatible with the said Agreements."⁹

Therefore, it appears that these Agreements or Treaties and the subsequent special federal legislation - the Cree-Naskapi (of Quebec) Act - give partial expression of the right of Eeyou self-government.

Because the Cree-Naskapi (of Quebec) Act is federal legislation which appears to establish or ‘create’ local government, this partial expression of local self-government is a form of delegated authority from a level of government (federal) to another level (local government established by the Act). This derivative nature of the source of self-government is inconsistent with the inherent nature of the right of Eeyou self-government. The challenge of the Cree and Naskapi nations and peoples is to ensure compatibility of their treaties and any enabling legislation with the inherent nature of their right of self-government as well as ensuring the establishment of good and effective government.

The source, nature, scope and implementation of the inherent right of Eeyou self-government raises many interesting questions which can be best answered and dealt with by the Cree and Naskapi First Nations who must decide upon the paths of their present journey towards fully governing themselves and their lands in accordance with their aspirations and will.

However, questions remain as to whether the policy of delegated powers, authority and jurisdiction for Cree and Naskapi local government as contemplated in the Agreements and subsequently provided for by and in accordance with the terms and provisions of the Cree-Naskapi (of Quebec) Act is working or not for the benefit and advancement of Cree and Naskapi local self-government.

In this regard, a review of the implementation of the Cree-Naskapi (of Quebec) Act, the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement may provide some answers and direction. .

Furthermore, a relationship among peoples and nations is not a static thing. It changes and develops over time in response to new conditions. If constant efforts are not made to maintain and update it, it can easily deteriorate and fall apart.

The Cree and Naskapi nations and peoples view their Treaties - the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement - respectively, as the pre-eminent means of creating and acknowledging relationships. The proper implementation of the letter, intent and spirit of these Agreements or Treaties is an important and essential mechanism for establishing and adjusting relationships over time to meet new needs and conditions.

Therefore, the past and present relationship between the Cree and Naskapi First Nations and the Government of Canada must also be reviewed to determine if constant efforts are being made to maintain and update it for the benefit and advancement of Cree and Naskapi local government.

The Cree-Naskapi Commission established by Section 165 of the Cree-Naskapi (of Quebec) Act has a duty to "prepare biennial reports on the implementation of this Act"¹⁰ to the Minister of Indian Affairs and Northern Development who "shall cause the report to be laid before each House of Parliament".¹¹

However, the James Bay and Northern Quebec Agreement, the Northeastern Quebec Agreement and the Cree-Naskapi (of Quebec) Act are inseparable, to a large extent, and must be considered as a whole in order to capture the intent and spirit of the exercise and practice of Eeyou self-government. In this regard, the Cree- Naskapi Commission must consider the implementation of these Agreements or Treaties.

The present report of the Cree-Naskapi Commission constitutes the seventh biennial report to the Minister.

In the preparation of the present report, the Commission has conducted the following:

1. Special Implementation Hearings to permit representation from the Cree and Naskapi authorities and the Government of Canada;

2. A review of its findings and recommendations from its past reports; and

3. A follow-up with a course of action with respect to its findings and recommendations of the 1998 Report.

Therefore, the present report is a special one on the general state of Cree and Naskapi local government. In particular, the intent of the present report is to provide information that should promote a better understanding of the issues and concerns that need to be addressed by parties and authorities concerned with the advancement of Eeyou self-government. The present report was also prepared in a manner that is intended to enlighten the public on the general history of Eeyou local government. In this regard, the findings and recommendations of the present report must be acted upon by the governments and authorities - the federal as well the Cree and Naskapi governments and authorities - in order to maintain and strengthen partnerships amongst nations and governments and to promote and achieve the enhancement and advancement of local Cree and Naskapi government.

The Cree and Naskapi peoples, in their language, call themselves ‘Eeyouch’ (or ‘Eenouch’ in the case of the inland Cree people) which means ‘human beings or people.’ ‘Eeyouch/Eenouch’ is the term used by Eeyou for millennia and the terms ‘Cree’ and ‘Naskapi’ or their variants have been used by non-Eeyou peoples over the past centuries.

As the ‘Eeyouch’ consider themselves as self-governing peoples and sovereign in their ways, the ‘Cree’ and ‘Naskapi’ peoples have added the principle of nationhood to their names. The Cree and Naskapi Nations have, after all, concluded their respective treaties - the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement - with the state. In addition, the Eeyouch consider themselves as ‘nations within’ the state.

Furthermore, in order to establish their place in the history of this continent and country, as the first permanent and present inhabitants of their historical and traditional territories, some of the Cree Nations refer to themselves as ‘First Nations.’ The ‘First Nations’ also consider themselves ‘first’ in their unique, continuous and central relationship with their lands ( called ‘Istchee’ or the ‘earth’ by Eeyouch ) and as a Nation and people exercise stewardship and guardianship over ‘Eeyou Istchee’ - the historical and traditional territories and homelands of Eeyouch.

The present background on history does not purport to be a complete and comprehensive narrative of the events and situation of the Eeyouch (Cree and Naskapi) of Quebec; it describes some of the major events and circumstances which have had a major influence and a direct bearing on the exercise of the Eeyou right of self-determination and consequently on the exercise and practice of self-government particularly within the local Eeyou communities.

The Eeyouch consider themselves as self-governing peoples who were before contact with the European peoples, fully independent and "organized in societies and occupying the land as their forefathers had done for centuries." ¹

Thus and based on their history, it is clear that the Eeyouch were the first inhabitants of what is presently a portion of Canada known, generally, as Northern Quebec.

The history of Cree and Naskapi (Eeyou) relations with colonial and later the state powers is a legacy of dispossession of Eeyou lands and resources and the subsequent denial of rights and exclusion of Eeyou peoples in the political and economic development of Canada and Quebec. Consequently, the past and present relations between the Eeyouch and the state powers - Canada and Quebec - focus on conflicts over lands, resources and power.

The colonization of their historical and traditional lands has affected the Eeyouch in a number of ways which has led to the dispossession of their lands and rights. The methods, philosophy and legal doctrines used to dispossess them are too varied, detailed and extensive to examine for the purpose of the present report. It is safe to conclude that the attitudes, doctrines and policies developed to justify the taking of lands and resources with the consequent denial of rights of the Eeyouch were and continue to be largely driven by the political and economic agenda of the state.

As it happened in other regions of Canada, so it happened in the traditional and historical territories of the Eeyouch: non-Eeyou sovereignty and jurisdiction were asserted, generally, through the fur trade, followed by missionaries and later the state.

However, the present report primarily and generally examines Eeyou and federal relations particularly in respect to the exercise and practice of Eeyou (Cree/Naskapi) local government.

Section 91 (24) of the Constitution Act 1867, confers upon the federal government the power to make laws in relation to "Indians, and lands reserved for the Indians." ² This responsibility was assumed by the federal government without consultations with and consent of the "Indians."

The Royal Proclamation of 1763, had established that treaty-making with the Indians was the sole responsibility of the (imperial) Crown in right of the United Kingdom. After confederation, the federal government was the natural successor to that responsibility as well as for all matters relating to "Indians, and lands reserved for the Indians."

In the late 1800’s pursuant to its constitutional authority for Indians and Indian lands, Parliament passed the Indian Act, which was based on Indian policies developed in the nineteenth century. These policies were conceived under assumptions about the inferiority and incapacity of "Indians" and an assimilationist approach to the "Indian problem."

The mentality, which perpetuates such policies, believes that their choices are right and others wrong their beliefs true and others false. Such a relativism which pervaded Canadian society questions the nature of truth and makes one guilty for being ‘Eeyou’ and for believing in their culture, values and society. Such a mentality and relativism constituted a threat to the society, values and culture of Eeyouch as policies were created and implemented in an attempt to eradicate or substantially modify Eeyou society and culture.

The Indian Act was an oppressive piece of legislation with significant disparities in legal rights with penalties and prohibitions for Indians. If applied to others, these legal rights would have been declared illegal and unconstitutional. Indian women, for example, were greatly disadvantaged by the unfair and discriminatory provisions of the Indian Act. This is particularly so with regard to discriminatory provisions on land surrender, wills, band elections, Indian status, band membership, and enfranchisement.

Furthermore, as a matter of policy, the manner of extending voting rights to ‘Indians’ clearly constituted a significant disparity in legal rights. In 1885, the right to vote in federal elections was extended to Indians in eastern Canada; eligibility included male Indians who met the qualification of occupying real property (i.e. a lot on reserve land) worth at least $50. However, the legislation granting the vote to eastern Indians was repealed in 1898, thereby making all Indians ineligible to vote in federal elections. Then provincial laws determined voter eligibility requirements for federal elections as well as for provincial elections. Such provincial laws generally involved property ownership requirements that reserve-based Indians could not meet unless they enfranchised. In 1960, the federal vote was finally extended without qualification to all Indians. And in 1969, the provincial vote in Quebec was extended to Indians.

In effect, the Government of Canada, in implementing the Indian Act and its subsequent policies, treated ‘Indians’ as children or wards of the state.

Over the years, the Indian Act and its amendments intruded massively on the lives and cultures of aboriginal First Nations including the Cree and Naskapi First Nations.

Until the execution of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement and the subsequent enactment of the Cree-Naskapi (of Quebec) Act by Parliament, the Indian Act was the single most prominent piece of legislation respecting Eeyou local government, control and administration of local Cree/Naskapi lands.

The Indian Act, as amended, broke up Indian Nations including the Cree and Naskapi Eeyouch into ‘bands’ and imposed an elective form of government with very limited powers and vested in the Minister of Indian Affairs veto powers over decisions of local governments. The traditional forms of government based on traditional law and customs were ignored and replaced by the federal authorities pursuant to the Indian Act. The elective system was meant to hasten assimilation by eliminating traditional systems of governance.

Under the Indian Act, Indian people including the Cree and Naskapi peoples, could not manage their own reserve lands or money and were under the supervision of federally appointed Indian Agents whose job it was to ensure that federal policies were carried out in the various reserves or communities across Canada.

The Indian Act and its subsequent amendments gave the superintendent general of Indian Affairs power to control the band council, elections and erode traditional systems of governance.

Under the 1951 Revisions to the Indian Act, the authority of the Minister of Indian Affairs and the Governor in Council remained formidable, with administration of more than half the Act being at their discretion. The elective system of local government was maintained with the supervisory role albeit with veto powers given to the Minister of Indian Affairs.

The legal system of limited and supervised law-making powers of bands under the Indian Act was an impediment for the proper exercise of local autonomy and local government.

Many measures were passed to increase federal control and reduce the political and cultural autonomy of ‘Indians’ under the Indian Act.

The Act regulated almost every important aspect of the daily lives of ‘Indians’ - from acquisition of ‘Indian’ status to disposition of the property of an ‘Indian’ at death.

Many attempts have been made through the years to free Indian people from the legal regime of the Indian Act. Some amendments have been made to narrow the disparity of legal rights due to certain decisions of the courts.

While some consultation with the Indian peoples had been attempted by the federal government, the proposals for reform to the Indian Act from Indian peoples were almost never taken seriously by the federal government.

However, in respect to local government of ‘bands’ and administration of their lands, the provisions of the Indian Act basically maintained and retained the same legal regime established in the 1800’s.

The Indian Affairs Branch of the federal government later evolved into the present day Department of Indian and Northern Affairs which asserts control over ‘Indians’ and their governmental and administrative affairs and relationships.

Control over Indian political structures, land administration and management, economic and social development gave the federal government everything it appeared to need to complete the unfinished policies inherited from its colonial predecessors.

The Eeyouch (Cree and Naskapi peoples) clearly remember the era of the Indian Act, which for them began, with the arrival of the Indian Agent to their communities and territories.

In the early 1900’s, the Cree of Eeyou Istchee (historical and traditional homeland of the Eeyou) were registered by Indian Agents as ‘Indians’ within the meaning of the Indian Act.

From the confederation of Canada in 1867 to 1898, the portion of Eeyou Istchee located south of the Eastmain River was, initially, part of Rupert’s Land and then the North West Territories until it was transferred to the Province of Quebec in 1898 by the Government of Canada without consultation with and consent by Eeyou who inhabited the territory for millennia. In 1912, the portions of Eeyou Istchee and Naskapi lands, as well as Inuit lands, located north of the Eastmain River were transferred to the Province of Quebec by the Government of Canada under similar circumstances. ( By virtue of the Quebec Boundaries Extension Act,1912, this vast territory was transferred to the Province of Quebec by the federal government. In acquiring this territory, Quebec assumed an obligation, under the Act, to settle land and other claims of the Native peoples of the territory.)

In the 1930’s, most of the Cree within their communities were listed as ‘bands’ dispersed throughout Eeyou Istchee.

With respect to the Naskapi, their first regular contacts with the federal government began in 1949 when the Indian Agent visited them in Fort Chimo.³

The Indian Agent dispensed some form of relief by ‘rations’ initially and later by vouchers for food and/or clothing. Stories abound about boots and canned goods such as tomatoes being given to the Cree by the Indian Agent.

The Indian Agent such as Herve Lariviere, as a representative of the superintendent general of Indian Affairs, exercised a vast array of powers in almost all areas of the daily lives of the Cree and Naskapi peoples. The Indian Agent, known by most of the Cree communities as Chisa-Chemaou Kouhpahnehou ( ‘great boss’s agent’) or Weech-heewehou Oujemaaou ( ‘helping boss’), exercised control of local administrative, financial and judicial matters. The Indian Agent often arrived at the Cree villages with the police - the Royal Canadian Mounted Police - to enforce law and order. It is easy to understand how the Indian Agent come to be regarded as all powerful and as a person of enormous influence in daily and village life of the Cree and Naskapi peoples.

The federal Indian Agent was the first government official to conduct direct relations on a significant and regular basis, with the Cree and Naskapi peoples. Clearly, the Indian Agent was the first and most influential agent in Cree/Naskapi and federal relations.

(With exception to the application and enforcement of provincial fish and game laws and regulations, the Government of Quebec, in Eeyou Istchee was considered ‘absent’ until the late 1960’s by the Cree (Eeyou) of Eeyou Istchee. In fact, the Government of Quebec considered ‘Indians’ the exclusive responsibility of the Government of Canada. Furthermore, Eeyou Istchee was considered as crown or public lands by Quebec and Canada and therefore constituted as part of the territory of Quebec.)

Although Indian Agents began to be phased out in the 1960’s, band councils of the Cree and Naskapi peoples still operated under the restrictive and limiting framework of the Indian Act first developed in the late 1800’s.

In the 1960’s, the isolated and fragmented Cree villages were occupied by one or more recognised ‘bands’ and administered by a regional office of the Department of Indian Affairs.

Villages of Eeyou were named and linked to trading posts of the Hudson’s Bay Company. Subsequent administrative ‘bands’ of Cree ‘Indians’ retained the name. In fact, the Cree people had named their villages with reference to its historical, geographical and other attributes.

In the 1960’s, the Hudson’s Bay Company closed their stores in the posts of Waswanipi and Nemaska. Amid reports of flooding of their traditional territories and villages by future hydroelectric development, the Cree of Waswanipi and Nemaska had no choice but to leave their villages. The Nemaska Eenouch relocated to the villages of Mistassini and Rupert’s House (Waskaganish). The Waswanipi Eenouch were dispersed in several encampments and in some non-Eeyou towns such as Chapais, Miquelon, and Mattagami. The Eenouch of Waswanipi and Nemaska consider their relocation as a move that was not instigated by them - a relocation in which they had no choice because of their social and economic situation.

The Ouje-Bougoumou Eenouch were dispersed and relocated on several occasions to various sites and encampments throughout their historical and traditional territories. The Ouje-Bougoumou Eenouch were registered as members of the Mistassini Band by the Department of Indian Affairs for administrative and economic reasons.

Furthermore, the Eenouch of Neoskweskow and Nitchequon which were trading posts of the Hudson’s Bay Company were also registered as members of the Mistassini Band by the Department of Indian Affairs for economic and administrative reasons. It is doubtful that the Eenouch of these posts were consulted and given a choice in their relocation to the village of Mistassini.

In 1956, the Naskapi Eeyouch arrived at Schefferville, Quebec, after several relocations from the communities of Fort Chimo, Fort Nascapie and Fort McKenzie covering a period of over a century. The Naskapi settled in a site adjacent to John Lake without the benefit of basic and essential infrastructures and services for a village.⁴

In 1969, Indian Affairs acquired a site north of the town centre of Schefferville for the Naskapi Eeyouch. By 1972, some new houses had been constructed for them. (This new site became known as the Matimekosh Reserve which was shared by the Montagnais and Naskapi Bands.)⁵

In 1971, the Naskapi Eeyouch became a ‘band’ as the ‘Naskapis de Schefferville Band’ under the Indian Act.⁶

The Indian Act with its imposition of an elective system determined the formal structure for limited local government by Chief and Council of each Cree and Naskapi community or ‘band’. This formal structure was stressed by the Department of Indian Affairs in its relations with the Cree and Naskapi ‘Bands’.

The Ouje-Bougoumou Eenouch asserted and exercised the right of self-government in accordance with traditional law and customs as the federal government did not consider them as a distinct ‘Band’ under the Indian Act. (The local government of other Cree and Naskapi villages also operated within the parameters of traditional law and customs, notwithstanding the legal regime of the Indian Act.)

As a typical example ( in the Cree villages of the early 1970’s) for local ‘Band’ government and administration, the Chief received a salary, usually as a half-time employee and was assisted by a full-time band manager and secretary who ran the office of each Band - in a one or two room small structure in most villages.

Often officials from Indian Affairs made important decisions which were rubber-stamped by the Chief and Council.

Effective political action by Eeyouch and Eeyou leadership was rare within the narrow limits of decision-making provided by the bureaucracy of the Department of Indian Affairs. The Department of Indian Affairs tended to regard the official structures of band government and band administration as a means of promoting and implementing federal policies such as the Indian Act did not grant any real authority to these local structures.

The Indian Act and the Department of Indian Affairs eventually came to be seen as instruments or agents of intrusion into Eeyou society.

The Cree and Naskapi peoples like other ‘Indian Bands’ were at the bottom of the bureaucratic hierarchy. Within the Department of Indian Affairs, Ottawa was the centre of Indian policy-making offices for all of the various programs and services administered by the Department. In these offices, with little or no consultation with the ‘Indian Bands’ such as the Cree and Naskapi ‘Bands’, government employees determined local budgets and costed administrative arrangements, made designs for houses for Indian communities, designed water and sewage systems, planned curricula for Indian schools, planned and suggested economic development schemes, conducted legal research and generally did whatever they considered was in the best interests of the ‘Indian Band’ if not in the best interests of the Department.

Each province had a regional headquarters administering all ‘Indian’ Bands in the province. Quebec City was the regional administrative ‘head office’ for Indian ‘Bands’ of Quebec. In the 1970’s, the majority of Cree ‘Bands’ were administered within the Abitibi District from the District Office of Indian Affairs in Val d’Or, Quebec. ( In the 1960’s, the District Office of Indian Affairs was located in Amos, Quebec.) In effect, the District Office of Indian Affairs was the centre of Cree ‘Bands’ and federal relations.

The Cree and Naskapi ‘Bands’rarely conducted direct relations with the Government of Canada.

However, the Department of Indian Affairs did permit certain Cree Bands to administer locally, but not control, certain federal programs and/or services through administrative and contractual arrangements. Consequently, as an example, Cree bands operated the local schools to some limited extent.

By 1970, the Eeyouch saw and still agree that progress in self-government, in social and economic development and in eradicating the social ills afflicting them cannot and could not be accomplished within the confines of the Indian Act and the dominating administrative arm of the Department of Indian Affairs.

Consequently, for the Eeyouch, the comprehensive control and domination asserted by the federal government over Eeyou society and territory through the Indian Act and the Department of Indian Affairs became the catalyses for change in Eeyou and federal relations.

In the early 1970’s, before the execution of the James Bay and Northern Quebec Agreement (JBNQA) and the Northeastern Quebec Agreement (NEQA), the following brief and general summary describes the situation and conditions of the Eeyouch (Cree and Naskapi), their local government and administrations, and governmental relations:

1. The population of the Eeyouch was about 6,000 Cree and about 350 Naskapi.

2. The traditional way of life based on hunting, fishing and trapping and related activities constituted ( and still remains ) an essential and necessary component of Eeyou culture and society.

3. The Eeyouch (Naskapi) began to settle in the Montagnais Reserve of Matimekosh with the commencing of housing for them.

4. The Eeyouch (Cree) of Eeyou Istchee were residing in six (6) isolated villages - Great Whale River, Fort George, Paint Hills, Eastmain, Rupert’s House and Mistassini. The Cree of these villages lived in inadequate housing shelters without suitable infrastructures for water and sewage systems.

5. With the exception of the Ouje-Bougoumou Cree, the Cree and Naskapi peoples had ‘Band’ status under the Indian Act.

6. Only three (3) Cree communities - Mistassini, Waswanipi and Eastmain - were allocated lands as ‘reserves’ established by provincial law under an administrative arrangement with the federal government. (But only the Cree of Mistassini were residing on their ‘reserve.’ The Cree of Waswanipi had no choice but to leave the old Waswanipi Post and their ‘reserve’. The ‘reserve’ for the Cree of Eastmain was located outside of the Cree village of Eastmain.)

7. The Cree of Nemaska, having been relocated from the old Nemaska Post, resided in the villages of Rupert’s House and Mistassini.

8. The Waswanipi and Ouje-Bougoumou Cree were dispersed and residing in small crude encampments throughout their traditional territories and in some non-Native municipalities.

9. The Ouje-Bougoumou Cree were registered as members of the Mistassini Band by Indian Affairs for economic and administrative reasons. (Some Ouje-Bougoumou Cree resided in the village of Mistassini.)

10. The Indian Act applied and was enforced upon the Cree and Naskapi peoples. Hence, the legal system of a limited and supervised regime of local government was imposed on the Cree and Naskapi ‘Bands’.

11. Notwithstanding the legal regime of the Indian Act, the Cree and Naskapi peoples continued to use their traditions and customs for ‘band’ elections and decision-making over local individual and collective matters.

12. The federal government, mainly through the Department of Indian Affairs and Northern Development (DIAND), provided programs and services to the Cree and Naskapi ‘bands’.

13. The Cree and Naskapi ‘Bands’ conducted federal relations through officials of the District Office of the Department of Indian Affairs and Northern Development.

14. The Department of Indian Affairs and Northern Development arranged contractual and administrative measures to permit some Cree bands to manage some federal programs and services such as operations of local schools.

15. Relations with the Government of Quebec were virtually non-existent in most Eeyou communities.

16. The imposed Indian Act regulated almost every important aspect of the lives of the Cree and Naskapi ‘Indians’.

17. Questions existed about the capacity of the ‘Band’ under the Indian Act to undertake contractual obligations and assume legal responsibilities as a legal entity or a legal personality.

18. The Department of Indian Affairs and Northern Development asserted control over political structures, land administration and management, community development and social and economic development of the Cree and Naskapi ‘Bands’.

19. The Government of Quebec considered the welfare of the Cree and Naskapi ‘Indians’ as the responsibility of the Government of Canada and hence provided little or no services and programs to the Cree and Naskapi peoples.

20. The DIAND controlled local governmental and administrative matters.

21. The Government of Canada and the Government of Quebec did not recognize aboriginal rights. The Constitution of Canada was silent on the issue of aboriginal and treaty rights.

22. Hence, Canada and Quebec did not recognize the aboriginal right of self-government. The federal government and provincial government held the view that Native people had no rights of government other than those the government chose to legislate or impose such as the regime under the Indian Act.

23. However, the Government of Canada acknowledged the legitimacy of ‘Indian’ land claims in light of the Calder,1973 decision by the Supreme Court of Canada on the issue of aboriginal title.

24. The obligations of Quebec to settle land and other claims of Native people when its boundaries were extended in 1898 and 1912 remained outstanding and unfulfilled.

25. The Government of Canada, as in the past, continued to insist upon and implement the policy of extinguishment of aboriginal rights, claims, title and interests in and to lands in any settlement, agreement or treaty respecting aboriginal land claims.

26. The Indian Act and the Department of Indian Affairs and Northern Development came to be regarded as instruments and agents of intrusion into Eeyou affairs.

27. In general, the courts had not yet clarified the fiduciary role and responsibility of the Crown.

28. Resource development such as hydro-electric development within the Cree traditional and historical territories became a major issue and concern.

In 1974, the Cree (Eeyou) of Eeyou Istchee established the Grand Council of the Crees (of Quebec) in order to protect their rights and interests in and to their historical and traditional territories and to promote their sense of collectively and identity and status as a people and a nation.

For the Cree and Naskapi people, there is no more basic principle in aboriginal history and relations than a people’s right to govern themselves and their territories in accordance with their traditions, values, goals and aspirations. In particular, mutual recognition of coexisting and self-governing peoples is basic in the continuing relationships with Canada and Quebec.

The negotiations, throughout the 1970’s, that led to the execution of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement were a rare opportunity for the Cree and Naskapi peoples, respectively, to achieve recognition of particular rights, guarantees and benefits for their distinct societies and way of life based on their central and special relationship with their historical and traditional territories. These negotiations and Agreements also provided a means for achieving, to some extent, their vision of self-government for their people, communities and lands but constrained by the existing political and legal environment of the 1970’s.

Consequently, on November 11, 1975, the James Bay and Northern Quebec Agreement (JBNQA) was signed by the Grand Council of the Crees (of Quebec), Northern Quebec Inuit Association, Government of Canada, Government of Quebec and certain crown corporations such as Hydro-Quebec.

The Northeastern Quebec Agreement (NEQA) was signed on January 31, 1978, by the Naskapis de Schefferville Band, Grand Council of the Crees (of Quebec), Northern Quebec Inuit Association, Government of Canada, Government of Quebec and certain crown corporations such as Hydro-Quebec.

The JBNQA and the NEQA, arose out what was, initially, opposition by the Cree of Eeyou Istchee to a major hydroelectric development project within their historical and traditional territories. Therefore, these Agreements or Treaties are also out-of-court settlements as well land claims agreements or treaties. As far as the Eeyouch ( Cree ) are concerned, the JBNQA was signed under duress: refusing hydro-electric development outright was never an option, construction of access roads to sites for hydro-electric development had begun in 1971, work on the first dam had begun in 1973, and a court injunction briefly halting construction on the hydro-electric development project had been overturned on appeal.

On May 4, 1977, Parliament passed the James Bay and Northern Quebec Native Claims Settlement Act which approves, gives effect to and declares valid the James Bay and Northern Quebec Agreement. Pursuant to this Act, the Governor in Council, later by order, approved, gave effect to and declared valid the Northeastern Quebec Agreement.

Furthermore, the National Assembly of Quebec enacted numerous statutes to give effect to particular sections of the JBNQA and the NEQA.

Section 9 (Local Government over Category IA Lands) of the JBNQA provides that "there shall be recommended to Parliament special legislation concerning local government for the James Bay Crees in Category IA lands allocated to them."

Section 7 (Local Government over Category IA-N Lands) of the NEQA provides for similar undertakings and obligations respecting local government for the Naskapis of Quebec in Category IA-N lands allocated to them.

Subsection 5.1.2 of section 5 of the JBNQA defines Category IA Lands as "lands set aside for the exclusive use and benefit of the respective James Bay Cree Bands, including the Great Whale River Band, under the administration, management and control of Canada, subject to the terms and provision of the Agreement."

In a similar way, subsection 5.1.2 of section 5 of the NEQA defines Category IA-N Lands as "lands set aside for the exclusive use and benefit of the Naskapi band, under the administration, management and control of Canada, subject to the terms and conditions of the present Agreement."

All of the Cree and Naskapi villages are (or in the case of Ouje-Bougoumou would be) situated within Category IA or Category IA-N Lands.

It is clear that the Cree and Naskapi peoples wanted to maintain a relationship but a redefined relationship with the Government of Canada on a basis of the letter, spirit and intent of the terms and provisions of the JBNQA and NEQA as treaties and the constitutional responsibilities of Canada.

Consequently, pursuant to Section 9 of the JBNQA and Section 7 of the NEQA and to establish a redefined relationship with Canada, the Cree and Naskapi peoples and the Government of Canada discussed the terms and provisions of the Cree-Naskapi (of Quebec) Act which was given royal assent on June 14, 1984.

The Cree-Naskapi (of Quebec) Act provides for "an orderly and efficient system of Cree and Naskapi local government, for the administration, management and control of Category IA and IA-N land by the Cree and Naskapi bands respectively, and for the protection of certain individual and collective rights" under the JBNQA and NEQA.

During the period of discussions for the terms and provisions of the Cree-Naskapi (of Quebec) Act (1975 to 1984), the following relocations and resettlement of the Cree and Naskapi peoples took place:

1. The Cree people of Waswanipi reassembled and constructed their present community of Waswanipi. Construction began in 1976.

2. The Cree people of Nemaska, pursuant to subsection 7.4 of section 7 of the JBNQA, relocated and resided in their new village of Nemaska along the shores of Champion Lake. Construction of the present community of Nemaska began in 1977.

3. The Cree people of Fort George moved from the island of Fort George to a new village - Chisasibi - on the mainland along the south shore of the Chisasibi ( La Grande ) River because of potential impacts of hydroelectric development on the island of Fort George and the desire of Hydro-Quebec to substantially modify its hydroelectric development project. (The JBNQA was subsequently amended in 1978 for this purpose.) The community of Chisasibi was constructed by the Eeyouch of Chisasibi.

4. Pursuant to section 20 of the NEQA, the Naskapi people accepted to relocate from Matimekosh Reserve and establish a new village named Kawawachikamach. Construction of the new village began in 1981 and was substantially completed by the end of 1984.

In the discussions for a new regime respecting local government and administration, management and control of community lands, the Eeyouch ( Cree and Naskapi ) rejected the legal regime of limited and supervised powers of local government with the veto powers of the Minister under the Indian Act. Consequently, the Cree-Naskapi (of Quebec) Act replaces the Indian Act which ceases to apply to the Cree bands and the Naskapi band, nor does it (Indian Act) apply to or in respect of Category IA or IA-N Lands except for the purpose of determining which of the Cree and Naskapi beneficiaries are "Indians" within the meaning of the Indian Act.

Therefore, in addition to building new communities and accelerating community development such as housing and infrastructures for new and existing communities, the Cree and Naskapi peoples were implementing a new regime for local government and administration and management of Category IA and IA-N Lands, respectively.

The situation of the Ouje-Bougoumou Cree is described in Chapter 5 of the present report. The Cree-Naskapi (of Quebec) Act and the Indian Act do not apply to the Ouje-Bougoumou Cree who consequently are not constituted as a separate and distinct band corporation or band under the Acts. Nevertheless, the Ouje-Bougoumou Cree exercise their right of self-government through the Ouje-Bougoumou Eenouch Nation - their traditional and historical unit of authority and governance.

Notwithstanding the legal regime of local government under the Cree-Naskapi (of Quebec) Act, the Eeyouch ( Cree and Naskapi people ) continue to incorporate their traditions and customs in the exercise and practice of local government.

To enable and provide for a system of Cree and Naskapi local government and for the administration, management and control of community lands by the Cree and Naskapi bands, respectively, the Cree-Naskapi (of Quebec) Act provides for the following principal and general matters:

1. Application of the Indian Act (The Indian Act does not apply)

2. Incorporation, Name and Membership of Cree and Naskapi Bands

3. Objects and Powers of Bands

4. Band Council and Council Meetings

5. By-laws Respecting Local Government

6. Procedure for Making By-laws and Resolutions

7. Challenges to By-laws or Resolutions

8. Band Elections - Elections By-laws

9. Calling of Elections

10. Contestation of Election Results

11. Meetings and Referenda of the Band

12. Financial Administration of Bands

13. Residence and Access Rights on Category IA or IA-N Land

14. Rights of Bands, Quebec and Others in Relation to Category IA and IA-N Land

15. Expropriation of Category IA or IA-N Land by Quebec

16. Disposition of Rights and Interests in Category IA or IA-N Land and Buildings

17. Cession by Bands

18. Land Registry System

19. Expropriation by Bands

20. Cree-Naskapi Commission

21. Successions

22. Policing

23. Offences

24. Administration of Justice

Clearly, the Cree-Naskapi (of Quebec) Act is a comprehensive and intricate statute for Cree and Naskapi local government and administration.

During the discussions respecting the terms and provisions of the Cree-Naskapi (of Quebec) Act, a historic milestone was achieved in the history of aboriginal relations when the Constitution of Canada was amended to affirm and recognize existing Aboriginal and Treaty rights.

Section 35 of the Constitution Act, 1982 reads:

1. The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

2. In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada.

3. For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

4. Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Consequently, as far as the Cree and Naskapi peoples are concerned, the Constitution Act, 1982, recognizes and affirms their "existing aboriginal and treaty rights." The treaty rights include rights contemplated by the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

Hence, the source, terms and provisions of the Cree-Naskapi (of Quebec) Act differs significantly, from the Indian Act in the following ways:

1. The Cree-Naskapi (of Quebec) Act flows from federal obligations and undertakings pursuant to the JBNQA and NEQA as treaties.

2. The treaty rights, including the provision of Cree and Naskapi local government and administration, control and management of lands, are recognized and affirmed by the Constitution Act, 1982.

3. The terms and provisions of the Cree-Naskapi (of Quebec) Act were discussed by the representatives of the Cree and Naskapi peoples and the Government of Canada.

4. The Act provides for more and increased powers and control by the Cree and Naskapi Band Corporations and local government over their communities, lands and local affairs.

5. Cree and Naskapi local governments are accountable to their people.

6. The authority of the Minister to approve, disallow or veto and the Governor in Council to approve or regulate is restricted and limited to certain matters.

7. It clarifies the capacity of band corporations to undertake and assume legal obligations and responsibilities.

8. An independent body - the Cree-Naskapi Commission - has a legal duty to report on the implementation of the Act.

9. It takes into account certain traditions and customs such as manner of adoption and successions.

10. The CNQA specifically permits the use of the Cree or Naskapi language in council meetings in addition to any other rights relating to the use of such languages. In addition, the report of the Cree-Naskapi Commission must be written in Cree and Naskapi as well as in English and French.

However, the source, terms and provisions of the Cree-Naskapi (of Quebec) Act (CNQA) are similar to the Indian Act in the following significant ways:

1. The Cree-Naskapi (of Quebec) Act is federal legislation ( albeit constitutionally entrenched ) which provides for and creates a legal regime for Cree and Naskapi local governments.

2. The CNQA creates new entities such as band corporations that have as an object to act as the local government authority - without a clear acknowledgement or recognition of the Eeyou nation - the historical and traditional unit of authority and power.

3. The Governor in Council retains authority to make regulations prescribing matters that by the CNQA are to be prescribed.

4. Under the Indian Act, the Minister of Indian Affairs has extensive discretionary authority to oversee and control local government. Under the CNQA, the Minister’s authority is far more limited and specific.

5. Certain by-laws of the Cree and Naskapi local governments require the approval of the Minister of Indian Affairs or the Governor in Council.

6. The CNQA does not acknowledge or recognize traditional forms of governance and does not fully take into account the application of traditional law and customs by the Cree and Naskapi people.

7. The CNQA does not provide for the development and implementation of a Cree and Naskapi system for the administration of justice.

8. The Indian Act is administered by the Minister of Indian Affairs and Northern Development. The Minister is responsible also for the administration of the CNQA.

9. The Land Registry Systems are under the control and supervision of the Minister.

The implementation of the Cree-Naskapi (of Quebec) Act has been difficult for all parties concerned. The numerous problems, issues and concerns of the Cree and Naskapi peoples and the Department of Indian Affairs and Northern Development are described in Chapters 5,6,7,8,9 and 10 of the present report.

It must be noted and stressed that the exercise and practice of Cree and Naskapi local government can only be understood if the JBNQA and NEQA and the Cree-Naskapi (of Quebec) Act are read and taken into account as a whole. After all, other sections of the JBNQA and NEQA refer to the jurisdiction and responsibilities of Cree and Naskapi local government and authorities.

The spirit and intent of these treaties must also be understood and respected to maintain and improve Cree and Naskapi and federal relations.

In light of recent decisions of the Supreme Court respecting the interpretation of treaties and the importance of oral historical accounts by Aboriginal peoples, it becomes necessary to gather oral and written accounts of the making and meaning of the modern day Treaties - the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. Most of the major participants who were involved in these historical processes are still living and could contribute in a significant manner that would promote and enable a better understanding of the spirit, intent and meaning of these Agreements or Treaties.

Furthermore, the Cree and Naskapi peoples have an inherent right of Eeyou self-government. The right of self-government inheres in the Cree and Naskapi nations. Consequently, it is through the nation that the Cree and Naskapi express their personal and collective autonomy. The Eeyou nation is the traditional and historical unit of self-governing power recognized in the treaty-making process and through nation-to-nation and government-to-government relationships.

In its Report of 1996, the Royal Commission on Aboriginal Peoples concluded "that the inherent right of self-government is one of the existing Aboriginal and Treaty rights" recognized and affirmed by section 35 of the Constitution Act, 1982.

Furthermore, the Government of Canada, on the basis of its policy statement of August, 1995 recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982.

Consequently, the interpretation and implementation of the JBNQA and NEQA and CNQA are partial expressions of the inherent right of Eeyou self-government. The implicit recognition of the inherent right of Eeyou self-government with viable ways and means for the proper implementation of self-government in the JBNQA and NEQA and enabling legislation such as the CNQA would constitute a full expression of the Cree and Naskapi right of local self-government.

However, the meaning, source, nature, scope and other related attributes of Eeyou self-government need to be determined and clarified in order to determine the path to local Eeyou government in accordance with the needs, aspirations and goals of the Eeyouch. These questions and related issues can be best addressed by the Eeyouch and perhaps through negotiations and subsequent agreement(s) with the Government of Canada (and the Government of Quebec).

As far as Eeyou self-government is presently exercised and practised, the Cree-Naskapi Commission has observed and concluded the following:

1. The principal and primary authority rests with the local government; but Eeyouch recognize that, in practice, powers, responsibilities and mandates are exercised by other Eeyou authorities such as the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority. Therefore, certain powers and duties are dispersed among several Cree and Naskapi institutions such as school boards and health boards as established in accordance with the terms and provisions of the James Bay and Northern Quebec Agreement and Northeastern Quebec Agreement.

2. The powers and authority of local Eeyou government arise from long-standing practices based on traditional law and customs and from other formal sources such as the James Bay and Northern Quebec Agreement, Northeastern Quebec Agreement and the Cree-Naskapi (of Quebec) Act.

3. In the transition from the restrictive regime of the Indian Act to the local government regime of the Cree-Naskapi (of Quebec) Act, Eeyouch took the opportunity to evolve and develop their political and administrative institutions at their pace in meeting the strenuous demands of adaptation required for an orderly and effective local government based also on the foundation of traditional elements of Eeyou governance and an existing and inherent right of Eeyou self-government.

4. The meaning and practice of local Eeyou government has evolved and has been redefined over the past sixteen (16) years. The Eeyouch are presently using their local governments to meet needs such as housing, economic development, traditional (hunting, fishing and cultural) pursuits, policing, administration of justice, education, health, delivery and administration of programs and services, community development, environmental protection and political representation to conduct government-to-government relations.

5. The effectiveness of local Eeyou governments depend on their ability to devote their resources and energies to improving the welfare of their constituents rather than continuously having to defend their rights and interests in an atmosphere of acrimony and confrontation. ( The Cree Nation of Eeyou Istchee has had to expend substantial resources and energies in the defense of Eeyou rights and interests, particularly, in respect to resource development such as water for hydroelectric purposes, forestry and the proper implementation of the James Bay and Northern Quebec Agreement.)

6. The Eeyouch and the Government of Canada must be engaged in an effective process of ‘making Eeyou rights work’ in the redefinition of Eeyou self-government.

7. Federal officials from the Department of Indian Affairs and Northern Development are noticeably absent in the Eeyou communities as Eeyou -federal relations are conducted directly with federal officials in Ottawa. Furthermore, Eeyouch , through their local governments and other Eeyou authorities, are exercising a substantial control over their affairs.

8. The full potential of local Eeyou government , with its dynamic and evolving nature, has not yet been realized and achieved by the Eeyouch because, as one principal constraint, the Cree-Naskapi (of Quebec) Act, since its enactment sixteen years ago, remains an inflexible, rigid and unchanging instrument.

9. Local Eeyou government must have full legitimacy, power and resources to be orderly and effective.

10. A redefined relationship between the Eeyou and federal governments must adequately affirm, recognize and provide for legitimacy, power and resources for orderly and effective local Eeyou government.

11. Sufficient resources and appropriate funding arrangements must be in place to enable the exercise of effective local Eeyou government.

12. The Federal-Eeyou relationship including its fiduciary nature needs to be redefined and clarified by the Eeyouch and the Government of Canada.

13. Eeyouch and Eeyou leadership envisage the enhancement and advancement of local Eeyou government on the basis of Eeyou rights, goals, needs and aspirations. In particular, the vision for local Eeyou self-government encompasses the following principles, elements and attributes:

1. Exercise of right of self-determination;

2. Full expression and exercise of inherent right of Eeyou self-government;

3. Enhancement of powers and authority;

4. Extension of territorial jurisdiction;

5. Redefinition of forms and institutions of governance;

6. Allocation of adequate resources;

7. Establishment of a firm economic base to promote self-sufficiency;

8. Clarification and recognition of legitimacy of Eeyou governance;

9. Redefinition and establishment of just relationships;

10. Establishment of Eeyou-oriented and community-based administration of justice;

11. Recognition and affirmation of traditional law and customs;

12. Application of Eeyou principles and values;

13. Conformity with the present state of aboriginal law; and

14. Empowerment of the Eeyouch.

The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement ("the agreements") were signed in 1975 and 1978 respectively. With the passage of the Constitution Act, 1982, rights of the Cree and Naskapi included in the agreements were declared to be "treaty rights" and were "recognized and affirmed" as part of the "supreme law of Canada". Since that time numerous decisions of the Supreme Court of Canada have filled out the meaning and application of these constitutional provisions and with them the force and effect of the agreements.

All of this may seem unremarkable from the point of view of someone looking at the state of Canadian Aboriginal law and policy in the year 2000. It represents however a dramatic change from the situation in 1975 and before.

From the late nineteenth century until well into the twentieth, the courts, although of the opinion that governments ought to honour the treaties, still considered them to be "mere promises of the Crown. " Without legislation to give specific effect to their provisions, they were basically unenforceable against an unwilling government. Most of the time governments interpreted treaties so narrowly that even their "mere promises" involved few or no real obligations for governments or rights for Aboriginal peoples.¹

Democracy, Minorities and Aboriginal Peoples

Canada is one of a few countries in which a very large majority of the population are either immigrants or descendants of immigrants. This has meant that our politics has usually involved a large component of inter-communal policy debate. This has been framed variously in terms of English/French relations, separate school issues, bilingualism, multiculturalism policy and immigration policy as well as human rights law. Overall there has often been a dynamic tension between the "melting pot" and "community of communities" concepts. This tension is frequently a good and positive part of our public consciousness. From time to time of course it also brings into focus rather more negative aspects of our politics. Expressed another way, Canada has always been faced with maintaining the delicate balance between respect for and legal protection of minorities on the one hand and the need for national unity and democratic decision-making on the other. The rule of law, the federal system and the Charter of Rights have all been (mainly successful) attempts to achieve this balance.

In this melange of political concepts and realities, the Aboriginal peoples of Canada have all too often had their rights ignored. As recently as 1969, the then Prime Minister, Pierre Trudeau was denying the existence of Aboriginal rights and musing that Treaty rights should be done away with.² To his credit the same Prime Minister later supported the inclusion in the Constitution of sections "recognizing and affirming Aboriginal and Treaty rights."

A continuing political challenge not only to Aboriginal peoples but to all Canadians is to be able and willing to make a distinction between the unique (sui generis) treaty and Aboriginal rights of Aboriginal peoples and the Charter and other rights of all Canadians. As Canadians all of us have the individual (and to some extent group) rights spelled out in the Charter and in other provisions of the Constitution. Existing Aboriginal rights are the rights which the Aboriginal peoples have had since time immemorial and which were never modified by treaties with France, Britain or Canada. Treaty rights are the result of treaties and agreements under which the Aboriginal signatories provided certain benefits such as land or resources to government in return for benefits such as economic development, health, education etc. These benefits are in addition to services provided to all Canadians and are a form of payment analogous perhaps to rent for the land and resources. Those who criticize treaty entitlement are frequently unaware of the enormous benefits which all Canada has received under the treaties. The Agreements in Northern Quebec for example have provided access to Canadians and Quebeckers to billions of dollars worth of forest and mineral products, land and hydro resources to name just a few. For all of these reasons Aboriginal treaties and agreements while providing some specific entitlements to Aboriginal peoples are the means by which other Canadians acquired access to virtually unlimited lands and resources.

The Rule of Law

A central value in Canadian legal theory is the rule of law, while there have been many definitions, perhaps Hilaire Barnett described it best:

"The essence of the rule of law is that of the sovereignty or supremacy of law over man. The rule of law insists that every person-irrespective of rank or status in society-be subject to the law. For the citizen, the rule of law is both prescriptive-dictating the conduct required by law-and protective of citizens-demanding that government acts according to the law."³

More recently and more authoritatively, the Supreme Court of Canada in 1998 in the Quebec Secession Reference case discussed the rule of law and the related concept of "constitutionalism." The court said, inter alia:

Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all governments action must comply with the law, including the Constitution."⁴

The fact that the Constitutional amendments of 1982 entrenched Aboriginal and treaty rights has had an enormous significance. Section 35 reads as follows:

These two provisions made applicable by the principle of the rule of law have changed everything. The Supreme Court of Canada found in the Badger case that: Treaties ...create enforceable obligations…."⁷ This is a far cry indeed from the "mere promises" which the courts had identified in various judgements from Confederation until well into the twentieth century.

The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement are constitutionally recognized and affirmed and part of the "supreme law of Canada." The agreements have indeed created "enforceable obligations." Governments may find it inconvenient, costly or even impolitic to honour these obligations from time to time. This does not however permit them to default on those obligations. The Crown has been found to have a fiduciary relationship which requires it to honour its treaty obligations even when fiscal or political pressures might dictate otherwise."⁸

The Nature of Agreements and Treaties

Treaties and agreements can vary greatly from massive agreements such as were negotiated by the Cree and Naskapi and which contain hundreds of thousands of words detailing a wide range of rights and responsibilities to the simple military "pass" identified as a treaty in the Sioui case. The Supreme Court made some insightful comments in R.V. Sioui (1990) saying:

"...the word "treaty" is not a term of art, it merely identifies agreements in which the "word of the whiteman" is given and by which the latter made certain of the Indians’ cooperation."⁹

"...it must be remembered that a treaty is a solemn agreement between the Crown and the Indians, an agreement the nature of which is sacred."¹⁰

The Supreme Court has understood quite clearly the interplay of politics and law throughout the history of relations between governments and aboriginal peoples. Referring to the history of James Bay, the court said in the course of the Sparrow decision"

"In the same general period, the James Bay development by Quebec Hydro was originally initiated without regard to the rights of the Indians there, even though these were expressly protected by a constitutional instrument; see the Quebec Boundary Extension Act, 1912, S.C. 1912, c.45,"¹¹

There has been a good deal of concern expressed in some quarters that the courts are, at least in part, displacing governments in making Aboriginal Affairs policy. Part of the reason for this has been that for decades governments have not only made policy without consulting Aboriginal people, they have also often made those policies in direct contravention of the established treaty rights of First Nations. Given the limited political power of First Nations, many had no choice but to resort to the courts to protect their rights. This approach has impacted the policy making process, but all too frequently where the courts have given clear direction on how policy is to be made, government has complied with the decision in the specific case but failed to observe the principle established and failed to apply it in analogous circumstances. In Sparrow, the Supreme Court observed:

"It took numbers of judicial decisions and notably the Calder case in this Court (1973) to prompt a reassessment of the position being taken by government."¹²

The Court has of course never initiated any extra-judicial role for itself. On the contrary, it continues to urge governments and Aboriginal peoples to negotiate settlements themselves. In the case of the Cree and Naskapi of northern Quebec the agreements were negotiated and signed in 1975 and 1978 respectively. The difficulty has been with implementation of the agreements especially with the James Bay and Northern Quebec Agreement. This difficulty has been the common experience of the First Nations that signed the historical treaties during the 18th and 19th centuries. In the case of those early treaties, the actual wording of the written documents was prepared by government representatives using their own language as well as their own legal concepts. The result is that, in many cases the words of the written treaty do not always fully or accurately reflect the matters discussed or the terms actually agreed upon. The courts have developed rules of interpretation which compensate in large measure for this difficulty.

In the case of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement the language and legal concepts were common to the parties and well understood. The disputes have been primarily about interpretation, of obligations as well as about whether or not government was carrying out those obligations under the agreements (as well as under arrangements made pursuant to the agreements). These are seen by the communities as the main problems of the Agreements. It is especially frustrating because the Agreements were guaranteed first legislatively by the Northern Quebec Native Claims Settlement Act and later constitutionally by the Constitution Act, 1982 (s.35). Numerous court cases have been initiated by the Cree as the only method left to them to resolve these issues.

Prior to the amendment of the Constitution in 1982, treaty and Aboriginal rights were in a somewhat precarious legal position. They could be extinguished (according to the courts) by British and later Canadian (federal) legislation which clearly intended to achieve extinguishment. Insofar as the treaties were concerned, the courts traditionally regarded them as having only limited status. In 1897 the Judicial Committee of the Privy Council (at the time the final court of appeal for Canada) said:

"Their lordships have had no difficulty in coming to the conclusion that, under the treaties, the Indians obtained no right to their annuities, whether original or augmented, beyond a promise and an agreement, which was nothing more than a personal obligation by its governor, as representing the old province, that the latter should pay the annuities as and when they became due;" (Olmsted, Vol I, p. 401)¹³

This situation persisted with only minor variations until the 1980’s. As late as 1969 the Prime Minister was describing treaties as contracts and adding that perhaps they should not continue indefinitely. If treaty rights were accorded less legal protection than they deserved, Aboriginal rights were even worse off. In the same speech in 1969 the Prime Minister stated "...we say we won’t recognize aboriginal rights."¹⁴ As we know, Prime Minister Trudeau later changed his view (in part perhaps because of the reasoning put forward in the Calder case) and supported the adoption of Section 35 protecting Aboriginal rights.

The Crown Fiduciary Duty

At the time of the Guerin decision in 1985 the Supreme Court of Canada found that a sui generis fiduciary relationship existed which imposed a number of responsibilities on the Crown. In Guerin these responsibilities related to land although the principles established may extend to certain aspects of land claims settlements. In the Sparrow case decided in 1990, an additional fiduciary duty was recognised which requires government act in a trust-like rather than in an adversarial manner in relating to Aboriginal peoples. Other cases have expanded upon these concepts.

The Cree-Naskapi Commission believes that what exists today between the federal government and the Crees is an atmosphere which is far too adversarial. The James Bay Implementation Office is, to a far too great extent, more of a regular discretion-exercising, priority setting type of government agency and less of a body intended and empowered to implement the letter, spirit and intent of an Agreement with Section 35 treaty status. However much the government of the day may wish to change history and disregard provisions of an Agreement which it finds inconvenient, expensive or impolitic, it has a clear duty to act honourably and in a fiduciary capacity.

Examples of the difficulty are to be found in the controversy surrounding federal proposals on fire protection. Section 28. 1 1 .1 (c) of the James Bay and Northern Quebec Agreement provides that Canada and Québec in consultation with the Crees, "shall provide funding and technical assistance for: c) fire protection including the training of Crees, the purchase of equipment, and when necessary, the construction of facilities in each Cree community." This would mean to most reasonable people that Canada and Quebec accepted an on-going responsibility in the area of fire protection. The federal government however offered a one time payment on condition that the Crees free Canada from its obligation to assist with fire protection forever. This type of conduct which is incompatible with the duty of a fiduciary and the honour of the Crown. A treaty right which is "recognized and affirmed" by the Constitution should be respected by the government. Attempting to manipulate First Nations into "signing off" such rights under pressure of immediate needs is unconscionable. It also undermines the credibility of Minister Stewart and Minister Nault who have been publicly repudiating the "mistakes of the past" calling for a new relationship based on trust and stating a firm resolve to ensure that treaties are implemented. This continuing inconsistency between stated government policy and bureaucratic behaviour underlines the urgent need for policy accountability in the public sector. The Commissioners are optimistic that, if Minister Nault has the span and depth of policy management authority, the consistant support of his Cabinet colleagues, and a term of office of more than two or three years, he may well achieve his stated objective of implementing the treaties. If he lacks any one of these three conditions, he will face the same limitations of effectiveness as have his predecessors. The Financial Administration Act provides for accountability and control in financial management. A parallel Policy Accountability Act might ensure that civil servants are required to carry out policy established by Cabinet and Ministers. In short the agreements must be carried out according to the letter, spirit and intent of the provisions. An act of this sort would compensate in large measure for the de facto lack of real policy management powers of most ministers.

The history of the Ouje-Bougoumou Eenouch is an epic of a people’s territorial dispossession, a community’s continual displacement and relocation for administration and development reasons and a nation’s aspirations and struggles for a rightful place in their historical and traditional territory.

Historically and traditionally, the Ouje-Bougoumou Eenouch have always been a distinct group of Eenouch (Cree) who used and occupied their traditional territory comprised of about 1,000 square miles of lands within Eeyou Istchee (Cree homeland). The discovery and exploitation of mineral resources within their traditional and historical territory has led to the territorial dispossession and continual displacement and relocation of the Ouje-Bougoumou Eenouch.

The Ouje-Bougoumou Eenouch, as a distinct First Nation, are not a party to the James Bay and Northern Quebec Agreement (JBNQA). At the time of negotiations leading to the JBNQA, the Ouje-Bougoumou Eenouch, were registered as members of the Mistassini Band by the Department of Indian Affairs and Northern Development (DIAND) for administrative and economic reasons. Consequently, the Crees of Ouje-Bougoumou are beneficiaries of the James Bay and Northern Quebec Agreement. However, the JBNQA, does not provide for Category IA, IB and II lands for the Crees of Ouje-Bougoumou. As members of the Mistassini Band in 1974 and 1975, the entitlement of Category I and II lands for the Crees of Ouje-Bougoumou was calculated and included in the Category I and II lands of Mistassini in the JBNQA. Because the Ouje-Bougoumou Cree Nation are not a separate party to the JBNQA, the Agreement is silent on the issue of allocation of Category I and II lands, specifically, for the Crees of Ouje-Bougoumou. Consequently, the Cree-Naskapi (Of Quebec) Act does not apply to the Ouje-Bougoumou Cree Nation.

At the time of negotiations leading up to the JBNQA, the Cree and governmental parties acknowledged that the situation of the Crees of Ouje-Bougoumou (who numbered about 200 Ouje-Bougoumou Eenouch in 1974-75) would be addressed after the JBNQA came into force.

The Governments of Canada and Quebec initially denied such an acknowledgement; but the Ouje-Bougoumou Eenouch continued to press for negotiations. The Crees of Mistissini and the Grand Council of the Crees (of Quebec) acknowledged and recognized the status of the Crees of Ouje-Bougoumou as a separate and distinct group and therefore entitled to a separate land base and a new village.

In the 1980’s, the Government of Quebec came to the negotiation table. The Crees of Ouje-Bougoumou and the Government of Quebec signed the Ouje-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 and recognition by Quebec of the Crees of Ouje-Bougoumou as a distinct First Nation.

With respect to a land base for the Crees of Ouje-Bougoumou, the Ouje-Bougoumou Agreement with Quebec provides for the following:

4.1	The parties have as an objective that, eventually, after a settlement with the Government of Canada, the Crees of Ouje-Bougoumou will have 167 km² of Category I lands and 2,145 km² of Category II lands, subject to proper implementation with the Crees of Mistissini.
4.4	The parties acknowledge that the Ouje-Bougoumou Village shall eventually be situated on Category I A lands and that subject to an express agreement to this effect between the parties concerned, the provisions of the James Bay and Northern Quebec Agreement respecting Category I A lands will be applicable to the village.

The Crees of Ouje-Bougoumou pursued their goals and aspirations through negotiations with the Government of Canada. On December 22, 1990, the Crees of Quje-Bougoumou signed an Agreement in Principle with Canada. The Agreement in Principle focuses on the recognition of the Ouje-Bougoumou as a distinct First Nation and Canada’s contribution to the costs of construction of a new village. This Agreement in Principle paved the way for further negotiations with the Government of Canada.

The Ouje- Bougoumou/Canada Agreement was signed on May 22, 1992 by the Crees of Ouje-Bougoumou, Grand Council of the Crees (of Quebec)/Cree Regional Authority and the Government of Canada. The Ouje-Bougoumou/Canada Agreement also provides for the recognition by Canada of the Crees of Ouje-Bougoumou as a distinct First Nation and furthermore recognizes the need to provide the Crees of Ouje-Bougoumou with a land base.

In this respect, Canada and the Crees have undertaken to amend the JBNQA by way of a Complementary Agreement which would incorporate the Crees of Ouje-Bougoumou for all intents and purposes as full signatories of the JBNQA. Furthermore, Canada undertook in the Ouje-Bougoumou/Canada Agreement to recommend to Parliament legislation to amend the Cree-Naskapi (Of Quebec) Act in order to incorporate the Crees of Ouje-Bougoumou as the ninth James Bay Cree Band and to provide that the new Ouje-Bougoumou Band shall have Category IA lands.

The Ouje-Bougoumou/Canada Agreement and the Ouje-Bougoumou Agreement with Quebec contemplate a land ‘transfer’ from present portions of Category I and II lands of Mistissini to constitute the land base for the Crees of Ouje-Bougoumou. In order to achieve an orderly, fair and just reallocation and reorganisation of these lands, Quebec and the Cree Nation of Mistissini signed a Memorandum of Understanding (MOU) on December 6, 1989. This MOU also provides for the settlement or an agreement on specific issues and concerns of Mistissini before any land ‘transfer’ is finalized and concluded.

On May 30, 1991, the Ouje-Bougoumou Crees hosted a groundbreaking ceremony on the shores of Lake Opemiska where their new village would be constructed.

In 1994, the Crees of Ouje-Bougoumou and the Government of Quebec signed the "Agreement for the Implementation of Outstanding Issues Related to the Ouje-Bougoumou Agreement (executed on September 6, 1989)." In this particular Agreement, amongst other commitments, Quebec "agrees to set aside on an interim basis 2.7 square kilometres of land for the exclusive use and benefit of the Crees of Ouje-Bougoumou …in relation to the Ouje-Bougoumou village. The formal constitution of these lands as Category I lands pursuant to the James Bay and Northern Quebec Agreement will be enacted through a decree to be submitted to the Government’s approval as soon as consultations are concluded…" The village of Ouje-Bougoumou with a present population of about six hundred (600) Ouje-Bougoumou Eenouch has been constructed within the said 2.7 square kilometres of land.

The Ouje-Bougoumou Cree Nation may have provisionally selected the lands, which shall be designated as Category IA and IB lands and Category II lands for the Ouje-Bougoumou Cree Nation as soon as the following measures have been agreed upon and carried out:

1. Complementary Agreement (to amend the pertinent sections of the JBNQA which would incorporate the Crees of Ouje-Bougoumou into the JBNQA);

2. Amendments to the Cree-Naskapi (Of Quebec) Act for incorporation of the Ouje-Bougoumou Crees as a ‘band’;

3. Amendments of enabling Quebec laws so as to establish the Ouje-Bougoumou Village Corporation and the Ouje-Bougoumou Land Holding Corporation. Other enabling Quebec laws may be amended;

4. Agreements on land selections by Ouje-Bougoumou and on the lands to be ceded and ‘transferred’ from and approved by Mistissini;

5. Agreement on issues, concern and related matters of Mistissini pursuant to the Memorandum of Understanding of 1989; and

6. Orderly cession and ‘transfers’ of lands have been conducted in accordance with applicable legislation.

As of March, 2000, the Cree Nation of Ouje-Bougoumou has not received official allocation of their Category I and II lands. The Crees of Ouje-Bougoumou are nevertheless presently occupying their historical and traditional lands which the Governments of Quebec and Canada consider as public land (or Category III lands under the JBNQA).

However, the Ouje-Bougoumou Eenouch exercise their inherent right of local self-government in accordance with Eenou traditional law, customs and will as neither the Cree-Naskapi (Of Quebec) Act nor the Indian Act applies to them or in respect to their community lands.

On February 14, 2000, the Chief and representatives of the Ouje-Bougoumou Cree Nation made a presentation to the Cree-Naskapi Commission at its Special Implementation Hearings held in Ouje-Bougoumou, Eeyou Istchee.

Most of the issues raised by the Ouje-Bougoumou Eenouch are not new but they are worth repeating in light of their importance to the Ouje-Bougoumou First Nation.

1. Ouje-Bougoumou/Canada Agreement¹
   The Ouje-Bougoumou Cree Nation expect and remain very concerned that there be a full implementation of the Ouje-Bougoumou/Canada Agreement signed in May, 1992. Among other provisions, this Agreement provides for:
   a federal contribution towards the cost of construction for a new village;
   operations and maintenance (O & M) funding for the community on an ongoing basis;
   an arrangement for continual funding for capital projects;
   a commitment for the availability of normal programs and services; and
   an undertaking to negotiate a Complementary Agreement which would formally incorporate Ouje-Bougoumou into the James Bay and Northern Quebec Agreement.
2. Complementary Agreement²
   The Ouje-Bougoumou/Canada Agreement and the Ouje-Bougoumou Agreement with Quebec contemplate negotiations with the Ouje-Bougoumou Crees leading to a Complementary Agreement which would formally incorporate the Ouje-Bougoumou First Nation into the James Bay and Northern Quebec Agreement (JBNQA).
   
   For the Ouje-Bougoumou Eenouch, their inclusion into the JBNQA as a treaty and the negotiations leading to their inclusion constitute a treaty process which should take into account the current state of Aboriginal law, human rights and principles. For the Ouje-Bougoumou Eenouch, these negotiations should not simply be a mechanical drafting exercise leading to treaty adhesion nor based on the state of Aboriginal law, government policies and aboriginal affairs of the 1970’s.
3. Funding for Capital Projects³
   The Ouje-Bougoumou Cree Nation considers that a provision of the Ouje-Bougoumou/Canada Agreement provides that Ouje-Bougoumou’s capital funding would be determined on the basis of ‘need’ beginning in the 1994-95fiscal year. Instead negotiations resulted in a continuation of the formula approach to adjusting Cree capital projects. Consequently, the Department of Indian Affairs and Northern Development (DIAND) has applied an approach in which future capital projects are funded for the Ouje-Bougoumou Eenouch differently from the manner in which capital projects are funded for the other Cree communities.
   Furthermore, the Ouje-Bougoumou/Canada Agreement clearly stipulates that funding available to the Cree communities will not decrease as a result of funding available to the Ouje-Bougoumou Crees. Nevertheless, DIAND has maintained that it is not under any obligation to reimburse the Crees for the funding of $1.7 million received by Ouje-Bougoumou for capital projects after 1994-95.
4. Operations and Maintenance Funding⁴
   The Ouje-Bougoumou Cree Nation presently receives annual funding for Operations and Maintenance (O&M) on the same basis as the other Cree communities. However, the Ouje-Bougoumou Eenouch have serious concerns about the basis and consequences of the adjustment level or formula which was conceived in 1984. The application of the present adjustment formula for O & M funding fails to take into account new issues, new concerns and new needs.
   Consequently, the Ouje-Bougoumou Cree Nation recommends a review of the O & M funding formula which addresses new needs not contemplated in 1984.
5. Round Table with the Government of Canada⁵
   The Round Table with the Government of Canada and the Cree Nation, established for addressing implementation issues respecting the James Bay and Northern Quebec Agreement, has not, so far, met the expectations of the Ouje-Bougoumou Eenouch.

As noted in the section on ‘Background’ of the present report, in 1971,the Naskapi Eeyouch became a ‘band’ as the ‘Naskapis de Schefferville Band’ under the Indian Act.

The ‘Naskapis de Schefferville Band’ signed their treaty or the Northeastern Quebec Agreement (NEQA) on January 11, 1978. As far as the ‘Naskapis’ were concerned, the Eeyouch, as they call themselves, had made a treaty or an Agreement respecting their land claims with the Governments of Canada and Quebec. After all Eeyou is the historical and traditional unit of self-governing authority.

The rights, benefits and guarantees of the Naskapi Eeyouch under the NEQA are, in general, comparable to those that are contemplated for the Cree and Inuit under the James Bay and Northern Quebec Agreement (JBNQA). The NEQA, however, contains certain benefits that were negotiated specifically for the aspirations and needs of the Naskapi.

Therefore, pursuant to section 20 (Relocation) of the NEQA, on January, 1980, the Naskapi Eeyouch voted to relocate to Block Matemice where the new village of Kawawachikamach would be constructed. The construction of the new village began in 1981 and Kawawachikamach was substantially completed by the end of 1984.1

The Cree-Naskapi (of Quebec) Act incorporates the Indian Act Naskapis de Schefferville band as the Naskapi Band of Quebec or the Kobac Naskapi-Aeyouch which acts as the local government authority on its Category I A-N land.

On March 4, 1999, the Federal Cabinet approved by-law No. 131 (Respecting Changing the Name of the Band). The Naskapi Band of Quebec is presently named as the Naskapi Eeyouch Kawawachikamach (in Naskapi), the Naskapi Nation of Kawawachikamach (in English), and Nation Naskapi de Kawawachikamach (in French).

The present population of Kawawachikamach is slightly over seven hundred (700) people.

On February 14, 2000, the Chief and representatives of the Naskapi Eeyouch of Kawawachikamach made a presentation to the Cree-Naskapi Commission at its Special Implementation Hearings in Ouje-Bougoumou, Eeyou Istchee (Quebec).

In its presentation, the Naskapi Eeyouch of Kawawachikamach raised the following principal matters:

1. Amendments to the Cree-Naskapi (of Quebec) Act¹

   The Naskapi Eeyouch expressed a preference in their 1998 representation to reach agreement with the Crees on amendments to the Cree-Naskapi (of Quebec) Act and thereafter make joint proposals to the Minister of Indian Affairs and Northern Development.

   The amendments as desired by the Naskapi Eeyouch are described in Chapter 8 of the present report on ‘Implementation of and Amendments to the Cree-Naskapi (of Quebec) Act’.

2. Five-Year Capital Funding Agreement²

   A new Five-Year Capital Agreement which the Council considers to be a fair and acceptable arrangement was executed with the Department of Indian Affairs and Northern Development in July, 1999.

3. Treaty Implementation³

   The Cree-Naskapi Commission, in its 1998 Report, has made certain recommendations respecting administrative, judicial and legislative measures for the proper implementation of treaties.

   The Naskapi Eeyouch support, in principle, the Commission’s recommendation that a Treaty Implementation Secretariat independent from the Department of Indian Affairs and Northern Development be created to manage the fulfillment of the Government’s obligations under treaties and agreements.

   The Naskapi Nation acknowledges the value of having a new law relating to Aboriginal and Treaty rights and merit in the recommendation for a superior court of national jurisdiction.

4. Policing - Funding⁴

   The Naskapi Nation is close to executing a one-year Interim Tripartite Policing Agreement for the period starting April 1, 2000. However, the level of funding under the said Agreement will not permit the engagement of four full-time constables - the minimum number of constables that the Cree have been able to secure for the police forces for their smaller communities.

   The Naskapi Eeyouch have requested a grant of $467,533, from Canada and Quebec to pay for their new police station and its upgrading.

5. Local Justice System⁵

   The Naskapi Nation of Kawawachikamach support the concept of integrating Eeyou traditional values and approaches into a local justice system as fully as possible. However, they wish to follow the progress of the Crees in this matter and determine how the administration of justice could be adapted to their circumstances.

   The Naskapi Eeyouch of Kawawachikamach has made important progress through the establishment of the Naskapi Justice Healing Committee which assists judges in sentencing matters, assists probation officers and helps in the re-integration of community members upon release from prison.

6. Relations and Negotiations with Government⁶

   The Naskapi Eeyouch report that their relations with the Government of Canada are generally good.

   In addition to the aforementioned Agreements (on capital funding and policing), the Naskapi Nation has reached an agreement-in-principle with the Department of Indian Affairs and Northern Development on a new Operations and Maintenance Funding Agreement for the period commencing April 1, 2000.

7. Aboriginal and Treaty Rights⁷

   The Naskapi Eeyouch consider that the Cree-Naskapi (of Quebec) Act cannot be amended unilaterally if Canada perceives any conflicts between the Act and the Canadian Charter of Rights and Freedoms unless and until an agreement has been reached with the Naskapi party on appropriate amendments to the Northeastern Quebec Agreement.

8. Naskapi Government and Administration - Vision⁸

   The Naskapi Eeyouch are generally satisfied with the Cree-Naskapi (of Quebec ) Act and aspire to continue to make further improvements.

   The vision of local government and administration for the Naskapi Eeyouch encompasses the following:

   1. broadening the scope of responsibility of the Council;

   2. strengthening local control through the amalgamation of all authority (i.e., over education and health) under an expanded Council; and

   3. achieving an enhanced level of regional public government through negotiations with the Governments of Canada and Quebec.

   The Naskapi Nation of Kawawachikamach, however, expressed their frustration by the failure of the Government of Canada to assist them in the protection of their rights and interests in the negotiations with the Inuit respecting regional self-government.

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. Therefore, the Commission has established and implemented a public consultation process that includes public hearings such as its Special Implementation Hearings which were held in Ouje-Bougoumou on February 14- 18, 2000 and in Ottawa on February 11, 2000 and March 10, 2000.

The following Cree and Naskapi (First) Nations have made a presentation to the Cree-Naskapi Commission at its Special Implementation Hearings:

In addition, the Grand Council of the Crees (Eeyou Istchee) and the Washaw Sibi Eeyou made representations to the Cree-Naskapi Commission. ( The Director of the James Bay Implementation Office also made a presentation on behalf of the Department of Indian Affairs and Northern Development to the Commission. )

The following Table I lists the Cree Nation population of the nine communities as of June 3, 1999. The population of residents for each community is actually higher when non-Cree residents are included.

It is safe to estimate that the present population of the Cree Nation slightly exceeds 13,000 people. Thus, the Cree population has more than doubled over the last quarter of the past century since the execution of the James Bay and Northern Quebec Agreement.

Common Issues and Concerns

The representation of the Eenouch (Cree) deal with the following common issues and concerns:

1. Implementation of the James Bay and Northern Quebec Agreement

   First and foremost, the Cree Nation and people, as represented by their local and regional governments and authorities, have raised serious and grave concerns respecting the nature and implementation of the James Bay and Northern Quebec Agreement. The principal concerns and issues regarding the nature and implementation of this Agreement or Treaty are the following:

   1. The failure and refusal of the Governments of Canada and Quebec to respect and honour the letter, spirit and intent of the James Bay and Northern Quebec Agreement (JBNQA).

   2. The new relationship which is supposed to grow and blossom from the JBNQA has been nipped in the bud by a process of denial and non-respect for the Treaty by Canada and Quebec. Sections of the JBNQA that have been consistently ignored promise new programs, policies, regulations or arrangements such as environmental protection, local and Cree Nation government community and economic development, polices services, the administration of justice, health and education.²

   3. The lack of implementation of the JBNQA has resulted in the lack of ability of the Cree communities to govern and provide community development as well as economic development necessary for empowerment.³

   4. The federal implementation of treaties involves a process of continued extinguishment of rights as Canada displays a reluctance to acknowledge the ongoing nature of its obligations under the JBNQA.⁴

   5. The federal government refuses to acknowledge the James Bay and Northern Quebec Agreement as a Treaty for the purposes of section 35 of the Constitution Act, 1982.⁵

   6. The basic needs of the Cree communities such as housing, employment , infrastructures, water and sewage systems, capital works must be met to provide and secure conditions for proper social and economic development.⁶

   7. The Governments of Canada and Quebec lack the commitment , political will and good faith for proper implementation of the JBNQA.⁷

   8. The past and present processes are not functioning nor achieving the results desired for the proper implementation of the JBNQA.⁸

   9. A new treaty implementation process with suitable mechanism for resolution of disputes and grievances must be established by agreement of the Native and governmental parties of the JBNQA.9 (The Cree Nation of Mistissini has suggested a process with binding authority on settlement of disputes and on the proper implementation of the JBNQA.)

   10. The failure of the Government to exercise its fiduciary responsibilities in a manner which maintains the ‘honour of the Crown’ in its relationship with the Cree Nation. (The Whapmagoostui First Nation has stated that Canada "must change its strategy and negotiate in good faith and, as the courts of the state have kept urging, in honour of the Crown.")¹⁰

   11. Instead of the affirmation and recognition of aboriginal rights, the James Bay and Northern Quebec Agreement follows an outmoded colonial pattern and policy on the extinguishment of aboriginal rights.¹¹

   The terms and provisions of the James Bay and Northern Quebec Agreement have not evolved through appropriate measures that take into account the present situation, needs and aspirations of the Cree Nation and people. For example, the following regimes and/or obligations of governments require appropriate legislative, funding and administrative measures which must respect the letter, spirit and intent of the JBNQA as well as take into account Cree rights, values, tradition, needs, aspirations, culture and society:

   1. social and environmental protection regime;

   2. administration of justice;

   3. land use and forestry regimes;

   4. local and regional governments;

   5. control and provision of police services;

   6. provision and control of health and education programs and services;

   7. economic and social development; and

   8. hunting, fishing and trapping regime.

   For the Cree people, all of the above regimes and/or obligations affect the exercise and practice of Eeyou government.

   Since the signature of the James Bay and Northern Quebec Agreement, the Agreement has been formally amended twelve (12) times through Complementary Agreement Nos.1 to 12. In fact, Complementary Agreement No. 1 amends certain sections of the JBNQA to allow the execution and implementation of the Northeastern Quebec Agreement and for the benefit of the Naskapis of Quebec. Therefore, the JBNQA is not ‘static nor written in stone’ and can be amended with the consent of the parties to the Agreement. However, sections (of the JBNQA) relating to contentious issues of land, natural resources and power remain unchanged, in spite of, Eeyou aspirations, needs, rights and the current state of aboriginal law.

   However, any amendment to the JBNQA constitutes a fundamental change to the Treaty. Therefore, any amendment process must be conducted with caution and prudence as rights under the JBNQA are treaty rights for the purpose of section 35 of the Constitution Act, 1982.

   It must be stressed that the normal and primary means of implementation is the expressed or implied obligation placed upon the Governments of Canada and Quebec in the James Bay and Northern Quebec Agreement (and the Northeastern Quebec Agreement for the Naskapi Nation) to take appropriate legislative and administrative action. Therefore, the Governments of Canada as well as Quebec, must be engaged in a meaningful and effective process of ‘making Eeyou rights work’ rather than a process of denial of rights.

   Turning good words, promises and principles into social and political reality is a function of law, administration and implementation or enforcement procedures with a sincere measure of good faith and will. In addition, it is clear that ‘making Eeyou rights work’ requires appropriate legislation, structures, procedures, processes, implementation (enforcement) and resources.

   The forging of new relationships or renewing relationships has been a common principle in the treaty making and treaty implementation processes. In the forging or renewing of Eeyou-federal relations, ‘making Eeyou treaty rights work’ must be an essential component as well as an objective.

   The Department of Indian Affairs and Northern Development has taken the position that reporting on the issues and concerns raised by Eeyouch on the implementation of their treaties or Agreements is not the mandate of the Cree-Naskapi Commission. The Commission takes exception to this federal position as many of the implementation issues and problems infringe upon and affect the exercise of local government and the right of Eeyou self-government.

   A duty implies a legal and moral obligation. Consequently, the Commission cannot simply ignore the issues and concerns of Eeyouch in respect to the implementation of the JBNQA and NEQA. To do so would constitute a serious breach of traditional and aboriginal law, customs and protocol in Eeyou relations.

   Pursuant to section 10 of the James Bay and Northern Quebec Native Claims Settlement Act, the Minister of Indian Affairs and Northern Development has an obligation to submit an annual report to the House of Commons on the implementation of the provisions of the said Act, for the period between 1978 and 1998 inclusive. The Minister, therefore, had a legal obligation and duty to report on the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, as the Act and the regulation respecting the NEQA made pursuant to the Act, approve and give effect to and declare valid the Agreements.

   With the exception of compliance in a timely fashion, the Minister appears to have complied with this duty and obligation. The Director of the James Bay and Implementation Office has stated to the Commission that the last and final annual report on the implementation of the JBNQA and NEQA is forthcoming. This annual report will be the last report prepared in virtue of the James Bay and Northern Quebec Native Claims Settlement Act.

   As the period specified in the Act for the Minister to report annually on the implementation of the JBNQA and NEQA has expired, the Cree and Naskapi peoples (as well as the Inuit of Nunavik) are presently faced with a serious predicament in which a proper, effective and acceptable system or process of reporting on the implementation of the JBNQA and NEQA is virtually non-existent.

   The Director of the James Bay Implementation Office has stated to the Commission that the Department of Indian Affairs and Northern Development ( DIAND) has full intention of continuing, possibly in partnership with the signatories of the JBNQA and NEQA, with the production of such an annual report. However, if one of the signatories is not interested, then the DIAND will re-examine the situation and determine the feasibility of proceeding with the production of such a report in the absence of one of the signatories.

   However, the Cree members at the 1999 Annual General Assembly of the Grand Council of the Crees (Eeyou Istchee) and the Naskapi members at the 1999 local General Assembly of the Naskapi Nation of Kawawachikamach have adopted resolutions which direct the Cree-Naskapi Commission to report on the implementation of the James Bay and Northern Quebec Agreement and Northeastern Quebec Agreement. It is intended by the Cree and Naskapi members that the Cree-Naskapi Commission assume this reporting duty in the absence of a reporting mechanism and until the parties concerned have achieved an agreement on an appropriate and effective reporting mechanism or process on the implementation of the Agreements.

   The DIAND has responded to these annual general assembly resolutions of the Cree and Naskapi members by expressing concern on whether the Commission, as an independent and impartial body, can be mandated by the parties to undertake certain actions. The DIAND prefers an arrangement in which the signatory parties including the federal government are in agreement on the production of the annual report on the implementation of the JBNQA and NEQA.

   Furthermore, it appears that the past and present processes for the proper implementation of the JBNQA have, so far, proven ineffective. The Commission, in its 1991 Report, had suggested an approach which encompasses direct dialogue and negotiations between the parties combined with dispute resolution mechanisms. While processes for dialogue and negotiations have been established, dispute resolution mechanisms are non-existent for treaty implementation. However, the Cree communities have stated that the present processes for dialogue and negotiations such as the Canada-Cree Round Table and the Namagoose-V ennat processes have not, so far, met their expectations. In certain cases, including disputes over treaty obligations of the Government of Quebec and government of Canada, the Eeyouch ( Cree ) had no choice but to resort to litigation.

   In addition, the Cree-Naskapi Commission, in its 1998 Report, had made some recommendations respecting judicial, administrative and legislative measures for treaty implementation. These recommendations of the Cree-Naskapi Commission are supported, in principle, by the Cree and Naskapi Nations by resolutions adopted by their members at their respective 1999 Annual General Assemblies.

   In particular, the Cree-Naskapi Commission has recommended the following measures for treaty implementation:

   • A separate and independent Aboriginal Treaty Implementation Secretariat,

   • An Aboriginal Treaty Implementation Act, and

   • A temporary superior court of national jurisdiction to deal with matters respecting Aboriginal Treaty rights.

   Recommendation No. 5 of the 1998 Report of the Cree-Naskapi Commission explains, in general terms, the nature and purpose of the proposed Treaty Implementation Act as follows:

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

   The Confederacy of the Assembly of First Nations ( AFN ) has, by resolution, endorsed in principle the ‘Proposal for an Aboriginal Treaty Implementation Act.'

2. Community and Related Issues

   The representations of the Eeyouch (Cree) to the Commission stated that many community and related issues have been repeatedly raised in the past public consultations for the preparation of past reports of the Commission. The leaders and representatives of the Eeyouch (Cree) are frustrated and disappointed as they feel that their concerns and issues, even though, described by the Commission in its biennial reports, are simply ignored by the federal government and consequently remain unresolved. These community and related issues cover the following matters:

   i)   Operations and Maintenance Funding

   The present ‘Operations and Maintenance Funding Transfer Agreement’ which provides an ongoing subsidy to support local government and administration continues to fail in meeting the situation (such as the high cost of living in the North), changing circumstances and actual needs of Eeyou (Cree) local communities. This matter is dealt with further in Chapter 8 of the present report entitled ‘Implementation of and Amendments to the Cree-Naskapi (of Quebec) Act.’

   (ii)   Housing

   The need to construct new houses, replace and renovate existing houses continue to be pressing issues as the backlog on housing needs increases in the Cree communities. The Cree Nation of Chisasibi in a comprehensive report, has related the unhealthy state of existing houses to various illnesses of the occupants. Consequently, the Cree Nation of Chisasibi has submitted a claim on the need and state of housing and its social consequences to the Department of Indian Affairs and Northern Development and Health Canada. The federal departments concerned have not responded on the negotiations for housing. The claim was made in January, 1999.

   According to the Cree First Nation of Waswanipi, the community’s housing situation is in a crisis situation as described and due to the following:

   1. residents per household is four times the Canadian average;

   2. two hundred (200) new houses are needed to meet the demand and to be on par with the Canadian standards; and

   3. present allocation of houses has not increased to meet the needs of an increasing population.

   Drastic measures are required to meet the present housing needs of the Cree communities.

   (iii)   Economic Development and Employment

   The high rate of unemployment in the Cree communities averaging about 40% with approximately 400 young Crees entering the work force annually12 is a formidable and serious issue which has been aggravated by the lack of resources in economic development. In addition, the development of natural resources such as hydroelectric development and forestry has not resulted in significant employment of the Eeyouch (Cree). Furthermore, resources for programs and projects to promote economic development are needed to reduce the present high rate of unemployment. The failure of the Governments of Canada and Quebec to respect and fulfill Section 28 (Economic and Social Development-Cree) has further aggravated the Cree situation respecting employment and economic development. The Cree Nation of Eastmain has identified an urgent need for expanded, sustained economic development as an integral and essential part of true self-government. In this regard, measures are needed to assist the private sector of the economy and increase its importance in the local economy.

   (iv)   Capital Projects for Community Development

   The present and continual lack of financial resources for capital projects such as community infrastructures, youth centres, elders home, remains to be a major concern of some Cree communities.

   (v)   Firearms Control

   The implementation of the firearms control legislation of the federal government is becoming an administrative burden for Cree communities such as Waswanipi. The Cree local government of the Cree communities should be provided with resources and support for the proper implementation of the firearms control legislation.

   In general, on community and related issues , the Eeyou (Cree) leaders and representatives of the Cree communities and local government have stated to the Commission that the authorities concerned should review and heed the findings and recommendations of the Commission’s past reports. Therefore, the Cree representations did not repeat all the past issues and concerns which presently remain unresolved.

3. Implementation of the Cree-Naskapi (of Quebec) Act

   The Eeyou (Cree) Chiefs and representatives have made representations in the past and present consultation processes on the implementation of and amendments to the Cree-Naskapi (of Quebec) Act. These particular and common concerns and issues are dealt with in Chapter 8 of the present report on ‘Implementation of and Amendments to the Cree-Naskapi (of Quebec) Act.’

   Specific Concerns and Issues

   Some Eeyou (Cree) First Nations have raised the following specific concerns and issues for their particular community:

Cree-Naskapi (of Quebec) Act

Pursuant to Section 9 of the JBNQA and Section 7 of the NEQA, respectively, the Government of Canada, undertook to recommend to Parliament "special legislation concerning local government for the James Bay Crees on Category IA Lands"¹ and "suitable legislation …concerning local government for the Naskapi of Quebec on Category IA-N Lands."²

Consequently, from 1976 to 1984, the Governments of Canada and the Crees and later the Naskapi discussed the terms and provisions of this ‘special and suitable legislation’ as well as funding arrangements for its implementation. This special legislation - the Cree-Naskapi (of Quebec) Act - according to its preamble provides "for an orderly and efficient system of Cree and Naskapi local government, for the administration, management and control of Category IA and Category IA-N land by the Cree and Naskapi bands respectively…."³

Except for the purpose of determining which of the Cree and Naskapi beneficiaries are "Indians" within the meaning of the Indian Act, the Cree-Naskapi (of Quebec) Act replaces the Indian Act, which does not apply to the Cree and Naskapi First Nations, nor does the Indian Act apply on or in respect of Category IA or IA-N land.

The representatives of the Cree and Naskapi parties and the Government of Canada arrived at an understanding as to the implications and impact of the Cree-Naskapi (of Quebec) Act, in the Statement of Understanding of 1984, which is best described as follows:

"The Cree-Naskapi (of Quebec) Act is the cornerstone of the achievement of the full potential of the James Bay and Northern Quebec Agreement and Northeastern Quebec Agreements. The new structures which were created by the Agreements were meant to interface with properly constituted local governments. The Cree-Naskapi (of Quebec) Act is also the basis upon which the relationship with the Federal Government will be redefined. By way of the new Cree-Naskapi (of Quebec) Act, the Cree and Naskapi will be able to go beyond the restrictions inherent in the Indian Act and thereby assume full control in the administration of their communities and management of Category IA and IA-N Lands"⁴

Consequently, the Cree-Naskapi (of Quebec) Act, 1984, is the first legislation in Canada to provide some recognition of Aboriginal self-government. It redefines the relationship between the Government of Canada and the Cree and Naskapi peoples as the Indian Act no longer applies to the Cree and Naskapi bands and their community lands.

Furthermore, notwithstanding the legal regime of local government and administration under the Cree-Naskapi (of Quebec) Act, the Eeyouch (Cree and Naskapi) peoples continue to incorporate their traditions and customs in the exercise and practice of local government.

To enable and provide for an orderly and efficient system of Cree and Naskapi local government and for the administration, management and control of Category IA and Category IA-N Lands by the Cree and Naskapi bands respectively, the Cree-Naskapi (of Quebec) Act provides for the following principal and general matters:

PART I LOCAL GOVERNMENT

• Incorporation of Bands

• Membership of Bands

• Objects and Powers of Bands

• Head Office of Band

• Band Council

• Council Meetings

• Committees of a Council

• Band Bodies, Officers, Employees and Agents

• By-laws Respecting Local Government

• Procedures for Making By-laws and Resolutions

• Challenges to By-laws or Resolutions

• Transitional Provisions

PART II - BAND ELECTIONS

• Entitlement to vote and exceptions for Returning Officer or Assistant Returning Officer

• Election By-laws

• Eligibility to be Elected and to Serve as Council Member

• Returning Officers

• Calling of Elections

• Contestation of Election Results

PART III - MEETINGS AND REFERENDA OF THE BAND

• Use of the Cree or Naskapi Language

• Ordinary Band Meetings

• Special Band Meetings and Referenda

PART IV - FINANCIAL ADMINSTRATION OF BANDS

• Fiscal Year and Budgetary Arrangements

• By-laws for Preparation and Implementation of Budgets

• Books of Account and Financial Records and Statements

• Audits

• Borrowing Powers of Band

• Contracts

• Appointment of Administrator

PART V - RESIDENCE AND ACCESS RIGHTS ON CATEGORY 1A AND 1A-N LAND

• General Prohibition

• By-laws respecting Residence and Access Rights

• Residence Rights

• Access Rights

• General (Special provisions for Naskapi, obstruction and trespass and

• other remedies preserved)

PART VI - RIGHTS OF BANDS, QUEBEC AND OTHERS IN RELATION TO CATEGORY 1A AND 1A-N LAND

• Quebec retains bare ownership of Category IA and IA-N Land

• Bands exclusive use and benefit of its Category IA and IA-N and the natural resources thereof

• Soapstone Deposits

• Forest Resources

• Gravel

• Mineral, Subsurface and Mining Rights

• Pre-existing Rights and Interests on Category IA and IA-N Land

PART VII - EXPROPRIATION OF CATEGORY 1A AND 1A-N LAND BY QUEBEC

• Expropriating authority of Quebec

• Expropriation of IA and IA-N Land for public services or structures

• Band entitlement to compensation

PART VIII - DISPOSITION OF RIGHTS AND INTERESTS IN CATEGORY 1A AND 1A-N LAND AND BUILDINGS

• Grants by band

• Right of Superficie

• Subsequent Transfers of Rights or Interests

PART IX - CESSION BY BANDS

• Cessions of any of Category IA or IA-N land may be made, but only to Quebec

• Requirements for valid session

PART X - LAND REGISTRY SYSTEM

• Enforceability of rights and interests

• Regulation for establishment and maintenance of land registry system

• Duties of Band

PART XI - EXPROPRIATION BY BANDS

• Rights and interests that a Band may expropriate

• Regulations respecting procedural aspects of expropriation

PART XII - CREE-NASKAPI COMMISSION

• Establishment and composition of Commission

• Appointment of Commissioners

• Duties of Commission

PART XIII - SUCCESSIONS

• Intestate succession

• Disposition of traditional property on an intestacy

PART XIV - TAX EXEMPTIONS

• Interpretation and property exempt from taxation

PART XV - SEIZURE EXEMPTIONS

• Interpretation and property exempt from seizure

• Waiver of exemption from seizure

PART XVI - POLICING

• Policing jurisdiction

• Agreements for policing services

PART XVII - OFFENCES

• Offences under the Act

• Contravention of regulations and by-laws

• Regulations and by-laws for maximum punishment

PART XVIII - ADMINISTRATION OF JUSTICE

• Jurisdiction of justices of the peace

• Summary conviction court

PART XIX - GENERAL

• Commissioners of Oaths

• Certification of documents

• Admissibility of certified documents

PART XX - CONSEQUENTIAL AMENDMENTS TO OTHER ACTS

• Amendment, repeals and substitutions respecting other federal Acts

With the exception of Part XII of the Act, the Cree-Naskapi (of Quebec) Act came into force on July 3, 1984. (Part XII of the Act respecting the establishment, duties and operation of the Cree-Naskapi Commission came into effect on December 1, 1984.)

The challenge and goal of the Eeyouch (Cree and Naskapi) are to achieve proper social and economic development and political self-empowerment in the exercise of their rights of self-determination and self-government while protecting their rights, basic freedoms and interests as well as preserving and maintaining their distinctiveness and cultural identity in accordance with their aspirations and needs.

In this regard, the implementation, in letter, intent and spirit, of the Cree-Naskapi (of Quebec) Act, must enable and facilitate the development and evolution of Eeyou local governments by taking into account the social, economic and political realities and conditions prevailing from time to time among the Cree and Naskapi peoples. Hence, the proper implementation of the Cree-Naskapi (of Quebec) Act bears exceptional significance and tremendous consequences on the aspirations and goals of the Cree and Naskapi First Nations as self-governing peoples.

In particular, Eeyou (Cree and Naskapi) local government must have the following attributes to be "orderly and effective": legitimacy, power and resources. By replacing the Indian Act and through proper implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, the redefined relationship between the Cree and Naskapi peoples and the Government of Canada must ensure that these elements are properly provided for through legislative and administrative measures. Furthermore, the intent and spirit as well as the letter of Agreements and the Cree-Naskapi (of Quebec) Act must be taken into account to ensure "an orderly and effective system of Cree and Naskapi local governments."

Implementation of the Cree-Naskapi (of Quebec) Act

1.     Duties and Responsibilities of the Government of Canada

Governments enact legislation as a formal mode of governance and an authoritative source of law. By the enactment of the Cree-Naskapi (of Quebec) Act (CNQA), the Government of Canada purportedly fulfils certain obligations to the Cree and Naskapi peoples pursuant to section 9 of the James Bay and Northern Quebec Agreement and section 7 of the Northeastern Quebec Agreement. As an authoritative source of law, the Cree-Naskapi (of Quebec) Act provides for certain rights and protection respecting Cree and Naskapi local government and administration of lands and the protection of certain individual and collective rights under the Agreements.

As a formal mode of governance and by enacting the Cree-Naskapi (of Quebec) Act pursuant to treaty obligations, the Government of Canada assumed certain duties and responsibilities for the proper administration and implementation of the Act. Canada’s duties and responsibilities flow from the following:

1. Treaty obligations and undertakings pursuant to the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement;

2. Section 91 (24) of the Constitution Act, 1867 respecting federal power to make laws in relation to "Indians, and lands reserved for Indians"

3. Cree-Naskapi (of Quebec) Act;

4. Section 35 of the Constitution Act, 1982, which provides for the recognition and affirmation of existing Aboriginal and treaty rights;

5. Fiduciary responsibility to protect the interests of Aboriginal peoples;

6. Federal policy respecting recognition of the inherent right to self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982;

7. Federal plan of action as outlined in the document entitled ‘Gathering Strength’ and centred on renewing the partnerships, building strong communities, strengthening Aboriginal governments and establishing new fiscal relationships;

8. Duty of government to maintain the ‘honour’ of the Crown;

9. Custom, usage, and practice;

10. Principles of public law and administration;

11. Ministerial responsibility and accountability to Parliament; and

12. Moral suasion.

It is clear that the duties and responsibilities of the Government of Canada extend beyond the enactment of the Cree-Naskapi (of Quebec) Act. Canada must also respect and honour its primary duties and responsibilities for the proper administration and implementation of its legislation - the Cree-Naskapi (of Quebec) Act. (The Cree and Naskapi local governments also assume certain duties and responsibilities for the proper implementation of the Act.)

Since its enactment by Parliament in 1984, the implementation, in letter as well as the spirit and intent, of the Cree-Naskapi (of Quebec) Act, has not been conducted, in a manner, that recognizes, enhances and enables the present state, practice and full potential of Cree and Naskapi local self-government.

The proper implementation of the Cree-Naskapi (of Quebec) Act was not anticipated to be an easy and simple process. In the first place, it was the Cree and Naskapi peoples who had the political will and vision to demand and initiate the change of local government from the restrictive legal regime of the Indian Act to that of the Cree-Naskapi (of Quebec) Act as contemplated in the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. Therefore, the Cree and Naskapi peoples expect the Government of Canada to find the political will and provide legislative and administrative as well as financial measures necessary for the advancement and completion of this change. In many ways, this change involves the redefinition of relations between the Government of Canada and the Cree and Naskapi (First) Nations. To a large extent, the proper and successful implementation of the Cree-Naskapi (of Quebec) Act has been hindered by the absence of an understanding or agreement on the nature of relations that should exist between Canada and the Cree and Naskapi peoples.

Typically, the process of implementation, as in the case of the Cree-Naskapi (of Quebec) Act, has been that Parliament enacts legislation and its administration and implementation remains the responsibility of the Minister of Indian Affairs and Northern Development. At best, there are a few questions of organization such as the present James Bay Implementation Office. Throughout this traditional form of implementation, the Cree and Naskapi peoples are denied a meaningful role in the decision-making process even though they (the Eeyouch) are most impacted by the application, administration and implementation of the Cree-Naskapi (of Quebec) Act. The conventional style of implementation is frequently insensitive to the actual needs and aspirations of the Cree and Naskapi peoples and has resulted in symbolic implementation that amounts to no real change in how decisions are made and in how things are done.

The proper and successful implementation of the Cree-Naskapi (of Quebec) Act is an integral part of the political process in which the duties and responsibilities of the federal, Cree and Naskapi (local) governments, as well the Cree Nation regional authorities, should be clarified and agreed upon by the parties.

2     Cree-Naskapi Commission

However, the Cree-Naskapi (of Quebec) Act does provide for an implementation mechanism in which the Cree-Naskapi Commission has certain duties and responsibilities. In the absence of a comprehensive process for the proper and successful implementation of the Act, the Cree-Naskapi Commission has duties to prepare biennial reports on the implementation of the Act and to investigate any representations submitted to it relating to the implementation of the Cree-Naskapi (of Quebec) Act. The biennial report is submitted to the Minister of Indian Affairs and Northern Development who causes the report to be laid before each House of Parliament.

In virtue of section 165 (1) (b) of the Cree-Naskapi (of Quebec) Act, the Commission has the duty to "investigate any representation submitted to it relating to the implementation of the 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." Furthermore, section 21, (j) of the Act states that one of the powers and objects of the Bands is "to exercise the powers and carry out 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." (emphasis by the Commission)

The James Bay and Northern Quebec Claims Settlement Act - an Act of Parliament - approves, gives effect to and declares valid the James Bay and Northern Quebec Agreement. Pursuant to this Act, the Governor-in-Council, by order, approved, gave effect to and declared valid the Northeastern Quebec Agreement.

Consequently, the Cree-Naskapi Commission considers that it has, at least, the duty and responsibility to report on the implementation of the Agreements, in so far, as these Agreements relate to the exercise of a power and performance of a duty of the Cree and Naskapi local governments.

The Department of Indian Affairs and Northern Development (DIAND) does not concur with this particular interpretation of the duty of the Commission. While the DIAND agrees that the "Commission currently plays an important role in reporting on the implementation of the Cree-Naskapi (of Quebec) Act, as well as investigating representations based on the Act." ⁵ The DIAND has taken the position that the Cree-Naskapi Commission does not have a mandate or duty to report on the implementation of the Agreements. Consequently, the DIAND applies their interpretation on the duty of the Commission as one of many reasons to continue in ignoring the findings and recommendations of the past reports of the Cree-Naskapi Commission.

Since its establishment in December 1, 1984, the Cree-Naskapi Commission has produced six (6) reports on the implementation of the Cree-Naskapi (of Quebec) Act and, to some extent, on the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. As the findings and recommendations of the past six (6) reports of the Commission have been effectively ignored by the DIAND, these findings and recommendations of the Commission have had no bearing, impact or influence in the decision-making and policy-making processes of the Government of Canada in a manner that recognizes, enhances and enables the present state, practice and full potential of the Cree and Naskapi local governments.

However, the findings and recommendations of the Cree-Naskapi Commission as stated in the 1998 Report are supported, in principle, by resolutions of the members of the Grand Council of the Crees ( Eeyou Istchee ) and the Naskapi Nation of Kawawachikamach. ( see Schedule A and Schedule B of the present report ) Furthermore, the members of the Cree Nation of Eastmain, at their 1999 Local Annual General Assembly, adopted a resolution that extends full support to the recommendations of the 1998 Report of the Cree-Naskapi Commission. These resolutions are authoritative and consequently should be respected through appropriate actions and measures by the Government of Canada.

Currently, the Cree-Naskapi Commission, itself, suffers from a lack or absence of a proper and effective implementation mechanism. This fact that there is no present mechanism to ensure the proper implementation of the recommendations of the Cree-Naskapi Commission is a cause for some concern.

Commissions are important instruments of policy-making. Their aim has been to achieve more widespread public understanding of the questions at issue and a more informed basis for policy choices by the decision-makers.

Part I of the Inquiries Act governs the Commissions with a high profile such as Royal Commissions and task forces which are temporary organizations created to investigate specific incidents or general policy concerns and report to government. They are usually dismantled after the delivery of their report and so are not involved in the implementation of any of their recommendations.

However, the Cree-Naskapi Commission was established by special federal legislation - Cree-Naskapi (of Quebec) Act - which was enacted by Parliament pursuant to treaty obligations under the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. As stated, the Cree-Naskapi Commission, since its establishment in 1984, has provided six (6) reports containing its findings and recommendations for proper action and implementation by policy makers of governments.

In addition, the Cree-Naskapi Commission has produced the following discussion papers which were intended to stimulate dialogue in the policy-making process:

These discussion papers were produced by the Commission as a direct result of representations made by the Cree and Naskapi peoples respecting their problems and concerns about the implementation of their modern day treaties - the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement - and the Cree-Naskapi (of Quebec) Act.

As such, the existing recommendations from these discussion papers are incorporated into the recommendations of the present report of the Cree-Naskapi Commission.

However, as most of the recommendations of the Commission concern the implementation of the Cree-Naskapi (of Quebec) Act, the Government of Canada is faced with a major policy issue respecting the exercise of Cree and Naskapi local government. Furthermore, the Cree-Naskapi (of Quebec) Act is Canada’s first legislation which recognizes Aboriginal ( Cree and Naskapi ) self-government pursuant to federal obligations under modern day Treaties with the Cree and Naskapi First Nations. Consequently, the right and exercise of Aboriginal (Cree and Naskapi) self-government is clearly a major issue that requires study and policy advice. However, the recommendations of the Cree-Naskapi Commission are only truly relevant when they are properly and successfully implemented in a manner that meets the needs and aspirations of the Cree and Naskapi local governments. Because the Government of Canada appears to be engaged in a process of institutionalized delay on the question of the right and exercise of Aboriginal self-government, the Cree-Naskapi Commission has seemingly become irrelevant to the policy and decision-makers of government.

Therefore, the question of the relevance or irrelevance of the Cree-Naskapi Commission in the decision-making as well as policy-making processes respecting the implementation of the Cree-Naskapi (of Quebec) Act must be addressed, more so, after about sixteen (16) years of existence of the Commission.

During the discussions, in 1975 to 1984, with the representatives of the Government of Canada on terms and provisions of the Cree-Naskapi (of Quebec) Act, the Cree party envisaged a process in which the effectiveness of the Cree-Naskapi Commission would be reviewed.

Therefore, pursuant to section 172 (1) of the Cree-Naskapi (of Quebec) Act, after an initial period of five (5) years of operation of the Commission, an independent Inquiry was established "to inquire into the powers, duties and operation of the Cree-Naskapi Commission."⁶

The report of the Cree-Naskapi Commission Inquiry was submitted to the Minister of Indian Affairs and Northern Development in April, 1991.

In their letter of submission of their report dated April 4, 1991, the members of the Cree-Naskapi Commission Inquiry state:

Nine (9) years have elapsed since the submission of the Report of the Cree-Naskapi Commission Inquiry. The status quo remains as the Government of Canada has seemingly ignored the recommendations of the Cree-Naskapi Commission Inquiry.

Furthermore, the members of the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and the Naskapi Nation of Kawawachikamach, at their respective 1999 Annual General Assembly, adopted resolutions which provide that the powers, duties and operations of the Cree-Naskapi Commission be reviewed and appropriately revised by the Governments of Canada, Cree Nation and Naskapi Nation (of Kawawachikamach) by taking into account the experiences of the Cree-Naskapi Commission, Cree and Naskapi local governments and the findings and recommendations of the 1991 Inquiry into the Cree-Naskapi Commission.

In a letter, dated March 16, 2000, addressed to the present Chairman of the Commission, the Minister of Indian Affairs and Northern Development responds to these Cree and Naskapi resolutions in the following way:

"I note from your letter that the Cree and Naskapi General Assemblies have suggested revising the powers and duties of the Cree-Naskapi Commission. While the Commission currently plays an important role in reporting on the implementation of the Cree-Naskapi (of Quebec) Act, as well as investigating representations based on the Act, the federal government does not foresee, at this time, making any revisions to the mandate of the Cree-Naskapi Commission. I feel that such revisions should only be considered in the context of a much broader initiative aimed at redefining self-government for the Cree and/or Naskapi."⁸

Consequently, as far as the federal government is concerned, any revisions to the current mandate of the Cree-Naskapi Commission should only be considered in the context of a much broader initiative aimed at redefining self-government for the Cree and/or Naskapi.

AMENDMENTS TO THE CREE-NASKAPI (OF QUEBEC) ACT

1.     Eeyouch ( Cree and Naskapi )Issues

The past reports of the Cree-Naskapi Commission contain findings and recommendations respecting the review and revision of the Cree-Naskapi (of Quebec) Act to achieve the following major objectives:

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

• improve and simplify the process for amending the Act;

• enable and improve law enforcement;

• develop and establish appropriate system (s) for the administration of justice;

• reflect the present reality and needs of local government;

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

• improve the effectiveness of the Cree-Naskapi Commission; and

• secure appropriate and proper financial arrangements and sources.

In the Special Implementation Hearings conducted by the Commission in preparation for the present report, the Cree and Naskapi representatives, repeated some of their concerns and issues, in hope, that these matters will be appropriately dealt with by authorities in a manner that enhances and benefits Cree and Naskapi local governments and the Eeyouch.

Nevertheless, the Cree and Naskapi representatives made the following principal comments and recommendations respecting the implementation of and amendments to the Cree-Naskapi (of Quebec) Act and the exercise of Eeyou self-government:

1. The implementation of the Cree-Naskapi (of Quebec) Act set up relations between the Cree nation consisting of nine (9) communities and the Government of Canada.⁹

2. The right of Eeyou to govern is in only a small way expressed in section 9 of the JBNQA and partially expressed through the Agreement.¹⁰

3. The inherent right of Eeyou people to govern is however much more than what is set out in section 9 or indeed in the whole Agreement.¹¹

4. The preamble in the Cree-Naskapi (of Quebec) Act affirms that the Cree would not be limited by the Act in the future and could benefit "from legislative or other measures respecting Indian Government in Canada that are not incompatible with the said Agreements."¹²

5. The terms and provisions of the Cree-Naskapi (of Quebec) Act must evolve and be consistent with the present situation, needs, aspirations and reality of Eeyou local government.¹³

6. The Ouje-Bougoumou Eenouch (Cree) must be incorporated into the James Bay and Northern Quebec Agreement by way of a Complementary Agreement and consequently be incorporated as the Ouje-Bougoumou Eenouch through appropriate amendments to the Cree-Naskapi (of Quebec) Act.¹⁴

7. The role of the Cree-Naskapi Commission must be more effective in the resolution of disputes, issues and grievances. The Commission must be more independent and its decisions should be binding on the parties concerned. ¹⁵

8. The modernization of the Cree-Naskapi (of Quebec) Act remains an outstanding issue.¹⁶

9. The provisions of the Cree-Naskapi (of Quebec) Act must be clarified and/or amended for the following matters:¹⁷

   1. Accountability of the local authorities and officials to the local electorate;

   2. Duties of the Chief and Deputy Chief;

   3. Powers of Chief and Council as determined by the Cree Nation;

   4. Manner of enactment of legislation such as by-laws and regulations;

   5. Meetings of the Council;

   6. Transitional process of authority with a change in leadership;

   7. General meetings;

   8. Rules of conflict of interest;

   9. Roles and duties of the Band Secretary and Treasurer;

   10. Financial administration; and

   11. Recognition of a Cree National Government as well as the Grand Council of the Crees (Eeyou Istchee) and the Cree Regional Authority.

10. Financial resources are needed for the implementation of by-laws.¹⁸

11. As a local government with delegated authority only, the authority of the Band Corporation must be expanded to enable the enactment of by-laws that respond to community needs.¹⁹

12. The provisions of the Cree-Naskapi (of Quebec) Act relating to ‘Eligibility to be Elected and to Serve as Council Member’ should be amended to prohibit officials such as the Director of Operations and Executive Director of the Band Corporation from holding public elected office of the Band Corporation.²⁰

13. The amendments to the Cree-Naskapi (of Quebec) Act desired by the Naskapi Nation of Kawawachikamach include the following:²¹

    • lowering certain quorums permitting law enforcement officers to issue tickets rather than summonses under the Criminal Code to offenders of Naskapi Nation by-laws enabling Council to conduct business without calling a meeting in certain circumstances.

    • permitting law enforcement officers to issue tickets rather than summonses under the Criminal Code to offenders of Naskapi Nation by-laws

    • enabling Council to conduct business without calling a meeting in certain circumstances.

14. The tax exemption provisions in the Cree-Naskapi (of Quebec) Act require clarification and expansion to include all beneficiaries of the James Bay and Northern Quebec Agreement and wholly owned ‘band’, bodies, entities or Corporations.²²

15. The powers of the Band should be expanded and specific for local sustained economic development.²³

16. The Act should be updated for a more flexible system which allows for the waiver of the exemption from seizure of certain property located on Category IA lands, in order to provide increased commercial financing options for local businesses.²⁴

17. The Cree Nation of Eastmain should have the power to establish its own requirements for quorums in the public decision-making process.²⁵

18. The Cree-Naskapi (of Quebec) Act should be amended to ensure that the Cree Nation of Eastmain has as many implements as possible available to ensure that the resources necessary to its proper functioning are always available for the exercise of true self-government.²⁶

19. The powers of the Cree Nation of Eastmain to tax should be clarified and expanded as an attribute for local government finance.²⁷

20. The legislative powers of the Band should be clarified particular in respect to the general application or non-application of provincial laws.²⁸

21. The Cree Nation of Eastmain should have legislative authority to establish control and administer the local Land Registry System.

22. The Cree-Naskapi (of Quebec) Act should be amended to provide for the payment to the Cree Nation of Eastmain of fines levied and collected for violation of certain by-laws, as well as for tickets issued for violation of traffic regulations, preferably not only on Category IA lands, but on all Category I and II lands that are part of the Eastmain Access Road from the Mattagami - LG2 highway.²⁹

23. The Cree Nation, through the Grand Council of the Crees (Eeyou Istchee/Cree Regional Authority should develop, establish, and implement a national standard or law on all matters respecting elections. This standard or law on elections would be adopted by the Cree Nation and replace provisions on elections contemplated by the Cree-Naskapi (of Quebec) Act.³⁰

24. The Land Registry System and process should take into account the Cree way of life and traditions. The Cree land registry system should be recognized and fully implemented as the federal government is trying to impose the federal land registry system upon the Cree Nation.³¹

25. The Cree Nation of Eeyou Istchee should proceed with a complete and thorough review of:³²

    1. the application of the Cree-Naskapi (of Quebec) Act since its implementation in 1984;

    2. the role of the Cree-Naskapi Commission; and,

    3. the role of the Federal Government.

26. In order to assist in the implementation of the James Bay and Northern Quebec Agreement and provide good government, the Cree local governments should have additional and expanded powers.³³

27. The officials of the local government lack institutional support in order to carry out their duties and responsibilities.³⁴

2.     Operations and Maintenance Funding

To be consistent with the spirit and intent of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement and, in particular, the Cree-Naskapi (of Quebec)Act, in 1984, the representatives of the Government of Canada, the Cree and Naskapi governments and authorities concluded an understanding on a mechanism for the funding of Cree and Naskapi local governments and administration.

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 for the Cree and Naskapi peoples. The present ‘Operations and Maintenance Funding Transfer Payment Agreements’ provides for an annual operations and maintenance subsidy for the Cree and Naskapi local governments.

These transfer payment agreements usually provide for an annual subsidy for a period of five (5) years after which new agreements are negotiated.

The Cree local governments have expressed the following main concerns respecting the ‘Operations and Maintenance (O & M) Funding Transfer Payment Agreement’:

1. The Government of Canada has, allegedly, failed to comply with important and essential provisions of the O & M funding agreement;

2. The Government of Canada has not exercised its fiduciary responsibility, in a manner to protect the interests of the Eeyouch;

3. Canada has refused to review the current situation, changing circumstances and needs of the Cree even though such a review is provided for by the said funding agreement; and

4. The funding levels or criteria for the base year, as established in 1984, must be reviewed and revised to reflect the present circumstances, reality and needs of the Cree local governments and administration.

Earlier in the present chapter, resources have been identified as one essential attribute for an effective and orderly government. Therefore, sufficient funding and satisfactory financial arrangements must be in place to enable the effective exercise of local government.

The Cree party has expressed difficulties in implementing and renewing these financial arrangements every five years. It is time for a redefinition of the fiscal relations with a new financial arrangement that will definitely comply with Treaty obligations and support effective, orderly and meaningful self-government in accordance with the needs and aspirations of the Eeyouch.

3.     Bill C-23 (An Act to Modernize the Statutes of Canada in Relation to Benefits)

Due to a decision of the Supreme Court of Canada, the Government of Canada has tabled Bill C-23 - legislation respecting the rights of same sex couples and benefits. Bill C-23, if passed, would amend the definitions of ‘consorts’ in section 174 of the Cree-Naskapi (of Quebec) Act.

The Cree and Naskapi Nations have taken the position that the Government of Canada cannot unilaterally amend the pertinent section of the Cree-Naskapi (of Quebec) Act. By virtue of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, such amendments to the Act require agreement with the Cree and Naskapi parties.

4.     Local Government Elections

Over the past years, many of the representations made by the Cree Nation, pursuant to section 165 (b) of the Cree-Naskapi (of Quebec) Act, relate to local government elections. In addition to the particular reports submitted to the individuals, officials and authorities concerned, the Cree-Naskapi Commission has, as stated earlier, produced a discussion paper entitled ‘Local Government Elections of the Cree and Naskapi (First) Nations’, dated September 22, 1999.

The recommendations in the said discussion paper which are supported in principle by the Cree and Naskapi peoples and governments are included in the recommendations of the present report.

5.     Other Issues and Concerns

Furthermore, the Cree-Naskapi Commission has also produced a discussion paper - ‘Implementation of and Amendments to the Cree-Naskapi (of Quebec) Act’. Based on its findings and conclusions and submissions of the Cree and Naskapi Nations, the following matters constitute the major issues and concerns:

1. Federal fiscal policy and funding

2. Government-to-Government Relations

3. Public forums and quorums for decision making

4. Police and Enforcement

5. Administration of Justice

6. Powers and jurisdiction of governments

7. Implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement

8. Powers, duties and operation of the Cree-Naskapi Commission

9. Ouje-Bougoumou Cree Nation

10. Application of Eeyou traditional laws and customs

11. Process of Amendments to the Acts

12. Membership and names of First Nations

13. Legislative authority of Cree and Naskapi local governments respecting the following

    • Land Registry System

    • Band Elections

    • Conflicts of Interest

    • Code of Ethics

    • Challenges to By-laws or Resolutions

    • Trade and Commerce

    • Councils of Local Government

    • Cultural Activities

    • Power of Entry

    • Outstanding Accounts

14. Taxation

15. Prevailing authority of By-laws

16. Implementation of the federal firearms legislation

17. Seizure exemptions

18. Financial administration of Bands

19. Mineral, subsurface and mining rights

20. Jurisdiction over certain parcels of Category II lands

21. Payment of Fines

22. Traffic Ticket System

23. By-law powers pursuant to the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement

24. Local Environment Administrators

25. Authority of Cree tallymen and Conservation Officers

26. Benefits of future legislation and other measures respecting Indian Government.

These matters for consideration as possible amendments to the Cree-Naskapi (of Quebec) Act are also supported in principle by the Cree and Naskapi peoples and governments.

Conclusion

The Eeyouch (Cree and Naskapi ) are exercising the right of self-government, in a manner, that extends beyond the scope of the Cree-Naskapi (of Quebec) Act. This evolution of Eeyou local government is customary and natural as political power is universal and inherent in human nature.

However, for the past sixteen (16) years (since enactment by Parliament), the Cree-Naskapi (of Quebec) Act has not maintained pace nor evolved with the exercise and practice of Eeyou local government.

By resolutions, the members of the Grand Council of the Crees ( Eeyou Istchee ) and the Naskapi Nation of Kawawachikamach have resolved that a process of negotiations be established by the Governments of Canada, Cree Nation of Eeyou Istchee and the Naskapi Nation of Kawawachikamach for the proper implementation of the James Bay and Northern Quebec Agreement, Northeastern Quebec Agreement and the Cree-Naskapi ( of Quebec ) Act.

In addition, the Grand Council of the Crees (Eeyou Istchee) has requested the Cree-Naskapi Commission to work with the Cree (and hopefully the Naskapi Nation as well) in setting up a process with a schedule of two (2) years for the completion of a submission that would be presented to the federal Cabinet on appropriate amendments to the Cree-Naskapi (of Quebec) Act.

Furthermore, Eeyou-federal relations need to be clarified and in some cases redefined to ensure an orderly and effective system of Eeyou local government in accordance with the vision, needs and aspirations of the Eeyouch.

The Cree-Naskapi (of Quebec) Act imposes a duty on the Cree-Naskapi Commission - a duty to report. The Act requires that the Commission prepare a report on implementation of the Act every second year. It also provides that the report must be submitted to the Minister of Indian Affairs who must table it in the House of Commons and the Senate.

In the case of the six reports prepared from 1986 to 1998 the Commission conducted hearings, prepared its findings and recommendations and submitted its reports which were then tabled in Parliament as required. There was no follow-up on the part of the Commissioners. In the beginning it was felt that government departments, the Cree and Naskapi communities and others would respond to the recommendations and that follow-up by the Commission would not be appropriate. It was felt that, in this respect at least, the Commission was similar to many other Commissions, tribunals etc. in that it ought to conduct hearings, analyze the evidence, make findings and then submit recommendations. No further action would be needed or appropriate. This is in fact what many other Commissions actually do. In many cases this is adequate. Many Commissions’ output is in the form of legally binding decisions so there no need for follow-up. Many other Commissions are intended only to create policy options which it is understood may or may not be acted upon by Government. Follow-up by these sorts of Commissions would be seen as "lobbying" and really not a legitimate part of their role.

Over time however the Cree-Naskapi Commission came to realize that when the communities raised issues at hearings, they fully expected that those issues would be addressed in practical, substantive ways and not merely be dealt with in a report which was in turn consigned to the shelves of libraries and the files of government. Leaders and community members alike began to question the value of making presentations to the Commission when they never saw any tangible results.

The Commissioners themselves began to rethink their role as they conducted hearings for the 1998 Report. After all if Parliament passes legislation requiring that its implementation be reported upon every two years and requires as a matter of law that those reports be tabled in the House of Commons and in the Senate, it must have intended to do more than merely accumulate paper in the archives. What is really intended by the duty to report? The simple fact is that courts have routinely decided that legislation is "purposive". Certainly the Cree and Naskapi communities thought that there was a purpose for the Commission to report.

Based upon the strongly expressed expectations of the communities as well as upon our own rethinking of the purposive nature of the duty to report, the Commissioners decided to follow-up their 1998 Report at least at a basic level. This involved four processes: a) follow-up with the House of Commons and Senate, b) follow-up with the Cree and Naskapi communities, c) follow-up with the Department of Indian Affairs, d) follow-up with other Aboriginal groups, e) preparation of Discussion Papers on Treaty Implementation and Amendments to the Cree-Naskapi (of Quebec) Act.

Follow-up With the House of Commons and Senate

As a first step the Commissioners requested a hearing before the House of Commons Standing Committee on Aboriginal Affairs. The Chairman, Guy St. Julien, MP, readily agreed and the Commissioners testified on October 27, 1998. The testimony included an overview of the main issues discussed in the 1998 Report as well as answers to various questions put by the MP’s. Chairman St. Julien indicated that the Commission would be welcome to appear at future hearings and this invitation will be taken up to present the major findings of the current 2000 Report.

After formal hearings before the house Committee, the Commissioners also met individually with many of the Committee members as well as other interested MP’s.

The Commissioners also asked the Honourable Charlie Watt, OQ, Chairman of the Senate Committee on Aboriginal Peoples for a hearing. Senator Watt agreed and the Commissioners made a lengthy presentation on November 3, 1998.

As a result of this appearance the Senate Committee’s Round Table on Governance invited the Commission to participate and to discuss our recommendations concerning the need for proper implementation of Agreements and Treaties including in particular the James Bay Northern Quebec Agreement and the Northeastern Quebec Agreement. These issues were discussed in Chapter 2 of the 1998 Report and were covered by recommendations 4,5, and 6 of the same Report.

Subsequently the Honourable Charlie Watt OQ, Chairman of the Senate Committee invited the Commission to submit draft legislation for review and consideration. This draft legislation was the subject of a Commission Discussion Paper on Treaty Implementation which was distributed to the Cree and Naskapi communities on March 3, 1999.

Senator Watt’s committee has continued to work on these issues, and in February 2000, the Committee issue a report entitled Forging New Relationships: Aboriginal Governance in Canada. This report make five recommendations four of which address issues raised by the Cree-Naskapi Commission in its 1998 Report. The Commissioners are pleased to report that work is continuing with the Senate Committee and its staff in the hope that these issues are dealt with effectively.

Follow-Up With the Cree and Naskapi Communities

The 1998 Report was discussed in some detail with the Council/Board of the Grand Council of the Crees (Eeyou/Istchee)/Cree Regional Authority in Montreal on January 20, 1999. A further meeting was held on October 28, 1999 in Val d’Or. On both of these occasions the Commissioners provided the rationale for the findings and recommendations as well as reporting on follow-up elsewhere. The Grand Council of the Crees (Eeyou/Istchee)/ Cree Regional Authority endorsed the 1998 Report’s recommendations in principle at its Annual General Assembly held in Whapmagoostui in August 1999. The Commissioners also discussed the report at various meetings with Chiefs and Councils as the opportunity arose.

On March 15, 1999 the Commissioners met with the Naskapi Chief and Council at Kawawachikamach and reviewed the Report. While supportive of the Report and recommendations overall, the Naskapi leadership noted that the Commission needs to be more precise in distinguishing Naskapi views and priorities from those of the Crees. This advice has been accepted and the Commissioners trust that it will be reflected in the present and future reports. The Naskapi General Assembly held in Kawawachikamach in September 1999 endorsed in principle the recommendations contained in the 1998 Report.

The Commissioners hope that the Cree and Naskapi parties will also respond to the present and future reports of the Commission in an equally clear and timely fashion.

Follow-up With the Department of Indian Affairs

The Commissioners’ met with the Honourable Jane Stewart, PC, MP, Minister of Indian Affairs on October 5, 1998 to submit the 1998 Report as required by the Act as well as to discuss the various issues raised. The problem of the Commissions’ funding was also discussed. During this meeting, Minister Stewart agreed that the Department would review the Report and prepare a detailed response within a reasonable period of time. As noted elsewhere, no written response was in fact ever provided and a somewhat superficial oral response was not finally made until a year and a half later and then only as a preliminary to testimony at the March 2000 Special Implementation Hearings.

Minister Stewart also agreed to consider the Commission’s request for a funding increase and in a short time, she increased the amount provided albeit not to the level requested. This is appreciated by the Commissioners as it has enabled the Commission to maintain its minimum level of work as required under the Act.

Certainly a more effective way must be found for the Department to work with the Commission to address issues raised during hearings and discussed in the Reports. Clearly the previous Minister intended that this should happen. The Department however has not carried out the Minister’s intention. The Commissioners suggest that the Department of Indian Affairs undertake as a standard practice to provide a written response to Reports of the Cree-Naskapi Commission within six months of the tabling in the House of Commons and Senate.

Follow-up With Other Aboriginal Groups

Some of the recommendations contained in the 1998 Report (particularly those dealing with treaty implementation) could potentially have an impact on other Aboriginal groups across the country. In addition, these recommendations would stand a far better chance of being implemented if other Aboriginal groups considered that they were desirable. For these reasons the Commissioners held discussions with National Chief Phil Fontaine of the Assembly of First Nations, Harry Daniels, President of the Congress of Aboriginal Peoples, Marilyn Buffalo of the Native Womens Association of Canada and Okalik Eegeesiak President of the Inuit Trapirisat of Canada. All were supportive in principle of what the Commission was trying to do.

In the case of the Assembly of First Nations, the Commissioners were invited to make a presentation to national conferences specifically called to consider treaty implementation questions. Presentations were made at conferences in Victoria and Sault Ste. Marie. An additional presentation was made at the Assembly of First Nations Confederacy of Chiefs meeting in Ottawa in the spring of 1999. A result of these efforts was that an AFN Chiefs Confederacy in Ottawa in December 1999 passed a resolution supporting in principle the recommendation of the Cree-Naskapi Commission relating to treaty implementation. Follow-up work with the Assembly of First Nations is on-going.

Preparation of Discussion Papers

The Commission recognizes that certain of the issues raised in the Special Implementation Hearings are of such importance and complexity that they require discussion in greater depth than is feasible in the biennial reports. In these cases the Commission has decided that, subject to its financial limitations, it has a responsibility to follow-up with additional fact-finding and analysis. The results of this work form the basis of Discussion Papers which are widely circulated in the communities, with government officials and others in the hope of broadening awareness of the issues and stimulating discussion about possible solutions.

In the case of the 1998 Report, the issues of the need for proper implementation of the Agreements and other treaties as well as the need for amendments to the Cree-Naskapi (of Quebec) Act were followed-up by specific discussion papers. In relation to the paper on treaty implementation, the main response as discussed above has been from the Senate Committee on Aboriginal Peoples. In the case of the paper on the need for amendments to the Cree-Naskapi (of Quebec) Act, the Government has indicated that it will be considering a process to review and revise the Act. Such a process would involve the Cree and Naskapi parties with input from the Cree-Naskapi Commission.*

*It should be noted that Commission discussion papers are also prepared on topics not arising from the biennial reports, but from other sources such as specific representations with elements of wide general importance. Since the 1998 Report, for example, a discussion paper has been prepared on local government elections.

Following the submission of each of the first five reports of the Cree-Naskapi Commission, the Department of Indian Affairs made no formal response to the recommendations. This was unfortunate, the Commissioners believe it reflected a misunderstanding of the spirit and intent of Section 165 (1) (a) and Section 171 (1) and (2) of the Cree-Naskapi (of Quebec) Act. Those sections read as follows:

(2)	Forthwith after the report is laid before each House of Parliament under subsection (1), the Minister shall send a copy of the report to the Cree Regional Authority, the Naskapi Development Corporation, the council of each Cree band and the council of the Naskapi band."

Legislation passed by Parliament is considered by most authorities to be purposive. The purpose of Section 171 is not merely to expand the collection of the archives or to fill the bookshelves of parliamentarians.

The purpose is to provide information to MP’s, Senators, the Cree and Naskapi authorities and the Minister with a biennial report on the implementation of the Cree-Naskapi (of Quebec) Act. In these circumstances it is reasonable to expect the Commission to conduct a comprehensive review of the implementation, to note achievements and failures, to consider the views of the people most directly affected by the Act and to make recommendations based upon its findings.

Considering that most of those making presentations to the Commission at its Implementation Hearings have done extensive preparation of their ideas and concerns, it is reasonable to expect that various officials of government will review the report and give serious consideration to its findings and recommendations.

It is encouraging to note that Minister Stewart, upon receiving the report did make a commitment that her department would respond to the report in detail. She repeated this commitment on two subsequent occasions. It is regrettable that departmental officials took almost a year and a half to actually carry out the Minister’s commitment and then only provided a superficial oral response. This response was actually made during the Special Implementation Hearings held during February 2000 in preparation for this report. The Commissioners hope that the current Minister, Honourable Robert Nault PC, MP. will ensure a timely and professional response to the community issues and concerns about implementation which are discussed in the present report. As discussed below (comments following Recommendation 7) those who make serious presentations and who raise legitimate concerns before a statutory commission are entitled to expect that, as a minimum, their concerns will be seriously considered and responded to in a timely, and appropriate manner.

On February 11, 2000, Mr. Jeff Moore, the then Director of the James Bay Implementation Office appeared before the Commission on behalf of the Department of Indian Affairs. At that time he provided brief oral responses to the recommendations contained in the 1998 Report of the Cree-Naskapi Commission. Of the 41 recommendations made, Mr. Moore asserted that 29 were either "not directly related" or "not necessary related" to the implementation of the Act. Because this assertion is part of so many of his responses we have noted it at the beginning of the response as ["not necessarily related"] rather than repeatedly quoting the same comment. (The original recommendations from the 1998 Report are shown in italics.)

Specific Responses of the Department of Indian Affairs

Recommendation # 1

ECONOMIC DEVELOPMENT

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

INFRASTRUCTURE

PLANNING AND MANAGEMENT OF DEVELOPMENT

REVENUE SHARING

["not necessarily related"]

Mr. Moore observed that training and infrastructure are being discussed under the Vennat-Namagoose process as are some of the capital requirements. He also said that in relation to Category II and III land-related issues and resource revenue sharing "Canada…definitely needs Quebec at the table."²

Comment:
Considering the importance which the communities ascribe to economic development as well as the lengthy and detailed recommendations provided, the response was disappointingly brief and revealed that no serious consideration had been given to the issue.

Recommendation # 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 governments fiduciary obligations."³

["not necessarily related"]

Mr. Moore stated that there are workshops and that relevant documents are made available on a regular basis to senior managers.⁴

Comment:
Here again the answer was perfunctory and revealed the on-going need for senior officials to be kept up to date on the rapidly evolving law in the areas of Aboriginal and treaty rights. Simply having documents available is not enough. Periodic workshops conducted by competent specialists would be a more effective approach.

Recommendation # 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." ⁵

["not necessarily related"]

Mr. Moore’s reply was that this recommendation was addressed in the sense that public service executives "are appointed based upon a number of factors including experience, knowledge, leadership and other skill sets which would be related to the duties of such positions."⁶

Comment:
The answer failed to address the specific concern and basically avoided dealing with the recommendation.

Recommendation # 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."⁷

["not necessarily related"]

Mr. Moore said that "since 1986 Canada’s policy is to include implementation plans with each treaty [or] agreement signed since then.⁸ He also noted that a joint Assembly of First Nations/Indian Affairs process is looking at implementation of treaties signed prior to the James Bay and Northern Quebec Agreement.

Comment:
It is commendable that the Department is trying to ensure proper implementation of treaties prior to the James Bay and Northern Quebec Agreement as well as Agreements made since 1986. The Commissioners hope that the government will seriously address the need for full and proper implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement and close the obvious gap. Mr. Moore’s response failed to address the issue of an independent Treaty Implementation Secretariat.

Recommendation # 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."⁹

Comment:
Mr. Moore’s response to Recommendation # 4 applied he said to Recommendation # 5 as well. Here again Mr. Moore failed to address the substantive issue.

Recommendation # 6

["not necessarily related"]

Mr. Moore observed that existing courts hear treaty and Aboriginal rights cases and inquired what value the creation of such a court would add to the judicial system.

Comment:
The response merely begs the questions. The recommendation was based upon the lengthy reasoning, contained in Chapter 2 of the 1998 Report, to the effect that the present system needed some improvements in terms of specilization, timelines, cost reductions and appointments. Regrettably, here again, the Department failed to respond to the issue raised, the analysis provided or the recommendation made.

Recommendation # 7

["not necessarily related"]

Mr. Moore said that he could foresee the Commission playing a role in such a process. He added that there had been no formal requests from either the Cree or the Naskapi for such a review.

Comment:
In actual fact the Operations and Maintenance Agreement signed on September 8, 1995 by the Cree and Canada provided for such a review. (A similar agreement was signed by the Naskapi and Canada in the same year.) Here, as in several responses, Mr. Moore observed that there had been no formal request. The Department’s view that presentations to the Cree-Naskapi Commission do not constitute formal requests is fallacious. This approach underlines the Department’s failure to understand the commitments it has already made as well as its remarkable lack of corporate memory. The Department must endeavour to understand what people making presentations to statutory commissions are in fact doing.

Where Parliament explicitly creates a Commission, provides for Commissioners to be appointed by order in council after recommendations by First Nations, authorizes and requires the Commission to report to the House and Senate, people rightly believe that their presentations to that Commission are as adequate and as formal as possible. To expect them to make the same presentations all over again to departmental staff is not reasonable. The Cree and Naskapi people expect that the Department will carry out its duties and responsibilities to respond to the issues and concerns which they have raised with the Commission. This issue is discussed further in the chapter of the present report on the Implementation of and Amendments to the Cree-Naskapi (of Quebec) Act. In addition, the Cree and Naskapi Nations had by resolutions at their general assemblies specifically called for such a review. DIAND was provided with copies of these resolutions.

Recommendation # 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."¹²

Mr. Moore stated that the recommendation had been implemented and that agreements on operations and maintenance had been reached to the satisfaction of all parties.

Comment:
Mr. Moore’s comment that the Operations and Maintenance Agreements are satisfactory to all the parties is not accurate. A number of the Cree nations appearing before the Commission pointed out that they did not consider the current operations and maintenance formula to be fair or satisfactory. In fact, the Cree Regional Authority and the communities, because of their cash flow requirements and because of the tight time frames imposed, are under considerable duress to sign the agreements as presented by the Department without the opportunity to have meaningful negotiations based upon demonstrable community needs. This issue is discussed in some detail in the chapter of this Report on Implementation of and Amendments to the Cree-Naskapi (of Quebec) Act.

Recommendation # 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."¹³

["not necessarily related"]

Mr. Moore said that the firearms legislation was being passed and that no amendments were foreseen.

Comment:
The Department should consider in detail the question of whether or not the firearms legislation constitutes an infringement of the Aboriginal and/or treaty rights of the Cree and Naskapi, and if so, whether it is justifiable. A appropriate level of consultation about any infringement is called for. As the Supreme Court has pointed out in several recent cases, negotiation is a better approach to these issues than litigation. These issues should be discussed with the Cree and Naskapi as soon as possible.

Recommendation # 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."¹⁴

["not necessarily related"]

Mr. Moore noted that some specific sections of the Northeastern Quebec Agreement were under review. He pointed out that Quebec and perhaps other parties would need to be involved in any broader review.

Comment:
The Commissioners believe that a review of the Agreements would provide an opportunity to consider the experience of the day-to-day application of the agreements over the past 25 years as well as a chance to reflect upon the impact of the 1982 Amendments to the Constitution relating to Aboriginal and treaty rights as well as the ensuing developments in jurisprudence around Aboriginal law. Such a review would also provide an opportunity to clarify the interpretation of various provisions of the Agreements and the obligations under those Agreements.

Recommendation # 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."¹⁵

Mr. Moore felt that this was within Cree-Naskapi Commission jurisdiction and noted that a tripartite agreement had been signed.

Comment:
Mr. Moore is partially correct. An agreement has been signed. Some concern exists regarding the need for clarification and resolution of police jurisdiction outside Category I lands.

Recommendation # 12

"The tallymen should be given powers to act as conservation agents for the entire territory."¹⁶

["not necessarily related"]

Mr. Moore said that it was Quebec’s responsibility and that no one had raised it formally.

Comment:
The same observation about raising issues "formally" applies here as applied in relation to the response to Recommendation #7. More specifically, Section 24.10 of the James Bay and Northern Québec Agreements explicitly provides for Canada and Québec to arrange for Crees to be trained and appointed as conservation officers. The James Bay and Northern Québec Agreement is a recognized treaty within the of section 35 of the Constitution Act 1982. To argue that something more formal is required is disingenious if not insulting. The Commissioners agree that Quebec must be involved and we are of the opinion that Canada should in its fiduciary role assertively press the interests of First Nations with the provinces and other parties when those interests are in jeopardy.

It is worth pointing out that in the James Bay and Northern Quebec Native Claims Settlement Act Parliament has explicitly stated in the fifth recital:

"AND WHEREAS Parliament and the Government of Canada recognize and affirm a special responsibility for the said Cree and Inuit;"

One may ask "does this mean anything?" At the very least it "recognizes and affirms" the existing fiduciary duty. The Commissioners feel that this duty requires the Government of Canada to make special efforts to ensure that Aboriginal and treaty rights are respected in letter and in spirit, not only by federal departments and agencies, but also by the provinces and other interests.

Recommendation # 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"¹⁷

Mr. Moore agreed that the recommendation was within the Cree-Naskapi Commission’s mandate. He noted that an environmental sectoral table had been set-up under the Vennat-Namagoose process and that Quebec would need to be involved at some point. He also observed that some questions regarding environmental matters were currently before the courts.

Comment:
Many issues have been referred to the Vennat-Namagoose process. The Commissioners will be interested in the results.

Recommendation # 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."¹⁸

Again Indian Affairs felt the policing issue was linked to the Cree-Naskapi Commission’s mandate and was being looked at under the Vennat-Namagoose process. On justice issues generally DIAND was prepared to discuss the issue with the Cree but was concerned that Québec needed to be at the table.

Comment:
As noted earlier the Commissioners consider that Canada should make a special effort to ensure that various third parties participate in the processes as appropriate. The Cree and Naskapi communities should also undertake initiatives to ensure the establishment of local justice systems.

Recommendation # 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."¹⁹

["not necessarily related"]

Mr. Moore stated that the land transfers were complete and that boundary issues could be discussed but that Québec had primary responsibility and so would have to be at the table. The Cree Nation has objected to the unilateral final transfer of category I A land without having resolved the boundaries and related issues.

Comment:
Once again, Canada ought to be facilitating getting all of the right players at the table in order that outstanding issues can be resolved effectively and in a timely fashion

Recommendation # 16 & 17

["not necessarily related"]

Mr. Moore felt that Quebec had the primary responsibility in each of these areas.

Comment:
Clearly these issues should have been resolved by the parties before the final transfer of Category I lands. As in other issues in which Mr. Moore saw the primary responsibility as resting with the Province of Quebec, the Commissioners feel that the "special responsibility" of Parliament and of the Government of Canada require that DIAND be more than a disinterested spectator where provincial responsibilities to the Cree and Naskapi are concerned.

Recommendation # 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." ²¹

["not necessarily related"]

Mr. Moore noted that both Canada and the Cree are now in the process of appointing negotiators.

Comment:
The Commission will monitor progress in this area with particular interest as the issue has been outstanding for a long period of time.

Recommendation # 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."²²

["not necessarily related"]

DIAND reported that the transfer is now complete and the name change has been approved.

Comment:
This is an area of progress which is encouraging.

Recommendation # 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."²³

["not necessarily related"]

Mr. Moore reported that DIAND had now entered into a dialogue with the Washaw Sibi Eeyou and had provided $25,000. for a study.

Comment:
Continued dialogue and sustained, adequate funding are needed in the short term. In the longer term, this work must lead to negotiation of all of the outstanding claims of the Washaw Sibi Eeyou. In their submission the Washaw Sibi Eeyou indicated that funding to a level of $75,000. was required in the short term.

Recommendation # 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."²⁴

["not necessarily related"]

Mr. Moore said that the Naskapi submitted documentation three years ago and that DIAND had asked for but not yet received additional information.

Comment:
Hopefully this file can be pursued with a little more vigour so that the claims can be resolved to the satisfaction of all parties on both sides of the border.

Recommendation # 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."²⁵

DIAND felt that this was a positive idea and within the Cree-Naskapi Commission mandate.

Comment:
It is interesting to note that Commission recommendations which involve the Cree are always considered by the Department as being within the Commission’s mandate whereas most recommendations directed to the Department are not. The degree of linkage to the letter of the Act seems to be secondary. Having said this, the Commission hopes that such a process will be undertaken by the Cree Nation.

Recommendation # 23

"The formal incorporation of the Oujé-Bougoumou Cree into the James Bay and Northern Quebec Agreement should be finalized."²⁶

["not necessarily related"]

Mr. Moore said that discussions involving Mistissini and Ouje-Bougoumou are already underway. Canada anticipates being formally asked to participate shortly.

Comment:
The Commission will continue to monitor this issue and to report upon it until it has been resolved. The problem of DIAND waiting for "formal" requests before addressing Commission recommendations is discussed in our comments on the departmental response to Recommendation #12.

Recommendation # 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."²⁷

Mr. Moore agreed that this is within the Commission’s mandate. He added that Ouje-Bougoumou is within the general Cree Operations and Maintenance Agreement and that funding adjustments have been made for 1998-1999 and for 1999-2000, which provided additional resources.

Comment:
The Commission will review this response with the community to ensure that the special requirements of Ouje-Bougoumou are being addressed. In addition, the Commission believes that the adjustment formula itself needs to be revised by the parties as was recommended by Ouje-Bougoumou.

Recommendation # 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."²⁸

["not necessarily related"]

Mr. Moore said that nothing had been done but the department would like more details and felt that Quebec definitely had a role to play.

Comment:
In situations where the Department needs additional information in order to address a recommendation, it should ask for the necessary information rather than waiting 16 months and then reporting that nothing has been done.

Recommendation # 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."²⁹

["not necessarily related"]

Mr. Moore said that education was primarily a Quebec issue but that DIAND has some obligations. DIAND had not been formally invited to participate in the discussions.

Comment:
As noted in previous comments (following recommendation #7) DIAND should not be waiting for additional "formal" invitations. As also noted previously, DIAND should be ensuring that Quebec responds as the issues of concern to the Naskapi and the Cree as part of the federal government’s fiduciary relationship.

COMMUNITY SPECIFIC RECOMMENDATIONS

Recommendation # 27 ( CHISASIBI)

"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." ³⁰

["not necessarily related"]

Mr. Moore felt that this was essentially a Quebec issue but that a resolution to the problem was not far off.

Comment:
The fidiciary responsibility of the federal government cannot simply be brushed off by saying that it is a "Quebec issue." Canada cannot be a spectator when Section 35 rights are involved. The Commissioners will continue to monitor this file. It has been outstanding for years and must be resolved if proper administration and control of Category I land and the timely and proper development of the Chisasibi airport are to take place.

Recommendation # 28 ( EASTMAIN)

"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."³¹

Indian Affairs felt that this might be within the Cree-Naskapi Commission mandate. DIAND is trying to deal with the issues in the context of the current negotiations on new perations and Maintenance and capital agreements.

Comment:
The Commissioners will review this issue with Eastmain officials.

Recommendation # 29 ( EASTMAIN)

"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."³²

["not necessarily related"]

Again Indian Affairs felt the issue was outside the Cree-Naskapi Commission mandate. The question was being investigated and some litigation is underway, Mr. Moore reported.

Comment:
This is the sort of issue that ought to be settled without the need to resort to litigation. It is the type of matter that, if the parties cannot settle it in a short time, would be suitable for Alternative Dispute Resolution.

Recommendation # 30 ( EASTMAIN)

"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."³³

["not necessarily related"]

Mr. Moore said that DIAND considered it an urgent matter for Eastmain and that his department was trying to secure funds.

Comment:
This recommendation was made to the Minister of Indian Affairs in October 1998. Since the Department felt that it was an urgent matter, one would expect them to have identified the necessary funds by now.

Recommendation # 31 ( EASTMAIN)

"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."³⁴

["not necessarily related"]

Mr. Moore reported that nothing had been done, that it was a matter for Quebec inasmuch as health services had been transferred to Cree Health and Social Services.

Comment:
As noted elsewhere Canada, as a fiduciary to the people of Eastmain, cannot simply be a spectator when they feel that serious problems are not being properly addressed.

Recommendation # 32 ( EASTMAIN)

"The Department of Indian Affairs and Northern Development should enter into discussions with Eastmain to develop and fund needed youth programs and facilities."³⁵

["not necessarily related"]

DIAND said that a negotiation table had been set up and a dialogue was underway.

Comment:
The Commission will monitor progress in this particular area.

Recommendation # 33 ( MISTISSINI)

"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."³⁶

["not necessarily related"]

Mr. Moore said that the Cree Regional Authority received a one-time payment of $6.5 million in 1997-98 under DIAND’s new housing policy. He added that Mistissini has access to CMHC housing programs as well as to DIAND’s capital grants. He felt that housing shortages were a larger problem of all First Nations and all Canadians, which would require larger solutions.

Comment:
The Commissioners believe that addressing the drastic housing shortage in Cree communities should be an urgent priority for the Department of Indian Affairs as well as for CMHC.

Recommendation # 34 ( MISTISSINI)

"The Grand Council of the Crees (Eeyou Istchee) and Cree local Governments and communities should begin discussions on the development of a Cree Constitution."³⁷

Mr. Moore said that this is a great idea.

Comment:
Mr. Moore always responded to recommendations which did not directly affect Indian Affairs by saying that they were within the Cree-Naskapi Commission mandate and that they were great ideas. This was no exception. It should be noted that the topic is being discussed informally among the Cree people.

Recommendation # 35 ( MISTISSINI)

"Transport Canada should conclude the environmental assessment of the Nitchiquon site as scheduled and carry out the necessary environmental clean-up."³⁸

["not necessarily related"]

Mr. Moore reported that the environmental assessment had been done and that clean-up was underway or complete.

Comment:
This is a positive and welcome development provided that the Cree Nation of Mistissini are satisfied with the environmental assessment and environmental clean-up.

Recommendation # 36 ( WEMINDJI )

"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."³⁹

Indian Affairs recognized that the Cree-Naskapi Commission might have some role. Mr. Moore said that there had been no request from the community so far and that Quebec had to be involved.

Comment:
Our comment after the response to recommendation # 7 applies in this case as well.

Recommendation # 37 ( WEMINDJI )

"A process should be established to address the urgent needs of the tallymen for control over unauthorized intrusion on their traplines and hunting territories."⁴⁰

["not necessarily related"]

Mr. Moore stated that the issue had not been raised with the Department, that the Department needed more information and the Quebec would have to be involved.

Comment:
The role and rights of tallymen are recognized in Section 24 of the James Bay and Northern Quebec Agreement. The letter, spirit and intent of this section should be respected by Canada and Quebec.

Recommendation # 38 ( WASWANIPI )

"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."⁴¹

["not necessarily related"]

Mr. Moore felt that it could be addressed within the negotiations on community centres (see recommendation # 32).

Comment:
These needs are increasingly acute. The Commission will continue to monitor the situation.

Recommendation # 39 ( NEMASKA )

"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."⁴²

["not necessarily related"]

Mr. Moore reported that discussions had been started but were now stalled. Mr. Moore also said that he did not think that Canada had any legal obligation but that a negotiated resolution of the matter was desirable.

Comment:
Mr. Moore’s desire for a negotiated resolution is commendable however the department will need to make a commitment of resources before the negotiations can be successfully concluded. Nemaskahas fulfilled its obligations under Section 4, Annex 1, part 7.4 of the James Bay and Northern Quebec Agreement. Section 4 by necessary implication requires negotiations which of course must be funded. This process must be commenced as soon as possible.
The permanent settlement of Nemaska within Category 1 lands including the costs of the access road must be fund by Canada and Quebec.

The permanent settlement of Nemaska

Recommendation # 40 ( NEMASKA )

"Old Poste should be designated as a historic site, since it has rock paintings and numerous other features of historic interest."⁴³

["not necessarily related"]

Mr. Moore said that there had been no request from the community but that perhaps Heritage Canada should be approached.

Comment:
The Commission agrees that Heritage Canada should designate Old Poste as a historic site.

Recommendation # 41 ( NEMASKA )

"Quebec should waive stumpage fees for timber used in developing the Old Poste site."⁴⁴

["not necessarily related"]

Indian Affairs felt that this was a matter for Quebec to resolve.

Comment:
Stumpage fees for timber used for personal and community use should be waived.

The Cree-Naskapi Commission submits the following recommendations with the objective that the federal, Cree and Naskapi authorities will take the appropriate and necessary measures to ensure the enhancement and advancement of local Eeyou government and Eeyou rights:

General Recommendations

1.    The Cree and Naskapi Nations develop and implement a project, with federal support, to gather oral and written accounts of the making of the James Bay and Northern Quebec Agreement, Northeastern Quebec Agreement and the Cree-Naskapi (of Quebec) Act in order to promote and enable a better understanding of the spirit, intent and meaning of the Agreements and the Act.

2.    The Government of Canada, Cree Nation of Eeyou Istchee, and the Naskapi Nation of Kawawachikamach redefine and determine fair and just relationships on the basis of the meaning, spirit and intent of the James Bay and Northern Quebec Agreement, Northeastern Quebec Agreement and the Cree- Naskapi ( of Quebec ) Act.

3.    Canada, Cree Nation of Eeyou Istchee and the Naskapi Nation of Kawawachikamach negotiate appropriate legislative, judicial and administrative including fiscal measures for the proper implementation and enforcement of the terms and provisions of the James Bay and Northern Quebec Agreement, Northeastern Quebec Agreement as well as the Cree-Naskapi ( of Quebec ) Act. These measures should include appropriate legislation, relationships, structures, processes, procedures and resources. The terms and provisions of the James Bay and Northern Quebec Native Claims Settlement Act should be reviewed to ensure that the Agreements including subsequent amendments are approved, given effect, and declared valid.

4.    The terms and provisions of a Treaty Implementation Act be determined by the parties concerned. ( The Treaty Implementation Act was contemplated in recommendation No. 5 of the 1998 Report of the Commission. )

5.    The Government of Canada, Cree Nation of Eeyou Istchee and the Naskapi Nation of Kawawachikamach review and consider the findings and recommendations of the past reports of the Cree-Naskapi Commission. These authorities should respond comprehensively with appropriate action and measures to the past recommendations of the Commission.

6.    The Government of Canada should introduce into the House of Commons and the Senate a "Policy Management Accountability Act" to ensure that the policy decisions made by the Cabinet as well as by Ministers are implemented as intended on a timely basis. Compliance with this legislation should be subject to the regular scrutiny of a central agency as well as to a Parliamentary Committee.

Ouje-Bougoumou Eenouch (Cree Nation)

7.    The Government of Canada, the Grand Council of the Crees(Eeyou/Istchee) and Ouje-Bougoumou Eenouch engage in a meaningful process for the full and proper implementation of the Ouje-Bougoumou/Canada Agreement signed on May 22, 1992. In this regard, the parties concerned should conclude a Complementary Agreement, through a treaty-making process, that would formally incorporate the Ouje-Bougoumou Cree Nation into the James Bay and Northern Quebec Agreement. While the Commission recognizes that the participation and consent of the Government of Quebec is essential, Canada must exercise its fiduciary responsibilities and ensure the protection of the rights and interests of the Ouje-Bougoumou Eenouch in this process.

8.    The Department of Indian Affairs and Northern Development (DIAND), Grand Council of the Crees ( Eeyou Istchee ) and the Ouje-Bougoumou Cree Nation review the funding arrangements for capital projects of Ouje-Bougoumou to ensure compliance with the Ouje-Bougoumou/Canada Agreement. This review should include an understanding and resolution on the outstanding claim of $1.7 million received by the Ouje-Bougoumou Cree Nation for capital projects after the 1994-95 fiscal year and apparently owed to the Cree Nation of Eeyou Istchee by the DIAND.

Naskapi Nation of Kawawachikamach

9.    The Naskapi Nation of Kawawachikamach develop an Eeyou-oriented and community- based local justice system.

10.    Canada and the Naskapi Eeyouch commence discussions and negotiations for a local justice system that includes Eeyou values and principles.

11.    Canada and the Naskapi Nation of Kawawachikamach resolve all policing issues including the recovery of costs for the new police station and its upgrading.

12.    The Government of Canada exercise its fiduciary responsibility and protect the interests and rights of the Naskapi Eeyouch in the negotiations respecting regional self-government with the Inuit of Nunavik.

Eeyou Self-Government

13.    Cree and Naskapi Nations determine and/or clarify the source, nature, scope and implementation of the inherent right of Eeyou self-government.

14.    The Cree and Naskapi Nations ensure the compatibility of their treaties and enabling legislation with their understanding of the inherent right of Eeyou self-government.

15.    The Cree Nation of Eeyou Istchee, Naskapi Nation of Kawawachikamach and the Government of Canada engage in an effective process of making Eeyou rights work in the redefinition of Eeyou self-government.

16.    The Government of Canada, Cree Nation of Eeyou Istchee and Naskapi Nation of Kawawachikamach undertake a broad initiative aimed at redefining and implementing Eeyou self-government. This initiative should take into account the following:

(i)        vision of self-government as determined by the Eeyouch;

(ii)       exercise of right of self-determination;

(iii)      evolution, present practice and needs of Eeyou local government;

(iv)      Eeyou principles and values;

(v)       full expression and exercise of inherent right of Eeyou self-government;

(vi)      redefinition and establishment of just and fair relationships;

(vii)     legitimacy, power and resources; and

(viii)    conformity with aboriginal law, Eeyou traditional law and customs.

James Bay and Northern Quebec Agreement and Northeastern Quebec Agreement

17.    The Government of Canada, Grand Council of the Crees (Eeyou/Istchee) and the Naskapi Nation of Kawawachikamach conduct a thorough and meaningful review of the James Bay and Northern Quebec Agreement ( JBNQA ) and Northeastern Quebec Agreement ( NEQA ) to determine a full understanding on the meaning, interpretation, spirit and intent of these treaties.

18.    In the review of the JBNQA and NEQA, the Government of Canada, Cree Nation of Eeyou Istchee and the Naskapi Nation of Kawawachikamach ensure that the terms and provisions of these Agreements evolve through appropriate measures that take into account the present situation, needs and aspirations of the Cree and Naskapi Nations and peoples.

19.    The Government of Canada, Grand Council of the Crees (Eeyou/Istchee) and the Naskapi Nation of Kawawachikamach determine by mutual agreement an appropriate reporting mechanism on the implementation of the JBNQA and NEQA.

Operations and Maintenance ( O&M ) Funding

20.    The Department of Indian Affairs and Northern Development and the Grand Council of the Crees (Eeyou/Istchee) review the present ‘Operations and Maintenance Funding Transfer Agreement’ to take into account actual and present needs and concerns of the Cree Nation of Eeyou Istchee. In particular, the funding arrangement and formula of the current O&M funding agreement should be reviewed and updated to take into account the present needs, situation and concerns of Eeyou local governments and Eeyou regional authorities.

21.    The Government of Canada and the Cree and Naskapi Nations should redefine fiscal relations that would support effective, orderly and meaningful self-government.

Housing

22.    The Department of Indian Affairs and Northern Development and the Cree and Naskapi authorities review and determine present housing needs including renovation of existing houses of the Cree and Naskapi communities. The Department and Eeyou authorities should then determine and allocate resources to meet these needs.

23.    The Department of Indian Affairs and Northern Development and Health Canada respond to the claim submitted by the Cree Nation of Chisasibi on housing needs and consequent illnesses associated with the present state of housing.

Economic Development and Employment

24.    Canada and the Grand Council of the Crees ( Eeyou Istchee ) review and properly implement Section 28 (Economic and Social Development -Cree) of the James Bay and Northern Quebec Agreement to alleviate the Cree situation respecting employment and economic development.

Capital Projects

25.    Canada and the Grand Council of the Crees ( Eeyou Istchee ), in the current Vennat-Namagoose process, take into account the capital projects identified and needed by Cree communities.

Firearms Control Legislation

26.    The Eeyou local governments and administrations be provided with adequate resources and support for the proper implementation of the federal firearms control legislation.

Specific Community Concerns

27.    The Government of Canada and Grand Council of the Crees ( Eeyou Istchee pursue the requests of the Cree First Nation of Waswanipi and Nemaska First Nation, for an independent inquiry in the case of Nemaska and the possibility on an inquiry or research in the case of Waswanipi, respecting the circumstances and aftermath of their relocation.

28.    The Department of Indian Affairs and Northern Development take into account the special circumstances of Whapmagoostui in the review and determination of the needs, projects and funding for the Cree community.

29.    The Governments of Canada and Quebec establish an arrangement for the funding of specific capital works projects in collaboration with the local governments of Whapmagoostui and Kuujjuarapik and in accordance with the needs and aspirations of the local communities.

30.    The Department of Indian Affairs and Northern Development ( DIAND ) and Washaw Sibi Eeyou initiate a meaningful process with appropriate measures to ensure the future and welfare of the Washaw Sibi Eeyou as envisaged and determined by the said Eeyouch. In particular, funds for the completion of the plan of action and study on the feasibility of various options for the future of the Washaw Sibi Eeyouch must be provided by the DIAND.

31.    The Government of Canada assist the Cree Nation of Chisasibi in the resolution of the status of Block ‘D’ and in the allocation of appropriate funds for the proper operation and maintenance of the airstrip.

Implementation of and Amendments to the Cree-Naskapi (of Quebec) Act

32.    The Grand Council of the Crees (Eeyou/Istchee) and the Naskapi Nation of Kawawachikamach establish and implement a process for the determination of:

(a)    appropriate amendments to the Cree-Naskapi ( of Quebec ) Act; and

(b)    a proper implementation process for the Cree-Naskapi ( of Quebec ) Act.

The Grand Council of the Crees ( Eeyou Istchee ) and the Naskapi Nation of Kawawachikamach should determine the role of the Cree-Naskapi Commission in this process which should conclude with a submission to the federal Cabinet within a two (2) year period.

(The Commission has prepared a discussion paper entitled ‘Implementation of and Amendments to the Cree-Naskapi ( of Quebec ) Act.’)

33.    The Government of Canada and the Cree and Naskapi Nations, forthwith, take the appropriate measures, within their respective jurisdictions and responsibilities, to ensure that the processes and procedures of local government elections reflect the will, needs and aspirations of the Eeyouch. In this regard, the Commission has prepared a discussion paper entitled ‘Local Government Elections of the Cree and Naskapi First Nations.’ The recommendations stated in the said discussion paper are reproduced as Schedule of the present report and constitute as part of the recommendations of the Commission.

34.    The Government of Canada recognize the principle that the Cree-Naskapi ( of Quebec ) Act cannot be unilaterally amended by the federal government. Any amendment to the terms and provisions of the Act requires, through negotiation the agreement and consent of the Cree and/or Naskapi parties.

During the sixteen years since the proclamation of the Cree-Naskapi (of Quebec) Act there have been many changes. The Cree and Naskapi communities have grown and developed. Local governments have evolved and advanced. A Cree Nation and a Naskapi Nation consciousness have largely replaced old "band" conceptions of the Indian Act. The Agreements have been a source of much of this development. At the same time the Cree Nation contends that the federal and provincial governments have failed to carry out many of their responsibilities and obligations under the provisions of the James Bay and Northern Quebec Agreement. The Honourable Robert Nault, Minister of Indian Affairs has stated on many occasions that he wants to ensure that treaties and agreements are properly implemented. Many of the more recent land claims agreements contain dispute resolution mechanisms. The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement do not. Far too many of the terms of the James Bay and Northern Quebec Agreement are the subject of dispute and become the subject of litigation. It is becoming apparent that the Supreme Court of Canada, and to an ever increasing extent the courts generally are the leading edge in ensuring that the Aboriginal and treaty rights guaranteed by the Constitution are respected in practice. Governments almost invariably fight against this with great tenacity. It is time that the federal government assumed a leadership role in supporting the Constitutional rights of Aboriginal Canadians and indeed of all Canadians instead of persisting in a denial of these rights.

Whenever a complex agreement such as a land claim settlement or a treaty is signed it is to be expected that there will be legitimate disagreements about the interpretation of its provisions. Some form of dispute resolution mechanism is needed. At the present time the evidence shows that only the courts have sufficient authority to provide definitive resolution to these disputes coupled with the ability to enforce their decisions. For this reason the Cree-Naskapi Commission believes that if Minister Nault is serious about the need to honour the treaties in spirit and intent, he must do more than issue statements of good intention. We believe that the three recommendations developed in our 1998 Report can provide the basis for guaranteeing effective implementation. Those three recommendations were:

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

2. 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 statute that would serve as an authoritative guide for government officials in carrying out their responsibilities under 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.

3. 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.

It is increasingly apparent that Eeyou governance is first and foremost about rights, values, culture and change. The implementation of Eeyou governance, at the local level, will continue to be guided by the convergence of traditional and contemporary practices. The challenge of federal, Cree and Naskapi authorities is to articulate and advance effective strategies, measures and changes for the betterment of Eeyou local government.

Finally the Commissioners believe that there are many positive signs that the parties are willing to resolve outstanding issues. The Minister’s apparent commitment at a personal level is most encouraging. The challenge will be to convert this personal intention into concrete action at the departmental level. The simple fact is that the Minister, like his predecessors will be gone in a year or two. If the process for genuine, good faith implementation of treaties which he seeks is to become more than rhetoric, he must ensure that strong, specific and enforceable legislation is put in place - legislation which will guarantee the constitutional rights of Aboriginal people and uphold the integrity of Canada as a treaty signatory after he is gone.

In respect to the local government elections of the Eeyou (Cree and Naskapi Nations) the Cree-Naskapi Commission recommends the following measures:

1. New funding sources and arrangements should be determined by the Cree leadership and federal government for the process respecting the contestation of election results contemplated by Section 78 of the Cree-Naskapi (of Quebec) Act. In particular, funding resources should be made available for individuals contesting election results, public officials and elected officials so that they may have access to the appropriate authorities for the administration of justice.

2. The local authorities and members should conduct a full and comprehensive review of Part II on Band Elections (Sections 63 to 78) of the Cree-Naskapi (of Quebec) Act as well as local election by-laws. This review should address the concerns of the communities, findings and conclusions of the Commission. In particular, this review should reflect the will of the people and take into account the application of customs and traditional law.

3. The review of the present general ‘band’ election process should address the concerns and questions raised about the fairness and appropriateness of the present system of a simple majority. Furthermore, the principle of majority should be clarified in the process respecting general band elections in accordance with the will, customs and traditional law of the communities.

4. The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement should be reviewed and if necessary amended to:

   1. recognize and affirm traditional laws, practices and customs relating to elections,
   2. to conform to Cree and Naskapi needs and aspirations in relation to elections.

5. Part II (Elections) of the Cree-Naskapi (of Quebec) Act and existing First Nations (Band) By-laws should be reviewed and amended to:
   1. recognize and affirm traditional laws, practices and customs relating to elections,
   2. provide for a simplified local process and procedure for establishing and updating electoral lists,
   3. enable the Cree and Naskapi Nations to enact legislation for all matters relating to eligibility to vote and hold office,
   4. enable the Cree and Naskapi Nations to provide for election result contestation process and procedures by legislation,
   5. enable the Cree and Naskapi Nations to provide for calling of election process for the Chief and/or any other member of the Council,
   6. enable the Cree and Naskapi Nations to adopt procedures other than simply plurality for election of Chief(s) and/or Councillor(s),
   7. enable the Cree and Naskapi Nations to enact legislation relating to all other matters concerning elections,

6. The Department of Indian Affairs and Northern Development should negotiate with the Cree and Naskapi an Electoral Process Funding Agreement which would provide funds for:
   1. the review and revision of relevant provisions of the Cree-Naskapi (of Quebec) Act, the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement,
   2. the development and revision of community-specific Election By-laws, as well as pre-election information workshops,
   3. legal advice to bands, and (independently) to Returning Officers,
   4. access to the process for election result contestation,
   5. on-going training for electoral officers,
   6. the establishment and operations of a local process for the up-dating of the community and elector lists,
   7. the establishment and maintenance of a local process for the up-dating of the community and elector lists.

7. Cree and Naskapi Nations should hold community workshops to provide for input from community members in the processes of developing and revising By-laws and relevant sections of the Cree-Naskapi (of Quebec) Act. They should also provide pre-election workshops for candidates, election officials and interested parties on the electoral process.

8. The Cree-Naskapi Commission should continue to provide election observers at the request of the communities and information concerning its role (including limitations) in the electoral process.

9. Canada and the Cree and Naskapi governments should review past Cree-Naskapi Commission reports on representations dealing with elections as well as the specific findings, conclusions and recommendations in those reports.

1. Tennyson, A, "Ulyises" from The New Oxford Book of English Verse, Oxford Press, Oxford, 1972. P. 646
2. Letter from Grand Chief, Dr. Ted Moses to the Chairman of the Commission, dated March 6, 2000
3. Cree-Naskapi (of Quebec) Act Section 21 (j)
4. [1996] 2 C.N.L.R. 77 (S.C.C.)