The Cree-Naskapi Commission has been in operation for twenty years. Although the Cree-Naskapi (of
Quebec) Act, which created the Commission, was passed in 1984, the first commissioners were not
appointed until February of 1986. Since that time the Commission has submitted nine biennial reports
on the implementation of the Act. This current report is the tenth. In addition, the Commission has
investigated many individual complaints, prepared several major discussion papers, appeared before
Parliamentary Committees and has made innumerable presentations on various aspects of the Act. To
put the period covered into some perspective, there have during the same period been ten Ministers of
Indian Affairs and Northern Development. The list includes: Crombie, McKnight, Siddon, Cadieux,
Irwin, Stewart, Nault, Mitchell, Scott and Prentice.

Looking back over that period one cannot help but notice four things:

It is perhaps worthwhile, before considering the specific issues addressed in the current report, to reflect briefly upon these four observations.

1986–2006: Years of Change

If one looks back to 1986 and before, and compares the life of the Cree and Naskapi communities then with the life of those same communities today, the changes are obvious and dramatic.

Clearly the overall standard of living has improved. Health in general has improved with, for example, longer life expectancy and a decline in infant mortality. On the other hand diabetes has come to be a major problem. Suicide and attempted suicide, especially among young people, has become a tragic concern in some communities. Levels of educational attainment have risen dramatically. Many successful new economic enterprises are in operation. So, in spite of some serious challenges, the past twenty years have seen a very significant improvement in the standard of living.

While living standards are important, there are other social indicators of equal, perhaps greater, importance. For example the Cree and Naskapi languages are strong and vibrant with most young people speaking their language fluently while also being fully conversant in English and/or French. This is unfortunately not the case in many other communities across the country. Also, unlike the experience in many other First Nations, there is no significant out-migration of population in the communities. In fact, there has been a comparatively large growth of population in recent years. This growth shows no signs of slackening. The high rate of formation of new families does put pressures on housing supply, education facilities and many other programs, but it also bodes well for the long term strength and viability of the Cree and Naskapi Nations. In the area of governance, Cree leaders are pursuing new initiatives to empower Cree Nation Government in ways that are consistent with Cree values and traditions but which also meet the challenges of governance in Eeyou Istchee in the 21st century. The Naskapi Nation is turning its attention to its own jurisdictional autonomy as its Inuit neighbours begin a new process of regional governance.

The Relationship with the Federal and Provincial Governments

The relationship between the Cree and Naskapi governments on the one hand and the governments of Canada and Quebec on the other, while showing some signs of solid improvement in recent years, continues to be an area of concern and of occasional dysfunctionality. In the 1998 Report of the Cree-Naskapi Commission we reported on a number of generic problems which bedevil governments especially in their relationships with First Nations. Identified as concerns at the time were the issues of limited collective awareness, limited corporate memory, and ministerial impotence. Associated with the matter of ministerial impotence was the need for bureaucratic accountability mechanisms in the area of policy management that are as strong as those in place in the area of financial management. Finally the Commission has on many occasions stressed the need for tools to ensure that Agreements and Treaties

are implemented in a timely and comprehensive manner and that disputes concerning their provisions are resolved without a recourse to confrontation and litigation.

The remarkably short time in office of Ministers as noted above, highlights one of the reasons why they have had such difficulty in bring about positive change and why in fact their specific decisions usually have less than optimal impact on changing the policy direction of the department. With a few exceptions, the trend has been that Ministers are evolving into “Mini Governors General,” in the sense that they act as figureheads for a large and complex bureaucracy in which most of the real decisions are made by others. Despite their limited role in the actual decision making, it is the Ministers who are accountable in the House of Commons as well as with First Nations, the media and the public when those decisions turn out to be wrong.

The fact that real decisions are frequently made in practice by unelected and all too frequently less than truly accountable bureaucrats is a growing challenge for our democracy. This is hardly surprising given that, in the two years or so that Ministers are in office, they cannot hope to understand the historical and legal context in which Indian Affairs policy is made. The basic facts of the numerous treaties and land claims Agreements, the rapid evolution of Aboriginal law, the cultures and traditions of the more than six hundred First Nations for whom they are responsible are all matters about which even a rudimentary knowledge would require their full attention during their average two years in office. It is rare indeed for a Minister to be appointed who already has any significant knowledge of these matters. It is only with broad substantive knowledge and understanding that a Minister can begin to comprehend the full significance of the many policy and program decisions which he or she is asked to approve. It is in this environment that officials become the de facto decision makers.

Regrettably it is commonplace to hear senior officials making comments such as “the Minister hasn’t got a clue” or, “It’s hard to keep him on message” or that “he’s a loose cannon,” etc. This perceived problem is being made worse by having communications staff in each department who report to central communications officials in order to “ensure consistency in messaging” throughout the government. Ministers rarely say a word that hasn’t been scripted or at least pre-approved by unelected “communications specialists.” Typically these so-called specialists see themselves as keeping the Minister from “getting into trouble.” In fact they emasculate speeches, press releases etc. to the point that they frequently contain little of substance and at a minimum are crafted to include enough ambiguity to allow for future denial of any commitments which may have become inconvenient. Far from “keeping the Minister out of trouble,” this sort of calculated meaninglessness frequently makes Ministers appear uninformed, indecisive or simply liars.

Senior officials typically will agree on every word in a ministerial decision before the Minister ever sees it. All too often reasons will be found to justify past mistakes and to defend the status quo. In any case the final document placed before the Minister will most often reflect the thinking of only the senior officials, with options crafted so that only their recommended option is likely to be approved.

This approach may at times escape the notice of the public and the media because it has become almost the norm in the context of a political discourse which is too often geared to the avoidance of public debate on difficult choices. The “communications specialist” will strive for policy output that is as ambiguous as possible and which requires the minimum in terms of advocating, explaining or defending it in public. The current cliché stresses the desirability of “staying below the radar.”

First Nations are confronted by these twin challenges of limited ministerial control of policy and communications-based policy outputs in the context of decades of treaties broken, promises not kept and Agreements repudiated in whole or in part. They have come to accept that the battle against these barriers to change as a normal part of their task. The larger challenge for Canadians is to find ways of keeping a large and complex government democratic in more than merely symbolic ways.

The Vision of the Treaty Makers

The leaders who fought the unilateral decision of Premier Bourassa in 1971 to undertake the massive James Bay Hydroelectric Development Project without any consideration of the rights of the people whose land it had been since time immemorial, the leaders who launched the court action to block that development, the leaders who negotiated the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement and subsequently the terms of the Cree-Naskapi (of Quebec) Act were visionaries. They saw Cree and Naskapi Nations that would be strong, viable nations in control of their own destinies whose values and traditions would be practiced as effectively in the context of the twenty first century as they had been for millennia before. They negotiated Agreements under which Canada and Quebec agreed to support their rights and interests as partners, Although some of the former leaders are gone and a new generation of leaders gradually takes their places, the Cree and Naskapi leadership continues the fight to implement the letter and the spirit of the Agreements as well as the full intent of the Act. New arrangements are made as needed to address today’s realities. The 2002 Agreement

Concerning a New Relationship Between le Gouvernement du Quebec and the Crees of Eeyou Istchee is an example of such a new arrangement. The current negotiations with the federal government led by Bill Namagoose and Raymond Chrétien are another. The Naskapi are now engaged in examining their own jurisdictional needs in view of the development of regional government by the Inuit of Northern Quebec.

The Treaty Makers had strong visions of what it meant to be the Cree Nation or the Naskapi Nation in the context of the pressures created by Quebec’s unilateral decisions of the time. Today three and one half decades later, a new generation is challenged to lead in the evolution of the Treaty Makers’ vision to make it a blueprint for action in the twenty first century. The old concept of “Bands”in the Indian Act sense is gone. The “Band” as envisioned in the Cree-Naskapi (of Quebec) Act is in need of some fundamental change. The communities have raised many specific suggestions for amendments to the Act which we have recommended in previous reports. What is needed now is a process of looking at what the vision of the Cree Nation and the vision of the Naskapi Nation mean today and into the future. What it means in terms of governance structures and processes, what it means in terms of language and cultural priorities, what it means in terms of economic and social priorities. Determining what this vision will be or even that a visioning process is needed is not for outsiders to decide. It is the Cree people and the Naskapi peoples to make those decisions. It is for others to accept and support the exercise of these basic rights of self-determination.

Sharing the Lessons Learned

Much of what has taken place in the last thirty-five years of Cree and Naskapi history can be of enormous value as scores of First Nations across Canada work to achieve fair and just settlements of their land claims and their efforts to restore governance structures and processes consistent with their own values and needs. Ways need to be found to share the Cree and Naskapi experience where and when it can be helpful to other First Nations. Many of the present and past leaders have shared their insights and would be happy to do so in future. The self-government and land claims support which the Department provides could increase its effectiveness by enabling the Cree and Naskapi (as well as a number of other nations) to share their experience in workshops, presentations and short term consultancies with nations currently engaged in land and/or governance negotiations.

The Cree-Naskapi Commission has now been in existence since December 1, 1984 when Part XII (Cree-Naskapi Commission) of the Cree-Naskapi (of Quebec) Act came into force by proclamation of the Government of Canada. However, the first Commissioners were not appointed until February, 1986. Consequently, the year 2006 represents the 20th anniversary of the operations of the Cree-Naskapi Commission.

The Cree-Naskapi (of Quebec) Act is the “special legislation” contemplated by section 9 of the James Bay and Northern Quebec Agreement (JBNQA) and section 7 of the Northeastern Quebec Agreement (NEQA). This special legislation was enacted by Parliament and assented to on June 14, 1984.

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 1A lands allocated to them.” ¹

Section 7 (Local Government over Category 1A-N Lands) of the Northeastern Quebec Agreement provides for similar undertakings respecting local government for the Naskapis of Quebec on Category 1A-N lands allocated to them.

The Cree-Naskapi Commission established by section 158 of the Cree-Naskapi (of Quebec) Act has a duty to “prepare biennial reports on the implementation of this Act” ² to the Minister who “shall cause the report to be laid before each House of Parliament.” ³

The present report constitutes the tenth biennial report to the Minister pursuant to sub-section 165 (1) and in accordance with sub-section 171 (1) of the Cree-Naskapi (of Quebec) Act.

The Commission conducts Special Implementation Hearings in order to prepare for its present report. These hearings, conducted in Montreal on February 13–16, 2006, provide an opportunity for the representatives of the Cree and Naskapi Nations and the Government of Canada to express their concerns and to discuss their issues. The findings and tone of the report are based on the Commission’s understanding and analysis on the issues and concerns raised in these hearings.

The Commission reports also on the implementation of the JBNQA and the NEQA as particular sections of these Agreements contemplate the powers and duties of the local governments of the Cree and Naskapi First Nations. The Commission reports on the implementation of these Agreements in virtue of paragraph 21 (j) of the Act which stipulates that the objects of a band are “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.” ⁴

With respect to its mandate, the Commission has commented further in Chapter Two of the present report.

Over the past years, the Commission has reported on specific issues and concerns of the Cree and Naskapi Nations. Consistent themes have evolved from these issues and concerns. These themes include important needs such as:

In Chapter Four (Issues and Concerns of the Eeyou (Cree Nation) of Eeyou Istchee), Chapter Five
(Naskapi Nation of Kawawachikamach) and Chapter Seven (Recommendations of the Cree-Naskapi
Commission) of its present report, the Commission repeats some of these themes.

Since its response to the 2002 Report of the Commission, the Department of Indian Affairs and
Northern Development has provided a comprehensive response to the recommendations of the
Commission. The responses of the Department represent an entirely different approach in its dealings
with the Commission. (Before its comprehensive response to the 2002 Report, the Department failed to
deal substantively with the recommendations of the Commission.) It appears that the Department
wants to improve its relations with the Commission as well with the Cree and Naskapi communities.
Consequently, the Commission reports and comments on these responses of the Department in its
biennial reports. Chapter six of the present report outlines and comments on the response of the
Department of Indian Affairs and Northern Development to the 2004 Report of the Commission.
In this manner, the Cree and Naskapi Nations are aware of the Department’s responses to their
particular issues and concerns. The Commission hopes that the communities concerned will follow-up
on these matters.

In addition, the Commission presents certain important perspectives on Cree and Naskapi governance
in its biennial reports.

Chapter Three (Eeyou Law and Eeyou Governance) of the present report discusses the existence and
continuity of Eeyou law, customs and traditions and the need for formal recognition by the Government
of Canada for these traditional laws.

In its conclusions (Chapter Eight of the present report), the Commission concludes that the
Government of Canada has a legal, as well as a moral and political, duty to act in the best interests of
Aboriginal peoples.

End Notes

The duties of the Commission are spelled out in section 165 of the Cree-Naskapi (of Quebec) Act which says:

Since Commissioners were first appointed in 1986, the Cree and Naskapi communities have raised issues, at almost every hearing, that arise from either the implementation of the James Bay and Northern Quebec Agreement (JBNQA) or the Northeastern Quebec Agreement (NEQA). This is of course in addition to the many matters that flow from the provisions of the Cree-Naskapi (of Quebec) Act. That the Agreements and the Act should both be sources (often jointly) of issues brought to the attention of the Commission is hardly surprising given that the Agreements committed Canada to introduce the Act into Parliament and that the Act itself explicitly states,

Despite the Commission’s responsibilities in relation to “the exercise or non-exercise of powers” and “the performance or non-performance of a duty” under the Act as well as the bands’ powers and duties as described in section 21. (j) above, the Department of Indian Affairs and Northern Development has, from 1986 to the present time taken the position that the mandate of the Commission does not extend to consideration of matters arising under the Agreements. This view has been applied in practice repeatedly by the Department particularly when it has refused to respond to Commission recommendations which referenced the Agreements on the grounds that they were “beyond the explicit legislated mandate of the Commission”.

Most recently however the Department has begun to address such recommendations while still denying that the Commission has jurisdiction. The most recent statement of the Department’s view came during the 2006 Special Implementation Hearings in Montreal. On February 13, 2006, Michel Blondin, Director of the James Bay Implementation Office, said:

“ … as you know, INAC’s view has been that the Commission does not have jurisdiction
to investigate and make recommendations on the implementation of the James Bay and
Northern Quebec Agreement and the Northeastern Quebec Agreement, and that is still
the federal position.” ³

That may indeed be the federal position when speaking in Canada however the government takes the opposite position when extolling its accomplishments at the United Nations. For example, when explaining how well Canada implements its agreements with Aboriginal peoples and how it resolves disputes arising out of those agreements the federal government frequently cites the role of the Cree-Naskapi Commission. During a presentation to the United Nations Seminar on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Peoples, held December 15 to 17, 2003, Canada’s representative said:

“The first of the modern treaties, the James Bay and Northern Quebec Agreement (JBNQA),
provides for a monitoring mechanism, namely the Cree-Naskapi Commission.” ⁴

When informed of this obvious contradiction at the February 13, 2006 hearing, Mr. Blondin replied:

“I have someone to kill, that’s all. That was just a joke – it’s a joke.” ⁵

Interestingly the presentation to the United Nations quickly disappeared from the Department’s Web site where it had been available to the public for the previous two years. The Commissioners had not mentioned to Mr. Blondin that a much more explicit statement of the government’s position was also on the Department’s official website and remains there as this report is being written. This statement reads as follows:

“Part XII of the Cree-Naskapi (of Quebec) Act provided for the creation of the Cree-Naskapi
Commission to privately investigate complaints arising from the James Bay and Northern
Quebec Agreement, the Northeastern Quebec Agreement or the Cree-Naskapi (of Quebec)
Act implementation or lack thereof.” ⁶

In any event, the Commission will continue to address issues raised by individuals, communities and
governments whenever they relate to the Act or to relevant provisions of the Agreements.

End Notes

Introduction

The Eeyouch (Cree) exist as a people and as a nation with their aboriginal and treaty rights, basic human rights and fundamental freedoms.

The Eeyouch of Eeyou Istchee (Cree Nation of the Cree Territory) consider themselves as a self-governing people who were, before contact with the European peoples, fully independent and an organized society occupying and governing their land as their forefathers have done for centuries. Although this self-governing status was greatly diminished by the encroachments of outside governing regimes, it managed to survive in an attenuated form.

The sovereign claims and colonial regimes of the European powers were established in virtual disregard of the fact that Eeyou Istchee (Cree traditional and historical territory) was already occupied and used by self-governing Eeyou people.

For Eeyouch, there is no more basic principle in Eeyou history and relations than a people’s right to govern themselves and their territories in accordance with their traditional laws, customs, values and aspirations. Therefore, as far as Eeyouch are concerned, Eeyouch of Eeyou Istchee have an inherent right of Eeyou governance.

This right is inherent in the sense that it finds its ultimate origins in the collective lives, traditions and Eeyou law and history rather than the Crown or Parliament. In particular, the inherent right to Eeyou self-government flows from the original and present occupation of Eeyou Istchee by Eeyouch. In this

regard, Eeyou Tapay-tah-jeh-souwin (Eeyou governance) isn’t something that’s going to happen in the future. It’s something that has happened, is happening and will continue to happen in accordance with Eeyou law, rights and aspirations. After all, Eeyouch of Eeyou Istchee have always been a self-governing people.

The right of Eeyou governance inheres in the Eeyou nation. Consequently, it is through the nation that Eeyouch express their personal and collective autonomy.

In 1982, Aboriginal and treaty rights were embodied in the written constitution of Canada for the first time in Canadian history. In particular, section 35 of the Constitution Act, 1982, states that the “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.”

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” recognised and affirmed by section 35 of the Constitution Act, 1982.

Aboriginal rights evolve from prior occupation of lands by Aboriginal Peoples and prior social organization and distinct cultures of Aboriginal Peoples. In Van der Peet ¹ the Chief Justice of the Supreme Court of Canada stated:

In my view, the doctrine of aboriginal rights exists, and is recognised and affirmed by s. 35(1),
because of one simple fact: when Europeans arrived in North America, aboriginal peoples were
already here, living in communities on the land, and participating in distinctive cultures, as they
had done for centuries. It is this fact, and this fact above all others, which separates aboriginal
peoples from all other minority groups in Canadian society and which mandates their special
legal, and now constitutional, status. ²

Aboriginal rights arise from the prior occupation of land, but they also arise from the prior social
organization and distinctive cultures of aboriginal peoples on that land. In considering whether a
claim to an aboriginal right has been made out, courts must look at both the relationship of an
aboriginal claimant to the land and at the traditions, customs and traditions arising from the
claimant’s distinctive culture and society. Courts must not focus so entirely on the relationship
of aboriginal peoples with the land that they lose sight of the other factors relevant to the
identification and definition of aboriginal rights. ³

The Supreme Court affirmed in Adams ⁴ that these practices, customs and traditions did not require the formal recognition of Europeans in order to be protected:

The fact that a particular practice, custom or tradition continued following the arrival of Europeans,
but in the absence of the formal gloss of legal recognition from the European colonizers should
not undermine the protection accorded to aboriginal peoples. Section 35 (1) would fail to achieve
its noble purpose of preserving the integral and defining features of distinctive aboriginal societies
if it only protected those defining features which were fortunate enough to have received the legal
approval of British and French colonizers. ⁵

Madam Justice McLachlin wrote on the recognition by the common law of the ancestral laws and customs of Aboriginal Peoples in her Reasons in Van der Peet. ⁶

The history of the interface of Europeans and the common law with aboriginal peoples is a long one.
As might be expected of such a long history, the principles by which the interface has been governed
have not always been consistently applied. Yet running through this history, from its earliest beginnings
to the present time is a golden thread – the recognition by the common law of the ancestral laws and
customs the aboriginal peoples who occupied the land prior to European settlement. ⁷

Furthermore, Madam Justice L’Heureux-Dubé spoke of the doctrine of continuity in the context of an approach to interpreting the nature and extent of aboriginal rights. Justice L’Heureux-Dubé wrote: ⁸

… Instead of considering it as the turning point in aboriginal culture, British sovereignty would be
regarded as having recognized and affirmed practices, traditions and customs which are sufficiently
significant and fundamental to the culture and social organization of aboriginal people. This idea
relates to the “doctrine of continuity,” founded in British imperial constitutional law, to the effect that
when new territory is acquired the lex loci of organized societies, here the aboriginal societies,
continues at common law. ⁹

It could not have been only specific traditional laws that were continued but rather the jurisdiction of aboriginal governments to formulate, enact and enforce laws. ¹⁰

It is clear that the Supreme Court of Canada affirms and acknowledges the existence and continuity of aboriginal traditional law and customs.

Eeyou governance has evolved from long-standing practices based on Eeyou law, traditions and customs. However, Eeyou governance has also evolved from the implementation of the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act.

Pursuant to the terms and provisions of the James Bay and Northern Quebec Agreement (JBNQA), Eeyou Istchee was carved out into three (3) categories of land. Lands classified as Category 1A, under federal

jurisdiction, and Category 1B, under provincial jurisdiction, were set aside and allocated to the Cree for their exclusive use and benefit and under the administration and control of Cree local governments.

Pursuant to federal obligations to Eeyouch (Cree and Naskapi Nations) under the JBNQA and NEQA, special federal legislation – the Cree-Naskapi (of Quebec) Act – enacted by Parliament and assented to on June 14, 1984 – provides for an orderly and efficient system of Cree and Naskapi local government and for the administration, management and control of local community lands by the Cree and Naskapi First Nations. The Cree-Naskapi (of Quebec) Act replaces the Indian Act for the Cree Nation of Eeyou Istchee and the Naskapi Nation of Kawawachikamach. During the course of negotiations leading to the signing of the JBNQA, Eeyouch of Eeyou Istchee rejected the restricted, supervised and imposed local government regime of the Indian Act. Consequently, except for the purpose of determining which of the Cree beneficiaries and Naskapi beneficiaries are “Indians” within the meaning of the Indian Act, the Indian Act does not apply to the Cree and Naskapi First Nations nor does it apply on or in respect of their community lands.

Moreover, the Indian Act fails to take into account tradition law, customs and practices for governance.

Notwithstanding the legal regime of local government under the Cree-Naskapi (of Quebec) Act and other powers and responsibilities of Eeyou for Governance under the JBNQA, its related Agreements and subsequent legislation, Eeyouch continue to incorporate Eeyou law, traditions and customs in the exercise and practice of local government and Eeyou nation governance. (With the exception of provisions relating to Part XIII – Successions, the Cree-Naskapi (of Quebec) Act is silent on the existence and continuity of Eeyou law, customs and traditions.)

The present chapter explores the origin and nature of Eeyou law, traditions and customs.

Eeyou Weesou-wehwun, Eeyou Eedou-wun and Eeyou Kas-jeh-hou-wun
(Eeyou Law, Eeyou Customs and Traditions, and Eeyou Rights)

The Eeyouch have exercised and will continue to exercise their right of self-determination which is referred to as “Weesou-way-tah-moo-wun” in the language of the Eeyouch of Eeyou Istchee. The words “Eeyou weesou-way-tah-moo-wun” are best described as “determination by Eenou” or Eeyou self-determination which is the power of choice in action.

The exercise and practice of Eeyou Tapay-tah-jeh-souwin (Eeyou governance) has evolved from the exercise of Eeyou weesou-way-tah-moo-wun (Eeyou self-determination).

The Cree people, as they are called by contemporary society, have the collective and individual right to maintain and develop their distinct identity and characteristics. In particular, the Cree people have the right of self-identification and they identify themselves, as they have done for millennia, as Eeyou/Eeyouch and Eenouch/Eenou. Furthermore, Eeyouch have the individual and collective right to a nationality and to be recognised as a distinct nation. Eeyouch have a right to belong to an Eeyou community and an Eeyou Nation within their traditional and historical homeland, which Eeyouch call Eeyou Istchee. Consequently, the so-called James Bay Crees are Eeyouch of Eeyou Istchee. (The word “Cree” has its origins from the French and English peoples).

Eeyou Istchee is the totality of community and traditional and historical hunting territories of the Eeyouch. Eeyou Istchee is the land that Eeyouch have used and occupied for millennia. Therefore, Eeyou Istchee is essential and central for the “meeyou pimaat-tahseewin” or holistic well-being of Eeyouch. The centrality of Eeyou Istchee forms the foundation of Eeyou governance, Eeyou culture, identity, history, spirituality and the traditional way of life. This unique and special relationship between Eeyouch and Eeyou Istchee – is part of the nature of ‘being Eeyou/Eenou.’

The Eeyouch of Eeyou Istchee refer to the Eeyou right of self-government or any Eeyou right as “Eeyou Kas-jeh-hou-wun” which means Eeyou power or ability given by human authority or by a divine source. This inherent right (of self-government) is exercised by and through the Eeyouch which is the historical and traditional authority of governance. It is through the nation or people that the Eeyouch express their personal and collective autonomy. This practice or exercise of governance through the Eeyou nation or people is described as “Eeyou Tapay-tah-jeh-souwin” by the Eeyouch of Eeyou Istchee. Furthermore, the Eeyouch have, by Eeyou law, established their Eeyou land tenure system of Eeyou Indoh-hoh Istchee (Eeyou hunting territories) with the governing authority of the Indoh-hoh Ouje-Maaoo (Hunting Governor or Tallyman). This Eeyou land tenure system was determined and established by “Eeyou Weesou-wehwun” (Eeyou law-making).

“Eeyou Kas-jeh-hou-wun” in the Eeyou language means “Eeyou capacity or power.” “Eeyou Kas-jehhou-wun” are the words used by the Eeyou/Eenou leadership to express the fundamental principle of Eenou/Eeyou rights.

“Eeyou Eedou-wun” in the Eeyou language means “Eeyou/Eenou way (of doing things).” “Eeyou Eedou-wun” are the words used by the Eeyouch to express the concept of customs and traditional practices.

“Eeyou Weesou-wehwun” in the Eeyou language means “Eeyou law” (as a direct result of Eeyou decision-making). “Eeyou Weesou-wehwun” are the words used by the Eeyou/Eenou leadership to express the concept of Eeyou law inherent in Eenou/Eeyou society. Consequently and subject to Canadian law and jurisprudence affecting Aboriginal “customary/traditional” law, Eeyou Weesou-wehwun is distinct from Aboriginal law (contemporary law affecting Aboriginal peoples). One must note the similarity of the Eeyou words “Eeyou Weesou-wehwun” (Eeyou law) and “Eeyou Weesou-way-tah-moo-wun” (Eeyou self-determination).

In the exercise of Eeyou Tapay-tah-jeh-sou (Eeyou government) Kas-jeh-hou-wun (right) or the inherent right of self-government, the Eeyouch of Eeyou Istchee have determined and will continue to determine Eeyou Weesou-wehwun or Eenou law. The Eeyouch have also determined and will continue to determine Eeyou Eedou-wun or customs and traditions. In this manner, the Eeyouch will continue to shape Eeyou culture.

Eeyou law is the body of law inherent in Eeyou. It is a body of law passed down from generation to generation. Eeyou law manifests the common value of Eeyou society. For the Eeyouch, Eeyou law, custom and tradition do not consist of static principles, practices and institutions from the distant past. They constitute an evolving body of ways of life that adapts to changing situations and readily integrates new attitudes and practices. Consequently Eeyou law is not a static body of law; but is an evolving body of principles and norms of life in Eeyou society.

The Eeyouch, like other contemporary people, are constantly reworking their institutions to cope with new circumstances and demands. In doing so, they freely borrow and adapt cultural traits that they find useful and appealing. In this regard, Eeyou law can be regarded as a continuing process of attempting to resolve the problems of a changing society, than a set of rules .It is not the heedless reproduction of outmoded practices that makes an effective Eeyou law and a vigorous tradition, but a strong connection with the living past especially a strong and living connection with the land – Eeyou Istchee.

It is often said that ‘custom makes law.’ For the Eeyouch, Eeyou law may flow from Eeyou customs and traditional practices. However, traditions appeal to values and actions that sustain customs. In fact, Eeyou values form the building blocks for the ethical principles which form the basis for Eeyou law and tradition. Consequently, Eeyou law and tradition flow from Eeyou values and principles.

In addition, Eeyou culture may be defined simply as the way of life adopted by the Eeyouch. In fact, Eeyouch describe Eeyou culture as “Eeyou pimaat-seewun” (Eenou way of life). For the Eeyouch, culture is determined by Eeyou Eedou-wun – the Eeyou way of doing things – and encompasses the complex whole of beliefs, values, principles, practices, institutions, attitudes, morals, customs, traditions and knowledge. These elements influence the determination of Eeyou law as Eeyouch know what values and principles are Eeyou law.

In summary and in consideration of the Eeyou legal system, one must consider the following important aspects of Eeyou society and contemporary law:

In summary, Eeyou law is:

Conclusion

Eeyou governance has evolved dramatically over the past three decades mainly in response to the fundamental changes in the political, social and economic landscape of Eeyou Istchee. This evolution of Eeyou governance is customary and natural as political power is universal and inherent in human nature. After all, Eeyou self-determination is the power of choice in action. In many instances, Eeyouch of Eeyou Istchee have adopted a “just do it” approach.

Consequently, the meaning and practice of Eeyou governance has evolved and has been redefined by Eeyouch on the basis of Eeyou law, rights, freedoms, value, culture, customs, traditions, aboriginal law and the intent and spirit of the James Bay and Northern Quebec Agreement and its related Agreements such as the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Quebec and the Cree-Naskapi (of Quebec) Act.

Eeyou governance has definitely evolved dramatically over the last quarter of the past century beyond the Indian Act, Cree-Naskapi (of Quebec) Act and the James Bay and Northern Quebec Agreement.

The reconciliation of pre-existing and inherent Eeyou rights and Eeyou law with the sovereignty of the Crown has been, and continues to be, a major political, legal/constitutional and socio-economic challenge.

In order for Eeyou and Canada to work together, Canada must explicitly recognize the inherent right of Eeyou governance and the existence and continuity of Eeyou laws and traditions within its constitutional and fundamental laws. The courts have already recognised the existence and continuity of the laws, traditions and customs of Aboriginal Peoples including aboriginal decision-making, regulation, and indeed Aboriginal governance.

For Eeyouch of Eeyou Istchee, mutual recognition of coexisting and self –governing peoples and nations is basic and fundamental in the continuing Eeyou relationships and partnerships with Canada and Quebec.

End Notes

In preparation for its 2006 report, the Cree-Naskapi Commission conducted its Special Implementation Hearing on February 13–16, 2006 in Montreal, Quebec. Representatives of the Eeyou (Cree and Naskapi) Nations and the Department of Indian Affairs and Northern Development presented written and oral submissions to the Commission at this special hearing.

Grand Council of the Crees (Eeyou Istchee)

On February 16, 2006, Mr. Bill Namagoose and Chief Billy Diamond, representatives of the Grand Council of the Crees (Eeyou Istchee) presented a submission to the Commission on the following issues and concerns:

1. Implementation of the James Bay and Northern Quebec Agreement (JBNQA)

According to the representatives of the Grand Council of the Crees, the implementation of the JBNQA – a modern day Treaty – has been, so far, a long, difficult and acrimonious process entailing reviews, negotiations, litigation and mediation on certain provisions of the Agreement. Certain sections of the JBNQA remain to be implemented properly. As an example, the application of section 22 (Environmental and Social Protection) remains to be properly implemented by the Government of Canada which has decided to unilaterally apply the federal regime of the Canadian Environmental Assessment Act. The regime established by and in accordance with section 22 of the JBNQA is the

In 2002, the Eeyou Nation of Eeyou Istchee and the Government of Quebec negotiated and accepted the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Quebec which is also known as the Paix des Braves. In this Agreement, the Eeyou of Eeyou Istchee assume certain obligations of Quebec under the JBNQA for a period of fifty years with indexed annual funding. This particular arrangement which is an innovative way of implementing certain sections of the JBNQA has enabled the Eeyou governments and leadership to decide on the implementation of programs and services which meet their priorities and needs as determined by Eeyou authorities. In the past, priorities and programs were often debated with non-Eeyou authorities. ²

Since the execution of the JBNQA which was signed by the Eeyou, Canada and Quebec Governments in 1975, the Eeyou Nation of Eeyou Istchee has sought the proper implementation of the JBNQA with the Government of Canada. Certain Agreements such as the Operation and Maintenance Agreement and the Agreement Respecting Cree Human Resources Development have been achieved by Eeyou and Canada. However, Eeyou of Eeyou Istchee sought a new relationship with Canada – a new relationship that should have evolved if the spirit, intent and letter of the JBNQA had been properly respected and honoured by the Government of Canada.

2. New Relationship Between Eeyou (Cree) and Canada

Recently, the Eeyou and federal negotiators, through the Chrétien-Namagoose process, have made some progress in negotiating an agreement on a new relationship between Eeyou of Eeyou Istchee and the Government of Canada in a manner which sets out an acceptable way of implementing Canada’s obligations to the Crees under the JBNQA.

In August 2004, the Eeyou and Federal negotiators signed a joint statement of intent which sets out the intentions of the parties to negotiate an agreement on the following matters:

In June 2005, the Eeyou and federal negotiators signed a document entitled: Outline for Agreement between the Government of Canada and the Cree Nation of Quebec. This document outlines the progress made on the following issues:

In December 2005, a final agreement was achieved by the negotiators of the Eeyou Nation and the Government of Canada. This Agreement was approved by the Federal Steering Committee that oversaw the negotiations for the Government of Canada and by the Board of Directors of the Grand Council of the Crees (Eeyou Istchee).

However, the Government of Canada under Prime Minister Paul Martin fell and a federal election was called. Consequently, the parties decided to leave the execution of this Agreement until after the federal election. (The federal election held in January, 2006, resulted in the election of a new government under Prime Minister Stephen Harper.)

According to Mr. Bill Namagoose, the Eeyou negotiator, the “proposed agreement is the culmination of many years of efforts on the part of all of the three previous Grand Chiefs and the present administration. I firmly support this agreement and hope that the new Federal Government of Prime Minister Harper will embark on this new Canada – Cree relationship with us.” ⁵

The Grand Council of the Crees requests the Cree-Naskapi Commission to “monitor the process relating to the treatment of this issue in the forthcoming months until the related Agreements are signed.” ⁶

3. Cree Housing

The provision of housing has always been a priority for the Cree and Naskapi Nations. The Cree-Naskapi Commission in its past reports has reported on the housing situation for the Cree and Naskapi communities.

Chief Billy Diamond, representative of the Grand Council of the Crees (Eeyou Istchee), made a presentation on the housing situation in the Eeyou communities as follows:

The Cree housing situation is the most difficult one to resolve and is presently in a crisis state.

In a 1999 survey on the Cree housing situation, the findings were as follows:

Indian Affairs has always used an average of 4.0 persons as an ideal planning measurement. The Cree study indicates that the ideal persons per house ratio for planning purposes should be 3.5 based on Cree demographics.

The number of houses that the Cree communities have constructed over the last 5 years has not kept pace with the increasing family units formation so the backlog and overcrowding of houses have increased.

The new family formations are presently running at about 120 a year. The Cree communities have constructed about 55 units a year through assistance from the CMHC. This number was increased to 78 units for 2005–2006 and 2006–2007 as a result of new one-time funding. However because of a new allocation process, the Cree share of the regular CMHC envelope will drop from 78 to 26 units for the subsequent years. Because of the inequitable result, the Cree Nation of Eeyou Istchee disputes this new allocation process. ⁸

In a letter addressed to the Minister of Indian Affairs and Northern Development and dated July 11, 2005, the then Grand Chief Ted Moses states that the new allocation process is “unacceptable in that it is contrary to our existing agreements, understandings and past practices and is in complete contravention of the spirit and scope of our new relationship discussions.”

The allocation process and its consequences remain to be resolved with the Government of Canada.

Presently, the backlog of housing units needed in the Cree communities continues to increase resulting in more overcrowding of housing units. This has negative repercussions on the social well-being of the individuals and families.

Contrary to a national trend among aboriginal communities, the Crees are not, in substantially increasing numbers, leaving their communities and territories to become part of a steadily growing off-reserve population. This is an important fact, as policy makers tend to rely on national trends to determine

housing allocation for First Nations. The new housing allocation process ignores the Cree reality of an increasing and remaining on-reserve population. Therefore, the Crees believe that they have not been receiving their equitable share of housing program funding from Indian Affairs and CMHC for the past 20 years. This inequitable allocation of housing resources from Canada remains to be resolved as it results in the existing and increasing backlog of housing units for the Cree communities. Housing resources have not been sufficient to meet the rising demands. ⁹

As far as the Cree Nation of Eeyou Istchee is concerned, community development which includes housing and infrastructure and Cree Nation building constitute one of the fundamental promises made to the Crees in the James Bay and Northern Quebec Agreement. However the Government of Canada has taken the position that the JBNQA has not created an obligation for Canada to provide housing to the Crees other than what is available from programs of general application. ¹⁰

Furthermore, the representative of the Government of Canada has stated that the JBNQA does create an obligation for housing for the Inuit party. The Cree Nation of Eeyou Istchee question the logic that results in different housing benefits for the two Native parties to the same Agreement. ¹¹

In addition, the Cree consider the execution and proper implementation of the JBNQA as defining a new Cree-Canada relationship which encompasses the provision of community development including housing. The provision of housing through programs of general application does not in itself constitute an element of a new Cree-Canada relationship.

In addition to the provisions of the JBNQA, the Commission considers that the Cree Nation of Eeyou Istchee, like other First Nations of Canada, is entitled to benefit from programs of general application.

On November 3, 2005, the Cree Housing Side Table of the Cree Nation of Eeyou Istchee submitted to the Federal Negotiation Team a proposal entitled “The Cree Proposal to Resolve the Housing Crisis in James Bay.” The Cree consider their proposal a well-balanced and reasonable one in which the Cree are prepared to commit a substantial amount of Cree public and private funds to resolve the housing problem and create new economic opportunities.

According to the Cree, the present backlog for housing is 1,548 units as compared to the total existing housing stock of 3,001 units for a deficiency rate of 52%. The backlog is the primary cause of severe overcrowding of houses in the Cree communities. From the total present housing stock, 213 units or 7% are substandard to the extent that they should be condemned and replaced and a further 913 units or 30% require major renovations due to overcrowding. ¹²

The Cree Housing Proposal to the Government of Canada contains the following elements
and considerations:

4. Other Issues

In addition to the implementation of the JBNQA issues and concerns, the representatives of the Grand Council of the Crees raised outstanding issues such as the implementation of the Ouje-Bougoumou Agreement, Nemaska and Waswanipi relocation, access road issues, transmission line issues and issues relating to the Washaw Sibi and MoCreebec Cree Nations.

Cree Nation of Washaw Sibi

Chief Billy Katapatuk Sr. and Mr. Kenneth Weistche, on behalf of the Cree Nation of Washaw Sibi, made a presentation to the Commission on the following issues and concerns:

Implementation of the James Bay and Northern Quebec Agreement and the Washaw Sibi Eeyou

The representatives of the Washaw Sibi Eeyou consider their situation as a fundamental issue respecting the implementation of the James Bay and Northern Quebec Agreement. The Washaw Sibi Crees are beneficiaries of the JBNQA; but do not receive the full scope of the benefits of the Agreement. As they do not reside on Category 1 lands, they do not benefit fully from the JBNQA. They claim “that the Government of Canada has forcibly relocated our members to a reserve which never had any possibility of becoming Category 1 land. The Government of Canada failed to live up to its fiduciary obligation toward us.” ¹⁴

They consider that Canada has the moral, if not legal, obligation to take the appropriate measures to ensure that the Washaw Sibi Eeyou can enjoy the full benefits of the JBNQA.

The Washaw Sibi Eeyou claim to exist as a distinct group with their own historical and traditional hunting territories in the Harricana watershed. This claim is supported by preliminary anthropological findings and linguistic evidence.

The representatives of the Washaw Sibi Eeyou stated that they continue “to live as minority members of
the Algonquin community of Abitibiwinni. We have continued to be the last to receive the benefits of
the meager programs and services available to typical Indian Act bands. Our members have been told by
Abitibiwinni officials that since we are Cree beneficiaries we should obtain educational and health services
from the appropriate Cree institutions. Of course, such services by Cree institutions are not available to
us as we do not reside on Category 1 lands. This unresolved situation has resulted in our people having
neither full benefits of membership in the Abitibiwinni First Nation nor the full range of benefits to
which beneficiaries of the JBNQA are entitled. In this administrative vacuum we have suffered and in
some instances this has resulted in tragic consequences with our people unable to receive emergency
medical attention.” ¹⁵

The Washaw Sibi Eeyou further claim that this historical injustice “stems from the failure of the
Government of Canada to fulfill its solemn duty to protect and defend the interests of the Washaw Sibi
people when it participated in the coercion of our people to live outside of our traditional territory in a
minority position within the Abitibiwinni Reserve.” ¹⁶

In the summer of 2006, the Washaw Sibi Eeyou demonstrated their commitment and determination
to improve their situation by taking a trek of 120 kilometers back to their traditional lands where they
took up residence in a rudimentary village. They are calling on the Government of Canada for assistance
in establishing a new village for the Washaw Sibi Eeyou.

The Cree Nation of Eeyou Istchee has commenced serious discussions with the Government of Canada,
through the Chrétien-Namagoose process, for an acceptable way of implementing Canada’s obligations
to the Crees under the JBNQA. In the context of these discussions, the issues and concerns of the
Washaw Sibi Eeyou have been raised. The representatives of Washaw Sibi Eeyou have participated
in this process to clarify questions raised concerning them. Washaw Sibi Eeyou have stated that a
resolution of their issue would require a financial commitment from Canada for the purpose of
constructing a new village.

The Washaw Sibi Eeyou “consider that it would be appropriate for the Commission to:

Ouje-Bougoumou Cree Nation

Deputy Chief Sophie Bosum and other representatives of the Ouje-Bougoumou Cree Nation spoke on the following matters:

Operations and Maintenance Funding

The Ouje-Bougoumou Cree Nation remains very concerned about their Operations and Maintenance funding. Ouje-Bougoumou continues to be concerned about the amount and basis of the adjustment to the funding levels of the O&M funding.

As a result of funding from the new relationship agreement with Quebec, Ouje-Bougoumou has constructed new facilities for their community. But the Government of Canada has so far failed to acknowledge its obligations and responsibility to fund the operations and maintenance of these new capital facilities. Clearly, as far as Ouje-Bougoumou is concerned, “the Government of Canada has an obligation under the Cree-Naskapi (of Quebec) Act to make O&M funding available to the communities for its operating needs.” ¹⁸

Consequently, Canada has not maintained pace with these developments in the provision of O&M funding for new capital facilities.

Furthermore, Ouje-Bougoumou is concerned about the inadequacy of current funding levels to address the present and future community needs and services such as “increased office computerization, communications (for example, the internet), elders care, youth programming, operation and maintenance of recreation facilities, urgent cultural programming needs, local level legal work to defend Cree rights, and local structures to administer justice.” ¹⁹

The Ouje-Bougoumou Cree Nation once again recommends “a review of the O&M funding formula towards the end of incorporating a financial capacity to address new needs in the communities which were never contemplated in 1984 when the Cree-Naskapi (of Quebec) Act came into force.” ²⁰

The Ouje-Bougoumou/Canada Agreement stipulates that the funding available to the other Cree communities will not decrease as a result of funding which would be available to Ouje-Bougoumou for capital projects. The DIAND maintains that it is not required to reimburse the Crees for funding received by Ouje-Bougoumou for capital projects since 1994–1995. A total amount of $1.7 million had been transferred to Ouje-Bougoumou from the Cree Nation of Eeyou Istchee for capital projects since 1994–1995.

Outstanding Claim of Ouje-Bougoumou

With respect to funds transferred under the Ouje-Bougoumou/Canada Agreement, the Ouje-Bougoumou Cree Nation maintains a claim for an amount of $2,952,000 which constitutes the loss of earnings emanating from the late payment of agreed upon amounts under the Ouje-Bougoumou/Canada Agreement and indirect costs. According to the Ouje-Bougoumou Cree Nation, this amount is owed to Ouje-Bougoumou and should be paid by the Government of Canada.

Implementation of the Ouje-Bougoumou/Canada Agreement

About fifteen (15) years have elapsed since the execution of the Ouje-Bougoumou/Canada Agreement and the Crees and Canada have not entered into a Complementary Agreement amending the JBNQA. This Complementary Agreement would incorporate the Ouje-Bougoumou Cree Nation into the JBNQA as intended and contemplated by the Ouje-Bougoumou/Canada Agreement. This situation leaves the Ouje-Bougoumou Cree Nation in a legal vacuum in respect to the legality of their by-laws and ability to act as a Cree band.

According to the Ouje-Bougoumou Cree Nation, the “discussions to date can only be described as frustrating, seemingly endless and costly.” ²¹

However, the Ouje-Bougoumou Cree Nation remains hopeful that this issue and other matters can be resolved within the context of the current Cree-Canada discussions.

Cree Nation of Wemindji

Deputy Chief Arden Visitor spoke on the following issues and concerns:

Implementation Mechanism

Many recommendations of the Commission reflect the aspirations of the Cree communities for the proper and full exercise of the inherent right of self-government. However, these recommendations lack an implementation process or mechanism. The Cree Nation of Wemindji states that it “is paramount that each local government from the Cree and Naskapi and especially from the Grand Council of the Crees, collaborate to prioritize in the development of the Implementation Mechanism for the Cree-Naskapi Commission.” ²² The Commission should facilitate, in collaboration with the Eeyou local governments and the Grand Council of the Crees, the process for the development and implementation of the Implementation Mechanism.

Administration of Justice

The Circuit Court of Quebec comes to Wemindji only on a periodic basis to hear and administer cases.
Other than a few cases, the Coordinating Judge has suspended, since September 2004, the hearing of
all by-law infractions. This suspension has continued into the entire 2004–2005 court calendar. The
periodic visits and the suspension of certain hearings have led to long delays in the administration of
justice in Wemindji. The rule of law and an efficient administration of justice are essential for the social
well-being of the community and Cree Nation of Wemindji. Consequently, Wemindji recommends the
review of section 18, particularly the implementation of paragraph 18.0.37, of the James Bay and
Northern Quebec Agreement in order to address the present administration of justice. ²³

Cree First Nation of Waswanipi

Chief Robert Kitchen, Mr. Allan Happyjack, Executive Director, and Mr. Sam Gull, Director General, of
the Cree First Nation of Waswanipi, made a presentation to the Commission. Chief Kitchen spoke on
the following issues and concerns of the Cree First Nation of Waswanipi:

Resource Development and the Waswanipi Iinuuch

The Waswanipi Iinuuch, as they call themselves, and their historical and traditional territories have been
subject to resource development and its impacts since 1930. The Waswanipi Iinuuch have especially
been impacted over the past fifty (50) years by mining, commercial forestry and hydro-electric
development. The Waswanipi Iinuuch claim that “Waswanipi lands…and its territorial integrity,
sovereignty, jurisdiction, control and management still continue to be subject to damage, exploitation
and over-harvesting by means of trespassing, clear cutting and illegal activities in the absence of a
Comprehensive Agreement for the Waswanipi Iinuuch and the issuance of a proper permit or licence
from the Cree Nation of Waswanipi.” ²⁴ Consequently, the Cree First Nation of Waswanipi “wish to
express its intent, objective and spirit to negotiate a Comprehensive Agreement for its future generations
with the Governments of Canada and Quebec.” ²⁵

The past and present resource development has impacted and continues to impact the hunters, trappers and tallymen of the Waswanipi Iinuuch. Therefore, the Cree First Nation of Waswanipi requests the Government of Canada to provide sufficient funding so that Waswanipi can conduct a full audit, impact assessment and needs assessment. The findings, recommendations and conclusions of this audit and these assessments will assist the Cree First Nation of Waswanipi in determining plans and direction for a serious dialogue and negotiations respecting resource development and its impacts. ²⁶

In addition, the Cree First Nation of Waswanipi “call upon the Government of Canada to exercise its legislative powers and authorities in making an official announcement for a full-scale public inquiry to be conducted on the state of the Iinuuch, Cree culture and Eeyou Istchee of Waswanipi” as a result of resource development and its impacts and consequences. ²⁷

In support of their position, claims and requests, Chief Robert Kitchen submitted a copy of a Council Resolution No. 2004–2005 CR/144 adopted December 15, 2004 concerning the Waswanipi Ndoho Istchee (Waswanipi Hunting Territory) Vision which encompasses the following:

1. Call for a Public Inquiry

2. Master Plan

3. Negotiating Process

4. Comprehensive Agreement

5. Follow-up Plan

A copy of this resolution is available at the office of the Commission.

Accountability and Transparency

The Waswanipi Iinuuch have expressed the need for an improvement in the accountability and transparency in the local government and administration of the Cree First Nation of Waswanipi. Therefore, Waswanipi requests a special allocation of funds from Canada and Quebec in order to conduct public consultations and develop a local model of an Accountability Act. ²⁸

Displacement Claim

The Cree First Nation of Waswanipi claims that they were forced to move, relocated or displaced from the Waswanipi Post as a result of hydroelectric development planned in their territories. They further claim that “the government had never granted any land, any assistance and any compensation to the people of Waswanipi for the inconvenience, relocation and displacement from 1960 to 1975 … ” ²⁹ Consequently, the Cree First Nation of Waswanipi requests the Government of Canada to declare the Old Waswanipi Post as an official Heritage Place and appropriate the necessary funds to Waswanipi for its restoration and reconstruction as an historic heritage place.

Capital Projects

The Cree First Nation of Waswanipi hopes that capital projects such new housing units, new Elementary School project, new Administration Building, new Community Center, will be an integral component of any agreement concerning a new relationship with the Government of the Canada. Waswanipi considers these capital projects a priority. ³⁰

Economic Development

Waswanipi will require funding, contributions and sponsorships from the private sectors and new partners for industries, businesses, joint ventures or partnerships and other economic development opportunities. ³¹

Youth

The Cree First Nation of Waswanipi considers the youth as the corner stone and foundation for nation building. The youth require education and training for professional and career development. ³²

Senneterre Crees

The situation of the Senneterre Crees should be reviewed for the determination of options for resolution of this outstanding issue. ³³

Follow-up on Concerns and Issues of Waswanipi.

Chief Robert Kitchen concluded his presentation to the Commission by requesting funding from Canada so that Waswanipi can enter into a new relationship with the Cree-Naskapi Commission to ensure a proper follow-up on their concerns and issues. ³⁴

Cree Nation of Chisasibi

Deputy Chief Violet Pachanos and Kevin House, youth representative, of the Cree Nation of Chisasibi raised the following concerns:

Amendments to the Cree-Naskapi (of Quebec) Act

The Cree Nation of Chisasibi has had difficulties in adopting certain by-laws (as an example by-law for long-term borrowing by the Band) because of the high quorum requirements of the Cree-Naskapi (of Quebec) Act. The community has had to resort to referenda for the adoption of these by-laws because the quorum requirements of the Act are extremely difficult to fulfill through a general meeting of the members. ³⁵

Election Bylaws

The election by-laws of the Cree communities should be standardized as they differ from one community to the other.

Housing

The Cree Nation of Chisasibi has a very serious problem respecting the need to replace present deteriorating houses and the need for additional housing units with an increasing population and the resulting backlog.

Because of the deteriorating state of the relocated housing units from Fort George, some of these units were torn down and rebuild. A study was done on the state of the housing units of Chisasibi. The study concluded that housing units such as the cedar houses from Indian Affairs have deteriorated with mold. These units had become unhealthy for occupation by the Cree families. In 1994, the Cree Nation of Chisasibi initiated the Housing Emergency Program when poor housing conditions became a public health emergency. In particular, the Cree Nation of Chisasibi decided to replace the deteriorating units

that had mold and become unfit for human occupation. From 1994 to1998, the Cree Nation of Chisasibi has invested in excess of eleven million dollars ($11,600,496) of its own community funds to deal with what it considered a health emergency related to unsafe housing. The Minister of Indian Affairs made a commitment to finance the replacement of these housing units. Financing by the DIAND in the amount of $1,975,630 was received by Chisasibi in 1998. Consequently, the commitment of the Minister of Indian Affairs was partially met. The Cree Nation of Chisasibi still waits for and expects the Minister of Indian Affairs to fulfill his commitment to fund the entire project to replace the deteriorating units. Because of the urgent situation and for health reasons, the Cree Nation of Chisasibi has continued to provide some funds but not all the deteriorating housing units have presently been replaced. ³⁶

In November, 2005, the Cree Nation of Chisasibi is still dealing with the “sick” mould-infested houses and the Housing Emergency Program has cost $24,000,000 so far. (The DIAND has contributed a total amount of $4,075,000.) According to Chisasibi, 122 houses still need to be replaced over a five-year plan at a cost of $35 million dollars. ³⁷

It appears that the current discussions with Canada do not deal with this essential specific issues respecting housing for the Cree Nation of Chisasibi. ³⁸

Because of this particular situation, the Cree Nation of Chisasibi has not been able to commit the funds necessary for new housing units. Overcrowding and backlog of houses have resulted and continues with an increasing population.

Furthermore, the Cree Nation of Chisasibi does not agree with the present estimate on the backlog of housing units for Chisasibi. The current estimate of the Cree Regional Authority for 69 units is not accurate. The actual backlog on housing units for Chisasibi is 325 units. Chisasibi is presently updating this estimate. ³⁹

Expansion of Chisasibi

Because of the increasing population, the community of Chisasibi needs to be expanded. The road
and its corridor which is not part of Category 1A land constitute a barrier for the expansion of the
community. Therefore, the community of Chisasibi cannot presently be expanded towards the public
highway because of the present status of the road corridors. ⁴⁰

Block D
The ‘transfer’ of Block D to the Cree Nation of Chisasibi has not been done yet. (The ‘transfer’ of Block
D is contemplated in the Agreement Concerning a New Relationship Between le Gouvernement du Québec and
the Crees of Quebec.) Chisasibi recognizes that a portion of Block D was found to be contaminated and
should be cleaned up by the appropriate authorities. This issue of contamination has delayed the
designation of Block D as part of Category IA land for the exclusive use and benefit of the Cree Nation
of Chisasibi. ⁴¹

Nevertheless, the airport building has been completed with the assistance of the Federal Department of
Transport. This airport building was officially opened recently. However, the airport and the building
remains within Category III lands as Block D has not yet been transferred to the Cree Nation of Chisasibi.

Prosecution of Bylaws

The Itinerant Court has separated the prosecution on local by-laws and criminal cases. The prosecution
on local Cree Nation By-laws has not proceeded and remains to be a problem not only for Chisasibi, but
perhaps for the other Cree communities as well. ⁴²

Whapmagoostui First Nation

Chief David Masty of the Whapmagoostui First Nation spoke on the following issue:

Community Expansion Study and Community Development Plan

The Whapmagoostui First Nation is presently planning to expand the community of Whapmagoostui
within the limited areas that are suitable for the installation of infrastructure including services for
water and sewage. Within a period of ten (10) years, Whapmagoostui will need to expand further to
areas possibly across the river. This possibility will entail revisiting and renegotiating the present status
of the land which is presently Category 1B under the JBNQA. ⁴³

End Notes

On February 18, 2006, in Montreal, Quebec, Chief Jimmy James Einish, Philip Einish Jr.,
John Mameanskum, Wayne Nattawappio and advisors, on behalf of the Naskapi Nation of
Kawawachikamach, appeared at the Special Implementation Hearings of the Commission.
Chief Einish and John Mameanskum expressed concerns on the following issues:

1. Governance

Amendments to the Cree-Naskapi (of Quebec) Act

The Naskapi Nation of Kawawachikamach desire amendments to the Cree-Naskapi (of Quebec) Act on the
following issues:

However, the Naskapi Nation wishes to reach an agreement with the Cree Nation of Eeyou Istchee on
the amendments to the Cree-Naskapi (of Quebec) Act and thereafter submit a joint proposal to the
Government of Canada. ¹

Nunavik Commission

Notwithstanding the concerns raised by the Naskapi Nation of Kawawachikamach, Makivik Corporation, Canada and Quebec have negotiated an agreement in principle which proposes a special negotiating table to address the concerns of the Naskapi Nation.

The Naskapi have, on July 26, 2005, met with the parties to evaluate the creation of a Naskapi-Inuit- Canada-Quebec Working Group.

However, before responding to this proposal, the Naskapi Nation wants the Government of Canada to respond to questions respecting Canada’s Aboriginal self-government policy. So far, Canada has not fully responded to these questions of the Naskapi Nation. ²

Following a representation from the Naskapi Nation, the Cree-Naskapi Commission decided to hold an inquiry pursuant to section 165 (1) (b) of the Cree-Naskapi (of Quebec) Act. However, representatives of the Department of Indian Affairs, by invoking section 167 of the Act, refused to come to a hearing of the Commission on this matter. Furthermore, the Legal Services of the Department of Indian Affairs have advised the Commission that the Commission is “not authorized to inquire on the negotiation process in progress with the Inuit of Quebec on establishing a new form of government in Nunavik.” ³

The Naskapi Nation of Kawawachikamach have concluded that “Canada’s failure to appear before the Commission to be entirely consistent with our view that, for the last 15 years, Canada has been derelict in its duty to protect our rights and interests in the face of a sustained effort by Makivik Corporation, an ethnic body, to negotiate what would in fact be an ethnic government having jurisdiction over a large part of our traditional lands and many aspects of our lives.” ⁴

During the course of Canada’s presentation at the Special Implementation Hearings, in Montreal, Mr. Michel Blondin, Director of the James Bay Implementation Office, stated that he would provide

2. Policing

Since April 1, 2000, the Naskapi Nation has not had a tripartite policing agreement as the cost-sharing dispute between Canada and Quebec has not been resolved. The Naskapi Nation, meanwhile, continues to expend greater costs than it should in order to secure funding from the governments. ⁶ However, the INAC’s presentation to the Special Implementation Hearings of the Commission states that “agreements for fiscal years 2004–2005 and 2005–2006 were signed and the full budgets identified in the agreements were provided to the Naskapi.” ⁷ According to the Naskapi, the agreements “are bilateral agreements between Canada and the Naskapi Village of Kawawachikamach for the federal share of funding for the Naskapi Police Force.” ⁸

3. Community Issues

Housing

The housing situation of the Naskapi has progressed significantly since the Naskapi’s presentation to the Commission in February, 2004.

However, the housing allocations for 2007–2008 and beyond for the Naskapi community are not known yet because of the housing allocation process of the CMHC. ⁹

Drinking Water at Kawawachikamach

This project has been progressing well and the Naskapi Nation of Kawawachikamach is pleased with working relationship established with the Department of Indian Affairs and Northern Development to advance this important project. ¹⁰

End Notes

Background

The Cree-Naskapi (of Quebec) Act, requires that the Commission prepare a report on the implementation of the Act every two years. These reports must be submitted to the Minister who in turn is required to table them in both Houses of Parliament. The Commission has always taken this legislated responsibility very seriously. Every second year in preparation for the report, the Commission conducts a series of Special Implementation Hearings. This year, for example, the hearings were held in Montreal in mid-February. In years in which the hearings are held at a central location, the Commission arranges to bring the Chief or a representative, an Elder and a Youth Representative from each community. In addition

some communities choose to send additional individuals who wish to make presentations. Besides the communities, the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority also makes a presentation. Other presentations are often made as well. This year, for example, Chief Billy Diamond made a special presentation on housing. Canada, through the Department of Indian Affairs and Northern Development (DIAND), was represented in 2004 and again this year by Mr. Michel Blondin, Director of the James Bay Implementation Office.

Given that much of what is presented will end up being tabled in the House of Commons and the Senate, virtually all presenters take pains to research carefully and present in detail the issues which they consider to be important. Where an explanation or more detail seems helpful, the Commissioners will ask questions. In order to have easy reference to what was said when preparing our reports, the Commission makes audio tapes of the hearings. Transcripts of these recordings become part of the official records of the Commission.

Once the transcripts of the Special Implementation Hearings along with any printed material submitted, have been reviewed, the Commission completes an analysis of the issues raised. This analysis combined with information arising out of formal representations made under the Act as well as other submissions during the preceding two years form the foundation for the recommendations included in the biennial report.

In recent years the Department of Indian Affairs and Northern Development has prepared fairly detailed, written responses to these recommendations.

As part of the follow up to our reports, it has been the practice of the Commission to include a section in each report summarizing the Department’s responses so that those raising issues and making suggestions at the hearings and elsewhere know what has been done. What follows is a summary of DIAND responses to the recommendations contained in our 2004 Report.

Recommendations and Responses

Cree-Naskapi (of Quebec) Act

(For easy reference, recommendations from the 2004 Report of the Cree-Naskapi Commission are shown in italics. The Department’s response is summarized in a second paragraph and any comment on the response is included in a third paragraph.)

The Department’s response is agreement that a special assembly should be held and that its scope should be widened to include governance issues beyond amendments to the Act, especially in light of the work of the Cree-Canada negotiation table. It is suggested that the Naskapi attend as observers. The Department offers to support such an assembly if Mr. Chrétien and the GCC(EI)/CRA consider that it would be helpful in supporting their own negotiations.**

The Commission has brought this issue to the attention of the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority.

2. The federal and Eeyou (Cree and Naskapi) authorities should determine, through negotiations,
an appropriate mechanism for the proper implementation of the Cree-Naskapi (of Quebec) Act.

The Department advised that this issue is now part of the Cree-Canada negotiations and that it could also be addressed at the proposed special assembly.

3. Section 9 of the James Bay and Northern Quebec Agreement and section 7 of the Northeastern Quebec Agreement should be amended to provide for, amongst others, the following provisions:

a) a full and explicit recognition of the Inherent right of Eeyou self-government; and

b) recognition of the existence and application of Eeyou traditional law, customs and practice in
the exercise of the right of Eeyou self-government.

The Department states its view that “While the Government of Canada recognizes the inherent right of self-government as an existing right within section 35 of the Constitution Act, 1982, it has developed an approach to implementation that focuses on reaching practical and workable agreements on how self-government will be exercised, rather than trying to define it in abstract terms.”

The Commission has no problem with negotiating practical and workable agreements on the exercise of self-government. We are concerned however that Canada’s current recognition of the “inherent right” is merely a policy as to how the government of the day chooses to interpret section 35. While the policy is commendable, it is none the less just a policy and neither a part of the Agreements nor included in the Constitution or even in any federal legislation. For these reasons, it can, like any other policy, be changed as a simple administrative matter. Furthermore there exercise of the inherent right of self-government should not be a derivative of federal authority.

The Cree-Naskapi Commission continues to believe that the inherent right to self-government should be explicitly recognized and affirmed in the Constitution. As an alternative, for the purposes of the Cree and Naskapi, it should be recognized and affirmed in the James Bay and Northern Quebec Agreement and to the Northeastern Quebec Agreement.

4. The federal and Eeyou authorities should determine adequate human resources needed for the proper administration of local government administration and Canada should ensure the provision of suitable financial resources for such needs.

The Department responded that Human Resources and Skills Development Canada are and will be funding for training. The reply also refers to the Chrétien-Namagoose process as being a possible source of a solution to current funding issues. In an update on February 13, 2006, the Department reported that HRSDC and the CRA had signed a one year extension to the existing agreement, and that an assessment of the program indicated successful results.

The Commission is optimistic that the current Cree-Federal negotiations will resolve this issue over a longer term. One years extensions are necessary at times, but long term certainly is necessary for effective training programs. We shall continue to monitor progress in order to ensure that issues raised at our hearings and initially dealt with by reference to the Cree-Federal process are not simply passed over in both processes. Also this approach does not address the issue as it affects the Naskapi Nation. While the Cree and the Naskapi have the Act in common, they have distinct Agreements and the Naskapi are not part of the Chrétien-Namagoose process. It is important to examine the circumstances and needs of the Naskapi Nation and not to assume that their concerns either don’t exist or are somehow addressed by various Cree-Canada processes.

5. The Government of Canada should negotiate, in good faith, a new Operations and Maintenance Funding Agreement with the Eeyou Nation consistent with the spirit and intent of the James Bay and Northern Quebec Agreement, the 1984 Statement of Understanding and the Cree-Naskapi (of Quebec) Act.

The Department responded by saying: “ … INAC and the Cree signed a new 5 year agreement at the end of March 2005, which will run until 2009–2010.” “The very different views of INAC and the Cree Regional Authority on how to implement this agreement still remain unresolved. Therefore, I propose that the funding provided in this agreement be considered for inclusion in the overall implementation agreement being discussed at the Chrétien-Namagoose table. If this suggestion is not acceptable, then I propose that both parties commit to an early review of the whole basis for this agreement, in order to build a better understanding of the community needs, and to hopefully work cooperatively in the future in meeting these needs.” The Department then concludes by asking that the Commission consult with the Cree Regional Authority and provide input on its suggestions.

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

6. The Government of Canada should undertake new legislative, political and administrative measures to ensure the proper implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. The measures that should be considered by Canada for the proper implementation of land claims agreements such as the JBNQA and NEQA are outlined in the discussion

The Department responded that it felt that it was not practical to try to respond to the recommendation at the time and that the recommendation should be tabled to allow the Chrétien-Namagoose negotiators time to address these issues.

As with many other issues, it is suggested that this one be handled at the Cree-Canada negotiations. The Commission’s only concern is that the parties in that process are able to include the items on their agenda and deal with them at an early date. With that in mind, the Commission will continue to liaise with the Cree party at the table since most recommendations had their origins in concerns or suggestions raised by community representatives. Again the Commission must stress that the Naskapi Nation is not represented at that table and that, to the extent that our recommendations reflect their priorities, any follow up processes must involve them as well.

Concerns of the Eeyou (Cree) Nation

7. The federal and Eeyou authorities should determine and agree on the present and future needs of the Cree communities respecting housing, capital projects and infrastructure and develop and implement a strategic master plan, in the short and long term, to address these needs consistent with the spirit and intent of the James Bay and Northern Quebec Agreement and related Agreements. The outstanding claims of Eeyou respecting reimbursement of Cree funds for past capital projects should be dealt with in this process.

The Department responded by saying that future capital requirements and the outstanding claims should be addressed in the Chrétien-Namagoose process. It was also pointed out that the Department had, as an interim measure, increased the Cree annual capital grant from $10 million to $15 million. In the case of the Naskapi, the Department simply said that it would continue its present practice.

The Commission continues to have serious concerns about housing, capital and infrastructure funding issues and will follow up with the parties to see whether more satisfactory approaches can be found. These issues have been contentious in almost every year since the Commission began to hold Special Implementation Hearings in 1986. A better way must be found.

8. The Government of Canada should negotiate, in good faith, with the Eeyou (Cree) Nation of Eeyou Istchee, an agreement that establishes a new nation-to-nation relationship and constitutes an innovative way of implementing the obligations of Canada to the Crees under the James Bay and Northern Quebec Agreement and related agreements,

The Department responded by saying that the issue of the Cree-Canada Relationship should be discussed in the context of the Chrétien-Namagoose process as well as at the proposed special assembly.

9. As Eeyou Nation governance has evolved over the past three decades for Eeyou of Eeyou Istchee, the Government of Canada should negotiate, in good faith, with the Eeyou authorities an agreement on Eeyou governance and related matters consistent with the present principles and practice of Eeyou governance.

The Department felt that governance was another area for the Chrétien-Namagoose process and that it was one in which input from the proposed special assembly would be particularly critical.

10. The Department of Indian Affairs and Northern Development and Eeyou authorities should review the Whapmagoostui Community Development Plan and take into account the needs and special circumstances of the community such as higher costs due to its isolation and the physical features of the community’s land base.

The Department responded by saying that it would verify with Whapmagoostui that this was an issue for the Chrétien-Namagoose table. It was also pointed out that the commitment of the Department to address the issue was demonstrated by its having funded a Community Expansion Study in 2004–2005.

11. While the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Quebec promises connection by Hydro-Quebec within five years of the signing of the said agreement (which was signed on February 7, 2002), the Government of Canada must exercise its responsibilities for the provision of electricity for the community of Waskaganish by ensuring adequate facilities and funding in order to meet the needs of the community.

The Department expressed confidence that the transmission line would be in place by December 2006 and that DIAND would ensure that a distribution network to appropriate standards was linked to the new transmission line. The Department also committed to funding for decommissioning and site clean up of the existing facilities.

12. Government of Canada must participate in the capital planning and funding of the expansion of Waskaganish and must take into account the special needs of the community due to the unusual physical conditions (poor soil, surrounding water bodies) of the community land base.

The Department replied that it would verify with the community that these issues would be part of the Chrétien-Namagoose process. It acknowledged the issue as an important one and pointed out that it had increased the capital grant to Waskaganish by 50%. The Department also noted that it is working actively with the Cree Regional Authority at the technical table.

13. The Government of Canada and the Eeyou authorities must determine the viability of the objectives of the Washaw Sibi Eeyou respecting their rights under the James Bay and Northern Quebec Agreement and related agreements.

14. The Government of Canada, Eeyou authorities including Washaw Sibi Eeyou should undertake discussions and negotiations with respect to the possible recognition of the Washaw Sibi Eeyou as the tenth Cree First Nation and the establishment of the Washaw Sibi village.

The Department addressed these two recommendations by noting the complexity created by the fact that the territory in question is shared with the Pikogan Algonquins. Canada hoped to develop its position within a few months and agreed to provide information in due course.

The Commission will monitor this process as the matter has been outstanding for many years. The issues become more difficult as time passes and early progress is needed.

15. Canada and Eeyou authorities should review the present ltinerant Court system to determine appropriate measures for the impacts of the recent court ruling that the Justice of the Peace will no longer hear any cases as of January 31, 2004. (The Commission recognizes the interests of the Government of Quebec in this matter.)

16. Canada and the Eeyou authorities should discuss and negotiate an alternative justice system which reflects Eeyou values and principles consistent with section 18 (Administration of Justice-Crees) of the James Bay and Northern Quebec Agreement. (The Commission acknowledges the interests of Quebec in the administration of justice)

The Department noted the role of the province and the fact that Cree-Quebec discussions were underway. Canada was especially interested in how informal dispute resolution mechanisms could be used for example to prevent litigation in relation to Cree-Canada disputes. It was felt that a “Cree-Canada Senior Forum” could discuss and resolve issues prior to their becoming full blown disputes. Should this process fail, the issues could be referred to a dispute resolution body which would also have the function of resolving local disputes.

The Commission sees these suggestions as interesting options which should be brought to Cree authorities for further exploration. The Commission notes that similar mechanisms now exist under the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Quebec.

17. Given the present situation and need for additional police officers in the Eeyou communities, Canada and the Eeyou authorities should review the adequacy and application of the current ratio of one police officer for every 1,000 [sic. 500] residents as contemplated by section 19 (Police-Crees) of the James Bay and Northern Quebec Agreement.(Again the Commission acknowledges the interests of Quebec in this matter.)

The Department reported that a new Canada-Quebec-Cree agreement raising the number of police officers from 55 to 65 has been signed. The suggestion was that any remaining policing issues be referred to the Chrétien-Namagoose table.

18. Given the present excessive delays caused by the federal authorities, the Government of Canada must discuss and negotiate, in good faith, with the Eeyou authorities the full, timely and proper implementation of the Ouje-Bougoumou Agreement which was signed by the parties concerned in May, 1992.

The Department disagreed that it was the cause of delays pointing out its view that delays by other parties, the complexity of the issue and the normal length of time it takes bureaucracy to work etc. were the cause. DIAND also reported that it was working with Quebec to explore alternatives for making progress on the issue, and that it remains committed to finding a solution.

The Commission must reiterate that this matter has been outstanding for many years. It continues to present problems for Ouje-Bougoumou. The parties must make a concerted effort to resolve this matter in the near future.

19. Canada and the Eeyou authorities should settle the claim of the Ouje-Bougoumou Cree Nation respecting a payment amount of $2,952,000 outstanding in relation to the funds transferred to Ouje-Bougoumou under the Ouje-Bougoumou/Canada Agreement which reflects the late payment of agreed amounts and loss of earnings associated with that amount.

The Department reported that discussions with Ouje-Bougoumou representatives on this issue were underway and that hopefully progress would be evident soon.

20. Because of the site’s importance as a landing strip for Chisasibi and Cree institutions, Block D must be transferred by the government(s) to the Cree Nation of Chisasibi without further delays such as the environmental cleanup of the site so that proper facilities can be installed for the landing strip.

The Department reported that a preliminary environmental report indicated part of the site should be transferable by the winter of 2005–2006 but that about 20% of the site would remain with the province until the cleanup is complete-process which could take “a few years due to the extent of the work involved.” No further information was provided at the February 13, 2006 update.

The Commission notes that a new a airport terminal has been built and is in operation. This necessitates completing the administrative arrangements between Canada and Quebec as soon as possible.

21. Given the interests of the federal and provincial governments particularly in regards to the environmental impacts of the incinerator, the governments should provide funding to the Cree Nation of Wemindji for the monitoring of the impacts of this project.

The Department reported that Raymond Chrétien and Bill Namagoose met with the Wemindji Band Council in September 2004 and discussed the incinerator issue at that time. DIAND told the Commission in a letter of July 15, 2005 that it hoped to be able to provide more information “in a short while”. Almost a year later, there is still no further information on progress.

22. The Department of Indian Affairs and Northern Development should undertake all appropriate measures to secure funding for reimbursement to the Cree Nation of Wemindji for the costs of the access road to the community.

The Department indicated that it had received a mandate to resolve the issue and that negotiations should proceed quickly.

Concerns and Issues of the Naskapi Eeyouch (Nation) of Kawawachikamach

23. As the Complementary Agreement respecting the amendment(s)to Section 10 (Health and Social Services) of the Northeastern Quebec Agreement has been executed by the Naskapi Landholding Corporation, the representatives of Canada and Quebec should proceed with the execution of the said Complementary Agreement.

The Department reported that Canada and Quebec had recently signed the Agreement. The Governor General in Council declared the Agreement valid on September 30, 2004. It was subsequently tabled in the House of Commons on March 21, 2005.

24. The government(s) concerned and the Naskapi authorities should review the implementation of section 11 (Education) of the Northeastern Quebec Agreement.

The Department reported in July 2005 that Quebec was in the process of appointing a negotiator. By the time of its February, 2006 update the Department was able to report that Quebec was still in the process of appointing a negotiator but in the meantime had an interim negotiator in place who was updating some files.

The Commission notes that this sort of bureaucratic and administrative delay has been and continues to be an excuse for failure to get the job done.

25. The Government of Canada must adequately discharge its responsibility and undertake timely and appropriate measures in consultation with the Naskapi Nation to ensure the protection of Naskapi rights and interests in the present negotiations respecting the establishment of a Nunavik government.

The Department responded by saying that a four party (Inuit, Naskapi, Quebec and Canada) process had been set up to consider the issues. In the subsequent update the Department reported that it was in the process of providing detailed information to the Naskapi. DIAND was confident that this process would yield positive results.

The Commission later heard from the Naskapi that the process was not producing the desired results and they consequently filed a representation with the Commission under the provisions of section 165 (1)(b) of the Cree-Naskapi (of Quebec) Act. Canada is currently asserting that the Commission lacks jurisdiction to hear the representation. The Commission, as stated in the “Conclusions” of the present Report considers that Canada has a legal obligation to act in the best interests of the Naskapi Nation in this matter. The Commission intends to pursue the Naskapi representation despite Canada’s position.

26. As Canada and Quebec have assured the Naskapi Nation that they were ready to sign a tripartite policing agreement, the governments should proceed with its execution.

The Department reported that the agreement had been signed. In its update, DIAND confirmed that it was anticipating problems with Quebec in coming to an agreement on apportionment of funding between the two governments.

27. Canada and the Naskapi authorities should discuss and negotiate appropriate measures to ensure the provision of electricity for the community of Kawawachikamach.

The Department stated that the matter was one for resolution among the Naskapi, Quebec and Hydro-Quebec. In its update, DIAND reported that Hydro-Quebec and Newfoundland Hydro had acquired the Menihek dam from IOC and continuity of hydro service was assured.

28. The federal and Naskapi authorities should determine and agree on the present and future needs of the Naskapi community of Kawawachikamach respecting housing and develop and implement a strategic master plan, in the short and long term, to address these needs consistent with the spirit and intent of the Northeastern Quebec Agreement and related agreements.

The Department reported that it was committed to Aboriginal communities “having access to relevant federal programs and funds.” It also reported that officials had met with CMHC and AFN to discuss ways of improving the housing situation. In the later update DIAND reported that the Naskapi had received 4 housing units from CMHC and 1 unit from the Department.

The current use of a nationally developed formula for the allocation of housing units among First Nations works to the disadvantage of certain individual First Nations including the Naskapi (and the Cree).

* Each italicized paragraph is quoted directly from the corresponding recommendation contained in Chapter 6 of the 2004 Report of the Cree-Naskapi Commission.
** The responses of the Department of Indian Affairs are taken from a letter from Michel Blondin, James Bay Implementation Office received in July 2005. The responses described as “updates” were made in person by Mr. Blondin at the Special Implementation Hearings in February 2006.

After a review and analysis of the presentations, submissions and comments of the representatives of the Cree, Naskapi and federal authorities, the Cree-Naskapi Commission submits the following recommendations:

Implementation of the James Bay and Northern Quebec Agreement

1. The Government of Canada and the Cree Nation of Eeyou Istchee must enter into a new relationship that reflects the implementation of the spirit, intent and letter of the James Bay and Northern Quebec Agreement. The present Chrétien-Namagoose process should conclude with an agreement on a new relationship between Eeyou of Eeyou Istchee and the Government of Canada in a manner which sets out an acceptable way of implementing Canada’s obligations to the Crees under the JBNQA.

Cree Housing

2. The Minister of Indian Affairs and Northern Development should consider and support the Cree Housing Proposal submitted by the Crees to the Government of Canada on November 3, 2005. Furthermore, Canada and the Crees should negotiate an agreement on Cree housing that respects existing agreements and understandings and is consistent with the spirit and intent of the present new relationship discussions.

3. The Government of Canada and the Cree Nation of Eeyou Istchee should review and revise through discussions and agreement the amount and basis of the adjustment to the funding levels of the Operations and Maintenance Funding to ensure financial capacity to address new needs of the communities which were not contemplated in 1984 when the Cree-Naskapi (of Quebec) Act came into force.

Implementation Mechanism for the Cree-Naskapi Commission

4. The Grand Council of the Crees (Eeyou Istchee), in collaboration with the local governments of the Eeyou communities, should develop an implementation mechanism for the findings, conclusions and recommendations of the biennial reports of the Cree-Naskapi Commission.

Administration of Justice

5. As the rule of law and an efficient administration of justice are essential for the social well-being of the Cree communities, the Eeyou, Canada and Quebec parties to the JBNQA should review section 18, in particular the implementation of paragraph 18.0.37, of the JBNQA in order to address the present problems and issues in the administration of justice within the Cree communities.

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

6. The federal and Eeyou authorities should establish a table of discussions on the process for the implementation of and amendments to the Cree-Naskapi (of Quebec) Act.

Cree Nation of Washaw Sibi

7. The Government of Canada, Grand Council of the Crees (Eeyou Istchee) and the Washaw Sibi Eeyou should establish a formal table of discussions on the following:

a) recognition of the Washaw Sibi Eeyou as the tenth Cree First Nation within the framework of the JBNQA; and

b) full enjoyment of the benefits and rights under the JBNQA for the Washaw Sibi Eeyou; and

c) federal assistance for the establishment of a new village for the Washaw Sibi Eeyou.

Ouje-Bougoumou Cree Nation

8. Through the current Chrétien-Namagoose process, Canada, Cree Nation of Eeyou Istchee and the Ouje-Bougoumou Cree Nation should discuss and settle the following issues and concerns of the Ouje-Bougoumou Crees:

Cree First Nation of Waswanipi

9. The Grand Council of the Crees (Eeyou Istchee) and the Cree First Nation of Waswanipi should jointly formulate and submit a statement and/or claim to the Government of Canada on the following issues of Waswanipi:

10. Through the current Chrétien-Namagoose process, the Government of Canada, Grand Council of the Crees (Eeyou Istchee) and the Cree First Nation of Waswanipi should discuss and settle the needs of Waswanipi for economic development and capital projects.

11. The present and future housing and expansion needs of the Cree Nation of Chisasibi should be discussed and settled through the present Chrétien-Namagoose process.

12. As the airport building of the Chisasibi airstrip had been completed and is currently in operation, Block D should be designated forthwith as part of Category IA land for the exclusive use and benefit of the Cree Nation of Chisasibi by the Government of Canada.

Whapmagoostui First Nation

13. Canada and the Whapmagoostui First Nation should determine the issues and needs of the Whapmagoostui Crees respecting the expansion of their community.

Naskapi Nation of Kawawachikamach

14. The Government of Canada, Naskapi Nation of Kawawachikamach and other parties concerned should forthwith settle the mandate of the Naskapi-Inuit-Canada-Quebec Working Group which should commence to address the concerns of the Naskapi Nation respecting the current negotiations on the establishment of the Nunavik Government.

15. The Government of Canada should settle its cost-sharing dispute with Quebec over the costs of providing policing services to the Naskapi of Kawawachikamach.

16. The Government of Canada and the Naskapi Nation of Kawawachikamach should settle the issue of the housing allocation process of the CMHC and determine the present and future housing needs of the Naskapi.

During the Special Implementation Hearings of the Commission, some of the representatives of the Cree communities and the representative of the Department of Indian Affairs and Northern Development expressed some hope that the current Chrétien-Namagoose process will resolve some of the issues and concerns raised by the Cree authorities. The Commission will monitor and follow the discussions and results of this process with great interest.

However, the Naskapi Nation of Kawawachikamach and the Washaw Sibi Eeyou have invoked the duty and responsibility of the Government of Canada to act in a fiduciary capacity with respect to them. Both aboriginal nations claim that Canada has been derelict in its duty to protect their rights and interests in light of their present situation as described in the past and present reports of the Commission.

In the landmark decision of Guerin v. the Queen ¹ (1984), the Supreme Court of Canada confirmed that the Government of Canada has a duty to act in the best interests of Aboriginal peoples.

According to the courts, the basis of this fiduciary obligation is rooted:

a) in the historical relationship between the Crown and the Aboriginal peoples; and

b) in the unique and special relationship Aboriginal peoples have with their lands.

In R. v. Sparrow ², the Supreme Court of Canada said:

The sui generis [unique] nature of Indian title, and the historic powers and responsibilities
assumed by the Crown constituted the source of such a fiduciary obligation. In our opinion, Guerin,
together with R. v. Taylor and Williams (1981), 34 O.R. (2d) 360, ground a general guiding
principle for s. 35 (1) [of the Constitution Act, 1982, which recognizes and affirms existing
aboriginal and treaty rights]. That is, the Government has the responsibility to act in a fiduciary

capacity with respect to aboriginal peoples. The relationship between the Government
and aboriginals is trust-like, rather than adversarial, and the contemporary recognition and
affirmation of aboriginal rights must be defined in light of this historic relationship.

Professor Brian Slattery explains this “historic relationship” in an article which has been quoted by the
Supreme Court of Canada. Professor Slattery says: ³

The Crown has a general fiduciary duty towards native people to protect them in the enjoyment of
their aboriginal rights and in particular in the possession and use of their lands. This general
fiduciary duty has its origins in the Crown’s historical commitment to protect native peoples from
the inroads of British settlers, in return for a native undertaking to renounce the use of force to
defend themselves, and to accept instead the protection of the Crown as its subjects. In offering its
protection, the Crown was animated less by philanthropy or moral sentiment than by the need to
establish peaceful relations with peoples whose friendship was a source of military and economic
advantage, and whose enmity was a threat to the security and prosperity of the colonies. The
sources of the general fiduciary duty do not lie, then, in a paternalistic concern to protect a “weaker”
or “primitive” people, as has sometimes been suggested, but rather in the necessity of persuading
native peoples, at a time when they still had considerable military capacities, that their rights
would be better protected by reliance on the Crown than by self-help.

The existence of a fiduciary relationship between Canada and Aboriginal peoples was also recognised by
the Royal Commission on Aboriginal Peoples in its 1996 report: ⁴

[T]he government cannot treat Aboriginal peoples as if they were adversaries. On the contrary, it
must be mindful of the trust-like relationship with them and recognize and protect their Aboriginal
rights as a trustee would protect them.

Consequently, the Commission concludes that the Government of Canada has a legal, as well as a moral
and political, duty to act in the best interests of Aboriginal peoples. In particular, Canada must, in a
responsible and positive manner, exercise its fiduciary duty in the conduct of its relations with the
Cree and Naskapi Nations of Quebec.

End Notes