Report of the Cree-Naskapi Commission

Map of the boundaries containing the Cree-Naskapi lands between the 80th and 60th parallels of longitude and the 49th and 57th degrees of latitude. Photograph of Billy Diamond

A TRIBUTE TO NATION BUILDERS

Billy Diamond

(May 17, 1949 – September 30, 2010)

Billy Diamond, a Waskaganish Eeyou, was born on May 17, 1949 in a tent near Waskaganish, Eeyou Istchee. As a young Eeyou, he attended Indian Residential Schools in Moose Factory, Ontario and Sault Ste. Marie, Ontario. On July 7, 1970, at the age of 21, Billy Diamond was elected as Chief of the Crees of the Waskaganish First Nation. When the Government of Quebec, in 1971, announced the first James Bay Hydroelectric Development Project, the Eeyou of Eeyou Istchee, who were not consulted about this proposed project which would flood Eeyou hunting territories, opposed the project. Chief Diamond was appointed spokesperson by the Eeyou Chiefs in the campaign to stop the proposed hydroelectric development project.

In 1974, when the Grand Council of the Crees (Eeyou Istchee) was established, Chief Diamond was elected the Grand Chief. Under the leadership and direction of Grand Chief Diamond, the Eeyou went to court and won a court injunction against the hydroelectric development project. Grand Chief Diamond also directed and participated in the negotiations that led to the signing of the 1975 James Bay and Northern Quebec Agreement—an out-of-court settlement as well as a first modern-day treaty.

As a representative of the Eeyou of Eeyou Istchee and the Assembly of First Nations, Grand Chief Diamond participated in the constitutional conferences of 1982 and 1983. He was instrumental, as a negotiator, in getting the recognition and protection of Aboriginal and treaty rights into the Constitution Act, 1982. The inclusion and enactment of section 35 of the Constitution Act, 1982, provides a strong and unequivocal constitutional support for the rights of the Cree Nation of Eeyou Istchee and indeed for all the Aboriginal peoples of Canada.

In recognition of his leadership in the negotiation of the James Bay and Northern Quebec Agreement, Chief Diamond was made a Chevalier of the Ordre National du Québec. Subsequently he was awarded a honourary LLD by Carleton University. In 1997, he received a National Aboriginal Achievement Award.

As Chief and Grand Chief, Billy Diamond was a visionary leader with commitment, determination and perseverance.

CREDITS

Writing

Richard Saunders, Chairman

Philip Awashish, Commissioner

Design and production

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Translation

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George Guanish (Naskapi)

Bill Jancewicz (Naskapi)

Louise Blacksmith (Cree)

Photography

Gaston Cooper

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Contact us

Cree-Naskapi Commission

222 Queen Street, Suite 305

Ottawa, Ontario K1P 5V9

telephone: 613 234-4288

facsimile: 613 234-8102

toll-free: 1 888 236-6603

ACKNOWLEDGEMENTS

This report is the result of the contributions, input and efforts of many individuals and organizations. The information and ideas upon which the Commissioners based our findings and recommendations would not have been possible without the Cree and Naskapi Elders, Chiefs and youth who participated in the Special Implementation Hearings held in February 2012. The Grand Council of the Crees (Eeyou Istchee), the Naskapi Nation and the Cree Trappers’ Association also made extensive and valuable presentations at those hearings. In addition, Aboriginal Affairs and Northern Development Canada provided written and oral responses to the recommendations contained in the 2010 Report that related to the federal government. We thank each of them for their assistance. Naturally, the Commissioners take responsibility for our interpretation of the ideas and information as well as for any errors or omissions. All of these contributions make it possible for us to provide a comprehensive review of implementation and related matters to the Minister, and through him, to Parliament.

Finally, the Commissioners would like to thank our staff for their excellent work: Brian Shawana, Gloria Dedam and Sandra Masson, whose dedication and continuous efforts make this report and indeed all of the work of the Commission possible.

Photograph of Philip Awashish

Philip Awashish

Commissioner

Philip Awashish was one of the principal Cree negotiators for the Cree Nation of Eeyou Istchee in the negotiations leading to the signing of the James Bay and Northern Quebec Agreement. For 40 years, he has served the Cree Nation of Eeyou Istchee in various capacities, such as the Executive Chief and Vice-Chairman of the Grand Council of the Crees (of Quebec) and the Cree Regional Authority, Chief and Councillor of the Cree Nation of Mistissini, and as a member to various bodies and committees created by the James Bay and Northern Quebec Agreement. In 2009, Philip Awashish received an honorary Doctor of Laws degree from McMaster University for his work on Eeyou governance and Eeyou law.

Photograph of Richard Saunders

Richard Saunders holds degrees in Political Science and Public Administration from Carleton University. He has worked for the Assembly of First Nations, the Indian Association of Alberta, and the Ontario, Alberta and federal governments. He also served as Director of Negotiations with the Government of Nova Scotia which, in 2002, signed an Umbrella Agreement with the Mi’kmaq Chiefs and the federal government. Richard was a member of the Cree-Naskapi Commission for three terms from 1986 to 1992. He has been Chairman since 1997.

Richard Saunders

Chairman

Photograph of Robert Kanatewat

Robert Kanatewat

Commissioner

Robert Kanatewat, Eeyou from Chisasibi, was instrumental in promoting the awareness of Eeyou rights as an executive member of the Indians of Quebec Association in the late 1960s and early 1970s. He was the principal plaintiff in Kanatewat v. James Bay Development Corporation when the Cree Nation decided to oppose the initial hydroelectric development in Eeyou Istchee. He was a chief executive involved in the negotiations leading to the execution of the James Bay and Northern Quebec Agreement. For many years, he has served the Eeyou of Eeyou Istchee as the Executive Chief of the Grand Council of the Crees (of Quebec), Chief of the Cree Nation of Chisasibi, and in various business enterprises. With the exception of one term, Robert Kanatewat has been a member of the Cree-Naskapi Commission since 1986.

June 30, 2012

Honourable John Duncan PC, MP

Minister of Aboriginal and Northern Affairs

Parliament Buildings

Ottawa, Ontario K1A 0H4

Dear Minister:

We are pleased to submit herewith the 2012 Report of the Cree-Naskapi Commission in English, French, Cree and Naskapi pursuant to the provisions of the Cree-Naskapi (of Quebec) Act. This is the thirteenth biennial report which we have submitted.

This report is based upon evidence presented at the Special Implementation Hearings held in Montreal February 8, 9, and 10, 2012 as well as upon a number of written submissions. During the course of the hearings we heard presentations from the Cree and Naskapi leadership, Elders and youth and the Cree Trappers’ Association as well as the Government of Canada. We also considered the issues raised during the two years since our 2010 Report in the course of formal representations as well as in informal presentations and discussions.

This report also contains a number of ideas for discussion as the Cree leadership and people consider possible structures and processes for inclusion in the Cree Nation Government and the Cree Nation Constitution.

We look forward to an early meeting with you to review our findings and recommendations especially those arising out of issues identified by the Cree and Naskapi communities.

Respectfully,

Cree-Naskapi COMMISSION

Signature of Richard Saunders

Richard Saunders

Chairman

Signature of Robert Kanatewat

Robert Kanatewat

Commissioner

Signature of Philip Awashish

Philip Awashish

Commissioner

222 Queen Street, Suite 305Ottawa, Ontario K1P 5V9Tel: (613) 234-4288Fax: (613) 234-8102Bureau 305, 222 rue QueenOttawa (Ontario) K1P 5V9Web Site: http://www.creenaskapicommission.net

TABLE OF CONTENTS

CHAPTER 7 ........................................................................................................................................80

Aboriginal Commissions, Tribunals and Boards: Some Reflections on the Experience of the Cree-Naskapi Commission

Message from the Chairman

35.(1) “The existing Aboriginal and treaty rights of the Aboriginalpeoples of Canada are hereby recognized and affirmed.” 1

The Thirtieth Anniversary of the Proclamation of “Section 35”

April 17, 2012 marked the thirtieth anniversary of the proclamation of the 1982 amendments to the Constitution of Canada, including section 35, which has proved to be a critical tool enabling the Supreme Court to enforce the terms and provisions of the treaties. As the Court observed in Badger: “They [treaties] create enforceable obligations based on the mutual consent of the parties.” 2

Within a few years, the Constitution had been further amended by adding the following: 35 (3) “For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.” 3 The late Chief Billy Diamond, as a senior negotiator with the Assembly of First Nations, had insisted upon the inclusion of this additional provision. He thereby achieved not only the guarantee that the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement would be protected as “section 35 treaties,” but also that future land claims agreements would enjoy the same protection.

So while Canadians are rightly celebrating the thirtieth anniversary of the patriation of the Constitution and particularly the Charter of Rights and Freedoms, all of us would do well to also celebrate the enactment of section 35, which finally provides a strong and unequivocal constitutional support for the rights of the Cree and Naskapi Nations and indeed for all the Aboriginal peoples of Canada.

The addition of section 35 (3), which guarantees that the rights recognized in modern-day land claims agreements will be respected and enforced by the courts is of special importance to the Cree and the Naskapi. It is part of the legacy of the late Chief Billy Diamond and deserves to be remembered and celebrated by all who value justice in Canadian society.

The Future of the Cree-Naskapi Commission

The Cree-Naskapi Commission has now been in existence for 26 years. When the Commission was established, it was unique—the first of its kind in Canada. There were no real examples upon which to model such a body. In spite of that, the Cree and Naskapi leaders negotiated the establishment of an institution that has carried out its responsibilities under the Act for more than a quarter of a century. As the Cree leadership and people engage in the process of governance development, the Commissioners are offering, in this report, some ideas and suggestions for the future of the Commission or a similar body based upon their experience with the application in practice of the present legislation. (Details can be found in Chapter 2 and Chapter 7.)

Cree and Naskapi Community Issues Addressed

This report also considers a variety of issues raised by elected Cree and Naskapi leaders, Elders, youth and other community members at the Special Implementation Hearings, in representations and in less formal discussions.

While the details of our findings and recommendations are provided elsewhere in this report, I must observe that some issues, both general and specific, are raised by the communities year after year and remain unresolved. These deserve some special effort on the part of all of us to get them addressed once and for all. A few general examples include housing backlogs, the need for changing some of the quorum requirements in the Act, and the need to address the needs of a burgeoning population of young people. At a more specific level, two notable examples are: the issue of transferring Block “D” lands to the Cree Nation of Chisasibi has been unresolved for decades and continues to be the subject of endless discussion; the issue of enabling Naskapi Nation police to issue tickets for by-law infractions has been raised often and has yet to be settled. These are only examples of a significant number of concerns that are raised year after year, so far, with little in the way of positive results.

There are numerous new and emerging issues that we have addressed throughout the present report. A few of the more notable examples include the increasing urgency of dealing with the intrusion of commercial and recreational activities into traditional territories, with the resulting adverse effects on traplines, and the exercise of related rights by beneficiaries. Canada, Quebec and the Cree and Naskapi Nations all have a role to play in reconciling traditional land use with appropriate non-traditional use and development. The Cree Trappers’ Association has made a number of suggestions to address this issue and the Commission has made specific recommendations as well.

Positive Results and Promising Developments

Quite naturally, many people approaching the Commission come to raise issues and concerns. Reporting on these is, of course, one of the Commission’s responsibilities. On the other hand, there are many positive and promising developments that also need to be reported. A few examples include:

These are just a few examples of the successful work that is being done day-to-day to ensure that the promise of the Agreements and the Act are delivering measurable results for the people and their communities.

END NOTES

Introduction and Background

Chapter One

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

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

The James Bay and Northern Quebec Agreement arose out of what was initially opposition by the Eeyou to proposed hydroelectric development in Eeyou Istchee. Quebec and Hydro-Québec, in April 1971, had announced the first major hydro electric development project without consultations with the Eeyou, who would be profoundly impacted by the proposed project. The litigation initiated by the Eeyou resulted, by a treaty process, to a negotiated settlement respecting the rights of Eeyou and development of natural resources in Eeyou Istchee. For the Eeyou, the treaty process was the way chosen to secure Eeyou rights and redefine relationships with Canada and Quebec.

The Agreement in Principle, signed on November 15, 1974 by the representatives of the Crees, Canada, Quebec and certain Crown corporations provided for 2,158 square miles of land as reserves (Category I lands) to the Crees, of which 1,274 square miles were to be administered under the Indian Act. In addition, section 16 of the Agreement in Principle stated that the “Band Councils will have certain powers ... in addition to those provided at present by the Indian Act.”

However, the Cree leadership, in the negotiations leading to the final agreement, which is the James Bay and Northern Quebec Agreement, rejected the restrictive and supervised regime of local government imposed on the Cree Bands by the Indian Act.

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

The Supreme Court of Canada, in a decision rendered on May 14, 2010, states:

“The Agreement, which is both an Aboriginal rights agreement and an intergovernmental agreement, establishes a comprehensive and elaborate regime for the administration of the James Bay territory…This Agreement, which was clearly intended to have force of law, has supra-legislative status. It came into force and bound the parties only after both provincial and federal legislation approving and giving it effect was in force, and includes a clause which clearly indicates that, in the event of a conflict, the Agreement is to be paramount over other federal and provincial laws of general application. Both provincial and federal authorizing legislation confirm the Agreement’s paramountcy. The Agreement has also constitutional status as it qualifies as a modern treaty for the purposes of s. 35 (3) of the Constitution Act, 1982.” 1

The Supreme Court clearly states that the James Bay and Northern Quebec Agreement has “constitutional status as it qualifies as a modern treaty for the purposes of s. 35 (3) of the Constitution Act, 1982.”

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

Section 9 (Local Government over Category IA Lands) of the James Bay and Northern Quebec Agreement provides that “there shall be recommended to Parliament special legislation concerning local government for the James Bay Crees on Category IA lands allocated to them.” 2

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

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

The representatives of the Cree and Naskapi parties and the Government of Canada arrived at an understanding as to the implications and impact of the Cree-Naskapi (of Quebec) Act, in the Statement of Understanding of Principal Points Agreed to by the Cree-Naskapi (of Quebec) Act Implementation Working Group, August 9, 1984. This Statement of Understanding states as follows:

“The Cree-Naskapi (of Quebec) Act is the cornerstone of the achievement of the full potential of the James Bay and Northern Quebec Agreement and Northeastern Quebec Agreement. The new structures which were created by the Agreements were meant to interface with properly constituted local governments. The Cree-Naskapi (of Quebec) Act is also the basis upon which the relationship with the Federal Government will be redefined. By way of the new Cree-Naskapi (of Quebec) Act, the Cree and Naskapi will be able to go beyond the restrictions inherent in the Indian Act and thereby assume full control in the administration of their communities and management of Category IA and IA-N Lands.” 3

Thus, the Cree-Naskapi (of Quebec) Act provides “for an orderly and efficient system of Cree and Naskapi local government, for the administration, management and control of Category IA and Category IA-N Land by the Cree and Naskapi Bands respectively, and for the protection of certain individual and collective rights under the said Agreements.” 4

Consequently, the Cree-Naskapi (of Quebec) Act, 1984, is the first legislation in Canada to provide some recognition of Aboriginal self-government. It redefines the relationship between the Government of Canada and the Cree and Naskapi peoples.

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

Bill C-28, An Act to Amend the Cree-Naskapi (of Quebec) Act, was introduced in the House of Commons on April 27, 2009. The legislation aims to implement Canada’s undertakings under agreements seeking to resolve longstanding issues under the 1975 James Bay and Northern Quebec Agreement (JBNQA). In particular, the legislation amends the Cree-Naskapi (of Quebec) Act, in respect of Cree Bands and Category IA land,

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

Part XII of the Cree-Naskapi (of Quebec) Act respecting the establishment, duties and operations of the Cree-Naskapi Commission came into effect on December 1, 1984.

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” 5 to the Minister who “shall cause the report to be laid before each House of Parliament.” 6

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.” 7

The Commission conducted Special Implementation Hearings in order to prepare for its present report. These hearings, conducted in Montreal on February 8–10, 2012, provided 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 present report constitutes the thirteenth (13th) 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.

Chapter 2 of the present report provides some reflections on the duties, opportunities, challenges and future direction of the Cree-Naskapi Commission as the Eeyou of Eeyou Istchee contemplate and plan the Cree Nation Government and the Cree Constitution.

Chapter 3 of the present report describes the evolution of Eeyou governance through Nation-Building as the meaning and practice of Eeyou governance has been and continues to be redefined by the Eeyou on the basis of rights, freedoms, values, culture, traditional law and customs, and the intent and spirit of the James Bay and Northern Quebec Agreement and its related Agreements.

Since its response to the 2002 Report of the Commission, Aboriginal Affairs and Northern Development Canada 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. It appears that the Department wants to improve its relations with the Commission as well with the Cree and Naskapi communities. These responses of Aboriginal Affairs and Northern Development Canada are useful, as the responsibility of the Minster to report on the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement expired in 1999. (Under the James Bay and Northern Quebec Native Claims Settlement Act, the Minister of Indian Affairs and Northern Development had the responsibility, between the years 1978 and 1998, to submit to the House of Commons a report on the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.) Consequently, the Commission reports and comments on these responses of the Department in its biennial reports. Chapter 4 of the present report outlines and comments on the response of Aboriginal Affairs and Northern Development Canada and others to the recommendations of the Commission outlined in its 2010 Report. In this manner, the Cree and Naskapi Nations are aware of the Department’s responses to their particular issues and concerns.

Chapter 5 (Concerns and Issues of the Eeyou (Cree) Nation and the Naskapi Nation of Kawawachikamach) of the present report outlines the issues and concerns of the Cree and Naskapi Nations as expressed at the Special Implementation Hearings of the Commission.

Since its establishment, the Cree Trappers’ Association (CTA) has evolved in a period of rapid changes to the political, economic and social landscape and environment of Eeyou society and Eeyou Istchee. The submission of the CTA made to the Cree-Naskapi Commission, on February 10, 2012, describes the role of the CTA in the context of these broad changes to Eeyou society and provides the Commission with some observations about the issues that will likely need attention in the coming years. Chapter 6 of the present report describes these changes and challenges.

As the Eeyou leadership and people consider the various structures and processes that they intend to include in the Cree Nation Government and the Cree Nation Constitution, the Cree-Naskapi Commission, in Chapter 7 of the present report, offers some ideas for consideration on the possible structure and process for an “arm’s-length” body where members of the Nation can raise issues and concerns, make suggestions, have an independent hearing and receive impartial findings and recommendations.

Chapters 8 and 9 of the present report describe the comments, recommendations and conclusions of the Commission respectively.

END NOTES

Some Reflections on the Cree-Naskapi Commission

Chapter Two

Now that the Cree Nation of Eeyou Istchee is in the process of considering governance issues, particularly the establishment of a Cree Nation Constitution, it is timely to reflect upon the past 26 years of work of the Cree-Naskapi Commission and to review how that experience may be of use in the current process.

What the Cree-Naskapi Commission Does

The Cree-Naskapi Commission has been in operation since 1986. During that period we have carried out our responsibilities under the Act by:

Existing Commission Processes: Opportunities and Challenges

In the course of our work, we have become aware of both the strengths and the weaknesses of the current legislation as it relates to the duties and powers of the Commission. We are also aware of the realities under which the Commission or any similar body created in the future must operate.

As it is presently constituted, the Commission has a relatively unfettered ability to consider any evidence, information or opinions concerning implementation of the Act and related matters, to draw such conclusions and make such recommendations as it deems appropriate. These findings, conclusions and recommendations form the basis of the biennial reports and must, by virtue of the Act, be submitted to the Minister who must table them in both Houses of Parliament. This gives the Commission an almost unique ability to guarantee that the views of those Cree and Naskapi organizations and individuals who raise issues, ideas and concerns with the Commission will have those matters brought to the attention of not only the Minister and officials but also MPs and Senators. The fact that the Standing Orders of both the Senate and the House require that Commission reports be referred to the appropriate Committees and that the Commission often appears before these Committees, further increases the awareness among Senators and MPs of issues arising in the Cree and Naskapi communities.

This does not necessarily mean that their issues will be addressed as everyone may have wished. It does mean that they will be heard and will be more likely to be acted upon than if they had not received this type of exposure.

The handling of representations and complaints under the current legislation is both an opportunity and a challenge. On the positive side, it gives any person or organization an opportunity to raise with the Commission, which is and is usually seen to be an independent, arm’s-length body, any concern falling within the parameters spelled out in the Act viz.

165. (1) The Commission shall … (b) except as provided by subsections (2) and (3), investigate any representation submitted to it relating to the implementation of this Act, including representations relating to the exercise or non-exercise of a power under this Act and the performance or non-performance of a duty under this Act.

Over the past number of years, the Commission has received representations from Cree and Naskapi individuals, Cree and Naskapi governments and organizations, the (then) Department of Indian Affairs and others. In general, the Commission has had good cooperation from both those making representations and the respondents.

Possible challenges associated with the process include the fact that the Commission has only the power to make recommendations, rather than enforceable decisions. In practice, however, this is not a real problem. If the Commission had such powers, its decisions would of course be subject to appeal and the results, in fact, would be to have added another layer to the judicial process. More importantly, if the Commission were to use the adversarial model with all its necessary formal and often complex procedural protections, that would mean a slower and much more costly process.

Given these considerations, the present role of the Commission as a recommendation-making rather than a decision-making body is probably exactly what is needed. The court system can always address conflicts and complaints in which an enforceable decision is the desired outcome. The Commission’s processes encourage a non-adversarial approach, and this, in our view, is a desirable thing particularly in matters involving individuals and their community or nation governments.

The Commission has no power of subpoena and so cannot compel anyone to appear and give evidence, produce documents, etc. In some circumstances this could be a problem; however, in practice it has not been much of an issue. If the Commission could issue subpoenas, etc., individuals would be entitled to seek the quashing of the subpoena with the resultant entry of formal legal procedures, the increased use of lawyers, etc. This would make the Commission processes less informal, more time-consuming, more costly and less able to maintain a non-adversarial approach in the community.

In conclusion, based upon our experience over a number of years, the Commissioners feel that the current power of the Commission to make recommendations rather than decisions is a good thing and should continue.

The Changing Reality in which the Commission Operates

When the Commission began operations in 1986, it was a new and, in many ways, a unique body. No other First Nation had a legislatively-based, independent “watchdog” type of body. The ways in which the Commission could interact effectively with political, bureaucratic and community groups as well as with individuals were then unknown. A great deal has been learned by experience. Some of the factors influencing our effectiveness have changed; some have not. The Commission itself has changed in ways that we hope have increased our effectiveness.

One factor that remains problematic is the extent to which the Minister is able to be effective not only in addressing recommendations of the Commission specifically, but also in having the necessary scope and depth of direction of the extensive legal, policy and program, and financial responsibilities of his portfolio.

In our experience, Ministers’ ability to achieve an effective breadth and depth of control of their portfolio is limited by several things:

Future Directions

The Cree Nation of Eeyou Istchee is currently in the process of developing a nation constitution. The Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee lists issues that the parties agree to address, including “a review of the role of the Cree-Naskapi Commission, and particularly having regard to avoiding duplication with processes or bodies provided for under this Agreement or the Governance Agreement.” 1

In 1991, the Report of the Inquiry into the Cree-Naskapi Commission (the “Cowie Report”) made numerous detailed recommendations that have not been acted upon. These recommendations should be reviewed and considered when the future of the Cree-Naskapi Commission is being discussed.

If it is decided to continue to make use of an independent, arm’s-length commission, there are a number of issues that will need to be considered. These include:

Broader discussions could include whether a future Commission might have a role in relation to matters involving the province as it does in relation to matters involving the federal government. Such a change would involve either a formal (legislative) or informal commitment from Quebec.

Recent amendments to the Act, including the Cree Regional Authority’s by-law making role, are now subject to being looked at by the Commission in the same way as Band Council by-laws. The implications of this new role should be considered.

Finally some of the technical questions relating to Aboriginal Commissions, Tribunals and Boards in general apply and need to be looked at as the future of the Commission or a similar body is considered. (These issues are discussed in more detail in Chapter 7.)

END NOTE

Eeyou Nation-Building Through Eeyou Governance

Chapter Three

1.Introduction

When Eeyou leaders met in Mistissini, Eeyou Istchee, on June 29 and 30 and July 1, 1971, they made some important decisions. This meeting was the first time in their history that Eeyou leaders from other Eeyou communities ever sat together to discuss their rights, interests and future. In addition to deciding to oppose the then recently announced James Bay Hydroelectric Development Project, the Eeyou leaders decided to act together, as one nation, and speak with one voice. In deciding this course of action through consensus, the Eeyou exercised self-determination as the collective power of choice. This decision to recognize and acknowledge the importance of collective rights, collective interests, collective responsibilities and collective action as one nation led to the empowerment of the Eeyou of Eeyou Istchee to protect their rights and interest. This action and expression of Eeyou unity, as one nation, to protect their collective rights and interests was also the beginning of a form of the Eeyou Nation Government. It led, in 1974, to the establishment of the Grand Council of the Crees (Eeyou Istchee).

Foremost, the Eeyou 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 Eeyou of Eeyou Istchee. The words “Eeyou Weesou-way-tah-moo-wun” are best described as “determination by Eeyou” or Eeyou self-determination, which is the power of choice in action.

Self-government is one path the Eeyou have taken in putting the right of self-determination into effect. Self-government flows from the exercise of the right of self-determination. In its most basic sense, it is the ability to assess and satisfy needs without outside influence, permission or restriction. The Eeyou have asserted and will continue to exercise their inherent right of self-determination arising from their status as distinct or sovereign peoples. This right entitles them to determine their own governmental arrangements and the character of their relations with Canada and Quebec.

The exercise and practice of Eeyou Tapay-tah-jeh-souwin (Eeyou Governance) and Eeyou leadership has evolved from the exercise of Eeyou Weesou-way-tah-moo-wun or Eeyou self-determination. In particular, the Eeyou, in their relations with non-Eeyou governments, have developed and implemented a “just do it” approach in the evolution of governance. In some cases, the Eeyou have established and determined their relations with non-Eeyou governments through treaty arrangements and agreements with the non-Eeyou governments. 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.

Based upon Eeyou experiences, and to a large extent, Eeyou-Canada-Quebec relations will also determine the co-existence of Eeyou and non-Eeyou governments. Nevertheless, the Eeyou have developed their systems of governance and leadership process.

In the first contacts and relations of the Eeyou with non-Eeyou governments, particularly, the Government of Canada exercised complete domination and control of Eeyou lives and affairs. Eventually, with the consent of the federal authorities, the Eeyou of Eeyou Istchee were mostly administrators and managers, running programs and services designed by federal authorities. So this particular relationship was mostly about administration rather than governance. In this case, the Eeyou, like other First Nations across Canada, took over and managed federal programs from the Department of Indian Affairs and Northern Development (currently known as Aboriginal Affairs and Northern Development Canada) and other federal departments.

However, the Eeyou of Eeyou Istchee changed this pattern of governance through the negotiation and implementation of the James Bay and Northern Quebec Agreement (JBNQA), a modern-day treaty. The Eeyou Nation, through their local and regional governments, seized more authority and power.

The Eeyou also exercised their form of Nation governance through the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority. The Cree Regional Authority, an Eeyou regional administrative authority, was created pursuant to the terms of the James Bay and Northern Quebec Agreement. The Eeyou people governed, asserting the rights and capacities not only to mange service and program delivery but also to build their nation according to their design, to make and enforce laws, to develop and pursue long-term strategies of community and economic development, to negotiate new relationships with other governments, and to exercise meaningful jurisdiction over lands and people within their lands. The more recent new relationship agreements between the Eeyou and Canada and Quebec, and the framework agreement on governance with Quebec, will enhance local and Eeyou Nation governance. In taking this journey, the Eeyou Nation and people have marked out a path to Eeyou self-government. This journey and shift to self-government is a fundamental aspect of nation-building as the Eeyou of Eeyou Istchee have reclaimed governance as an Aboriginal right and activity.

But nation-building and hence self-government are continuous activities that must develop and sustain an Eeyou society that works—economically, socially, culturally and politically.

For the Eeyou, amongst other goals, nation-building is about maintaining and developing culture and identity; supporting self-governing institutions; and sustaining traditional and alternative ways of making a living and hence determining what constitutes the present Eeyou way of life. It is about giving people choice in their lives and maintaining appropriate forms of relationship with their own and with other societies.

In order to understand and appreciate the evolution of Eeyou governance through nation-building, one must first consider the state of Eeyou governance before the JBNQA was negotiated and signed by Eeyou and non-Eeyou governments and other parties.

2. Eeyou Governance before the 1975 James Bay and Northern Quebec Agreement

The leadership and vision of the Eeyou treaty-makers led the Eeyou Nation on its journey to its modern-day treaty—the James Bay and Northern Quebec Agreement, which was signed by, amongst others, the representatives of Eeyou, Canada and Quebec on November 11, 1975. This treaty-making journey contains the main principles and values of leadership: vision, empowerment, unity, commitment, humility, respect, trust, participation, diversity, creativity, integrity and community. It is a journey about visionary leadership based on forming and clarifying one’s own dreams and ideas, sharing those ideas, transforming those dreams into actions and engaging the help of others to bring dreams and ideas to reality. It is also a story

of the youth of the time working with the Elders and leaders and some as leaders to pursue the nation’s vision and goals. This particular journey is about empowerment of the people, nation-building and the quest for social justice.

What was the vision as the treaty-makers and leaders of the Eeyou in the early 1970s?

The Eeyou vision back in the early 1970s was a strong desire and will to change the social, political and economic status and situation of the Eeyou as reflected by Eeyou history, experiences and state of the Eeyou Nation and people at the time.

In the early 1970s, before the execution of the JBNQA, the following brief and general summary describes the sociopolitical situation and conditions of the Eeyou, their local government and administrations, and governmental relations:

Consequently, the vision of the Eeyou Treaty-makers and leaders entailed changing the Eeyou world and making it a better world for the Eeyou of Eeyou Istchee through nation-building. The Eeyou wanted to maintain and protect Eeyou Pimaatehsouwin (the Eeyou way of life) and Eeyou Eehdou-wun (Eeyou culture and the Eeyou way of doing things). The Eeyou wanted their rights recognized and protected. They wanted to pursue their traditional way of life as well as enable those who wanted to participate in the contemporary wage economy. The Eeyou wanted to be in control of their affairs, institutions, communities and governments … in effect to govern themselves. They wanted community and economic development but under their terms. They wanted respect and participation in the development and management of natural resources in Eeyou Istchee. They wanted responsible and sustainable resource development that took into account their concerns and interests. In other words, the Eeyou wanted to change the Eeyou world and make it a better place. The Eeyou of Eeyou Istchee had this common and shared vision. This vision united the Eeyou people as one nation with one voice. This unity enabled nation-building and strengthened and empowered the Eeyou Nation. But the Eeyou had to wait with patience until the time and circumstances were right to make these changes happen.

The 1975 James Bay and Northern Quebec Agreement arose out of what was initially opposition by Eeyou to proposed hydroelectric development in Eeyou Istchee. Quebec and Hydro-Québec, in April 1971, had announced the first major hydroelectric development project without consultations with the Eeyou who would be profoundly impacted by the proposed project. The litigation initiated by the Eeyou resulted, by a treaty process, in a negotiated settlement respecting the rights of the Eeyou and development of natural resources in Eeyou Istchee. For the Eeyou, the treaty process was the path chosen to further the process of nation-building, secure Eeyou rights such as self-governance, and redefine relationships with Canada and Quebec.

3. James Bay and Northern Quebec Agreement, its related Agreements and Eeyou Governance

The negotiations, from 1973 to 1975, that led to the signing of the Agreement in Principle (November 15, 1974) and the James Bay and Northern Quebec Agreement (November 11, 1975) were a rare opportunity for the Eeyou to achieve recognition of particular rights, guarantees and benefits for their distinct society and way of life based on their central and special relationship with their historical and traditional territories—Eeyou Istchee. The negotiations and the James Bay and Northern Quebec Agreement also provided a means for achieving, to some extent, the Eeyou vision for the enhancement and advancement of Eeyou governance, but the Eeyou were constrained by the existing political and legal environment of the 1970s. These constraints have resulted in a very complex and perplexing Treaty.

The legal system of limited and supervised law-making powers of Bands under the Indian Act was an impediment for the proper exercise of local autonomy and local government. Under the Indian Act, the Minister of Indian Affairs and Northern Development (currently known as Aboriginal Affairs and Northern Development Canada) had disallowance and veto powers over decisions and legislation as determined by the Chief and Council of each Eeyou community as well as other First Nation communities in Canada. The Indian Act was also a serious barrier to economic development as the Act failed to create Bands as a legal entity with the capacity to assume contracts and other legal obligations and responsibilities. Furthermore, the Indian Act and the Department of Indian Affairs came to be regarded by the Eeyou of Eeyou Istchee as instruments and agents of intrusion and domination of Eeyou affairs and Eeyou governance.

By 1970, the Eeyou saw and still agree that progress in self-government, in social and economic development and in eradicating the social ills afflicting them, cannot and could not be accomplished within the confines of the Indian Act and the dominating administrative arm of the Department of Indian Affairs. Consequently, for the Eeyou, the comprehensive control and domination asserted by the federal government over Eeyou society through the Indian Act and the Department of Indian Affairs became the catalyst for change in Eeyou and federal relations.

Thus, the Eeyou Nation of Eeyou Istchee negotiated a change in relations with the Government of Canada and the Government of Quebec through the terms and provisions of the James Bay and Northern Quebec Agreement.

However, the signing of the James Bay and Northern Quebec Agreement did not mark the end of conflicts, disputes and negotiations. Rather it signaled the beginning of continued interaction between the Cree of Eeyou Istchee and the Government of Quebec, Government of Canada and Hydro-Québec over the implementation of the letter, intent and spirit of the terms and provisions of the James Bay and Northern Quebec Agreement.

This continued interaction between the Cree, Canada and Quebec often resulted to confrontations and conflicts over the failure of Canada and Quebec to honour and respect their commitments, responsibilities and obligations to the Crees under certain terms and provisions of the JBNQA.

To improve and facilitate the implementation of the James Bay and Northern Quebec Agreement, the following agreements were made:

The James Bay and Northern Quebec Agreement and related Agreements have substantially changed and will continue to change the political, social and economic landscape of Eeyou Istchee. In particular, amongst other purposes, these agreements recognize and advance Eeyou Governance such as traditional Eeyou Indoh-hoh Istchee governance, Eeyou public governance, local Eeyou governance and Eeyou nation governance.

3.1 Traditional Eeyou Indoh-hoh Istchee Governance - Indoh-hoh Istchee Ouje-Maaooch (Eeyou Traditional System of Governance of Hunting Territories)

The Eeyou of Eeyou Istchee consider themselves as the guardians, stewards and custodians of Eeyou Istchee. Therefore, the Eeyou, as a nation, have established traditional law and customs respecting the use, occupation and governance of Eeyou Istchee.

First, the Eeyou established and implemented the system of “Indoh-hoh Istchee” as part of the Eeyou land tenure system. The Eeyou established units of Indoh-hoh Istchee throughout Eeyou Istchee. (The Indoh-hoh Istchee system pre-existed the trapline system, which came into existence for managing the harvesting of fur-bearing animals. In fact, the organizational plan of the Government of Quebec respecting its Beaver Preserves and registered traplines reflect elements of the Eeyou Indoh-hoh Istchee system. Therefore, one should not consider the registered trapline system as being the same or replacing the Eeyou Indoh-hoh Istchee system. The registered trapline system is a tool for the management of fur-bearing animals by the Government of Quebec. Before the existence of the JBNQA, registered traplines were licensed under the Fish and Game Act of Quebec.)

The JBNQA recognizes the continuity of the system of “Cree traplines.” The “Indoh-hoh Istchee” system of the Eeyou is the “Cree trapline” system contemplated by the JBNQA. In fact, paragraph 24.1.9 of subsection 24.1 of section 24 of the JBNQA defines a Cree trapline as “an area where harvesting activities are by tradition carried on under the supervision of a Cree tallyman.” 1 The Cree trapline contemplated by the Agreement is intended to reflect the Indoh-hoh Istchee as determined and established by Eeyou traditional law and customs. Presently there are over three hundred (300) Indoh-hoh Istchee throughout Eeyou Istchee.

Secondly, in order to determine the exercise of governance and authority for each Indoh-hoh Istchee, the Eeyou established and implemented the system of Indo-hoh Istchee Ouje-Maaooch or Indoh-hoh Ouje-Maaooch (hereafter referred to as Indoh-hoh Ouje-Maaoo). The Indoh-hoh Ouje-Maaoo is generally referred to as the “Cree Tallyman” in the JBNQA.

Paragraph 24.1.8 of subsection 24.1 of section 24 of the JBNQA defines a Cree Tallyman as “a Cree person recognized by a Cree community as responsible for the supervision of harvesting activity on a Cree trapline.” 2

However, according to traditional law and customs, the Indoh-hoh Ouje-Maaoo has more than supervisory roles and functions. In general, the Indoh-hoh Ouje-Maaoo has the authority and responsibility for the proper stewardship, guardianship and custodianship of Indoh-hoh Istchee. In accordance with and subject to traditional law and customs, the duties and responsibilities of the Indoh-hoh Ouje-Maaoo include but are not limited to the following:

Weenbekou Eeyou (Coastal Eeyou) have established the system of Paasd-heejeh Ouje-Maaooch particularly for the purposes of goose hunting management within their respective Indoh-hoh Istchee. The Paasd-heejeh Ouje-Maaoo is ordinarily the same individual Eeyou who is the Indoh-hoh Ouje-Maaoo or Indoho Istchee Ouje-Maaoo.

In addition, the Eeyou have, by traditional law and customs, established rules and practices for a code of conduct for activity throughout Eeyou Istchee and within Indoh-hoh Istchee.

Section 30 (Cree Hunters and Trappers Income Security Program) of the James Bay and Northern Quebec Agreement and Chapter 3 (Forestry) of the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec enhance the authority of the Indoh-hoh Ouje-Maaoo. Under the Income Security Program, the status of the Indoh-hoh Istchee as a ‘near’ or ‘far’ harvesting territory can only be changed through the collaboration of the Indoh-hoh Ouje-Maaoo concerned. Furthermore, pursuant to the terms and provisions of the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec, Indoh-hoh Istchee will be used as a basis for delimiting the territorial reference units for the management of the adapted forestry regime. Sites of special interest to the Eeyou will be identified and mapped by the Eeyou in cooperation with Quebec. No forest management activities may be undertaken in these areas unless the Indoh-hoh Ouje-Maaoo agrees otherwise.

3.2 Board Governance, Public Governance and Co-Management Regimes

The James Bay and Northern Quebec Agreement and other related Agreements create or contemplate the creation of regional legal and corporate entities. Through these legal entities, the Eeyou of Eeyou Istchee exercise board governance as these entities are governed by a Board of Directors or by a similar body.

In many instances where these entities are providing programs and services through principal entities such as the Cree Regional Authority, the Cree School Board and the Cree Board of Health and Social Services of James Bay, the Eeyou have been and are continuing to exercise a form of self-administration of governmental programs and services. In addition, the Eeyou of Eeyou Istchee exercise a form of public governance through the Cree School Board and the Cree Board of Health and Social Services of James Bay over matters within their jurisdictions and responsibilities.

The Eeyou also participate in regimes of co-management with the Government of Quebec and Government of Quebec through the entities or bodies created by the James Bay and Northern Quebec Agreement and related Agreements. These entities usually are advisory and consultative bodies for the Eeyou, federal and provincial governmental authorities.

Furthermore, in some cases, the Eeyou of Eeyou Istchee exercise a form of co-management of funds, programs and projects with Hydro-Québec through the entities contemplated in the JBNQA and related Agreements.

In order to enhance Eeyou governance and to translate the concept of a new partnership and a redefined relationship between the Eeyou of Eeyou Istchee and the Government of Canada and the Government of Quebec into reality, the following principal institutions were established by legislation enacted and agreements concluded in accordance with the terms and provisions of the James Bay and Northern Quebec Agreement and related Agreements:

In addition, the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec and its side agreements establish or contemplate the creation of the following principal legal entities and bodies:

For the purposes of economic development, the Eeyou of Eeyou Istchee have established the following principal business ventures and corporations:

For social and cultural development, the Eeyou of Eeyou Istchee have established the following principal entities or corporations:

In addition, the local Eeyou First Nations and their respective governments have established other corporations and legal entities for economic development. Some examples are Mistuk (Waswanipi), Tawich (Wemindji), Wabannutao Eeyou Development Corporation (Eastmain), and Chisasibi Enterprises Reg’d (Chisasibi).

3.3 Eeyou Local Government

Pursuant to the terms and provisions of the James Bay and Northern Quebec Agreement, Eeyou Istchee was carved out into three categories of land. Lands classified as Category IA, under federal jurisdiction, and Category IB, 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 the Eeyou under the JBNQA, 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 respectively. 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, the Eeyou 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 “Indians” are 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.

Furthermore, the Cree-Naskapi (of Quebec) Act establishes the Cree-Naskapi Commission with a duty and responsibility to report biennially on the implementation of the said Act and related matters. Pursuant to its mandate, the Cree-Naskapi Commission has produced and submitted, so far, a total of twelve (12) biennial reports to the Minister of Indian Affairs who tables each report in both Houses of Parliament. The findings and recommendations of the Cree-Naskapi Commission pertain to the issues and concerns of the Cree and Naskapi communities, implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement and implementation of the Cree-Naskapi (of Quebec) Act. In particular, the Commission has recommended appropriate amendments to the Cree-Naskapi (of Quebec) Act with the objective of enhancing and advancing Eeyou local government. But the Act has, so far, not been amended to enhance and advance Eeyou local government and administration. Consequently, the Cree-Naskapi (of Quebec) Act, since its enactment by the Parliament of Canada about 28 years ago, remains a rigid, inflexible and unchanging instrument as it fails to evolve with the changing realities and dynamics of Eeyou local government.

Thus, the full potential of local Eeyou government, with its dynamic and evolving nature, has not yet been realized and achieved by the Eeyou of Eeyou Istchee.

The proper implementation of the Cree-Naskapi (of Quebec) Act has been difficult for all parties concerned, and it remains to be properly implemented and amended in a manner that reflects the spirit and intent of the JBNQA, as well as the needs and aspirations of the Eeyou of Eeyou Istchee for effective local governance.

First and foremost, effective local government depends upon a sound economic base. In this regard, an understanding between the Cree and the Government of Canada was concluded on a mechanism for the funding of Cree local government and administration and Cree regional administration of certain services and programs. However, the Government of Canada insists on funding agreements that fail to take into account the evolving needs and realities of Eeyou self-government. Such funding arrangements have often been conditional with subsequent political constraints.

The Cree-Naskapi (of Quebec) Act creates Band corporations that have the object of acting as the local government authority. Under traditional law, the Eeyou or the Eeyou Nation is the historical, traditional and present self-governing authority. The Eeyou consider themselves as the historical and traditional authority for the exercise of self-government. In practice, Canada delegates such authority to the Band corporations through federal legislation. For the Eeyou, the inherent right of Eeyou self-government should not be a derivative of federal authority. In fact, the Cree communities refer to themselves as Eeyou-Eenou or as First Nations and not as Bands or Band corporations.

Even though the Cree-Naskapi (of Quebec) Act flows from treaty arrangements, the Eeyou are still impacted by legislation of Parliament and the whims of federal officials in interpreting and implementing the legislation. Thus, the Government of Canada controls the process and results to ensure that the exercise of the right of self-government is contingent upon government consent. This particular arrangement has the tendency to force the Eeyou to create governance structures in the image of federal legislation and to live with them thereafter. The Eeyou inherent right of self-government is, however, by definition a right that pre-exists the authority of the federal and provincial governments, and which should exist independently of the agendas and policies of those non-Eeyou governments.

With respect to Eeyou Municipal Governments, pursuant to Section 10 (Cree Local Government (Category IB)) of the James Bay and Northern Quebec Agreement, Cree Village Corporations and Municipal Councils were established by provincial legislation for administration and control of Category IB lands that were and are presently uninhabited by people on a permanent basis. In addition, the Eeyou Municipal Governments have legislative authority over Category II and III lands for persons permitted to hunt and fish or conditions for commercial hunting thereon. The Category IB lands are municipalities governed by Eeyou Municipal Councils that do not have funds to function as municipal governments. This is an impediment for Eeyou governance.

Notwithstanding the legal regime of local government under the Cree-Naskapi (of Quebec) Act and other powers and responsibilities of the Eeyou for governance under the JBNQA, its related Agreements and subsequent legislation, the Eeyou continue to incorporate Eeyou law, traditions and customs in the exercise and practice of local government and Eeyou Nation governance. In this manner, the JBNQA and its related Agreements, the Cree-Naskapi (of Quebec) Act and other enabling legislation of Quebec and Canada are not exhaustive of the inherent right of Eeyou governance.

In general, the powers and authority of Eeyou governance arise also from long-standing practices based on Eeyou law, traditions and customs.

3.4 Eeyou Nation Governance

According to the Report of the Royal Commission on Aboriginal Peoples of November 1996, a nation government is identified by the following key characteristics:

Clearly, Eeyou-Eenou governance meets these key characteristics of a nation government.

In addition to the Eeyou traditional system of Indo-hoh Istchee governance, there are presently two levels of government within the Eeyou nation—the local Eeyou government and the Eeyou Tapaytahchehsou. (The term “Eeyou Tapaytahchehsou” should not to be mistaken as the Cree Regional Authority alone, as the Eeyou consider the Chisa-Oujemaakan (Grand Chief) and the Katach-skouwat Chisa-Oujemaakan (Deputy Grand Chief) of the Grand Council of the Crees (Eeyou Istchee) and the Oujemaakanch (Eeyou Chiefs of the local communities) as the Eeyou Ouje-Maaooch and collectively as Eeyou Tapaytahchehsou.)

As the Eeyou Nation is the traditional and historical authority of governance, the Eeyou of Eeyou Istchee exercises governance at a national level that extends beyond board governance, public governance and self-administration of programs and services. While the ‘nation government’ is not yet constituted under contemporary law, the Eeyou of Eeyou Istchee consider the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority (GCC(EI)/CRA) as a form of nation government.

By-law No. 13 of the Grand Council of the Crees (Eeyou Istchee), adopted at a special meeting of the Board of Directors of the Grand Council held in Val d’Or, Quebec on June 19, 1996 and sanctioned by the members of the Annual General Assembly held in Waswanipi on June 26, 1996, describes the object of the Corporation as acting as a regional council and as a regional government. Clearly, the Eeyou view the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority as a form of regional Eeyou government.

The Grand Council of the Crees (of Quebec) was established by the Eeyou of Eeyou Istchee in August 1974 as a political organization and incorporated pursuant to federal legislation. It began as a body representing the Cree Nation in the protection of Eeyou rights and interests. Therefore, the Grand Council of the Crees (of Quebec) represented the Eeyou of Eeyou Istchee in negotiations that led to the execution of the James Bay and Northern Quebec Agreement and the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec. (It is important to note that the Grand Council of the Crees was established pursuant to the expressed will of the Eeyou and did not emanate from the James Bay and Northern Quebec Agreement.) The Grand Council also represented, along with each local Eeyou government, the Eeyou Nation in litigation to protect Eeyou rights and interests. However, the Eeyou assert governance through the Eeyou Nation as it is the traditional and historical authority for the exercise of self-government. Consequently, the Grand Council of the Crees (Eeyou Istchee) exercises an Eeyou national form of governance for and by the Eeyou of Eeyou Istchee. While the Grand Council exercises board governance under contemporary law, it exercises nation governance under Eeyou law. After all, the decisions made by the Grand Chief, Deputy Grand Chief and the Eeyou Chiefs together affect all members of the Eeyou Nation. Furthermore the Grand Council of the Crees (Eeyou Istchee) does negotiate and make nation-to-nation treaties and conducts relations with other nations. In this regard, the GCC(EI) is a party to the Treaty Alliance of North American Aboriginal Nations signed in Oujé-Bougoumou, Eeyou Istchee on July 6, 1986. The North American Aboriginal Nations as parties to this Treaty “reaffirm their desire to live in peace with all peoples and governments; declare their determination to protect and preserve their peoples, lands, resources, heritage and culture; and agree to join their efforts at self-help and self-defense through mutual aid and assistance.”

In addition, the Grand Chief/Chairman and the Deputy Grand Chief/Vice-Chairman of the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority are elected by the Eeyou electors of Eeyou Istchee. The Chiefs are elected by the Eeyou electors of their respective communities. Consequently, the Grand Chief, Deputy Chief and the Eeyou-Eenou Ouje-Maakanch (Eeyou Chiefs) are the Eeyou-Eenou Ouje-Maaooch as elected leaders and officials of Eeyou nation governance. In fact, the ‘Board’ of the GCC(EI) is referred to as the Grand Council or Eeyou Tapay-tah-jeh-sou.

In addition, the Grand Council of the Crees (Eeyou Istchee), representing the Eeyou Nation of Eeyou Istchee, has established and maintains a Cree Embassy in Ottawa, Canada’s capital city. The Grand Council of the Crees (Eeyou Istchee) also conducts international relations and is active in the international community.

Since the establishment of the Grand Council of the Crees, the Eeyou have become a stronger nation with advancements and achievements that have benefited the Nation. In this regard, the unity of the Eeyou, acting as one Nation and one voice, is a major and fundamental factor. One must keep in mind the name of the Grand Council of the Crees (Eeyou Istchee) in the Eeyou language—Weenbaooch Nochemeweoch Ahnadamadooch—means coastal and inland Eeyou helping each other.

The Cree Regional Authority, under the control of the Eeyou, was established by provincial legislation for the administration of programs and services and the administration of the compensation funds payable to the Crees pursuant to the terms and provisions of the James Bay and Northern Quebec Agreement. The Board of Compensation manages the compensation funds. The Cree Regional Authority is mainly involved in the administration and delivery of programs and services to the Eeyou communities. The Eeyou, through the Cree Regional Authority, exercise self-administration of governmental programs and services. To some extent, the self-administration of governmental programs and services has impacted the principle of accountability of Eeyou authorities to the Eeyou, as these programs are funded by non-Eeyou governments that demand extensive accountability to the funding governmental department for the expenditure of public funds.

The Cree Regional Authority (CRA) or its successor is the “Native Party” for the Eeyou under the James Bay and Northern Quebec Agreement. Therefore, the consent of the Eeyou for any amendments to the JBNQA that affect the Eeyou must be obtained through the Cree Regional Authority. Consequently, the CRA, on behalf of the Eeyou of Eeyou Istchee, is the signatory of any such complementary agreement to the JBNQA.

The Cree Regional Authority appoints its representatives or members to the various bodies created by the James Bay and Northern Quebec Agreement and related Agreements. It also assumes certain financial responsibilities under the New Relationship Agreements. Clearly, in some instances, the Cree Regional Authority acts as a ‘government’ for the Eeyou of Eeyou Istchee.

In addition, one must recall the leadership crisis in the early 1980s, when the Eeyou had two leaders—the Grand Chief of the GCCQ and the Chairman of the CRA. A special assembly was convened to resolve the question of leadership. The assembly decided to make the leadership and board membership of the CRA the same as that of the GCCQ, which remained the principal authority. Consequently, the Grand Chief and the Executive Chief (presently the Deputy Grand Chief) of the GCC(EI) held the offices of the Chairman and Vice-Chairman of the CRA respectively. The members of the Executive of the GCC(EI) became the members of the Executive Committee of the CRA. In addition, the members of the Board of Directors of the GCC(EI) became the members of the Council of the CRA. In practice, the two principal Eeyou regional authorities became designated as the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority. Therefore, it is not conceivable to separate and alienate the present hierarchical system of Eeyou leadership from any evolution of an Eeyou Nation Government. This nation governance can be advanced further through a process in which the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority evolves as the principal authority in the Eeyou Nation Government. In any case, this evolution appears to be the present trend and direction of Eeyou Tapay-tah-jeh-souwin on the basis of the past and present exercise and practice of Eeyou governance by the Eeyou of Eeyou Istchee.

The Eeyou of Eeyou Istchee have an Eeyou legal system and law making authority. (The development and implementation of the Eeyou Indoh-hoh Istchee system is a direct result of the application of the Eeyou legal system and exercise of Eeyou law-making authority.) The Eeyou, as the traditional and historical authority in the exercise of governance, have established and continue to establish customary law and other Eeyou laws, which may evolve and take modern form. This evolution of Eeyou customary or traditional processes and practices is an expression of the will and sovereignty of the people exercised through the Eeyou nation decision-making process.

The inclusion of the Eeyou or beneficiaries of the JBNQA as members of the GCC(EI)/CRA is another compelling factor for Eeyou nation governance. The other principal entities such as the Cree School Board and the Cree Board of Health do not retain such membership. (The Cree School Board is a school board under the Education Act and the Cree Board of Health exercises the powers and functions of a Regional Council within the meaning of the Act respecting Health and Social Services.) However, these principal Eeyou regional authorities are instrumental in the exercise of Eeyou control over education, health and social services within Eeyou Istchee.

The Eeyou, acting in unity and as one nation through the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority, can further advance the evolution of Eeyou nation governance (and local governance) through the proper implementation of the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec, Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee and Framework Agreement between the Crees of Eeyou Istchee and the Gouvernement du Québec on Governance in the Eeyou Istchee James Bay Territory.

3.4 Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec

On February 7, 2002, in Waskaganish, Eeyou Istchee, the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and the Government of Quebec executed the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec (hereinafter referred to as the ‘New Relationship Agreement’.) The New Relationship Agreement was approved by the Eeyou in local referenda held by the Eeyou of Eeyou Istchee.

Quebec and the Eeyou of Eeyou Istchee enter into a nation-to-nation agreement that promises to strengthen the political, economic and social relations between Quebec and the Crees.

The New Relationship Agreement marks an important stage in a new nation-to-nation relationship based on openness, mutual respect and a greater responsibility of the Cree Nation for its own development within the context of a greater autonomy.

The Agreement recognizes an important right of the Eeyou to benefit from resource development within Eeyou Istchee. For the first time in Canada, the right of Aboriginal people to benefit from resource development within their own lands is recognized.

The New Relationship Agreement has the following purposes:

For the period of 50 years commencing from April 1, 2002, the Eeyou assume the obligations of Quebec concerning economic and community development under certain provisions of the James Bay and Northern Quebec Agreement.

For the period from April 1, 2002 to March 31, 2052, Quebec shall pay to the Eeyou of Eeyou Istchee an annual amount so that the Eeyou may assume for that period the obligations of Quebec, Hydro-Québec and the Société d’énergie de la Baie James to the Crees under certain provisions of the James Bay and Northern Quebec Agreement concerning economic and community development.

The assumption of these obligations by the Eeyou for Eeyou community and economic development with the annual payments from Quebec will definitely advance Eeyou governance, as Eeyou local and regional governments and authorities will determine and control community and economic development.

The Eeyou governing authorities will exercise powers and jurisdiction for the economic development and community development of the Eeyou communities. In fact, particularly over the past three decades, Eeyou governments have been exercising such powers and jurisdiction for economic and community development. The New Relationship Agreement facilitates and streamlines the exercise of such powers and jurisdiction in so far as Eeyou-Quebec relations are concerned.

The New Relationship Agreement refers to separate agreements between the Grand Council of the Crees (Eeyou Istchee) and Hydro-Québec. These separate agreements promise to promote and facilitate the participation of the Eeyou in hydroelectric development in Eeyou Istchee through partnerships, employment and contracts.

The Government of Quebec has undertaken to promote and facilitate the participation of the Eeyou in the development of other natural resources such as mining and forestry. This participation of the Eeyou was intended in the JBNQA but not implemented.

The Eeyou of Eeyou Istchee have agreed to suspend their lawsuits against the Government of Quebec in relation to matters that are purportedly settled by the New Relationship Agreement. In fact, the Government of Quebec hails the New Relationship Agreement as the “Paix des Braves.”

However, the Eeyou of Eeyou Istchee must adopt and exercise a cautious and alert approach in the proper implementation of the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec. After all, a peaceful, beneficial and effective nation-to-nation relationship is not simply about the absence of conflict, but most importantly, such a relationship is about the presence of social justice.

The New Relationship Agreement does not affect the obligations of Canada towards the Eeyou including those stipulated in the James Bay and Northern Quebec Agreement. Under similar circumstances and for corresponding purposes, the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and the Government of Canada executed the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee.

3.5 Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee

On February 21, 2008, in Mistissini, Eeyou Istchee, the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and the Government of Canada signed the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee. Paragraph 2.1 of Chapter 2 of this agreement states the following principal purposes:

Chapter 3 of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee sets out the intent of Canada and the Crees to have Canada recognize and equip the CRA with the tools to act as regional government, and it also sets out the intent to further develop the Cree Nation Government in a subsequent phase of negotiations.

Furthermore, under the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee, Canada has undertaken to seek amendments to the Cree-Naskapi (of Quebec) Act (CNQA) to achieve the following objectives:

In assuming certain responsibilities of the Government of Canada, the Cree Regional Authority has certain obligations in regard to the Cree Nation. For the term of Agreement, the CRA must assume the responsibilities of Canada under the JBNQA in regards to certain aspects of justice, certain Cree regional associations, training and employment services, community centres, essential sanitation services, fire protection and economic development. For this purpose, the CRA recently acquired new powers under the Cree-Naskapi (of Quebec) Act. These amendments came into force on February 1, 2010.

Under paragraph 3.10 of Chapter 3 of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee, the Cree Nation will develop a Constitution that shall reflect its values and beliefs, be effective as the fundamental law of the Cree Nation, and be consistent with the Governance Agreement.

The representatives of the Cree Nation of Eeyou Istchee are presently engaged in discussions with Canada and the Naskapis to review certain technical amendments to the Cree-Naskapi (of Quebec) Act and the JBNQA and to conclude an agreement respecting the Cree Nation Government.

3.6 Framework Agreement between the Crees of Eeyou Istchee and the Gouvernement du Québec on Governance in the Eeyou Istchee James Bay Territory

On May 27, 2011, in Quebec City, the Grand Council of the Crees (Eeyou Istchee) and the Government of Quebec signed the Framework Agreement between the Crees of Eeyou Istchee and the Gouvernement du Québec on Governance in the Eeyou Istchee James Bay Territory. This Framework Agreement has the following objectives:

The Cree Nation Government shall exercise jurisdictions, functions and powers over Category II lands under Quebec laws as outlined in this Agreement and provided for in the Final Agreement, with respect to, in particular, municipal management, management of natural resources and land management.

Moreover, the Cree Nation Government shall have the right, at its request, to exercise certain other jurisdictions, functions and powers, as adapted to take into account the context of Category II lands and the institutional capacity of the Crees. Such adaptations shall be subject to agreement between the Crees and Quebec.

The Municipalité de la Baie James (MBJ) shall be abolished and replaced by a public, regional government that shall be established by statute of Quebec with the name of “Gouvernement régional d’Eeyou Istchee Baie-James” in French, and “Eeyou Istchee James Bay Regional Government” in English (“Regional Government”).

The Regional Government shall succeed, upon its establishment, to the rights, powers, assets and obligations of the MBJ, in accordance with modalities to be determined in the Final Agreement.

The Regional Government shall have jurisdiction over the Category III lands now comprised in the territory of the MBJ.

The governing structure of the Regional Government shall be composed of representatives of the Crees and of residents of the Municipalities as well as, during the first five years of operation of the Regional Government, representation of Quebec central government. The governing structure of the Regional Governance is a form of public governance.

The financial arrangements pertaining to the governance of Category II and III lands shall be determined in the Final Agreement.

4. Summary and Conclusion

The spirit and intent of the James Bay and Northern Quebec Agreement and its related agreements require Canada and Quebec to respect the inherent right of the Eeyou Nation to govern its own affairs and territories. Implicit in this principle, of course, is the right of the Eeyou Nation to enter into intergovernmental relations with Canada and Quebec, to acquire the benefits of such agreements, and to acquire the responsibilities and burden of self-governance.

In this regard, the Eeyou Nation has asserted and exercised its right of self-determination and has entered into a modern-day treaty (James Bay and Northern Quebec Agreement) and related agreements with Canada and Quebec. In entering into such nation-to-nation agreements with the Eeyou, Canada and Quebec have already acknowledged their self-governing nation status.

The assertion of their inherent right of self-determination arising from their status as distinct or sovereign peoples entitles the Eeyou to determine their own future within Canada and to govern themselves under institutions of their own choice and design.

For the Eeyou of Eeyou Istchee, the JBNQA was meant to bring about the sharing of powers and responsibilities in the governance of Eeyou Istchee.

The Eeyou Nation’s vision of Eeyou governance is one in which the Eeyou are free to determine the form of political organization and government that is appropriate for them. To achieve this vision, the Eeyou need to have at their disposal tools to ensure their success in constituting and exercising effective governments.

The National Centre for First Nations Governance defines governance as follows:

“Governance is the traditions (norms, values, culture, language) and institutions (formal structures, organization, practices) that a community uses to make decisions and accomplishes its goals. At the heart of the concept of governance is the creation of effective, accountable and legitimate systems and processes where citizens articulate their interests, exercise their rights and responsibilities and reconcile their differences.” 7

The Eeyou have a special spiritual relationship to their land, Eeyou Istchee. The Eeyou also consider their culture, language and traditions as fundamental and central to their collective and individual identities. Therefore, the Eeyou vision of self-government embraces two distinct but related goals. The first involves greater authority over Eeyou Istchee and its inhabitants, whether this territory be exclusive to the Eeyou or shared with others. The second involves greater control over matters that affect the Eeyou in question: its culture, identity and collective well-being.

Consequently, the Eeyou of Eeyou Istchee have chosen and taken the following principal paths and arrangements for governance of Eeyou Istchee:

Eeyou governance is the process through which the Eeyou make decisions that direct their collective efforts. Effective governance is about more than getting the job done. This is particularly true for the Eeyou as values typically play an important role in determining both organizational purpose and style of operation. The process and the principles that support and guide the process are as important as the end product. However, effective governance is more than “taking control” of Eeyou affairs and issues such as economic, community and social development. Good and effective governance is about both achieving desired results and achieving them in the right way which is largely shaped by the cultural norms and values of the Eeyou of Eeyou Istchee.

The National Center for First Nation Governance sets out the following components and principles of effective governance:

The said Center describes the equal importance of these components and principles in the realization of effective governance in the following hierarchical manner:

“Effective governance begins with the People. It is only through the People that we begin to shape the strategic vision that serves as the signpost for the work that those communities and their organizations engage in. When the People have shared information, collectively made decisions and determined the strategic vision, their attention moves to where they sit—to the Land. Aboriginal title is an exclusive interest in the land and the right to choose how that Land can be used. It is then through Laws and Jurisdictions that the rights of the Land are made clear. Following from and consistent with the Laws and Jurisdictions is the emergence of Institutions and the identification of the Resources required to realize and to ensure the continuity of effective governance.” 9

The Royal Commission on Aboriginal Peoples in its 1996 report makes the following statement on attributes of good government:

“To be effective—to make things happen—any government must have three basic attributes: legitimacy, power and resources.

Legitimacy refers to public confidence in and support for the government. Legitimacy depends on factors such as the way the structure of government was created, the manner in which leaders are chosen, and the extent to which the government advances public welfare and honours basic human rights. When a government has little legitimacy, leaders have to work against public apathy or resistance and expend more power and resources to get things done.

Power is the acknowledged legal capacity to act. It includes legislative competence (the authority to make laws), executive capacity to execute the laws and carry on public administration, and judicial jurisdiction to resolve disputes. The power of a government may arise from long-standing custom and practice or from more formal sources such as a written constitution, national legislation and court decisions. Internal legal authority, however, is not always enough to make a government effective. Another important factor is the degree to which other powerful governments and institutions recognize and accept what is done by the government. Claims to sovereignty and other forms of legal authority may be of limited use if they are not respected by other governments holding greater power and resources.

Resources consist of the physical means of acting—not only financial, economic and natural resources for security and future growth, but information and technology as well as human resources in the form of skilled and healthy people. Resources are necessary to exercise governmental power and to satisfy the needs and expectations of citizens. Key resource issues include the nature of fiscal and trade relationships among governments, which affect the control and adequacy of resources.

A government lacking one or more of these attributes will be hampered in its operations …” 10

In view of current Eeyou-Canada-Quebec discussions on governance of the Territory contemplated by the James Bay and Northern Quebec Agreement and the many challenges posed by the Eeyou in establishing various forms of governments as an order of government in Eeyou Istchee and exercising good effective governance, the Eeyou should:

In particular, strategies need to be developed and implemented to strengthen Eeyou governing capacities for meaningful and effective governance. The Cree-Naskapi Commission suggests that such strategies encompass the following:

To address accountability, Eeyou governments should take the following steps:

(As an example, the Commission would be willing to assist in the development and provision of orientation sessions with the newly Chief and Council of the Eeyou local government.)

Eeyou governance has evolved dramatically over the past four 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, the Eeyou of Eeyou Istchee have adopted a “just do it” approach.

Consequently, the meaning and practice of Eeyou governance has evolved and has been and continues to be redefined by the Eeyou on the basis of rights, freedoms, values, culture, traditional law and customs and the intent and spirit of the James Bay and Northern Quebec Agreement and its related Agreements.

Eeyou governance is also the practice and exercise of stewardship, guardianship and custodianship of Eeyou Istchee. For the Eeyou of Eeyou Istchee, the journey for full Eeyou governance begins and ends with and within the historical and traditional authorities of self-governing power—the people of the land.

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

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

This journey and shift to self-government is a fundamental aspect of nation-building as the Eeyou of Eenou Istchee have reclaimed governance as an Aboriginal right and activity.

END NOTES

Canada’s Response to the 2010 Recommendations of the Cree-Naskapi Commission

Chapter Four

Every second year the Commission conducts Special Implementation Hearings in preparation for the biennial report on implementation of the Cree-Naskapi (of Quebec) Act provided for in the Act. These reports are then submitted to the Minister, who is required to table them in the Senate and the House of Commons. The House and Senate automatically refer them to the Standing Committees. The Commission is frequently invited to follow this up with a presentation to the Committies.

Each of these reports contains recommendations based, for the most part, on the issues raised by the Grand Council of the Crees (Eeyou Istchee), the individual Cree First Nations, Elders, youth, the Cree Trappers’ Association and others who make presentations at our hearings. Canada (Aboriginal Affairs and Northern Development) attends these hearings and responds to each recommendation that the Commission made in its previous report.

The responses of the federal government to the recommendations in the 2010 Report of the Cree-Naskapi Commission were therefore part of their presentation at the 2012 hearings.

For the purpose of ensuring that the Cree and Naskapi communities are aware of the government’s responses, the Commission has reproduced the original recommendations, the federal government response and a brief comment where appropriate.

Amendments to the Cree-Naskapi (of Quebec) Act

1. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority should as a priority in these discussions with Canada seek amendments to the Cree-Naskapi (of Quebec) Act pertaining to the quorum provisions of the Act which have seriously hindered the decision-making process of local government and administration.

Canada’s Response:

The Government of Canada and representatives of the Cree and the Naskapi established a working group in 2008 to discuss further amendments to the Cree-Naskapi (of Quebec) Act, including quorum requirements. The parties held initial discussions in 2009 and agreed that the Cree and the Naskapi needed to study the proposed amendments in greater detail and to develop a join list of amendments.

It is Canada’s understanding that the Cree and the Naskapi have been working together on a joint list to present to the working group. Once the working group receives the joint list, the working group will reconvene to study the proposed amendments.

Canada is agreeable to amending the CNQA for the Naskapi and the Cree, after review of the joint list. We understand that Canada will be invited to discuss that joint list, at a meeting in the next few weeks or months.

Comment

The Commission will continue to monitor this and report progress.

Band and By-law Reference of Federal Legislation and Enforcement of Band By-laws

2. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority should discuss with Canada particular arrangements for the enforcement of Band by-laws such as:

Canada’s Response:

Canada undertook with the Cree in section 5.9, the New Relationship Agreement to address the feasibility of delegating certain federal authorities to the Cree Regional Authority. The parties held several meetings during 2010-2011. Canada provided the Cree with a substantial amount of information which the Cree must first review before discussions can continue.

Canada and the Cree also undertook in section 5.10 of the New Relationship Agreement to establish a working group to discuss amendments to the Criminal Code and the Canada Evidence Act. The working group has met several times and agreed that further analysis by both parties is required before discussions can continue.

Comment

The Commission will continue to monitor this and report progress.

Band Elections

3. The Government of Canada should initiate discussions with the Cree Nations on the question of whether the Corbiere decision of the Supreme Court applies or does not apply to the Cree Bands. If the Corbiere decision applies to the Cree Bands, then Canada and the Crees must discuss any subsequent amendments to the Cree-Naskapi of (Quebec) Act and its implementation.

Canada’s Response:

Canada is of the view that the Cree-Naskapi (of Quebec) Act is the only authority under which Cree or Naskapi local governments can determine who is an eligible elector or candidate eligible to run for an election as a council member, either under local election by-law, or pursuant to the Cree-Naskapi Band Elections regulations.

Unlike the Indian Act, there is no requirement in the Cree-Naskapi (of Quebec) Act that a Band member must reside in the community in order to participate in Band council elections, either as an elector, or as a Band council candidate.

Comment

This response is in agreement with the view of the Commission that the Corbiere decision does not apply. The Commission is also of the view that the Cree and the Naskapi can rely upon the Cree-Naskapi (of Quebec) Act which, in our opinion, is constitutionally protected legislation to enable them to enact their own by-laws to address the matter without resorting to litigation.

Block “D”

5.Block “D” should be transferred to the Cree Nation of Chisasibi forthwith.

Canada’s Response:

Canada, Quebec and the Chisasibi have agreed to proceed with the transfer of Block “D” in two phases. Phase 1 of the transfer is the portion which is environmentally acceptable to Canada and Phase 2 is the remaining portion that requires remediation works by Quebec.

Discussions between representatives of Canada, Quebec and Chisasibi continued on Quebec’s land transfer decree of Phase 1 following new provisions later introduced by Quebec in its decree. Canada is confident that these issues will soon be resolved in order to make the larger part of the Block “D” lands available to Chisasibi.

In parallel, discussions are ongoing between Canada, Quebec and Chisasibi on the Block “D” land transfer Phase 2. The different views of Canada, Quebec and Chisasibi on the environmental and remediation issues of these lands still remain unresolved.

Comment

The Commission first addressed the question of Block “D” in its 1998 Report. To hear in 2012, some 14 years later that, “The different views of Canada, Quebec and Chisasibi on the environmental and remediation issues of these lands still remain unresolved” is disappointing to say the least. The Commission will review what additional action can be taken to bring about a timely solution.

Financial Reporting of Bands

6.Canada and Quebec should enter into discussions with Cree Bands and/or the CreeRegional Authority for adequate funding arrangements respecting the costs incurred byBands in complying with the financial reporting requirements of governments.

Canada’s Response:

The James Bay Implementation Office and the Cree Regional Authority are currently working on consolidating a number of funding arrangements and streamlining the reporting requirements under a new consolidated funding vehicle.

Further discussions on the costs incurred in reporting on various federal programs could be referred to the Cree-Canada Operational Table. It is to be noted however that most transfer payments include funding for administration purposes, including reporting requirements.

Comment

The Commission will discuss this issue with the Cree parties and review progress.

Cree Housing

7. The federal, Eeyou (Cree) and Naskapi authorities should determine and agree on the present and future needs of the Cree and Naskapi communities for housing and implement a strategic master plan, in the short and long term, to address these needs.

Canada’s Response:

This is a complex problem facing all First Nations. It is difficult to assess the scope of the problem since there is no current Cree-Naskapi inventory or housing needs assessment available.

There is the annual conference on housing for First Nations, and the Cree participate in that.

There is also a tripartite committee on housing, to which the Cree have been invited, but not participated.

Again, we encourage Bands to put the issue to the Cree Regional Authority and in turn to the Operational Table for further discussion.

Comment

Extensive work was completed on the nature and extent of the housing problem, as well as how it should be addressed, in 2006 by Chief Billy Diamond. The results of his wtork formed part of the 2006 Report of the Cree-Naskapi Commission. In addition, the issue of housing has been a priority of the communities at every Special Implementation Hearing, and a subject of every Commission report for the past 26 years. Here again the Commission will seek more effective approaches to ensuring that critical housing needs are addressed more effectively in future than they have been for the past 26 years.

Police Services and Administration of Justice

8. Canada, Quebec and the Cree Regional Authority should determine and agree on the present and future needs of the Cree communities for police services and a Cree Justice System and implement a strategic master plan to address these needs.

Canada’s Response:

Canada is addressing the issue of police services and the Cree Justice system in a number of ways:

Canada, Quebec and the CRA signed Complementary Agreement #19 to the James Bay Northern Quebec Agreement. This Agreement, which came into force on May 28, 2009, merged the existing Cree local Police Forces into a Cree Regional Police Force. Among other things, this trilateral Agreement sets a ratio of residents per police officer and determines a way to calculate this ration in the future.

Under sub-section 5.10 of the New Relationship Agreement, Canada and the Cree of Eeyou Istchee undertook to discuss amendments to paragraph 18.0.19 of the James Bay and Northern Quebec Agreement (JBNQA) regarding the Criminal Code and the Canada Evidence Act. A Department of Justice and AANDC inter-departmental table was established to discuss this issue. Canada and the Cree have also set up a Technical Working Group.

We understand that the CRA is consulting with Cree communities on the issue of Justice and policing. We expect that once this consultation process will be completed, discussions will resume.

Comment

The Commission will continue to monitor this issue and report progress as appropriate.

Cree Nations and Economic Development

9. Canada and the Cree Regional Authority should review section 21 and section 22 of the Cree-Naskapi (of Quebec) Act with the objective of seeking amendments to the Act in order to enhance and promote local economic development.

Canada’s Response:

Canada, the Cree Regional Authority and Quebec are currently in negotiation towards a governance agreement which may include possible amendments to the James Bay and Northern Quebec Agreement and to the Cree-Naskapi (of Quebec) Act concerning a Cree Nation Government with powers and authorities beyond the scope of the Cree-Naskapi (of Quebec) Act.

We suggest that the Cree of Eastmain voice their concerns to the Cree Regional Authority if they would like the issue of local economic development addressed at the governance table.

Comment

The Commission will ensure that the Chief and Council of Eastmain are aware of this response and follow up if/as appropriate.

Rent Collection

10. Canada and the Cree Regional Authority (in collaboration with the Cree Bands) should determine innovative measures to ensure efficient collection of rent for Band houses and residences.

Canada’s Response:

Although there is no local policy among the Cree Bands on rent collection, Canada would be pleased to share some of the best practices/success stories that have come to our attention from other First Nation communities.

For instance:

Additionally, CMHC can offer advice in that regard. Implementation Branch would be pleased to organize a presentation along those lines.

Comment

The Commission will ensure that the Cree Regional Authority is aware of this response and follow up if/as appropriate.

Cree Nation of Washaw Sibi

11. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and the Cree Nation of Washaw Sibi should establish a process of discussions and planning to enable the realization of the objective of the Cree Nation of Washaw Sibi for the establishment of a distinct Cree community with their own Category 1 lands so that they can receive programs and services at the same level as the Crees in the other nine communities. Canada and/or Quebec should be invited to participate in this process on matters under their respective responsibilities and jurisdiction.

Canada’s Response:

Section 5.4 of the New Relationship Agreement provides if the Cree Regional Authority and the Washaw Sibi Eeyou decide to proceed with negotiations regarding recognition of the Washa Sibi Eeyou as a separate Band, Canada and Quebec will be invited to participate. Canada, therefore, is open to establishing a dialogue process on this issue, if requested to do so by the Cree.

Comment

The Commission will ensure that the Grand Council of the Crees (Eeyou Istchee)/Cree RegionalAuthority as well as the Cree Nation of Washaw Sibi are aware of this response and follow up as appropriate.

Incompatibility of the Cree-Naskapi (of Quebec) Act with Eeyou Eehdou-wun

12. Canada and the Cree Regional Authority (in collaboration with the Cree Bands) should review the present terms and provisions of the Cree-Naskapi (of Quebec) Act with the objective of seeking amendments to the Act to ensure, where practical, compatibility with Eeyou Eehdou-wun or the Cree way of doing things in governance and administration.

Canada’s Response:

Canada, the Cree Regional Authority and Quebec are currently in negotiation towards a governance agreement which may include possible amendments to the James Bay and Northern Quebec Agreement and to the Cree-Naskapi (of Quebec) Act.

Comment

The Commission understands that the Cree Regional Authority is addressing this issue.

Knowing and Understanding the Cree-Naskapi (of Quebec) Act

13. Canada and the Cree Regional Authority, in collaboration with the Cree-Naskapi Commission, should develop and implement an orientation program that would promote understanding and knowledge of the terms and provisions of the Cree-Naskapi (of Quebec) Act amongst members of Band councils, Band employees and members of the Band.

Canada’s Response:

Canada believes it is within the Cree-Naskapi Commission mandate to promote, explain and implement the Cree-Naskapi Act to the various beneficiaries.

Aboriginal Affairs and Northern Development Canada is open to discuss this matter should the Commission and the Cree Regional Authority deem it useful for Canada to participate in such an initiative.

Comment

The Commission understands the Department’s views on the extent of our mandate as explained at the 2012 Special Implementation Hearings. We shall discuss this in detail with the Cree Regional Authority and follow up with both the Department and the CRA as appropriate.

Eeyou (Cree) Youth

14. In the current process for the negotiations and establishment of the Cree Nation Government, the GCC(EI)/CRA should consult the Eeyou (Cree) youth in the consideration of their participation in Cree governance and affairs of the Cree Nation of Eeyou Istchee.

Comment

This recommendation was not directed to the Government of Canada and so there is no federal response.

The Commission continues to receive input from Cree youth about their concerns. Issues such as the need for youth programs and funding at the community level are stressed. The Commission believes that the best approach is to ensure that Cree youth have an ongoing role in present and future Cree governance structures and processes.

Granting of a Right of Superficie

15.Canada and the Cree Regional Authority (in collaboration with the Cree Bands) shouldreview the present terms and provisions of the Cree-Naskapi (of Quebec) Act with theobjective of seeking amendments to the Act to empower the Bands with legislativeauthority to enact a by-law would be subject to the approval of the Band members.

Canada’s Response:

Canada, the Cree Regional Authority and Quebec are currently in negotiation toward a governance agreement which may include possible amendments to the James Bay and Northern Quebec Agreement and to the Cree-Naskapi (of Quebec) Act concerning a Cree Nation government with powers and authorities beyond the scope of the Cree-Naskapi (of Quebec) Act.

Comment

The Commission will discuss this issue with the Cree Regional Authority to determine its current status.

Impacts of the Diversion of the Rupert River

16.The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and theWaskaganish First Nation should initiate discussions with Hydro-Québec/Sociétéd’Énergie de la Baie James on the need for impact studies on the impacts of thediversion of the Rupert River on the Category IA and IB lands of Waskaganish.

Comment

The Cree-Naskapi Commission will discuss progress on this issue and report as appropriate. Cree local governments will also be involved in the process.

Transfer of Land of the Roman Catholic Mission to the Waskaganish First Nation

17.Canada and the Cree Regional Authority in collaboration with the Waskaganish FirstNation should initiate discussions to ensure the proper and efficient transfer of thesaid land of the Roman Catholic Mission to the Waskaganish First Nation as part of theCategory IA land of Waskaganish.

Canada’s Response:

Canada, the Cree Regional Authority and Quebec initiated discussion on this file within the context of section 5.8 a) (iii) of the Canada/Cree New Relationship Agreement. The main issue is related to the title of the land and further discussion will need to be held to find practicable ways to integrate this land as part of the Category IA land of Waskaganish.

Canada is trying to develop an integrated approach to finalize territorial descriptions. It is important to note that land transfers similar to the one requested by Waskaganish will occur in each Cree community.

In the case of Mistissini, we are developing an approach to finalizing territorial descriptions. That approach would be used broadly.

Comment

This appears to be a positive development. The Commission will continue to monitor and report.

Follow-up to the Cree-Naskapi Commission Reports

18. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority should establish a Special Implementation Task Force or Working Group to revisit the outstanding issues and concerns of the Cree communities as described in the biennial reports of the Commission since 1986 and to develop a concrete plan of action to resolve these matters.

Canada made no response to this recommendation as it did not involve the federal government.

Comment

The Commission continues to advocate follow up on these community issues and concerns.

Senneterre Crees

19. Canada and the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority, in collaboration with the Cree First Nation of Waswanipi, should establish a dialogue process and a negotiating table to discuss and settle the issue of the Waswanipi Crees who live in Senneterre.

Canada’s Response:

As Canada has not been formally notified of the issue of the Senneferre Cree by the Cree Regional Authority, Canada prefers not to provide any comments at the present time. However, Canada is open to the establishment of a dialogue process on this issue, if requested to do so by the Cree Regional Authority.

Comment

This response will be passed along to the Chief and Council of Waswanipi whose wishes for further action will be addressed by the Commission.

Canada’s response in saying that it is willing to proceed if asked by the Cree Regional Authority is reasonable in itself. The response, however, does raise another important issue in principle. When a Chief and Council make a presentation to a Commission, created by federal legislation, which then submits a report to the Minister, who then tables it in both houses of Parliament (all pursuant to legislation), that Chief and Council are entitled to assume that government has been “formally notified.” The Commission has addressed this issue many times, primarily because we believe that the Cree-Naskapi (of Quebec) Act, in creating the Commission and in requiring it to report on implementation, intended to create a process that would enable the Cree and Naskapi Chiefs and Councils, communities and people to have their views heard and passed on to the appropriate decision-makers.

Cree Trappers’ Association

20. The Cree Regional Authority should acknowledge and recognize the present and future importance and role of the Cree Trappers’ Association and provide sufficient financial resources to enable the CTA to carry out its important role in conformity with the intent and spirit of the James Bay and Northern Quebec Agreement, Canada/Quebec/Cree new relationship agreements and the Agreement Between the Crees of Eeyou Istchee and Her Majesty the Queen in Right of Canada concerning the Eeyou Marine Region.

Canada provided no response to this recommendation as it did not relate to the federal government.

Comment

The importance and role of the Cree Trappers’ Association continues to be a matter of priority and the Commission will continue to monitor progress in this area.

Concerns and Issues of the Eeyou (Cree) Nation and Naskapi Nation of Kawawachikamach

Chapter Five

On February 8, 9 and 10, 2012, the Cree-Naskapi Commission held Special Implementation Hearings in Montreal, Quebec in order to permit the representatives of the Cree, Naskapi and federal governments to make submissions to the Commission in preparation for its present report. This chapter describes the main concerns and issues raised by the Cree and Naskapi representatives.

1. Grand Council of the Crees (Eeyou Istchee)

The submission of the Grand Council of the Crees (Eeyou Istchee), dated February 9, 2012, focuses on the current negotiations with Canada on governance, matrimonial real property on Category IA lands and the implementation of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee.

A. Incremental Local and Regional Governance

Since the signing of the James Bay and Northern Quebec Agreement (JBNQA), the Crees have worked for recognition by Canada and Quebec of the consolidation and implementation of incremental Cree Nation governance.

The enactment and implementation of the Cree-Naskapi (of Quebec) Act is an important milestone for the recognition of the local Cree Nation Bands to act as the local government authorities for their communities and lands.

The signing of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee in 2008 represented another important milestone for Cree Nation governance. This new relationship agreement established a new relationship between the Cree Nation and Canada. It provides an innovative way of improving the implementation of the James Bay and Northern Quebec Agreement by providing for the assumption by the Cree Regional Authority (CRA) and subsequently by the Cree Nation Government of certain responsibilities of Canada under the JBNQA.

Subsequently, the Cree-Naskapi (of Quebec) Act was amended by Parliament to provide the CRA with by-law making authority similar to those of the Cree local governments. These amendments to the Act came into force on February 1, 2010. Since then, the CRA has been working on strengthening its institutional capacities and on the development of several regional by-laws, such as:

B. Cree Nation Governance Agreement

The Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee provides the process for negotiations between the Cree Nation of Eeyou Istchee and the Government of Canada for an agreement and related legislation concerning a Cree Nation Government with powers and authorities beyond the scope of the Cree-Naskapi (of Quebec) Act (CNQA) and correlative amendments to the JBNQA and the CNQA.

“The purpose of these negotiations is to expand Cree Nation governance beyond the Cree-Naskapi (of Quebec) Act powers and to establish the structures and powers of a Cree Nation Government and the relationship of such Government with Cree Bands and federal and provincial governments. The main object of the Cree Nation Governance Agreement with Canada will be to consolidate the establishment of a Cree Nation Government and to refine and expand its powers and other responsibilities. For the Crees, the mission of the Cree Nation Government will be to exercise governmental powers and functions of a regional, or Cree Nation, nature. In this capacity, the Cree Nation Government would be expected to have two overriding responsibilities:

We envision a Cree Nation Government built on the CRA model while expanding its powers. The Cree Nation Government would be distinct from the Grand Council of the Crees (Eeyou Istchee) and from the Cree Bands.” 2

The negotiations between the Cree Nation of Eeyou Istchee and the Government of Canada for an agreement concerning a Cree Nation Government have been a slow process because of the following factors:

Pursuant to the Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee, with the participation of Quebec, the Cree Nation and Canada are committed to making best efforts to conclude negotiations of a governance agreement-in-principle within three (3) years of the coming into force of the said Agreement and a Governance Agreement within five (5) of the coming into force of the Agreement, or within such longer period as the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority, Canada and Quebec may agree to in writing. On March 29, 2011, the parties agreed to extend the period to conclude a governance agreement-in-principle to March 31, 2012. However, the parties remain committed to concluding negotiations for a final Governance Agreement by March 2013.

C. Amendments to the James Bay and Northern Quebec Agreement

On October 25, 2011, the Crees and Canada finalized discussions concerning the following amendments to the JBNQA:

These proposed amendments are currently under review by Quebec.

Furthermore, a series of amendments to Section 4 of the JBNQA concerning the final territorial descriptions of the Cree Category I lands are under discussions with Quebec and Canada.

D. Consolidation of Base Funding Arrangements

On November 3, 2010, the Crees submitted a proposal to Canada for a consolidation of certain federal base funding arrangements. Initially, the funding currently provided to the CRA and the Cree Bands under the Operations & Maintenance Agreement and the Capital Grants Agreement and the regular funding to the regional Associations would be consolidated under a single long-term funding arrangement between Canada and the CRA. Other federal funding could also be incorporated into this arrangement in the future. This proposal is currently under review by Canada.

E. Family Homes on Reserves and Matrimonial Interests or Rights Act (Bill S-2)

Cree society is changing as Cree people in the communities have more valuable assets such as privately owned houses, and there are more conjugal relationships between Crees and non-Crees. These changes raise questions respecting rights and interests relating to the use, occupation and possession of the family homes and the division of property and such family homes located within Category IA lands.

When married couples divorce, the division of matrimonial property, both real (e.g., land and houses) and personal is determined in accordance with provincial laws, as a result of subsection 92(13) of the Constitution Act, 1867. However, as a result of subsection 91(24) of that Act, which specifies that the Parliament of Canada has the exclusive legislative authority with respect to “Indians and Lands reserved for the Indians,” provincial laws do not apply to the division of real property on reserve lands. In Derrickson v. Derrickson, the Supreme Court of Canada stated that courts cannot rely on provincial law to order the division of matrimonial real property on reserves.

The absence of provisions in the federal Indian Act or elsewhere governing the division of matrimonial real property on reserves has resulted in what is often referred to as a legislative gap. Consequently, people residing on reserves have not been able to use the Canadian legal system to resolve matters concerning the division of real property after the breakdown of conjugal relationships.

In addition, traditional Cree family law does not presently deal with such matters.

Consequently, persons residing on Category IA lands have also not been able to use the Canadian legal system to resolve matters concerning the division of real property.

For other First Nations under the Indian Act, Canada has tried to fill this legislative gap through the proposed Family Homes on Reserves and Matrimonial Interests or Rights Act (Bill S-2).

Bill S-2 addresses issues relating to family real property on reserves by providing that a First Nation has the power to enact laws relating to the use, occupation and possession of family homes on its reserves and the division of the value of any interests or rights held by spouses or common-law partners in or to structures and lands on its reserves. The federal provisional rules in the bill will apply until a First Nation has such laws in force.

If enacted, the proposed Bill S-2 would apply to First Nations under the Indian Act and would fill the legislative gap that exists in respect to matrimonial real property in the context of Indian Act reserve lands. However, Cree Bands and Category IA lands are not governed by the Indian Act and, as such, Bill S-2 would not apply to the Cree Bands and Category IA lands. As a result, the legislative gap governing the division of matrimonial real property situated within Category IA lands remains.

The Grand Council of the Crees (Eeyou Istchee) proposes that the current negotiations with Canada address the legislative power of the Cree Nation Government to adopt laws with rules that would apply uniformly in all Cree communities and would govern family matters such as certain aspects of matrimonial real property on Category IA lands.

F. Interpretation and Application of the Cree-Naskapi (of Quebec) Act

A representative of the Grand Council of the Crees (Eeyou Istchee) raised many issues and questions on the interpretation and application of the Cree-Naskapi (of Quebec) Act: 3

The issues and questions raised by the representative need to be addressed by representatives of the Grand Council of the Crees (Eeyou Istchee) and the Government of Canada.

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

According to the representatives of the Grand Council of the Crees (Eeyou Istchee), negotiations are presently underway with Canada to discuss possible amendments to the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act concerning a Cree Nation Government as contemplated in the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee. However, the representatives of the federal government have taken the position that they didn’t have a mandate to discus other amendments to the Cree-Naskapi (of Quebec) Act other than those described or required in the said New Relationship Agreement. Consequently, an expanded mandate for the representatives of the federal government is required to discuss other amendments to the Act to accommodate the present concerns and needs of the local Cree governments and administrations.

2. Cree First Nation of Waswanipi

The representatives of the Cree First Nation of Waswanipi raised the following issues and concerns: 4

A. Open Dialogue and Public Inquiry on Resource Development

The Cree First Nation of Waswanipi expressed concerns about the impacts of resource development and the need to benefit from such development. They see a need for an open dialogue to determine the impacts of and benefits from resource development within their territories. A public inquiry by Canada and Quebec is needed on the state of the land of the Waswanipi people and its forests and natural resources. In addition, the Waswanipi people want the government of Quebec to issue a moratorium of five to seven years on commercial forestry development to allow for an audit, assessment and accountability of resource development within their lands.

B. Eeyou Declaration

The Cree First Nation of Waswanipi sees the need to define the key principles of an Eeyou Declaration that will govern and control the development and management of their lands.

C. Eeyou Governance

The Cree First Nation of Waswanipi has always been a self-governing people by managing their land and lives. The Waswanipi Eenouch had established the foundation of their governance at the “old post” of Waswanipi. Therefore, the Cree First Nation of Waswanipi requests the government of Canada and the government of Quebec to recognize and to declare the site of the “old post” as an historic heritage site, which will then be developed by the Cree First Nation of Waswanipi as a site for the following purposes:

D. Old Post

The Cree First Nation of Waswanipi wants to file a legitimate claim to negotiate a comprehensive settlement agreement on the displacement and relocation of the Waswanipi people in 1964-1975.

E. Waswanipi Crees of Senneterre

The Cree First Nation of Waswanipi strongly favours settling the question and situation of the Waswanipi Crees of Senneterre by means of a special referendum. There is a long-standing need to address and resolve the situation of the Waswanipi Eenouch who are living in Senneterre and the surrounding regions of the Territory defined in the James Bay and Northern Quebec Agreement. A land base for their community may be necessary for the Waswanipi Crees of Senneterre.

F. Cree Consortium

The Cree First Nation of Waswanipi wants to establish their Cree Consortium so that they can benefit from the development of their territory and from the Plan Nord of Quebec. To this end, they wish to negotiate an agreement for the establishment and operations of the Cree Consortium.

G. Tripartite Working Group on Waswanipi Issues and Concerns

The Waswanipi representatives want a Tripartite Working Group consisting of representatives from Waswanipi, the Cree-Naskapi Commission and Canada to be established with a mandate to address the past and present issues and concerns of Waswanipi as raised by Waswanipi over the past years to the Commission.

H. Housing

Due to the escalating population and the continuing expansion of the community, the Cree First Nation of Waswanipi faces demands for new housing and for renovations to existing houses.

I. Proposed Changes to Boundaries of Category I and II Lands of Waswanipi

With the cancellation of the Nottaway-Broadback-Rupert (NBR) Hydroelectric Project, the present configuration of the Category I and II lands of Waswanipi does not need to be maintained and should be changed through negotiations with Quebec and Canada to reflect the needs and aspirations of the people of Waswanipi. Such negotiations are contemplated in the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec.

In addition, the present five hundred (500) foot corridor that runs parallel on both sides of Route 113 (provincial highway) constitutes a barrier for community development by Waswanipi. In particular, the corridor directly on the opposite side of the community prevents community expansion or development because of its status and present categorization under the land regime of the James Bay and Northern Quebec Agreement.

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

Subsection 97 (2) of the Act states that a by-law authorizing long-term borrowing must be approved by the electors of the Band at a special Band meeting or referendum at which at least 20 percent of the electors voted on the matter.

Subsection 193 (3) of the Act states that a Band may, in writing, waive the exemption conferred by subsection 190 (2) in favour of any person, on such terms and conditions as are agreed to by the parties, subject to the approval of the waiver and the terms and conditions thereof by the electors of the Band at a special meeting or referendum at which at least 25 percent of the electors voted on the matter.

The Cree First Nation of Waswanipi states that it is increasingly difficult to comply with the quorum provisions of these sections of the Cree-Naskapi (of Quebec) Act. Furthermore, the holding of a referendum incurs additional costs for the Band and prolongs unnecessary delays in securing a loan from a financial institution. In addition, financial institutions presently demand a waiver of the property exemption from seizure conferred by subsection 190 (2) of the Act before granting a loan to the Band.

K. Improving Quality of Life for the Elderly

The Department of Social Development of the Cree First Nation of Waswanipi submitted a project for the “Specific Agreement on Adapting Regional Services and Infrastructures in Order to Improve Living Conditions of Seniors in the Cree Regional Authority- Nord-du-Quebec Region.” Funds negotiated by the Cree Regional Authority will assist Waswanipi in developing and implementing a program that will benefit the elderly of the community by improving their quality of life.

L. Waswanipi Youth

The representative of the Waswanipi youth spoke about the lack of programs and services for the youth of the community. The youth want a Youth Internship Program on establishing and operating a business, and they want training programs on dealing with social issues and problems of youth in the community. They also want to learn and maintain the Cree traditional way of life based on hunting, fishing and trapping.

3. Crees of the Waskaganish First Nation

The Crees of the Waskaganish First Nation, in a submission to the Commission dated February 24, 2012, listed the following issues and concerns: 5

A. Quorum Provisions of the Cree-Naskapi (of Quebec) Act

The Crees of the Waskaganish First Nation have a large population of members who reside outside of the community of Waskaganish. Consequently, compliance with the some of the quorum provisions of the Cree-Naskapi (of Quebec) Act is very difficult for local decision- making such as approval of by-laws. The Crees of the Waskaganish First Nation recommend that the quorum provisions of the Act be reviewed and the quorums be adjusted to take into account the population residing in community versus total population of community.

B. Housing

Like the other Cree communities, housing is a major outstanding issue that needs to be addressed in an appropriate manner by the Government of Canada. With a rapidly increasing population, the Crees of the Waskaganish First Nation are experiencing a serious housing shortage for its members and families.

C. Non-native Harvesting on Cree Territory

Within the designated hunting zones for sport hunting, most of the Non-native hunters are hunting along and from main and access roads. This practice not only endangers the Cree hunters but actually drives and scares the moose and caribou away from the designated hunting zones. This matter needs to be addressed and hunting regulations reviewed and amended to adjust the designated hunting zones away from roads for safety purposes.

4. Cree Nation of Chisasibi

At the special implementation hearings of the Commission, the representatives of the Cree Nation of Chisasibi raised the following issues and concerns: 6

A. Police of Chisasibi

The Chief of the Cree Nation of Chisasibi states that a decision of the Chief and Council had been made and decision forwarded to the local police of Chisasibi for implementation and compliance. However, the local police refused as they are now members of the regional Eeyou/Eenou Police Force. The Chief states that the Council made a decision for the well-being of the community and the police force should comply. If there is a problem with accountability, then the Council of Chisasibi should be made aware of it.

B. Governance and Laws

An Elder spoke on the intrusion of external laws in the governance of the community. It seems that the Chief and Council cannot govern effectively because of the application of laws of other governments. These laws interfere and intrude and even constitute barriers when Chief and Council act in the best interest of the people, especially when dealing with social problems.

C. By-Laws of the Municipality of James Bay (MBJ)

Cree hunters are being charged with alleged illegal hunting, which supposingly breaches a by-law of the Municipality of James Bay. The Chief asks about the recognition and protection of Cree rights to hunt under the James Bay and Northern Quebec Agreement, a modern-day treaty with rights that are recognized and protected by the Constitution Act, 1982.

D. Programs for Youth

A representative of the youth of Chisasibi spoke about the need for programs for the youth and the lack of funding thereof.

E. Block “D”

Pursuant to Schedule D of the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec, Quebec shall transfer the administration, management and control of the lands designated as Block “D”, including the air strip, to the Government of Canada for the exclusive use and benefit of the Cree Nation of Chisasibi subject to certain terms and conditions. (Block “D” will become part of Category IA lands of Chisasibi.) The parties will use their best efforts to ensure that the final transfer by Quebec is completed no later than September 30, 2002.

The Chief of Chisasibi states that ten years after the signing of the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec and Block “D” has not been transferred for the exclusive use and benefit of the Cree Nation of Chisasibi.

F. Housing

According to the Chief of the Cree Nation of Chisasibi, the backlog and overcrowding of houses in Chisasibi are serious problems and issues that need to be addressed in a timely and adequate manner by Canada.

G. Firearms Control Legislation

The Chief of the Cree Nation of Chisasibi states that the federal firearms control legislation is not needed as Crees apply their own safety rules and practices.

5. Cree Nation of Washaw Sibi

The members of the Cree Nation of Washaw Sibi are beneficiaries of the James Bay and Northern Quebec Agreement. However, even as beneficiaries of the Agreement, they do not receive many of the benefits as other Cree communities.

The primary preoccupation of the Cree Nation of Washaw Sibi is the establishment of a distinct Cree community with their own Category I lands so that they can receive programs and services at the same level as the Crees in the other nine communities. To this end, the Cree Nation of Washaw Sibi has chosen a location for their community within the municipal boundaries of the Town of Amos, Quebec. They report that progress is being made towards finalizing the location of their community. 7

6. Naskapi Nation of Kawawachikamach

On February 9, 2012, the Naskapi Nation of Kawawachikamach submitted a brief to the Commission. In this brief, the Naskapi Nation of Kawawachikamach raises the following issues: 8

A. Mining Development in the Kawawachikamach – Schefferville Region

The Naskapi Nation are facing and witnessing a resurgence in the mining sector in the Kawawachikamach – Schefferville region. There are several mining companies involved in exploration activities, and two companies—Labrador Iron Mines and Tata Steel Minerals Canada—are well advanced in their development activities. The Naskapi Nation has Impact Benefit Agreements (IBA) currently under review with these two companies.

The Council of the Naskapi Nation is focusing its efforts on four areas of activity: heavy machinery operations and rental, including rock crushing, waste management, catering, fuel distribution and telecommunications. With the exception of catering, all of the foregoing businesses are either operational or will be operational within the near future.

The Naskapi Nation is also developing joint ventures in other areas in which capacity building and employment figure prominently.

In addition, the Naskapi Nation is focusing on training programs for its members in order to enable them to gain entry and advance in the mining sector of the region. To address the need for access to training on an ongoing basis, the Naskapi Nation is advocating a mining training centre to be established in Kawawachikamach.

B. Plan Nord – Development and Implementation

The Naskapi Nation was an active participant in the discussions with Quebec that led to the Plan Nord and its strategic planning. A Naskapi Table will soon be established that will ensure ongoing and regular communications between the Naskapi Nation and Quebec as the Plan Nord progresses in its development and implementation.

C. Cree-Naskapi (of Quebec) Act – Technical Amendments

The Naskapi Nation is still seeking technical amendments to the Cree-Naskapi (of Quebec) Act regarding the following provisions of the Act and additional matters:

The Naskapi Nation has confirmed to Canada its desire to proceed with discussing such amendments in collaboration with the Cree Nation of Eeyou Istchee.

D. Housing

The Naskapi Nation, like the Cree communities, has similar issues and concerns on housing especially funding for:

E. Sewage Treatment

The Naskapi Nation of Kawawachikamach is exceeding the treatment capacity of their community sewage system and needs funding to increase its treatment capacity. But Canada treats the Naskapi Nation as an agreement community and therefore says it has no funds from the programs available for other First Nations. Consequently, the Naskapi Nation does not appear to be getting its fair share or any share of funding from regular programs available to First Nations.

END NOTES

Cree Trappers’ Association

Chapter Six

1. Introduction

The Cree Trappers’ Association (CTA) was created, thirty-five (35) years ago, as a non-profit organization pursuant to sub-section 28.5 of Section 28 of the James Bay and Northern Quebec Agreement (JBNQA). It was incorporated March 10, 1978. Since that time the CTA has played a very active role in protecting and promoting the interests of the Cree hunters and trappers, and generally supporting their wildlife harvesting activities through the provision of programs and services.

Since its establishment, the CTA has evolved in a period of rapid changes to the political, economic and social landscape and environment of Eeyou society and Eeyou Istchee. The submission of the CTA made to the Cree-Naskapi Commission, on February 10, 2012, aims to describe the role of the CTA in the context of these broad changes to Eeyou society and to provide the Commission with some observations about the issues that will likely need attention in the coming years.

2. Mission and Role of the Cree Trappers’ Association

Eeyou leaders, individuals and people have always expressed the need to protect, preserve and maintain Eeyou tradition, practices and values or Eeyou Eehdou-wun. Eeyou hunters and trappers play a fundamental role in the protection, preservation and maintenance of Eeyou Eehdou-wun. Consequently, the CTA, as a representative body for the Eeyou trappers and hunters, protects and promotes the traditional way of life and the foundational values, traditions and laws of the Eeyou hunters and trappers and, indeed, of the Eeyou Nation of Eeyou Istchee.

3. Adapting to Change

As one of the fundamental objectives, the James Bay and Northern Quebec Agreement was negotiated by the Eeyou to protect and maintain the Eeyou traditional way of life and its culture. However, the Eeyou acknowledged that the use and occupation of Eeyou Istchee would be maintained and continued in the context of political, social and economic changes in Eeyou society and Eeyou Istchee.

Hydroelectric development in Eeyou Istchee has tremendously increased access to the Eeyou communities and Eeyou hunting territories. Eeyou and Non-Natives share the occupation of Eeyou Istchee and share the use of its wildlife resources.

Other industrial developments such as commercial forestry activity have impacted and continue to impact the use of the hunting territories by the Eeyou hunters and trappers.

The Eeyou population has more than doubled since 1975, and the Eeyou have adapted and continue to face the challenge of adapting to these changes in Eeyou society and Eeyou Istchee.

4. Maintaining the Vitality of a Hunting Society

The Cree Trappers’ Association is faced with a series of issues and concerns in the midst of the present and futures changes. In particular, the Eeyou hunters and trappers are impacted by the political, social and economic changes in Eeyou society and Eeyou Istchee. Changes to the climate and its impacts are additional factors of concern. Furthermore, the Eeyou are impacted by open access and competition among Eeyou and non-Native hunters and fishermen for the same wildlife resources. The proper management and protection of wildlife resources is a serious challenge. The protection, maintenance and continuity of the vitality of the Eeyou hunting society has become and remains the most serious challenge for the Eeyou of Eeyou Istchee.

5. Growing Access to the Territory

The construction and use of roads, ATV and ski-doo trails have meant the opening of the territory without control of access. The Eeyou, especially Eeyou hunters, have expressed deep concerns about the implications of uncontrolled access to Eeyou hunting territories. However, Quebec maintains its policies such as public nature and open access of roads, including forestry access roads. Such uncontrolled access changes the nature of the hunting territories of Eeyou Istchee and has serious implications for wildlife management. Non-Native hunters and other users have the tendency to consider the ATV and ski-doo trails as private. Eeyou hunters and trappers have been challenged when using these trails. There is an increasing need to address these issues.

6. Threat to Shelter and Security

The Eeyou establish hunting outside camps outside their communities. This is an integral element in the Eeyou use of Eeyou Istchee. Establishing camps involves an element of security—hunters depend on a shared code of ethics, which ensures that essential equipment left at camps will not be removed arbitrarily and without the knowledge of the hunter. But often, this is not the case as key hunting equipment will be stolen and camps vandalized. The hunters would like to be able to address and correct this situation.

7. Costly Situation of Maintaining Two Households

While maintaining a home in the communities, Eeyou hunters maintain hunting camps. The expenses of maintaining a home in the community and a hunting camp in the hunting territory are costly for Eeyou hunters, who face additional costs such as fuel, hunting equipment and transportation in the pursuit of their traditional activities and livelihood. It is becoming increasingly difficult for individual hunters to support these costs, which begin to escalate.

8. Life After Hydroelectric Development

Hydroelectric development projects in Eeyou Istchee have had and continue to have a major social and economic impact on the Eeyou, their communities and hunting territories. The Eeyou economic involvement has been progressive and has had major implications for the Eeyou hunting economy. Many hunters have been involved in seasonal work and construction work, and many tallymen have been involved directly in the planning and implementation of remedial works respecting hydroelectric development projects. But after about forty years of construction, the La Grande Complex with its components of hydroelectric development will be completed soon. The Eeyou hunters, like other Eeyou of the communities, will have to pursue other sources of employment in the industrial and economic activities planned within Eeyou Istchee, such the commercial forestry and mining sectors. Consequently, employment opportunities and training programs are needed

9. Traditional Eeyou Hunting Law

The Cree Trappers’ Association has produced a written document on the Eeyou customary and traditional hunting law respecting the governance of Eeyou hunting territories and management of wildlife resources thereof. As one main purpose, the Eeyou hunting law describes how family hunting territories are governed and managed by Eeyou tallymen and families. It sets out the process for the transfer of hunting territories and a process for the resolution of disputes respecting the limits and boundaries of family hunting territories. The limits and boundaries of family hunting territories are crucially important for Eeyou hunters, as proponents of resource development projects such as commercial forestry projects, mining and roads must take into account the social and environmental impacts of projects on the hunting territories and hunters when preparing impact statements. The CTA is actively involved in:

The CTA requires strong financial and political support in the pursuit of this important endeavour.

10. Federal Long-Gun Registry

On October 25, 2011, the federal government introduced legislation to scrap the long-gun registry. The Cree Trappers’ Associations supports this federal initiative as the long-gun registry has always been a contentious issue for Eeyou hunters. The Government of Quebec may be planning its own firearms registry. The CTA opposes any such initiative that affects the Eeyou way of life and its practices.

11. Regulatory Powers of Eeyou Governments

The Eeyou local and regional authorities or governments have regulatory powers broadly defined in Section 24 of the James Bay and Northern Quebec Agreement with respect to the use and management of wildlife resources within Category I and II lands, and to some extent in Category III lands. These powers complement the Eeyou customary laws and practices for the management of wildlife resources and hunting territories. As far as the CTA has determined, the Eeyou governments have not used these regulatory powers. The CTA encourages the Commission to support and promote action in this aspect of the implementation of the JBNQA.

12. Role of the Cree Trappers’ Association in Relation to Eeyou Governance

The Cree Trappers’ Association is an organization which protects the rights and interests of the “Indoho-suu” and promotes the welfare of the “Indoho-suu” of Cree society. (The “Indoho-suu” are the traditional Eeyou who live a life based primarily on hunting, fishing and trapping and related activities.) This is an essential role and a necessity for the maintenance and continuance of Cree culture and the Cree traditional way of life.

In relation to the Cree First Nations and the Cree Regional Authority, the Cree Trappers’ Association considers its role as follows:

Consequently, the work of the CTA, at both the regional and local level, is relevant to the implementation of the wildlife management regime of Section 24 of the JBNQA and to the environmental and social impact assessment procedure in Section 22 of the Agreement. To play an effective role, the CTA should have representatives on the advisory bodies contemplated for wildlife management and social and environmental review and assessment.

13. Conclusion

The Eeyou of Eeyou Istchee are presently facing interesting times as Eeyou governance advances at a regional level with the formalization of a Cree nation government and its institutions. The CTA intends to be part of this important development and will actively seek ways to ensure that the interests of Eeyou hunters are adequately taken into account. The CTA strongly believes that Eeyou traditional law, with hunting activities and values at its core, is a fundamental element of Eeyou governance in Eeyou Istchee.

Aboriginal Commissions, tribunals, Land Boards: Some reflections on the experience of the Cree-Naskapi Commission

Chapter Seven

“Most institutions governing Aboriginal life today originate outside Aboriginal communities. For the most part, they operate according to rules that fail to reflect Aboriginal values and preferences. In every sector of public life, there is a need to make way for Aboriginal institutions.” “… these institutions … should be designed to complement, not compete with, nation structures.” 1 (RCAP, 1996)

Introduction

As the Cree leadership and people consider the various structures and processes that they intend to include in the formalization of the Cree Nation Government and Cree Nation Constitution, the Cree-Naskapi Commission offers some ideas for consideration on the possible structure and process for an “arm’s-length” body where members of the Nation can raise issues and concerns, make suggestions, have an independent hearing and receive impartial findings and recommendations.

We believe that such a body (whether a continuation of the present Commission or an entirely new body) needs to be based upon five principles:

Why these principles are important as well as how they might be implemented are the subject of this chapter. They are based upon the more than 25 years of experience of the Cree-Naskapi

Commission with the current legislation governing our role and responsibilities. We have also had an opportunity to consider the experience of a number of other Aboriginal commissions, tribunals and boards (CTBs) that have been established more recently.

Background

The observations of the Royal Commission on Aboriginal Peoples quoted above can be applied to the type of arms- length bodies which we suggesting. In our experience, as well as in the experience of similar bodies, it has become apparent that there is a tendency to adopt both the structures and the processes of “mainstream” administrative tribunals based upon Euro-Canadian ideas about what constitutes fairness, independence, etc., as codified in Canadian administrative law. Certainly there is much good to be said about that law. Generally it serves non-Aboriginal Canadians well. Our experience shows that the issue, well expressed by RCAP in the quotation cited above, is that all commissions, tribunals and boards created as part of a nation’s governance must arise first from the values and preferences of that nation, rather than being mere adjusted reflections of some other nation’s approach. Similarly the processes employed need to arise from the nation in question, not from someone else’s procedures. Finally, the actual governing laws must be consistent with Aboriginal and treaty rights, customary law, values and tradition. As a secondary consideration, it is always possible to adopt some structures and processes from others so long as the nation retains the right to change these as needed.

Administrative law in Canada has developed over time as a part of the broader Canadian legal tradition. Its roots include the common law of England, European concepts of “natural justice,” some legislation on administrative procedure as well as specific provisions in many of the statutes creating “mainstream” commissions, tribunals and boards. All of this has been woven into a reasonably coherent body of law by a number of court decisions. Unfortunately, this body of law has evolved largely without any serious consideration of Aboriginal and treaty rights law, not to mention traditional law and custom. It can be argued that administrative law was developed before the section 35 entrenchment of Aboriginal and treaty rights in the Constitution in 1982, and that most administrative law bodies dealt mainly with non-Aboriginal issues. It must be observed, however, that the Royal Proclamation of 1763 recognized Aboriginal nations and governments, that numerous treaties provided the same recognition, but that whenever administrative law was applied to Aboriginal nations, these guarantees were largely overlooked.

The guiding principles of mainstream Canadian commissions, tribunals and boards revolve mainly around the concept of fairness. This concept is of course a core value in Aboriginal communities as well. The problem arises because the Euro-Canadian application of this concept in practice doesn’t always fit in Aboriginal communities.

Concepts of fairness include specific criteria such as: no person can be a judge in his own case (including the case of anyone related to him by blood, marriage, business relationship, close friendship, etc.); no one should be the subject of a negative finding without having had an opportunity to know the issues being decided and the right to be heard in his own behalf; every person has the right to legal advice, etc. The decision-makers themselves must follow the law, must consider the evidence, must not exercise discretion arbitrarily, etc. These criteria and others generally assure fairness in the work of literally hundreds of mainstream commissions, tribunals and boards. Canadians are familiar with such bodies as the CRTC, the Immigration and Refugee Board, the Ontario Municipal Board, various public utilities boards, taxi commissions, etc. In circumstances where an individual feels that he has not received justice, he can appeal in some cases to an appeal body and in virtually all cases to the courts for judicial review or some other legal remedy.

In the past 25 or 30 years a significant body of Aboriginal and treaty rights law has begun to develop in Canada, most particularly out of the case law interpreting and applying the provisions of section 35 of the Constitution Act, 1982. This law will in the coming years increasingly impact the activities and processes of Aboriginal CTBs as well as mainstream CTBs dealing with Aboriginal issues.

When the Cree-Naskapi Commission began operations in 1986 there were few immediate reasons to think of the need to address these issues. The section 35 amendments had only been in effect for about four years and the Commission was one of only a few such Aboriginal bodies in Canada. The Cree and the Naskapi had negotiated the inclusion into the Cree-Naskapi (of Quebec) Act of sections establishing the Commission and setting out its duties and powers. Time was needed to see how those sections would work out in practice. There is now more than a quarter of a century of experience to draw upon. During roughly the same time period, with the advent of other land claims settlements, modern-day treaties and self-government legislation, there has been an explosion in the number of Aboriginal CTBs. (There are now more than 60 operating across the country.)

Increasingly, Aboriginal CTBs are being confronted by the need to reconcile Aboriginal traditional and customary law with the Canadian administrative law that largely governs their daily activities. Certainly the Cree-Naskapi Commission has had an advantage in this regard. Our existing legislation provides a large measure of flexibility, and the current Commissioners have taken the view that the inherent right to self-government is protected by the Constitution and that the inherent right includes the requirement that traditional and customary law be respected in all aspects of our work. So far there have been no legal challenges to this view. As the Cree Nation develops its Constitution, we hope that traditional and customary law as well as contemporary Cree law will be given priority over conflicting mainstream administrative law.

The Issue of Independence of Aboriginal CTBs

Most CTBs, both “mainstream” and Aboriginal, are established to ensure that legislation and/or regulations are applied, disputes resolved, and decisions or recommendations made with a degree of arm’s-length independence from the government that appointed them. The majority of CTBs will have to interpret and defend that independence on a regular basis. The line departments of government will, in the nature of things, try to ensure that as many as possible of the activities that relate in any way to their basic mandate are kept within their control. While these conflicting tendencies apply to a greater or lesser extent to most CTBs and governments, they are of particular importance for Aboriginal CTBs, which are subject to some form of control by the federal or provincial governments. The federal government has had almost unfettered control over the basic governance activities in Aboriginal communities, mainly through the Indian Act, for almost two centuries. Now as the exercise of more and more governance powers are being resumed by First Nations governments, it is especially important to ensure that Aboriginal CTBs are not so arm’s-length that they interfere with the operation of real self-government. In this context the issue needs to be considered by Aboriginal governments across the country.

In the case of the Cree Nation of Eeyou Istchee, it is the balance that needs to be achieved between the necessary independence that their CTBs require and the need that the Royal Commission on Aboriginal Peoples wisely recognized that, “…these institutions…should be designed to complement, not compete with, nation structures.”

In considering the establishment of a Cree Nation arm’s-length CTB, several decisions need to be made:

Each of these questions raises significant issues. Clearly Canada and Quebec will expect some degree of input if their legislation, regulations and policies are to be impacted. The present Cree-Naskapi Commission could be empowered by provincial legislation to perform the same functions in relation to the province as it does vis-à-vis the federal government. This option would have the advantage of predictable outcomes.

On the other hand, the Cree Nation Constitution could make all the provisions for a Cree arm’s-length CTB, assigning whatever functions its saw fit. This would have the advantage of being an exercise of the inherent right and could include functions far beyond anything possible under the Cree-Naskapi (of Quebec) Act.

If the option of using the existing Act or amended federal legislation, with or without a concurrent provincial Act, is chosen the limitations affecting the existing Act need to be eliminated where possible.

Simple changes to the existing sections of the Act which deal with the Commission could include:

The Legal Basis for Establishing and Terminating Aboriginal CTBs

The method used to create an Aboriginal CTB as well as the process by which it can be terminated are major factors affecting its independence, especially when its decisions are under attack.

Clearly a body created by a “section 35” treaty or agreement has very strong guarantees of its continued existence. The process of amending treaties or agreements will normally ensure that the consent of the First Nation(s) or other Aboriginal community is required.

A CTB created by specific legislation will require legislative amendment to change its mandate or to end its existence. This is by no means a guarantee of Aboriginal consent, but it is an open, public process and will usually involve an opportunity for input from interested parties. Legislation that the government was required to introduce by the terms of a treaty or other “section 35” agreement is almost certainly in a much stronger position than other legislation. (The Cree-Naskapi (of Quebec) Act is certainly an example of such legislation.)

Some CTBs are created by order-in-council. The ability of the government of the day to simply rescind the order-in-council is a very significant limitation on independence. Additionally there are some CTBs whose creation is based upon a ministerial letter or directive. Such bodies are entirely susceptible to the political will of the minister.

Finally, some types of CTBs are explicitly subject to renewal at the discretion of government.

Aboriginal leaders, negotiators and their counsel need to address the issue of the legal basis by which CTBs are established and may be terminated when considering the degree of independence they wish these bodies to have.

In the case of the Cree and the Naskapi, these issues appear to have been addressed in the current Cree-Naskapi (of Quebec) Act.

Methods of Appointment and Removal of CTB Members

Almost as fundamental to the independence of CTBs as the authority by which they are established is the method by which their members are appointed. In some cases different members are appointed by, and represent, the various parties sponsoring the CTB. The British Columbia Treaty Commission is perhaps the best known example of this approach.

The appointment of the members of the Cree-Naskapi Commission is provided for in the legislation, which requires that members be “… appointed by the Governor in Council on the recommendation of the Cree Regional Authority and the Naskapi Band.” Clearly the government can only appoint as members, individuals who have been recommended. So far, this approach has worked reasonably well.

Other methods of appointment are by order-in-council (with or without consultation), appointment by a specific minister or ex-officio by virtue of some other office held. Each of these approaches involves real limitations on independence.

Control of Funding

The funding of most CTBs at the present time comes from government and is under the control of that government through all of its budget-making, expenditure control and other financial management processes. Given that control over public spending is considered to be one of the most important and essential powers of Parliament and the Legislatures, the guarantee of long-term financing of CTBs is a challenging issue. The need to ensure that the threat of withholding, delaying, reducing funds or of unilaterally changing the terms and conditions of funding is an issue for self-government as a whole, as well as being a major concern for the independence of CTBs. While Parliament must keep control over spending, governments must respect their obligations under treaties and agreements as well as part of their fiduciary duties. As the Supreme Court observed in the Badger case, “They (treaties) create enforceable obligations based on the mutual consent of the parties.” 2 Justice Heald of the Federal Court of Canada (Appeal Division) said much the same in Kruger when he wrote, “The Governor in Council is not able to default its fiduciary relationship to Indians on the basis of other considerations.” 3

Present-day arrangements, especially in relation to the cost of governance functions that the Crees of Eeyou Istchee have taken responsibility for from other governments, involve large multi-year transfer of funds which are no longer subject to bureaucratic management and control. This approach, which sees treaty obligation-based funding as analogous to “own source revenue,” needs to be broadened to bring the Aboriginal CTBs fully within the realm of First Nations governance and accountability structures and processes.

The question of the means of funding for the Cree-Naskapi Commission, along with issues of its independence, need to be considered by the Cree and the Naskapi as they review the functions of the Commission or a similar body.

Process Issues Facing Aboriginal CTBs

While the need to ensure the independence of Aboriginal CTBs is crucial, it must be remembered that for them to have relevance as part of a nation’s governance structure, they must also operate within the values, principles and preferred ways of doing things of the nation in question. This means that the standard Euro-Canadian approach to “administrative law” will in certain cases need to be replaced by a nation-based approach. This has been done in practice by the Cree-Naskapi Commission by applying such concepts as the idea that Cree or Naskapi traditional law and custom are an integral part of the Aboriginal rights of the Cree and the Naskapi and therefore constitutionally protected. In looking at future development of governance, however, it will be necessary to ensure that any CTBs have the ability to carry out their duties, both independently and in accordance with the “Cree way of doing things,” the “Naskapi way of doing things,” etc.

Examples of Issues of Principle and Practice

Fairness is a fundamental value for “mainstream” and Aboriginal CTBs alike. How to get there is the area of critical difference. Some examples may help to explain the issue.

Election laws and regulations, whether they are First Nation, federal, provincial or municipal, typically provide for a series of specific dates for calling an election, for opening and closing nominations, and (after a specified number of days) for voting. Failure to follow these dates means that the election will have been not in accordance with the law and might be challenged. This may be entirely reasonable in a federal, provincial or municipal election. In an Aboriginal community, it may be customary, if there is a death in the community, to postpone any public function (including an election for Chief and Council) for a day or two. Typically a standardized election law will not recognize this. Traditional law, on the other hand, embraces it.

Most typical CTBs operate on the basis that where a multi-member panel makes a decision and there is not unanimity, a vote will be taken and the majority opinion will prevail. Usually an Aboriginal CTB will take the time and make an extra effort to achieve consensus.

In virtually all CTBs across Canada, the value of fairness, which includes the concept of not being a judge in one’s own case, requires that there be no substantial relationship between the members of the CTB and the parties appearing before them. This usually includes relationship by blood, marriage, business arrangement, friendship, etc. In circumstances where the jurisdiction has a large population, the probability of an existing relationship is low. In multi-member panels, if there is a relationship, the affected panel member can step aside. In a community of a few hundred or even a few thousand, this may not be a practical possibility. Other paths to fairness be found.

A similar issue is that of individuals “wearing more than one hat” in circumstances where the perception of the impossibility of fairness is created. A small community may have only one or very few who are interested in or expert in say, planning. So if a planning decision is appealed, it may be difficult to find appropriate members for an appeal body.

At a broader level Aboriginal CTBs, unlike their “mainstream” colleagues, operate on a day-to-day basis within the framework of Aboriginal and treaty rights law, specific First Nations legislation, treaty and land claims settlement provisions as well as with an awareness of traditional and customary law. The implications of this are only beginning to be understood.

These are a few considerations and many more can be found. What is needed a spectrum of solutions that work for the community affected. What is clear is that a one-size-fits-all approach will not work. Culture, traditional law and custom, language and “the way we do things around here” will very as widely among the Cree, the Mi’kmaq, the Haida and the Inuit as they do among the nations of Europe or Asia or anywhere else. One common element is the mutual respect for the right of each nation to govern itself according to its own values. Some communities may opt to use many of the elements of “mainstream” administrative law. Many may pursue traditional approaches. A blend of the two may often be the answer. The key is to find solutions at the First Nation or community level.

Next Steps

As the Cree Nation of Eeyou Istchee considers the development of a Cree Nation Constitution, and the formalization of the Cree Nation Government, it may wish to consider some of the issues that have been raised in this chapter. The experience of the Commission over the past 26 years may well be helpful in that process. We continue to discuss the issues of common interest with other Aboriginal CTBs as appropriate. Finally, the Commission continues to welcome input from the Naskapi Nation on this issue.

END NOTES

Recommendations of the Cree-Naskapi Commission

Chapter Eight

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

Family Homes on Reserves and Matrimonial Interests or Rights Act (Bill S-2)

Cree society is changing as Cree people in the communities have more valuable assets such as privately owned houses, and there are more conjugal relationships between Crees and non-Crees. These changes raise questions respecting rights and interests relating to the use, occupation and possession of the family homes and the division of property and such family homes located within Category IA lands.

1. The current negotiations between the Grand Council of the Crees (Eeyou Istchee) and Canada should address the legislative power of the Cree Nation Government to adopt laws with rules that would apply uniformly in all Cree communities and would govern family matters such as certain aspects of matrimonial real property on Category IA lands.

Interpretation and Application of the Cree-Naskapi (of Quebec) Act

A representative of the Grand Council of the Crees (Eeyou Istchee) raised many issues and questions on the interpretation and application of the Cree-Naskapi (of Quebec) Act. These issues and questions are described in Chapter 5 of the present report.

2. Canada and the Grand Council of the Crees (Eeyou Istchee) should establish a Working Group with a mandate to produce a document on the interpretation and application of the Cree-Naskapi (of Quebec) Act.

Amendments to the Cree-Naskapi (of Quebec) Act

According to the representatives of the Grand Council of the Crees (Eeyou Istchee), negotiations are presently underway with Canada to discuss possible amendments to the

James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act concerning a Cree Nation Government as contemplated in the Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee. However, the representatives of the federal government have taken the position that they didn’t have a mandate to discus other amendments to the Cree-Naskapi (of Quebec) Act other than those described or required in the said New Relationship Agreement.

3. The Government of Canada should expand the mandate of its negotiator for the present Grand Council of the Crees (Eeyou Istchee)-Canada negotiations to include discussions on other amendments to the Cree-Naskapi (of Quebec) Act in order to accommodate the present concerns and needs of the local Cree governments and administrations.

Old Post of Waswanipi

The Cree First Nation of Waswanipi had established the foundation of their first local government at the “old post” of Waswanipi. Therefore, the Cree First Nation of Waswanipi requests the Government of Canada and the Government of Quebec to recognize and to declare the site of the “old post” as an historic heritage site, which would then be developed by the Cree First Nation of Waswanipi as a site for cultural and educational purposes.

4. Representatives of the Government of Canada, the Government of Quebec and the Eeyou of Eeyou Istchee (Grand Council of the Crees (Eeyou Istchee) and the Cree First Nation of Waswanipi) should initiate discussions for the recognition and designation of the “old post” of Waswanipi as an historic or heritage site.

Working Group on Eeyou Issues and Concerns

The representatives of the Cree First Nation of Waswanipi want a Tripartite Working Group consisting of representatives from Waswanipi, the Cree-Naskapi Commission and Canada to be established with a mandate to address the past and present issues and concerns of Waswanipi as raised by Waswanipi over the past years to the Commission. However, there are many outstanding past and present issues and concerns of the other Eeyou communities and the Grand Council of the Crees (Eeyou Istchee).

5. A Working Group consisting of representatives of Canada, the Eeyou of Eeyou Istchee and the Cree-Naskapi Commission should be established to review and address the past and present issues and concerns raised by the Eeyou communities and the Grand Council of the Crees (Eeyou Istchee) in the reports of the Commission.

Housing

Housing is always a pressing issue raised by the Eeyou communities. The issue of the housing needs and housing problems in the Cree communities and Naskapi community of Kawawachikamach has been reported by the Cree-Naskapi Commission since it began its biennial reports in 1986.

Due to the escalating populations, continuing expansion of the communities and other factors, the Eeyou local and regional authorities face demands for new housing and for renovations to existing houses.

6. The Eeyou of Eeyou Istchee, through their local and regional authorities, produce an action plan with strategies to address the current and future housing needs of the Eeyou communities of the Eeyou of Eeyou Istchee.

7. The Eeyou of Eeyou Istchee, through their local and regional authorities, conduct negotiations and discussions to address the current and future housing needs of the Eeyou communities of the Eeyou of Eeyou Istchee in their current new relationships with Canada and Quebec.

The Naskapi Nation, like the Cree communities, has similar issues and concerns on housing for its members living in Kawawachikamach.

8. The Naskapi Nation of Kawawachikamach produce an action plan with strategies to address its current and future housing needs.

9. The Naskapi Nation of Kawawachikamach commence negotiations and discussions to address its current and future housing needs with Canada and Quebec.

Proposed Changes to Boundaries of Category I and II Lands of Waswanipi

With the cancellation of the Nottaway-Broadback-Rupert (NBR) Hydroelectric Project, the present configuration of the Category I and II lands of Waswanipi does not need to be maintained. In addition, the present five hundred (500) foot corridor that runs parallel on both sides of Route 113 (provincial highway) constitutes a barrier for community development by Waswanipi. In particular, the corridor directly on the opposite side of the community prevents community expansion or development because of its present status and categorization under the land regime of the James Bay and Northern Quebec Agreement.

10. The present configuration of the Category I and II lands of the Cree First Nation of Waswanipi should be changed through negotiations with Quebec and Canada to reflect the needs and aspirations of the people of Waswanipi. (Such negotiations are contemplated in the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec.)

Amendments to the Cree-Naskapi (of Quebec) Act

The Eeyou and Naskapi local governments are facing great difficulties with financial implications in complying with some of quorum provisions and requirements of the Cree-Naskapi (of Quebec) Act. The Eeyou and Naskapi representatives have raised many other issues and concerns respecting the application of and amendments to the Cree-Naskapi (of Quebec) Act.

11. The Eeyou of Eeyou Istchee and the Naskapi Nation of Kawawachikamach should jointly produce a document on the issues and concerns respecting the application of and amendments to the Cree-Naskapi (of Quebec) Act. (The Commission would be willing to assist in this process.)

12. Canada, the Eeyou of Eeyou Istchee and the Naskapi Nation of Kawawachikamach should establish a table for the review and subsequent negotiations on the issues and concerns respecting the application of and amendments to the Cree-Naskapi (of Quebec) Act in order to facilitate and improve local government and administration.

Youth of Eeyou Istchee

Representatives of Eeyou youth from some communities spoke about the lack of programs and services for the youth of the communities.

13. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and the Cree Nation Youth Council of Eeyou Istchee should produce a report on the needs of the Eeyou youth in the communities.

14. Canada and the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority should conduct negotiations and discussions to address the needs of the Eeyou youth for programs and services in the Eeyou communities.

Block “D”

Pursuant to Schedule D of the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec, Quebec shall transfer the administration, management and control of the lands designated as Block “D,” including the air strip, to the Government of Canada for the exclusive use and benefit of the Cree Nation of Chisasibi subject to certain terms and conditions. (Block “D” will become part of Category IA lands of Chisasibi.) The parties will use their best efforts to ensure that the final transfer by Quebec is completed no later than September 30, 2002. The Chief of Chisasibi stated that ten (10) years after the signing of the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec and Block “D” has not been transferred for the exclusive use and benefit of the Cree Nation of Chisasibi. The current and long delay respecting the transfer of Block D to the Cree Nation of Chisasibi can no longer be justified. The Commission considers that Quebec and Canada are in breach of Schedule D of the Agreement Concerning a New Relationship Between le Government of Québec and the Crees of Québec.

15. The Commission repeats its recommendation from its 2010 Report that “Block D should be transferred to the Cree Nation of Chisasibi forthwith.”

Sewage Treatment (Kawawachikamach)

The Naskapi Nation of Kawawachikamach is exceeding the treatment capacity of their community sewage system and needs funding to increase its treatment capacity. But Canada treats the Naskapi Nation as an “agreement community” and therefore says it has no funds from the programs available for other First Nations. Consequently, the Naskapi Nation does not appear to be getting its fair share or any share of funding from regular programs available to First Nations.

16. Canada and the Naskapi Nation of Kawawachikamach discuss and negotiate the funding for the project respecting the community’s sewage treatment on the basis of the letter, intent and spirit of the terms and provisions of the Northeastern Quebec Agreement.

Cree Trappers’ Association, Eeyou Governance and Other Issues

The Eeyou of Eeyou Istchee are presently facing interesting times as Eeyou governance advances at a regional level with the formalization of a Cree nation government and its institutions. The Cree Trappers’ Association (CTA) intends to be part of this important development and will actively seek ways to ensure that the interests of Eeyou hunters are adequately taken into account. The CTA strongly believes that Eeyou traditional law, with hunting activities and values at its core, is a fundamental element of Eeyou governance in Eeyou Istchee. The CTA has also raised other issues and concerns that constitute serious challenges for the Eeyou of Eeyou Istchee such as:

17. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and the Cree Trappers’ Association should jointly address these issues, concerns and challenges for resolution between the two Eeyou authorities and for submission of outstanding matters to the other authorities concerned such as the Cree Hunters and Trappers Income Security Board.

Traditional Eeyou Hunting Law

The Cree Trappers’ Association has produced a written document on the Eeyou customary and traditional hunting law respecting the governance of Eeyou hunting territories and management of wildlife resources thereof. The CTA is actively involved in:

The CTA requires strong financial and political support in the pursuit of this important endeavour.

18. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority should provide financial and political support to the Cree Trappers’ Association in the pursuit of this important endeavour.

Exercise of Regulatory Powers of Eeyou Governments

The Eeyou local and regional authorities or governments have regulatory powers broadly defined in Section 24 of the James Bay and Northern Quebec Agreement with respect to the use and management of wildlife resources within Category I and II lands, and to some extent in Category III lands. As far as the Cree Trappers’ Association has determined, the Eeyou governments have not used these regulatory powers.

19. The Eeyou local and regional authorities or governments should proactively exercise their regulatory powers broadly defined in Section 24 of the James Bay and Northern Quebec Agreement with respect to the use and management of wildlife resources within Category I and II lands, and to some extent in Category III lands.

Eeyou Governance in Eeyou Istchee

20. In view of current Eeyou-Canada-Quebec discussions on governance of the Territory contemplated by the James Bay and Northern Quebec Agreement and the many challenges posed by the Eeyou in establishing various forms of governments as an order of government in Eeyou Istchee and exercising good effective governance, Eeyou local and national (regional) governments should:

21. In particular, strategies need to be developed and implemented to strengthen Eeyou governing capacities for meaningful and effective governance. The Cree-Naskapi Commission suggests that such strategies encompass the following:

22. To address accountability, Eeyou governments should take the following steps:

Cree-Naskapi Commission

The current discussions and negotiations between Canada and the Eeyou of Eeyou Istchee on the formalization of the Cree Nation Government and the Cree Nation Constitution provide an opportunity for the parties to review the duties, powers and operations of the Cree-Naskapi Commission.

23. The Commission recommends that the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority give consideration to the ideas and suggestions for the future of the Cree-Naskapi Commission or similar body as outlined in Chapter 2 of the present report.

Conclusion

Chapter Nine

In the early relationships with non-Cree governments, the Cree Nation of Eeyou Istchee were mostly administrators and managers, running programs and services designed by outside governments. So this relationship was mostly about administration than government.

However, the Eeyou of Eeyou Istchee changed this pattern through the implementation of the James Bay and Northern Quebec Agreement and related Agreements, such as the New Relationship Agreements with Canada and Quebec. The Cree (and the Naskapi) Nations seized more authority. The Cree also exercised their form of Nation governance through the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority. Furthermore, the Eeyou are presently conducting discussions and negotiations with Canada and Quebec for the formalization of a Cree Nation Government and the establishment of a regional public government.

The Cree and Naskapi Nations are asserting their rights to govern themselves and built their nations according to their designs and aspirations. In taking this journey, the Cree and Naskapi Nations have marked out a path from self-administration to self-government. This shift from self-administration to self-government is a fundamental aspect of nation-building as the Cree and Naskapi Nations have reclaimed governance as an Aboriginal right and activity.

But Nation-building and hence self-government are continuous activities which must develop and sustain societies that work—economically, socially, culturally and politically.

In this regard, the assumption by the Cree Nation of greater responsibility for Cree economic and community development with increased autonomy, in accordance with the terms and provisions of the Agreement Concerning a New RelationshipBetween le Gouvernement du Québec and the Crees of Québec and the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee, will enhance Cree governance and administration.

Furthermore, the Framework Agreement between the Crees of Eeyou Istchee and the Gouvernement du Québec on Governance in the Eeyou Istchee James Bay Territory contemplates the concrete participation by the Crees in the governance of the Category III lands within the Territory in partnership with the other residents of the Territory.

These are positive and promising measures for the advancement and exercise of Eeyou governance.

However, for the past 28 years, the Cree-Naskapi (of Quebec) Act has not maintained pace nor evolved with the exercise and practice of the Cree and Naskapi local government and the state of Aboriginal and contemporary law. In fact, certain existing provisions and terms and the absence of essential provisions of the Cree-Naskapi (of Quebec) Act constitute serious obstacles and constraints for Cree and Naskapi local government and administration.

The present and past reports, discussion papers and lessons learned from investigations of the Cree-Naskapi Commission result in conclusions, findings and recommendations respecting the review and revision of the Cree-Naskapi (of Quebec) Act so that it reflects the present reality and evolving dynamics of Eeyou (and Naskapi) local government and the state of Aboriginal and contemporary law.

Therefore, it is equally important for the Government of Canada and the Cree Nation of Eeyou Istchee to find expression in their new relationship by advancing and enhancing Cree (and Naskapi) local government through appropriate amendments to the Cree-Naskapi (of Quebec) Act.

Cree-Naskapi Commission

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