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CREDITS

Writing

Richard Saunders, Chairman
Philip Awashish, Commissioner

Design and production

gordongroup

Printing

Trico Evolution

Translation

wedo (CILFO) translation inc. (French)
George Guanish (Naskapi)
Bill Jancewicz (Naskapi)
Louise Blacksmith (Cree)

Photography

Robert Chitty
Cree-Naskapi Commission
Malcolm Clark

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
www.creenaskapicommission.net

ACKNOWLEDGEMENTS

The Commission wishes to acknowledge the many individuals and organizations who have contributed to the preparation of this Report. First of all, we wish to thank all those who made
oral and written presentations at the Special Implementation Hearings held in Montreal on
February 5, 6 and 7, 2018, as well as in Ottawa on February 24, 2018. Elders, Chiefs, Youth Representatives and others provided invaluable information, without which this Report could never have been produced. Also this year, for the first time, we heard a presentation from representatives of the MoCreebec community who are, with the support of the Cree Nation Government, seeking inclusion in the James Bay and Northern Quebec Agreement.

Canada, as represented by the Department of Crown-Indigenous Relations and Northern Affairs also made a presentation at the Special Implementation Hearings which we acknowledge with thanks.

The Commissioners also wish to thank Brian Shawana, our Director General and Sandra Masson, Executive Assistant for their excellent work supporting the development of this Report, as well as their highly professional efforts on behalf of the Commission every day of the year.

Richard Saunders
Chairman

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.

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 of 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.

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.

 

August 31, 2018

Hon. Carolyn Bennett PC, MD, MP,
Minister of Crown-Indigenous Relations, Parliament Buildings, Ottawa, Ontario K1A 0H4

Dear Minister:

The Commissioners are pleased to submit herewith the 2018 Report of the Cree-Naskapi Commission in English, French, Cree and Naskapi pursuant to sections 165. (1) (a) and 171. (1) of the Cree-Naskapi (of Quebec) Act. This is the sixteenth and final biennial report of the Commission.

Now is perhaps an appropriate time to note that these reports were the only reports required, as a matter of law, to be tabled in Parliament in an Indigenous language. This legislative provision was the sole and unique example of such recognition of Indigenous languages in Canadian history. Now this precedent is gone.

The biennial reports were also an opportunity and a responsibility to report formally to the Minister and to Parliament on the implementation of the self-governance legislation (the Cree-Naskapi (of Quebec) Act) and the Agreements. This function will no longer be carried out in relation to the Agreements or the new legislation.

This Report, like the previous fifteen reports, is based upon the ideas, suggestions and concerns raised by Elders, Chiefs and Youth Representatives during a series of Special Implementation Hearings held in Montreal on February 5, 6 and 7, 2018, and in Ottawa on February 24, 2018. Canada, as represented by officials from your department also provided useful input at these hearings. We also received written submissions during the process. Finally the Commissioners also considered issues raised in the course of addressing representations filed under section 165. (1) (b) of the Act since our last report in 2016, as well as during informal discussions with a variety of individuals and officials.

Over the past thirty-two years the Commission has dealt with a number of recurring issues and common themes. Inasmuch as this is the final report which will be tabled in Parliament and referred to the Standing Committees, we have taken the opportunity to offer what we hope may be useful observations on some of those issues and themes.

You know, of course, that those who raise concerns or offer ideas during our hearings expect that this report will bring their concerns and ideas to the attention of decision-makers such as yourself and others who are able to address them. In this regard, we look forward to an early opportunity to discuss some of these matters with you.

The strong and supportive commitments to improving relations with and addressing specific problems of Indigenous Peoples made by the Prime Minister and reiterated by yourself, Ministers Philpott, Wilson-Raybould and others have created good faith expectations that positive change will occur. All of us, involved in any way, need to work together to make sure that this change happens. The Commission will be more than willing to assist at any time as appropriate.

Thank you for your consideration.

CREE-NASKAPI COMMISSION

TABLE OF CONTENTS

Message from the Chair

This is the last of 16 biennial Reports of the Cree-Naskapi Commission prepared every two years since 1986. Pursuant to section 171 of the Cree-Naskapi (of Quebec) Act, these reports have been prepared on the implementation of that Act and related matters for submission to the Minister and for tabling in both Houses of Parliament, where they were referred to the Standing Committees. They are also provided to each Cree and Naskapi First Nation. This Act, unlike any other federal legislation, required that the Reports be prepared and submitted in English, French, Cree and Naskapi. This was first and only time that documents were required by law to be tabled in Parliament in an Indigenous language. This sole and unique precedent is now gone.

As part of the process of increased legislative recognition of the inherent right of self-government of the Cree Nation of Eeyou Istchee, new legislation, the Cree Nation of Eeyou Istchee Governance Agreement Act, was recently passed and came into effect on March 29, 2018. This Act provides, among other things, for giving the force of law to the Cree Nation of Eeyou Istchee Governance Agreement as well as to the Cree Constitution. The parts of the Cree-Naskapi (of Quebec) Act affecting the Naskapi Nation of Kawawachikamach along with modified provisions dealing with the Commission are included in the Naskapi and Cree-Naskapi Commission Act. The new role of the Commission will be essentially that of an ombudsman and does not include any mechanism for reporting either to Parliament or otherwise as a matter of public record. The new legislation says;

“165 (1) Subject to subsections (2) and (3), the Commission shall

(a) with respect to Naskapi beneficiaries, 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; and

(b) with respect to Cree beneficiaries, as defined in subsection 2 (2) of the Cree Nation of Eeyou Istchee Governance Agreement Act, investigate any representation submitted to it, relating to the implementation of the Agreement, as defined in subsection 2 (1) of that Act and the Cree Constitution, including representations relating to the exercise or non-exercise of a power and the performance or non-performance of a duty under that Agreement or the Cree Constitution.”1

Over the coming months, the Commission will be meeting with the Cree Nation Government, individual Cree First Nations, the Naskapi Nation of Kawawachikamach, Canada and others to discuss the Commission’s revised role and responsibilities.

Insofar as this Report is concerned, it covers the issues and concerns raised by Chiefs and Councils, Elders and Youth Representatives during the Special Implementation Hearings conducted by the Commission in Montreal and Ottawa in February, 2018. Also forming part of the input for this report are some of the more important matters raised in the course of representations filed since the last report in 2016. A set of our recommendations along with Canada’s response to the recommendations we made in 2016 are also included. This continues the practice followed in our previous reports.

Because this is the final report which will be tabled in Parliament and will be part of the public record, we have decided to add some discussion about a number of broader issues which, based upon our experience over the past 32 years, we believe merit consideration, not only in the Cree and Naskapi Nations but also by those involved in Indigenous affairs policy-making and self- government more generally.

Indigenous Nations and Self-Government

Increasingly since Aboriginal and treaty rights were “recognized and affirmed’ in the 1982 constitutional amendments, there has been parallel recognition that First Nations are indeed nations and have both an inherent right to self-government and a “nation-to-nation relationship with Canada. The inherent right to self-government, the nation-to-nation” relationship and the government-to-government relationship have been adopted as policy by governments of all political stripes and have been strongly supported recently by the current government. These concepts are also strongly supported by the United Nations Declaration on the Rights of Indigenous Peoples, which the government is committed to implement.

During a speech to a Special Chiefs’ Assembly of the Assembly of First Nations on December 6, 2016, Prime Minister Justin Trudeau had this to say:

“There is no relationship more important to me – and to Canada – than the one with First Nations, the Metis and the Inuit.

It is time for a renewed, nation-to-nation relationship with First Nations peoples: one that is based on the understanding that the constitutionally-guaranteed rights of First Nations are a sacred obligation that we carry forward. This obligation is based on respect, co-operation, and partnership; it is guided by the spirit and intent of the original treaty relationship; and it respects inherent rights, treaties and jurisdictions, and the decisions of our courts.”2

The policy outlined by the Prime Minister has been restated by him on a number of occasions as well as by the Minister of Crown and Indigenous Relations, the Minister of Justice and others. How these policies are applied in practice will determine the extent to which the present government accomplishes positive change in Indigenous self-governance.

The concept of nationhood, when seen as the effective control by a people of their internal affairs, involves more than just respectful words and cordial interactions. The federal and provincial governments must, in practice and legislatively, vacate some of the jurisdiction which they have exercised in First Nations communities (especially through the Indian Act)

since before Confederation. This will mean that in some cases, Aboriginal rights, treaties and land claims agreements will need to be interpreted by the courts to identify specific areas of control which governments will need to vacate. In many other cases this will be a step by step, negotiated process to identify areas in which First Nations will exercise self-governing jurisdiction, how the process will take place and how it will be funded.

The evolution of self-government in the Cree Nation of Eeyou Istchee provides some of the best examples of what can be done. The original treaty, the James Bay and Northern Quebec Agreement 1975, provided for a substantial reduction in the day-to-day control which Canada had been exercising over the internal affairs of the Cree Nation. An early step in this process was the replacement of the Indian Act insofar as it applied to the Cree and Naskapi with the Cree-Naskapi (of Quebec) Act. As time passed, the Cree negotiated the further exercise of their inherent right to self-government. The Paix des Braves with Quebec and the New Relationship Agreement with Canada were major examples of this evolution. Amendments to the Cree-Naskapi Act, 2008 continued the evolution.

By July 2018 the Cree Nation Government and Canada signed the Cree Nation of Eeyou Istchee Governance Agreement. As noted above, it provides for a new role for the Cree-Naskapi Commission. More importantly, it recognizes an expanded exercise of the inherent right of self-government by the Cree Nation of Eeyou Istchee. A fuller discussion of the process by which this was accomplished is included in Chapter 3.

A Problem of Policy Implementation

In our 1998 Report, the Commission identified what we called ‘Ministerial Impotence’. We also discussed the problem in some detail while testifying at the House of Commons Standing Committee on Aboriginal Affairs on April 24, 2001. Basically, we were concerned that policy change and other decisions which are made or appear to be made by Ministers are frequently not implemented in practice. There are few consequences and little accountability for this failure in governance. Because the present government has made an unusually large number of significant commitments, it will be important to see that concrete progress is made before other considerations effectively sidetrack Indigenous policy change. The Kelowna Accord which signalled positive practical change was the result of a remarkable Indigenous/federal/provincial consultation and planning process, but it was not put into operation during the time in office of the government which had agreed to it and ultimately was abandoned by the subsequent administration.

There are of course many other reasons why governments have so frequently failed to deliver on promised policy change. One of the most obvious is that Ministers of Indian/Aboriginal/Indigenous Affairs are usually not in office long enough to carry out any coherent and sustained change. For example, in the 32 years that the Cree-Naskapi Commission has been in operation, there have been no less than 16 different Ministers! To underscore the extraordinary scope of this problem, the following is a list of the Ministers involved: Crombie, McKnight, Cadieux, Siddon, Browes, Irwin, Stewart, Nault, Mitchell, Scott, Prentice, Strahl, Duncan, Valcourt, and Bennett/Philpot.

The fact that any of these Ministers were able to achieve anything whatever is to their credit. The fact that their attempts at change lose momentum as soon as they are out of office is hardly a surprise. When the ‘good idea of the day’ disappears with the ‘Minister of the day’, the bureaucracy has little choice but to revert to ‘business as usual.’

When one looks at similar figures for the so-called ‘major’ ministries such as Finance, Justice, Global Affairs etc. the figures indicate that much longer terms of office are the norm. Prime Ministers need to think of Indigenous Affairs as a ‘major’ ministry and ensure a greater degree of continuity, corporate memory and long-term goal attainment, all of which would be facilitated by longer terms in office for Ministers.

Self-Government and the Scope of Law-making Authority

The idea of Indigenous self-government necessarily includes the need for adequate jurisdiction to make laws for all aspects of a nation’s internal affairs. In general, at the present time, First Nations’ governments across Canada pass “by-laws.” As a result of recent legislation the right of the Crees to make “laws” has been recognized. A self-governing First Nation must be able to enact laws for the entire range of internal matters which do not significantly impact the legitimate functions of other jurisdictions. Any bodies other than the Indigenous government itself which carry out internal governance functions need to be subject to the overall law-making authority of that Indigenous government. More than one centre of governing authority in an entity the size of a First Nation frequently leads to disagreement and reduces the exercise of real self-government. A self-governing First Nation, for example, ought to be able to pass laws regarding language, culture, education, health, housing, roads, etc. A First Nation may of course decide to have the operations of a health or school system administered on a day-to-day basis by a specialized board, but it must be within the authority of the government itself to pass a Community Health Act or an Education Act.

The Problem of Resourcing Self-Government

Self-government costs money. One of the impediments to self-government is the fact that First Nations, in general, are almost entirely dependent on the federal government for programs, services and funding that for other Canadians are funded by federal, provincial and municipal governments. This reliance on a single level of government aggregates the costs and makes them appear higher than they are. This is especially problematic because a large gap exists between funding available to First Nations members and other Canadians.

One federal reaction to this fiscal pressure in recent years has been to expect the individual First Nation to identify and make greater use of what are being called ‘own source revenues’ (OSR). In many cases the intent is simply to cap or reduce federal obligations and/or expenditures. Such rationalization of spending cuts in areas that are already underfunded cannot be accepted.

The current federal government has announced the removal of the 2% growth cap on Indigenous program spending. In addition, it has asserted that it will spend very large amounts to address needs in education and training, housing, drinking water systems and other infrastructure as well as on Indigenous languages and cultural preservation and development. Monitoring the timely achievement of specific goals in these areas will be critical. Most of the work in this area needs to take place while the government that made these commitments is still focused on achieving them.

In spite of these promised improvements, government officials continue to press for the greater development and use of ‘own source revenue’ by First Nations. If a fair and more reasonable definition of OSR along with a rights-based understanding of the appropriate sources for OSR could be found, the concept could be made viable and a negotiated system could be put in place.

Clearly it is both dysfunctional and conflict-inducing to have one order of government almost entirely dependent upon another for the costs of its operations and its most basic services. This dysfunction and conflict are intensified when one party asserts that its rights are not being respected while the other party denies that rights are even involved.

What is essential in terms of fiscal resourcing in the long term is for First Nations to have ‘own source revenues’ for the basic costs of their governmental operations as well as for most of their core services. It is critical however to re-define ‘own source revenues’ as a broader and far different concept than the one which has been put forward by the federal government for some time. The on-going obligations of the Crown under the terms of the treaties and agreements perhaps need to be given effect in letter, spirit and intent by meaningful sharing of the revenues generated by the exploitation of the traditional territories. A negotiated proportion of these revenues could be transferred permanently to First Nations. This would result in making First Nations more independent by putting into practice the treaty promise of sharing the lands and resources which had sustained them for thousands of years. It would remove one of the most stubborn obstacles to mutual respect, reconciliation and collaboration between Indigenous peoples and the Government of Canada.

An example makes the point. In the case of the Robinson Superior and the Robinson Huron Treaties, a promise was made to the effect that, if revenues generated in the territory increased, the annual annuity paid would be increased. Since the treaties were signed in 1850 the amount of revenue generated by mining, forestry, land sales etc. has grown enormously. The annuity of $4.00 per capita per year has remained unchanged for more than 160 years. So the agreement

to share the land and resources remains unfulfilled. Good faith negotiations of all opportunities for First Nations and government to truly share the product of traditional lands, according to the letter, spirit and intent of the treaties and agreements are likely the only alternative to mistrust, long-term dependency, litigation and confrontation. Some small steps in this direction are being taken with proposals for resource revenue sharing, impact-benefit agreements etc.
A much wider discussion is needed. In this discussion the Cree experience will prove invaluable. Although the process is still ongoing, the Cree have already established arrangements enhancing their control over, and benefit from, the parts of their traditional territory which are being shared.

Beyond the opportunities for OSR typically found on “Crown” lands, i.e. resource-based revenues, there are of course questions about whether any comparable source of revenue exists in relation to traditional territories in areas which are now largely held by third parties. This question certainly needs some detailed research but some of the more obvious possibilities come to mind when one asks the question: “What revenues does the Crown derive from third party-occupied lands in traditional territory?” In discussions on this topic, it will be important to ensure that the rights and interests of third parties are respected.

All of this leads to the question of what revenues can be looked at when resource exploitation is largely absent. This raises once more the question of: what revenue is the traditional territory generating for the Crown? There are many possibilities, for example: provincial land transfer taxes collected every time a property is sold, the use of rights-of-way for hydro transmission and distribution lines, highways, railways, oil and gas pipelines, canals, Crown land uses (parks, military bases, airports, urban space etc.) and such residual resource uses as sand and gravel pits etc. The list is almost endless. It is also reasonable to enlarge the land base of First Nations when third party owners are freely willing to sell at market value. In such cases, the government would buy back the land in question. This has already resulted in a few “urban reserves” which can produce long-term ‘own source revenues’ for the First Nation concerned.

Looking at all of these possibilities one might validly ask about whether the fiscal impact on government would be economically (or politically) possible. The fact of the matter is that, given the relatively small First Nation population base which would be used in any calculation of fair sharing and given that the extent to which existing transfer payments could level out or decline, the net fiscal impact on government would be relatively small. The potential increased contribution which economically viable First Nations would make to the overall economy would improve the fiscal position of governments over time.

It seems clear that if First Nations are to be fiscally independent and if they are seen as being guaranteed by virtue of treaty and Aboriginal rights the ability to continue to sustain themselves from a share of the proceeds of their traditional lands, then they need to have either the direct ownership of land where available or a reasonable share of Crown revenues derived from those lands. First Nations revenues from these sources should not be deemed to be federal or provincial transfers but rather as own source revenues which can increasingly free them from dependency on governments. Mechanisms will need to be developed which will enable the revenues identified to go directly to the First Nation(s) concerned without being funnelled through the budgetary processes of the federal, provincial and territorial governments.

Self-Government and Internal Dispute Resolution

The ability to resolve internal disputes is, in the first instance at least, an essential element of self-government. All too frequently, when a serious dispute arises in a First Nation community, the matter is quickly brought to a non-First Nation body (usually a court) for resolution. The Commission considers this to be a serious impediment to true self-government and has therefore included a full discussion of the issue in Chapter 5.

Where Do We Go from Here?

As of March 29, 2018, the Cree-Naskapi (of Quebec) Act was effectively amended and renamed for the Naskapi and the Cree-Naskapi Commission by the Naskapi and Cree-Naskapi Commission Act. In the case of the Crees, the Cree Nation of Eeyou Istchee Governance Agreement Act replaced the Cree-Naskapi (of Quebec) Act in relation to most matters, and the Naskapi and the Cree-Naskapi Commission Act insofar as the Commission’s responsibilities are concerned. As noted earlier this Act effectively mandates the Commission to act as the ombudsman in relation to the powers exercised and the duties carried out by the Cree and Naskapi governments. In the case of the Naskapi this means the government of the Naskapi Nation of Kawawachikamach. The powers and duties in question are those provided for in the Naskapi and Cree-Naskapi Commission Act. In the case of the Cree it means the Cree Nation Government as well as the local government of each Cree First Nation. Also Insofar as the Cree are concerned, the powers and duties are those provided for in the Cree Nation of Eeyou Istchee Governance Agreement Act as well as in the Cree Constitution.

As is the case with any legislative change, it will be necessary to discuss with the Cree and Naskapi governments, as well as with Canada, how the Commission will carry out its responsibilities in practice. There will be some adjustment required and the Commission will be discussing this as a priority in the coming months.

There will be a number of issues which require a large measure of consensus. From the Commission’s perspective these include, but are not limited to the following:

• achieving a mutually agreed upon balance between the arms-length independence needed by the Commission and an appropriate level of accountability,

• reviewing the process and levels of funding for the Commission,

• reviewing the need for, and nature of, further legislative change, (if any) needed to improve the effectiveness of the Commission.

Certainly other issues will be raised by the Cree and Naskapi people and these will need to be addressed as the Commission proceeds to plan its activities within its amended mandate.

END NOTES

  1. Naskapi and Cree-Naskapi Commission Act, Section 165 (1) (a) and (b).
  2. Canada, Prime Minister Justin Trudeau, Speech to the Assembly of First Nations Special Chiefs’ Assembly, Gatineau, Quebec, December 6, 2016. The full text can be found at: http://pm.gc.ca/news/speeches.

Introduction and Background

For the Cree and Naskapi people, there is no more basic principle in aboriginal history and relations than a people’s right to govern themselves and their territories in accordance with their traditions, values, goals and aspirations. In particular, mutual recognition of coexisting and self-governing peoples is basic in 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 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 Eeyou to proposed hydroelectric development in Eeyou Istchee. Quebec and Hydro-Quebec, in April 1971, had announced the first major hydro-electric development project without consultations with Eeyou who would be profoundly impacted by the proposed project. The litigation initiated by Eeyou resulted, by a treaty process, to a negotiated settlement respecting the rights of Eeyou and development of natural resources in Eeyou Istchee. For Eeyou, the treaty process was the way chosen to secure recognition and protection of 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 2158 square miles of land as reserves (Category I lands) to the Crees and of which 1274 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-Quebec.

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-Quebec.

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,

a) to provide the Cree Regional Authority with additional responsibilities and powers, including by-law making powers; and

b) to recognize the Cree of Ouje-Bougoumou as a separate band and a local government under the Act.

In subsection 2.(1) of the amended Act, “Cree Regional Authority” means the Cree Regional Authority established by An Act respecting the Cree Regional Authority (Quebec).5

On June 13, 2013, the Government of Quebec enacted and adopted Bill 42 – An Act establishing the Eeyou Istchee James Bay Regional Government and introducing certain legislative amendments concerning the Cree Nation Government.

The Act respecting the Cree Regional Authority is amended by Bill 42 so that the Cree Regional Authority is known, as of January 1, 2014, as the Cree Nation Government. In addition, the title of the Act respecting the Cree Regional Authority is amended to become the Act respecting the Cree Nation Government. The Act is further amended by replacing “Cree Regional Authority” wherever it appears in the Act by “Cree Nation Government”.

Consequently, any references to the Cree Regional Authority in the amended Cree-Naskapi (of Quebec) Act must be interpreted to mean the Cree Nation Government.

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.

In addition, the setting aside of Category IA land for the benefit of the Cree Nation of Ouje-Bougoumou triggered the coming into force of the particular amendments to the Cree-Naskapi (of Quebec) Act which incorporated the Cree Nation of Ouje-Bougoumou into the Act. This historic milestone was reached on May 15, 2014.6

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”7 to the Minister who “shall cause the report to be laid before each House of Parliament.”8

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.”9

On February 21, 2008, 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.

The representatives of the Cree Regional Authority (which became the Cree Nation Government on January 1, 2014) and the Government of Canada have made positive progress to fulfill the purpose of Chapter 3 of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee. In particular, a process of negotiations was set up to discuss a Cree Nation Governance Agreement on Category IA Lands and a Cree Constitution.

In the fall of 2016, the Cree and federal representatives finalized their discussions and concluded an Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada and the Cree Constitution.

On July 18, 2017, former Grand Chief Dr. Matthew Coon Come and Minister Carolyn Bennett of Crown-Indigenous Relations and Northern Affairs signed the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada.

The Governance Agreement has an objective of making more efficient existing governance powers and procedure on Category IA lands under the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act. Arrangements regarding Cree local and regional governance on Category IA lands will be transferred from the Cree-Naskapi (of Quebec) Act into the Governance Agreement and the Cree Constitution.

Under Chapter 33 of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada, Canada undertook to recommend to Parliament the Governance Legislation which shall provide for the following:

a) that the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada is approved, given effect, declared valid and has the force of law; and

b) that the Cree Constitution is given effect and has the force of law;

c) that a Cree Law made in accordance with this Agreement and the Cree Constitution has the force of law; and

d) for the consequential amendments to its laws, in particular the Cree-Naskapi (of Quebec) Act, in order to ensure their consistency with this Agreement.

On February 14, 2018, the Minister of Crown-Indigenous Relations and Northern Affairs introduced in the House of Commons of Canada Bill C-70 which is the Governance Legislation contemplated by the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada. Bill C-70 gives effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada. It amends the Cree-Naskapi (of Quebec) Act to ensure that the Act no longer applies to the Crees of Eeyou Istchee and to make changes to certain aspects of the mandate of the Cree-Naskapi Commission to take into account the Agreement. It also makes related consequential amendments to other Acts.

Pursuant to Chapter 26 (Cree-Naskapi Commission) of the Agreement Concerning a New Relationship between the Government of Canada and the Crees of Eeyou Istchee, the “Cree- Naskapi Commission shall, with respect to the Crees, investigate any representation submitted to it in relation to the implementation of this Agreement and the Cree Constitution, including representations relating to the exercise or non-exercise of a power under this Agreement or the Cree Constitution and the performance or non-performance of a duty under this Agreement or the Cree Constitution, the whole in accordance with the provisions of subsection 165(2) to section 170 of the Cree-Naskapi (of Quebec) Act as it read immediately before the Effective Date, with such modifications as may be required having regard to the provisions of this Agreement.”10

Once the Agreement is approved, given effect, declared valid and has the force of law, in virtue of the Governance Legislation (Bill C-70), the Cree-Naskapi Commission shall no longer prepare and submit to the Minister biennial reports on the implementation of the Cree-Naskapi (of Quebec) Act in accordance with subsection 171(1) of the said Act.

“During the period of development of the Governance Legislation, Canada and the Cree Nation Government shall examine, in collaboration with the Naskapi Nation of Kawawachikamach, the role of the Cree-Naskapi Commission provided for in Part XII of the Cree-Naskapi (of Quebec) Act as it read immediately before the Effective Date having regard to, in particular, the need to avoid duplication with processes or bodies provided for under this Agreement…”11

On March 27, 2018, Bill C-70: An Act to give effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada, to amend the Cree-Naskapi (of Quebec) Act and to make related and consequential amendments to other Acts went through its last stage or the third reading in the Senate.

Consequently, upon the coming into force of Bill C-70, the long title of the Cree-Naskapi (of Quebec) Act is replaced by the following: An Act respecting certain provisions of the Northeastern Quebec Agreement relating principally to Naskapi local government and to the land regime governing Category IA-N land and respecting the Cree-Naskapi Commission. This Act may be cited as the Naskapi and the Cree-Naskapi Commission Act.

Pursuant to Section 165 (1) of the Naskapi and the Cree-Naskapi Commission Act, the duties of the Cree-Naskapi Commission are described as follows:

“165 (1) Subject to subsections (2) and (3), the Commission shall

(a) with respect to Naskapi beneficiaries, 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; and

(b) with respect to Cree beneficiaries, as defined in subsection 2(2) of the Cree Nation of Eeyou Istchee Governance Agreement Act, investigate any representation submitted to it relating to the implementation of the Agreement, as defined in subsection 2(1) of that Act and the Cree Constitution, as defined in that subsection, including representations relating to the exercise or non-exercise of a power and the performance or non-performance of a duty under that Agreement or the Cree Constitution.”

Furthermore, Section 98 of the Act repeals Section 171 of the Cree-Naskapi (of Quebec) Act. (Section 171 of the Cree-Naskapi (of Quebec) Act describes the duty of the Cree-Naskapi Commission to prepare and submit a biennial report to the Minister who shall cause the report to be laid before each House of Parliament.

However, the transitional provisions of the Act provide as follows:

Cree-Naskapi Commission’s report to Parliament

124 (1) The Cree-Naskapi Commission may prepare and submit to the Minister of Indian Affairs and Northern Development a last report in English, French, Cree and Naskapi, for the period beginning on the day that follows the end of the period for which the 2016 Report of the Cree-Naskapi Commission was completed and ending on the day on which section 98 comes into force, on the implementation of the Cree-Naskapi (of Quebec) Act, and the Minister shall cause the report to be laid before each House of Parliament on any of the first 10 days on which that House is sitting after the day on which the Minister receives it.

Circulation of report

(2) As soon as feasible after the report is laid before each House of Parliament, the Minister shall send a copy of the report to the Cree Nation Government, the Naskapi Development Corporation, the council of each Cree First Nation and the council of the Naskapi band.”12

In summary and for the purposes of clarity, Bill C-70 does not repeal or replace the Cree-Naskapi (of Quebec) Act. It uses another technique to deal with this Act.

Part 1 enacts the Cree Nation of Eeyou Istchee Governance Agreement Act. This Act:

1) gives effect and force of law to the Cree Nation of Eeyou Istchee Governance Agreement and the Cree Constitution, which replace the Cree-Naskapi (of Quebec) Act for the Crees, Cree First Nations and Category IA lands; and

2) gives force of law to the laws adopted by the Cree First Nations and the Cree Nation Government under the Governance Agreement and Cree Constitution.

Part 2 deals with the Cree-Naskapi (of Quebec) Act. This Act is not repealed, but its title is replaced by the new short title, Naskapi and the Cree-Naskapi Commission Act.

Part 2 also amends many sections of this Act to remove references to the Crees, and to ensure that the amended Act applies only to the Naskapi.

Part 2 also preserves the Cree-Naskapi Commission, while modifying its duties so to eliminate the report to Parliament and continue its “ombudsman” function of investigating representations of Cree or Naskapi beneficiaries.

Bill C-70 comes into force when it receives Royal Assent. On March 29, 2018, the Bill received Royal Assent.

The Commission conducted Special Implementation Hearings in order to prepare for its present biennial report. These hearings, conducted in Montreal on February 5, 6, 7 and 24, 2018, 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 sixteenth (16th) biennial report to the Minister. Pursuant to Section 98 of the Naskapi and the Cree-Naskapi Commission Act, the present report is the last biennial report of the Cree-Naskapi Commission.

Chapter 2 of the present report describes, in a general manner, how the Eeyou of Eeyou Istchee rebuilt their Nation through the proper implementation of their modern-day treaty known as the James Bay and Northern Quebec Agreement.

Chapter 3 of the present report gives a brief account on the evolution of Eeyou governance throughout the historical and traditional territory of Eeyou.

Chapter 4 presents a brief account on the history of the Cree-Naskapi Commission since its establishment in 1984.

The Cree-Naskapi Commission had a certain mandate for dispute resolution from 1986 to 2018. Chapter 5 describes the basis of current and future dispute resolution roles of the Cree-Naskapi Commission.

Since its response to the 2002 Report of the Cree-Naskapi Commission, Indigenous and Northern Affairs 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 Indigenous and Northern Affairs 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 6 of the present report outlines and comments on the response of Indigenous and Northern Affairs Canada to the recommendations of the Commission outlined in its 2016 Report. In this manner, the Cree and Naskapi Nations are aware of the Department’s responses to their particular issues and concerns.

Chapter 7 (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.

Chapters 8 and 9 of the present report describe the recommendations and conclusions of the Commission respectively. The recommendations and conclusions of the Commission in the present report derive from its review and analysis of the issues and concerns raised at its Special Implementation Hearings and briefs submitted.

END NOTES

  1. Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.C. 557
  2. James Bay and Northern Quebec Agreement – 2006 Edition, les Publications du Quebec, Section 9 (Local Government over Category IA Lands), paragraph 9.0.1, p. 172
  3. Statement of Understanding of Principal Points Agreed to by the Cree-Naskapi (of Quebec) Act Implementation Working Group, August 9, 1984, p.1
  4. Cree-Naskapi (of Quebec) Act, S.C. 1984. c. 18, Preamble
  5. Cree-Naskapi (of Quebec) Act, S.C. 1984. c. 18, Interpretation
  6. Ouje-Bougoumou Cree Nation: Presentation to the Commissioners of the Cree-Naskapi Commission – Special Implementation Hearings – Montreal, February 9, 2016. Page 3
  7. Cree-Naskapi (of Quebec) Act, S.C. 1984. C. 18, section 165 (1) (a)
  8. Ibid, section 171 (1)
  9. Ibid, section 21 (j)
  10. Paragraph 26.1 of Chapter 26 (Cree-Naskapi Commission) of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada
  11. Paragraph 26.2 of Chapter 26 (Cree-Naskapi Commission) of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada
  12. Transitional Provisions of subsections (1) and (2) of section 124 of Bill C-70: An Act to give effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada, to amend the Cree-Naskapi (of Quebec) Act and to make related and consequential amendments to other Acts

Eeyou Nation-Rebuilding through the Modern Treaty – the James Bay and Northern Quebec Agreement1

We, the Cree Nation of Quebec, call ourselves “Eeyou” (for the coastal Crees) and “Eenou” (for the inland Crees). We call our traditional and historical territory “Eeyou Istchee.” Therefore, we call ourselves “Eenou/Eeyou of Eeyou Istchee.” However, in this chapter, I will use the term “Eeyou of Eeyou Istchee.”

My name is Philip Awashish. I am a member of the Eeyou of Eeyou Istchee. In particular, I am an Eenou from the Eenou community of Mistissini and a beneficiary of the James Bay and Northern Quebec Agreement. I have been a Commissioner of the Cree-Naskapi Commission since 1997.

From 1973 to 1975, I was one of the principal Eenou/Eeyou negotiators for the Eeyou of Eeyou Istchee in the negotiations leading to the signing, on November 11, 1975, of the James Bay and Northern Quebec Agreement…Canada’s first modern treaty. I am also an Eenou signatory to the James Bay and Northern Quebec Agreement.

I was also a Chief of the Cree Nation of Mistissini and an Executive of the Grand Council of the Crees (of Quebec). After 1978, I was the Vice-Chairman of the Cree Regional Authority. I remained an Executive of the Grand Council of the Crees (of Quebec) and the Cree Regional Authority for about two (2) decades.

The James Bay and Northern Quebec Agreement arose out of our political and legal actions, in the early 1970s, to oppose and stop the construction of the James Bay Hydroelectric Development Project which was announced for construction on April 30, 1971 by Premier Robert Bourassa of the Government of Quebec in Eeyou Istchee without consultation and accommodations with the Eeyou of Eeyou Istchee. The Government of Quebec with Hydro-Quebec and to some extent the Government of Canada ignored and denied the rights, interests and concerns of Eeyou/ Eenou whose lands and way of life would be seriously impacted by the gigantic hydroelectric development project. The litigations against the project were settled

out-of-court through the negotiations and provisions of the James Bay and Northern Quebec Agreement which permitted a modified hydroelectric development project in Eeyou Istchee.

Most important to the Eeyou/Eenou, the 1975 James Bay and Northern Quebec Agreement, as a modern Treaty, recognizes and protects the rights of Eeyou of Eeyou Istchee.

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.”2

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.”

Section 35 of the Constitution Act, 1982 provides as follows:

“35(1) The existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed.

(2) In this Act, “Aboriginal Peoples of Canada” includes the Indian, Inuit, and Métis Peoples of Canada.

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

(4) Notwithstanding any other provision of this act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.”3

I was with the late Grand Chief Billy Diamond, when in a 1982 constitutional conference, he participated in the negotiations for the recognition and protection of aboriginal and treaty rights in the Constitution Act, 1982. He was instrumental, as a negotiator, in getting the recognition and affirmation 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 Eeyou of Eeyou Istchee and indeed for all the Aboriginal peoples of Canada.

Consequently, as far as the Eeyou of Eeyou Istchee are concerned, their rights under the James Bay and Northern Quebec Agreement, as a modern Treaty, are “recognized and affirmed” by s.35(3) of the Constitution Act, 1982.

As an Eenou of Eeyou Istchee who has accompanied the late Grand Chief Billy Diamond in his journey for social justice, I want to write, in the present chapter, a general, brief and personal account about the James Bay and Northern Quebec Agreement …its history, its contents and its importance to and impacts on the Eeyou of Eeyou Istchee. As far as the Eeyou of Eeyou Istchee are concerned, the spirit and intent of this modern treaty known as the James Bay and Northern Quebec Agreement is to rebuild the Eeyou Nation through the empowerment of Eeyou and the exercise and protection of Eeyou rights. Hence, the title of the present chapter is “Eeyou Nation-Building through the Modern Treaty – the James Bay and Northern Quebec Agreement”.

Let me summarize what has happened and what we the Eeyou of Eeyou Istchee have been doing at least for the past five (5) decades.

After centuries of denial of rights and exclusion from governance and decision-making regarding our people, communities and lands and natural resources, we are still in the process of reconstruction and rebuilding our nation. This process of reconstruction and rebuilding our nation will continue with the present and future generations of the Eeyou of Eeyou Istchee.

One may wonder why I say we had to reconstruct and rebuild our nation. One may also wonder what had happened to our lands, people, economies, communities, culture and way of life.

My generation of Eeyou was born into a period of our collective lives and history when dramatic and drastic changes happened to our way of life, lands, economies, communities, culture and relations with the outside world.

Based on my knowledge, observations and experiences, I can definitely state that we, the Eeyou of Eeyou Istchee, came from a dreadful and formidable past of poverty and powerlessness as a direct result of many oppressive factors such as unjust laws, policies and actions such as assimilation, colonialism and dispossession of lands, denial of rights and the politics of exclusion and racism by governments, industries and certain sectors of contemporary society.

I was born in 1948 on a cold winter morning and raised in a tent on my father’s hunting territory in Eeyou Istchee. I was probably one of the last generations of Eeyou born in the bush. I clearly remember the days when we all lived in tents – either in the hunting territory or in the village of Mistassini.

I was about six years old when I was taken away, by a federal Indian Agent accompanied by two (2) Mounties, from my parents, home and culture to attend an Indian residential school for thirteen (13) consecutive years in Ontario.

I was never cold, hungry or lonely when I was raised on my father’s hunting territory. When I was in the Indian Residential Schools I experienced being cold, hungry and lonely.

Eeyou/Eenou children were taken away from their families, villages and culture and lands to attend Indian Residential Schools. In these Indian Residential Schools, funded by the federal government and operated by the Anglican and Catholic missions, Eeyou/Eenou children were punished for speaking the Eeyou language. Eeyou/Eenou parents did not have a choice nor a say nor a role in the education of their children. A foreign worldview was imposed on the Eeyou/ Eenou children as Euro-society assumed the superiority of its culture and Eeyou/Eenou culture, language, values, philosophy and way of life were dismissed as irrelevant.

Many Eeyou/Eenou children suffered from psychological, physical and sexual abuse. Human rights were denied and offences ignored. The Indian residential schools were vehicles for the implementation of the federal government’s policy for assimilation and for what the Truth and Reconciliation Commission called “cultural genocide.” Clearly, the operation and administration of Indian residential schools were part of a coherent policy and a process of assimilation to eliminate the Eeyou/Eenou, like other Aboriginal people, as a distinct legal, social, cultural, religious, and racial entity and to assimilate them into the Canadian mainstream against their will. It was also a measure to gain control over Eeyou Istchee and natural resources as the traditional way of life on Eeyou Istchee was discouraged and ignored in the ‘schooling’ of Eeyou/Eenou children in the Indian Residential Schools.

I have witnessed and experienced the evolution and development of Mistissini, my home community, as a trading post of the Hudson’s Bay Company, as a summer encampment of tents, and as a permanent tent village without running water, without a sewage system and without electricity to the urbanized community that it is today. Housing for Eeyou families started in the early1960s. Most of the other Eeyou communities of Eeyou Istchee have similar histories.

In the 1960s, I remember visiting, on several occasions, the camp tent village of the Ouje- Bougoumou Eenou who like the rest of the Eeyou of Eeyou Istchee were considered squatters within their traditional and historical territories. The Eenou of Ouje-Bougoumou had to relocate their camp tent village from time to time because they were considered in the way of mining interests and mineral development. The federal government attempted to have them relocated to the village of Mistissini by registering the Eenou of Ouje-Bougoumou as members

of the Mistissini Band. I believe that this federal registration of the Eenou of Ouje-Bougoumou into the Mistassini Band was done with coercion by promising federal programs and services and without formal consent of the Ouje-Bougoumou Eenou. However only a small number of Ouje-Bougoumou Eenou did move to Mistassini and settled across the bay of the main village. Most of the Ouje- Bougoumou Eenou chose to settle in their rudimentary tent village that had to be relocated several times within their traditional and historical territory.

In the 1960s, the village of Nemaska was closed permanently as the Hudson’s Bay Company closed its store and the federal government terminated its local services. The Eenou of Nemaska were relocated to the Eeyou village of Rupert’s House and Eenou village of Mistassini.

Under similar circumstances, the Eenou of Waswanipi had to leave their village and relocate to certain non-Native towns or to camp sites along major road arteries. In both cases of the closings of the Nemaska and Waswanipi ‘Posts’, the Eeyou/Eenou suspected that these ‘Posts’ were closed and the Eenou of these communities forced to relocate because of the possibility of major hydroelectric development project to be planned in the region of these ‘Posts.’

I remember the times and their consequences when our rights were denied and not recognized by governments and industries. Consequently, we were ignored and excluded in the governance, administration and development of lands and natural resources within Eeyou Istchee. Proponents of resource development ignored the Eeyou people, Eeyou hunters and communities about resource development projects that were planned for construction within Eeyou Istchee. We were also excluded from any benefits from the natural resources that were taken from Eeyou Istchee. (However, some Eeyou/Eenou, in menial labour, worked in the mining and commercial forestry projects.)

I do not recall ever seeing an Eeyou/Eenou person employed in any of the local businesses established in the non-Native towns like Chibougamau, Chapais or Matagami. In fact, I felt that we, Eeyou of Eeyou Istchee, were not welcome nor wanted in the non-Native towns. I distinctly remember in the 1960s seeing, in one hotel establishment, a sign that read “No Dogs and No Indians.”

The annual spring hunting of geese is an essential and important activity for the culture and way of life for the Eeyou of Eeyou Istchee. However, the 1916 U.S. – Canada Migratory Birds Convention and hence the Migratory Birds Convention Act of the federal government forbade the hunting of migratory birds such as geese in the spring and summer. Consequently, the important and essential annual spring hunting of geese was considered illegal by the government of Canada.

The Government of Quebec did not recognize the rights of Eeyou to hunt big and small game in a manner consistent with the Eeyou way of life.

Game wardens and SQ police forces often combined forces to raid Eeyou camps and harass Eeyou hunters on alleged grounds of illegal hunting and fishing. Consequently, some Eeyou hunters were charged and prosecuted for alleged illegal hunting and fishing.

I have witnessed game wardens arriving by float bush plane and raiding my father’s hunting camp to search and take away any fish and game in my father’s possession on alleged grounds of illegal hunting and fishing. Fish and game was our main food source.

However, I feel that these raids were also motivated by racism and intentions to intimidate the Eeyou of Eeyou Istchee as the tent village of the Ouje-Bougoumou Eenou was often raided by the game wardens and SQ police forces. I was present in the tent village which the Ouje-Bougoumou Eenou called “Dore Lake” when the SQ conducted one of their raids.

Eeyou of Eeyou Istchee stated that they had a fundamental right to hunt on their territories. As a result, the enforcement of hunting laws and regulations was considered an unjust harassment of Eeyou/Eenou hunters.

For Eeyou of Eeyou Istchee, the denial and violation of their rights to harvest wildlife in a manner consistent with their way of life, as they have done since time immemorial, and within their traditional and historical territory was a matter of profound historical injustice. It represented the attempts of Canada and Quebec and the dominant society to appropriate the use of Eeyou Istchee and natural resources.

Furthermore, the federal and provincial governments did not recognize the right of Eeyou people, like the other Aboriginal people, to govern themselves. The Federal government imposed a limited and supervised regime of local government under the Indian Act. In fact, the Minister of Indian Affairs had veto power over the decisions of the Chief and Council.

The Eeyou of Eeyou Istchee, like other First Nations of Canada, were powerless under the Indian Act as ‘Indian bands” were not legal entities and did not have rights as natural persons to sign contracts or initiate court actions. In addition, the Indian Act discriminated and took away ‘Indian Status’ from Eeyou women under certain circumstances.

In summary, the Indian Act was federal legislation created without consultation with and input from First Nations for the purposes of subjugating First Nations to federal domination and control.

Consequently, the federal government through the Indian Act, Department of Indian Affairs and other federal departments dominated, controlled and made all the decisions over matters of fundamental importance to us such as community development, housing, education, health, social services and economic development.

In the 1960s, I recall that Chief Isaac Shecapio was the last traditional Chief of the Mistissini Eenou. Chief Shecapio didn’t have an office and didn’t have a secretary or staff. The Chief kept his documents in his home under his bed. When the Indian Agent (Mr. Herve Lariviere) arrived to Mistissini, the Agent would visit Chief Shecapio to tell him that he (the Agent) was in the tent village to conduct federal business with members of the Mistassini Band. The Indian Agent usually issued welfare assistance and registered Eenou children for the Indian Residential Schools. The Indian Agent was usually accompanied by two (2) officers of the Royal Canadian Mounted Police.

In the late 1960s and 1970s, I recall the band office of the Mistissini Band was a small trailer with two (2) band employees who were the Chief and Band Secretary and paid by the Department of Indian Affairs. (In fact, the Department of Indian Affairs administered and controlled all aspects of band affairs and funds. Officials of the Department would arrive in Mistissini with pre-drafted band council resolutions for signature by the Chief and Council.)

The village of Mistissini had an elementary day school operated and funded by the federal government. Without the participation of Eeyou of Eeyou Istchee, the Department of Indian Affairs made all the decisions regarding the schooling and education of Eeyou. For secondary and post- secondary education, Eeyou children had to leave their community and families.

In addition to the subsistence economy, Eeyou were dependent on government transfers such as social aid. Fur income was the main source of income for Eeyou trappers.

By 1970, we were a population of about six thousand (6,000) people living in six (6) small isolated villages – Great Whale River (presently Whapmagoostui), Fort George (Eeyou of Fort George are presently living in Chisasibi as they have been relocated as a result of hydroelectric development), Paint Hills (presently Wemindji), Eastmain, Rupert’s House (presently Waskaganish), and Mistassini (presently Mistissini). The Eeyou of these villages lived in inadequate housing and tent shelters without suitable infrastructures such as water and sewage systems. Furthermore, the Eeyou homes of these Eeyou villages did not have electricity. With the exception of Mistassini, these Eeyou villages did not have access roads. Inter-village communications were conducted by radio-telephone. As mentioned before, the Nemaska, the Waswanipi and Ouje-Bougoumou Eeyou did not have their own village that they can call home. The Washaw Sibi Eeyou settled in and around the LaSarre and Amos area within their traditional and historical territory.

I have witnessed and experienced much of this social, economic and political history and environment that I have just described. It led to political and economic deprivation and marginalization of the Eeyou people and communities of Eeyou Istchee.

Despite the oppressive measures that the Government of Canada and the Government of Quebec adopted, such as its denial of rights, dispossession of lands, politics of exclusion, policies of cultural genocide and assimilation of aboriginal peoples into contemporary

society, it failed to achieve its policy goals. For the Eeyou of Eeyou Istchee, the policies of the past have failed to bring peace and harmony to the relationship between the Eeyou, Canada and Quebec. Equally, they have failed to bring contentment or prosperity to the Eeyou of Eeyou Istchee.

Throughout its relations with Canada and Quebec, the Eeyou refused to surrender their identity as a distinct people and nation and continue to exist with their inherent rights, culture, language, traditional way of life and bonds with Eeyou Istchee.

On April 30, 1971, without consultation with and consent of Eeyou of Eeyou Istchee, Premier Robert Bourassa announced the James Bay Hydroelectric Development Project describing it as “the project of the century.” The massive project which would flood some Eeyou hunting territories would be constructed within Eeyou Istchee. Quebec and Hydro-Quebec ignored the Eeyou and their concerns, interests, and rights. The federal government also initially ignored the Eeyou of Eeyou Istchee.

I learned about the planned James Bay Hydroelectric Development Project in the Montreal Star and the Montreal Gazette – both Montreal newspapers that arrived in Chibougamau, Quebec, a day after publication. I immediately took the newspapers to read and show to Chief Smally Petawabano who was, at the time, Chief of the Mistassini Band. I told the Chief that the proposed and planned hydroelectric development project would impact not only the Eenou of Mistissini but also the Eeyou/Eenou of the other existing Eeyou/Eenou communities. I proposed that a meeting of all the Eeyou/Eenou Chiefs and leaders be held in Mistissini as soon as possible. Chief Smally Petawabano agreed.

 

Consequently, I wrote a project with a modest budget and secured some funds from the Arctic Institute of North America – an academic institution – which was under the directorship of Mr. Eric Gourdeau, for a meeting of the Eeyou/Eenou Chiefs and leaders in Mistissini, Eeyou Istchee to discuss the social and environmental impacts of the proposed James Bay Hydroelectric Development Project. Under the direction of Chief Smally Petawabano and Council of the Mistassini Band, the organization and realization of the Eeyou/Eenou Chiefs and leaders meeting proceeded in May, 1971. Local residents of the Mistassini community such as Anne-Marie Awashish, Executive Director of the Cree Indian Friendship Center of Chibougamau, Edna Neeposh, Social Worker, Louise Shecapio, Secretary of Chief Smally Petawabano, Daisy Longchap Metabie, a resident, and many other residents of Mistissini assisted in the organization and realization of the meeting. I invited Chief Billy Diamond who was then Chief of the Rupert’s House Band to this meeting. The other Chiefs and leaders of the existing Eeyou/Eenou communities were invited and participated. The Indians of Quebec Association with Chief Max Gros-Louis (Huron) and Chief Andrew Delisle (Mohawk) provided some assistance to this meeting of the Eeyou/Eenou Chiefs and leaders. In addition, Chief Robert Kanatewat of the Fort George Band and the Regional Chief for the Indians of Quebec Association was instrumental in the provision of the Association’s support and information regarding ‘Indian rights’ of the time. (Hence, to the Mistissini Eenou who were of the generation of my mother, Chief Robert Kanatewat was always known as the “Chisasibi Ouje-Mahkan” (Chisasibi Chief) regardless of who was the actual incumbent Chief of Chisasibi.)

As the village of Mistissini did not have facilities such as a restaurant and hotel, the Chiefs and leaders were guests of residents of the village. The meeting of the Eeyou/Eenou Chiefs and leaders was held in a classroom of a small elementary day school that was operated by the federal Department of Indian Affairs. This meeting, held on June 29, 30 and July 1, 1971, was the first time in their history the Eeyou/Eenou Chief and leaders from other Eeyou/Eenou communities ever met together to discuss their rights, interests and future.

When Eeyou/Eenou Chiefs and leaders met in Mistissini, Eeyou Istchee, on June 29, 30 and July 1, 1971, to discuss the announced James Bay Hydroelectric Development Project, they made some important decisions. In addition to deciding to oppose the then recently announced James Bay Hydroelectric Development Project, the Eeyou/Eenou Chiefs and leaders decided to act together, as one nation, and speak with one voice. In deciding this course of action through consensus, the Eeyou of Eeyou Istchee 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/Eenou unity, as one nation, to protect their collective rights and interests was also the beginning of the Eeyou Nation Government. It led, in 1974, to the establishment of the Grand Council of the Crees (Eeyou Istchee) and the Cree Regional Authority in 1978. (The Cree Regional Authority became the Cree Nation Government on January 1, 2014.)

Since then, the culmination of events that followed the announcement of hydroelectric development within Eeyou Istchee and the collective actions of Eeyou of Eeyou Istchee as one nation has dramatically changed the course and direction of Eeyou history. These events have impacted and affected every single Eeyou of Eeyou Istchee as these circumstances have profoundly altered the social, economic and political landscape of Eeyou Istchee.

The Eeyou of Eeyou Istchee immediately opposed the announced “project of the century.” In 1972, the Eeyou initiated court proceedings to stop the project and intrusion into Eeyou territory as the Government of Quebec took the position that the Eeyou had no aboriginal rights to their lands and Canada simply stood by with their position of “alert neutrality.” Furthermore, the Government of Quebec stated to us that the hydroelectric project was not negotiable and would proceed as planned and that Quebecers needed the project and its jobs.

The Eeyou also claimed in the court proceedings that the Government of Quebec had not settled the rights and interests of the Eeyou people when Eeyou Istchee as part of the Northwest Territories was transferred to the Province of Quebec in 1898 and 1912 by the Government of Canada. The Government of Quebec was obligated by the federal legislation transferring these lands to settle the rights and interests of Native people inhabiting these transferred lands. By 1971 when the James Bay Hydroelectric Development Project was announced, Quebec had not settled the rights, claims and interests of Eeyou in and to their land – Eeyou Istchee.

Furthermore and most important, Eeyou/Eenou Indoh-hoh Ouje-Maaooch (tallymen) and hunters told the judge about their attachment and rights to Eeyou Istchee and way of life based on hunting, fishing and trapping and Eeyou/Eenou Eedouwin (Eeyou/Eenou way of doing things). (Without the support and testimony of the Eeyou/Eenou tallymen and hunters, I do not think the Eeyou of Eeyou Istchee would have won a victory such as the Malouf judgment and without such a judgment the outcome of any settlement would have been significantly different.)

Recognizing the rights of the Eeyou to their territory, the Malouf judgment of November 1973 ordered an immediate stop to the construction of the James Bay Hydroelectric Development Project within Eeyou territory. Quebec and Hydro-Quebec immediately appealed this decision. The Quebec Court of Appeal lifted the injunction order but left the question of aboriginal rights to be considered later. Shortly thereafter, Premier Robert Bourassa offered a settlement which was rejected by the Eeyou/Eenou Chiefs and leadership in spite of the tremendous pressure from the federal government for the Eeyou to accept the offer. For the Eeyou of Eeyou Istchee, the offer as a settlement from Quebec constituted a dramatic change in the stance of the Government of Quebec which now wanted to negotiate a settlement.

The offer from Bourassa was rejected by the Eeyou/Eenou Chiefs and leaders because it failed to accommodate the rights, interest and concerns of Eeyou of Eeyou Istchee. In particular, Premier Bourassa, in his offer had stated that his government would grant rights to the ‘James Bay Crees.’ Eeyou of Eeyou Istchee wanted the Government of Quebec and the Government of Canada to recognize the rights of Eeyou of Eeyou Istchee…not create and grant these rights.

However, the Chiefs and leaders of Eeyou Istchee left the door open for a possible settlement through the treaty process. Henceforth our objective to stop the James Bay Hydroelectric Development Project changed from opposition to some form of accommodation for the project.

I was present and participated in the deliberations in 1973; when after a court victory and decision called the Malouf judgement recognized our rights, we decided to negotiate a treaty that would recognize and protect our rights and permit the construction, operation and maintenance of the hydroelectric development project known as Le Complex La Grande (1975) within Eeyou Istchee under certain terms and conditions.

Upon the announcement of the James Bay Hydroelectric Development Project and the subsequent court proceedings with its positive outcome, the Eeyou of Eeyou Istchee reached the critical stage of their collective lives and history.

It was a time:

• for renewal and recovery from its past of poverty and powerlessness;

• to gain the acknowledgement, recognition, and protection of Eeyou rights;

• to regain and maintain self-government;

• for Eeyou/Eenou of Nemaska, Waswanipi and Ouje-Bougoumou to return ‘home’ by constructing a new community;

• to rebuild the Eeyou Nation;

• for a critical review and renewal of the Eeyou-Canada-Quebec relationship; and

• to end the denial of rights and the politics of exclusion.

After 1971, as a witness and participant in the social, economic and political evolution of Eeyou of Eeyou Istchee, I must admit that Eeyou has made tremendous progress for their people and nation in the changes of the social, economic and political landscapes of Eeyou Istchee.

How did these changes come about? How did Eeyou effect the changes for the benefit of present and future generations of Eeyou?

Any change in our individual and collective lives usually stems from a vision. There is a proverb to the effect that “where there is no vision, the people perish”.

At some point in our lives we have probably all felt a desire to “change the world” and “make the world a better place.” This desire usually stems from a “vision” that our lives and our world could be enriched or improved in some way. Such visions of the future often provide guidance and direction for our lives and work, furnishing the motivation and driving force for change.

Visions that become shared by the people and communities constitute the basis for leadership, organization, culture and ultimately for the progress of Eeyou of Eeyou Istchee. Therefore, visionary leadership is fundamentally important in any undertaking.

Leadership is not an easy subject to explain. Therefore, I will simply write about the leadership and vision of the Eeyou/Eenou treaty makers…a generation of Eeyou/Eenou who had a vision and led the Eeyou of Eeyou Istchee to its modern treaty – the James Bay and Northern Quebec Agreement. This treaty-making journey contains the main principles and values of leadership: vision, empowerment, unity, commitment, humility, trust, respect, 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 Chiefs and Elders and some as leaders to pursue the nation’s vision and goals. In this particular journey, leadership is about empowerment of the people, nation-building and creating a world to which people want to belong.

This journey about changing the Eeyou world and making it a better world is a story that constitutes an important part of Eenou/Eeyou history. Histories are about the activities of people. Ultimately history belongs to the people who created it. This history was created by the Eeyou of Eeyou Istchee. Therefore, regardless of the Eurocentric history taught in the classrooms, Eeyou of Eeyou Istchee have your own history. It is said that a people without a history have no future.

It is only through the Eeyou people that the Eeyou leaders began to determine and shape the strategic and collective vision that served as a guide and direction for the work and goals of the Eeyou people, communities, and Eeyou governments. This vision became the vision of the Eeyou treaty makers. The Eeyou vision back in the early 1970s is primarily about the rebuilding of the Eeyou Nation as a result and response to our history, collective experiences and subsequent state of the Eeyou Nation and people at the time. (I have already described our state in general terms in my earlier statements.) We wanted our rights recognized and protected, particularly hunting and fishing rights and the right to govern ourselves. We wanted new communities that the Waswanipi, Nemaska and Ouje-Bougoumou Eenou can call home. We wanted respect for our values, culture and language. We wanted to pursue our traditional way of life as well as enable those who wanted to participate in the contemporary wage economy. We wanted to be in control of our affairs, institutions, communities and governments. In particular, the Eeyou wanted control and participation in the administration of health, social services, education, policing and justice. The Eeyou wanted self-reliance, community and economic development but under Eeyou terms. The Eeyou wanted respect and participation in the development and management of natural resources in Eeyou Istchee. The Eeyou wanted responsible and sustainable resource development that took into account their concerns and interests. The Eeyou wanted a new relationship with Canada and Quebec based on mutual respect and beneficial co-existence. In other words, the Eeyou wanted to change the Eeyou world and make it a world in which Eeyou rights are not denied and a world in which Eeyou are not ignored and excluded in governance, and decision-making over Eeyou people, lands, and communities. 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 strengthened and empowered the Eeyou Nation.

Consequently, in the early 1970s, the Eeyou treaty makers and Eeyou leaders embarked on a journey for change and social justice. Under the direction of Grand Chief Billy Diamond, their

efforts led to the negotiation and signing of the 1975 James Bay and Northern Quebec Agreement… a modern Treaty that recognizes and protects Eeyou rights and establishes new relationships between the Eeyou and the Government of Canada and the Government of Quebec.

Grand Chief Billy Diamond and the Eeyou/Eenou negotiators conducted full consultations with the Eeyou/Eenou communities on all aspects of the negotiations.

I was the principal Eenou negotiator for the fundamental issues of Eeyou of Eeyou Istchee such as hunting, fishing and trapping rights, social and environmental protection, land regime and land selection, economic security for Cree hunters and trappers, and Eeyou/Eenou rights for governance. I participated as a member of the main negotiating table in the discussions and negotiations on the other matters and issues that were eventually included in the James Bay and Northern Quebec Agreement.

The Eeyou of Eeyou Istchee gave the governments a deadline of November 11, 1975 to finalize the negotiations and sign the final agreement. If the parties failed to finalize and sign the final agreement, the Eeyou of Eeyou Istchee would terminate the negotiations, go home to Eeyou Istchee and continue court proceedings to stop the James Bay Hydroelectric Development Project and pursue recognition and protection of their rights in the courts.

On November 11, 1975, the James Bay and Northern Quebec Agreement was signed by the representatives of the Government of Canada, Government of Quebec, Hydro-Quebec, James Bay Energy Corporation, James Bay Development Corporation, Northern Quebec Inuit Association and the Grand Council of the Crees (of Quebec).

The negotiations, from 1973 to 1975, that led to the signing of the James Bay and Northern Quebec Agreement on November 11, 1975 were a rare opportunity for Eeyou of Eeyou Istchee to achieve, through a modern Treaty, the following main objectives and principles:

a) recognition and protection of Eeyou rights;

b) guarantees and benefits for their distinct society and way of life based on their central and special relationship with their historical and traditional territory – Eeyou Istchee;

c) compensation;

d) enhancement and advancement of Eeyou governance, community, social and economic development;

e) new communities for the Waswanipi, Nemaska and Ouje-Bougoumou Eenou;

f) Eeyou participation in control and administration of health, education, police and justice;

g) Eeyou participation in the management and regulation of the Hunting, Fishing and Trapping Regime and the special involvement of the Eeyou in the Social and Environmental Protection Regime,

h) a modified hydroelectric development project; and

i) a redefined relationship with the Government of Canada and the government of Quebec.

As the James Bay and Northern Quebec Agreement was an out-of-court settlement as well as a modern treaty, other non-governmental parties such as Hydro-Quebec, James Bay Energy Corporation and James Bay Development Corporation are signatories and parties of the said Agreement. These corporate entities are listed as defendants in the court proceedings initiated by the Eeyou of Eeyou Istchee against the construction, operation and maintenance of the James Bay Hydroelectric Development Project.

However, I must admit that the presence and participation of the representatives of these corporate entities in the negotiations of the land regime, land selection, natural resources management, and environmental protection of the Agreement was, from time to time, acrimonious, cumbersome and detrimental for the interests and concerns of the Eeyou of Eeyou Istchee. It was highly unusual to have corporate entities with interests in resource development as parties to a treaty that constituted a land claims agreement.

As for the Government of Quebec, Mr. John Ciaccia, the special representative of the Government of Quebec stated: “This Agreement has enabled us to accomplish two great tasks to which the government committed itself. It enables us to fulfill our obligations to the Native peoples who inhabit our North, and to affirm finally Quebec’s presence throughout its entire territory.”4

The James Bay and Northern Quebec Agreement is a land claim settlement and a modern treaty respecting the rights of the Eeyou (Cree) of Eeyou Istchee and Inuit of Nunavik.

In addition, the James Bay and Northern Quebec Agreement is an out-of-court settlement respecting the construction, operation and maintenance of the James Bay Hydroelectric Development Project known as the Le Complexe La Grande 1975.

However, after 1975, 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 Eeyou of Eeyou Istchee and the Government of Quebec, Government of Canada and Hydro-Quebec 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 litigation 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 James Bay and Northern Quebec Agreement.

As a result of political actions and litigation and to improve and facilitate the implementation of the James Bay and Northern Quebec Agreement, the following agreements were made:

a) Agreement Concerning a New Relationship between le Gouvernement du Québec and the Crees of Quebec (February 7, 2002);

b) Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee (February 21, 2008);

c) Framework Agreement between the Crees of Eeyou Istchee and le Gouvernement du Québec on Governance in the Eeyou Istchee James Bay Territory (May 27, 2011);

d) Agreement on Governance in the Eeyou Istchee James Bay Territory between the Crees of Eeyou Istchee and le Gouvernement du Québec (July 24, 2012); and

e) Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada (July 18, 2017).

Through the exercise of their rights, Eeyou of Eeyou Istchee would rebuild their nation. This nation-building is the original spirit and intent of the James Bay and Northern Quebec Agreement.

Under the direction of Grand Chief Billy Diamond, Ted Moses and I were the principal Eeyou negotiators. Bill Diamond, Ted Moses and I, along with others, were survivors of the Indian residential school system. Consequently, section 16 (Cree Education) of the James Bay

and Northern Quebec Agreement was negotiated in a manner that ended Federal control, administration and operation of Cree education and schools and transferred such control, administration and operation to Eeyou of Eeyou Istchee.

Therefore, Eeyou of Eeyou Istchee rebuilt their nation by reclaiming education and restoring the Eeyou language in the local schools that were transferred to the Eeyou education authorities from Canada and Quebec. The Agreement and its enabling legislation created the Cree School Board under Eeyou control and assumed administration and responsibility for elementary, secondary, post-secondary and adult education for the Eeyou of Eeyou Istchee. The Cree School Board declared that the Eeyou language would be the language of instruction. For the first time in Eeyou history, the language of the Eeyou of Eeyou Istchee was officially permitted in the classrooms and hallways of the schools of the Eeyou communities. The Cree School Board constructed elementary and secondary schools in each Eeyou community so Eeyou children can be taught within their communities and not have to leave their families, homes and communities.

Through the Cree Board and Health Services of James Bay, the Eeyou took over the small nursing stations from the governments and constructed health clinics and other institutions for health and social services. The Cree Health Board constructed a hospital in the Eeyou community of Chisasibi.

The Eeyou built new communities such as Waswanipi, Nemaska, Chisasibi and Ouje-Bougoumou. (The Eeyou of Fort George had to be relocated from their island community to the mainland because of the impacts of the hydroelectric development project.) The Eeyou greatly improved the living standards of all the Cree communities though community and economic development. Every Eeyou community has housing with water and sewage systems. (However, due to an increasing Eeyou population and inadequate housing programs and funding, the provision of housing presently remains a critical matter and an issue of priority for the Eeyou/Eenou communities.)

Eeyou hunters receive support in the pursuit of their traditional activities and way of life.

Eeyou of Eeyou Istchee met with Canada and Quebec to ensure that unjust hunting and fishing laws and regulations were amended to reflect the treaty rights of the Eeyou to hunt and fish in a manner consistent with their traditional way of life.

Under section 24 of the James Bay and Northern Quebec Agreement, Canada undertook to obtain an amendment to the 1916 U.S. Canada Migratory Birds Convention to eliminate conflicts with the treaty rights of the Eeyou (and Inuit) to harvest migratory birds. From 1975 to 1995, Eeyou pursued the government of Canada to honour and fulfill this particular undertaking.

The Constitution Act, 1982 provides for, as an important provision for Aboriginal people, the recognition of aboriginal and treaty rights. Therefore, Eeyou of Eeyou Istchee and other First Nations used their newly found constitutional leverage to push for an amendment to the Migratory Birds Convention.

From 1994 to 1995, I was appointed by the government of Canada to assist the Canadian Negotiating Team in formulating the Canadian position and in the determination of the final outcome of the negotiations with the government of the U.S.A. for amending the Migratory Birds Convention in Parksville, B.C.

In December, 1995, twenty (20) years after the signing of the James Bay and Northern Quebec Agreement, with the participation of Eeyou of Eeyou Istchee, the Government of Canada negotiated and signed the Protocol to Amend the Migratory Birds Convention with the government of the United States of America. The 1995 Protocol, given the constitutional recognition of aboriginal and treaty rights, amends the said Convention and permits a year-round subsistence harvest of migratory birds for Aboriginal peoples throughout Canada.

Consequently, Eeyou of Eeyou Istchee ensured that Canada amended its Migratory Birds Convention Act and its regulations to ensure conformity with the Eeyou treaty rights under the James Bay and Northern Quebec Agreement.

The Eeyou of Eeyou have increased in population from about six thousand (6000) in 1970 to about twenty (20,000) in 2018. The Eeyou of Eeyou Istchee presently live in nine (9) communities – an increase from six (6) villages back in 1970. And the Eeyou of Eeyou Istchee support the aspirations of the Washaw Sibi Eeyou and the MoCreebec Eeyoud to establish their own communities.

Under the James Bay and Northern Quebec Agreement, Eeyou of Eeyou Istchee established and engaged in local businesses, enterprises and services and in the economic development of natural resources such as hydroelectric, mining and forestry development projects.

The Eeyou communities have made a great leap forward in terms of community and economic development, in large part due to the economic benefits of regional development and the ability of Eeyou leaders to gain facilities, benefits and services for the Eeyou communities and Eeyou of Eeyou Istchee.

On the other hand, Eeyou of Eeyou Istchee face social, environmental, economic and other problems related to rapid development in Eeyou Istchee. The construction of vast road networks has provided access to Eeyou Istchee and has resulted in an influx of outsiders and products. Such external encroachment disturbs the health of Eeyou in the communities and disrupts the hunting territory system of Eeyou hunters and the abundance and distribution of fish and wildlife. Hydroelectric development and commercial forestry development have eroded the land and resource base of Eeyou of Eeyou Istchee. Many Eeyou and families have felt a tremendous sense of loss over the past four (4) decades as hydroelectric development have resulted in impacts such as the displacement of Eeyou/Eenou and relocation of Eeyou/Eenou communities, flooding and loss of hunting territories and burial grounds, loss of wildlife habitat, loss of major rivers, loss of fish and game, loss of drinking water and loss of cultural and spiritual sites. In addition, the vast clearing-cutting activities of the commercial forestry proponents have resulted in a great loss of valuable Eeyou hunting territories and wildlife habitat. There are many serious problems to solve as Eeyou of Eeyou Istchee seek to balance economic and resource development with the desire to retain and maintain key elements of their cultural heritage, Eeyou way of life and Eeyou Eedouwin (Eeyou way of doing things).

Considering the changes, impacts and problems associated with rapid resource development, many Eeyou/Eenou feel that the Eeyou of Eeyou Istchee had paid an exorbitant price for the rights and benefits guaranteed to the Eeyou of Eeyou Istchee by Canada and Quebec by promises and treaty in the James Bay and Northern Quebec Agreement. Therefore, many Eeyou/Eenou wondered why the Eeyou of Eeyou Istchee had to engage in a long, acrimonious and expensive exercise of reviews, negotiations and litigation for the proper implementation of their treaty with Canada and Quebec. After all, the proper implementation of the James Bay and Northern Quebec Agreement provides a road map to some form of a legal and social reconciliation with the Eeyou of Eeyou Istchee. But as the relationship between Canada and the Eeyou of Eeyou Istchee has demonstrated over the past years, ultimately, reconciliation requires a paradigm shift in Canada’s laws, policies and practices.

Nevertheless, in recent times, Eeyou of Eeyou Istchee have reclaimed and exercised their right to be in control of their affairs, pursue their goals and most importantly to govern themselves. Agents, representatives and officials of the Government of Canada and the Government of Quebec are no longer in the Eeyou communities to control and dominate Eeyou local governments, institutions, and affairs. The Eeyou of Eeyou Istchee are their own decision-makers.

In fact, the Eeyou of Eeyou Istchee have rejected the application of the paternalistic and oppressive Indian Act to them and their community lands. Instead the James Bay and Northern Quebec Agreement and its related Agreements and enabling legislation recognize and protect the rights of Eeyou governance by Eeyou of Eeyou Istchee. Therefore, the Indian Act does not apply to the Eeyou of Eeyou Istchee.

Eeyou presently govern by asserting the right and capacities not only to manage service and program delivery but 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. In taking this journey, the Eeyou Nation and People 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 Eeyou of Eeyou Istchee have reclaimed governance as a right recognized by treaty and the Constitution of Canada.

For the Eeyou of Eeyou Istchee, there is no more basic principle in Eeyou history and relations than a people’s right to govern themselves and their territories in accordance with their traditions, values, goals and aspirations.

The Eeyou of Eeyou Istchee can trace their right to govern themselves back as far as memory and oral history extend. The ultimate source of their right to be self-governing is the Creator. The Creator placed the Eeyou on its own land the Eeyou call Eeyou Istchee and gave the people the responsibility of caring for the land - and one another - until the end of time. In this manner, the right to be self-governing is an inherent right.

Therefore, the Eeyou of Eeyou Istchee have exercised their responsibilities and rights. The Eeyou have Eeyou laws like the Eeyou Hunting Law and Eeyou Eedouwin or the Eeyou way of doing things.

However, the Eeyou of Eeyou Istchee have accepted the need for power sharing with Canada and Quebec. In return, Eeyou have asked Canada and Quebec to accept that the right of Eeyou self- government is not, and can never be, a gift from Canada and Quebec. The right is inherent in the Eeyou people and our nationhood and was exercised for centuries before the arrival of European explorers and settlers. The Eeyou never surrendered and now want to exercise their right and rebuild their nation.

Therefore, Eeyou negotiated the recognition and protection of their rights including their right of self-government into the modern treaty known as the James Bay and Northern Quebec Agreement. The continuity of Eeyou rights, which are older than Canada and Quebec, is a major and fundamental part of the bargain between Eeyou of Eeyou Istchee, Canada and Quebec in the James Bay and Northern Quebec Agreement.

Eeyou have a special spiritual relationship to their land …Eeyou Istchee. Eeyou also consider their culture, language and traditions as fundamental and central to their collective and individual identities. Therefore, 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 Eeyou or shared with others. The second involves greater control over matters that affect Eeyou: its culture, identity and individual and collective well-being.

Consequently, in the implementation of the James Bay and Northern Quebec Agreement and its related Agreements such as the new relation agreements and governance agreements with Canada and Quebec, Eeyou of Eeyou Istchee have chosen and taken the following principal paths and arrangements for governance of Eeyou Istchee:

a) traditional Eeyou system of governance and authority for each Indoh-hoh Istchee (Eeyou Hunting Territories);

b) local government that involve a broad measure of Eeyou authority on an exclusive territorial base (Category IA and IB lands);

c) Eeyou Nation Government that involve a broad measure of Eeyou authority on an exclusive (Category IA land) and non-exclusive (Category II land) territorial base; and

d) public government (Eeyou Istchee James Bay Regional Government) that allow for significant Eeyou participation in decision-making over shared lands (Category III land) and resources

In particular, mutual recognition of coexisting and self-governing peoples is basic in any continuing relationships with Canada and Quebec.

The history of Eeyou relations with other governments and nations can be summarized as a legacy of conflicts over land, natural resources and the exercise of power. Prior to 1975, it is a legacy of the exclusion of Eeyou in the exercise of power, development of natural resources and denial of Eeyou rights to their homeland—Eeyou Istchee.

The James Bay and Northern Quebec Agreement is primarily about lands, natural resources and the exercise of power. For Eeyou, the Agreement is a treaty respecting Eeyou rights to lands, natural resources and exercise of power.

The 1975 James Bay and Northern Quebec Agreement arose out of what was initially opposition by Eeyou to proposed hydroelectric development in Eeyou Istchee. For Eeyou, the treaty process was the path chosen to enable and advance the process of nation-building, secure Eeyou rights such as self-governance and redefine relationships with Canada and Quebec.

Of utmost importance, in 1982, the Constitution of Canada was amended, amongst other reasons, to affirm and recognize existing aboriginal and treaty rights of Aboriginal Peoples. Consequently, as far as the Eeyou people and Nation are concerned, the Constitution Act,
1982
, recognizes and affirms their existing aboriginal and treaty rights, as well as those of other Aboriginal Peoples. For Eeyou, the treaty rights of Eeyou include rights contemplated
by the James Bay and Northern Quebec Agreement.

In summary, the proper implementation of the James Bay and Northern Quebec Agreement and its related agreements enables the Eeyou of Eeyou Istchee to rebuild their nation. For the Eeyou, amongst other goals, nation-rebuilding is about maintaining and developing culture and identity; supporting self-governing institutions; building viable communities and sustaining traditional and alternative ways of economic development and hence determining what constitutes the present Eeyou way of life. It involves building institutions of self-government and economic development that are culturally appropriate to the Eeyou and that are effective in addressing the nation’s challenges.

In the exercise of their right to govern themselves, Eeyou have acquired the responsibilities and burden of self-governance. Eeyou face many challenges and barriers in their journey and attempts to achieve effective self-governance.

However, the journey for nation-rebuilding continues and will continue for many generations to reclaim and restore governance, community and economic development, culture, language, ways of being and Eeyou Eedouwin (Eeyou way of doing things) in a manner that develops and sustains Eeyou society that works economically, socially, culturally and politically.

The journey to full and effective self-government is not over. Effective governance requires local and regional or national structures that are consistent with a people’s culture and heritage and that, at the same time, encompass sufficient numbers of qualified people to exercise the full authority of effective governance.

Furthermore, Eeyou of Eeyou Istchee has for the past five (5) decades been involved in a process of nation building. Eeyou of Eeyou Istchee are already well on their way to recapturing their sense of historical identity.

Ensuring the recognition and protection of Eeyou rights was a long, arduous and acrimonious exercise and process conducted through the leadership of Eeyou/Eenou of Eeyou Istchee and guided and directed by the vision of the treaty makers.

However, the vision of the treaty makers has not yet been fully achieved. It has been a long and difficult journey conducted through the leadership of Eeyou/Eenou of Eeyou Istchee. This Eeyou/Eenou journey is not over and there are many social and political challenges here today and tomorrow.

Eeyou governance is continuing to evolve. However, Eeyou of Eeyou Istchee need to exercise governance that produces effective and better results. Eeyou need to exercise more responsible governance through their local and regional institutions.

The implementation of their treaty and its related agreements is a continuing process and nation- building is an ongoing task.

Clearly the Eeyou Nation and people of Eeyou Istchee have made tremendous progress for the recognition, protection and exercise of Eeyou/Eenou rights. Most important, Eeyou/Eenou of Eeyou Istchee, in meeting and overcoming many challenges, have empowered themselves and together are securing a better future for present and future generations of Eenou/Eeyou of Eeyou Istchee.

Even in this post-modern world, the Eeyou/Eenou treaty makers and leaders were utopian in their vision and hope for the future. While the journey to achieving their vision is not an easy one, I believe that much more will be accomplished by the present and future generations of Eeyou/Eenou leaders of Eeyou Istchee.


Philip Awashish
Mistissini Eenou Commissioner
May 15, 2018

END NOTES

  1. The present chapter is a personal account on the experiences, perspectives and observations of the author on the Eeyou of Eeyou Istchee, James Bay and Northern Quebec Agreement and Eeyou Nation Rebuilding.
  2. Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.C. 557
  3. Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11.
  4. Philosophy of the Agreement as explained by Mr. John Ciaccia, special representative of Premier Robert Bourassa, James Bay and Northern Quebec Agreement and Complementary Agreements, 2006 Edition, Les Publications Du Quebec, page xiii.

Eeyou Governance in Eeyou Istchee

Introduction

When Eeyou leaders met in Mistissini, Eeyou Istchee, on June 29, 30 and July 1, 1971, they made some important decisions. This meeting was the first time in their history the Eeyou leaders from other Eeyou communities ever met 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, 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 interests. 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 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.

For the Eeyou of Eeyou Istchee, there is no more basic principle in Eeyou history and relations than a people’s right to govern themselves and their territories in accordance with their traditions, values, goals and aspirations.

Eeyou of Eeyou Istchee can trace their right to govern ourselves back as far as memory and oral history extend.

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, 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 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, Eeyou, like other First Nations across Canada, took over and managed federal programs from the then Department of Indian Affairs and Northern Development (currently known as Indigenous and Northern Affairs 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.

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 manage service and program delivery but 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 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 Eeyou of Eeyou Istchee have reclaimed governance as an aboriginal right and activity.

But Nation-building and hence self-government are continuous activities which must develop and sustain 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 relationships within their own society and others.

In order to understand and appreciate the evolution of Eeyou governance in Eeyou Istchee, 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.

Eeyou Governance before the 1975 James Bay and Northern Quebec Agreement

The leadership and vision of the Eeyou treaty makers led the Eenou 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 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 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 socio-political situation and conditions of Eeyou, their local government and administrations and governmental relations:

a) The population of Eeyou was about 6,000 people residing in six (6) isolated villages – Great Whale River (presently Whapmagoostui), Fort George (Eeyou of Fort George are presently living in Chisasibi as they have been relocated as a result of hydroelectric development), Paint Hills (presently Wemindji), Eastmain, Rupert’s House (presently Waskaganish), and Mistassini (presently Mistissini). Eeyou of these villages lived in inadequate housing shelters without electricity and suitable infrastructures for water and sewage systems;

b) Only one of the six (6) isolated Eeyou villages was accessible by road and telecommunications was conducted by radio-phone;

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

d) The traditional way of life based on hunting, fishing and trapping and related activities constituted (and still remains) an essential and necessary component of Eeyou culture and society. The Governments of Canada and Quebec did not recognize Eeyou rights to hunt and fish. These governments enacted and enforced their hunting and fishing laws and regulations throughout Eeyou Istchee. As a result, many Eeyou were prosecuted for practicing a traditional way of life based on hunting, fishing and trapping.

e) Eeyou exercised and applied their traditional land tenure and governance systems as Eeyou Indoh-hoh Ouje-Maaooch (Tallymen) governed their respective Indoh-hoh Istchee (hunting territory or trapline).

f) Until the execution of the James Bay and Northern Quebec Agreement and the subsequent enactment of the Cree-Naskapi (of Quebec) Act by Parliament, the Indian Act was the single most prominent piece of legislation respecting Eeyou local government. The Indian Act applied and was enforced upon Eeyou. Hence, under the Indian Act, the legal system of a very limited and supervised regime of local government was imposed on the Eeyou ‘Bands’. This imposed elective form of local government vested in the Minister of Indian Affairs and Northern Development (currently known as Indigenous and Northern Affairs Canada) veto powers over decisions of local governments.

g) The imposed Indian Act regulated almost every important aspect of the lives of the Eeyou ‘Indians’.

h) With the exception of the Ouje-Bougoumou Eeyou, Eeyou had ‘Band’ status under the Indian Act.

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

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

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

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

m) The federal government, mainly through the then Department of Indian Affairs and Northern Development (DIAND), provided programs and services such as education and community development to the Eeyou ‘bands’. National Health and Welfare provided health measures. However, these services and programs were under the exclusive control and administration of the federal government. Often officials from Indian Affairs made important decisions which were rubber-stamped by the Chief and Council.

n) The DIAND asserted control over political structures, land administration and management, community development and social and economic development of the Eeyou ‘Bands’ and communities. Consequently, the DIAND controlled Eeyou local governmental and administrative matters;

o) Eeyou local governments were accountable mainly to non-Eeyou governments
and agencies such as the DIAND that provided funding for their activities. These arrangements created a situation where Eeyou local governments were more responsive to external agencies than to community members. Further, the development of the capacity for political accountability was stymied by the fact that key policy and program decisions were made by non-Eeyou officials;

p) The Eeyou ‘Bands’ conducted federal relations solely through officials of the District Office of the DIAND. Consequently, the Cree ‘Bands’ rarely conducted direct relations with the Government of Canada. In effect, the District Office of Indian Affairs was the centre of Cree ‘Bands’ and federal relations;

q) Eeyou ‘Bands’ functioned separately as Eeyou had not, until 1974, established the Grand Council of the Crees (of Quebec).

r) The DIAND arranged contractual and administrative measures to permit some Eeyou bands to manage some federal programs and services such as operations of local schools.

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

t) Questions existed about the capacity of the ‘Band’ under the Indian Act to undertake contractual obligations and assume legal responsibilities as a legal entity or a legal personality.

u) The Government of Quebec considered the welfare of the Eeyou ‘Indians’ as the responsibility of the Government of Canada and hence provided little or no services and programs to Eeyou;

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

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

w) The limitations and restrictions on Eeyou governance under the Indian Act and the dominating administrative arm of the DIAND came to be regarded as instruments and agents of intrusion into Eeyou affairs.

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

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

Consequently the vision of the Eeyou treaty makers and leaders entailed changing the Eeyou world and making it a better world for Eeyou of Eeyou Istchee through nation-building. Eeyou wanted to maintain and protect Eeyou Pimaatehsouwin (Eeyou way of life) and Eeyou Eehdou- wun (Eeyou culture and Eeyou way of doing things). 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. Eeyou wanted to be in control of their affairs, institutions, communities and governments … in effect govern themselves. Eeyou wanted community and economic development but under their terms. Eeyou wanted respect and participation in the development and management of natural resources in Eeyou Istchee. Eeyou wanted responsible and sustainable resource development that took into account their concerns and interests. In other words, 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 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-Quebec, 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 Eeyou resulted, by a treaty process, in a negotiated settlement respecting the rights of Eeyou and development of natural resources in Eeyou Istchee. For 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.

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 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 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 Indigenous and Northern Affairs 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 fails 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 then Department of Indian Affairs came to be regarded by Eeyou of Eeyou Istchee as instruments and agents of intrusion and domination of Eeyou affairs and Eeyou governance.

By 1970, 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 then Department of Indian Affairs. Consequently, for Eeyou, the comprehensive control and domination asserted by the federal government over Eeyou society through the Indian Act and the then 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-Quebec 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, which is a modern-day treaty as well as an out-of-court settlement.

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

a) Agreement Concerning a New Relationship between le Gouvernement du Québec and the Crees of Quebec;

b) Agreement Concerning a New Relationship between the Government of Canada and the Crees of Eeyou Istchee;

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

d) Agreement on Governance in the Eeyou Istchee James Bay Territory between the Crees of Eeyou Istchee and the Gouvernement du Québec; and

e) Agreement on Cree Nation Governance Between the Crees of Eeyou Istchee and the Government of Canada.

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, Eeyou nation governance and Eeyou-Jamésiens public regional governance.

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

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

First, Eeyou established and implemented the system of “Indoh-hoh Istchee” as part of the Eeyou land tenure system. 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 replaces 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 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.”2

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, 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”.3

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:

a) Management and conservation of wildlife and other natural resources;

b) Control of access to Indoh-hoh Istchee (consent, permission and authorization of the Indoh-hoh Ouje-Maaoo concerned are required);

c) Determination of the delineation and limits of Indoh-hoh Istchee;

d) Resolution of territorial disputes respecting limits of Indoh-hoh Istchee;

e) Maintenance of the territorial integrity of Indoh-hoh Istchee;

f) Determination of names of places and sites within Indoh-hoh Istchee;

g) Transfers of portions or entirety of Indoh-hoh Istchee by agreement or inheritance;

h) Sharing of history, information and traditional knowledge;

i) Respect, maintenance and transmission of Eeyou Eedouwun (Eeyou way of doing things);

j) Sharing of wildlife resources to ensure survival;

k) Application and enforcement of customary practices and rules respecting life and activities within Indoh-hoh Istchee; and

l) Political representation.

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, 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 the Government of Quebec and the Crees of Quebec 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 the Government of Quebec and the Crees of Quebec, 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 Eeyou will be identified and mapped by Eeyou in cooperation with Quebec. No forest management activities may be undertaken in these areas unless the Indoh-hoh Ouje-Maaoo agrees otherwise.

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, 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, Cree School Board and the Cree Board of Health and Social Services of James Bay, Eeyou have been and are continuing to exercise a form of self-administration of governmental programs and services. In addition, 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.

Eeyou also participate in regimes of co-management with the Government of Canada 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, Eeyou of Eeyou Istchee exercise a form of co-management of funds, programs and projects with Hydro-Quebec 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 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:

1) The Cree School Board, with its unique and special powers and under the control of Eeyou of Eeyou Istchee, has jurisdiction and responsibility for elementary, secondary education, post secondary and adult education for residents within the Eeyou communities. The Cree School Board has been instrumental in the preservation of Eeyou culture and the development and implementation of Eeyou language instruction.

2) The Cree Board of Health and Social Services of James Bay, under the control of Eeyou of Eeyou Istchee, has jurisdiction and responsibility for the administration of appropriate health and social services for all persons normally resident or temporarily present in the Eeyou communities.

3) The Hunting, Fishing and Trapping Coordinating Committee, with members from the Native and government parties, was established as a consultative body to responsible governments and as such was meant to be the preferential and exclusive forum for the Cree as well as the Naskapi and Inuit peoples and governments to formulate joint regulations

and supervise the administration and management of the Hunting, Fishing and Trapping Regime established by and in accordance with Section 24 of the James Bay and Northern Quebec Agreement.

4) The James Bay Advisory Committee on the Environment, with members appointed by the Cree Regional Authority, federal and provincial governments, was established to review and oversee the administration and management of the Environmental and Social Protection Regime established by and in accordance with Section 22 of the James Bay and Northern Quebec Agreement.

5) The Cree were accorded special status and involvement in the various mechanisms such as evaluating and review committees that were created for the review and assessment of the social and environmental impacts of proposed development projects in the Territory contemplated by the Agreement.

6) Furthermore, Section 28 of the James Bay and Northern Quebec Agreement contemplates the establishment of the Cree Trappers’ Association, Cree Outfitting and Tourism Association and the Cree Native Arts and Crafts Association.

7) The Indoo-Who Shoo-Yan Oujemaoch (Cree Hunters and Trappers Income Security Board) is responsible for the administration of the Cree Hunters and Trappers Income Security Program as established by and in accordance with Section 30 (Income Security Program for Cree Hunters and Trappers) of the James Bay and Northern Quebec Agreement. The Cree Regional Authority and the Government of Quebec each appoint three (3) members to the Cree Hunters and Trappers Income Security Board.

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

1) The Cree Development Corporation (CDC) shall be established with objects and powers for the economic and community development of the James Bay Crees.

2) The Eenou/Eeyou Foundation Limited Partnership is the “recipient of funding” contemplated in the Agreement Concerning a New Relationship between le Gouvernement du Québec and the Crees of Quebec.

3) The Cree-Quebec Forestry Board is established for the purpose of permitting a close consultation of the Crees during the different steps of planning and managing forest management activities in order to implement the adapted forestry regime.

4) The Mineral Exploration Board is established to assist the Crees in accessing and participating in mineral exploration opportunities and activities.

5) The Standing Liaison Committee is established to act as a permanent forum of exchange and of coordination between the Crees and Quebec in order to strengthen their political, economic and social relations and to ensure the harmonious, efficient implementation of the New Relationship Agreement and to resolve other questions relating to the implementation of the James Bay and Northern Quebec Agreement.

6) The GCC(EI)-CRA/HQ-SEBJ Dispute Resolution is constituted by the Agreement Respecting Disputes and a Dispute Resolution Committee and is mandated to attempt to resolve all outstanding disputes between the Crees and HQ/SEBJ.

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

1) Cree Regional Economic Enterprises (CREECO)

2) Valpiro

3) Petronor (CreeEnergy)

4) AirCreebec

5) Cree Construction and Development Company Ltd.

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

1) Elders Council

2) Cree Nation Youth Council

3) Cree Native Women’s Association

4) James Bay Eeyou Cultural Education Center

5) James Bay Cree Communications Society

6) Aanischaaukamikw Center (Cree Cultural Institute)

7) Cree Indian Friendship Center of Chibougamau

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).

Eeyou Local Government

Pursuant to the terms and provisions of the James Bay and Northern Quebec Agreement, Eeyou Istchee was carved out into three (3) categories of land. Lands classified as Category IA, under federal jurisdiction, and Category 1B, under provincial jurisdiction, were set aside and allocated to the Cree for their exclusive use and benefit and under the administration and control of Cree local governments.

Pursuant to federal obligations to 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, 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 fifteen (15) 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 as recommended by the Commission. Consequently, the Cree-Naskapi (of Quebec) Act, since its enactment by the Parliament of Canada thirty-four (34) 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 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 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 which have the object of acting as the local government authority. Under traditional law, Eeyou or the Eeyou nation is the historical, traditional and present self-governing authority. 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 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, Eeyou is 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 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 which pre-exists the authority of the federal and provincial governments and which should exist independently of the agendas and policies of the 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 1B lands that were and are presently uninhabited by people. 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 1B 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 Eeyou for Governance under the JBNQA, its related Agreements and subsequent legislation, 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.

Eeyou Nation Governance

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

a) an identifiable land and territorial base consisting of the nation’s own lands and resources;

b) citizenship in the nation as a whole;

c) the presence of non-Aboriginal residents on the nation’s lands and the protection of their rights;

d) the exercise of government powers and authority in a comprehensive range of jurisdictions and, depending on the internal structure of the nation government, possibly by units of government at community, regional or tribal levels;

e) the possibility of one or more units of government within the nation, organized centrally or federally;

f) internal government procedures that vary from one nation to another and that build upon a nation’s traditions;

g) the possibility of urban components or extensions of nation government, including extra-territorial jurisdictions and urban institutions; and

h) the possibility of relationships with other Aboriginal governments through inter-nation associations such as confederacies, treaty associations and provincial or pan-provincial associations.

Clearly, Eeyou/Eenou governance meets these key characteristics of the 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 be mistaken as the Cree Regional Authority alone as 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, Eeyou of Eeyou Istchee exercises governance at a national level which extends beyond board governance, public governance and self-administration of programs and services. While the ‘nation government’ was not yet constituted under contemporary law, Eeyou of Eeyou Istchee

consider the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority (GCCEI/CRA) as a form of a 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, Eeyou view the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority as a form of a regional Eeyou government.

The Grand Council of the Crees (of Quebec) was established by 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 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 Quebec and other related agreements. (It is important to note that the Grand Council of the Crees was established pursuant to the expressed will of 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, 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 nation form of governance for and by 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 the 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 GCCEI is a party to the Treaty Alliance of North American Aboriginal Nations signed in Ouje-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 GCCEI 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, Eeyou have become a stronger nation with advancements and achievements that have benefited Eeyou. In this regard, the unity of 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 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. 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 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 Eeyou under the James Bay and Northern Quebec Agreement. Therefore, the consent of Eeyou for any amendments to the JBNQA that affects Eeyou must be obtained through the Cree Regional Authority. Consequently, the CRA, on behalf of 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 Eeyou of Eeyou Istchee.

In addition, one must recall the leadership crisis in the early 1980s, when 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 GCCEI held the offices of the Chairman and Vice-Chairman of the CRA respectively. The members of the Executive of the GCCEI became the members of the Executive Committee of the CRA. In addition, the members of the Board of Directors of the GCCEI 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 Eeyou of Eeyou Istchee.

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.)

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 Eeyou or beneficiaries of the JBNQA as members of the GCCEI/CRA is another compelling factor for Eeyou nation governance. The other principal entities such as the Cree School Board and the Cree Health Board do not retain such membership. (The Cree School Board is a school board under the Education Act and the Cree Health Board 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.

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 Quebec, Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee, Framework Agreement between the Crees of Eeyou Istchee and the Gouvernement du Québec on Governance in the Eeyou Istchee James Bay Territory, Agreement on Governance in the Eeyou Istchee James Bay Territory Between the Crees of Eeyou Istchee and the Gouvernement du Québec and the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada.

Agreement Concerning a New Relationship between le Gouvernement du Québec and the Crees of Quebec

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 Quebec’ (hereinafter referred to as the ‘New Relationship Agreement’.) The New Relationship Agreement was approved by Eeyou in local referenda held by Eeyou of Eeyou Istchee.

Quebec and Eeyou of Eeyou Istchee enter into a nation-to-nation agreement which 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 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:

1) Establishment of a new nation-to-nation relationship;

2) Assumption of greater responsibility by the Cree Nation for its economic and community development;

3) Establishment of means to allow the parties to work together in regard to the development of mining, forestry and hydroelectric resources in the Territory;

4) Settlement, with discharges, of the provisions of the James Bay and Northern Quebec Agreement pertaining to the economic and community development of Eeyouch;

5) Settlement or the withdrawal of certain legal proceedings;

6) Consent of Eeyou for the carrying out of the Eastmain 1-A/Rupert Project; and

7) Facilitation of the construction of the EM 1 Project. (The Eastmain 1-A/Rupert and EM-1 are hydroelectric development projects to be constructed under the terms and conditions of the Agreement; in particular, in regards to economic development of and by Eeyou. These projects are extensions to the existing hydroelectric development project referred to as “le Complexe La Grande (1975)” in Section 8 of the James Bay and Northern Quebec Agreement.)5

For the period of fifty (50) years commencing from April 1, 2002, 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 Eeyou of Eeyou Istchee an annual amount so that Eeyou may assume for that period the obligations of Quebec, Hydro- Québec and la 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 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 (3) 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 insofar 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 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 Eeyou in the development of other natural resources such as mining and forestry. This participation of Eeyou was intended in the JBNQA but not implemented.

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, Eeyou of Eeyou Istchee must adopt and exercise a cautionary and alert approach in the proper implementation of the Agreement Concerning a New Relationship between le Gouvernement du Québec and the Crees of Quebec. 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 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.

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:

a) to establish the basis for a new relationship between Canada and the Cree Nation;

b) to improve implementation of the JBNQA and to provide for the amendment of certain provisions thereof;

c) to commit Canada to recommend to Parliament amendments to the Cree-Naskapi (of Quebec) Act;

d) to provide the process for negotiating an agreement and related legislation concerning a Cree Nation Government with powers and authorities beyond the scope of the Cree-Naskapi (of Quebec) Actand correlative amendments to the JBNQA and the CNQA. (Such negotiations, if successful, would expand Cree Nation governance beyond the CNQA powers by establishing the structures and powers of a Cree Nation Government and the relationship of such Government with Cree bands and federal and provincial governments);

e) to provide for the assumption by the CRA, and subsequently by the Cree Nation Government, of certain responsibilities of Canada under the JBNQA for the Term of this Agreement;

f) to resolve the claims, grievances and other matters between Canada, the GCCEI, the CRA and/or one or several Cree bands as set out in this Agreement; and

g) to resolve disputes between the Cree Nation and Canada concerning certain of Canada’s responsibilities under the JBNQA through the resolution, to the greatest extent possible, of legal proceedings, and to provide a framework for the resolution of future issues that may arise.6

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:

1. To enable the Cree Regional Authority to receive and carry out the assumed federal responsibilities as listed in the Agreement;

2. To equip the Cree Regional Authority with the by-law-making powers similar to those of the Cree Bands under the CNQA; and

3. To expand Cree Nation Governance beyond the scope of the CNQA. (This latter objective is subject to successful negotiations between the Cree and Canada leading to a Governance Agreement, Governance Legislation and possible amendments to the JBNQA and to the CNQA.)

Bill C-28, An Act to Amend the Cree-Naskapi (of Quebec) Act, was introduced in the House of Commons on April 27, 2009. In particular, the legislation amends the Cree-Naskapi (of Quebec) Act, in respect of Cree bands and Category IA land,

a) to provide the Cree Regional Authority with additional responsibilities and powers, including by-law making powers; and

b) to recognize the Cree of Ouje-Bougoumou as a separate band and a local government under the Act.

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 which shall reflect its values and beliefs, be effective as the fundamental law of the Cree Nation, and be consistent with the Governance Agreement.

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

The governance of Eeyou Istchee – historical and traditional territories – of Eeyou/Eenou has always been an issue of fundamental importance for Eeyou, Quebec and Canada. Governance of Eeyou Istchee was a critical issue in the court cases against Canada and Quebec and subsequently in the negotiations leading to the James Bay and Northern Quebec Agreement and its related Agreements concerning new Eeyou-Quebec-Canada relationships. The governance of Eeyou Istchee still remains an issue of fundamental importance for Eeyou/Eenou of Eeyou Istchee.

The governance of Eeyou Istchee has evolved tremendously, especially over the past four (4) decades due to the implementation of the James Bay and Northern Quebec Agreement and new Cree-Quebec and Cree-Canada relationship Agreements and unilateral legislative initiatives of Quebec such as the establishment of the James Bay Municipality (MBJ) and the Regional Conference of Elected Officers or “CRÉ”. These particular initiatives of Quebec, in effect, excluded the participation of Eeyou/Eenou in the governance of a substantial portion of Eeyou Istchee.

Consequently, in 1986, Eeyou of Eeyou Istchee initiated legal proceedings on allegations and conclusions against Quebec respecting Section 11B (James Bay Regional Zone Council) of the JBNQA.

Recently, Eeyou of Eeyou Istchee have negotiated and signed agreements concerning the governance of Eeyou Istchee with the Government of Quebec.

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:

a) The exercise by the Crees of greater autonomy and greater responsibilities regarding the governance of Category IB and II lands, in particular with respect to governance powers of a local and regional authorities concerning, among other things, the planning and use of the territory and resources;

b) The modernization of the governance regimes at the regional level on Categories II and III lands situated in the Territory;

c) 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;

d) The strengthening of the nation-to-nation relationship between the Cree nation and the Quebec nation, based on the common will of the parties to continue the development of the Territory for the benefit of the residents of the Territory and the entire population of Quebec, and to seek the flourishing of the Crees within a context of growing modernization;

e) The assumption of greater responsibility by the Cree nation in relation to its political, governmental and economic development and, in so doing, the achievement of increased autonomy with a greater capacity to respond, in partnership with Quebec, to the needs of the Cree population;

f) The definitive settlement or definitive withdrawal of certain legal proceedings and the settlement of the dispute between the Crees and Quebec.7

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 regional 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.

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

On July 24, 2012, Eeyou of Eeyou Istchee and the Government of Quebec signed the ‘Agreement on Governance in the Eeyou Istchee James Bay Territory Between the Crees of Eeyou Istchee and the Gouvernement du Québec.’ This latter Agreement is also a settlement on certain legal proceedings initiated by Eeyou of Eeyou Istchee against the Government of Quebec.

The ‘Agreement on Governance in the Eeyou Istchee James Bay Territory Between the Crees of Eeyou Istchee and the Gouvernement du Québec’ replaces the ‘Framework Agreement Between the Crees of Eeyou Istchee and the Gouvernement du Québec on Governance in the Eeyou Istchee James Bay Territory.’

The Government of Quebec and the Crees of Eeyou Istchee agree to place emphasis in their relations on those aspects that unite them as well as on their common desire to continue the development of Northern Quebec and the self-fulfillment of the Cree nation, which must continue to benefit from its rich cultural heritage, its language and its traditional way of life in a context of growing modernization.

Quebec and the Crees enter into a nation-to-nation agreement which will provide for the modernization of the governance regime in the Territory and the inclusion of the Crees in this governance regime.

The Agreement aims to promote greater autonomy and greater responsibility on the part of the Crees for governance on Category II Lands in the Territory, in particular with respect to land and resource planning and use.

This Agreement also provides for greater participation by the Crees in the governance of the Category III Lands in the Territory in partnership with the Jamésiens.

This Agreement is based on a governance model which relies on the principles of sustainable development, partnership and respect for the traditional way of life of the Crees in accordance with the provisions of the James Bay and Northern Quebec Agreement and the Agreement concerning a New Relationship between le Gouvernement du Québec and the Crees of Quebec concluded on February 7, 2002 (“Paix des Braves”) as well as the government orientations and policies as adapted to take into account the context of the Crees.

This Agreement marks another important stage in the new nation-to-nation relationship contemplated in the Paix des Braves, one that is open and respectful and that promotes a greater responsibility on the part of the Cree Nation for its own development within the context of greater autonomy.

This Agreement shall promote the emergence of Cree expertise in the fields of local and regional governance, land and resource planning and use, for the benefit of the Crees and of Quebec, in general.

In order to promote the autonomy and development of the Cree Nation, to modernize the public governance regimes in the Territory and to ensure economic growth in the Territory for the benefit of all its residents and the entire population of Quebec, this Agreement has the following objects:

a) the exercise by the Crees of greater autonomy and greater responsibilities regarding the governance on Category II Lands, in particular with respect to governance powers of a local, municipal and regional nature under Quebec laws concerning, among other things, the planning and use of the territory and resources;

b) the modernization of the municipal and regional governance regimes under Quebec laws on Category III Lands in order to ensure the equitable representation and participation by the Crees and the Jamésiens;

c) the definitive settlement or definitive withdrawal of the Legal Proceedings; and

d) the definitive settlement of the dispute between the Crees and Quebec regarding

i) the Act to amend the James Bay Region Development Act and other legislative provisions; and,

ii) the Act respecting the Ministère du développement économique et régional et de la Recherche with respect to the Regional Conference of Elected Officers and the Regional Development Fund referred to, in part, in the notice of dispute dated April 17, 2007 sent by then Grand Chief Matthew Mukash to Minister Benoît Pelletier and in the exchange of letters dated February 25, 2010 between Grand Chief Dr. Matthew Coon Come and Premier Jean Charest.8

Except when expressly provided in this Agreement, nothing in this Agreement or any complementary agreement amending the JBNQA or any legislation giving effect to this Agreement shall affect or prejudice or shall be interpreted in such a way as to affect, modify or prejudice the rights, privileges and benefits of the Crees and of Quebec under the JBNQA (including the continuation of the present system of Cree Traplines), the Paix des Braves or under any other agreement or undertaking to which the Crees and Quebec are parties.

The governance regimes provided for in this Agreement in respect of Category II Lands and Category III Lands shall not apply to the Category II Lands of Whapmagoostui and to the Cree family traditional territories, or Cree Traplines, north of the 55th parallel unless an agreement is reached to this effect between the Crees and Makivik Corporation and it is approved by Quebec.

The Parties undertake to examine and to negotiate, within five (5) years of the coming into of this Agreement and in the context of the JBNQA, suitable arrangements with respect to Cree governance on Category IB Lands with the objective of ensuring its operational effectiveness, simplicity and technical and financial viability.

The Cree Regional Authority shall continue to exist as the same legal person. It shall be designated under the name “Eeyou Tapayatachesoo” in Cree, “Cree Nation Government” in English and “Gouvernement de la nation crie” in French. Its structure and composition shall remain as at present until otherwise agreed by the Parties.

The Cree Nation Government may exercise jurisdictions, functions and powers, and shall, if applicable, assume the obligations related thereto, over Category II Lands under Quebec laws with respect to:

a) municipal and regional management, management of natural resources and management of land, as provided for in this Agreement;

b) any other matter that may be agreed from time to time by the Cree Nation Government and Quebec.

It may also exercise the jurisdictions, functions and powers attributed immediately before the coming into force of this Agreement to the Municipalité de Baie-James and the James Bay Regional Zone Council in respect of Category II Lands.

The Cree Nation Government may, by resolution, declare with respect to all or any part of Category II Lands that it shall exercise any of the jurisdictions, powers and functions attributed from time to time by the law to an MRC (a regional county municipality), with regard to any of the following matters:

a) the planning of land use and development in its territory, as provided for in the Act respecting land use planning and development or any successor legislation including, in particular, the development of a land use and development plan, a strategic vision for economic, social, cultural and environmental development and the other elements pertinent for the planning exercise provided for in the Land Use Act. Such land use and development plan and strategic vision shall be consistent with the policies, principles and objectives to be determined by the Cree Nation Government in consultation with the Cree Communities and with the concurrence of Quebec;

b) regional economic development;

c) territorial development plans;

d) establishment of a fund to provide financial support for operations to develop land or forest resources;

e) management of watercourses and lakes;

f) establishment and management of regional parks;

g) power;

h) planning of residual matter (waste) disposal;

i) any other jurisdiction, function or power that is attributed or may be attributed from time to time to an MRC or successor body pursuant to the laws of Quebec.

The Cree Nation Government may exercise the powers of an MRC (a regional county municipality) with respect to the promotion of local development and entrepreneurial support within Category I Lands and Category II Lands and with respect to the residents thereof. To that end, the Cree Nation Government may more particularly:

a) offer a full range of front-line services to businesses, possibly in partnership with persons or bodies including those from the private sector, by grouping or coordinating those services and providing funding for them;

b) develop a local plan of action to stimulate the economy and create employment taking into account the five-year development plan established by the CRÉ (Regional Conference of Elected Officers) in its territory and see to the implementation of the local plan of action;

c) formulate, in keeping with the policies, principles and objectives determined by the Cree Nation Government in consultation with the Cree Communities, a strategy for the development of entrepreneurship, including social economy entrepreneurship; and

d) act as an advisory body for the benefit of the local employment centre serving its territory.

As soon as possible after the coming into force of this Agreement, the James Bay Regional Zone Council shall be dissolved and its rights, functions, assets and liabilities shall vest in the Cree Nation Government.

The Cree Nation Government shall be deemed to act as a Regional Conference of Elected Officers (CRÉ-CNG) for the Crees and with respect to Category I Lands and Category II Lands.

The Cree Nation Government, in consultation with the Cree Communities, may exercise all the powers and have all the responsibilities of a CRÉ (Regional Conference of Elected Officers) and a CRRNT (Regional Land and Natural Resource Commission), as provided for in Quebec laws. In this regard, the Cree Nation Government may:

a) act as primary interlocutor of Quebec as regards regional development;

b) evaluate local and regional planning and development bodies;

c) promote concerted action among partners in the region;

d) give advice to the ministre des Affaires municipales, des Régions et de l’Occupation du territoire on regional development matters;

e) establish a five-year development plan that identifies general and specific development objectives for the region;

f) enter into specific agreements with government departments or bodies and other partners, to exercise its powers and responsibilities;

g) administer the funds entrusted to it by Quebec under an agreement for the carrying out of any regional development project under the authority of the Minister who has signed the agreement;

h) assume, where applicable, the management of a part of the Regional Development Fund in accordance with the provisions of the Act respecting the Ministère des Affaires municipales, des Régions et de l’Occupation du territoire;

i) prepare a Regional Land and Resource Use Plan, which shall have at least the same scope as a Regional Plan for Integrated Land and Resource Development;

j) assume any other power and responsibility as may be attributed from time to time to a CRÉ (Regional Conference of Elected Officers) or CRRNT (Regional Land and Natural Resource Commission) or their successor bodies.

The Cree Nation Government shall exercise its jurisdictions, functions and powers taking into account the following:

a) the policies, principles and objectives to be determined by the Cree Nation Government in consultation with the Cree Communities and with the concurrence of Quebec;

b) the special vocation of Category II Lands for the Crees under the JBNQA; and

c) the status of Category II Lands as lands in the domain of the State (subject to the provisions of the JBNQA, including Sections 5 and 24), concerning, in particular, public access to lands in the domain of the State and free circulation, having due regard to Cree harvesting rights and land use and occupation on Category II Lands.

Quebec undertakes to negotiate, at the latest by March 31, 2013 or within such longer period as the Parties may agree, an agreement with the Cree Nation Government, pursuant to which the Cree Nation Government may assume management responsibilities for sand and gravel on Category II Lands.

Quebec shall fund the Cree Nation Government in accordance with five-year funding agreements, the first of which is set forth in this Agreement. The Crees and Quebec shall negotiate and agree on subsequent five-year funding arrangements.

The Cree Nation Government shall possess all the powers required to fulfill the obligations stipulated in an agreement to which it is party with Quebec, one of its ministers and agencies or with a mandatory of the State.

Upon the coming into force of the legislation mentioned in this Agreement, the Municipalité de Baie-James shall cease to exist and shall be replaced by a public regional government established by statute of Quebec. This legal person in the public interest shall be a municipal body under the name of “Gouvernement régional d’Eeyou Istchee Baie-James”. The Regional Government may also be designated by the name of “Eenou Chishaauchimaau”, in Cree, and of “Eeyou Istchee James Bay Regional Government”, in English. The Regional Government shall comprise representation of the Crees and the Jamésiens as provided for in this Agreement.

The Regional Government shall, subject to certain provisions of this Agreement, have jurisdiction over the Category III Lands situated in the Territory.

The governing structure of the Regional Government shall be a council composed of representatives of the Crees and of the Jamésiens as well as, during the first five years of operation of the Regional Government, a representative of Quebec. The representation of Quebec shall be reassessed after the first five years of operation.

During the first five years of operation, the Crees and the Jamésiens shall have parity of votes on the council of the Regional Government. The council of the Regional Government shall comprise 22 seats and 44 votes, allocated equally between the Crees and the Jamésiens. An additional seat shall be allocated for Quebec, without the right to vote.

The representatives of the Crees shall be designated by the Crees from among their elected officers. The representatives of the Jamésiens shall be designated by Quebec from among the members of the councils of the Municipalities and the residents of the Territory. The allocation of votes among the representatives of the Jamésiens shall be determined by Quebec, taking into account, in particular, the demographic weight of each of the municipalities and of the residents of the Territory.

After the first ten years of operation of the Regional Government, representation and voting rights of the Crees and the Jamésiens on the council of the Regional Government shall be based on resident population in accordance with a formula to be agreed by the Crees and Quebec based on democratic principles and demographic realities. Thereafter, representation of the Crees and of the Jamésiens on the council of the Regional Government shall be reassessed every ten (10) years.

The Regional Government shall act through its council in exercising its powers and carrying out its duties. The council shall act by resolution, except where required by this Agreement or by law to act by by-law. By-laws may be enacted and resolutions adopted only at council meetings.

Subject to this Agreement, the council may make and enforce rules and regulations for its internal government and for the maintenance of order during its meetings.

Cree and French shall be the principal languages of the Regional Government. However, the Regional Government may use either French or English in its internal communications and language of work.

A citizen may communicate verbally or in writing with the Regional Government, including at meetings of the council, in Cree, English or French.

Texts and documents intended for Cree individuals or for the Cree population in general shall be translated into Cree and English, including any document enabling the users to exercise a right or meet an obligation.

The Regional Government shall possess and exercise the same jurisdictions, functions and powers on Category III Lands as those currently attributed to the Municipalité de Baie-James, save for the provisions thereof inconsistent with the provisions of this Agreement and of the law constituting the Regional Government.

In addition to the jurisdictions, functions and powers attributed to it hereinafter, the Regional Government may assume and exercise any other jurisdiction, function and power that may be the object of an agreement from time to time between the Regional Government and Quebec.

The Regional Government may, by resolution, declare with respect to all or any part of Category III Lands that it shall exercise any jurisdiction, function and power attributable by law to an MRC (a regional county municipality within the meaning of the Act respecting Municipal territorial organization “Municipalité de comté régionale” or “MRC”) with regard to any of the following matters:

a) the planning of land use and development in the Territory, as provided for in the Land Use Act, including, in particular, the development of a land use and development plan, a strategic vision for economic, social, cultural and environmental development and the other elements pertinent for the planning exercise provided for in the Land Use Act. The land use and development plan shall comply with the governmental orientations regarding land use developed in the framework of its law with regard to all or any part of Category III Lands. In developing these orientations, Quebec shall take account, in particular, of the specific character of these lands, the participation of the Crees and Jamésiens in their management as well as the particular issues related to the development of the resources in a perspective of sustainable development, the whole in concurrence with the Regional Government;

b) regional economic development;

c) establishment of a fund to provide financial support for operations to develop land or forest resources;

d) management of watercourses and lakes;

e) establishment and management of regional parks;

f) power;

g) planning of residual matter (waste) disposal;

h) any other jurisdiction, function or power that may be attributed from time to time to an MRC (Regional County Municipality) or successor body pursuant to the laws of Quebec.

Subject to provisions regarding the CRÉ-BJ (the Regional Conference of Elected Officers established for the territory of the Municipalité de Baie-James and the territories of the cities of Chapais, Chibougamau, Lebel-sur-Quévillon and Matagami) in this Agreement, the Regional Government shall, with respect to Category III Lands, exercise all the powers and have all the responsibilities of a CRÉ (Regional Conference of Elected Officers), as provided for in Quebec laws.

The Regional Government shall exercise the functions of a CRRNT (Regional Land and Natural Resource Commission), including the preparation of a PRDIRT (Regional Plan for Integrated Land and Resource Development), in respect of:

a) Category III Lands, and

b) the public lands situated in the territory of the Municipalities.

In this capacity, the Regional Government shall consult the Cree Nation Government with a view of harmonizing, as much as possible, its PRDIRT and the RLRUP of the Cree Nation Government.

Quebec and the Regional Government may negotiate the terms and conditions regarding the participation of the Regional Government in the preparation of the PATP (Public Land Use Plan) on Category III Lands.

The Regional Government shall possess all the powers required to fulfill the obligations stipulated in an agreement to which it is party with the Government of Quebec or, if the agreement at issue is one excluded from the application of the Act respecting the

Ministère du Conseil exécutif or for the conclusion of which prior authorization was obtained under this Act, with the Government of Canada or one of its ministers, agencies or mandataries.

Funding shall be provided by Quebec to support the Eeyou Istchee James Bay Regional Government in the manner stated in this Agreement.

The legal proceedings shall be definitively discontinued by the Cree parties thereto without costs, and Quebec undertakes to accept such discontinuance, without costs. The Dispute shall be definitively settled by the Cree parties thereto without costs, and Quebec undertakes to accept such settlement, without costs.

The Parties undertake to negotiate, within six (6) months of the coming of this Agreement, a complementary agreement to the JBNQA so as to include therein, in particular, the provisions of this Agreement.

Quebec undertakes to submit to and to recommend to the Assemblée nationale the special legislation relating to this Agreement and the amendments to its laws of general or specific application in order to ensure their consistency with this Agreement and the complementary agreement mentioned in this Agreement. Quebec shall make its best efforts to recommend this special legislation and these amendments to the Assemblée nationale without delay after the coming into force of this Agreement. Quebec shall consult the Cree Regional Authority with respect to the legislation to be recommended prior to the submission thereof to the Assemblée nationale.

This Agreement is neither a treaty nor a land claim agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982. However, the provisions of this Agreement that will be incorporated into the JBNQA shall have constitutional protection under sections 25 and 35 of the Constitution Act, 1982once the required amendments have been made to the JBNQA in accordance with this Agreement.

Bill 42 – An Act establishing the Eeyou Istchee James Bay Regional Government and introducing certain legislative amendments concerning the Cree Nation Government

On June 13, 2013, the Assemblée nationale enacted and adopted Bill 42 – An Act establishing the Eeyou Istchee James Bay Regional Government and introducing certain legislative amendments concerning the Cree Nation Government.

Grand Chief Matthew Coon Come of the Grand Council of the Crees (Eeyou Istchee) in his statement to the Committee on Planning and the Public Domain of the National Assembly of Quebec on Bill 42 stated:

“Bill 42 is the legislation that will implement the Agreement on Governance in the Eeyou Istchee James Bay Territory. Bill 42 is therefore legislation of fundamental importance, for it will define a new partnership in governance between the Cree Nation of Eeyou Istchee, our neighbours, the Jamésiens, the Gouvernement du Québec and all Quebeckers.”9

This bill establishes the Eeyou Istchee James Bay Regional Government in the stead of the Municipalité de Baie-James, as of January 1, 2014. It provides that the Eeyou Istchee James Bay Regional Government is a municipal body governed by the Cities and Towns Act, subject to the special provisions it sets out, and that the Regional Government has jurisdiction over Category III lands, that is, the territory of Municipalité de Baie-James as it existed on December 31, 2013, except for the Category II lands.

Rules governing the Regional Government’s council, in particular, rules concerning the council’s composition, the manner in which its members are designated and the distribution of votes among them are set out. For the first ten (10) years of operation of the Regional Government, representation and votes will be allocated equally between the Cree and Jamésiens. This allocation will be reviewed every ten (10) years in accordance with a formula to be agreed based on democratic principles and demographic realities. Until such an agreement has been entered into and implemented by legislation, the Cree and Jamésiens will continue to have equal representation and votes in the council. During the first five (5) years, Quebec will have non-voting representation on the council.

The Regional Government maintains essentially the powers currently exercised by Municipalité de Baie-James and may, in addition, affirm its jurisdiction regarding fields of jurisdiction belonging to a regional county municipality. The Regional Government may also, when requested to do so by the Cree community or the municipality concerned, affirm its jurisdiction regarding any municipal, local or regional jurisdiction on the territory of the Cree communities or the territory of Ville de Chibougamau, Ville de Chapais, Ville de Lebel-sur-Quévillon or Ville de Matagami, which are designated as the enclosed municipalities.

The Regional Government is deemed to act as a regional conference of elected officers for its territory and, where the functions exercised by a regional land and natural resource commission are concerned, it also acts in that capacity for the territory of the four enclosed municipalities.

In cases where the Regional Government affirms its jurisdiction regarding land use, specific government policy directions must be established by the Gouvernement du Québec in consultation with the Regional Government.

The Act respecting the Cree Regional Authority is amended so that the Cree Regional Authority will be known, as of January 1, 2014, as the Cree Nation Government. Certain powers with respect to Category II lands are assigned to the Cree Nation Government. In particular, it is provided that the Cree Nation Government may affirm its jurisdiction over all or part of Category II lands, with respect to any field of jurisdiction attributed by an Act to a local municipality or a regional county municipality.

If the Cree Nation Government affirms its jurisdiction with respect to the strategic vision statement and the land use planning and development plan mentioned in the Act respecting land use planning and development, these documents must be consistent with the policy directions, principles and objectives the Cree Nation Government determines, in consultation with the Cree communities and with the approval of the Gouvernement du Québec. The documents must be approved by the Minister of Municipal Affairs, Regions and Land Occupancy.

The Cree Nation Government is deemed to act as a regional conference of elected officers for the Cree and with respect to Category I and Category II lands. In that capacity, it establishes the Eeyou Planning Commission in lieu of the regional land and natural resource commission provided for in the Act respecting the Ministère des Affaires municipales, des Régions et de l’Occupation du territoire. The Commission’s function is to prepare a regional land and resource use plan for Category II lands, which replaces the regional plan for integrated land and resource development provided for in that Act. A specific process by which this plan is submitted to the approval of the Minister of Natural Resources is set out.

The Cree Nation Government is invited to take part in the development of the public land use plan for Category II lands and a specific procedure is established for that purpose.

With regard to local development, the regional conference of elected officers for James Bay and the Cree Nation Government may enter into agreements with the minister responsible for agreements concerning local development centres, the regional conference of elected officers may provide for the financing of its local development centre through contributions made by the Regional Government and the four enclosed municipalities and the Cree Nation Government may exercise jurisdiction over local development, instead of entrusting it to a centre. In doing so, the Cree Nation Government must take into account the policy directions, strategies and objectives it determines in consultation with the Cree communities.

The James Bay Region Development and Municipal Organization Act is amended to, among other things, encourage the Regional Government and the Cree Nation Government to participate in the activities of the Société de développement de la Baie James.

Lastly, various consequential, transitional and final provisions are introduced.

On January 1, 2014, the Act establishing the Eeyou Istchee James Bay Regional Government and introducing certain legislative amendments concerning the Cree Nation Government came into force.

The Cree Regional Authority became known as the Cree Nation Government and the Eeyou Istchee James Bay Regional Government was established in the stead of the Municipalité de Baie-James.

Agreement on Cree Nation Governance Between the Crees of Eeyou Istchee and the Government of Canada

On July 18, 2017, the Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government and the Government of Canada signed the ‘Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada.’

The Agreement was developed pursuant to and/or on the following number of principal purposes:10

1) The completion of the process for negotiations leading to an agreement concerning Cree Nation governance pursuant to Part 2 of Chapter 3 of the Agreement Concerning a New Relationship between the Government of Canada and the Crees of Eeyou Istchee;

2) Eeyou of Eeyou Istchee wish to address, in this agreement, local Cree and regional government arrangements on Category IA Land as well as certain provisions of the James Bay and Northern Quebec Agreement relating to the land regime governing Category IA Land;

3) Eeyou of Eeyou Istchee and Canada wish to enter into a nation-to-nation agreement which provides for the modernization of the governance regime on Category IA Land contemplated, at the local level, in Section 9 of the

James Bay and Northern Quebec Agreement and previously provided for in the Cree-Naskapi (of Quebec) Act.

4) This Agreement aims to promote greater autonomy and greater responsibility on the part of the Crees for governace on Category IA Land in the context of and in compliance with Section 9 of the James Bay and Northern Quebec Agreement.

Consequently, this Agreement sets out Cree local and regional government arrangements and the land regime on Category IA Land.

In summary, the Governance Agreement makes more efficient existing governance powers and procedures on Category IA lands under the James Bay and Northern Quebec Agreement and the Cree- Naskapi (of Quebec) Act. Arrangements regarding Cree local and regional governance on Category IA lands will be transferred from the Cree-Naskapi (of Quebec) Act into the Governance Agreement (and Cree Constitution). Once the Governance Agreement takes effect, the Cree-Naskapi (of Quebec) Act will no longer apply to the Cree beneficiaries, Cree First Nations or Category IA lands.

The Governance Agreement addresses the following main subjects:

1. Jurisdiction of the Cree First Nations and Cree Nation Government to make laws (instead of by-laws) on Category IA lands – existing arrangements will be maintained, save that Cree laws will not have to be submitted to the Minister of Indigenous Affairs;

2. Land regime on Category IA lands, including access and the grant of rights in lands and buildings – existing arrangements will be maintained;

3. Financial arrangements with Canada, including long-term commitments for Operations and Maintenance and Capital Grant funding.

4. Undertaking by Canada to recommend to Parliament the Governance Legislation which shall provide, among other things, that this Agreement is approved, given effect, declared valid and has the force of law and that the Cree Constitution is given effect and has the force of law.

Under the Governance Agreement, the Cree First Nations will keep the same local government powers, functions and responsibilities that they have now on Category IA lands. The Cree Nation Government will keep the same powers that it now has on Category IA lands concerning, for example, standards for essential sanitation and fire protection.

Pursuant to Chapter 26 (Cree-Naskapi Commission), the “Cree-Naskapi Commission shall, with respect to the Crees, investigate any representation submitted to it relating to the implementation of this Agreement and the Cree Constitution, including representations relating to the exercise or non-exercise of a power under this Agreement or the Cree Constitution and the performance or non-performance of a duty under this Agreement or the Cree Constitution, the whole in accordance with the provisions of subsection 165(2) to section 170 of the Cree-Naskapi (of Quebec) Act as it read immediately before the Effective Date, with such modifications as may be required having regard to the provisions of this Agreement.”11

Once the Agreement is approved, given effect, declared valid and has the force of law, in virtue of the Governance Legislation, the Cree-Naskapi Commission shall no longer prepare and submit to the Minister biennial reports on the implementation of the Cree-Naskapi (of Quebec) Act in accordance with subsection 171(1) of the said Act.

“During the period of development of the Governance Legislation, Canada and the Cree Nation Government shall examine, in collaboration with the Naskapi Nation of Kawawachikamach, the role of the Cree-Naskapi Commission provided for in Part XII of the Cree-Naskapi (of Quebec) Act as it read immediately before the Effective Date having regard to, in particular, the need to avoid duplication with processes or bodies provided for under this Agreement…”12

Constitution of the Cree Nation of Eeyou Ischee

Part 2 of Chapter 3 of the Agreement Concerning a New Relationship between the Government of Canada and the Crees of Eeyou Istchee provides that the Cree Nation will develop a Constitution which shall be effective as the fundamental law of the Cree Nation, shall be consistent with the Governance Agreement and shall come into force at the same time as the Governance Agreement. Consequently, Eeyou of Eeyou Istchee have developed the Constitution of the Cree Nation.

The Cree Constitution, for its part, starts with a short statement of key Cree values and principles. It goes on to set out arrangements regarding the exercise of the Cree right of self-government in relation to the administration and internal management of the Cree First Nations and the Cree Nation Government on Category IA lands.

These internal governance arrangements are currently set out in the Cree-Naskapi (of Quebec) Act and will be transferred into the Cree Constitution. These arrangements concern subjects such as procedures for making laws and resolutions, elections, meetings and referenda, financial administration and amendment of the Constitution.

It is important to note that the Cree Constitution can change over time if desired by Eeyou of Eeyou Istchee. This is because, unlike the Cree-Naskapi (of Quebec) Act, the Cree Constitution will not be set out in a federal law. Instead, it will be a purely internal instrument of Cree self- government. It will not be approved by Canada or Quebec. This means that Eeyou of Eeyou Istchee may change the Constitution if they wish to do so in the future in order to reflect changed conditions, without the participation of Canada.

The Governance Agreement, the Cree Constitution and the Cree laws adopted pursuant to them will all have the force of law and be binding on all persons. Together, they represent another step in implementing Cree self-government in compliance with the James Bay and Northern Quebec Agreement. They will provide the Cree First Nations and the Cree Nation Government with important tools to assume greater autonomy and responsibility in the governance of Category IA lands.13

Bill C-70: An Act to give effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada, to amend the Cree-Naskapi (of Quebec) Act and to make related and consequential amendments to other Acts

On February 14, 2018, the Minister of Crown-Indigenous Relations and Northern Affairs introduced in the House of Commons of Canada Bill C-70 which is the Governance Legislation contemplated by the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada. Bill C-70 gives effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada. It amends the Cree-Naskapi (of Quebec) Act to ensure that the Act no longer applies to the Crees of Eeyou Istchee and to make changes to certain aspects of the mandate of the Cree-Naskapi Commission to take into account the Agreement. It also makes related consequential amendments to other Acts.

Consequently, upon the coming into force of Bill C-70, the long title of the Cree-Naskapi (of Quebec) Act is replaced by the following: An Act respecting certain provisions of the Northeastern Quebec Agreement relating principally to Naskapi local government and to the land regime governing Category IA-N land and respecting the Cree-Naskapi Commission. This Act may be cited as the Naskapi and the Cree-Naskapi Commission Act.

Pursuant to Section 165 (1) of the Naskapi and the Cree-Naskapi Commission Act, the duties of the Cree-Naskapi Commission are described as follows:

“165 (1) Subject to subsections (2) and (3), the Commission shall

(a) with respect to Naskapi beneficiaries, 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; and

(b) with respect to Cree beneficiaries, as defined in subsection 2(2) of the Cree Nation of Eeyou Istchee Governance Agreement Act, investigate any representation submitted to it relating to the implementation of the Agreement, as defined in subsection 2(1) of that Act and the Cree Constitution, as defined in that subsection, including representations relating to the exercise or non-exercise of a power and the performance or non-performance of a duty under that Agreement or the Cree Constitution.”

Furthermore, Section 98 of the Act repeals Section 171 of the Cree-Naskapi (of Quebec) Act. Section 171 of the Cree-Naskapi (of Quebec) Act describes the duty of the Cree-Naskapi Commission to prepare and submit a biennial report to the Minister who shall cause the report to be laid before each House of Parliament.

In summary and for the purposes of clarity, Bill C-70 does not repeal or replace the Cree-Naskapi (of Quebec) Act. It uses another technique to deal with this Act.

Part 1 enacts the Cree Nation of Eeyou Istchee Governance Agreement Act.
This Act:

1) gives effect and force of law to the Cree Nation of Eeyou Istchee Governance Agreement and the Cree Constitution, which replace the Cree-Naskapi (of Quebec) Act for the Crees, Cree First Nations and Category IA lands; and

2) gives force of law to the laws adopted by the Cree First Nations and the Cree Nation Government under the Governance Agreement and Cree Constitution.

Part 2 deals with the Cree-Naskapi (of Quebec) Act. This Act is not repealed, but its title is replaced by the new short title, Naskapi and the Cree-Naskapi Commission Act.

Part 2 also amends many sections of this Act to remove references to the Crees, and to ensure that the amended Act applies only to the Naskapi.

Part 2 also preserves the Cree-Naskapi Commission, while modifying its duties so to eliminate the report to Parliament and continue its “ombudsman” function of investigating representations of Cree or Naskapi beneficiaries.

On March 27, 2018, Bill C-70: An Act to give effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada, to amend the Cree-Naskapi (of Quebec) Act and to make related and consequential amendments to other Acts went through its last stage or the third reading in the Senate.

The Bill comes into force when it receives Royal Assent. On March 29, 2018, Bill C-70 received Royal Assent.

Pursuant to Paragraph 6.2 of Chapter 6 (Payments by Canada) of the Agreement Concerning a New Relationship between the Government of Canada and the Crees of Eeyou Istchee, Canada shall pay to the Cree Nation Government or Recipient of Payments designated by the Cree Nation Government an amount of two hundred million dollars ($200,000,000) within thirty (30) days of Royal Assent of the Governance Legislation contemplated in Part 2 of Chapter 3 of the said Agreement.

Furthermore, pursuant to Section 7 (1) of Bill C-70, the Cree Constitution is given effect and has the force of law.

Summary and Conclusion

The spirit and intent of the James Bay and Northern Quebec Agreement and its related agreements requires 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 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 Eeyou to determine their own future within Canada and to govern themselves under institutions of their own choice and design.

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

Eeyou have a special spiritual relationship to their land … Eeyou Istchee. Eeyou also consider their culture, language and traditions as fundamental and central to their collective and individual identities. Therefore, 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 exclusively Eeyou or shared with others. The second involves greater control over matters that affect Eeyou in question: its culture, identity and collective well-being.

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

a) traditional Eeyou system of governance and authority for each Indoh-hoh Istchee (Eeyou Hunting Territories);

b) local government that involve a broad measure of Eeyou authority on an exclusive territorial base (Category IA and IB lands);

c) Eeyou Nation Government that involve a broad measure of Eeyou authority on an exclusive (Category IA land) and non-exclusive (Category II land) territorial base; and

d) public government (Eeyou Istchee James Bay Regional Government) that allow for significant Eeyou participation in decision-making over shared lands (Category III land) and resources.

Eeyou Governance is the process through which Eeyou make decisions that direct their collective efforts. Effective governance is about more than getting the job done. This is particularly true for 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 Eeyou of Eeyou Istchee.

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

a) The People for strategic vision, meaningful information sharing and participation in decision-making;

b) The Land for territorial integrity, economic realization and respect for its Spirit;

c) Laws and Jurisdiction for rule of law and expansion of jurisdiction;

d) Results-based and culturally aligned Institutions with transparency and fairness and effective inter-governmental relations; and

e) Resources that include human resources and financial management capacities with performance evaluation, accountability and reporting and diversity of revenue sources.14

The Centre 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.”15

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…”16

In view of current developments on governance of the Territory contemplated by the James Bay and Northern Quebec Agreement, its related New Relationship and Governance Agreements and the many challenges posed by Eeyou in establishing various forms of governments as an order of government in Eeyou Istchee and exercising good effective governance, Eeyou should:

a) continue to establish constructive working relationships with Canada, Quebec and the municipalities of the Territory; and

b) strengthen the governing capacity of their people and nation.

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:

a) education, awareness and training needs and programs;

b) human resource development;

c) establishment of formalized systems for Eeyou government accountability and responsibility to maintain integrity in government and public confidence. (To the extent deemed appropriate by Eeyou, strategies for accountability and responsibility in Eeyou government should reflect and build upon Eeyou customs, traditions and values);

d) developing the internal capacities of their governments for political, financial and administrative accountability;

e) securing sufficient financial resources and suitable fiscal arrangements that should be structured to provide for Eeyou self-reliance, equity and efficiency;

f) assuring a resource base upon which economic self-reliance and local autonomy can be based; and

g) seeking and achieving amendments to existing governance legislation and the Cree Constitution to improve governance, local administration and decision-making.

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

(a) formalize codes of conduct for public officials;

(b) establish conflict of interest laws, policies or guidelines;

(c) establish independent structures or agencies responsible for upholding and promoting the public interest and the integrity of Eeyou governments; and

(d) establish informal mechanisms to ensure understanding of Eeyou government goals, powers, priorities, procedures and activities, administrative decision-making and reporting systems. (As an example, the Commission would be willing to assist in the development and provision of orientation sessions with the new Chief and Council of the Eeyou local government.)

Eeyou governance has evolved dramatically over the past four (4) 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 some instances, 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 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 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 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 Eeyou of Eeyou Istchee have reclaimed governance as an aboriginal right and activity.

END NOTES

  1. This chapter is an amended update to Chapter 2 – Eeyou Governance in Eeyou Istchee of the 2014 Report of the Cree Naskapi Commission
  2. James Bay and Northern Quebec Agreement and Complementary Agreements, 2006 Edition Les Publications du Québec, paragraph 24.1.9 of subsection 24.1, Section 24, page 359
  3. James Bay and Northern Quebec Agreement and Complementary Agreements, 2006 Edition – Les Publications du Québec, paragraph 24.1.8 of subsection 24.1, Section 24, page 359
  4. Report of the Royal Commission on Aboriginal Peoples, Minister of Supply and Services Canada 1996, Volume 2 (Restructuring the Relationship) – Chapter 3 (Governance), pages 299 and 300
  5. Paragraph 2.5 of Chapter 2 (General Provisions) of the Agreement Concerning a New Relationship between le Gouvernement du Québec and the Crees of Quebec
  6. Paragraph 2.1 of Chapter 2 (General Provisions) of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee
  7. Paragraph 6 of Chapter II (Objectives and Principles) of the Framework Agreement between the Crees of Eeyou Istchee and the Gouvernement du Québec on Governance in the Eeyou Istchee James Bay Territory
  8. Paragraph 2 of Chapter II (General Provisions) of the Agreement on Governance in the Eeyou Istchee James Bay Territory between the Crees of Eeyou Istchee and the Gouvernement du Québec
  9. Speaking Notes of Grand Chief Dr. Matthew Coon Come to the Committee on Planning and the Public Domain of the National Assembly of Quebec on Bill 42, Quebec City, May 29, 2013
  10. The principal purposes flow from the Preamble of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada
  11. Paragraph 26.1 of Chapter 26 (Cree-Naskapi Commission) of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada
  12. Paragraph 26.2 of Chapter 26 (Cree-Naskapi Commission) of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada
  13. Summary – Cree Nation Government Agreement and the Cree Constitition – prepared by the Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government
  14. Discussion Document entitled ‘Principles to Support Effective Governance,’ National Centre for First Nations Governance, Summer, 2008, page 9
  15. Ibid, pages 8 and 9
  16. Report of the Royal Commission on Aboriginal Peoples, Minister of Supply and Services Canada 1996, Volume 2 (Restructuring the Relationship) – Chapter 3 (Governance), pages 199 and 200

The Cree-Naskapi Commission1986 to 2018

Overview

The Cree-Naskapi Commission was created by the Cree-Naskapi (of Quebec) Act, 1984 which was itself enacted in compliance with section 9 of the James Bay and Northern Quebec Agreement (JBNQA) and section 7 of the Northeastern Agreement (NEQA). These sections mandated federal legislation on local government on Category IA and IA-N lands.

Sections 157 to 172 of the Act established the Commission and spelled out its mandate. Section 165 contained the two main responsibilities of the Commission.

“165. (1) The Commission shall

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

(b) except as provided by subsections (2) and (3), investigate any representation submitted to in relation 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.”1

The Commission began operations in February of 1986 and carried out its responsibilities in accordance with those sections of the Act from its inception until March 29, 2018. At that time the Naskapi and Cree-Naskapi Commission Act, 2018 came into force. It provides a somewhat different mandate.

Establishment of the Commission

Although the Cree-Naskapi (of Quebec) Act was passed in 1984, the Commission did not begin operations until February of 1986 at which time the first Commissioners were appointed. They were:

• Chairman, (the late) Justice Rejean F. Paul, a Justice of the Quebec Superior Court and of the Supreme Court of the Northwest Territories, a former Vice Chair of the Law Reform Commission of Canada, and onetime Chief Prosecutor of the Quebec Commission of Inquiry into Organized Crime; and

• Commissioner, Robert Kanatewat, the former Executive Chief (Deputy Grand Chief) of the Grand Council of the Crees (of Quebec), a former Chief of Fort George (Chisasibi), the principal plaintiff in Kanatewat v. The James Bay Development Corporation et al, and a principal negotiator and signatory of the James Bay and Northern Quebec Agreement, and a successful business leader.

• Commissioner, Richard Saunders, the former Director of the Native Citizens Branch of the Department of the Secretary of State, former Deputy Director General of the Provisional Cree School Board, former Executive Director of the Alberta Human Rights Commission and the then Executive Director of the Alberta Indian Health Care Commission.

In 1997, Justice Paul left the Commission, Robert Kanatewat (pictured below, right) was reappointed Commissioner and one new member, Philip Awashish (bottom left) was appointed Commissioner, while Richard Saunders (centre) became Chairman.

• Commissioner Philip Awashish was a former Chief of Mistassini (Mistissini), a former Executive Chief (Deputy Grand Chief) of the Grand Council of the Crees (of Quebec), an organizer of the Cree fight for recognition of their rights during the development of the James Bay Project, and a principal negotiator and signatory of the James Bay and Northern Quebec Agreement.

Almost immediately after their initial appointments in 1986, the Commissioners were faced with the requirement to prepare their first report for submission to the Minister and tabling in Parliament. They decided that in order for the report on implementation to accurately reflect the views of the communities, they would conduct a series of Special Implementation Hearings. These were held during October, 1986 at the courthouse in Hull, Quebec. Similar hearings have been conducted every second year since.

The “Statement of Understanding”

The nature and extent of the Commission’s responsibilities were to be tested almost immediately.

During the 1986 hearings the most contentious issue raised was based on the ‘Statement of Understanding’ signed on August 9, 1984 in Eastmain by Grand Chief Billy Diamond on behalf of the Cree, Chief Joe Guanish on behalf of the Naskapi and Hon. Douglas Frith, Minister of Indian Affairs and Northern Development on behalf of Canada.

As mentioned previously, the JBNQA and the NEQA had required Canada to introduce self- government legislation for the Cree and Naskapi. That had been done as of 1984 when the Cree- Naskapi (of Quebec) Act became law. The Cree and Naskapi had taken the position that, because they were now responsible for various governance functions, the Act ought to include provisions specifying how funding requirements would be addressed. The federal government, for its part, said that a separate agreement would provide the funding guarantees which they were seeking.

Based upon that assurance, the Cree and Naskapi accepted the Act without financial provisions and subsequently negotiated a detailed ‘Statement of Understanding of Principal Points Agreed to by the Cree-Naskapi (of Quebec) Act Working Group’ (the Statement of Understanding) to address funding issues. Before the formal signing ceremony took place, the Deputy Minister and other senior officials of the Department of Indian Affairs and Northern Development had reportedly advised their Minister not to sign the Statement of Understanding. Because the Crees were aware of this, Grand Chief Billy Diamond wanted the Minister’s clear and informed consent to be on the public record. At the formal ceremony just before the signing, he said to the Minister and to the assembly:

“...the Deputy Minister has refused to sign the Statement of Understanding in respect to funding. Will the Minister now sign that Statement of Understanding and commit the federal government to those figures that were negotiated and arrived at; or will the Minister direct his Deputy Minister to sign it?”2

The Minister then replied:

“I was prepared for this Chief Diamond, and show me the piece of paper and I will sign.”3

Following the formal signing, the Department of Indian Affairs and Northern Development began a concerted effort over the next two years to renege on those parts of the Statement which it did not like. The process dragged on until a new Minister took office.

He eventually wrote to Grand Chief Diamond on October 23, 1986 saying:

Your advisors know and, I hope have informed you that the memorandum [the Statement of Understanding] is not viewed by the Government of Canada as a legal obligation but we have, to the maximum extent possible used it as a guideline in our financial relations.”4 (Emphasis added)

The Grand Council of the Crees (of Quebec) raised their concerns about this unilateral repudiation of a clear commitment with the Commission at our first Special Implementation Hearings. An Assistant Deputy Minister appearing at the hearings reiterated the decision of the Department to renege on parts of its agreement saying:

“The Government of Canada does not recognize [the Statement of Understanding] as a fully binding undertaking.”5

This sort of conduct has undermined the relationship between First Nations and the Department of Indian Affairs and Northern Development as well as the credibility of the Government of Canada and has for many years, made skepticism and mistrust by First Nations the norm.

The Commission reviewed the oral and documentary evidence, including a video of the Minister signing the Statement, and made our finding that:

“...the Commission is of the opinion that the Statement of Understanding is both a moral and a legal obligation of Canada.”6

In our 1986 Report we noted the fact that these types of practices had created serious doubts about the integrity of government. We said:

“In the course of Canadian history, a notion persists that governments make promises to induce natives to surrender their lands and other rights and then routinely break these promises, frequently hiding behind legal technicalities. Regrettably, the evidence supporting this notion is extensive.”7

The Supreme Court of Canada said something similar in its 1996 Badger decision:

“...the honour of the Crown is always at stake in its dealings with Indian people.” “It is always assumed that the Crown intends to fulfill its promises. No appearance of ‘sharp dealing’ will be sanctioned.”8

“Cowie” Report

In creating the Commission, the Act, in section 172, provided that after five years an inquiry was to be conducted into “the powers, duties and operation of the Commission”. In the summer of 1990 the Inquiry into the Cree-Naskapi Commission was set up with Ian D. Cowie as Chair and Mark Dockststor and Tony Price as Commissioners. The Inquiry consulted numerous community and government representatives in the preparation of its report. This report was submitted to the Minister who tabled it in the House of Commons and the Senate on April 11, 1991.

The report contained a detailed review and analysis of the Commission’s powers, duties and operations. Perhaps the most significant recommendations were the following:

• the CNC’s mandate should be expanded to explicitly include the jurisdiction to consider matters arising under the JBNQA and the NEQA;

• consideration should be given to empowering the Commission to issue subpoenas and to make binding decisions;

• the Commission should explicitly be given broader dispute resolution functions, and

• instead of reporting every second year to Parliament on implementation, the Commission should report every 3 or 4 years; and

• funding for the Commission should be increased to enable it to fully carry out its responsibilities.

It is worth noting that while the recommendations were not addressed at the time, a number of them came into effect by other means.

The issue of jurisdiction to deal with issues arising under the JBNQA and the NEQA is discussed below.

The issue of funding was never renegotiated in relation to its adequacy for properly carrying out the responsibilities of the Commission but it was increased marginally as a result of direct discussions with Minister Stewart in 1998. At other times it has been increased in accordance with the federal formula relating vaguely to increased costs.

The Question of the Commission’s Jurisdiction

During the early years of its operations, the Commission faced a number of challenges to the scope of its jurisdiction. This is a normal occurrence for most commissions, tribunals and boards because those whose actions they examine naturally question their right to do so. In the case of the Cree- Naskapi Commission, many issues were raised by communities to the effect that government was failing to honour its obligations under the James Bay and Northern Quebec Agreement or under the Northeastern Quebec Agreement. The Department of Indian Affairs took the position that the Commission had no jurisdiction to consider any matter arising out of the Agreements. The Commission asserted that since it had the duty to consider matters arising under the Act, and that section 21. (j) of the Act stated:

“21. The objects of a band are (j) to exercise the powers and carry out the duties conferred or imposed on the band or on its predecessor Indian Act band by any Act of Parliament or regulations made thereunder, and by the Agreements.”9

Therefore the Commission could consider complaints concerning whether or not a band was exercising, or indeed could exercise, its powers and carry out its duties under the Agreements.

As late as February 13, 2006 however the Department continued to insist, as the Director of the James Bay Implementation Office put it, that:

“...as you know, INAC’s view has been that the Commission does not have the jurisdiction to investigate and make recommendations on the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, and that is still the federal position.”10

That was a clear statement of the government’s position when speaking in Canada. Strangely the government took the opposite position when explaining to the United Nations how well it implemented treaties and agreements with Indigenous peoples. At a presentation to the United Nations in mid-December, 2003, Canada’s Representative had said:

“The first of the modern treaties, the James Bay and Northern Quebec Agreement (JBNQA), provides for a monitoring mechanism, namely the Cree-Naskapi Commission.”11

This was made even more explicit as Canada also told the United Nations:

“Part XII of the Cree-Naskapi (of Quebec) Act provided for the creation of the Cree-Naskapi Commission to privately investigate complaints arising from the James Bay and Northern Quebec Agreement, the Northeastern Quebec Agreement or the Cree-Naskapi (of Quebec) Act implementation or lack thereof.”12

Canada’s Handling of the Commission’s Biennial Reports

Another area of dispute was the view of the Department for many years that it had every right to ignore the Commission’s reports including recommendations addressed to the Department itself.

This type of problem, also seen in the 1986 Statement of Understanding issue, made the relationship between the Commission and the Department a strained and contentious one for most of the period from 1986 to 1998.

On October 5, 1998 we met with Minister Stewart and submitted our 1998 Report. She assured us that her officials would review the report and provide a written response to each of our recommendations. On November 27, 1998 she wrote to the Commission confirming that the review was being done. On January 11, 1999 she wrote, yet again, confirming that a response was coming. The response was never received.

The Commission testified before the House of Commons Standing Committee on Aboriginal Affairs on April 24, 2001. As part of our presentation, we raised our concern that the Minister’s undertaking was being ignored by her officials.

On May 10, 1991 the Standing Committee called the Director General of the Implementation Branch of Aboriginal Affairs. He acknowledged that no written response had been provided. He was asked by John Godfrey MP, the Vice Chair of the Committee, “Can you tell us why there was not a written response as one might have expected from the Minister’s directive to your branch?”13 The reply he got was that the Act did not specifically call for a written response, and that the thinking on how to deal with the Commission’s report had been the subject of “uncertainty and struggle” within the Department.

Another MP, Benoit Serre after outlining what had taken place, summarized his views by saying:

“I feel that this is truly unacceptable. Regardless of what you know the legal requirements are, I think when commissions like this one or committees of Parliament present reports, certainly the departments and officials have a duty to respond and to respond in a timely manner.”14

At a subsequent meeting of the Standing Committee John Godfrey MP provided an update on what he was proposing to do:

“You will all have received a notice of motion to create a report by this committee that would have had the effect of asking the Department of Indian Affairs and Northern Development to respond to the Cree-Naskapi [Commission].

I had a chat with the Minister last night, and rather than proceeding in the way in which I proposed, which is a little bit aggressive, actually, and since we want to get along reasonably well with the Minister…

He [the Minister] has agreed that if we send him this letter that I have drafted, [asking for a response to the Commission Report] he will respond favourably.”15

Since that time, the Department has provided written responses to the recommendations in each of the Commission’s reports.

In this case a Parliamentary committee did its job by insisting on sensible and timely action by officials. That the whole matter had to be brought to Members of Parliament merely to get reasonable action taken is a reason to give serious thought to policy and operational accountability legislation similar to existing law for financial accountability.

Representations, Concerns and Complaints

The Commission’s responsibility to investigate representations is the basis upon which individuals, Cree and Naskapi governments and others initially approach the Commission with a concern. Understandably only a very small proportion of these end up as formal “investigations” under the Act.

Sometimes someone will approach a Commissioner either in person or by phone, email etc. with a question, concern or complaint. More often contact will be made with the Commission office. Typically there will be a question about whether the Commission can do anything about a problem. Often the first response will be to explain what the Commission can and cannot do under the Act. Very often it will be necessary to point out that the Commission does not and cannot provide legal advice. Sometimes it is suggested that the concerned person should review the relevant sections of the Act and then decide whether or not to pursue the matter through CNC processes or a more suitable alternative.

Often staff or a Commissioner will simply explain where to find a relevant provision of the Act, suggest alternatives to formal proceedings under the Act or provide other information. If it appears that the matter may be within the Commission’s jurisdiction, the complainant will be advised on the Commission’s process.

When a formal representation is made, a pre-hearing is usually held at which the evidence supporting the need for an investigation will be presented. The views of any respondent party will also be heard. After this, the Commissioners will review the transcripts of the pre-hearing along with any written evidence presented and make a decision on whether to accept the matter as a representation and proceed to a full investigation. The Commission has the ability to request, but not to compel witnesses to appear, produce evidence etc. Since the process began in 1986, only once has anyone refused to appear. (This was a federal official.)

After a hearing takes place, the Commission will prepare a report on its findings, recommendations and conclusions. This report is then provided to the parties as well as to the Minister.

Over the period since 1986, the Commission has dealt with hundreds of inquiries, informal complaints and requests for advice. During the same period, dozens of formal representations have been investigated. In all but two cases the recommendations made have been followed by the parties.

Cree-Naskapi Commission Policy Discussion Papers

In the course of hearing representations concerning the exercise of powers and the performance of duties, the Commission becomes aware of common themes and on-going problem areas. When we feel that we are making similar or related recommendations repeatedly, we often produce a discussion paper to encourage some discussion about the issue and hopefully about better ways to address it.

Individuals frequently complain, for example, about the conduct of elections in their communities. The Commission released a discussion paper on this topic on September 22, 1999. Another example involved a dispute between an individual Cree First Nation and a Cree entity operating in all the Cree communities. Rather than use internal Cree processes, the entity opted to go to an outside body, (a Court) to adjudicate an internal Cree matter. The Commission has produced a discussion paper covering this type of issue. A summary of the contents of that paper are included in Chapter 5. Some of the discussion papers produced have included:

• Crown-First Nations Negotiation of Treaties and the Constitution of Canada

• Revenues and Funding of First Nations and their Agencies

• Aboriginal Commissions, Tribunals and Boards: The Need To Adapt Administrative Law and Practice to Aboriginal and Treaty Rights

• Proposal for a Policy Management Accountability Act

• Eeyou/Eenou First Nation (Traditional and Customary) Law Respecting Family and Related Issues

• Matrimonial Real Property Issues in Relation to Category IA and IA-N Lands

• Local Government Elections of the Cree and Naskapi (First) Nations and the Cree-Naskapi (of Quebec) Act

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

The Impacts of Legislative Changes

The original Cree-Naskapi (of Quebec) Act came into force on June 14, 1984. Amendments to the Act came into force in 2009. These enhanced the jurisdiction of the Cree Regional Authority (CRA). For the Commission, this meant that representations concerning the CRA could be considered on a similar basis to representations concerning a band.

As noted earlier, the original Act (as amended) remained in force until March 29, 2018. On March 29, 2018 new legislation came into effect. The Cree Nation of Eeyou Istchee Governance Agreement Act gave the force of law to both the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada and the Cree Constitution. Companion legislation, the Naskapi and Cree-Naskapi Commission Act,

in effect continued the original legislation insofar as it applied to the Naskapi Nation of Kawawachikamach. It also provided for a revised mandate for the Cree-Naskapi Commission.

Under the terms of the amended legislation the mandate of the Commission was changed in two significant ways. First, the 2018 report on implementation of the Act and the Agreements submitted to the Minister to be tabled in Parliament would be the last such report. Secondly the duty of the Commission to hear representations arising out of the Naskapi and Cree-Naskapi Commission Act would continue as before in relation to the Naskapi. In relation to the Cree, the Commission would now hear representations relating to the implementation of the Cree Nation of Eeyou Istchee Governence Agreement Act as well as relating to the exercise or non-exercise of a power and the performance or non-performance of a duty under the Agreement or the Cree Constitution.

Conclusion

The Cree-Naskapi Commission has, over the past three decades, prepared for tabling in Parliament sixteen (16) biennial reports in Cree, Naskapi, English and French.

In the early years of its existence it faced a number of challenges to its jurisdiction to hear representations arising out of the Agreements. This issue is now resolved.

The Commission spent a decade arguing that the Department ought to respond, in writing, to those of its recommendations which were directed to the federal government. This issue is now resolved.

Beginning in 1998, the Commission testified before the Standing Committee of the House of Commons six (6) times and the Senate twice. It was mainly due to the intervention of the House Standing Committee that the issue of a government response to our reports was settled. These appearances before the Committees served to focus attention on specific issues raised during our Special Implementation hearings and elsewhere. They also made possible the permanent inclusion of these issues on the official public record.

The Commission has heard innumerable issues raised by community members, Chiefs and Councils, the Grand Council of the Crees, Canada and others. Dozens of these have resulted in formal investigations under the Act. In almost every case recommendations made have been followed by the parties. Additionally a great many disputes and concerns have been resolved informally without the need for formal investigations under the Act.

The Commission has routinely provided information to communities, to Canada, to individuals and to students on its work, the Act and related matters.

The Commission has also, at the request of the parties, mediated disputes, observed an election, provided information sessions, briefed Chiefs and Councils and reported regularly to Annual General Assemblies. We have, on a number of occasions, briefed other interested First Nation groups on the Commission process and related matters.

While many issues have been resolved, a few persistent concerns remain unsettled. The supply of new housing as well as the condition of existing housing have continued to be major issues in most communities for the past thirty (30) years. Some very specific matters also remain unresolved year after year. The painstakingly slow progress on the “Block D” site

decontamination and land transfer at Chisasibi is still dragging on after many years of limited progress.

Based on the need to remain informed on developments in Aboriginal law as it relates to our responsibilities, the Commissioners, from time to time attend Aboriginal law and policy forums and conferences.

While there have been examples of matters in which the outcome was not all that was wished for, in our view, the overall success of the Commission in carrying out its mandate has been more than satisfactory.

END NOTES

  1. Cree-Naskapi (of Quebec) Act, section 165 (1), (a) and (b).
  2. Cree-Naskapi Commission, 1986 Report of the Cree-Naskapi Commission, Appendix B, (Transcript of the video tape recording of the signing of the Statement of Understanding at the Annual General Assembly of the Grand Council of the Crees (of Quebec) and the Cree Regional Authority, August 9, 1984, Eastmain, Quebec, p. xi Available on the Commission’s website: www.creenaskapicommission.net
  3. Ibid, p.xii
  4. Ibid, p. 22
  5. Ibid, p. 22
  6. Ibid, p. 27
  7. Ibid, p. 36
  8. R. v. Badger, [1996] 1 S.C.R. 771
  9. Cree-Naskapi (of Quebec) Act, section (21), (j)
  10. Cree-Naskapi Commission, 2006 Report of the Cree-Naskapi Commission, p. 12
  11. Ibid, p. 12
  12. Ibid, p. 12
  13. “Hansard,” Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, May 10, 2001, p. 3
  14. Ibid, p. 9
  15. “Hansard,” Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, May 15, 2001, p. 1

Dispute Resolution

July 18, 2017 marked the formal signing of the Cree Canada Governance Agreement which provided for the recognition of a broader range of the self-government powers of the Cree Nation of Eeyou Istchee both by its own terms and by its acknowledgement of the authority of the Cree Constitution. The Agreement, including the Cree Constitution, is being given effect and the force of law by the Cree Nation of Eeyou Istchee Governance Act. The Act also provides for the continuation of the Cree-Naskapi Commission with some changes to its powers and duties.

With the resumption of more of its inherent powers of self-government the Cree Nation of Eeyou Istchee will increasingly have to develop structures and processes to resolve internal disputes. As things stand at the present time, the Cree-Naskapi Commission plays a significant role in this process. This means investigating representations which are submitted to it and making findings and recommendations which are then provided to the parties and to the Minister.

The Basis of Current and Future Dispute Resolution Roles of the Cree-Naskapi Commission

The dispute resolution mandate of the Cree-Naskapi Commission from 1986 to 2018 was based upon section 165 (1) (b) of the Cree-Naskapi (of Quebec) Act, which reads as follows:

“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.”

The Cree Nation of Eeyou Istchee Governance Agreement Act of 2018 provides, among other things, that the Cree Nation Governance Agreement and the Cree Nation Constitution are “given effect” and declared to have “the force of law”. Section 165 (1) of the Cree-Naskapi (of Quebec) Act quoted above is replaced with the following:

“165 (1) Subject to subsections (2) and (3), the Commission shall (a) with respect to Naskapi beneficiaries, 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; and (b) with respect to Cree beneficiaries, as defined in subsection 2 (2) of the Cree Nation of Eeyou Istchee Government Agreement Act, investigate any representation submitted to it relating to the implementation of the Agreement, as defined in subsection 2 (1) of that Act and the Cree Constitution, as defined in that subsection, including representations relating to the exercise or non-exercise of a power and the performance or non-performance of a duty under that Agreement or the Cree Constitution.”

The changes in the mandate are that, insofar as the Crees are concerned, instead of investigating representations based upon the Cree-Naskapi (of Quebec) Act, the Commission will investigate representations arising out of the Governance Agreement and the Cree Constitution. Insofar as the Naskapi are concerned the mandate will continue to be the investigation of representations arising out of the Naskapi and Cree-Naskapi Commission Act.


The duty to prepare biennial reports on implementation for submission to the Minister and tabling in Parliament is not part of the process included in the new legislation. In short the duties of the Commission, in relation to the Cree are evolving as Cree governance evolves.

Broader Issues of Dispute Resolution

During the past thirty-two years the Commission has dealt with representations under the Cree-Naskapi (of Quebec) Act. As we move into what will probably be a similar but expanded responsibility, we offer some ideas for the future evolution of dispute resolution in the context of the resumption of fuller self-governance. While these ideas are based upon the Commission’s experience and are mainly for consideration by the Cree and the Naskapi, they may be of value as First Nations elsewhere in Canada consider a fuller use of their own inherent jurisdiction.

In its 1996 Report, the Royal Commission on Aboriginal Peoples (RCAP) made the following observation:

“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, [Aboriginal] nation structures.”1

The observations of the Royal Commission on Aboriginal Peoples (RCAP) quoted above provide the context for the ideas that the Cree-Naskapi Commission is putting forward for discussion at this time. Our experience tells us that the issue, so well expressed by RCAP, is that all commissions, tribunals and boards (CTBs) created as a part of an Indigenous nation’s governance structure must arise from the values and preferences of that nation rather than merely being adjusted reflections of the approach of other Canadian jurisdictions. Similarly the processes employed need to originate in the Cree, Naskapi or other First Nation and not in the procedures preferred by someone else. Differentiated approaches are not really something beyond the Canadian experience. They are already employed, for example, in the use of the civil law in Quebec and the common law in other provinces. Variations among common law provinces further make the point. Finally the actual governing laws must be consistent with the Constitution including in particular, the Aboriginal and Treaty Rights provisions of section 35 and section 25. Within these parameters, there is wide scope for the exercise of the inherent right of self- government including the use of traditional and customary law and contemporary values as well as “western” approaches if and where desired in designing dispute resolution structures and procedures.

Background

For the most part, 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, Western European ideas of natural justice, some specialized administrative law as well as specific provisions in many of the statutes creating the “mainstream” commissions, tribunals and boards. All of this has been woven into a reasonably coherent body of law by a number of court decisions.

The guiding principles of Canadian administrative law revolve around such concepts as “fairness.” This concept is, of course, a core value in Aboriginal communities as well. The problem arises because the Euro-Canadian application of this and other concepts in practice does not always fit in Aboriginal communities.

Concepts of fairness for example include specific criteria such as; no person should be a judge in his own case, no one should be the subject of a negative decision without having had an opportunity of knowing the issues to be decided and the right to be heard on his own behalf, everyone has the right to timely legal advice etc. These criteria and others, taken together, generally help to ensure fairness in the work of hundreds of “mainstream” CTBs with which all Canadians are familiar. These include bodies such as the CRTC, various Human Rights Commissions, the National Energy Board, the Ontario Municipal Board, the Immigration and Refugee Board, local Planning Boards, Assessment Appeal Boards etc. In circumstances in which an individual feels that he has not received justice from a CTB, he can often appeal to a specialized appeals tribunal, occasionally to Cabinet and in any event to the courts for judicial review or other legal remedy. Although there is always room for improvement, the system overall is fair and reasonable for most Canadian jurisdictions. It is not however reasonable in some circumstances in Aboriginal communities.

In recent years a significant body of Aboriginal and Treaty Rights law has begun to develop in Canada partly from common law concepts but more particularly out of the case law arising from the application of the Aboriginal and Treaty Rights provisions contained in section 35 of the Constitution Act, 1982.

In the last quarter century, with the advent of lands claims settlements, modern-day treaties and self-government legislation, there has been an explosion in the number of Aboriginal CTBs. At the same time, the post 1982 evolving law has, among other things, made the recognition of the inherent right of self-government essential and inevitable. This, in turn necessarily includes the right of First Nations to employ their own ways of resolving disputes, exercising the authority to regulate certain activities – in short, the right to establish and operate CTBs within the Constitution but according to their own laws, traditions and preferences.

The self-government right of First Nations is now not only protected by the 1982 constitutional provisions but has acquired support at the international level through Articles 4 and 5 of the United Nations Universal Declaration on the Rights of Indigenous People, which say:

Article 4 “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their automous functions.”

Article 5 “Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions … ”

Increasingly the application of Aboriginal and Treaty Rights law to Indigenous matters coming before “mainstream” CTBs has highlighted the importance of modifying the use of general administrative law to respect “section 35 rights” in such matters. The “duty to consult and to accommodate” recognized by the courts is, to some extent, an excellent example of this trend.

Some modification of the processes of the “mainstream” CTBs in Indigenous cases before them is reasonable, and indeed has begun to be required and defined, as for example in the Clyde River decision, First Nations and other Aboriginal jurisdictions have a much broader ability to design the structures, processes and governing laws of their own CTBs to meet their own customary, traditional and contemporary values and preferred ways of doing things. While some Indigenous jurisdictions may choose to use a few or many Euro-Canadian

administrative law structures or processes – it will be, to a large extent, their choice.

Examples of Practical Questions Facing Aboriginal CTBs

A reasonable question at this point could be: “Let’s see a few examples of why Aboriginal jurisdictions need to use a different approach to running a CTB than other jurisdictions in Canada.”

Fairness is a fundamental value, we would argue, for both “mainstream” and Aboriginal CTBs. How to arrive at fairness can be an area of critical difference. Some examples may help to explain.

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, opening and closing of nominations and (after a specified number of days) for voting. Failure to follow these dates will mean that the election will not have been held in accordance with the law and could well be challenged. This may be entirely reasonable in most jurisdictions. In an Aboriginal community, it may be customary if there is a death in that community, to postpone any public function (including a nomination date or an election date for the Chief and Council) for a day or two. Typically a standardized “western” election law will not recognize this. Customary law or contemporary practice on the other hand may embrace it. An Aboriginal CTB will often have to resolve any challenges.

Most CTBs operate on the basis that where a multi-member panel considers an issue, it will discuss the evidence etc. and that, if there is not consensus, a simple majority will determine the CTBs decision. Often an Aboriginal CTB will want to operate on the basis that extra effort must be made to achieve a consensus as the basis for decision.

In virtually all CTBs across Canada, the principle of fairness includes the concept of not being a judge in one’s own case. This is almost always extended from “one’s own case” to include the case of anyone related by blood, marriage, affinity, business relationship, close friendship etc. In jurisdictions with populations in the tens of thousands or millions, the probability of a relationship is low. In larger 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, because many people are related or close friends etc.Other paths to fairness must sometimes be found – temporary substitute panel members, the fullest possible disclosure and transparency, extremely rigorous consideration of the evidence, very detailed reasons for the decision, and so on.

At a broader level Indigenous CTBs, unlike their “mainstream” colleagues operate on a day-to-day basis within the framework of Aboriginal and Treaty Rights law, specific Indigenous legislation, treaty and land claim settlement provisions, as well as, with a greater or lesser awareness of tradition and custom and a knowledge of “community standards” which are frequently distinctive in some ways from those of other communities.

These are only a few examples of why First Nations and other Indigenous jurisdictions may choose to use somewhat different approaches when determining the structures and processes that they create to carry out functions of dispute resolution, administrative decision review, regulatory activity, and other matters.

The Question of Independence

As First Nations and other Indigenous jurisdictions increasingly consider the establishment of administrative commissions, tribunals and boards within the context of exercising their inherent right to self-governance, the first issue that must be addressed is the ability to establish and defend the independence of the CTB. This will most frequently be their independence vis-a-vis the federal and provincial governments. Over time, as more First Nations develop their own constitutions along with the CTBs they consider necessary, the issues of independence will involve independence from the Government of the First Nation itself.

Most CTBs are established to ensure that regulations are applied fairly and disputes resolved or recommendations or decisions made with a credible degree of arm’s length independence from government. The majority of CTBs will have to clarify and defend that independence on a regular basis. The standard line departments of government will, in the nature of things, try to ensure that as many as possible of the activities that in any way relate to their mandate are under their control. CTBs represent to many government officials a threat to their control of what they consider to be their turf or a threat to their ability to control the public perception of how they carry out their duties and exercise their powers. While these conflicting tendencies apply to a greater or lesser extent to most CTBs, they are of particular importance to Indigenous CTBs in their relations with the federal and provincial departments and agencies who have had basically unfettered and paternalistic control (especially through the Indian Act) over the affairs of Indigenous communities for many years and who now must accept the fact of the inherent right to self-government.

The credibility and effectiveness of any commission, tribunal or board will depend upon many factors. The extent to which its decisions are wise, practical and lawful will of course always be a major factor. Independence and the appearance of independence are critical. In the case of

Indigenous CTBs, they are an important part of the resumption of self-government. As such, they have an especially great challenge, in terms of their credibility, to be and appear to be independent of the federal and provincial governments and increasingly of their own governments. They must also be both a part of the self-governance structures and at the same time be able to maintain the degree of the arm’s length independence contemplated in the First Nation’s Constitution or other arrangement by which the nation exercises its inherent right.

The amount of real independence which Indigenous CTBs achieve will depend upon four main factors:

• the legal basis by which they were established and can be terminated;

• the methods of appointment and removal of their members;

• the nature and clarity of their mandates; and

• the source(s) and control of their funding.

Each of these factors will be important both with regard to independence from the federal or provincial government and with regard to maintaining their arm’s length from an Indigenous government.

Legal Basis for Establishing and Terminating Indigenous CTBs

The method used to create an Indigenous CTB as well as the process by which it can be terminated are among the most important factors affecting its independence especially when its decisions or mandate are being challenged.

Clearly a body created by a “section 35” protected treaty or agreement has extremely strong guarantees of its existence. The process of amending treaties will normally ensure that the consent of all the parties 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 free, prior and informed Indigenous consent but it is normally an open, public process which will usually involve the opportunity for input from interested parties. These benefits of having a legislative base are much more unreliable in today’s political culture where so-called “omnibus bills” can bury important legislative changes in massive unrelated “budget bills”.

CTB-creating legislation which the government was required to introduce under the terms of a “section 35” treaty or agreement (the Cree-Naskapi Act) is arguably in a stronger position than ordinary legislation. The recently passed Cree Nation of Eeyou Istchee Governance Agreement Act would appear to offer rather less protection.

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 the independence of such CTBs. This is not normally an option which a First Nation should accept.

Additionally, some CTBs are created by Ministerial directive. These can of course be terminated or have their mandates changed very easily. This approach is totally incompatible with any concept of self-government.

A parallel set of issues exist where a CTB is created by a First Nation or other Indigenous government. Those using this approach will need to consider creation by First Nation Constitution or similar instrument, First Nation law, Council resolution, with a view to achieving the desired degree of independence. Clearly, creation by inclusion in a First Nation Constitution will provide greater independence than creation through a simple law or resolution. The real difference of course is that no external authority is involved.

In terms of the possible desirability of the termination of a CTB (as for example when it is no longer needed), there needs to be an arms length method by which its necessity and effectiveness can be assessed. Clearly those who have been parties appearing before it, while having input, should probably not be the final authority on determining whether to terminate it. In the case of the Cree-Naskapi Commission, the Cree-Naskapi (of Quebec) Act provided in section 172,

“172. Within six months after the fifth anniversary of the coming into force of this Part, the Governor in Council shall appoint a person or persons to inquire into the powers, duties and operation of the Commission.”

The section also provided that, within six months, the inquiry was to submit its report including recommendations to the Minister who was then required to table it in Parliament. Clearly while other approaches would need to be found for the internal First Nations CTBs, the sections of the Act quoted show the degree of independence required to review the desirability of termination or mandate change etc. for these bodies.

Methods of Appointment and Removal of CTB Members

Almost as fundamental to the independence of CTBs as the means by which they are established and terminated is the method by which their members are appointed and dismissed. Some examples are illustrative. In some cases different members are appointed by different parties sponsoring the CTB. The British Columbia Treaty Commission is the best known example of this approach. In this case the First Nations, Federal and British Columbia governments each appoint Commissioners.

The appointment of members of the Cree-Naskapi Commission is provided for in the Cree-Naskapi (of Quebec) Act, which requires that members be “… appointed by the Governor in Council on the recommendation of the Cree Regional Authority and the Naskapi Band”. Clearly only persons recommended can be appointed. The Act also provides that, “A member may be removed for cause.” This means, in a practical sense, that removal is only possible for criminal or other serious misconduct and cannot be based upon whether Commission findings or recommendations are acceptable or not to any authorities. The term is for two years and making or not making a reappointment is by the same process. The new legislation continues this process.

Some appointments are by order-in-council with or without consultation. Some are made by Ministerial letter or directive. Neither of these provides much independence when any serious challenge arises and are not normally appropriate for First Nations.

Similar differences in methods of appointment as they affect independence will arise for members of CTBs appointed under various exercises of the inherent right. Choosing the option needed to achieve the degree of arm’s length status wanted will be an important matter to consider. Again, the real difference is that in this case no external authority is involved unless determined by the First Nation to serve its needs.

Nature and Clarity of Mandates

First Nations need to ensure that the mandates of their CTBs are as clear and precise as possible in order to avoid disputes over the nature and scope of their powers and duties. This can become critical if a matter before a CTB is seen to have a political component.

Control of Funding

The funding of CTBs in almost every case comes from federal or provincial governments. In virtually every example that means that the funding is subject to a wide variety of political and bureaucratic discretion. Although a CTB may have legal independence, this may in practice mean very little if its funding is in the hands of others. Parliament and the legislatures rightfully regard their control over public spending as one of their most important and unchallengeable powers. Clearly CTBs by their nature cannot sell goods and services, solicit donations or hold bingos to fund themselves. They have no practical alternative to government(s) funding. The control of the public purse by Parliament is a given. The need of CTBs for relative independence is a given. What is the solution? The Cree-Naskapi Commission does not have a definitive answer, but a few practical answers are evident.

Present day arrangements are increasingly putting large multi-year funding packages in the hands of First Nations governments. The “Paix des Braves” between the Cree of Eeyou Istchee and Quebec involves a fifty year funding guarantee. The parallel New Relationship Agreement between the Cree and Canada is for twenty (20) years. It is worthwhile to consider including Aboriginal CTB funding in any similar long-term funding arrangements.

At the present time a variety of funding arrangements are being used. These include: “fixed contribution funding”, “flexible contribution funding” and “block contribution funding.” Each of these has significant limitations which constitute practical constraints on the independence of the CTBs. Any funding arrangement offered by government should be carefully considered from the perspective on its impact on CTB independence especially in contentious circumstances.

In the absence of arrangements such as the Crees of Eeyou Istchee examples, Indigenous CTBs should always push for the longest term possible (at least five (5) years) for their funding arrangements. They should also seek grant agreements as opposed to other forms of funding. Finally, while it is not unreasonable to submit a workplan as a simple description of what is being funded, it is not reasonable, in the context of self-government, for funding to be contingent upon government approval of the workplan. Approval of the workplan is a function of the First Nation(s) involved and not the government funding agency.

The Need for Binding CTB Decisions

The experience of the Cree-Naskapi Commission with its dispute resolution function has been that there is sometimes a need for an internal adjudicative body or “Cree Court”.

In the thirty-two (32) years that the Commission has been in operation it has investigated a wide variety of disputes brought to its attention via the provisions of section 165 of the Cree-Naskapi (of Quebec) Act. Some of these have been disputes between a Cree government and Canada, many have been disputes between members and their local administration or their Chief and Council. One representation was filed by Canada. (It was later withdrawn.) After accepting these representations, the Commission conducts an investigation and

prepares a report of its findings, recommendations and conclusions. There is no provision for making a binding decision. This process has usually been satisfactory in that the recommendations made have almost always been accepted by the parties. In cases where the principal objective is to resolve an issue while avoiding unnecessary divisiveness in the community, expense and legal proceedings, the current system works quite well.

Although the current Commission system is effective for a majority of internal disputes, it does not address the need for an internal Cree-based process to deal with disputes in which one or both of the disputants are unwilling to settle on the basis of recommendations but prefer a legally binding, enforceable decision. A notable example of this involved a dispute between an autonomous regional Cree entity and a Cree First Nation. The Cree entity decided that it wanted to take the matter directly to court rather than use internal non-binding mediation. This meant asking a non-Cree court outside of the Cree territory to resolve an internal Cree dispute, not by way of appeal but in the first instance. This sort of thing is contrary to the whole concept of self-government. In addition to that, it means spending Cree money to fight other Crees before a non-Cree dispute resolution body. It might have been a better situation if the disputants had been legally required to make use of an internal process before resorting to an outside body to decide the issue.

As matters now stand, an internal dispute, in which one or both parties want only a binding, enforceable decision, can only be settled by authorities outside the Cree Nation. Usually this means the Canadian court system. These courts make decisions based largely upon Canadian statute law, English common law and Quebec civil law. In most of these cases the system provides fair and reasonable outcomes. In cases involving Cree disputes however a process is needed which takes into account Cree laws, Cree community values and the Cree approach to resolving conflict. Even more to the point, resolving an internal dispute by referring it, as the first step, to a court in Montreal or elsewhere is simply not true self-government.

What is needed is an internal adjudicative body with decision-making and enforcement powers. It would be essential that this body maintain a balance between independence and accountability.

To be and to appear to be objective and independent, such a body could not be under the direct control of the Cree Nation Government. Many times the CNG or a local government would be a party to a dispute. If the adjudicative body were answerable to one or more of these governments, its decisions would be seen either as biased against the complainant or as challenges to the Cree governing authority. Either perception would quickly make the body dysfunctional.

Insofar as accountability is concerned, every Cree entity, including adjudicative bodies, needs to be accountable to the Cree Nation of Eeyou Istchee if not directly to the Cree Nation government. Accountability would not be for decisions made but for proper financial management, and adherence to pre-established standards for exercising powers and carrying out duties. Various models of accountability could be considered. For example a special majority, perhaps three quarters of the Council Board could be required to appoint adjudicators from a list of individuals who met pre-established criteria. Removal of adjudicators would also need to be only in extraordinary circumstances and by an unbiased process. Many models could be considered. One such model might be by a panel of two Cree from Eeyou Istchee and three other Indigenous individuals who met pre-established qualifications.

Appeals from an Internal Adjudicative Body

In certain cases a party may want to appeal a decision from a Cree adjudicative body to the courts. This is almost certainly a constitutional right. Likely the only way in which such an eventuality would not unduly compromise self-government is if the appeal is to a specialized court which includes rules and procedures which are designed to take into account the fullest possible awareness of and respect for Cree law. The inclusion of Cree and/or other Indigenous Judges would also be desirable. [A few years ago the Cree-Naskapi Commission published a discussion paper suggesting that a First Nations or Indigenous Division be added to the Federal Court of Canada.] The idea of a specialized court is not something new. The Tax Court of Canada as well as the military courts are well-known examples.

Having a court for hearing only appeals in cases from Eeyou Istchee would of course not be feasible in terms of volume. If however First Nations from across Canada were interested in this approach, it would become well worth pursuing. Regardless of whether this process or the existing process were used, it would be helpful if self-governance agreements legislation required, as a matter of law, that internal disputes be heard in the first instance by the internal adjudicative body. This step should be required before any appeal could be heard.

Naturally any system would be subject, in the final analysis, to the appeals jurisdiction of the Supreme Court of Canada.

The Need for an “Even Playing Field”

Any individuals making use of any dispute resolution or adjudicative process need to have a roughly equal chance to make their case. The resources available to an individual for example are usually very limited whereas the resources available to a government or to a large organization are often formidable. If justice is to be done, some way must be found to “level the playing field”. Parties may not need legal representation in many situations. In the Commission’s experience, all parties have generally spoken for themselves without the use of lawyers. In only two cases did a band bring its

legal advisors into a dispute. The willingness to forgo legal representation will however be much less frequent when binding and enforceable decisions are being made.

Where either party exercises its right to legal counsel, it will be necessary to ensure that the other party can have similar assistance. Individuals will usually be in a much weaker position vis-a-vis governments. A “public defender” or “legal aid” type of model could be used. Where rights under the James Bay and Northern Quebec Agreement or the Canadian Constitution are at issue, funding models might be the “court challenges” or “test case” programs used from time to time in other jurisdictions.

Whatever system is finally adopted, it should be designed, understood and approved by the Cree people of Eeyou Istchee and not imposed by an external government.

Conclusion and Possible Next Steps

It is clear that as the inherent right is increasingly exercised, First Nations and other Indigenous governments will need to provide for the use of their regulatory, dispute resolution, administrative review and other adjudicative powers. Many will choose to use commissions, boards and tribunals, as well as adjudicative bodies with the powers of courts. The establishment, processes, independence and funding of these bodies will be crucial to their credibility in the communities and to their effectiveness. A variety of approaches are needed which are based upon respect for the various traditions, customs and contemporary preferences of the nation concerned. Certainly one size does not fit all. It is equally clear that appropriate structures and processes need to be in place to address any appeals from these bodies. Such structures and processes need to be supportive of self- government while at the same time ensuring that the constitutional rights of everyone are respected.

What is essential is that First Nations and other Indigenous governments take the lead in designing structures and processes which meet their needs and preferences. This needs to happen well before other governments acting on their own assumptions about the adjudicatory needs of Indigenous governments attempt to impose policy or legislation on the issue.

In the case of the Cree Nation Government, it now has the jurisdiction to make laws on structures and processes for addressing Cree needs in relation to internal dispute resolution and adjudication. They will need to be proactive in this area early in the era of expanded self-government.

END NOTES

  1. Royal Commission on Aboriginal Peoples, People to People, Nation to Nation, (Highlights from the Report of the Royal Commission on Aboriginal Peoples), Ottawa, 1996

Canada’s Response to the 2016 Recommendations of the Cree-Naskapi Commission

At the Special Implementation Hearings conducted in Montreal in February 2018, in preparation for this Report, Canada provided its response to those recommendations of the 2016 Report which dealt with matters for which the federal government is responsible.

What follows, are the original Commission recommendations relating to Canada, the response of Canada and, where appropriate, comments from the Commission.

In the case of Canada’s responses, the quotations reproduced below are from the transcripts of the oral responses provided by the Department at the Special Implementation Hearings on February 6, 2018. The Commission received a written version. Since there is no substantive difference between the oral and written versions, we have retained the oral testimony.

Recommendations

II. …the Commission hereby resubmits the following recommendations on band elections. (Only those recommendations which are directed to Canada are included.)

III. For all matters relating to band elections, section 9 (Local Government over Category IA Lands) of the James Bay and Northern Quebec Agreement and Part II – Band Elections – of the Cree-Naskapi (of Quebec) Act should be reviewed by the Government of Canada and Cree Nation Government for the following purposes:

a) recognition of Eeyou customary law and practices;

b) provide for needs and aspirations of Cree individuals and communities; and

c) conformity with human and treaty rights of individuals.

V. The Department of Indigenous and Northern Affairs Canada should negotiate with the Cree and Naskapi an Electoral Process Funding Agreement which would provide a process and funding for:

a) the review and revision of relevant provisions of the Cree-Naskapi (of Quebec) Act, the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement,

b) the development and revision of community-specific Election By-laws, as well as pre-election information workshops,

c) legal advice to bands and (independently) to Returning Officers,

d) access to the process for election result contestation,

e) ongoing training for electoral officers,

f) the establishment, administration and maintenance of local process for the updating of the community beneficiary and elector lists.

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

VII. Indigenous and Northern Affairs Canada and the Cree Nation of Eeyou Istchee should review the present tedious process respecting the transfer of individuals from one band to another and determine a more efficient and effective process with the Cree Nation assuming more responsibilities for the determination and maintenance of band membership.

VIII.The Government of Canada and the Grand Council of the Crees(Eeyou Istchee)/Cree Nation Government should review the application and implications of section 18 of the Cree-Naskapi (of Quebec) Act – a special provision for Indians who are not beneficiaries of the James Bay and Northern Quebec Agreement to ensure conformity and compatibility with the human rights of members of the Cree Nation and Eeyou/Eenou customary law.

IX. The Government of Canada and the Grand Council of the Crees (Eeyou Istchee)/Cree Nation Government should review the application and implications of 3.2.7 (respecting the ten year clause) of section 3 (Eligibility) of the James Bay and Northern Quebec Agreement in order to ensure respect of the constitutionally entrenched treaty and human rights of members of the Cree Nation for matters respecting band elections.

X. The Government of Canada should initiate discussions with the Cree Nation Government on the question of whether the Corbière decision of the Supreme Court applies or does not apply to the Cree bands. If the Corbière 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 proper and effective implementation.

CANADA’S RESPONSE

“So I guess we’ll just jump in to our responses to the different recommendations, starting with Recommendation 2, which within the sub-sections there seems to be a number that involved Canada, it is our view that many matters related to the band elections are being addressed by Canada in conjunction with the Cree Nation Government with the establishment of the Cree Nation Governance Agreement. so, Chapter 6 of the Cree Nation Governance Agreement provides Cree Nations with the jurisdictions to make laws of a local nature and under the Agreement the Crees will have control of their government’s internal operations and procedures for making laws, resolutions, elections, meetings referenda and financial administration.”

Commission Comment

The development of the Cree Nation Governance Agreement as well as the Cree Constitution and the legislation giving them effect appears to be a major step in the resumption of its inherent right to self-government by the Cree Nation of Eeyou Istchee. Unquestionably the jurisdiction to control the entire election process is now in the hands of the Cree Nation. The Commission hopes that long term adequate funding for the electoral process will be in place and that specific issues such as the possible applicability of the Corbière decision will not be ignored as the larger issues are being resolved.

Recommendation 3

The Commission recommends that Canada endeavor to continue negotiations in good faith with the Cree Nation Government to achieve an agreement on fulfilling the purpose of Chapter 3 as contemplated by paragraph 3.1 (b) of the Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee in a manner consistent with the James Bay and Northern Quebec Agreement and the said federal New Relationship Agreement.

CANADA’S RESPONSE

“As you’re aware, and I may have mentioned [it] in my opening remarks, the Cree Nation Governance Agreement was signed by the Cree and Canada on July 18, 2017. The Agreement modernizes the existing governance regime established under Section 9 of the James Bay and Northern Quebec

Agreement (JBNQA). It strengthens [the] nation to nation relationship between Canada and the Cree founded on the recognition of rights, respect and partnership.”

“Once this Agreement and the Cree Constitution come into force, the Cree Nation Government will have new law-making powers, including solemnization of marriage, matrimonial real property, of language, culture and heritage. The new capacities will allow Cree local and regional governments to enact their own laws governing internal governance arrangements and management.”

“As noted previously, the Cree will have control over their own Constitution, which will address their governments’ internal operations and procedures, including subjects, as I mentioned, such as procedures for making laws and resolutions, elections, meeting[s], and referenda and financial administration.”

“The bill that will give effect to the Agreement and amend the Cree-Naskapi (of Quebec) Act will remove [the] Cree from its application. We anticipate that this legislation will be introduced in Parliament in the very near future. We don’t have a date quite yet, but we do anticipate it will be in the coming weeks.”

“I would like to note that both the Cree and the Naskapi were consulted on the draft Bill. The timely tabling of the legislation to allow for final ratification and implementation of the Agreement is of the utmost importance of [sic] Canada.”

Commission Comment

The new governance legislation does indeed provide the Crees with the necessary tools to address these matters. In fact the Cree Constitution has already dealt with some of them. Undoubtedly this work will continue in the coming months and years.

Recommendation 8

The Government of Canada and the Cree Nation Government in collaboration with Cree local governments should determine with the proper policing authority and adequate funding the effective enforcement of the bylaws of the Cree Nation Government and the Cree local governments.

CANADA’S RESPONSE

“Recommendation 8 which makes reference to policing authority, so on January 10, 2018, the Minister of Public Safety and Emergency Preparedness announced the renewal of the First Nations Policing Program. Now that the federal funding has been announced, officials from Public Safety Canada will begin detailed discussions with the Cree Nation Government, the Governance Agreement, to negotiate a new police funding agreement. Under ... the Governance Agreement, the Cree Nation Government and the Cree local governments will now have the power to make laws instead of bylaws as per the JBNQA, on a wide variety of local governance on Cree category lands, including public ... safety. The new Cree Constitution will remove the supervision of the Minister of Indigenous and Northern Affairs over Cree governance on Category I lands.”

Commission Comment

The Commission hopes that, in its negotiations with the Crees, Canada will address all of the specific policing issues raised by the Crees and not merely apply its generic, Canada-wide policing program criteria.

Recommendation 9

Canada (and Quebec) should respect the right of a Cree community to access programs and funding that are required for specific purposes or projects.

CANADA’S RESPONSE

“So moving on to recommendation 9 and this has to do with access to programming funding as per Section 2.12 of the James Bay and Northern Quebec Agreement, which states, “federal and provincial programs and funding, and the obligations of the Federal and Provincial Governments, shall continue to apply to the James Bay Crees on the same basis as to other Indians, subject to the criteria established from time to time from [sic] the application of such programs.”

“In the current fiscal year, several projects have received funding in line with the above-mentioned provisions, and I’ll just name a couple as an example. The Cree Nation Government was able to secure $6.9 million dollars in 2017/2018, from the First Nations Infrastructure Fund, to improve three access roads, so the roads in Waskaganish, Wemindji and Nemaska. And approximately $2 million for two new fire halls.”

The Postsecondary Students Support Program within the Department of Indigenous Services Canada has received an increase in its budget of $90 million for the fiscal years 2017/2018 and 2018/2019, of which approximately $1.3 million is available for transfer to the Crees, Naskapi and Inuit under the JBNQA and the NEQA to support students who desire to pursue postsecondary education.

Commission Comment

The availability of regular First Nations programs and services to the Cree is of course guaranteed by the JBNQA and this is a good thing. What must not be lost sight of however is that some of these programs are in fact supplemented by specific provisions of the JBNQA and these supplementary benefits are in addition to and not in lieu of Canada-wide First Nations programs. These realities are of course subject to change, but only as a result of negotiated arrangements.

Recommendation 11

Canada and the Cree Nation Government should conduct negoatiations and discussions to address the needs of the Eeyou youth for programs and services with adequate funding and to ensure the effectiveness of funding and programs for youth within the Eeyou communities.

CANADA’S RESPONSE

“Recommendation 11, and here we’re talking about Eeyou youth programs. Canada provides funding to the Cree Nation Government for both youth programming and services through the Operation and Maintenance Agreement and a Capital Agreement. Canada also provides program funding for youth within Cree communities. For example, Indigenous Services Canada, New Paths for Education program provides funding to First Nations or organizations designated by First Nations to fund

activities designed to improve the quality of education in First Nations schools and to enhance the education experience of students, teachers, administrators, parents and communities.”

“Employment and Social Development Canada also provides access to Cree youths to its funding program, including the Adult Learning, Literacy and Essential Skill programs, as well as ongoing program funding provided by its Aboriginal Skills and Employment Training Strategy which is the successor to its Aboriginal Human Resource and Development Strategy.”

“Canada is always open to dialogue with the Cree Nation Government to ensure the effectiveness of funding programs for youth within the Eeyou communities.”

Commission Comment

The recommendation was specifically about Cree youth needs. The response is a generic description of federal youth programs generally. The concerns of Cree youth have been raised year after year. The resources which exist on paper need to be used for many more programs and services at the community level. Fairness demands that action be taken by Canada not only to fulfill its obligations under the Agreement and as part of generally available programs and services, but also in response to special situations and needs. This sort of responsiveness is appropriate for all First Nations and, for that matter, for all Canadian communities.

Recommendation 12

The Commission resubmits its previous recommendation that the Government of Canada should fulfill its obligations and responsibilities and settle the rights and claims of the Cree Nation of Mistissini to their traditional and historical territories (Mistissini hunting territories) located east of the height of land (southeastern border of the JBNQA Territory) through negotiations in good faith.

CANADA’S RESPONSE

“Canada provided a response to this recommendation and in the 2014 Report of the Cree-Naskapi Commission, whereby Canada stated that under the James Bay and Northern Quebec Agreement, all rights, claims, titles and interests outside the James Bay Territory have been extinguished since the coming into force of the JBNQA through the ratification of the 1977 James Bay and Northern Quebec Native Claims Settlement Act.”

“The Commission commented on Canada’s response indicating that the legislation does not in fact extinguish these rights, titles [and] interests outside the territory.”

“We acknowledge that Canada needs to clarify its answer. It is under Section 2.1 of the James Bay and Northern Quebec Agreement that the Crees have ceded, released, surrendered and conveyed all of their Native claims, rights, titles and interest, whatever they may be, in and to land in the territory and in Quebec. The James Bay and Northern Quebec Native Claims Settlement Act gave effect and declared valid the JBNQA, thereby giving effect to that cession.”

“In terms of the height of land, it is our understanding that a joint working group that includes representatives from the Cree Nation of Mistissini, the grand Council of the Crees, the Inuit of Mashteuiatsh, and the Province of Quebec, has continued to meet over the past year and that the

judicial review is continuing to be in advance at the request of the Mistissini. Canada continues to encourage the parties to work together to find mutually acceptable solutions.”

Commission Comment

It is gratifying to see that the issue is being addressed by most of the parties. Instead of arguing that nothing can be done, the federal government should be fully supporting those working toward a solution.

Recommendation 13

The Cree-Naskapi Commission repeats its 2014 recommendation that the Government of Canada and the Cree Nation Government, first, should review and determine the present and future housing needs of the Cree communities and secondly discuss the Housing Action Plan of the Cree Nation Government to effectively address these housing needs and situation in the Cree communities of Eeyou Istchee.

CANADA’S RESPONSE

“And so recommendation 13 and 15 are both with regards to housing. So I wanted to state that the Government of Canada believes that all Canadians should have access to safe, adequate and affordable housing.”

“In the fall of 2007, it released its first ever National Housing Strategy. The National Housing Strategy also respects the Government of Canada’s commitment to a nation to nation, Inuit to Crown and a government to government relationship with Indigenous peoples.”

“Indigenous Services, the Canada Mortgage and Housing Corporation and First Nations are currently co-developing a First Nations Housing and Infrastructure Strategy to transform federal programming and transition the First Nations care, control and management of housing. We know that new approaches are needed, including ways to increase First Nations options for private home ownership.”

“I would also like to note that during the last Standing Liaison proceed with Committee meeting held in January 2018, the Cree Nation Government advised the Department that it is in the process of developing a specific Cree Nation Housing Strategy. Parties agreed to establish a table to discuss the proposal for the Cree Nation Housing Strategy and to work with the Cree Nation Government to review and discuss proposals with a view of developing a workable approach. So we’re just in the process of setting up that table to really look into what the Cree are proposing.”

“With regards to the Naskapi Nation, since the last update, Canada Mortgage and Housing Corporation, Section 95 Housing Program, has continued to allocate two units per year to the Naskapi Nation of Kawawachikamach. Did I pronounce that correctly? No, eh. Kawa – it’s a tongue twister that one. In addition to what CMHC does, Canada continues to implement its funding agreement under the Northeastern Quebec Agreement to fund Naskapi’s capital needs. In fiscal year 2017/2018, a total of $2.2 million was transferred to address Naskapi Nation’s capital needs.”

Commission Comment

The crisis in housing has been raised in every Report of the Cree-Naskapi Commission since 2000. Shortage of housing units and the consequent overcrowding along with the need for renovations has been severe for many years. In some cases health has been an issue because of mould, and other factors. The idea that more groups developing more plans and strategies is the answer for now, just isn’t good enough. The Crees submitted a Cree Housing Proposal to Canada on November 3, 2005. It is now thirteen (13) years later and the Department is talking about setting up a table to discuss a strategy for housing! The late Chief Billy Diamond did a comprehensive housing review which should have formed the basis of a strategy years ago. What appears to be the problem is a lack of adequate resourcing and a lack of willingness on the part of Canada to get beyond merely talking about the problem and begin acting on it.

Recommendation 17

With Phase 1 finalized, the Government of Canada and the Government of Quebec should forthwith proceed with the finalization of the transfer of Block “D” to the Cree nation of Chisasibi.

CANADA’S RESPONSE

“So moving on to recommendation 17 and this is with regards to Block “D” of the Cree Nation of Chisasibi. With the Phase 1 lands comprising approximately 443 hectares, having been transferred to the Cree as Category IA lands, officials have focussed efforts on finalizing Phase 2 of the Block “D” transfer. The remaining 27.81 hectares of Block D have been used as a fuel park and require remediation by Hydro-Québec.”

“I’m happy to report that remediation is currently underway and is expected to be completed by December 31, 2019. The parties have agreed that the remedial decontamination work will be done according to Quebec’s standards for residential and recreation use.”

“Once completed, Canada will proceed with the land transfer which will require an Order by the Governor in Council to set aside the Category IA lands. This will allow Chisasibi to exercise full use and enjoy the full benefits of the land. By decontaminating and transferring lands in both phases, Canada’s fulfilling its obligation under Section 5.5 of the Canada-Cree New Relationship Agreement, where Canada agreed in principle, to transfer the Block “D”

lands to Chisasibi, subject to environmental remediation of the land.”

Commission Comment

The issue of finalizing the decontamination of Block “D” and transferring the land has been raised by Chisasibi and passed on to the Department by the Commission for more than twenty (20) years! When is the remediation going to be done? It cannot be argued credibly that it takes more than twenty (20) years to clean up an area of 27 hectares.

Recommendation 19

The Government of Canada, the Cree Nation Government and the Naskapi Nation should finalize its thorough review of the Cree-Naskapi (of Quebec) Act and determine the required amendments to the Act as desired by the Cree and Naskapi forthwith to provide for, as originally intended, “an orderly and efficient system of Cree and Naskapi local government, for the administration, management and control of Category IA and Category IA-N by the Cree and Naskapi Bands respectively ” (Preamble to the Act)

CANADA’S RESPONSE

“Canada, the Cree and Naskapi have requested a number of amendments to be made to the Cree- Naskapi (of Quebec) Act. Canada itself has an obligation under the Canadian Charter of Rights and Freedoms via the Modernization of Benefits and Obligations Act, to introduce the notion of common- law and same sex relationships in the Cree-Naskapi (of Quebec) Act.”

“Initially, the Crees were part of this amendment process, but with the signing of the Cree Nation Governance Agreement, they will soon no longer be under the Cree-Naskapi (of Quebec) Act.”

“Canada reached an agreement with the Naskapi on amendments to the Cree-Naskapi (of Quebec) Act in 2016, which were approved by the Naskapi and their band Council.”

“The Naskapi amendments aim to facilitate political and administrative decisions and procedures. The proposed amendments will: ensure equal treatment of married and common-law relationships regarding benefits and obligations, including same sex spouses in the Cree-Naskapi (of Quebec) Act; provide the Naskapi with the power to issue tickets for contravening administrative bylaws; increase the maximum fine for contravening a bylaw from $2,000.00 to $5,000.00; remove the obligation of holding a referendum before making bylaws regarding borrowing for housing purposes; remove the requirement that a bylaw be signed by the Chairman of the Council meeting at which it was enacted; and reduce the required level of band electors approval for land cession from 65 per cent to 50 per cent plus one.”

“Legislation to amend the Cree-Naskapi Act has been drafted. As I noted, the Naskapi were consulted and we’re expecting introduction in Parliament any time.”

Commission Comment

The response is reasonably complete and helpful.

Recommendation 21

Canada should commence discussions with the Cree Nation Government and the local government of Whapmagoostui First Nation to clarify the status of the lands used by the Catholic Church and Transport Canada and to determine the possibility of transferring these lands to Whapmagoostui First Nation for housing development.

CANADA’S RESPONSE

“As I understand it, the question of lands used by the Catholic Church and Transport Canada in the community of Whapmagoostui, have not been previously raised with Canada. That said, the New Relationship Agreement concluded in 2008, establishes a Cree-Canada Standing Liaison Committee, which reinforces the nation to nation relationship between the Cree and Canada. This forum allows or concerns the parties to raise and discuss issues that may be of concern. Canada encourages local Cree governments to communicate with the Cree Nation Government. Their interest or concerns could be discussed at the Standing Liaison Committee. Canada’s open to hearing any concerns or proposals of the Cree Nation government they may want to put forward.”

Commission Comment

The question of the availability of church and federal lands for potential housing sites was raised by the community of Whapmagoostui in good faith. The Department was well aware of the question at least as long ago as 2016. Waiting two years and then suggesting that another body should tell them about it, is simply postponing addressing a real concern for two years during which time an answer could have been provided.

Concluding Observation

Canada has responded to the recommendations contained in the biennial reports of the Cree-Naskapi Commission since 2000 when it responded to the recommendations made in 1998. As discussed elsewhere in this report, the practice of responding was only begun after much resistance on Canada’s part and only after the helpful intervention of the House of Commons Standing Committee on Aboriginal Affairs.

The Commission believes that, although we may not always been satisfied with the responses given, the fact that Canada has responded for the past 18 years has been of value. The responses have been reported to the communities thus improving overall accountability. Since the responsibility of the Commission to report on Canada’s responses to issues raised by the communities ended on March 29, 2018, the Commissioners hope that an appropriate alternative method can be found to raise issues as a matter of public record and to have Canada’s response to those issues on the record as well.

NOTE ON SOURCES

The “Recommendations” are quoted verbatim from the 2016 Report of the Cree-Naskapi Commission, pp. 76 to 92

“Canada’s Response” paragraphs are quoted from the transcripts of the oral presentation given by representatives of the Department of Crown-Indigenous Relations and Northern Affairs at the Commission’s Special Implementation Hearing in Montreal on

February 6, 2018. Some months later, the Department provided a written version of their responses and these were identical in substance to the oral version.

The Commission’s Reports are all available on our website, www.creenaskapicommission.net. Transcripts of the Special Implementation Hearings can be accessed at the Commission Offices in Ottawa.

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

On February 5, 6 and 7, 2018, the Cree-Naskapi Commission held Special Implementation Hearings in Montreal, Quebec and on February 24, 2018 in Ottawa, 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. (The Cree or Naskapi representatives usually consist of the Chief or a representative of the Band Council, an elder and a youth.) This chapter describes the main concerns and issues raised by the Cree and Naskapi representatives.

1. Cree Nation Government/Grand Council of the Crees (Eeyou Istchee)

1.1 Cree Nation Governance on Category IA Lands1

The representatives of the Cree Nation Government and the Government of Canada have made positive progress to fulfill the purpose of Chapter 3 of the Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee. In particular, a process of negotiations was set up to discuss a Cree Nation Governance Agreement on Category IA Lands and a Cree Constitution.

In the fall of 2016, the Cree and federal representatives finalized their discussions and concluded an Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada and the Cree Constitution.

Prior to ratification of the Governance Agreement by the Cree Nation Government/Grand Council of the Crees (Eeyou Istchee) and each of the Cree First Nations, the Cree Nation Government carried out a number of activities to ensure that the Cree beneficiaries, Cree First Nations, other Cree institutions and authorities and the main stakeholders were informed about the Governance Agreement, the Cree Constitution and the ratification process.

In the spring of 2017, the Grand Council of the Crees (Eeyou Istchee), the Cree Nation Government and all the Cree First Nations approved by resolution the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada and the Cree Constitution.

On July 18, 2017, former Grand Chief Dr. Matthew Coon Come and Minister Carolyn Bennett of Crown-Indigenous Relations and Northern Affairs signed the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada.

According to the representatives of the Grand Council of the Crees (Eeyou Istchee)/Cree Nation Government, the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada and the Cree Constitution achieve the following:2

1. The Governance Agreement will make more efficient existing governance powers and procedure on Category IA lands under the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act. Arrangements regarding Cree local and regional governance on Category IA lands will be transferred from the Cree-Naskapi (of Quebec) Act into the Governance Agreement and the Cree Constitution.

2. The Governance Agreement addresses three main subjects:

a) The jurisdiction of the Cree First Nations and the Cree Nation Government to make laws (instead of by-laws) on Category IA lands – existing arrangements will be maintained; save that Cree laws will not have to be submitted to the Minister of Indigenous Affairs.

b) The land regime on Category IA lands, including access and the grant of rights in lands and buildings – existing arrangements will be maintained; and

c) Financial arrangements with Canada, including long-term commitments for Operations and Maintenance and Capital Grant Funding.

3. Under the Governance Agreement, the Cree First Nations will keep the same local government powers, functions and responsibilities that they have now on Category IA lands under the Cree-Naskapi (of Quebec) Act. Similarly, the Cree Nation Government will keep the same powers that it now has on Category IA lands under the Cree-Naskapi (of Quebec) Act concerning, for example, standards for essential sanitation and fire protection.

4. During the governance negotiations, the Crees and Canada worked to achieve a common understanding on Cree self-governance on Category IA lands in the context of the inherent right of self-government and rights under the James Bay and Northern Quebec Agreement.

5. The Governance Agreement and the Cree Constitution will advance Cree self-government in the following principal ways:

a) They bring governance on Category IA lands home to where it belongs with the Cree Nation.

b) They remove federal oversight of Cree governance on Category IA lands.

c) The rules of internal governance for the Cree First Nations will be moved from the Cree-Naskapi (of Quebec) Act into the Cree Constitution which is not subject to the consent or approval of Canada or Quebec.

d) The Governance Agreement will provide the Cree First Nations with much needed stability and security for it defines financial arrangements with the Government of Canada concerning governance on Category IA lands from now until 2040.

At present, the Cree Constitution deals primarily with internal Cree government processes and arrangements regarding the exercise of the Cree right of self-government in relation to the administration and internal management of the Cree First Nations and the Cree Nation Government on Category IA lands.

By its very nature, the Cree Constitution is a work in progress and it must be further developed to reflect Cree values and principles more fully so that it will evolve to meet the needs and aspirations of the Eeyou of Eeyou Istchee.

Under Chapter 33 of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada, Canada undertook to recommend to Parliament the Governance Legislation which shall provide for the following:

a) that the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada is approved, given effect, declared valid and has the force of law;

b) that the Cree Constitution is given effect and has the force of law;

c) that a Cree Law made in accordance with this Agreement and the Cree Constitution has the force of law; and

d) for the consequential amendments to its laws, in particular the Cree-Naskapi (of Quebec) Act, in order to ensure their consistency with this Agreement.

On February 14, 2018, the Minister of Crown-Indigenous Relations and Northern Affairs introduced in the House of Commons of Canada Bill C-70 which is the Governance Legislation contemplated by the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada. Bill C-70 gives effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada. It amends the Cree-Naskapi (of Quebec) Act to ensure that the Act no longer applies to the Crees of Eeyou Istchee and to make changes to certain aspects of the mandate of the Cree-Naskapi Commission to take into account the Agreement. It also makes related consequential amendments to other Acts.

Pursuant to Chapter 26 (Cree-Naskapi Commission) of the Agreement Concerning a New Relationship between the Government of Canada and the Crees of Eeyou Istchee, the “Cree-Naskapi Commission shall, with respect to the Crees, investigate any representation submitted to it relation to the implementation of this Agreement and the Cree Constitution, including representations relating to the exercise or non-exercise of a power under this Agreement or the Cree Constitution and the performance or non-performance of a duty under this Agreement or the Cree Constitution, the whole in accordance with the provisions of subsection 165(2) to section 170 of the Cree- Naskapi (of Quebec) Act as it read immediately before the Effective Date, with such modifications as may be required having regard to the provisions of this Agreement.”3

Once the Agreement is approved, given effect, declared valid and has the force of law, in virtue of the Governance Legislation (Bill C-70), the Cree-Naskapi Commission shall no longer prepare and submit to the Minister biennial reports on the implementation of the Cree-Naskapi (of Quebec) Act in accordance with subsection 171(1) of the said Act.

“During the period of development of the Governance Legislation, Canada and the Cree Nation Government shall examine, in collaboration with the Naskapi Nation of Kawawachikamach, the role of the Cree-Naskapi Commission provided for in Part XII of the Cree-Naskapi (of Quebec) Act as it read immediately before the Effective Date having regard to, in particular, the need to avoid duplication with processes or bodies provided for under this Agreement…”4

On March 27, 2018, Bill C-70: An Act to give effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada, to amend the Cree-Naskapi (of Quebec) Act and to make related and consequential amendments to other Acts went through its last stage or the third reading in the Senate.

Consequently, upon the coming into force of Bill C-70, the long title of the Cree-Naskapi (of Quebec) Act is replaced by the following: An Act respecting certain provisions of the Northeastern Quebec Agreement relating principally to Naskapi local government and to the land regime governing Category IA-N land and respecting the Cree-Naskapi Commission. This Act may be cited as the Naskapi and the Cree-Naskapi Commission Act.

Pursuant to Section 165 (1) of the Naskapi and the Cree-Naskapi Commission Act, the duties of the Cree-Naskapi Commission are described as follows:

“165 (1) Subject to subsections (2) and (3), the Commission shall

(a) with respect to Naskapi beneficiaries, 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; and (b) with respect to Cree beneficiaries, as defined in subsection 2(2) of the Cree Nation of Eeyou Istchee Governance Agreement Act, investigate any representation submitted to it relating to the implementation of the Agreement, as defined in subsection 2(1) of that Act and the Cree Constitution, as defined in that subsection, including representations relating to the exercise or non-exercise of a power and the performance or non-performance of a duty under that Agreement or the Cree Constitution.”

Furthermore, Section 98 of the Act repeals Section 171 of the Cree-Naskapi (of Quebec) Act. Section 171 of the Cree-Naskapi (of Quebec) Act describes the duty of the Cree-Naskapi Commission to prepare and submit a biennial report to the Minister who shall cause the report to be laid before each House of Parliament.

However, the transitional provisions of the Act provide as follows:

Cree-Naskapi Commission’s Report to Parliament

124 (1) The Cree-Naskapi Commission may prepare and submit to the Minister of Indian Affairs and Northern Development a last report in English, French, Cree and Naskapi, for the period beginning on the day that follows the end of the period for which the 2016 Report of the Cree-Naskapi Commission was completed and ending on the day on which section 98 comes into force, on the implementation of the Cree-Naskapi (of Quebec) Act, and the Minister shall cause the report to be laid before each House of Parliament on any of the first 10 days on which that House is sitting after the day on which the Minister receives it.

Circulation of Report

(2) As soon as feasible after the report is laid before each House of Parliament, the Minister shall send a copy of the report to the Cree Nation Government, the Naskapi Development Corporation, the council of each Cree First Nation and the council of the Naskapi band.”

In summary and for the purposes of clarity, Bill C-70 does not repeal or replace the Cree-Naskapi (of Quebec) Act. It uses another technique to deal with this Act.

Part 1 enacts the Cree Nation of Eeyou Istchee Governance Agreement Act. This Act:

1) gives effect and force of law to the Cree Nation of Eeyou Istchee Governance Agreement Act and the Cree Constitution, which replace the Cree-Naskapi (of Quebec) Act for the Crees, Cree First Nations and Category IA lands; and

2) gives force of law to the laws adopted by the Cree First Nations and the Cree Nation Government under the Governance Agreement and Cree Constitution.

Part 2 deals with the Cree-Naskapi (of Quebec) Act. This Act is not repealed, but its title is replaced by the new short title, Naskapi and the Cree-Naskapi Commission Act.

Part 2 also amends many sections of this Act to remove references to the Crees, and to ensure that the amended Act applies only to the Naskapi.

Part 2 also preserves the Cree-Naskapi Commission, while modifying its duties so to eliminate the report to Parliament and continue its “ombudsman” function of investigating representations of Cree or Naskapi beneficiaries.

Bill C-70 comes into force when it receives Royal Assent. On March 29, 2018, the Bill received Royal Assent.

Pursuant to Paragraph 6.2 of Chapter 6 (Payments by Canada) of the Agreement Concerning a New Relationship between the Government of Canada and the Crees of Eeyou Istchee, Canada shall pay to the Cree Nation Government or Recipient of Payments designated by the Cree Nation Government an amount of two hundred million dollars ($200,000,000) within thirty (30) days of Royal Assent of the Governance Legislation contemplated in Part 2 of Chapter 3 of the said Agreement. (Bill C-70 is the Governance Legislation contemplated in Part 2 of Chapter 3 of the said Agreement.)

Upon the coming into force, Bill C-70: An Act to give effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada, to amend the Cree- Naskapi (of Quebec) Act and to make related and consequential amendments to other Acts, in conjunction with the Governance Agreement and the Cree Constitution, will replace the Cree- Naskapi (of Quebec) Act with respect to the Crees, Cree First Nations, Cree Nation Government and Category IA lands.

Furthermore, pursuant to Section 7 (1) of Bill C-70, the Cree Constitution is given effect and has the force of law.

With these significant advances in Cree self-government, the Cree Nation Government looks “forward to working together with all the Cree First Nations to assert and implement this new Cree governance on Category IA lands.”5

2. Cree Nation of Chisasibi6

2.1 Governance and By-Laws

The Cree Nation of Chisasibi and the Cree Nation Government may both enact bylaws that apply within Category IA lands. There should be greater consultation between the local and regional governments to ensure appropriateness of bylaws and to determine enforcement of the bylaws.

Furthermore, there should be an orientation program on the powers and duties of a local government when a new Chief and Council are elected.

2.2 Construction Licenses

The construction licensing requirements set out in Quebec’s Building Act are being applied on the Category IA land of the Cree Nation of Chisasibi. Consequently, local construction companies are being charged for offenses under the said Act. The Cree Nation of Chisasibi has enacted bylaws respecting construction and the qualifications of trades including alternative licensing requirements on Category IA land. Quebec’s intrusion on construction and trade are not necessary and undermines the authority of the Cree Nation of Chisasibi on its Category IA land.

2.3 Housing

The Cree Nation of Chisasibi, like the other Cree communities, faces a very serious shortage in housing and overcrowding conditions in existing houses because of its growing population and inadequate housing programs and funding.

The Cree Nation of Chisasibi continues to promote private home ownership and a number of members have participated in this program. Eventually private home ownership will lead to property rights and matrimonial property.

2.4 Block “D”

Pursuant to Schedule D of the Agreement Concerning a New Relationship between le Gouvernement du Québec and the Crees of Quebec, 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.

As of February 1, 2018, the full and complete transfer of Block “D” has still not been finalized. Phase 1 of the transfer has been finalized and a portion of Block “D” is ready for transfer. However, phase 2 involves further measures for its environmental clean-up. Therefore, the full transfer of Block “D” to the Cree Nation of Chisasibi remains outstanding as a major clean-up of a portion of Block “D” is still taking place to address soil contamination on the site. The environmental clean-up is scheduled to be completed by December 31, 2019.

2.5 Five Hundred (500) Foot Category iii Corridor

Subsection 5.1.5 (Existing Third Party and Government Interests) of Section 5 of the James Bay and Northern Quebec Agreement states as follows: “Existing regional roads and provincial roads and main arteries within Category I lands shall be Category III lands…

However, there shall be Category III lands for a distance of five hundred (500) feet on each side of said roads.”7

As previously reported in 2014 and 2016, this corridor of five hundred (500) feet on each side of the road that adjoins the community of Chisasibi remains a barrier to community development and expansion.

Presently, Quebec is only willing to transfer the land situated in the corridor if an equal portion of existing Category IA land is ceded to Quebec. The Cree Nation of Chisasibi cannot agree to a cession of any portion of its Category IA land. This issue needs to be resolved so that the Cree Nation of Chisasibi can pursue its community development plans.

2.6 Housing Units on Category ii Land

In response to demands for housing, the Council allotted lots near the highway for residential and institutional development. These lots were discovered to be located on Category II land. This situation has led to significant challenges in governance, granting of rights to members and enforcement of bylaws. The Cree Nation of Chisasibi has requested that part of the corridor be converted from Category II land to Category IA land. However, discussions on this issue have faced serious delays and requires the cooperation and appropriate action from the Cree Nation Government.

2.7 Programs for Youth

As reported in 2016, the youth of Chisasibi have carried out some activities with their limited budgets. However, funding for much-needed programs remain an outstanding annual issue.

3. Cree Nation of Mistissini8

3.1 Role of the Cree-Naskapi Commission

After many years of reporting on the issues concerning the Cree-Naskapi (of Quebec) Act, the Commission’s role of reporting these matters to the Minister and Parliament did not prove to be effective. As an example, the high quorum requirements of the Act for decision-making on certain matters by referendum remain unchanged and continue to hinder efficiency and proper governance.

The recent Cree-Canada Governance Agreement redefines the role of the Cree-Naskapi Commission as it will no longer prepare biennial reports to the Minister and Parliament on the implementation of the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act. Instead, the Commission will hear representations and possibly report on the implementation of the

Cree-Canada Governance Agreement and the Cree Constitution. This is similar to the role of an ombudsman.

However, the Cree-Canada Governance Agreement provides that role of the Commission will be reviewed to ensure its efficiency, relevance and avoids duplication.

The Cree Nation of Mistissini considers the independent role of the Commission as an ombudsman as an important one to ensure the fairness and transparency of Cree governance. The Commission can be a safe guard for members of the Cree community against entities that stray from its laws and principles of governance.

The Cree Nation of Mistissini feels that it is important that the Commission be structured properly to ensure the quality of its investigators, its investigations and its recommendations, and to ensure it creates a proper balance and respect for the governing bodies.

Therefore, the Cree Nation of Mistissini would like to be involved in the process to review the future role and structure of the Cree-Naskapi Commission.

3.2 Cree-Canada Governance Agreement and the Cree Constitution

The Cree Nation of Mistissini considers the Cree-Canada Governance Agreement and the Cree Constitution as important steps in their history.

The Cree Nation of Mistissini is pleased with the approval of the Agreement and the Cree Constitution. The rules of internal governance for the Cree First Nations will be moved from the from the Cree-Naskapi (of Quebec) Act into the Cree Constitution which is not subject to the consent orapproval of Canada or Quebec. Hopefully, the Cree Nation of Mistissini will be able to deal with some of the existing problematic matters of the Act by amending the Cree Constitution.

The Cree Nation of Mistissini are pleased with the removal of the role of the Minister of Indigenous Affairs in Cree governance. It is step forward to self-determination.

However, the James Bay and Northern Quebec Agreement, the Cree-Canada New Relationship Agreement and the Cree-Canada Governance Agreement didn’t address all outstanding issues between the federal government and the Cree Nation of Mistissini.

3.3 Mistissini Hunting Territories East of the Height of Land

The Cree Nation of Mistissini have Cree hunting territories east of the height of land and therefore are located beyond the limits of the Territory covered by the James Bay and Northern Quebec Agreement (JBNQA). Because of the manner in which the Territory covered by the JBNQA was defined and determined, these Cree hunting territories were left out of the Territory covered by the JBNQA in 1975. Since then, the Cree Nation of Mistissini has insisted in the settlement of the Cree claims, rights and interests to these Cree hunting territories.

The Cree Nation of Mistissini wants Canada and Quebec to settle these claims, rights and interests of the Crees to their hunting territories located east of the height of land and outside of the Territory covered by the JBNQA.

3.4 Community Expansion

The Council of the Cree Nation of Mistissini has decided to expand the community to the other side of the existing bridge. The Council will initiate studies on the planning and construction of infrastructures for streets, water and sewage systems. Planning and location of residential, recreational, commercial and industrial zones will be determined.

3.5 Tallymen and Traplines

In light of resource development such as mining, commercial forestry activities and roads, the Cree Nation of Mistissini has difficulties in determining who is the Tallyman of certain traplines and determining the territorial integrity of certain traplines.

3.6 Hunting Way of Life

Cree hunters and trappers are not going into their hunting territories as much as they used to in the past to conduct hunting, fishing and trapping and related activities because of factors such as:

a) resource development activities;

b) employment;

c) maintaining two household is too expensive;

d) costs of transportation are high; and

e) costs of equipment and food are high.

Furthermore, tallymen may not have been able to manage effectively proper and sustainable hunting and related activities within their respective hunting territories.

3.7 Education

The youth of the Cree Nation of Mistissini want to learn Cree history instead of Euro-centric history that is presently taught in the Cree schools. They want to learn more about Cree culture. They should receive credits for Cree history and culture.

3.8 Provision of Professional Services

Professional individuals who provide services to Crees like doctors should learn about the Cree people … their communities, way of life, culture, and social environment. This way there would be better understanding between individuals.

3.9 Management of Real Estate

The youth of the Cree Nation of Mistissini want to know how real estate on Category IA land is managed by the Council. If they wanted, for an example, to start a campground with perhaps some tourism, how would the youth go about it?

3.10 Cree Trappers’ Association

The Cree Trappers’ Association has recently closed its local office in Mistissini. This closure has impacted many hunters and trappers who need support, assistance, information and equipment from the CTA.

4. Ouje-Bougoumou Cree Nation9

4.1 incorporation of the Ouje-Bougoumou Cree Nation into the James Bay and Northern Quebec Agreement

As of May 14, 2015, when the Government of Canada, through an order-in-council, accepted the transfer of lands from Quebec which had previously been transferred from the Cree Nation of Mistissini to Quebec, the full and final incorporation of the Ouje-Bougoumou Cree Nation into the James Bay and Northern Quebec Agreement, and by extension, the Cree-Naskapi (of Quebec) Act, have taken place.

Since then, the Ouje-Bougoumou Cree Nation has been working diligently to ensure that operations of local government operations and application of bylaws comply with the requirements of the Cree-Naskapi (of Quebec) Act and the practices of the other Cree communities.

In light of more recent developments in Cree governance and like the other Cree communities, the Ouje-Bougoumou Cree Nation looks forward to exercising governance under the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada and the Cree Constitution.

4.2 Housing

Like the other Cree communities, the Ouje-Bougoumou Cree Nation faces a housing crisis due to the following factors and issues:

a) overcrowded houses with health and social issues;

b) serious backlog; and

c) growing demand for adequate and affordable housing.

The Ouje-Bougoumou Cree Nation has long maintained that in addition to addressing the housing crisis for a wide range of health and social issues, housing can also serve to stimulate the local and regional economies of the Cree Nation of Eeyou Istchee. To this extent, the housing crisis in the Cree communities is fundamentally an issue for the Cree Nation Government, Government of Canada and Government of Quebec to address within the context of the letter, spirit and intent of the James Bay and Northern Quebec Agreement and its related Agreements.

4.3 Youth

The Cree Nation of Eeyou Istchee has maintained that the well-being, health and education of the Cree youth is a priority. They need to be inspired and encouraged to get an education that will make them responsible and capable of meeting challenges of their generation.

5. The Crees of Waskaganish First Nation10

5.1 Oral Cree Language

An elder expressed his concerns about the decreasing use of the Cree language by the children. In the schools the teachers in the pre-school program have noticed that a lot of Cree children come to school speaking English.

Since the abolishment of the Cree language as a language of instruction up to Grade three in the schools, the Cree children are losing their mother tongue.

Some school improvement initiatives at the school board level are more focused on the second language rather the maintenance and preservation of the mother tongue.

The Cree Nation Government, the Cree School Board and the Cree Local governments need to recognize that the Cree people, as a whole, are losing their Cree language rapidly and that programs and funding should be put in place to maintain and preserve the Cree language especially with the children and youth.

Furthermore, Section 16 (Cree Education) of the James Bay and Northern Quebec Agreement provides that Cree shall be a teaching language and the Cree School Board shall have the special power to develop courses, textbooks and materials designed to preserve and transmit the language and culture of the Cree people.11

5.2 Eeyou istchee Memory Project

The Council of Elders, along with other parties, will undertake the Eeyou Istchee Memory Project which will achieve the following:

a) collection of stories from Elders;

b) sharing of wisdom and knowledge;

c) maintenance and preservation of the Cree language; and

d) oral history.

In summary, this project would preserve through various media and hopefully maintain Eeyou Eedouwin (Cree way of doing things) and memories.

The Elders hope that the youth will be involved in this project.

The Cree School Board would be able to use the results of this project as part of the curriculum in the schools.

5.3 Youth Programs

The Youth Chief of the Crees of Waskaganish First Nation talked about events, workshops and programs for the youth such as a Youth Week, Winter Journey and the Fall Hunting Program.

5.4 Education

The Youth Chief of the Crees of Waskaganish First Nation expressed grave concern about the current quality of education provided by the Cree School Board in comparison to other school boards in Quebec.

The Youth Chief suggests a 10-year plan on the improvement of the education system of the Cree School Board.

5.4 Cree History

The Youth Chief of the Crees of Waskaganish First Nation stated that Cree students from secondary I to 5 should learn about the James Bay and Northern Quebec Agreement and its related Agreements as part their history program.

6. Whapmagoostui First Nation12

6.1 Common interests of Cree and inuit

Whapmagoostui, the Cree community and Kuujjuarapik , the Inuit community, are adjacent villages. These communities are located north of the 55th parallel in Nunavik which means “our land” in Inuktitut. Consequently, the territory of Nunavik includes the historical and traditional territory of the Cree.

The Cree and Inuit are funded by Quebec and Canada. Whenever the opportunity arises, Whapmagoostui and Kuujjuarapik collaborate on projects to avoid duplication of services in infrastructure and to ensure cost effectiveness. Because the projects of these Cree and Inuit communities are funded by different sources, there have been issues with obtaining funding for these projects.

The Whapmagoostui First Nation asks the Commission to ensure that the Quebec and Canada recognize the needs and rights of Whapmagoostui and to facilitate the collaboration of the communities, particularly for projects that will benefit both the Cree and Inuit communities.

6.2 Access Road to Whapmagoostui

Whapmagoostui is the only Cree community that doesn’t have access by land from the south. Consequently, everything must be transported by airplane or barge resulting to excessively high costs of living and construction.

The Whapmagoostui First Nation requests that the Commission urges Canada and Quebec to construct a winter access road to Whapmagoostui.

6.3 Cree Hunters and Trappers

The Cree Hunters and Trappers of Whapmagoostui practice the traditional way of life and it is critical that they must be able to continue this way of life; not only as their livelihood but also as a way of passing on the teachings, skills and knowledge to their children and grandchildren.

The Cree hunters and Trappers receive their benefits from the Cree Hunters and Trappers Income Security Program. But the program does not provide the economic security required to maintain the traditional way of life due to the increasingly high cost of living and high costs of transportation and equipment in the north.

The Whapmagoostui First Nation requests that the Commission urge the government of Quebec to increase the funding provided to the Cree hunters and trappers under the Cree Hunters and Trappers Income Security Program to ensure that they have the economic security required to maintain the traditional way of life.

6.4 Housing

The Whapmagoostui First Nation has serious housing concerns such as:

a) backlog of 90 housing needs;

b) many existing housing units require urgent renovations due to mould and major structural issues; and

c) materials and supplies used to construct houses are not suited to the harsh northern climate resulting to high heating costs and shorter life span of the housing unit.

The Whapmagoostui First Nation asks that the Commission urge Canada to provide adequate funding to the Whapmagoostui First Nation for its current and future housing needs and consider alternative materials and construction techniques that might better withstand the harsh northern climate.

6.5 Electricity

The community of Whapmagoostui is presently the only Cree community that is not provided electricity through the power grids of Hydro-Quebec that has a gigantic power project on Eeyou Istchee. The energy for Whapmagoostui is supplied by diesel power generators which raise environmental and community concerns. As the community and its energy needs expand, the community has experienced more frequent energy outages.

Pursuant to the Paix des Braves signed in February, 2002, Hydro-Quebec promised to construct a power transmission line to Whapmagoostui. As of February, 2018, there is no indication as to when this power transmission line will be constructed.

The Whapmagoostui First Nation requests that the Commission ensure that the needs and rights of the Whapmagoostui First Nation are recognized and addressed in all negotiations with Quebec and Canada respecting the provision of electricity in the community.

6.6 Use of the Cree Language as an Official Language

The Whapmagoostui First Nation recognizes the use of the Cree language as an official language for the provision of services by its local government. Other levels of governments should recognize the use of the Cree language as an official language in governmental relations and administrative affairs.

The Whapmagoostui First Nation urges the Commission to request that the Governments of Canada and Quebec recognize the use of the Cree language as an official language.

6.7 Systematic Discrimination

The Whapmagoostui First Nation has been made aware of numerous instances of systematic discrimination of its members. The discrimination occurs when Cree members are accessing public services in the north; but also in dealing with individuals and companies carrying out work for other entities in Whapmagoostui.

The Whapmagoostui First Nation asks the Commission to urge all Cree organizations and governments to ensure that Cree workers are treated fairly, paid fairly and given meaningful work on projects they undertake in Whapmagoostui.

6.8 Culture and Language

An Elder expressed his concerns about Cree culture and language.

The absence of roads has led to access problems and high costs of living in the community and out on the hunting territories. Accumulative impacts of these factors have led to issues and problems for the development, revival and preservation of Cree culture.

A ‘Cultural Association’ was started in Whapmagoostui to consolidate cultural development, activities and programs because other entities like the Cree School Board, the Cree Health Board and the Cree Trappers’ Association had their cultural programs which were often insufficient and not based on the Cree way of doing things.

Young people need to learn the Cree language out on the land where most of the culture belongs.

6.9 United Nations Declaration on the Rights of indigenous Peoples

The United Nations Declaration on the Rights of Indigenous Peoples reflects the views and talks of Elders on principles, values and rights. This Declaration should be translated, interpreted and implemented in a traditional perspective and way.

6.10 Areas of Common interests

The James Bay and Northern Quebec Agreement contemplates an ‘Area of Common Interests’ north of the 55th parallel to be designated and agreed to by the Crees and Inuit. The Crees would have interests and rights in this ‘Area of Common Interest’. The elder talking about this matter does not think this particular matter was ever resolved in a proper way.

6.11 Hunting of Caribou

A youth spoke about hunting activities done by youth. He was concerned about the hunting for sport activities by youth for caribou.

6.12 Modern Technology

A youth talked about the use and impacts of social media on Cree culture, identity and language. The use of the English language is prevalent in the use of social media. Young people are starting not to speak the Cree language as the old generation who constantly spoke Cree slowly decrease in number.

6.12 Lifestyle and Health

Lifestyle has drastically changed in Whapmagoostui. Access to and types of food has changed. Obesity happens. Health conditions change. One big alarming change is the high rate of diabetes amongst the Cree people. People need to know about healthy and proper nutrition.

6.13 Use of Elders

An Elder mentioned that some First Nation groups have elders travel with the leaders to support and assist in the meetings and gatherings.

7. Cree First Nation of Waswanipi13

7.1 Housing

The Cree First Nation of Waswanipi faces a serious housing situation with about three hundred (300) members looking for a house within the community. Existing old houses need renovations because of mould. Overcrowding of houses is another issue.

The Council is considering various options to address the serious housing situation in Waswanipi such as:

a) promote private home ownership;

b) construct at least ten (10) new houses to sell to members for private home ownership;

c) transfer or sell existing housing units for private home ownership;

d) focus on the renovation of old housing units;

e) improve the building-capacity of the local workforce to become more competitive in the building trades;

f) determine and compare the costs of building a house in other communities and non-Native towns;

g) adapt to changing demographics by examining closely alternative housing options such as apartments and housing for young families; and

h) participation in the development of the housing policy of the Cree Nation Government respecting the disbursement of funds for housing.

7.2 Economic Development

The Cree First Nation of Waswanipi wants to focus on economic development in the following manner:

a) refurnish and recommission of the existing Nabakatuk Sawmill;

b) preservation and proper use of their long-term 70,000 cubic meters of wood;

c) production and allocation of timber to create jobs and to provide construction material for Cree housing and buildings;

d) building and training a strong workforce in the mining sector;

e) work with local business leaders to support them with their administrative, regulatory and funding requirements;

f) work closely with other Cree communities and entities to develop lasting partnerships that would create employment for community members;

g) discussions with Quebec and the Cree Nation Government about reviewing the corridor of five hundred (500) feet along Highway 113 and which impedes opportunities for economic development by Waswanipi; and

h) consider with interest the Trade and Commerce Agreement that is being developed by the Department of Commerce and Industry of the Cree Nation Government.

The Cree First Nation of Waswanipi plans to construct a community commercial centre at the entrance of the community to provide office space for local and regional entities and businesses.

The Cree First Nation of Waswanipi is also considering the construction of a secondary entry point at the north end of the community to provide better access to the community and ease traffic around the current and only entry point to the community.

The Cree Fist Nation of Waswanipi considers that the past and present political unity of the Crees of Eeyou Istchee has made them strong; now the Crees need unity to develop and improve the economic development of the Eeyou/Eenou and Eeyou Istchee.

7.3 Protection of the Environment and the Cree Hunters

The Cree First Nation of Waswanipi has always considered, as a priority, the protection of the land and its environment and hence preserving and maintaining the Cree Way of life. Waswanipi representatives have met with forestry, and mining companies to protect the interests of impacted hunters and tallymen, wildlife and habitat and the community as a whole.

The Cree First Nation of Waswanipi wants to have protected areas of special ecological and cultural importance and to protect remaining boreal forest and the region of the Broadback River through discussions with the Cree Nation Government and Quebec.

The Cree First Nation of Waswanipi has entered into negotiations with Osisko Mining and will work closely to monitor and review all reports on environmental and social impacts on the community.

7.4 Community Health and Safety

The Cree First Nation of Waswanipi is promoting community health and safety through the following ways:

a) having the local police force do presentations on crime prevention, vandalism, drugs and alcohol and consequences and impacts of crime;

b) meeting regularly with community frontline workers and developing a social assembly to address social development, issues and concerns and to provide resources to the community;

c) paving all the roads and streets in the community to alleviate respiratory issues due to accumulation of mould;

d) promoting the use of the new community health and fitness centre;

e) developing a joint action plan with the local police, Cree Health Board and the Cree School Board to address social issues such as drugs and alcohol abuse; and

f) working with local and regional partners to promote education and awareness on health issues impacting Cree communities such as diabetes.

7.5 Local Government Accountability and Finances

The Chief and Council of the Cree First Nation of Waswanipi has and will continue to implement and update its bylaws (or laws) to conform with the terms and provisions of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada. The Council will also develop and adopt good accountability and transparency practices.

The Chief and Council will continue to implement a successful recovery and action plan with the Cree Nation Government and to address the debt issues of the Cree First Nation of Waswanipi.

7.6 Cree Culture and Language

The Cree First Nation of Waswanipi concludes that the Crees, as a whole, are heading into a crisis on the Cree language as the children and youth are not speaking the Cree language on a regular basis.

8. Cree Nation of Wemindji14

8.1 Governance and Bylaws

The local government and the Cree Nation Government can presently adopt bylaws to apply within Category IA land. When the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada comes into effect in virtue of federal legislation, the local government and the Cree Nation Government may make laws (instead of bylaws) to apply within Category IA land in respect of matters within their respective jurisdiction.

The representative of the Cree Nation of Wemindji asked the following question: “For matters within their respective jurisdiction, which law of the local government or the Cree Nation Government shall prevail to the extent of any inconsistency or conflict?

Subsections 8.14 (1) and (2) of Chapter 8 – Laws Respecting Regional Government – of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada state as follows:

“(1) A Cree Nation Government Law in respect of a matter referred to in sections 8.9 to 8.12 shall prevail over a Cree First Nation Law to the extent of any inconsistency or conflict.

(2) Notwithstanding subsection (1), the provisions of a Cree First Nation Law that establish standards more stringent in their effect than those established in a Cree Nation Government Law shall prevail to the extent of any inconsistency or conflict.”

Pursuant to sections 8.9 to 8.12 of the said Agreement, the Cree Nation Government may make laws for public health and safety, essential sanitation services, fire departments and for the protection of the environment.

8.2 Reports of the Cree-Naskapi Commission

The representative of Wemindji enquired about the recommendations of the Commission after the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada comes into force. The duty of the Commission does not include the preparation of biennial reports on the implementation of the Cree-Naskapi (of Quebec) Act.

The Chairman, Mr. Richard Saunders, replied that, subject to the decision of the Commission, the Commission would conduct a follow-up to its recommendations in an annual report.

8.3 Housing

Like the other Cree communities, the Cree Nation of Wemindji has serious housing issues due to demands, backlogs and an increasing population. The Council and administration is addressing this housing crisis with social housing units, band housing, rent-to-own housing and private home ownership.

8.4 Youth

The Cree Nation of Wemindji face youth issues like support and programs with funding, lack of employment and training programs.

The local youth council should be more visible, active and accountable to the youth of Wemindji.

8.5 Education

Education is one the most pressing issues for the Cree Nation of Wemindji due the following factors:

a) substandard quality of education;

b) decreasing graduation rates;

c) absence of postsecondary institution;

d) inappropriate programs and curriculum; and

e) social environment.

8.6 Economic Development

The Cree Nation of Wemindji should create meaningful and long-term employment, as one means, through the promotion and establishment of private businesses in the community. To this end, the Crees need training in management and accounting.

Furthermore, Cree individuals should not have to go through the present long process of securing guarantees or mortgages for businesses under the present terms of the Cree-Naskapi (of Quebec) Act.

8.7 Administration of Justice

The Cree Nation of Wemindji has seen some improvements in the administration of justice in the community, But the itinerant judge still takes too long to hear local cases since the judge doesn’t come to the community to hear cases often.

8.8 Application of Cree Traditional Law

Under the Cree traditional law, persons who wish to hunt within a particular hunting territory or trapline should obtain authorization or permission from the pertinent tallyman. The Cree Trappers’ Association has received many complaints about person hunting without such permission.

The present terms of the Cree Hunting Law confirm this requirement.

8.9 Traditional Way of Life and the Cree Way of Doing Things

An elder spoke about the traditional way of life and Eeyou Eedouwun (Cree way of doing things). He spoke about hunters’ way of life, survival skills and traditional medicines. He said that Cree youth should be taught such Eeyou Eedouwun (Cree Way of doing things). He said also that Cree hunters needed support to maintain Eeyou Eedouwun.

9. MoCreebec Eeyoud15

9.1 Recognition of MoCreebec as a Cree Community

The representative of the MoCreebec Eeyoud spoke about the recognition of MoCreebec Eeyoud as the 11th Cree community by resolution of the Cree Nation Government on November 22, 2017.

In order to facilitate this recognition, the representatives of the MoCreebec Eeyoud had to visit all the Cree communities and meet the Eeyou/Eenou of Eeyou Istchee.

MoCreebec Eeyoud are Crees who are affiliated with one of the Cree communities on the Quebec side of Eeyoy Istchee; but reside and live in Moose Factory/Moosonee, Ontario. Because of their Cree ancestry and affiliations with one of the Cree communities on the Quebec side of Eeyou Istchee, members of the MoCreebec Eeyoud are beneficiaries of the 1975 James Bay and Northern Quebec Agreement.

The MoCreebec Eeyoud are descendants of the Eeyou who had moved to or ended up in Moose Factory/Moosonee, Ontario for various reasons such as employment, hunting and trapping, and schooling in residential school.

In 1980, the MoCreebec Eeyoud, with the help of the Grand Council of the Crees (of Quebec), organized themselves as a political organization with a mandate to inform the MoCreebec people about their political affiliations with the Quebec Cree First Nations and the James Bay and Northern Quebec Agreement.

However, the MoCreebec Eeyoud presently reside in Moose Factory, Ontario which is located outside of the territorial application of the James Bay and Northern Quebec Agreement. A sunstantial majority of the MoCreebec Eeyoud have clearly indicated their desire to remain in Moose Factory/ Moosonee, Ontario.

The MoCreebec Eeyoud hope that they can exercise rights and receive benefits under an amended James Bay and Northern Quebec Agreement as a result of the present Cree land claim and court case.

With the formal recognition of the MoCreebec Eeyoud as the 11th Cree community by resolution of the Cree Nation Government, MoCreebec Eeyoud seek recognition by the Minister of Crown- Indigenous Relations and Northern Affairs as a “Cree community” within a similar meaning as that of Section 1 of the James Bay and Northern Quebec Agreement.

A “Cree Community’ is defined in the said section as a collectivity of Crees for whom Category I Lands have been allocated for their exclusive benefit and governance. The MoCreebec Eeyoud seek lands in Ontario for exclusive benefit of their community and governance by their Chief and Council.

The MoCreebec Eeyoud hope to achieve their objectives through the application of an amended James Bay and Northern Quebec Agreement. Consequently, the MoCreebec Eeyoud feel that a workable and acceptable arrangement can best be achieved by way of a complimentary agreement to the James Bay and Northern Quebec Agreement for the benefit of the MoCreebec Eeyoud. After all, as beneficiaries of the 1975 modern-day Treaty, the MoCreebec Eeyoud consider the James Bay and Northern Quebec Agreement as their Treaty as well. (The MoCreebec Eeyoud stated that they are “not written into Treaty 9.”)

Therefore, MoCreebec Eeyoud also want the Minister of Crown/Indigenous Relations and Northern Affairs to seek a mandate in which a table of negotiations with the federal government, Cree Nation Government, and the government of Ontario can define and give substance to the recognition of a MoCreebec Eeyoud community in Ontario.

9.2 Housing

Families of the MoCreebec Eeyoud lived in deplorable housing conditions such as living in canvas- covered dwellings all year round. They didn’t have basic community services.

From 1980 and on, the MoCreebec Eeyoud dealt with their deplorable housing and community situation. They’ve also established a small economic base through the creation of small businesses.

As status Indians under the Indian Act, the government of Ontario considered the MoCreebec Eeyoud as the responsibility of the federal government. So the government of Ontario didn’t provide any funding for MoCreebec Eeyoud.

The MoCreebec Eeyoud, with CMHC, constructed affordable housing. However, some members of MoCreebec Eeyoud don’t have their own house and so they live with other members.

9.3 MoCreebec Governance

Since neither the Indian Act nor the Cree-Naskapi (of Quebec) Act applied to the Crees of MoCreebec, the MoCreebec Eeyoud have developed their own Constitution and governance structures in virtue of the exercise of the rights of self-determination and hence self-government. Therefore, on June 6, 1993, the MoCreebec Eeyoud adopted their own Constitution.

MoCreebec Eeyoud is a non-profit corporation registered with the federal government that has a Chief and Council.

Furthermore, under its Constitution, the MoCreebec Eeyoud had declared themselves as a community. Consequently, recognition as a community by governments became one of the main pursuits of MoCreebec Eeyoud.

9.4 Health Services

An elder described her problems concerning the delivery of health or medical services because of her status as a beneficiary of the James Bay and Northern Quebec Agreement but living in Ontario and/or an Indian under the Indian Act but living “off-reserve.”

9.5 Cree Language

Like other Cree communities, MoCreebec Eeyoud are concerned about the survival or revival of their culture, values and especially Cree language.

10. Naskapi Nation of Kawawachikamach16

10.1 introduction

Since the signature of the Northeastern Quebec Agreement (NEQA) in 1978, the Naskapi Nation of Kawawachikamach has developed significantly, and the realities of Naskapis, including their needs, have dramatically changed. Forty (40) years hence, a dialogue needs to be opened to revisit the Northeastern Quebec Agreement, in a manner so as to improve its enforceability and pertinence.

10.2 Health and Social issues

A new CLSC building was constructed with Quebec funding and became operational in October, 2017. The new facility promises better and improved services in Kawawachikamach.

Under Section 10.3, the NEQA’s Complementary Agreement No. 2 stipulates that “Quebec shall, with the appropriate resources, be responsible for the delivery to the Naskpis of Quebec residing in the Territory of the full range of health and social services in accordance with the provision of this section and according to the needs of the Naskapis residing in the Territory.”

However, operational funding allocated to the Naskapi CLSC has been insufficient to deliver an appropriate level and quality of health and social services to Naskapis residing in Kawawachikamach.

According to Section 10.6 of the NEQA’s Complementary Agreement No. 2, “the budget of the [CLSC Naskapi] shall also include funds to ensure the delivery of services which are not normally offered to the general population of Quebec, but which Canada offered on January 31, 1978 to the Naskapis.”

Since 2001, the Crees have an agreement with the Ministere de la Sante et des Services Sociaux that covers all Non-Insured Health Benefits (NIHB). Whereas the Naskapi CLSC must use its operational budget to cover the NIHB cost. This cuts health and social services offered to the Naskapis and creates deficits.

In general, the delivery of services of the Naskapi CLSC is constrained by a fixed and limited operational budget that is not adapted to the needs of the Naskapis.

Therefore, Quebec is not fulfilling its obligations towards the Naskapis residing in Kawawachikamach respecting the provision of adequate financial and human resources to deliver health and social services at an appropriate level and quality.

10.3 Education

Pursuant to the NEQA, a Naskapi school – the Jimmy Sandy Memorial Scholl (JSMS) was constructed to offer primary and secondary education and adult education.

Pursuant to Section 11.15.3 of the NEQA, “[the annual budget of the Naskapi School shall include] the cost of an adult education program for Naskapis residing on Category IA-N land.” After long negotiations, funding was allocated to JSMS to initiate an Adult Education Program in 2016/2017. However, the lack of adequate infrastructure means that adult education is currently offered at a converted residential house.

It is very difficult for Naskapis to further their education at the vocational and post-secondary level outside the community of Kawawachikamach. The JSMS and the Naskapis would like to see more vocational and post-secondary programs in Kawawachikamach. However, the JSMS and the Naskapis are in discussion with Quebec and Canada to establish a state-of-the-art Complex offering Adult Education, Vocational Training and Post-Secondary Studies in Kawawachikamach.

The implementation of the NEQA in the education of Naskapis should be revisited to meet their actual needs for employment in Kawawachikamach and outside the community.

10.4 Program to Assist Hunting, Fishing and Trapping

The Hunter Support program, established under Section 19 of the NEQA, provides funding for Naskapi beneficiaries to pursue hunting, fishing and trapping activities. The program is crucial in preserving Naskapi culture and traditional way of life.

In 1978, the Hunter Support Program was set at $60,000 per year pursuant to Section 19.7 of the NEQA. This amount is indexed annually according to the increase in the cost of living. However, the funding has remained the same in constant dollars over the years, while the Naskapi population has almost doubled since 1978.

Funding per Naskapi beneficiary is now significantly lower than the Inuit and Cree programs.

The Naskapi Nation is currently trying to negotiate a funding amount that is commensurate to the population rate, population growth and cost of living in Kawawachikamach. Consequently, Section 19 of the NEQA should be reviewed and revised accordingly.

10.5 Hunting, Fishing and Trapping Coordinating Committee

The Hunting, Fishing and Trapping Coordinating Committee (HFTCC) was created by and in accordance with Section 24 of the JBNQA, in order to review, manage and in certain cases, supervise and regulate the hunting, fishing and trapping regime established by the JBNQA and NEQA. The HFTCC may submit recommendations to the responsible Minister who shall have discretion to act upon such recommendations.

The HFTCC is composed of members appointed by Quebec, Canada, Makivik, Cree Nation Government and the Naskapi Nation of Kawawachikamach.

The recommendations of the HFTCC are decided upon by a voting procedure described in Section 24 of the JBNQA. This voting procedure doesn’t function well for the issues, interests and concerns of the indigenous parties.

Therefore, the functioning of the Hunting, Fishing and Trapping Coordinating Committee should be reviewed to ensure empowerment of the indigenous parties in the decision-making processes.

10.6 Environmental Consultation of the Nation

The Naskapi Nation of Kawawachikamach feels that the provincial and federal consultation and participation processes provided in the JBNQA and the NEQA do not provide adequate participation, consultation and protection for the Naskapis, Naskapi Sector and Naskapi traditional territory, especially in the context of social and environment reviews and assessments in Nunavik.

Consequently, the Naskapi Nation believes that the NEQA and the JBNQA should be reviewed and revised to enable the Naskapi to appoint one member on the Kativik Environmental Quality Commission, the Steering Committee, the Review Panel and the Kativik Environmental Advisory Committee, and ensure that the Naskapi Nation’s unique perspective and particular interests are taken into account throughout the consultations and in social and environmental review and assessment processes. As it is, the Naskapis are left out of the decision-making process affecting the Naskapi Sector and the Naskapi traditional territory.

10.7 Regional and Territorial Governance

The Mayor of the Naskapi municipal corporation of Kawawachikamach (who is also the Chief of the Naskapi Nation) has a seat on the Council of the Kativik Regional Government (KRG) which has jurisdiction, powers and services that have a bearing on the Naskapi Nation, Naskapi Sector and Naskapi traditional territory (Naskapi Territory).

The present structure of the KRG allows the Inuit majority to decide on issues involving the Naskapi Territory. It creates a particular situation where an indigenous group overpowers another indigenous group on its own territory.

Over the years, the KRG has not acted in the best interests of the Naskapi Nation and Naskapi Territory.

Consequently, the Naskapi Nation of Kawawachikamach want a review and revision of the NEQA and the JBNQA to extend self-governance and self-representation to the Naskapi Nation for matters and issues involving the Naskapi Territory.

10.8 Other Services: Housing and Daycare

Like other communities, the Naskapi have been affected by overcrowding and worsening housing conditions. The current housing situation puts families at risk, including health issues due to mould, and exposure to violence and substance abuse.

The Social housing funding has not increased with the rising Naskapi population.

In light of the current housing situation, the Naskapi Nation believes that appropriate housing funding should be guaranteed by the NEQA.

The public daycare in Kawawachikamach with its limited spaces has not been able to accommodate all children in the community. Daycare services should be provided for in the NEQA to secure and guarantee a minimum level of services for children and parents in Kawawachkamach.

10.9 Conclusion

While the Naskapi Nation has benefitted greatly from the NEQA and continues to do so, there are several areas that need improvement. The Naskapi Nation is currently addressing a growing number of those areas in separate, file-specific negotiations with Canada and/or Quebec. As the scope and number of the files under negotiations broadens, the Naskapi Nation is now reflecting on complementary approaches to consolidate its efforts to modernize the NEQA and to enhance its current form of self-government, and it will soon approach both Canada and Quebec to request the establishment of a table to begin discussing these matters.

10.10 Proposal for the Creation of a Legal Fund for the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement Beneficiaries

Mr. Johnny Mameanskum, a member of the Naskapi Nation of Kawawachimach, submitted a document dated February 6, 2018 and entitled “Proposal for the Creation of a Legal Fund for the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement Beneficiaries” to the Cree-Naskapi Commission. In the said proposal, Mr. Mameanskum proposes the creation of a fund to assist beneficiaries who may challenge general band elections or raise other matters to protect their rights in the implementation of the JBNQA, NEQA and related legislation.17

END NOTES

  1. This section of Chapter 5 on Issues and Concerns is based on the ‘Presentation to the Cree-Naskapi Commission for its Report in Accordance with Section 171 of the Cree-Naskapi (of Quebec) Act – Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government – February 6, 2018’
  2. Presentation to the Cree-Naskapi Commission for its Report in Accordance with Section 171 of the Cree-Naskapi (of Quebec) Act – Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government – February 6, 2018. Pages 4, 5 and 6
  3. Paragraph 26.1 of Chapter 26 (Cree-Naskapi Commission) of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada
  4. Paragraph 26.2 of Chapter 26 (Cree-Naskapi Commission) of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada
  5. Presentation to the Cree-Naskapi Commission for its Report in Accordance with Section 171 of the Cree-Naskapi (of Quebec) Act – Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government – February 6, 2018. Page 8
  6. This section of Chapter 5 on Issues and Concerns is based on presentation entitled “Cree Nation of Chisasibi” and submitted to the Cree-Naskapi Commission on February 7, 2018
  7. Subsection 5.1.5 (Existing Third Party and Government Interests) of Section 5 of the James Bay and Northern Quebec Agreement, James Bay and Northern Quebec Agreement and Complementary Agreements, 2006 Edition, Les Publications du Quebec, page 58
  8. This section of Chapter 5 on issues and concerns is based on the transcript of the Special Implementation Hearings of the Cree-Naskapi Commission on the presentation of the Cree Nation of Mistissini – Montreal, Quebec – February 5, 2018
  9. This section of Chapter 5 on issues and concerns is based on the transcript of the Special Implementation Hearings of the Cree-Naskapi Commission on the presentation of the Ouje-Bougoumou Cree Nation – Montreal, Quebec – February 5, 2018
  10. Cree-Naskapi Commission on the presentation of the Crees of Waskaganish First Nation – Montreal, Quebec – February 5, 2018
  11. Subsection 16.0.9 h) and subsection 16.0.10 of Section 16 (Cree Education) of the James Bay and Northern Quebec Agreement, page 269 and 270, James Bay and Northern Quebec Agreement and Complementary Agreements, 2006 Edition Les Publications du Québec
  12. This section of Chapter 5 on issues and concerns is based on the transcript of the Special Implementation Hearings of the CreeNaskapi Commission on the presentation of the Whapmagoostui First Nation – Montreal, Quebec – February 7, 2018
  13. This section of Chapter 5 on issues and concerns is based on the transcript of the Special Implementation Hearings of the Cree-Naskapi Commission on the presentation of the Cree First Nation of Waswanipi – Montreal, Quebec – February 5, 2018
  14. This section of Chapter 5 on issues and concerns is based on the transcript of the Special Implementation Hearings of the Cree-Naskapi Commission on the presentation of the Cree Nation of Wemindji – Montreal, Quebec – February 7, 2018
  15. This section of Chapter 5 on issues and concerns is based on the transcript of the Special Implementation Hearings of the Cree-Naskapi Commission on the presentation of the MoCreebec Eeyoud – Montreal, Quebec – February 24, 2018
  16. This section of Chapter 5 on issues and concerns is based on presentation from the Naskapi Nation of Kawawachikamach entitled “Memorandum Presented to the Cree-Naskapi Commission – 6 February 2018”
  17. Proposal for the Creation of a Legal Fund for the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement Beneficiaries – Presentation made by Mr. Johnny Mameanskum, 99 Nabinacaboo Road, P.O. Box 5027, Kawawachikamach, Nouveau-Québec, G0G 2Z0, to the Cree-Naskapi Commission Special Implementation Hearings held in Montreal, Quebec, February 6, 2018

Recommendations ofthe Cree-Naskapi Commission

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 and a review of the chapter on Eeyou Governance, the Cree-Naskapi Commission submits the following comments and recommendations:

Eeyou Governance

The spirit and intent of the James Bay and Northern Quebec Agreement and its related agreements requires 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.

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

a) traditional Eeyou system of governance and authority for each Indoh-hoh Istchee (Eeyou Hunting Territories);

b) local government that involve a broad measure of Eeyou authority on an exclusive territorial base (Category IA and IB lands);

c) Eeyou Nation Government that involve a broad measure of Eeyou authority on an exclusive (Category IA land) and non-exclusive (Category II land) territorial base; and

d) public government (Eeyou Istchee James Bay Regional Government) that allow for significant Eeyou participation in decision-making over shared lands (Category III land) and resources.

1. In view of current developments on governance of the Territory contemplated by the James Bay and Northern Quebec Agreement, its related New Relationship and Governance Agreements and the many challenges posed by Eeyou in establishing various forms of governments as an order of government in Eeyou Istchee and exercising good effective governance, Eeyou of Eeyou Istchee should:

a) continue to establish constructive working relationships with Canada, Quebec and the municipalities of the Territory; and

b) strengthen the governing capacity of their people and nation.

2. 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:

a) education, awareness and training needs and programs;

b) human resource development;

c) establishment of formalized systems for Eeyou government accountability and responsibility to maintain integrity in government and public confidence (to the extent deemed appropriate by Eeyou, strategies for accountability and responsibility in Eeyou government should reflect and build upon Eeyou customs, traditions and values);

d) developing the internal capacities of their governments for political, financial and administrative accountability;

e) securing sufficient financial resources and suitable fiscal arrangements that should be structured to provide for Eeyou self-reliance, equity and efficiency;

f) assuring a resource base upon which economic self-reliance and local autonomy can be based; and

g) seeking and achieving amendments to existing governance legislation, the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada and the Cree Nation Constitution to improve governance, local administration and decision-making. (As an example, paragraph 13.4 (1) of Chapter 13 (Cession by Cree First Nations) of the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada states that a “cession requires the approval of the electors of the Cree First Nation in a referendum in which at least sixty-five per cent of the electors of the Cree First Nation vote in favour of the cession.” In the past, this particular requirement of such a high quorum has proven to be difficult to achieve or implement.”)

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

a) formalize codes of conduct for public officials;

b) establish conflict of interest laws, policies or guidelines;

c) establish independent structures or agencies responsible for upholding and promoting the public interest and the integrity of Eeyou governments; and

d) establish informal mechanisms to ensure understanding of Eeyou government goals, powers, priorities, procedures and activities, administrative decision-making and reporting systems. (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.)

Cree Constitution

Pursuant to Section 7 (1) of Bill C-70, the Cree Constitution is given effect and has the force of law.

The Cree Constitution starts with a short statement of key Cree values and principles. It goes on to set out arrangements regarding the exercise of the Cree right of self government in relation to the administration and internal management of the Cree First Nations and the Cree Nation Government on Category IA lands.

These internal governance arrangements were set out in the Cree-Naskapi (of Québec) Act and have been transferred into the Cree Constitution. These arrangements concern subjects such as procedures for making laws and resolutions, elections, meetings and referenda, financial administration and amendment of the Constitution.

4. Eeyou of Eeyou Istchee should review and if necessary amend the Cree Constitution to ensure that the Cree Constitution reflects Eeyou values and principles more fully and appropriately sets out arrangements regarding the exercise of the Cree right of self government in relation to the administration and internal management of the Cree First Nations and the Cree Nation Government on Category IA lands in a manner consistent with Eeyou Eedouwin (Cree way of doing things) and enables effective governance to meet the needs and aspirations of the Eeyou of Eeyou Istchee.

Enactment and Enforcement of Cree Laws

The Cree Nation Local Governments and the Cree Nation Government may both enact laws that apply within Category IA lands.

5. There should be greater consultation between the Cree Nation local governments and the Cree Nation Government to ensure appropriateness of laws and to determine enforcement of the laws.

6. The Cree Nation local governments and the Cree Nation Government should ensure that Quebec legislation does not intrude into the legislative jurisdiction and authority of Cree governments.

Orientation Program for Cree Nation Local Governments

7. The Cree Nation Government in collaboration with the Cree-Naskapi Commission should develop an orientation program on the powers and duties of a local government when a new Chief and Council are elected.

Housing

Due to the growing population of the Eeyou of Eeyou Istchee and inadequate housing programs and funding. the Eeyou communities of Eeyou Istchee face a very serious crisis in housing.

8. The Cree Nation local government and the Cree Nation Government should develop a Housing Master Plan with an appropriate budget that may include the following but not limited to the following elements:

a) development of a housing policy of the Cree Nation Government respecting the allocation of housing for the communities and the disbursement of funds for housing;

b) determination of actual state and need for housing in the communities;

c) determination of adequate and affordable housing;

d) increase in annual construction of houses;

e) planning and construction of alternative dwellings such as small apartment units for couples and young families;

f) availability of social housing, band housing and rent-to-own housing;

g) appropriate allocation of housing;

h) renovations to existing houses;

i) consideration of alternative materials and construction techniques that withstand the harsh northern climate;

j) promotion of private home ownership; and

k) availability and easier access to funds for private home ownership.

9. The Cree Nation Government should submit the Eeyou Housing Master Plan to the government of Canada and the government of Quebec for discussions and funding within the context of the letter, spirit and intent of the James Bay and Northern Quebec Agreement.

10. The Cree Nation Government should negotiate with Canada and/or Quebec to ensure that the local Cree Nations have appropriate and sufficient land for housing and community expansion. (Some Cree communities like Chisasibi and Waswanipi want to pursue community development plans within road corridors that are presently Category III lands under the James Bay and Northern Quebec Agreement.)

11. The Cree Nation Government should enact legislation respecting property rights and matrimonial property within Category IA lands.

Block “D”

Pursuant to Schedule D of the Agreement Concerning a New Relationship between le Gouvernement du Québec and the Crees of Quebec, 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.

As of February 1, 2018, the full and complete transfer of Block D has still not been finalized. Phase 1 of the transfer has been finalized and a portion of Block D is ready for transfer. However, phase 2 involves further measures for its environmental clean-up. Therefore, the full transfer of Block “D” to the Cree Nation of Chisasibi remains outstanding as a major clean-up of a portion of Block “D” is still taking place to address soil contamination on the site. The environmental clean-up is scheduled to be completed by December 31, 2019.

12. The Cree Nation Government in collaboration with the Cree Nation of Chisasibi should ensure that Canada and Quebec take the appropriate measures to complete the full transfer of Block “D” to the Cree Nation of Chisasibi.

Programs for Youth

The youth of the Eeyou communities spoke about the need for appropriate programs, services and funding.

13. The Cree Nation Local Governments in collaboration the local Youth Councils should determine the needs of the local youth for programs, services and funding on an annual basis.

14. The Cree Nation Government should discuss the needs of the Eeyou youth for programs and services with adequate funding with Canada and Quebec.

Mistissini Hunting Territories East of the Height of Land

The Cree Nation of Mistissini have Cree hunting territories east of the height of land and therefore are located beyond the limits of the Territory covered by the James Bay and Northern Quebec Agreement (JBNQA). Because of the manner in which the Territory covered by the JBNQA was defined and determined, these Cree hunting territories were left out of the Territory covered by the JBNQA in 1975. Since then, the Cree Nation of Mistissini has insisted in the settlement of the Cree claims, rights and interests to these Cree hunting territories.

15. The Cree Nation Government in collaboration with the Cree Nation of Mistissini should settle the claims, rights and interests of the Crees to their hunting territories located east of the height of land and outside of the Territory covered by the JBNQA with Canada and Quebec.

Tallymen and Traplines

In light of resource development such as mining, commercial forestry activities and roads, the Cree Nation of Mistissini has difficulties in determining who is the Tallyman of certain traplines and determining the territorial integrity of certain traplines.

16. The Cree Nation Government in collaboration with the Cree Nation Local Governments and the Cree Trappers’ Association should determine and establish, in accordance with Eeyou Law and Eeyou Eedouwin, a dispute resolution mechanism for resolving disputes respecting the territorial integrity of Eeyou/Eenou Indoh-hoh Istchee.

Education, Culture and Eeyou/Eenou Language

The youth of Eeyou Istchee want to learn Cree history instead of Euro-centric history that is presently taught in the Cree schools. They want to learn more about Cree culture. They should receive credits for Cree history and culture.

An elder expressed his concerns about the decreasing use of the Cree language by the children. School teachers in the pre-school program have noticed that a lot of Cree children come into class speaking English.

Since the abolishment of the Cree language as a language of instruction up to Grade three (3) in the schools, the Cree children are losing their mother tongue.

The Cree Nation Government, the Cree School Board and the Cree local governments need to recognize that the Cree people, as a whole, are losing their Cree language rapidly and that programs and funding should be put in place to maintain and preserve the Cree language especially with the children and youth.

Furthermore, Section 16 (Cree Education) of the James Bay and Northern Quebec Agreement provides that Cree shall be a teaching language and the Cree School Board shall have the special power to develop courses, textbooks and materials designed to preserve and transmit the language and culture of the Cree people.

The Youth Chief of the Crees of Waskaganish First Nation expressed grave concern about the current quality of education provided by the Cree School Board in comparison to other school boards in Quebec. The Youth Chief suggests a 10-year plan on the improvement of the education system of the Cree School Board.

The Whapmagoostui First Nation recognizes the use of the Cree language as an official language for the provision of services by its local government. Other levels of governments should recognize the use of the Cree language as an official language in governmental relations and in administrative affairs.

Education is one the most pressing issues for the Cree Nation of Wemindji due to the following factors:

a) substandard quality of education;

b) decreasing graduation rates;

c) absence of postsecondary institution;

d) inappropriate programs and curriculum; and

e) social environment.

17. The Cree Nation Government should pursue a review and amendments to Section 16 (Cree Education) of the James Bay and Northern Quebec Agreement with Canada and Quebec to recognize the full jurisdiction of the Cree Nation Government over Education, Culture and Language of Eeyou of Eeyou Istchee and to establish collaboration between the Cree Nation Government and the Cree School Board over such matters.

18. Furthermore, the Cree Nation Government should pursue amendments to Section 9 (Local Government over Category IA Lands) and Section 11A (Cree Regional Authority) of the James Bay and Northern Quebec Agreement with Canada and Quebec to recognize the full jurisdiction of the Cree Nation Government over Education, Culture and Language of Eeyou of Eeyou Istchee.

19. The Cree Nation Government in collaboration with the Cree School Board should conduct a full and thorough review on the quality and provision of education to Eeyou/Eeyou students by the Cree School Board and determine a ten (10) year plan on the provision of education and the improvement of the education system to the Eeyou/Eenou students of Eeyou Istchee.

20. The Cree Nation Government and the Cree School Board should jointly submit the ten (10) year plan on the provision of education and the improvement of the education system to Canada and Quebec for discussions and funding.

21. The Cree School Board should, in accordance with the present provisions of Section 16 (Cree Education) of the James Bay and Northern Quebec Agreement, ensure that Cree shall be a teaching language and develop courses, textbooks and materials designed to preserve and transmit the language and culture of the Cree people.

22. The Cree Nation Government and the Cree School Board should collaborate on a project to produce a history book about Eeyou/Eeyou of Eeyou Istchee for use as part of the curriculum in the schools under the Cree School Board.

23. The Cree Nation Government and the Cree Nation Local Governments should enact laws and develop policies that recognize and promote the use of the Eeyou/Eenou language as an official language in governmental relations and administrative affairs in Eeyou Istchee.

24. The Cree Nation Government should pursue Canada and Quebec to recognize the use of the Eeyou/Eenou language as an official language in governmental relations and administrative affairs in Eeyou Istchee.

Provision of Services to Crees

Professional individuals and teaching staff who provide services to Crees should learn about the Cree people … their communities, way of life, culture, and social environment. This way there would be better understanding between individuals.

25. The Cree School Board and the Cree Board of Health and Social Services of James Bay should develop and implement orientation sessions about Eeyou of Eeyou Istchee for professional personnel and teaching staff.

Common Interests of Cree and Inuit

Whapmagoostui, the Cree community and Kuujjuarapik, the Inuit community, are adjacent villages. The community projects of the Cree and Inuit are funded by Quebec and Canada. Whenever the opportunity arises, Whapmagoostui and Kuujjuarapik collaborate on projects to avoid duplication of services in infrastructure and to ensure cost effectiveness. Because the projects of these Cree and Inuit communities are funded by different sources, there have been issues with obtaining funding for these projects.

26. The Cree Nation Government should ensure that Quebec and Canada recognize the needs and rights of Whapmagoostui and to facilitate the collaboration of the communities, particularly for projects that will benefit both the Cree and Inuit communities.

Access Road to Whapmagoostui

Whapmagoostui is the only Cree community that doesn’t have access by land from the south. Consequently, goods, equipment, and supplies must be transported by airplane or barge resulting to excessively high costs of living and construction.

27. The Cree Nation Government in collaboration with the Whapmagoostui First Nation should discuss with Canada and Quebec the construction of a winter access road to Whapmagoostui.

Cree Hunters and Trappers

The Cree hunters and Trappers receive their benefits from the Cree Hunters and Trappers Income Security Program. But the program does not provide the economic security required to maintain the traditional way of life due to the increasingly high cost of living and high costs of transportation and equipment in the north.

28. The Cree Nation Government should request the Government of Quebec to increase the funding provided to the Cree hunters and trappers under the Cree Hunters and Trappers Income Security Program to ensure that they have the economic security required to maintain the traditional way of life.

Electricity

The community of Whapmagoostui is presently the only Cree community that is not provided electricity through the power grids of Hydro-Quebec that has a gigantic power project on Eeyou Istchee. The energy for Whapmagoostui is supplied by diesel power generators which raise environmental and community concerns. As the community and its energy needs expand, the community has experienced more frequent energy outages.

Pursuant to the Paix des Braves signed in February, 2002, Hydro-Quebec promised to construct a power transmission line to Whapmagoostui. As of February, 2018, there is no indication as to when this power transmission line will be constructed.

29. The Cree Nation Government should ensure that the needs and rights of the Whapmagoostui First Nation are recognized and addressed in all negotiations with Quebec and Canada respecting the provision of electricity to the community.

Lifestyle and Health

Lifestyle has drastically changed in the Eeyou communities. Access to and types of food has changed. Health conditions change. One big alarming change is the high rate of diabetes amongst the Eeyou/Eenou people. People need to know about healthy and proper nutrition.

30. The Cree Nation Government should urge the Cree Board of Health and Social Services of James Bay to aggressively promote awareness and education about healthy and proper nutrition to Eeyou of the Eeyou communities.

Application of Cree Traditional Law

Under Eeyou traditional law, persons who wish to hunt within a particular hunting territory or trapline should obtain authorization or permission from the pertinent Indoh-hoh Ouje-Mahou (tallyman). The Cree Trappers’ Association has received many complaints about individuals hunting without such permission. (The present terms of the Cree Hunting Law confirm this requirement.)

31. The Cree Nation Government and the Cree Nation Local Governments should formally adopt the application and enforcement of Eeyou/Eenou traditional law such as the Eeyou Hunting Law.

Traditional Way of Life and the Cree Way of Doing Things

An elder spoke about the traditional way of life and Eeyou Eedouwun (Cree way of doing things). He spoke about hunters’ way of life, survival skills and traditional medicines. He said that Cree youth should be taught such Eeyou Eedouwun (Cree Way of doing things). He said also that Cree hunters needed support to maintain Eeyou Eedouwun.

32. The Cree Nation Government, Cree School Board and other interested Cree entities should determine measures and tools to promote awareness and education about the Eeyou/Eenou traditional way of life, survival skills, traditional medicines and Eeyou Eedouwin.

Recognition of MoCreebec as a Cree Community

With the formal recognition of the MoCreebec Eeyoud as the 11th Cree community by resolution of the Cree Nation Government, MoCreebec Eeyoud seek recognition by the Minister of Crown- Indigenous Relations and Northern Affairs as a “Cree community” with a similar meaning as that of Section 1 of the James Bay and Northern Quebec Agreement.

MoCreebec Eeyoud also want the Minister of Crown-Indigenous Relations and Northern Affairs to seek a mandate in which a table of negotiations with the federal government, Cree Nation Government, and the government of Ontario can define and give substance to the recognition of a MoCreebec Eeyoud community in Ontario.

33. The Cree Nation Government and the Government of Canada commence discussions on a process for an appropriate mandate and negotiations for the recognition of a MoCreebec Eeyoud community with the participation of the Government of Ontario.

Health and Social Issues (Naskapis of Kawawachikamach)

Operational funding allocated to the Naskapi CLSC has been insufficient to deliver an appropriate level and quality of health and social services to Naskapis residing in Kawawachikamach.

In general, the delivery of services of the Naskapi CLSC is constrained by a fixed and limited operational budget that is not adapted to the needs of the Naskapis.

Therefore, Quebec is not fulfilling its obligations towards the Naskapis residing in Kawawachikamach respecting the provision of adequate financial and human resources to deliver health and social services at an appropriate level and quality.

34. Quebec and the Naskapis of Kawawachimach commence discussions respecting the provision of adequate financial and human resources to deliver health and social services at an appropriate level and quality in compliance and accordance with section 10 of the Northeastern Quebec Agreement.

Education (Naskapis of Kawawachikamach)

It is very difficult for Naskapis to further their education at the vocational and post-secondary level outside the community of Kawawachikamach. The Jimmy Sandy Memorial School (JSMS) and the Naskapis would like to see more vocational and post-secondary programs in Kawawachikamach.

However, the JSMS and the Naskapis are in discussion with Quebec and Canada to establish a state-of-the-art Complex offering Adult Education, Vocational Training and Post-Secondary Studies in Kawawachikamach.

The implementation of the Northeastern Quebec Agreement in the education of Naskapis should be revisited to meet their actual needs for employment in Kawawachikamach and outside the community.

35. Quebec and the Naskapis of Kawawachimach should review the implementation of the Northeastern Quebec Agreement in the education of the Naskapis to ensure the provision of appropriate programs and services in the vocational and post-secondary education of the Naskapis.

Program to Assist Hunting, Fishing and Trapping (Naskapis of Kawawachikamach)

The Hunter Support program, established under Section 19 of the NEQA, provides funding for Naskapi beneficiaries to pursue hunting, fishing and trapping activities. The program is crucial in preserving Naskapi culture and traditional way of life.

The Naskapi Nation is currently trying to negotiate a funding amount that is commensurate to the population rate, population growth and cost of living in Kawawachikamach.

36. Quebec and the Naskapi Nation of Kawawachikamach should review and amend Section 19 of the Northeastern Quebec Agreement to ensure adequate funding for the Naskapi beneficiaries of the Program to Assist Hunting, Fishing and Trapping.

Hunting, Fishing and Trapping Coordinating Committee (Naskapis of Kawawachikamach)

The Hunting, Fishing and Trapping Coordinating Committee (HFTCC) was created by and in accordance with Section 24 of the JBNQA, in order to review, manage and in certain cases, supervise and regulate the hunting, fishing and trapping regime established by the JBNQA and NEQA.

The recommendations of the HFTCC are decided upon by a voting procedure described in Section 24 of the JBNQA. This voting procedure doesn’t function well for the issues, interests and concerns of the indigenous parties.

37. The voting procedure of the Hunting, Fishing and Trapping Coordinating Committee should be reviewed to ensure adequacy in the participation of the Native parties in the decision- making process.

Environmental Consultation of the Nation (Naskapis of Kawawachikamach)

The Naskapi Nation of Kawawachikamach feels that the provincial and federal consultation and participation processes provided in the JBNQA and the NEQA do not provide adequate participation, consultation and protection for the Naskapis, Naskapi Sector and Naskapi traditional territory, especially in the context of social and environment reviews and assessments in Nunavik. As it is, the Naskapis are left out of the decision-making process affecting the Naskapi Sector and the Naskapi traditional territory.

38. Canada, Quebec and the Native Parties should review and revise the NEQA and the JBNQA to enable the Naskapi to appoint one member on the Kativik Environmental Quality Commission, the Steering Committee, the Review Panel and the Kativik Environmental Advisory Committee, and to ensure that the Naskapi Nation’s unique perspective and particular interests are taken into account throughout the consultations and in social and environmental review and assessment processes.

Regional and Territorial Governance (Naskapis of Kawawachikamach)

The Mayor of the Naskapi municipal corporation of Kawawachikamach (who is also the Chief of the Naskapi Nation) has a seat on the Council of the Kativik Regional Government (KRG) which has jurisdiction, powers and services that have a bearing on the Naskapi Nation, Naskapi Sector and Naskapi traditional territory (Naskapi Territory).

The present structure of the KRG allows the Inuit majority to decide on issues involving the Naskapi Territory. It creates a particular situation where an indigenous group overpowers another indigenous group on its own territory.

39. Canada, Quebec and the Native Parties concerned should review and amend the NEQA and the JBNQA to extend self-governance and self-representation to the Naskapi Nation of Kawawachikamach for matters and issues involving the Naskapi Territory.

Other Services: Housing and Daycare (Naskapis of Kawawachikamach)

Like other communities, the Naskapi have been affected by overcrowding, worsening housing conditions and inadequate funding for housing. The current housing situation puts families at risk, including health issues due to mould, and exposure to violence and substance abuse.

In light of the current housing situation, the Naskapi Nation believes that appropriate housing funding should be guaranteed by the NEQA.

The public daycare in Kawawachikamach with its limited spaces has not been able to accommodate all children in the community. Daycare services should be provided for in the NEQA to secure and guarantee a minimum level of services for children and parents in Kawawachikamach.

40. Quebec, Canada and the Naskapi Nation of Kawawachikamach should review and amend the NEQA to ensure adequate funding, programs and services for housing and daycare services in Kawawachikamach.

Naskapi Governance

While the Naskapi Nation has benefitted greatly from the NEQA and continues to do so, there are several areas that need improvement. The Naskapi Nation is currently addressing a growing number of those areas in separate, file-specific negotiations with Canada and/or Quebec. As the scope and number of the files under negotiations broadens, the Naskapi Nation is now reflecting on complementary approaches to consolidate its efforts to modernize the NEQA and to enhance its current form of self-government, and it will soon approach both Canada and Quebec to request the establishment of a table to begin discussing these matters.

41. Quebec, Canada and the Naskapi Nation of Kawawachikamach should establish a process to discuss the modernization of the NEQA and the enhancement of Naskapi self-government.

Proposal for the Creation of a Legal Fund for the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement Beneficiaries

Mr. Johnny Mameanskum, a member of the Naskapi Nation of Kawawachikamach, submitted a document dated February 6, 2018 and entitled “Proposal for the Creation of a Legal Fund for the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement Beneficiaries”

to the Cree-Naskapi Commission. In the said proposal, Mr. Mameanskum proposes the creation of a fund to assist beneficiaries who may challenge general band elections or raise other matters to protect their rights in the implementation of the JBNQA, NEQA and related legislation.

42. Canada, Quebec, the Cree Nation Government and the Naskapi Nation of Kawawachikamach should establish a process to discuss the creation of a program and/or service with adequate and appropriate funding to assist Naskapi and Cree beneficiaries who may challenge general band elections or raise other matters to protect their rights in the implementation of the JBNQA, NEQA and related legislation.

Dispute Resolution

With the resumption of more of its inherent powers of self-government, the Cree Nation of Eeyou Istchee will increasingly have to develop structures and processes to resolve internal disputes.

The Cree Nation Government now has the jurisdiction to make laws on structures and processes for addressing Cree needs in relation to internal dispute resolution and adjudication. They will need to be proactive in this area early in the era of expanded self-government.

43. The Cree Nation Government should enact law(s) establishing processes for dispute resolution and adjudication for disputes between Cree First Nation Governments and Cree entities and disputes between or amongst Indoh-hoh Ouje-Maaooch (Tallymen) respecting hunting territories.

Review of Section 9 of the James Bay and Northern Quebec Agreement

The Cree-Naskapi (of Quebec) Act is the special legislation contemplated in Section 9 (Local Government over Category IA Lands) of the James Bay and Northern Quebec Agreement. The Act has been amended to take into account Agreements between Canada and the Crees of Eeyou Istchee respecting governance in Category IA lands. Since the signing of the James Bay and Northern Quebec Agreement in 1975, Section 9 has never been reviewed nor amended by the Parties concerned to reflect the present nature and state of Cree Nation local government and Cree Nation Government.

44. Canada, Quebec and the Cree Nation Government should review and amend Section 9 of the James Bay and Northern Quebec Agreement to reflect the present realities of aboriginal law, customary law and state of Cree local government and Cree Nation Government.

Conclusion

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.

Since its establishment, the Cree-Naskapi Commission has produced 15 (fifteen) biennial reports pursuant to sub- section 165 (1) and in accordance with sub-section 171 (1) of the Cree-Naskapi (of Quebec) Act.

The present report constitutes the sixteenth (16th) biennial report.

On February 14, 2018, the Minister of Crown-Indigenous Relations and Northern Affairs introduced in the House of Commons of Canada Bill C-70 which is the Governance Legislation contemplated by the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada. Bill C-70 gives effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada and the Cree Constitution. It amends the Cree-Naskapi (of Quebec) Act to ensure that the Act no longer applies to the Crees of Eeyou Istchee and to make changes to certain aspects of the mandate of the Cree-Naskapi Commission to take into account the Agreement. It also makes related consequential amendments to other Acts.

On March 29, 2018, Bill C-70 received Royal Assent and came into force. Section 98 of the Bill C-70 repeals Section 171 of the Cree-Naskapi (of Quebec) Act. (Section 171 of the Cree-Naskapi (of Quebec) Act describes the duty of the Cree-Naskapi Commission to prepare and submit a biennial report to the Minister who shall cause the report to be laid before each House of Parliament.)

However, the transitional provisions of the Act provide as follows:

“Cree-Naskapi Commission’s report to Parliament

124 (1) The Cree-Naskapi Commission may prepare and submit to the Minister of Indian Affairs and Northern Development a last report in English, French, Cree and Naskapi, for the period beginning on the day that follows the end of the period for which the 2016 Report of the Cree-Naskapi Commission was completed and ending on the day on which section 98 comes into force, on the implementation of the Cree-Naskapi (of Quebec) Act, and the Minister shall cause the report to be laid before each House of Parliament on any of the first 10 days on which that House is sitting after the day on which the Minister receives it.

Circulation of Report

(2) As soon as feasible after the report is laid before each House of Parliament, the Minister shall send a copy of the report to the Cree Nation Government, the Naskapi Development Corporation, the council of each Cree First Nation and the council of the Naskapi band.”1

Consequently, the present report is the last and final biennial report of the Cree-Naskapi Commission.

However, pursuant to Section 165 (1) of the Naskapi and the Cree-Naskapi Commission Act, the duties of the Cree-Naskapi Commission are described as follows:

“165 (1) Subject to subsections (2) and (3), the Commission shall

(a) with respect to Naskapi beneficiaries, 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; and (b) with respect to Cree beneficiaries, as defined in subsection 2 (2) of the Cree Nation of Eeyou Istchee Governance Agreement Act, investigate any representation submitted to it relating to the implementation of the Agreement, as defined in subsection 2 (1) of that Act and the Cree Constitution, as defined in that subsection, including representations relating to the exercise or non-exercise of a power and the performance or non-performance of a duty under that Agreement or the Cree Constitution.”

In summary, the Naskapi and the Cree-Naskapi Commission Act preserves the Cree-Naskapi Commission, while modifying its duties so as to eliminate the report to Parliament and continue its “ombudsman” function of investigating representations of Cree or Naskapi beneficiaries.

The recommendations of the Cree-Naskapi Commission from its biennial reports from 1986 to 2018 have covered the following principal issues and concerns of the Cree and Naskapi Nations:

1. Eeyou Local Government and Local Eeyou Administration

2. Cree Nation Government

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

4. Cree-Naskapi Commission

5. Implementation and Review of the James Bay and Northern Quebec Agreement and Northeastern Quebec Agreement

6. Housing and Capital Works

7. Police Services and Administration of Justice

8. Social and Economic Development

9. Chisasibi Block “D”

10. Oujé-Bougoumou Crees

11. Washaw Sibi Eeyou

12. Recognition of MoCree Eeyoud as a Community

13. Education, Language and Culture

14. Programs, Services and Funding for Youth

15. Cree and Naskapi Rights and Claims

While some issues and concerns have been resolved, the following two (2) fundamental issues and concerns remain unresolved despite the recommendations of the Cree-Naskapi Commission:

1. Housing

The provision of housing remains a critical matter and an issue of priority for the Cree communities. In fact, housing is a major issue and a major source of social problems due to the following principal housing, social and political conditions:

a. enormous shortage in allocation of housing units;

b. overcrowding of existing houses;

c. inadequate funding for constructing new housing, repairing and

d. rapid growth in population needing shelter;

e. increasing backlogs of new and renovated housing needs;

f. construction of houses in Whapmagoostui is a very expensive undertaking because of the isolation factor of the community;

g. failure of the government of Canada to fulfill its fiduciary and legal responsibilities to First Nations;

h. Indigenous and Northern Affairs Canada priority matrix for funding has not set housing construction for growth as a high priority; and

i. Canada’s policy on housing support has failed the outstanding housing needs of First Nations.

In its past reports, the Commission has repeatedly made recommendations for the Government of Canada to address the critical housing situation with the Cree Nation Government. But the Government of Canada, so far, has failed to address adequately the housing situation and needs of the Cree with the Cree Nation Government.

The Naskapi Nation, like the Cree communities, has similar issues and concerns on housing for its members living in Kawawachikamach. In its past reports, the Commission has made recommendations for Canada to address, in an adequate manner, the housing needs of the Naskapi Nation of Kawawachikamach.

It is recognized in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights that all people are entitled to have access to adequate housing.

2. Eeyou and Naskapi Governance

The Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada enhances Eeyou governance on Category IA for Eeyou of Eeyou Istchee. However, the said Agreement retains and maintains certain provisions from the Cree-Naskapi (of Quebec) Act that constitute serious obstacles and constraints for the exercise of Cree local government and administration. These provisions concern the requirement of high and difficult-to-achieve quorums for decision-making.

The spirit and intent of the James Bay and Northern Quebec Agreement and its related agreements requires 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 treaty (James Bay and Northern Quebec Agreement) and related agreements with Canada and Quebec. In entering into such nation-to-nation agreements with Eeyou, Canada and Quebec have already acknowledged their self-governing people status.

Eeyou of Eeyou Istchee and the Naskapi Nation of Kawawachikamach people have determined the nature and form of their governments. The assertion of their inherent right of self-determination arising from their status as distinct peoples entitles them to determine their own future within Canada and to govern themselves under institutions of their own choice and design. In this regard, Eeyou and Naskapi 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 and Naskapi rights and aspirations.


END NOTES

1 Transitional Provisions of subsections (1) and (2) of section 124 of Bill C-70: An Act to give effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada, to amend the Cree-Naskapi (of Quebec) Act and to make related and consequential amendments to other Acts