IMPLEMENTATION AND AMENDMENTS

OF THE CREE-NASKAPI (OF QUEBEC) ACT

DISCUSSION PAPER

JANUARY 1999

PREPARED BY THE CREE-NASKAPI COMMISSION

Richard Saunders - Chairman

Philip Awashish - Commissioner

CREE-NASKAPI COMMISSION, 222 QUEEN STREET, SUITE 305... OTTAWA, ON K1P 5V9

INTRODUCTION

The Cree and Naskapi peoples have exercised and will continue to exercise their right of self-determination so as to strengthen their governments, institutions, culture and traditions in accordance with their aspirations and needs.

In fact, the terms 'Eeyou/Eenou Kastchehouwun and Eetouwun' used by the Cree and Naskapi leadership encompass the principles of human rights, fundamental freedoms and aboriginal rights.

For the recognition and protection of their rights and interests, the Cree and Naskapi peoples negotiated their respective modern day treaties - the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. The Cree and Naskapi view these Agreements or treaties as reaffirmation of their rights and status as a 'nation' and 'people'. They consider also that these Agreements or treaties establish a framework for meaningful and positive relations with the Governments of Canada and Quebec as well as with contemporary society.

The Governments of Canada and Quebec view these Agreements or treaties as extinguishment of rights and acceptance of the supremacy of the Crown by the Native parties. In particular, as far the Governments of Canada and Quebec are concerned, these treaties pave the way for the development of natural resources within Cree and Naskapi (as well as Inuit) territories.

Upon the insistence of the Cree and Naskapi (as well as Inuit) leadership, the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement have been approved, given effect to and declared valid by legislation of the Governments of Canada and Quebec. 

Furthermore and most important, the Constitution Act, 1982, recognizes and affirms Aboriginal and Treaty rights. Consequently, the treaty rights of the Cree and Naskapi peoples under the James Bay and Northern Quebec Agreement (JBNQA) and the Northeastern Quebec Agreement (NEQA) as well as their aboriginal rights are protected by the supreme law of Canada.

Prior to the implementation of the JBNQA and the NEQA, the Cree and Naskapi peoples were considered governed by and subject to the terms and provisions of the Indian Act and its amendments. The Indian Act provides the Government of Canada with the means to manage the lives and affairs of 'Indians'. As far as the Cree and Naskapi peoples were concerned, the Indian Act severely limited the exercise of the right of self-determination and the practice and right of self-government. Hence, as a means of reaffirmation and gaining recognition of their right of self-government, the Cree and Naskapi leadership, respectively, negotiated Section 9 (Local Government over Category IA Lands) and other relevant Sections of the JBNQA and Section 7 (Local Government over Category IA-N Lands) and other pertinent Sections of the NEQA. These Sections of the modern day treaties provide for partial expressions of the Cree and Naskapi right of self-government.

CREE-NASKAPI (OF QUEBEC) ACT

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

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. 

The representatives of the Cree and Naskapi parties and the Government of Canada arrived at a shared understanding as to the implications and impact of the Cree-Naskapi (of Quebec) Act, in the Statement of Understanding of 1984, which is best summarized 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 and Northeastern Quebec Agreements. The new structures which were created by the Agreements were meant to interface with properly constituted local governments. The Cree-Naskapi (of Quebec) Act is also the basis upon which the relationship with the Federal Government will be redefined. By way of the new Cree-Naskapi (of Quebec) Act, the Cree and Naskapi will be able to go beyond the restrictions inherent in the Indian Act and thereby assume full control in the administration of their communities and management of Category IA and IA-N Lands."

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

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

IMPLEMENTATION AND AMENDMENTS OF THE CREE-NASKAPI (OF QUEBEC) ACT

1. Application of the Indian Act (The Indian Act does not apply.)
2. Incorporation, Name and Membership of Cree and Naskapi Bands
3. Objects and Powers of Bands
4. Band Council and Council Meetings
5. By-laws Respecting Local Government
6. Procedure for Making By-laws and Resolutions
7. Challenges to By-laws or Resolutions
8. Band Elections - Election By-laws
9. Calling of Elections
10. Contestation of Election Results
11. Meetings and Referenda of the Band
12. Financial Administration of Bands
13. Residence and Access Rights on Category IA and IA-N Land
14. Rights of Bands, Quebec and others in Relation to Category IA and IA-N Land
15. Expropriation of Category IA or IA-N Land by Quebec
16. Disposition of Rights and Interests in Category IA and IA-N Land and Buildings
17. Cessions by Bands
18. Land Registry System
19. Expropriation by Bands
20. Cree-Naskapi Commission
21. Successions
22. Policing
23. Offences
24. Administration of Justice

In the transition from the regime of the Indian Act (which does not apply to the Cree and Naskapi bands and in their community lands after the coming into force of the Cree-Naskapi (of Quebec) Act), the implementation of local government under the new Act contemplates the following significant and major departures from the Indian Act:

1. accountability of Cree and Naskapi local government to their people;
2. expanded jurisdiction and authority of Cree and Naskapi local governments over matters affecting their people;
3. limited authority of the Minister of the DIAND;
4. full control and management of community lands by the Cree and Naskapi peoples;
5. redefinition and establishment of bilateral relations with the federal government to promote orderly and efficient Cree and Naskapi local government;
6. guarantees and negotiations between the Government of Canada and the Cree and Naskapi First Nations for administrative measures and fiscal arrangements respecting local government and band administration (i.e. Operations and Maintenance Funding) and community development (i.e. housing, infrastructures and capital projects);
7. transfer of administration and delivery of federal programs and services to Cree and Naskapi local government; and
8. monitoring and reporting mechanism on the implementation of the Cree-Naskapi (of Quebec) Act.

The meaning and practice of local self-government has evolved and been redefined over the past fifteen (15) years in a manner consistent with the aspirations, goals and political will of the Cree and Naskapi First Nations. The Cree and Naskapi people are using their governments to meet needs such as housing, economic development, traditional (hunting, fishing, and culture) pursuits, policing, administration of justice, education, health, delivery and administration of programs and services, community development, environmental protection, and political representation to conduct government-to-government relations. The full potential of local self-government, with its dynamic and evolving nature, has not yet been realized nor achieved by the Cree and Naskapi First Nations because, as one principal constraint, the Cree-Naskapi (of Quebec) Act, after fifteen (15) years, remains an inflexible, rigid and unchanging instrument. (However, the JBNQA is a treaty, with an evolving character, as it has been amended by means of twelve (12) Complementary Agreements to meet the needs and changing conditions of the parties concerned.) Therefore, the Cree-Naskapi (of Quebec) Act, must be amended in order to provide a flexible framework to accommodate the full range of governmental and political arrangements needed and sought by the Cree and Naskapi First Nations and peoples.

The Cree-Naskapi (of Quebec) Act does not, specifically, establish a process for its proper implementation. In the absence of such a process, general responsibility for the proper implementation of the Cree-Naskapi (of Quebec) Act was assumed by the Department of Indian Affairs and Northern Development (DIAND). This assumption of general responsibility by the DIAND has resulted to both positive and negative consequences for the implementation of the Cree-Naskapi (of Quebec) Act. Nevertheless, the Cree-Naskapi (of Quebec) Act should be amended to provide for a meaningful, periodic and effective process of review and implementation of the Act with the direct participation of the Cree and Naskapi parties. This periodic review should include the assistance of the Cree-Naskapi Commission.

However, the Cree-Naskapi (of Quebec) Act establishes the Cree-Naskapi Commission with duties to prepare biennial reports on the implementation of the Act and to investigate any representation submitted to it relating to the implementation of the Cree-Naskapi (of Quebec) Act.

After the preparation and submission of six such biennial reports to the Minister of DIAND on the implementation of the Act, from 1986 to 1998, the Cree-Naskapi Commission has concluded that the proper implementation of the special federal legislation respecting Cree and Naskapi local government depends essentially upon the cooperation, good faith and political will of the Governments of Canada and the Cree and Naskapi First Nations and peoples.

In the preparation of its biennial reports on the implementation of the Cree-Naskapi (of Quebec) Act, the Cree-Naskapi Commission has conducted public consultations with the Government of Canada, Cree and Naskapi First Nations and other interested parties as part of its fact-finding procedures. Based on its findings and conclusions and submissions of federal and Natives parties, the following general issues and concerns constitute the major constraints and barriers for the proper implementation of the Cree-Naskapi (of Quebec) Act and exercise of local Cree and Naskapi self-government:

1. Federal Fiscal Policy and Funding


It was imperative to the Cree and Naskapi that assured funding for local government and administration be guaranteed in legislation or in a binding negotiated agreement. Therefore, representatives of the Cree, Naskapi and Canada negotiated the Statement of Understanding which was signed on August 9, 1984. The Government of Canada refused to accept the Statement of Understanding as a binding agreement. The disagreement over the Statement of Understanding led to confrontation, litigation, negotiations and eventually to a mediated settlement.

The renewal of levels of funding for periods of five (5) years and its transfer arrangements as well as its implementation by means of "Operations and Maintenance Funding Transfer Payment Agreements" have been and continue to be an exercise of acrimony and confrontation.

Consequently, the Cree-Naskapi (of Quebec) Act, should be amended to provide for the following:

1. appropriate funding guarantees and arrangements;
2. fiscal independence and appropriate sources of funding;
3. process for review, renewal and implementation of funding arrangements and agreements; and
4. mechanism for dispute resolution.
2. Government-to-Government Relations


The Cree-Naskapi (of Quebec) Act establishes government-to-government relations and imposes responsibilities and obligations upon the Government of Canada as a whole and not solely upon the Department of Indian Affairs and Northern Development for the normal and primary means of implementation of the Cree-Naskapi (of Quebec) Act. The Cree and Naskapi First Nations also have responsibilities and obligations for the exercise of orderly and efficient local governments. However, meaningful and productive government-to-government relations are essential and necessary with the Government of Canada as a whole and not solely with DIAND which lacks the structure and resources to effectively coordinate interdepartmental interests and responsibilities for the proper implementation of the Cree-Naskapi (of Quebec) Act. The Report of the Auditor General of Canada to the House of Commons for the fiscal year ended, March 31, 1986, confirms the latter point. The government-to-government relations have, from time to time, been confrontational and adversarial. However, these relations have forged agreements, after difficult and strenuous negotiations, for the benefit and interests of the Cree and Naskapi local governments. But, the partnership of Canada and the Cree and Naskapi First Nations must be renewed with the Government of Canada as a whole. Furthermore, the purpose of the Act should assert the obligations of Canada for effective government-to-government relations.

In addition, the Act should provide for or recognize local and regional Cree government-to-government relations as determined by the Cree Nation and peoples and similar provisions should be determined by and for the Naskapi Nation and people.

3. Public Forums and Quorums for Decision-Making 


The traditional practice of Cree and Naskapi government places strong emphasis on the use of public meetings and consensus in decision-making and policy-making. The Cree-Naskapi (of Quebec) Act encourages and prescribes the conduct of ordinary, general or special band meetings and referenda in decision-making. In addition, the Act imposes quorums or a minimum percentage of electors of the band that must vote on a matter and, in some cases, a minimum percentage of electors of the band that must vote, in favour of, or approve a matter. In particular, the Cree-Naskapi (of Quebec) Act provides for the following quorums and public forums for decision-making by the electors of the Cree and Naskapi First Nations (bands) on the following matters:

1. by-law to change band name - s. 16 (1) provides for at least 5 % voting on the matter;
2. taxation by-law - s. 45 (3) provides for at least 10 % voting on the matter at a special band meeting or referenda;
3. land and resource use plan - s. 46 (2) stipulates that such a plan must be approved by the electors at a special band meeting or referenda at which at least 25 % of the electors voted on the matter;
4. zoning by-law - s. 47 (2) provides for its approval at a special band meeting or referendum at which at least 15 % of the electors voted on the matter;
5. election by-law- s. 66 (1) specifies for a special band meeting or referendum at which at least 20 % of the electors voted on the matter;
6. declaration of office of council member vacant due to absence from council meetings - s. 70 (2) provides that at least 20 % of the electors vote on the question at a special band meeting;
7. calling by electors for a general election - s. 75 (3) provides that at a special band meeting at least 50 % of the electors of band vote on the question and the majority consisting of at least one-third (?) of the total number of electors of the band must vote in favour of the question in order to hold a general election;
8. by-law to change specified minimum percentage of electors voting to approve matter - s. 86 (3) specifies that the same percentage of electors vote on the matter as the minimum specified in the relevant provision of the Act;
9. long term borrowing by-law - s. 97 (2) stipulates that such a by-law must be approved by the electors of the band at a special band meeting or referendum at which at least 20 % of the electors voted on the matter; 
10. authorization for commercial exploitation of forest resources - s. 111 (2) determines that such an authorization requires the approval of the electors of the band at a special band meeting or referendum at which at least 25 % of the electors voted on the matter;
11. granting of mineral and subsurface rights - s. 113 (4) fixes a quorum of at least 25 % of electors voting on the matter at a special band meeting or referendum;
12. compensation for lands taken or used by Quebec or public body for public services or structures (roads, pipelines,.... etc.) - s. 122 (3) & (4) provides that the type (land, money or both) and amount of compensation must be approved by the electors of the band at a special band meeting or referendum at which 25 % of the electors voted on the matter;
13. selection of replacement land and other compensation for land taken by Quebec or public authority, and reclassification of such land when no longer required by expropriating authority - ss.125 (1) (2), 125 (1) (c), 125 (1) (d), 125 (1) (e), 126 - fixes a quorum of 25 % of electors voting on these matters at a special band meeting or referendum;
14. grant of land for non-residential purposes for a term of less than 25 years - s. 132 (3) (a) determines that at least 10 % of the electors of the band vote on the matter at a special band meeting or referendum;
15. grant of land for non-residential purposes for a term of 25 years or more - s. 132 (3) (b) establishes a quorum of at least 25 % of the electors of the band vote on the matter at a special band meeting or referendum;
16. grant of land for commercial fishing or outfitting operation - s. 135 (2) (a) & (b) provides that at a special band meeting or referendum least 10 % of the electors vote on the matter, in the case of permission for a period of less than twenty-five (25) years; or at least 25 % of the electors of the band vote on the matter, in the case of permission for a period of twenty-five (25) years or more;
17. transfer of right in land for non-residential purposes - s. 137 (2) stipulates that at a special band meeting or referendum the same percentage (10 % or 25 %) of electors vote on the matter as required for original grant; 
18. cession of land - s. 144 (1) determines that a cession requires the approval of the electors of the band in a referendum in which at least 65 % of the electors vote in favour of the cession;
19. wavier of seizure exemptions respecting right in land - s. 193 (2) provides for the same percentage of electors, at a special band meeting or referendum, voting on the matter as if right or interest in land were being granted by band for remaining term of right or interest; and
20. waiver of seizure exemptions for immovable or moveable property - s. 193 (3) provides for a special meeting or referendum at which at least 25 % of the electors vote on the matter.

In some cases, the requirement of quorums or the percentage of electors of a band meeting or referendum are serious detriments and barriers in the exercise of necessary to vote on certain matters and the requirements for a special decision-making and policy-making by the local governments of the Cree and Naskapi First Nations and peoples.

Furthermore, Section 86 (2) of the Cree-Naskapi (of Quebec) Act permits a band to make by-laws which determine a different minimum percentage of electors required to vote on a matter but not a lower percentage than that specified in the relevant provision of the Act.

The quorum provisions of the Act guarantee band members a direct role and participation in decision-making respecting important matters. However, some of the Cree and Naskapi local governments have expressed concern that certain minimum percentage requirements are too high. But, the Cree and Naskapi local government, peoples or bands cannot reduce these quorums or minimum percentage requirements under the present terms of Section 86(2) of the Cree-Naskapi (of Quebec) Act. 

In some cases, the requirements for approval by the electors on certain matters should be eliminated.

The Cree and Naskapi local government should determine their own quorums by their own legislative powers and authority.

Therefore, it has become necessary and essential that a full review of these requirements of the Act be conducted by the parties concerned so that appropriate amendments can be made to the Cree-Naskapi (of Quebec) Act to facilitate and not constrain the decision-making process of local government.

4. Police and Enforcement


Under the Cree-Naskapi (of Quebec) Act, the Cree and Naskapi police forces have jurisdiction over Category I A and Category I A-N Lands respectively. However, Cree and Naskapi local governments have stated that their police forces should have and exercise jurisdiction outside of the parameters of Category I Lands.

Furthermore, the Cree and Naskapi First Nations should be provided adequate financial resources to provide effective policing services for their communities.

As the provision of effective policing services as well as the maintenance of law and order are essential dimensions of self-government, the Cree-Naskapi (of Quebec) Act should be amended to guarantee the provision of appropriate and adequate resources for effective policing services by the Cree and Naskapi First Nations. Most important, the Cree and Naskapi First Nations should create their own police forces which are recognized by the Act.

In addition, Section 19 - Police (Crees) of the JBNQA and Section 13 - Police (Naskapi) -of the NEQA should be reviewed and implemented properly by the parties to complement the implementation and development of Cree and Naskapi self-government.

5. Administration of Justice


The administration of justice is one of the fundamental functions of governments. For the Crees and Naskapi local governments, this function encompasses various services such as a legal department to provide advice and draft legislation, an effective police force to enforce laws, and prosecution of offenders. The administration of justice also entails courts and institutions to deal with offenders. In this respect, the local Cree and Naskapi peoples must be represented by an advocate or such other person as may be designated for court proceedings on enforcement of local by-laws and proper resources should be provided for this purpose. However, the Cree and Naskapi First Nations feel that the present justice system was developed without their direct participation and imposed upon them. The Native parties want to develop, review and implement their own justice system that reflects Cree and Naskapi values and principles.

The Cree-Naskapi (of Quebec) Act should be amended to take into account these aspirations and goals for a Native justice system with adequate resources.

Accordingly, Section 18 - Administration of Justice (Crees) - of the JBNQA and Section 12 - Administration of Justice - of the NEQA should be reviewed, amended and implemented properly to reflect these aspirations and goals of the Cree and Naskapi First Nations and peoples.

6. Powers and Jurisdiction of Governments


Federal and provincial government jurisdiction flows from the Constitution Act, 1867, which provides the Governments of Canada and Quebec with legislative powers. The Government of Quebec claims and exercises legislative powers over policing, justice, education, health and other matters.

For many reasons, Quebec, as a provincial government, is becoming increasingly important to the lives of Cree and Naskapi peoples. After all, the Government of Quebec is a party and a signatory to the treaties - the JBNQA and the NEQA. Quebec has enacted legislation to put into force, into effect and to declare valid these treaties.

In the areas of policing and justice, the Cree and Naskapi parties should negotiate with Quebec for a parallel legislation on local governments. These negotiations should cover jurisdiction of local governments and Native police forces outside of Category I Lands as well as the development, review and implementation of a Native justice system with adequate resources. A negotiated agreement and appropriate enabling legislation or legislation which recognizes these matters would definitely complement the practice and exercise of Cree and Naskapi self-government.

However, full legislative and policy making powers on matters affecting the Cree and Naskapi peoples, their communities and lands should be among the powers of the Cree and Naskapi local governments. Consequently, the powers of the Minister of the DIAND and the Governor in Council provided for in the Cree-Naskapi (of Quebec) Act must be reviewed and the Act should be amended accordingly.

Furthermore, the Act should provide for or recognize the authority of the Cree local and regional governments and authorities to make agreements with governments and public bodies and agencies. The application of such agreements should also be recognized in the Act. Similar amendments to the Act should be determined by and for the Naskapi Nation and people.

As an example, the Cree-Naskapi (of Quebec) Act should be amended to provide for agreements between Cree, Naskapi and other governments and public bodies for the purpose of facilitating government administration of Category I A, I B, I B Special, I A-N, Category II and Category III lands.

(Section 196 of the Cree-Naskapi (of Quebec) Act , simply, permits a Cree or Naskapi band, with the approval of Quebec, to enter into an agreement with certain authorities for the provision of policing services on Category I A or I A-N land.)

7. Implementation of the Treaties - the JBNQA and the NEQA


In the absence of an implementation process and a mechanism for dispute resolution within the modern day treaties (JBNQA and NEQA) and their enabling legislation, the Cree and Naskapi First Nations and peoples, as signatories and beneficiaries of these treaties, depend on the expressed or implied obligation placed upon the Government of Canada and Quebec in the JBNQA and the NEQA to take appropriate legislative and administrative action for the proper implementation of these treaties. However, the legislative and administrative measures necessary for treaty implementation had to be negotiated by the Governments of Canada, the Cree and Naskapi. Nevertheless, the question remains whether appropriate legislative and administrative measures are presently in place for the implementation, in letter and spirit, of the JBNQA and the NEQA.

For the Cree-Naskapi Commission, it has become apparent that the proper implementation of the JBNQA and the NEQA is essential and fundamental for the realization of Cree and Naskapi self-government. The implementation of the Cree-Naskapi (of Quebec) Act, as legislation enabling self-government contemplated by pertinent Sections of the JBNQA and the NEQA, is complementary and inseparable from the implementation of these treaties.

Therefore, the question also remains and must be asked if the appropriate legislative and administrative measures are in place for the proper implementation of the Cree-Naskapi (of Quebec) Act. As far as legislative measures are concerned, the advancement of the Cree and Naskapi local governments and the Cree-Naskapi Commission require appropriate amendments to the Cree-Naskapi (of Quebec) Act. Furthermore, productive and effective new administrative measures are needed for adequate funding, appropriate fiscal policies and proper structures for the implementation of the Act.

The Governments of Canada, the Cree and Naskapi must avoid adversarial and acrimonious exercises and adopt a plan based on the principles of cooperation, good faith, mutual respect and mutual responsibility for the proper implementation of the letter and spirit of the JBNQA, the NEQA and the Cree-Naskapi (of Quebec) Act.

The federal government conducted a review of the JBNQA, in 1982. In its report, entitled James Bay and Northern Quebec Implementation Review, the full federal review concluded as follows:

"Lack of proper mechanism, structure and attitudes regarding implementation has been a major impediment to the smooth and efficient implementation of the Agreement. The establishment of more effective systems for implementation can do a great deal to prevent the build up of the type of conflict and tensions which, in recent years, have consumed time and resources that could be used much more productively in achieving the aims and objectives of the Agreement".

Furthermore, the Report of the Auditor General of Canada to the House of Commons (Chapter 14 - Indian and Northern Affairs Canada - Comprehensive Land Claims), September 1998, states as one of its main points as follows:

"We found deficiencies in implementation, including inadequate or non-existent implementation plans, and the need to improve, reporting and evaluating".

The accountability, obligations and responsibilities of the federal government, as well as those of the Native parties, for proper implementation of the JBNQA and the NEQA including the Cree-Naskapi (of Quebec) Act must also be clarified.

While the Government of Canada has concluded implementation agreements with the Cree and Naskapi First Nations, experience and history will determine their effectiveness. Clearly, the good will, faith and political resolve of all the parties concerned are needed for the proper and effective implementation of the JBNQA, the NEQA and the Cree-Naskapi (of Quebec) Act. ( The Cree-Naskapi Commission has prepared a separate discussion paper on the implementation process of treaties such as the JBNQA and the NEQA.)

8. Cree-Naskapi Commission


Pursuant to Section 172 of the Cree-Naskapi (of Quebec) Act, the Governor in Council appointed persons "to inquire into the powers, duties and operation of the Cree-Naskapi Commission". This independent inquiry was conducted under the Chairmanship of Mr. Ian B. Cowie and completed February, 1991, with a report to the Minister of Indian Affairs and Northern Development.

The Report of the Inquiry into the Cree-Naskapi Commission, February 1991, includes the following principal recommendations:

1. The Cree-Naskapi Commission should be maintained as a body to serve the common interests of the parties.
2. The Commissions mandate should include a broader dispute resolution which should cover all issues arising from the JBNQA and the NEQA, the Cree-Naskapi (of Quebec) Act and related legislation and agreements.
3. The Commission should be the primary body for the resolution of disputes.
4. Where the parties have agreed, the Commissions decision shall be final, with defined rights of appeal and enforcement.
5. The report function of the Commission should extend to encompass implementation of the Agreements, as well as the Act.
6. The powers conferred upon the Commission to discharge its expanded mandate will require reassessment. The parties will need to determine which powers should be exercised by the Commission in each of the major functions. The powers recommended for consideration are:

1. The power to make findings, decisions and awards binding on the parties, where the parties in question have agreed to so bind themselves.
2. The power, in all cases, to make non-binding recommendations to the parties. 
3. The powers for specified functions to:

• undertake and commission research;
• compel oral or written testimony;
• receive and accept evidence under oath;
• subpoena witnesses and documents;
• direct the parties in respect of the payment of costs; and
• make findings, awards and/or recommendations 
7. The Commission must be provided with the funds required to effectively discharge the mandate agreed to by the parties.
The Report of the Inquiry into the Cree-Naskapi Commission is entitled "The Cree-Naskapi Commission - Challenges for the Nineties". (The Report is dated February, 1991.)

As the nineties come to an end, it is clear that the "challenges" contemplated in the Report of the Inquiry into the Cree-Naskapi Commission have not been met and remain outstanding.

The members of the Inquiry in their letter of submission of the Report to the Minister of Indian Affairs and Northern Development have stated:

"It is our hope that this report will provide a basis for the Crees, the Naskapi and the Federal Government to work cooperatively together to achieve agreement in the future of the Commission in such a way as to ensure that this body, which is unique in Government-Aboriginal relations in Canada, is better able to serve the common interests of the parties to Canada's first legislation recognizing Indian self-government".

Pursuant to Section 10 of the James Bay and Northern Quebec Native Claims Settlement Act, the Minister of Indian Affairs and Northern Development must submit to the House of Commons a report on the implementation of the provisions of the said Act for every year including and occurring between the years 1978 and 1998. As the said Act approves, gives effect to and declares valid the JBNQA (and the NEQA by virtue of an order of the Governor in Council made under the Act), the Minister submits an annual report, basically, on the implementation of the JBNQA and the NEQA for the years 1978 to 1998.

Clearly, there is an essential need for an appropriate report system on the implementation of the JBNQA and the NEQA for the years after 1998. As stated, the Report of the Inquiry into the Cree-Naskapi Commission has recommended, as one of its recommendations, that the report function of the Commission should extend to encompass implementation of the Agreements, as well as the Cree-Naskapi (of Quebec) Act. However, the report on the implementation of the JBNQA and the NEQA should cover only matters that affect the Cree and Naskapi parties. The Cree-Naskapi Commission should submit such a report to the Governments of Canada, the Cree and Naskapi peoples.

The Cree and Naskapi First Nations have also expressed the need to expand the role and mandate (of the Cree -Naskapi Commission) which should include all issues relating to the proper implementation of the JBNQA and the NEQA in the absence of a proper implementation process for these treaties.

As a matter of fact, in March 1988, the Honourable Mr. Justice Réjean Paul, Chairman of the Cree-Naskapi Commission, at the request of the federal and Cree governments, served as an interim-mediator for the negotiations respecting resolution of difficult issues such as funding of past capital projects, operations and maintenance funding and the situation of the Ouje-Bougoumou Cree Nation. The successful resolution of these issues through mediated negotiations demonstrates the potential of the Cree-Naskapi Commission in assuming a more active and effective role in resolving disputes and securing satisfactory agreements which facilitate the implementation of the JBNQA.

Furthermore, the "Operations and Maintenance Funding Transfer Payment Agreement" of 1995 between the Government of Canada and the Cree parties provides for an important role of the Cree-Naskapi Commission in the Dispute Resolution Mechanism contemplated by the said Agreement.

Moreover, the Cree leadership has stated that the Cree-Naskapi Commission:

• should take a more active and vigorous role in the implementation of self-government;
• facilitate government-to-government relations; and
• provide guidance and act as an ombudsman.
The Government of Canada, and the political and governmental institutions of the Cree and Naskapi peoples should establish a meaningful process to consider the recommendations of the Report of the Inquiry into the Cree-Naskapi Commission as well as the views of the Cree and Naskapi leadership and governments and experience of the Cree-Naskapi Commission in order to determine appropriate amendments of the Cree-Naskapi (of Quebec) Act for effective powers, duties, role, mandate and operation of the Cree-Naskapi Commission.
9. Ouje-Bougoumou Cree Nation


Historically and traditionally, the Ouje-Bougoumou Cree Nation have always been a distinct group of Eenouch (Cree people). At the time of the negotiations leading up to the JBNQA, the Ouje-Bougoumou Cree people were considered members of the Mistassini Band by the DIAND. Consequently, the Cree of Ouje-Bougoumou were not designated as a Band in the JBNQA and have, since 1975, sought to be recognized as a Band under the Agreement and the Cree-Naskapi (of Quebec) Act .

The Ouje-Bougoumou/Canada Agreement of 1992 provides for the agreement by the parties to amend the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act in order that the Cree of Ouje-Bougoumou be recognized as the ninth Cree Band. Therefore, the Cree-Naskapi (of Quebec) Act should be amended, accordingly, for the incorporation of the Cree of Ouje-Bougoumou as the Ouje-Bougoumou Band or Ouje-Bougoumou Eenouch.

10. Other Issues and Concerns


On August 8, 1991, the members of the Grand Council of the Cree (of Quebec)/Cree Regional Authority at its Annual General Assembly, by resolution, directed the Cree-Naskapi Commission to undertake a comprehensive review of the Cree-Naskapi (of Quebec) Act. Due to insufficient resources, the Cree-Naskapi Commission could not conduct a full and comprehensive review of the terms and provisions of the Cree-Naskapi (of Quebec) Act. The Cree and Naskapi First Nations may identify additional issues and concerns for amendment to the Act. However, the following other issues and concerns have been identified in the public consultation process of the Cree-Naskapi Commission for consideration in a comprehensive review and subsequent amendments to the Cree-Naskapi (of Quebec) Act:

1. Eeyou/Eenou Customary and Traditional Laws


The Cree and Naskapi peoples have customs and traditions which are aspects of Eeyou and Eenou law respecting traditional dimensions of governance. The Cree-Naskapi (of Quebec) Act should be amended to recognize such Eeyou/Eenou customary and traditional laws.

2. Process of Amendments to the Act


The JBNQA and the NEQA, as dynamic and evolving treaties, can be amended for the purposes of recognizing and dealing with the changing needs, situation and reality of the parties concerned. In fact, the JBNQA has been amended through twelve Complementary Agreements for these purposes. But, the Cree-Naskapi (of Quebec) Act has not been amended and has not evolved with the treaties and the Cree and Naskapi local governments since its enactment in Parliament in 1984. There is an obvious and essential need for a simplified but meaningful process for amending the Act. Such a process should include the direct participation of the Cree and Naskapi First Nations. For an example, the powers of the Governor in Council could be extended with authority to make certain amendments to the Act with the approval and consent of the Cree and Naskapi First Nations. In this respect, the Cree-Naskapi (of Quebec) Act should be amended to provide for a practical, simplified and meaningful process for certain amendments to the said Act without involving the parliamentary process. 

3. Membership and Names of First Nations


It is a fundamental principle that Eeyou/Eenou governments, exclusively, determine the membership of First Nations. In addition, in order to maintain their distinctiveness, history, identity, status as a nation and people(s), usage of own languages, terms such as a Eeyou, Eenou, Eeyeuch, Eenouch, First Nations should be used throughout the Act. The term 'band' is outdated and is rarely, if not, used by the Cree and Naskapi leadership. Furthermore, the term 'band' is a legacy of the Indian Act which does not apply to the Cree and Naskapi local governments. In addition, the requirement in the Cree-Naskapi (of Quebec) Act for the approval by the Governor in Council for Cree and Naskapi by-law(s) respecting change to its name(s) should be repealed. The Cree-Naskapi (of Quebec) Act should be amended accordingly respecting the authority to determine membership and change the collective name(s) of the Cree and Naskapi First Nations and peoples.

4. Legislative Authority of Cree and Naskapi Local Governments


The Cree-Naskapi (of Quebec) Act should be amended to provide for or recognize the legislative authority of the Cree and Naskapi local governments and/or Eeyou/Eenou people(s) to enact regulations, by-laws or resolutions on the following:

1. Land Registry System


The establishment and maintenance of the Land Registry System should be determined by and under the control of the Cree and Naskapi First Nations. (The Act presently authorizes the Governor in Council to make regulations for the said System. The Cree local governments have stated that the Land Registry System, under the control and supervision of the Minister, is costly and complex as it is a dual system.)

2. Band Elections


Section 74 (2) of the Act states as follows: "A band may hold a general election at any time".

It is not clear on the question of holding an election for the office of the Chief as the 'bands' use a separate ballot system for the elections of Councillors and the Chief. The Cree and Naskapi First Nations should exercise full legislative authority to establish and maintain their own systems for calling of elections, contestation of election results, process and mechanism for resolution of disputes, eligibility to be elected council member, appointment and duties of Returning Officers. The requirements for Ministerial approval and legislative authority of the Governor in Council respecting band elections should be repealed.

3. Conflicts of Interest


The Cree and Naskapi First Nations and peoples should develop their own rules respecting conflicts of interest concerning elected officials, public officials and/or employees and agents of the 'band'.

4. Code of Ethics


The Cree and Naskapi First Nations and peoples should determine and establish their own code of ethics respecting the conduct of elected and public officials and/or 'band' employees and agents.

5. Challenges to By-laws or Resolutions


The Cree-Naskapi (of Quebec) Act should be clarified whether it is by motion or by action that by-laws or resolutions may be challenged. This matter should be a legislative authority of the Cree and Naskapi First Nations and peoples.

6. Trade and Commerce


Control over trade and commerce should be exercised by the local Cree and Naskapi First Nations and peoples and/or by their respective local governments.

7. Councils of Local Government


The Cree and Naskapi First Nations and peoples should determine the following matters respecting their local councils:

1. renumeration of members of local council;
2. authority to delegate;
3. ability and circumstances for in-camera meetings of Council; and
4. ability, circumstances and process to permit a 'band' council to conduct business without calling a council meeting.
8. Cultural Activities


It must be clear that the local Naskapi and Cree local authorities can legislate or make by-laws respecting cultural activities.

9. Powers of Entry


The powers of the Cree and Naskapi 'bands' to appoint inspectors with powers of entry must be clarified in the Act.

10. Outstanding Accounts


The Cree and Naskapi 'bands' must determine and exercise powers over the following matters respecting outstanding accounts:

1. payment in kind or equivalent (for taxes or user charges);
2. charge of interest; and 
3. provisions for losses, costs and bad debts.
5. Taxation


Part XIV of the Cree-Naskapi (of Quebec) Act respecting tax exemptions should be reviewed and amended to ensure the following:

1. all beneficiaries of the JBNQA and the NEQA and not just 'Indians' within the meaning of the Indian Act should benefit from tax exemptions; and
2. wholly owned 'band' bodies, entities or corporations should also benefit from tax exemptions.
Furthermore, the Cree and Naskapi local governments must be able to exercise authority to tax buildings for local purposes and tax businesses, trades and professions.
6. Prevailing Authority of By-laws


The Act must provide for prevailing authority and application of Cree and Naskapi by-laws (such as those respecting control of alcoholic beverages) which could be challenged and declared unconstitutional.

7. Firearms Legislation


The Cree and Naskapi peoples have Aboriginal and treaty rights to hunt, fish and trap within their historical and traditional territories. Therefore, appropriate amendments of the Cree-Naskapi (of Quebec) Act must ensure that the implementation of the firearms legislation respects these rights and traditional way of life.

The Cree-Naskapi (of Quebec) Act should be amended to permit the Cree and Naskapi local governments to:

1. dispense the firearms safety course as determined by the Cree and Naskapi First Nations; 
2. issue firearms licences and registration certificates;
3. appoint Cree and Naskapi Firearms Officers who shall have the same powers and authority as a Chief Firearms Officer; and
4. determine a nominal fee or fees exemptions for acquisition or possession licences and registration certificates.
8. Seizure Exemptions


The seizure exemptions provided for in Part XV of the Cree-Naskapi (of Quebec) Act must be reviewed and amended to ensure that Cree or Naskapi 'band' or beneficiaries of the JBNQA and the NEQA are able to secure financial arrangements such as loans or mortgages or other agreements from financial institutions, by determining and establishing a waiver system that is more practical and efficient that the existing one.

9. Financial Administration of Bands


The accountability of local government should be to the 'band' and not to the Minister. The duties and powers of the Minister of the DIAND and the Governor in Council in the financial administration of Bands should be reviewed to ensure the authority of the people and local government, to the extent practical and appropriate, in the said financial administration.

The period of time determined for the preparation of audited financial statements should not be an obstacle for financial administration (ie., securing and transfer of advance funds).

10. Mineral, Subsurface and Mining Rights


In cases, where the JBNQA and the NEQA provide for mineral, subsurface and mining rights, the corresponding Sections of the Cree-Naskapi (of Quebec) Act should be reviewed and repealed. By way of example, the exploration permits of the James Bay Development Corporation, referred to by Section 114 of the Act may no longer be valid. Therefore, the said Section of the Cree-Naskapi (of Quebec) Act may be redundant and should be repealed.

11. Jurisdiction over Certain Parcels of Category II Lands


The James Bay Regional Zone Council contemplated by Section 11 B of the JBNQA has not been an effective legislative body and has not been functional for the past two decades. Therefore, Section 11 B of the Agreement should be amended and the Cree-Naskapi (of Quebec) Act amended also to extend 'band' jurisdiction over certain parcels of Category II land located within parameters of Category I A land.

12. Payment of Fines


The Cree-Naskapi (of Quebec) Act should be amended so that payment of fines for conviction of 'band' by-law violations are payable to the local governments. It has also been suggested that payment of fines for conviction of traffic regulations be payable to the local governments. The Act should specify that these fines or funds shall belong to the 'bands'.

13. Traffic Ticket System


The local governments should develop and implement their own traffic ticket scheme through appropriate amendments to the Cree-Naskapi (of Quebec) Act . Furthermore, local law enforcement officers should be permitted to issue these local tickets rather than a summons.

14. By-law Powers Pursuant to the JBNQA and the NEQA


The respective powers of Cree and Naskapi local authorities to pass by-laws affecting Category I and I-N land pursuant to Sections 22 and 24 of the JBNQA (for the Cree) and Section 15 of the NEQA (for the Naskapi) should be recognized and/or provided for in the Cree-Naskapi (of Quebec) Act. (These by-law powers concern hunting and fishing and environmental protection matters).

15. Local Environment Administrators


The authority and powers of the Cree Local Government Administrator(s) responsible for the protection of the environment within Category I Land contemplated by Section 22 of the JBNQA should be recognized by appropriate amendments to the Cree-Naskapi (of Quebec) Act.

16. Authority of Cree Tallymen and Conservation Officers


The Cree-Naskapi (of Quebec) Act should recognize the authority of the Cree tallymen for traplines located within Category I A land and should provide for the appointment of Cree and Naskapi persons as Conservation Officers.

17. Benefits of Future Legislation or Other Measures Respecting Indian Government


The preamble to the Cree-Naskapi (of Quebec) Act should be clarified and amended to ensure that the Cree and Naskapi First Nations and peoples benefit from future agreements or measures (respecting Indian government) that may be determined by and for Cree local and regional governments and by Naskapi local government and the appropriate regional government. These future agreements or measures should include those agreed upon by Cree local governments, the Grand Council of the Crees (Eeyou Istchee) and the Cree Nation as a whole as well as those agreements or measure agreed upon by the Naskapi First Nation and local government and the Kativik Regional Government or other appropriate authorities.

CONCLUSIONS

However, for the past fifteen (15) years, the Cree-Naskapi (of Quebec) Act has not maintained pace nor evolved with the exercise and practice of the Cree and Naskapi local government. In fact, certain existing provisions and terms and the absence of essential provisions of the Cree-Naskapi (of Quebec) Act constitute as serious obstacles and constraints for Cree and Naskapi local government and administration. 

Therefore, based upon the findings, six biennial reports and public consultation process of the Cree-Naskapi Commission, it is definitely and essentially clear that the Cree-Naskapi (of Quebec) Act should be amended to provide for an orderly and efficient system of Cree and Naskapi local government, for the administration, management and control of Category I A and Category I A-N land by the Cree and Naskapi bands respectively. 

The Government of Canada outlines four key objectives in its document entitled - Gathering Strength - Canada's Aboriginal Action Plan as follows:

1. Renewing the Partnership for a meaningful and lasting relationship;
2. Strengthening Aboriginal Governance to support Aboriginal people in their efforts to create effective and accountable governments and affirming treaty relationships;
3. Developing New Fiscal Relationships for concluding financial arrangements; and
4. Supporting Strong Communities, Peoples and Economics.

In addition, the trust and fiduciary responsibilities and obligations of the Government of Canada must be exercised, on a government-to-government basis, for enhancement of Cree and Naskapi local government.

Consequently, and in conclusion, a meaningful process must be established and implemented by the Governments of Canada, Cree and Naskapi peoples for a full and comprehensive review of the Cree-Naskapi (of Quebec) Act with the objective of identifying and determining appropriate amendments to the special federal legislation respecting Cree and Naskapi local government. This process must include a clear undertaking that the Government of Canada shall amend the Cree-Naskapi (of Quebec) Act, in a manner, that recognizes, enhances and enables the present state and exercise and full potential of Cree and Naskapi local self-government.