WHAT IS THE CREE-NASKAPI COMMISSION?

The Cree-Naskapi Commission is an independent, arms-length body with the responsibility to investigate representations submitted to it  concerning the implementation of the Naskapi and Cree-Naskapi Commission Act, the Cree Nation of Eeyou Istchee Governance Agreement, the Cree Constitution and Cree laws made under the Agreement or the Cree Constitution.  These "ombudsman-like" responsibilities are an important element of self-governance for the Cree and the Naskapi of northern Quebec. The Commission also performs a number of related informal responsibilities.

The Commission process for handling representations offers a path to resolution of issues without recourse to litigation.  The costs of litigation in terms of time, money, formalities and winner-loser outcomes is often inappropriate for resolving a dispute especially in the context of a community.  In such cases the better resolution is one which is simple, informal, relatively quick, inexpensive and which ends with a more or less amicable outcome.

 

BACKGROUND - A BRIEF HISTORY

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

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

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. This special legislation replaced the Indian Act for the Cree and the Naskapi of northern Quebec.

Although the legislation was passed in 1984, the Commission did not begin operations until February of 1986 at which time the first commissioners were appointed.  From 1986 until 2018, the Commission acted under the mandate spelled out in section 165 of the Cree-Naskapi (of Quebec) Act which read as follows:


"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 it 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."


Although a number of significant amendments were made to the Act in 2008, the provisions respecting the Commission remained unchanged until 2018.

As the Cree Nation of Eeyou Istchee continued to resume more and more of its inherent governance jurisdiction, legislative change recognizing this development became necessary.  After extensive negotiations. the Cree Nation and the Government of Canada reached agreement on many of the basic elements of governance.  The resulting Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada was signed at a ceremony on Parliament Hill on July 18, 2017.

Subsequently, the Agreement was, "approved, given effect and declared valid and has the force of law' by means of the Cree Nation of Eeyou Governance Agreement Act which came into effect on March 29, 2018.  The majority of governance provisions of the original Cree-Naskapi (of Quebec) Act, although no longer relevant to Cree governance were still needed for Naskapi local government.  A continuing, although somewhat modified, role was also envisioned for the Cree-Naskapi Commission.  In order to accommodate these two requirements, a piece of companion legislation, the Naskapi and Cree-Naskapi Commission Act was passed and also came into effect on March 29, 2018.  Essentially it continued the governance arrangements for the Naskapi which had been set out in the Cree-Naskapi (of Quebec) Act.  It also provided for the new mandate for the Commission.

CURRENT MANDATE OF THE COMMISSION

The new mandate of the Cree-Naskapi Commission is set out in section 165 (1) of the Naskapi and Cree-Naskapi Commission Act which took effect on March 29, 2018.  The relevant section reads 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, 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."



Essentially the Commission's mandate changed in two ways.

First, the duty to report to the Minister and to Parliament on the implementation of the Cree-Naskapi (of Quebec) Act every second year is ended.  This is inevitable since the Act itself was renamed and amended.

Secondly, the Commission has somewhat different mandates in relation to the Cree and the Naskapi.  Insofar as the Naskapi are concerned, the Commission handles representations arising out of their legislation in the same way as it did under the previous Act.  The substance of the two Acts in relation to Naskapi governance is virtually identical.  In relation to the Cree, the Commission will now be responsible for dealing with representations arising out of the Governance Agreement and the Cree Constitution as well as Cree laws made pursuant to either one.

ROLES OF THE CREE-NASKAPI COMMISSION

THE "OMBUDSMAN" ROLE

Some have suggested that one of the principal roles of the Commission is that of an ombudsman in relation to the Cree and Naskapi.  Certainly an ombudsman is usually an independent, arm's length body which investigates complaints about decision-making on the part of officials.  In that sense, the Commission can be considered to have an ombudsman-like function.  Cree and Naskapi beneficiaries along with their governments and agencies are usually the ones who file representations.  It should be kept in mind that the Act requires the Commission to "investigate any representation submitted to it" and, in theory, anyone clearly affected could file a representation.

OTHER ROLES

In addition to its primary responsibility for investigating representations, the Commission has a number of related duties including:


• informal dispute resolution where a formal investigation under the Act is either not necessary or not appropriate and the parties agree,

• upon the request of a Cree or Naskapi community, Council or other entity, the Commission is available to provide briefing sessions on the pertinent legislation pertaining to
local government, elections, Commission roles and responsibilities and other related matters,

• advice in some cases on more effective or appropriate alternative  processes to resolve a concern,

• preparation of discussion papers in areas where representations arise repeatedly in order to offer approaches which may avoid a recurrence of similar problems

 

WHAT THE CREE-NASKAPI COMMISSION CAN AND CANNOT DO

Insofar as Naskapi beneficiaries are concerned, the Commission investigates any representation submitted to it concerning:


the implementation of the Naskapi and Cree-Naskapi Commission Act including representations about the exercise or non-exercise of a power and the performance or non-performance of a duty under the Act.  This could include general implementation issues as well as specific actions being taken or not taken pursuant to the Act.



Insofar as the Cree beneficiaries are concerned, the Commission investigates any representation submitted to it concerning:


the implementation of the Cree Nation of Eeyou Istchee Governance Agreement Act as well as the Cree Constitution including representations about the exercise or non-exercise of a power and the performance or non-performance of a duty under either one.  Cree laws are clearly an exercise of the power mentioned and representations concerning matters arising out of these laws are also included.  As in the case of the Naskapi, both general implementation issues and specific actions being taken or not taken could be included.



The Act is clear on what the Commission must not do.  Section 165 (2) reads as follows:



"165 (2)  The Commission shall not investigate or continue to investigate a representation in respect of whose subject matter judicial proceedings have been commenced."



While the Commission has no role in a formal "contestation" of an election result since that is a judicial process, representations concerning the conduct of elections and related matters can be the basis of representations which the Commission may investigate.

Not included in the Act, but of equal importance, the Commission cannot give legal advice.  Whenever an interested party asks for general information or needs to know what sections of the Act may be of relevance, the Commission will be able to help.  Once someone asks for what is in effect an opinion on a specific legal question, the Commission will suggest that a lawyer be consulted.

Unfortunately, the Commission is not able to provide funding for the costs of obtaining legal advice.

Beyond what the Commission must and must not do, the Act allows the Commission to refuse to investigate a representation under some circumstances.  Those circumstances are outlined in section 165 (3) of the Act as follows:



"165 (3) The Commission may refuse to investigate a representation or may discontinue an investigation if it is satisfied

(a) that the representation has not been made in good faith;

(b) that the person making the representation does not have a sufficient personal interest in the subject-matter of the representation;

(c) that, having regard to all the circumstances of the case, an investigation, or the continuation of the investigation, as the case may be, would serve no useful purpose; or

(d) that there exists a suitable alterenative means by which the representation may be investigated or otherwise pursued."



If the Commission decides not to investigate, it is required to provide reasons.  This provides a reasonable degree of transparency on how and why a Commission decision was made.  That duty is outlined in section 165 (4) as follows:



"165 (4)  Where the Commission refuses to investigate a representation or discontinues an investigation, it shall forthwith, in writing, so inform the person who made the representation, stating and explaining on which of the grounds set out in subsection (2) or (3) the Commission's decision was based."



In addition, whenever the Commission decides to conduct an investigation, that decision must be made known promptly to all those with an interest in the matter.  Section 166 (1) sets out the requirement for who must be notified:



"166 (1)  Where the Commission decides to investigate a representation, it shall forthwith give notice to

(a) the person who made the representation;

(b) the Naskapi band or each Cree First Nation referred to in the representation;

(c) any person whose misconduct is alleged in the representation;

(d) in the case of a representation referred to in paragraph 165 (1) (a), the Minister;

(e) the Cree Nation Government, if it is referred to in the representation."



In the course of considering a representation, the Commission is mandated to conduct its investigation in private unless it is satisfied that doing so in public would not be harmful to the interests of any person.  It may also do the investigation partly in private and partly in public.  In addition, the identity of anyone making a representation will not be disclosed if the person so requests.

As part of its investigation, the Commission may request anyone to appear and give evidence, supply documents etc.  Nobody however can be compelled to appear or to give evidence etc.   It should be noted nevertheless that over the more than thirty-three years that the Commission has been in operation, only one person, a federal official, has refused to appear.  All others have voluntarily complied with requests of the Commission.

Before the Commission makes a negative finding against any person, it must give him or her notice and provide an opportunity for that individual to be heard.

After the Commission has completed its investigation, it does not make an enforceable decision such as that of a court or some tribunals.  The Act provides that:



"170  At the conclusion of an investigation under this Part, the Commission shall prepare a report stating its findings, conclusions and recommendations in respect of the matter investigated, and shall forthwith send copies of the report to the persons referred to in subsection 166 (1) and to any person against whom the Commission has made a negative finding."



Here it is worth noting that over the past three decades, almost all recommendations made by the Commission have been accepted.

HOW TO USE THE CREE-NASKAPI COMMISSION

The current mandate of the Cree-Naskapi Commission is different in relation to the Crees from its mandate in relation to the Naskapi.  How to use the Commission to file a representation in each case is outlined below.

1.  Cree Representations
If you have a concern about the implementation of the Cree Nation of Eeyou Istchee Governance Agreement Act (the "Agreement")or the Cree Constitution including the exercise or non-exercise of a power or the performance or non-performance of a duty under either one, you should;

  1. read the relevant sections of the Act or the Cree Constitution carefully,
  2. consider the facts as you understand them and review whatever documentary or other evidence you have available to support your concern,
  3. consider the various ways that you might have your concern addressed,
  4. decide whether you wish to have the Commission consider the matter.

If, after this, you feel that you want the Commission to consider either a formal "representation" under the Act or some other action, you should:

  1. write out your concern(s) explaining which sections of the Agreement or the Cree Constitution you feel are relevant,
  2. assemble whatever documentary or other evidence you have,
  3. call the Cree-Naskapi Commission office at 1-888-236-6603 and explain that you wish to file a representation or to seek other solutions,
  4. if you decide to proceed, send a letter to the Cree-Naskapi Commission explaining that you wish to file a representation along with an outline of your concern or issue.

2. Naskapi Representations
If you have a concern about the implementation of the Naskapi and Cree-Naskapi Commission Act including the exercise or non-exercise of a power or the performance or non-performance of a duty under the Act, you should;

  1. read the relevant sections of the Act,
  2. consider the facts as you understand them and review whatever documentary or other evidence you have available to support your concern,
  3. consider various ways that you might have your concern addressed,
  4. decide whether you wish to have the Commission consider the matter.

If, after this, you feel that you want the Commission to consider either a formal "representation" under the Act or some other action, you should;

  1. write out your concern(s) explaining what sections of the Act you consider are relevant,
  2. assemble whatever documentary or other evidence you may have,
  3. call the Cree-Naskapi Commission office at 1-888-236-6603 and explain that you wish to file a representation or seek other solutions,

If you decide to proceed, send a letter to the Cree-Naskapi Commission explaining that you wish to file a representation along with an outline of your concern or issue.

Action By The Commission
As soon as your letter is received, the Director General will brief the Commissioners at their next regular monthly meeting.  If the Commissioners consider that the matter may form the basis of a representation under the Agreement or the Cree Constitution (in the case of the Crees), or under the Naskapi and Cree-Naskapi Commission Act, (in the case of the Naskapi), you will be invited to a Pre-Hearing to explore the matter in more detail.  After the Pre-Hearing, the Commissioners will decide whether to proceed to an investigation under the Act.  The Director General will then contact you advising of the decision as well as the next steps.  If the decision is not to proceed, you will be advised of the reasons.  You may also be given some suggested alternative actions which you might wish to consider.  If the decision is to proceed, you will be informed of the process that will take place.

Geographic Scope of Commission Responsibility
Cree-Naskapi Commission addresses the concerns of Cree communities, beneficiaries and residents:

  1. Whapmagoostui
  2. Chisasibi
  3. Wemindji
  4. Eastmain
  5. Waskaganish
  6. Nemaska
  7. Waswanipi
  8. Ouje-Bougoumou
  9. Mistissini
  10. Washaw Sibi Eeyou
  11. Mocreebec

Naskapi community, beneficiaries and residents:

  1. Kawawachikamach
  2. Government of Canada
  3. Other interested persons

Commissioners

Pursuant to the Naskapi and the Cree-Naskapi Commission Act, the Commissioners are appointed by the Government of Canada upon the recommendations of the Cree Nation Government and the Naskapi Nation of Kawawachikamach. The present Commissioners are:

 

Office of the Cree-Naskapi Commission
The administrative office of the Commission includes a Director General and an Executive Assistant.
The Commission also has a reference library available to the communities and other interested parties.

For more information contact the Commission from Monday-Friday from 8:30 am to 5:00 pm. 
Location and address:
Cree-Naskapi Commission
222 Queen Street, Suite 305
Ottawa, ON K1P 5V9
Toll-free: 1-888-236-6603
Tel: (613) 234-4288
Fax: (613) 234-8102