OBSERVATIONS ON THE FUTURE OF

THE CREE-NASKAPI (OF QUEBEC) ACT

 

 

 

Discussion Paper Only

 

April 22, 2017

 

 

 

 

 

 

Cree-Naskapi Commission

Richard Saunders, Chairman

Robert Kanatewat, Commissioner

Philip Awashish, Commissioner

 

 

 

 

 

 

 

 

Introduction

 

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

The Eenou/Eeyou of Eeyou Istchee can trace their right to govern themselves back as far as memory and oral history extend. The right is inherent in the Eeyou/Eenou people and nationhood and was exercised for centuries before the arrival of European explorers and settlers.

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

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

Currently there is discussion and consultation throughout the Cree communities of Eeyou Istchee about major new governance arrangements that had been negotiated between Canada and the Cree Nation Government/Grand Council of the Crees (Eeyou Istchee). Many new and/or enhanced governmental powers and responsibilities are under consideration.  This process was envisaged by the New Relationship Agreement between the Cree and Canada.  That agreement itself was an out-of-court settlement of disputes over the implementation of the James Bay and Northern Quebec Agreement.

The present governance arrangements are based upon three major sources i.e. the inherent rights to self-government of the Cree Nation, the provisions of the James Bay and Northern Quebec Agreement and its related Agreements and the negotiated terms of the Cree-Naskapi (of Quebec) Act.

The experience of the Cree-Naskapi Commission over the past thirty years has naturally been concentrated on a number of practical issues arising out   of the mandate of the Commission as outlined in sections 157 to 172 of the Act.  Based upon that experience, there are a number of issues upon which the Commission feels its comments may be of use in the overall governance discussion.  The principal issues are the following.

 

The Necessity of Section 35 Protection for Self-Government Legislation

 

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

“35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of 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.”

Government has over the past few years increasingly tried to secure the agreement of First Nations to leave out section 35 protection in their self-government legislation and agreements.  If the history of Canada-First Nations relations over the years is any indication, it is vital that all important provisions of agreements and/or legislation regarding rights be fully protected by having treaty status within the meaning of section 35 explicitly included.  Canada's negotiators in many cases have tried to have existing treaty rights moved out of the actual treaty and included in non-protected agreements and legislation.  Canada has tried to implement the James Bay and Northern Quebec Agreement through the sole application of regular federal programs and policies. Certainly the Commission recommends that any self-government legislation and/or agreements etc. be protected by section 35 of the Constitution Act, 1982.  Perhaps the simplest and most effective way to secure this protection is to include all key provisions in amendments to the James Bay and Northern Quebec Agreement which is already a constitutionally guaranteed treaty.

 

The Desirability of Paramountcy for Cree Governance Legislation

 

The current Cree-Naskapi (of Quebec) Act contains a provision which gives it paramountcy over conflicting federal or provincial legislation.  The specific section reads as follows:

"3. (1)  Subject to subsection (2), where there is any inconsistency or conflict between the provisions of this Act and any other Act of Parliament, this Act shall prevail to the extent of the inconsistency or conflict.

        (2)  Where there is any inconsistency or conflict between the provisions of this Act and the James Bay and Northern Quebec Native Claims Settlement Act, the James Bay and Northern Quebec Native Claims Settlement Act shall prevail to the extent of the inconsistency or conflict.

 4.  Provincial laws of general application do not apply to the extent that they are inconsistent or in conflict with this Act or a regulation or by-law made thereunder or to the extent that they make provision for a matter that is provided for by this Act."  (emphasis added)

These sorts of provisions guarantee that the terms of the Act which were negotiated by the Cree and the Government of Canada cannot be simply changed or eliminated either intentionally or even unintentionally as a result of other federal or provincial legislation.  Keeping these provisions in any new or revised governance legislation, or legislation recognizing a Cree Constitution, is, the Commission believes, necessary even vital to the long term security of self-government arrangements.  These kind of provisions maintain the similar intent that treaties cannot and should not be amended unilaterally.  

 

 

Implementation of the Cree-Naskapi (of Quebec) Act or Governance Legislation

 

Typically, the process of implementation, as in the case of the Cree-Naskapi (of Quebec) Act, has been that Parliament enacts legislation and its administration and implementation remains the responsibility of the Minister of Indian Affairs and Northern Development. At best, there are a few questions of organization such as the present James Bay Implementation Office. Throughout this traditional form of implementation, the Cree and Naskapi peoples are denied a meaningful role in the decision-making process even though they are most impacted by the application, administration and implementation of the Cree-Naskapi (of Quebec) Act. The conventional style of implementation is frequently insensitive to the actual needs and aspirations of the Cree and Naskapi peoples and has resulted in symbolic implementation that amounts to no real change in how decisions are made and in how things are done.

The proper and successful implementation of the Cree-Naskapi (of Quebec) Act or other federal Cree Governance legislation  is an integral part of the political process in which the duties and responsibilities of the federal, Cree local governments, as well the Cree Nation Government, should be clarified and agreed upon by the parties.

In a discussion paper submission to the Senate Standing Committee on Aboriginal Peoples dated March 1, 1999, and entitled ‘Proposal for an Aboriginal Treaty Implementation Act, the Cree-Naskapi Commission submitted the following suggestions to deal with disputes over the implementation of treaties:

The Commission considers these suggestions relevant to the present issues relating to implementation of treaties.

 

 

Requirement for Reporting to Parliament

 

During the period from 1986 to 2016, the Commission, in accordance with section 165. (1) (a) of the Act, has submitted fifteen biennial reports on implementation and related issues to the Minister who was then required to table them in the House of Commons and the Senate.  Both houses have then, in accordance with their Standing Orders, referred the reports to the relevant Standing Committees.  The Commissioners have then made presentations to the Committees highlighting the issues which the Cree communities have brought to our attention.

 

This process provides an opportunity for an "on-the-record", public and official way for the Cree and Naskapi to bring implementation and related issues to the attention not only of the Minister but also to Members of Parliament and Senators generally.  Since this process is required by law, there is no opportunity for anyone to ignore it.  The matters raised by the communities will be raised officially whether government agrees or not.  Those with the ability to make decisions will be aware of concerns and their awareness will be a matter of public record.  The Commission believes that this legislatively required reporting provision is necessary and useful and should be part of any new governance legislation.

This reporting process has proven useful for the proper implementation of the specific federal legislation.  

 

 

Requirement to Report in the Cree and Naskapi Languages

 

Another provision of the present Cree-Naskapi (of Quebec) Act is the requirement that the reports tabled in Parliament must be written in Cree and Naskapi as well as in English and French.  This is, so far as we can determine, the only example of federal legislation, requiring that a report tabled in Parliament be prepared in an Aboriginal language.  It may be seen by some as having only limited practical importance however the Commission believes that it demonstrates official respect for the Cree language and is a first legislative step towards recognition for the importance of language survival and viability for future generations. In some respects it can be precedent-setting as the government considers the new Aboriginal languages legislation promised by the Prime Minister. The Commission believes that any future governance legislation should contain the same or an even stronger legal basis for the use of the Cree language.

 

Need for Legislative Recognition of the Inherent Right of Self-Government

 

For more than twenty years federal governments, of all political persuasions have, as a matter of policy, recognized the "inherent right" of First Nations and other Aboriginal peoples to self-government.  This means among other things that the fundamental authority of the Crees and others to govern themselves has existed from time immemorial and that it has never been given up.  The federal government however has recognized this only as a matter of policy and not as a consequence of legislation.  Policies do not have the force of law and can be changed unilaterally and it is time that all self-governance legislation included formal recognition of this right.

 

The United Nations Declaration on the Rights of Indigenous Peoples, spells out the commitment to this principle in two articles.

Article 3

"Indigenous peoples have the right to self-determination.  By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."

 

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 autonomous functions."

On December 8, 2015, Prime Minister Justin Trudeau told a Special Chiefs' Assembly in Gatineau:

 "...we will fully implement the calls to action of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples."  

At the same assembly the following year on December 12, 2016, the Prime Minister reaffirmed this saying;

"In May, Minister Bennett went to the UN to make clear our government's unqualified support for the United Nations Declaration on the Rights of Indigenous Peoples.  We remain committed to its adoption and implementation in full partnership and in consultation with Indigenous Peoples."

All of this suggests that the current government would have no difficulty in including the recognition of the inherent right of the Cree Nation to self-government in any changed or new governance legislation.  The Commission believes that changing the existing federal policy into a legislatively recognized right would be very worthwhile in view of governments' long term habit of unilaterally changing policy and promises.

 

 

Law-Making Mandate

 

As the Cree Nation of Eeyou Istchee moves to the full exercise of its inherent right to self-determination and self-government, it will be essential that the Cree Nation Government is able to exercise full jurisdiction over all of its internal governance functions and fundamental matters respecting collective well-being and Eeyou/Eenou cultural integrity and continuity such as language and culture within its territory.  Some as yet unasked questions need to be considered.  For example, should the Cree Nation Government have the authority to enact laws concerning Cree education or should this authority be beyond the legislative jurisdiction of the CNG?  Some in government have pointed out that municipalities do not have control over education which is hived off to local boards of education.  This is illogical.  The provinces have full authority over school boards and can direct their policy, overturn their decisions and disband them entirely if they choose.  The Cree Nation is not a municipality and should not face the limitations of municipalities.

Having legislative jurisdiction or law-making authority over education does not mean that the day-to-day operation of the schools could not be delegated to the Cree School Board.  What it does mean is that the Cree Nation Government could make laws on all internal Cree matters within Cree territory.  The same arguments apply to the area of health and social services.  In fact the principle for consideration would be that all Cree governance and public service delivery bodies throughout the Cree territory be subject the overall law-making jurisdiction of the Cree Nation Government.

The Eeyou/Eenou have a holistic worldview with a holistic approach in life. Governance for them should not be segmented that way it is now.  

 

Future Governance of Land and Resources

 

If the Cree Nation is to free itself from dependency upon discretionary federal funding, it must receive its fair share of the benefits of the lands and resources upon which it has depended for thousands of years.  In part this can be achieved if its control over Category II lands and resources is maximized.  Also its access to and benefit from Category III lands and resources needs to be maximized as well.  The best arrangements that can be negotiated need to be given section 35 constitutional protection if the needs of future generations of a growing population are to be met.  

 

Dispute Resolution in the Context of Self-Government

 

Currently the Cree-Naskapi (of Quebec) Act provides for the establishment of the Cree-Naskapi Commission as well as for its role, powers and duties.  The first major duty of the Commission is to prepare a report on implementation of the Act and related matters for tabling in Parliament every second year.  The second major duty, spelled out in section 165, is to investigate "representations" i.e. complaints from any person about implementation of the Act "including the exercise or non-exercise of a power under this Act and the performance of a duty under this Act".

Since 1986, when the Commission began operation, there have been a wide variety of disputes brought to the Commission in the form of representations under section 165.  Some of these are disputes between a Cree government and Canada, many are disputes between members and their band administration or their Chief and Council.  One representation was even filed by Canada.  (It was subsequently withdrawn.)  After an investigation, the Commission can make findings and recommendations rather than binding decisions.  This has usually been satisfactory in that the recommendations made have almost always been accepted by the parties.  In cases where a principal objective is to resolve an issue while avoiding unnecessary divisiveness in the community, expense and legal wrangling, the current system works well.  It may be worthwhile to continue this function.

Although the current Commission system is effective for the great 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 disputants are unwilling to settle on the basis of recommendations but prefer a legally binding, enforceable decision.  One example of this was a dispute between a Cree band and an autonomous area-wide Cree entity.  True self-government requires that virtually all internal disputes be resolved internally taking into account the laws and practices of the Cree Nation.  As matters now stand, an internal dispute in which those involved want only a binding, enforceable decision, can only be settled by authorities outside of the community.  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 cases this system provides fair and just outcomes.  In cases involving internal disputes however a process is needed which takes into account Cree laws, Cree community values and the Cree approach to dispute resolution.  Even more to the point, resolving an internal dispute by referring it to a Court in Montreal or elsewhere is not real 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 a local government or the CNG would be a party to a dispute.  If the dispute resolution body were answerable to one or more of these governments, its decisions would either be seen as biased against the complainant or as challenges to the government authority.  Either perception would make the dispute resolution body dysfunctional.    

Insofar as accountability is concerned, every Cree entity needs to be accountable to the Cree Nation if not directly to the Cree Nation Government.  Accountability would not be for decisions made but for financial management and the adherence to pre-established standards for carrying out duties and exercising powers.  Various models of accountability could be considered.  For example, a special majority perhaps two thirds or three quarters of the Council/Board would be required to appoint adjudicators and two thirds or three quarters of a Cree Annual General Assembly would be required to remove one or more of the adjudicators.

 

 

The Need for an "Even Playing Field' for Individuals

 

Any individuals making use of a dispute resolution 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 governing body or a large organization are often formidable.  Some way to "level the playing field" is needed.  Parties may not need legal advice in many situations.  Where this in true, all parties should be encouraged to waive their right to legal advice.  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.  This willingness to forego legal representation will however be less frequent when 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.  A "public defender" type of model could be considered.  In some situations in which rights under the Constitution, or the James Bay and Northern Quebec Agreement for example are being raised, a "test case funding" program could be used.

Whatever system is finally used, it should be designed, understood and approved by the Cree people and not chosen and imposed by an external government.

 

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 likely a constitutional right.  The only way in which such an eventuality will not compromise self-government is if the appeal is to a specialized court which will include First Nations judges and rules and procedures which facilitate full respect for Cree law.  A few years ago the Cree-Naskapi Commission published a discussion paper suggesting a First Nations Division be added to the Federal Court of Canada.  This would not be feasible for just the Cree Nation.  If however First Nations across Canada were interested in this approach, it might be very well worth pursuing.  It would be important whether this appeal process or the existing process were used to ensure that legislation supported the local adjudicative body.  This might be done if the enabling legislation required that cases must, in the first instance be heard by the Cree body and that appeals could only be made where a serious point of law was in question.

 

Quorums

 

In almost thirty years of listening to community members and leaders the problem of the requirement in the present Act for unrealistically high percentages of voter turnout and approval levels has been identified repeatedly.  If amended or new legislation is being considered, this issue should be addressed.

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 1A Lands) of the James Bay and Northern Quebec Agreement. Since the signing of the James Bay and Northern Quebec Agreement in 1975, Section 9 has never been reviewed nor amended to reflect the present nature and state of Cree local government and Cree Nation Government. Section 9 needs to be reviewed and amended to reflect the present realities of aboriginal law and state of Cree local government and Cree Nation Government.  

 

 

Conclusion

 

The Cree people and their governments will determine what form their governance will take.  The assertion of their inherent right of self-determination arising from their status as distinct peoples entitles Eeyou to determine their own future within Canada and to govern themselves under institutions of their own choice and design. Various viewpoints will be reviewed in that process.  The Cree-Naskapi Commission is offering its comments respectfully for consideration as one of those viewpoints. In this regard, Cree 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 Cree rights and aspirations.