Adequacy of the Approved Budget Against the Commission's Mandate
In the view of the Inquiry, the approved budget has severely limited the Commission's ability to fully discharge its original mandate, especially at the community level, and has caused specific activities to be curtailed or distorted.
Examples of the high level of inaccuracy of the original budget projections, when compared to actual costs, include:
- - $35,376 was budgeted for all travel costs, when one tour of all Cree and Naskapi communities for the Commissioners and three staff can use up the entire travel budget;
- - $110,400 for all staff salaries is clearly inadequate for the minimum staff of a Director General, Office Manager, Director of Research and a secretary; and
- - $54,248 for all capital and operating expenses was meant to include rent and the production and translation of the biennial reports. The design, printing and translations of one biennial report in four languages could today cost twice the full yearly amount allocated for the report, rent, equipment and operating expenses of the Commission all together. Translations into Cree and Naskapi are difficult and time-consuming and printing costs are high.
Examples of particular difficulties relating to adequacy of budget include:
- - inability to fund any travel to the communities by the Commissioners except for one trip to central community locations for hearings in preparation for the biennial reports and one trip in non-report years by one Commissioner and some staff for investigations, or other specific purpose;
- - insufficient funds to cover the high cost of translation of the reports;
- - difficulties in providing any salary increases to staff; no cost-of-living increase is provided for in the budget allocation that is identical from year to year; and
- - no adjustments were provided for increased costs due to inflation over this five-year period.
Compounding these difficulties is the fact that the Commission was forced to bear the costs of the involvement of the Chairman and Commission staff in the mediation/implementation negotiations undertaken at the request of the federal government. This involvement, technically outside the mandate of the Commission, was carried out with virtually all of the costs borne by the Commission's core budget, without any additional allocations other than $2,000 for some travel expenses.
This had the effect of further distorting the Commission's priorities and work activity under its original mandate and caused work that should have been carried out to be delayed or dropped altogether.
While clear deficiencies in the budget allotments have been identified, it must be said that the budget has nonetheless allowed the Commission to pursue a certain level of activity in relation to each of their mandated duties. They have been able to produce two biennial reports and to investigate the few representations brought before them.
Budget Management and Operational Issues
Funding By Way of Contribution Agreement
The terms and conditions of the Contribution Agreement used as the funding mechanism were never negotiated with the Commission, notwithstanding a direction to this effect in the 1986 Cabinet decision approving funding for the Commission.
The reasons for the federal government employing this funding mechanism, rather than a less controlling option, are reflected in a legal opinion provided to the Department of Indian Affairs. The Department was advised that it was not possible to establish whether it is common practice to use Contribution Agreements to finance government bodies of this nature. However, the opinion agreed with Treasury Board's assertion that a Contribution Agreement was most appropriate because the Commission was closely linked to a departmental program. Most importantly, the legal opinion advised that this was the best arrangement for the "government to impose terms and conditions that would allow a contribution agreement as a control over the Commission's activities."
The Inquiry suggests that it is impossible to view the Commission as a body closely linked to a program and that the level of control realized through use of the Contribution Agreement appears to be without precedent for an independent Commission .
The Inquiry was unable to find any comparable situation where such items as staff categories, classification levels and salaries were specified and controlled in the manner reflected in the Contribution Agreements imposed on the Commission.
Even where a Contribution Agreement is used, the terms and conditions are supposed to be subject to negotiation between the Department and the recipient. This was directed by Treasury Board but never carried out in the case of the Commission.
It is the view of the Inquiry that the terms and conditions imposed on the Commission by DIAND regarding limits on salaries, contracts and hiring, are in clear violation of Section 162 of The Cree-Naskapi (of Quebec) Act that confers on the Commission the authority to employ and pay staff or agents as it sees fit, with the approval of Treasury Board.
Overall, the terms and conditions give the Department a level of control over the Commission that is excessive, given the independent nature of the Commission and the position of the Department as a possible respondent in investigations and as a party whose actions are supervised in the reports on implementation.
DIAND - Commission Management of Financial Arrangements
The reporting requirements imposed on the Commission under the Contribution Agreement are unnecessarily detailed and have imposed a significant additional administrative workload on the Commission staff.
It was earlier indicated that the bulk of correspondence and the large majority of meetings between the Commission and DIAND have been focused primarily on financial issues and more specifically on financial issues of an administrative nature. The lack of results achieved through this relatively high level of interaction on budget reporting and requirements is troubling, as noted above. The only accomplishment that can be verified is the belated (1990) agreement by the Department (after consultation with Treasury Board) to allow the Commission to use in the 1990-91 fiscal year the $56,448 which were surplus to their partial first year of operation.
Further compounding problems associated with the inadequacy of the approved budget were major difficulties experienced in cash flow. Cash-flow problems have been experienced by the Commission to varying degrees in every year of its operations.
The Audit Report on the Commission's expenditures indicate that late receipt of the departmental contributions has forced the Commission on occasion to obtain bank loans, with the Chairman and Commission staff confronted with requests for personal guarantees of such loans. Although in the end the bank accepted the Contribution Agreements as collateral, and personal guarantees were not subsequently required, the Audit Report clearly reveals that cash-flow problems were not isolated incidents but have recurred throughout the period under review.
The Commission's Expenditure of Funds
The Audit Report concerning the Commission's expenditures over the five-year period reveals:
- - efforts were made to reduce expenditures; travel was restricted to a level far below that needed to travel to communities for mandated purposes;
- - restrictions imposed on salaries and professional contract fees by the Contribution Agreements were adhered to; and
- - disorganization and confusion in budget management and procedures early in the life of the Commission were due in part to some improper budget allocations, but the budget management was subsequently cleared up and has been thereafter maintained in a fully appropriate manner.
What is more difficult to ascertain is whether, in spite of severe budget restrictions, the Commission delivered the optimum product for the money spent. Did they make the right choices in their spending decisions?
It could be suggested, for instance, that the Commission could have paid less rent if it were in a less central location in the city. Also, there may have been trips to conferences and speaking engagements that could have been foregone. The Inquiry did not delve into these sorts of issues in any detail, largely because the savings would likely not have been substantial, and because the benefits are not easiIy judged.
There is also the consideration that a full-time salary is paid to one employee who is in fact used only on a part-time, though at times substantial, basis. However, though there was no strict record kept of the time spent on Commission business, it would appear that the particular full-time salary contract is less costly to the Commission than a fee-for-service contract would have been.
While some concerns have been raised earlier in relation to staff activities, it is the view of the Inquiry that, on balance, the Commission has delivered a reasonable product with the budget it has had available. The more important concern remains that the budget is clearly inadequate to the Commission delivering on both elements of its mandate in the more fully effective way the parties have the right to expect.
Is the Department of Indian Affairs the Appropriate Funding and Reporting Point?
The View of the Crees and the Naskapis
As we said, the Crees in particular have strongly criticized the involvement of the Department ol Indian Affairs as the federal funding and reporting agency.
In a letter from the Grand Chief to the Minister of Indian Affairs, dated December 20, 1988, the GCCQ expressed their concerns as follows:
"After four years, the Commission is still being funded by means of a contribution agreement with the Department of Indian Affairs. This arrangement was only supposed to be temporary. It is totally inappropriate for the Commission, whose role is that of an independent monitor, to be funded in that manner since the Department is one of the monitored parties. Departmental staff are placed in a conflict of interest position and are able to influence the extent to which the Commission carries out its responsibilities through budgetary control and other more subtle means. The Crees strongly object to this practice as contrary to the spirit and intent of the Act and a violation of Section 162. Funding for the Commission must be determined and provided in a manner which respects the Commission's autonomy".
"This matter was the subject of several discussions before the Commission was established and the Crees were assured that an appropriate funding method would be established. The Department chose to retain the contribution agreement approach in spite of those assurances.
In his presentation to the Inquiry, the Chief of the Waskaganish First Nation expressed similar concerns:
"It is unacceptable to have the Department act for the Commission in presenting applications for funding to Treasury Board, discuss these issues with Treasury Board officials, develop budgets, establish salaries and spending limits and other matters. A party to disputes before the Commission should not be decisive in setting funding levels".
In his presentation to the Inquiry, the Chief of the Waskaganish First Nation expressed similar concerns:
It is unacceptable to have the Department act for the Commission in presenting applications for funding to Treasury Board, discuss these issues with Treasury Board officials, develop budgets, establish salaries and spending limits and other matters. A party to disputes before the Commission should not be decisive in setting funding levels.
Other Cree submissions to the Inquiry reflected a similar view.
Other Funding Options
To fully assess the funding and related reporting questions, the Inuiry researched alternative arrangements that might be available to the Government for funding a body such as the Cree-Naskapi Commission.
There are basically only three options that could be considered, one of which is a properly drafted Contribution Agreement with the terms and conditions of the Agreement subject to full consultation with the funded body. This option has been adequately reviewed above, except perhaps to add that under normal circumstances the Contribution Agreement does allow the funding department, with Treasury Board approval, to provide funds additional to those provided in the Agreement, if funding falls short in a given year.
The other two funding arrangements open for consideration are the funding of the Commission by grant or by a separately voted budget allocation. Both allow a greater measure of actual and apparent independence, but both also require Parliament's approval and that a Minister be identified as being responsible before Parliament for the monies allocated. They are, in fact, quite similar arrangements, differing mostly in the processes involved and the corollary relationship to the Public Service.
The Grant
A grant is proposed to parliament by the Minister responsible. The proposed amount for the grant can be negotiated with the funded body, with Treasury Board approval. A grant can be arranged for a certain period of time and provides the funded body full flexibility in the management of the funds over that period, including year-over-year transfers of funds.
The wording of the grant, if accepted by Parliament, effectively becomes legislation in that it becomes an extension of the appropriation Act. A real disadvantage lies in the necessity to return to Parliament to secure an amendment to the original arrangement if any additional funds are needed within the stated time period.
There are no requirements for the funded body to report to the Minister or to Parliament during the period of the grant, but an audited financial statement to the Minister is required at the end of the granting period.
The Separate Vote
Most "permanent" commissions or agencies are funded by means of a separate funding authority, or vote, as presented to Parliament in the context of the budget submission of the Ministry most related to the nature of the body. In some cases, the responsible Minister can be the Prime Minister. An example of the former situation is the Law Reform Commission funded under a separate vote of the Department of Justice; an example of the latter is the Security and Intelligence Review Committee, funded under a vote of the Prime Minister's Office. The latter arrangement is reserved for bodies the Prime Minister chooses to have associated directly with his office, rather than with any particular ministry.
To be funded in this manner, the particular commission or agency must be designated as a distinct and separate body for the purposes of the Financial Administration Act, but must have a Minister named as responsible for the funding allocation before Parliament.
However, the commission submits its own budget to the Treasury Board, on an annual basis, for inclusion as a separate vote in the estimates the Department submits to Parliament for approval. The commission submits its budget to the Treasury Board through the designated Minister, but he/she normally has no input and the budget is not vetted through departmental officials. Any negotiations the commission has on budget are with Treasury Board directly.
There is no financial reporting requirement through the designated ministry, by it is usual that a copy of the financial statement made to the Treasury Board is given to the Minister as a courtesy.
Under this method, as opposed to the granting mechanism, the full-time employees of the commission become public servants and are then subject to the conditions, and eligible for the benefits, of the Public Service Employment Act. This would allow the commission, for instance, to establish its staff categories and salary levels through the Public Service Commission, subject to Treasury Board approval.
A financial management disadvantage to separate vote lies in the fact that the allocated funds are given to the designated ministry and are only paid out to the commission or agency as required. An annotated request for payments is made to the ministry as required; the whole amount is not transferred upon approval of the vote. Nonetheless, the ministry has no control on how the money is spent.
For this arrangement to be accepted by the Treasury Board and the sponsoring Ministry in the first place, there are usually three criteria the proposed body must meet, although the degree to which it meets each criterion seems to be subjectively decided:
Size: The budget of the commission should be of a certain size, usually at least $5 million, though this is not an absolute condition.
Permanence: The Treasury Board has a requirement of "permanence" for funding under a separate vote. The Board takes the advice of the sponsoring Department on the likely permanence of the body.
Government Investigation: A commission accepted for funding under a separate vote is usually one which is designed to oversee or investigate in some way the operations of the Government.
In their consideration of funding mechanisms for the Commission, the Treasury Board apparently dismissed this method because, in their view, it did not meet the requirements in any of the three areas:
it didn't have a large enough budget;
the Commission was not considered a permanent body; and
the Commission was meant to oversee local government implementation in the Cree and Naskapi communities and was not meant to oversee the operations of the Department or the Government.
Federal Position
In its submission to the Inquiry, the Department of Indian Affairs has showed an open mind concerning future funding arrangements, both for mechanisms and funding levels. However, they firmly contend that having the Commission attached in some way with the Department, even loosely, ensures the most sympathetic and knowledgeable treatment of its needs within government allocation procedures.
The Department has made it clear that it is willing:
"...to enter into discussions with the Commission about new funding authorities and processes to maximize flexibility for the Commission in managing its approved budgets, to provide the Commission with the opportunity to establish and defend its budget proposals, and to minimize the potential for any perception that the Commission may be unduly influenced by the Department as a result of the budgetary process".
Conclusions
The Inquiry is of the considered view that the mechanism of a separate vote for the funding of the Cree-Naskapi Commission would be most appropriate to its mandated roles and to its independence. It has the additional advantage of providing the greatest appearance of independence and neutrality, a factor critical at this point in the Commission's history.
If this avenue is chosen for the future funding of the Commission, it will be necessary to effect two changes to the Act:
Section 162(1) will have to enable the Commission, with the approval of Treasury Board, not only to engage the staff it needs to conduct its work, as is now stated, but also to use funds for the operations it has been given the mandate to perform under the Act; and
as mentioned, the Commission would have to be designed as a department of government for the purposes of The Financial Administration Act, pursuant to Section 2 of the Act (a technical requirement only).
Until such time as the Act is amended to allow for the funding of the Commission by means of a separate vote, the Inquiry would urge that the grant mechanism be considered as an interim arrangement.
The Reporting Point
The Inquiry considered suggestions that the Commission report either to the Prime Minister's Office or to a minister other than the Minister of Indian Affairs.
Only occasionally is an independent body funded under the Prime Minister's Office allocation. It is wholly unlikely that a Commission dealing with only the Cree and the Naskapis of Quebec would be considered eligible for such an arrangement. The Inquiry rejects this idea as impractical.
While it may be possible to have the Commission funded under an allocation of another Ministry (such as Justice or Secretary of State), the Inquiry believes no real advantage would be gained. While the appearance of independence might be enhanced by such an arrangement, the alternative minister would be less able to represent the Government's interests in the Act and the Agreements as they might arise in defending the funding appropriation before Parliament.
While not dismissing entirely the idea of another minister to be responsible for the Commission for financial administration purposes, the Inquiry believes the needed independence, and appearance of independence, can be achieved with the proper funding arrangement. If the funding mechanism issue is addressed in the manner recommended by the Inquiry, the important concerns relating to the Department's involvement will have been effectively addressed.
If, however, the parties do not agree to fund the Commission by direct Parliamentary appropriation, then the question of the reporting relationship to the Minister of DIAND should be reconsidered at that time. In those circumstances, perhaps the Secretary of State, for example, might be a more appropriate reporting point.
Dispute Resolution Mechanisms and Processes
The Inquiry has conducted an extensive examination of a number of what are termed alternative dispute mechanisms or processes (DRMs).
The Inquiry's separate research report is available to those interested. Reference should also be made to page 47 and to the research report summary at Appendix E.
A working definition of a dispute resolution mechanism or process is;
A body or mechanism to which defined parties may address issues or disputes arising from their relationship as reflected in the language and implementation of legislation, agreements or other arrangements specified to be within the mandate of the body.
The objective is to provide for an independent assessment and resolution of such issues or disputes which is accepted by, and in most instances, is binding on the parties. The mandate of such bodies may also reflect the requirement to facilitate, to various degrees, the resolution of such issues or disputes by the parties themselves.
Dispute Resolution Mechanisms Examined
The Inquiry has examined a number of different DRM as follows:
A. Domestic Aboriginal Specific
Naskapi and Inuit of Quebec - Dispute Resolution Mechanism - Implementation Agreements
COPE/Inuvialuit - Arbitration Board - Inuvialuit Final Agreement
Council for Yukon Indians - Dispute Resolution - Umbrella Final Agreement
Dene-Metis-Arbitration Board - Agreement-In-Principle
Tungavik Federation of Nunavut - Arbitration Board
Indian Commission of Ontario
Manitoba Northern Flood Agreement - Arbitration Provisions
B. International Aboriginal Specific
Waitangi Tribunal (New Zealand)
Claims Commission (United States)
C. Other Dispute Resolution Mechanisms - Non-Aboriginal Specific
Canadian International Trade Tribunal (US/Can)
Binational Panel(s) - Free Trade Agreement (US/Can)
Canadian Human Rights Commission
International Joint Commission (US/Can)
These alternative DRMS (many of which are not operational or have been in operation for extremely limited time period) have been analyzed in relation to:
i) background/Context
ii) Authority
iii) Purpose and Mandate
iv) Parties
v) Composition/Structure
vi) Powers, Duties and Procedures
vii) Accountability and Appeals
viii) Administration
The Current Status of the Cree-Naskapi Commission as a Dispute Resolution Mechanism
The Commission's present statutory mandate does not really qualify it as a dispute resolution mechanism of any significance with the exception of that part of its mandate that allows it to investigate and report upon representations.
In addition, the involvement of the Chairman and staff of the Commission in the mediation of Agreement implementation issues (technically outside the Commission's mandate) is a further area where the Commission has facilitated the resolution, or partial resolution, of outstanding issues between the parties.
The Central Issue to be Addressed
The main question in respect of the future mandate of the Cree-Naskapi Commission is whether the parties will agree that the Commission should perform a more significant dispute resolution role.
In looking at possible responses to this issue, a range of possibilities present themselves. If it is the general conclusion of the parties that the Commission's role as a dispute resolution mechanism could usefully be strengthened, then a range of secondary level questions will have to be considered, as reflected in the analytical heads identified above; for example:
. What kind of DRM role?
. What types of issues?
. Initiated in what way?
. What types of structures and procedures?
. What powers - binding/non-binding?
. What type of appeal mechanisms?
. How might decisions be enforced?
Finally, for the Naskapis and the federal government, if agreement is reached on enhancing the Cree-Naskapi Commission's role as a more formal dispute resolution mechanism, the issue of the relationship between the Naskapi DRM (as reflected in Section 5 of the Federal-Naskapi Implementation Agreement) and the Commission, and any such expanded role as it relates to the Naskapis, will require consideration.
It will be appreciated that if the parties agree that the Commission should have an expanded mandate in this area, there are a number of combinations of possible responses that could be provided to the secondary level of questions raised.
It is clear that the Inquiry cannot hope to fully identify, consider and make recommendations in respect of all such possibilities. Accordingly, the Inquiry has attempted to:
. Identify the major issues the parties will have to focus on; and
. generally identify, both in its conclusions and recommendations, the direction and emphasis that it feels might be pursued by the parties at this time.
A detailed working through of the "second level" questions that will arise if a more significant DRM role is seen as desirable by the parties, will have to be undertaken by the parties themselves in their negotiations on the future of the Commission, in response to the Inquiry's report.
Positions of the Parties
As reflected above, the Cree position was very generally in favour of the retention and strengthening of the Commission, with an assurance of the financial resources required to discharge its agreed upon mandate and an assurance of total independence of operation.
The Cree position at the community and GCCQ level did not deal specifically with how extensive and final a decision-making role they contemplated under this "strengthened" role for the Commission. It was clear and consistent that the scope of mandate should extend to encompass the JBNQA, the NEQA, the Cree-Naskapi Act itself and any other related or ancillary agreements or legislations.
At the community level, the Cree representations did not deal with the detail of what type of decision-making powers the Commission should possess or how such enhanced powers might reflect themselves in new structures or procedures.
The GCCQ submission is more specific. It calls for a change in the mandate of the Commission to enable it to become a "keeper of the process", encompassing the establishment of mediation processes, arbitration and, in some cases, "facilitating reference to the courts for clarification".
The Crees emphasize that:
. the dispute resolution process must be voluntary;
. it is necessary for the Commission to have access to required financial resources; and
. the Commission should have "instruments" to facilitate dispute resolution available to it, with the exact nature of these instruments to be agreed upon in negotiations between parties.
The Naskapi position, having just concluded an Implementation Agreement with the federal government that establishes a broadly mandated DRM, is also relatively clear:
. They view positively an enhanced DRM role for the Cree-Naskapi Commission (in addition to other identified functions). No real details on this expanded function are provided in the Naskapi submissions.
. The acceptance of the Implementation Agreement DRM by the Naskapis was in the absence of any other alternative. The preference on the part of the Naskapis would appear to be for a Commission with the appropriate mandate and resources to perform this role. However, this issue would require further discussion with the Naskapis.
Whether there would be a need to retain both mechanisms over time is also something to be addressed in the future with the Naskapis.
After noting the recent negotiation of dispute resolution mechanisms with a number of claimant groups, the federal government submission to the Inquiry indicates:
,P."The department is prepared to negotiate a dispute resolution mechanism with the James Bay Cree as it has with other groups, and would consider seriously any proposals from the Cree on the subject, including any which might envision a role for the Commission".
In the absence of a formal dispute resolution mechanism with the Cree, alternative approaches continue to be taken which may involve the participation of the Commission or individual Commissioners at the request of the parties.
Whether or not a specific dispute resolution mechanism is established as part of a claims settlement or a self-government arrangement, all parties would continue to have recourse to the judicial system, except where binding arbitration has been agreed upon. Dispute resolution mechanisms do not replace judicial processes. Rather, they provide alternative structures and processes for discussing and resolving disputes outside the courts. (our emphasis)
The federal government, while leaving open the possibility of the Commission being charged with a broader DRM role, does identify a number of issues and concerns about such an expanded mandate.
Changes in Federal Policy Since the Established of the Commission
The Cree-Naskapi Commission was one of the first bodies established which reflected a minimal role to consider and, in a very narrow range of defined areas, help facilitate the resolution of disputes.
More extensive proposals for a more significant mandate and associated powers were dropped in the final negotiations.
The only body reflecting a DRM-type mandate preceding the establishment of the Cree-Naskapi Commission was the Indian Commission of Ontario, established in 1978 to facilitate negotiation and discussion of issues of mutual concern to the three parties (Canada, Ontario and the Chiefs of Ontario). In the end result, its work has involved consideration of a broad range of issues over some ten years, including land claims, self-government and a broad range of "service issues" such as education and policing.
To the present day (the Orders-in-Council under which the Commission operates have been extended and amended at least four times with only minor changes), the Commission lacks any real power to decide or compel the resolution of specific issues. It provides a facilitation role to the parties and can make a broad range of recommendations, but it is totally dependent on achieving an often elusive political consensus on the part of all parties to facilitate effectively the resolution of the issues in question.
The Federal government's earlier (1974) commitment to a formal arbitration process to resolve disputes arising from the Manitoba Northern Flood Agreement is generally considered by all of the parties to have been significantly flawed in its concept and results over the years. The parties are presently engaged in a comprehensive reassessment of many aspects of the original agreement.
Since the establishment of the Cree-Naskapi Commission in 1984, the federal government, in the context of negotiating a series of subsequent comprehensive claims agreements, has accepted positions relating to dispute resolution that are closer to some of the proposals originally considered, but ultimely rejected, in the establishment of the Cree-Naskapi Commission itself.
Specifically, these modified or new dispute resolution mechanisms are reflected in the provisions of:
. The Naskapi and Inuit of Northern Quebec Implementation Agreements (1990)
. The COPE/Inuvialuit Arbitration Board (1984)
. The Council for Yukon Indians (Agreement-In-Principle 1989)
. The Dene-Metis Arbitration Board (Agreement-In-Principle 1988)
. Tungavik-Federation of Nunavut Arbitration Board (Agreement-In-Principle 1990).
Of these, only the COPE Arbitration Board is actually operating. Others are reflected in the provisions of tentative agreements and in the case of the Dene-Metis Arbitration Board, in a part of an agreement which the claimants have decided not to proceed with at this time.
Some Features Common to the DRMs Agreed To In Recent Comprehensive Claims Agreements
Whether operative or not, an analysis of the DRMs agreed to in the above-mentioned Comprehensive Claims Agreements is useful to determine the general points of commonality in key areas, particularly when contrasted to the current mandate and powers of the Cree-Naskapi Commission.
It should be emphasized that most of the mechanisms have major differences in their more detailed provisions, and reference should be made to the detailed description in the research report prepared by the Inquiry and to the summary provided in Appendix E.
Purpose
Implicit or explicitly to provide a mechanism to resolve disputes between the parties as an alternative or in some cases an option to taking the disputes before the courts.
Authority
Most mechanisms are defined in considerable detail in political agreements between the parties.
In most instances, the mechanisms are or will be formally constituted in legislation.
Structures
Vary. Most involve appointment of members to the body for specified time periods (the exception being the Inuit and Naskapi DRMs which require repeated selection of mediators/arbitrators).
There is an increasing trend towards providing for reference to panels, the members of which can be drawn either from the permanent body or from an outside pool. This leaves a capacity to better reflect required expertise to deal with more specific or contained issues.
Appointments
Common to all. Various levels of consultation and requirement for all-party agreement.
>DRM Structure and Process
Increasingly providing for a multi-tiered or sequential system of resolving disputes, or example, from the Naskapi Dispute Resolution Mechanism:
. Stage 1 - Consultation-Negotiation (process defined by parties)
. Stage 2 - Mediation (Either mediator and/or followed by reference to a panel of experts)
. Stage 3 - Arbitration (quasi-judicial). Either individual or board arbitration.
Scope of Mandate/Jurisdiction
The general trend is towards making mandates as comprehensive as possible, i.e., dealing with disputes arising from the language, interpretation, application, administration and implementation, or failure in any of these areas in respect of:
. claims settlement agreements
. implementation legislation
. related or ancillary agreements and legislation]
A trend for further detailing specific areas of jurisdiction and areas in which it may be extended to encompass third or interested parties.
Most DRMs can render decisions that bind the parties
A precondition is usually agreement of the parties to subject themselves to the process and to be bound by the results, i.e., participation and compliance are essentially voluntary.
With the multi-tiered/sequential process, there is more tendency to leave the powers that bind at the final level (i.e., arbitration), as opposed to earlier or lower levels in the overall dispute resolution process.
In addition, all-party consent may not necessarily be required in the earlier stages of a multi-tiered process.
Other Powers
DRMs generally possess the power to accept and reject representations or issues on specified grounds.
Generally speaking, full arbitration powers are provided for, including:
. the undertaking and commissioning of research;
. subpoena of witnesses and documents;
. the compelling of oral or written testimony;
. the receiving and accepting of evidence under oath;
. making of findings, awards, recommendations; and
. directing the parties in the payment of costs.
In overview, the DRMs generally have the authority to:
. conduct research;
. conduct hearing;
. establish a fact base;
. define issues for consideration;
. hear argument on issues; and
. render decisions or make recommendations.
Generally speaking, the DRMs possess no power to initiate or to break issues up for the purposes of hearings.
Enforceability of Decisions
The general trend is to reflect the power to bind the parties at the final stage of the dispute resolution process (quasi-judicial powers) and to provide that such powers are enforceable as court orders with access to comparable remedies.
Where a sequential process has been established, earlier steps will usually not provide for binding decisions but for recommendations that can be appealed internal to the process.
Appeals
Generally provided for from final decisions to the appropriate level of courts.
Procedures
Considerable flexibility in how and in what detail procedures will be defined.
More formality and precision is provided for in those parts of the process which are empowered to render final decisions.
All parties must agree.
The Parties
Restricted in general to parties to the agreement (the Naskapi and Inuit DRMs allow for corporate entities to represent the parties in questions).
Intervention by outside parties or interests is sometimes provided for subject to the approval of the parties and/or the dispute resolution mechanism.
Provisions (for example in the Naskapi and Inuit dispute resolution mechanism), for non-participating signatories (the Province of Quebec in those cases) to opt into the process and to agree to be bound by its results with all party/DRM consent.
Financial Administration
Common to all dispute resolution mechanism models is the principle that each should operate on a cost-recovery basis. Most dispute resolution mechanism specify a fee-for-service formula intended primarily to cover the costs of the appointed mediator/arbitrator. The DRM can usually award costs as between the parties.
In the case of Canadian Aboriginal specific DRMs, and comprehensive claims models in particular, each party generally bears its own portion of the costs of actual dispute resolution, including remuneration for mediator/arbitrator or for persons appointed by each party, in the case of Boards or panels.
To the extent that the operation of the dispute resolution mechanism may require administrative offices and personnel, the prevailing trend within Aboriginal specific dispute resolution mechanisms has been for the federal government to absorb costs which would otherwise be borne by the Aboriginal parties. The rationale for this may be found within the principles of accessibility, the federal government's responsibilities vis-a-vis Aboriginal peoples, and in the recognition that Aboriginal parties may be in a more disadvantaged economic position.
The above provides a generalized overview of dispute resolution processes based in comprehensive claims, that is, those that can be most readily and appropriately compared to the present and future Cree-Naskapi Commission.
In contrast to the present mandate of the Cree-Naskapi Commission, the key features that should be noted, as reflected above are:
. generally an extremely broad scope of mandate;
. broad powers, including the power to render binding decisions and the stronger powers that may be required to arrive at such decisions, such as the power to subpoena witnesses, documents, compel testimony, etc.;
. emphasis on the requirement for all-party decisions in such areas as:
- the mechanism/process itself; and
- agreement to subject themselves to the process (and to be bound by any decision rendered);
. more formalization and incentive for the parties to access the more informal and prior stages of the dispute resolution process, e.g., mediation-type procedures, before accessing final binding decision components of the process. These earlier "non-binding" phases often do not require all-party consent.
Experience in International Aboriginal/Other Dispute Resolution Processes
Beyond reference to the other Aboriginal (International) and non-Aboriginal dispute resolution mechanisms examined by the Inquiry, there is little to be added that supplements the identification of the issues that will need to be addressed by the parties in considering to the future of the Cree-Naskapi Commission, as identified above.
Some reference might be made however to the experience in New Zealand in the establishment and operation of the Waitangi Tribunal. The mandate and powers of the Tribunal are reflected in detailed legislation.
Key to note is that the Tribunal has full resolution mechanism powers (as described above) up to the point of decision. At that point the parties have made a decision that the Tribunal should be limited to making recommendations to the government as opposed to rendering final decisions.
This decision, which is one that the current Chairman of the Tribunal feels was the right one and should not be changed, was premised on the fact that the decisions to be made in most instances involve, in their essence, highly political content and implications which should be made by the parties themselves if they are to be of any lasting value.
The Tribunal, as it is mandated and operates, does however give a powerful structured consideration to all aspects of the issues up to the point of actual decision making.
Conclusions
Establishing and mandating structures to aid Aboriginal claimant and government signatories in resolving disputes arising from all aspects of claims settlements has moved a considerable distance since the creation of the Cree-Naskapi Commission.
In the options and recommendations sections that follow, the Inquiry has drawn heavily on the experience in recent years in establishing and working with these new dispute resolution processes.
It is the Inquiry's conclusion that the Commission should now be reassessed in light of the changes that have occured in the establishment of similar mechanisms in more recent years.
Options/Suggested Approach
Some Comments on Process
The future of the Cree-Naskapi Commission will be determined in negotiations to be undertaken by the parties (the Government of Canada, the Crees and the Naskapis), following the tabling of the Inquiry's report before both House of Parliament, as required under Section 172 of the Cree-Naskapi Act.
It is the Inquiry's hope that the parties will respond quickly by structuring a process for the consideration of the future of the Cree-Naskapi Commission as an issue in its own right and not linked to any other issues currently under discussion or in dispute.
The Inquiry acknowledges that many such other issues remain unresolved between the Cree and the federal government, and that the federal government has in the past insisted on discussing the issues relating to possible dispute resolution mechanisms in the context of the negotiation of broader implementation agreements. The federal government's written submission, while relfecting an open mind, does identify concerns in relation to divorcing consideration of a dispute resolution mechanism from other implementation issues. It further identifies questions and concerns with the possibility of the Commission taking on such a role.
The Inquiry is of the view that there is no particular or compelling reason for linking the future of the Commission, or the issue of a dispute resolution mechanism for the Crees to the negotiation of other implementation issues. On the contrary, giving consideration to the issue of the Commission in its own right may enable the parties to adopt a new approach and achieve the cooperative dialogue required in a number of other areas.
The Inquiry can see merit in its report being referred to the House of Commons Standing Committee on Aboriginal Affairs in the event that the parties are unable to reach agreement on the future of the Commission.
The Inquiry also feels that, as part of the broader discussion of future options, every effort should be made to provide feedback, and an explanation of the report itself, to the communities who have participated in this process. In the view of the Inquiry, such feedback should occur at an early date and on an ongoing basis.
Broad Approaches to the Future of the Commission
Based on the issues examined and the conclusions reached in the body of this report, it is the Inquiry's view that there are a number of possible broad approaches open to the parties for their consideration:
a) Abolition or Diminishing the Role of the Commission
Agreeing to do away with the Commission completely, or effectively diminishing its role and mandate.
b) No Change Option
Leaving the Commission structured and mandated essentially as it is without any major changes and with no change in its current budget allocations.
c) Adjusting Financial Resources
Leaving the Commission structured and mandated essentially as it is but reassessing the financial resources to be made available to the Commission to discharge its mandate.
d) Extending the Scope of the Mandate to Agreements and Adjusting Financial Resources
Leaving the Commission structured and mandated as it is, but agreeing to specific recognition of the mandate extending to encompass the JBNQA and NEQA, as well as changes in the financial resources and other related minor adjustments.
The primary functions would remain unchanged with the exception of the specific recognition of the broader scope of mandate and reassessment of financial resources, and related changes as indicated.
e) Adding a Formal Dispute Resolution Function to the Commission's Mandate
Retaining the Commission structured essentially as it is but agreeing to changes in:
. the type of mandate to be assumed, i.e., the type of functions the Commission would be charged with, and adding a DRM function;
. the scope of mandate i.e., the extent of the mandate within those defined areas, covering the Act and the Agreements;
. the powers recognized as required for the discharge of that mandate; and
. the financial arrangements and associated reporting relationship.
The Inquiry's Comments on the Broad Approaches Identified
a) The Possibility of Abolishing the Commission or Diminishing its Role
The Inquiry believes that abolishing the Commission, or effectively diminishing its mandate, is not a serious option for consideration by the parties. This conclusion is based on the representations received, the performance of the Commission over the past five years and the Inquiry's own analysis of the issues relating to the Commission, and the general trend towards establishing dispute resolution mechanism.
Simply Stated:
. The clear understanding between the parties on the establishment of the Commission (and in particular the agreement on the five-year review requirement), was that the review might lead to changes and improvements based on performance over the initial five years, but that the continued existence of the Commission would not then be an issue. The agreement was for a continuing body or vehicle to serve federal government, Cree and Naskapi interests.
. There is nothing in the Inquiry's detailed analysis of the performance of the Commission and the issues relating to its future that would in any way sustain a recommendation to do away with the Commission, or cut away any of its present duties.
The need rather is to retain and improve upon a vehicle whose unique blend of function is designed to bring the parties together to resolve the disputes that will inevitably arise, is perhaps more urgent at this time than ever before.
The real challenge is to effect the changes required to ensure that the Commission can perform more effectively to meet the common needs and objectives of the parties.
. Finally, none of the parties has in any way suggested to the Inquiry that they have considered, or would want the Inquiry to consider either the abolition of the Commission or a diminishing of its current mandate.
b) The No Change Option
Retaining the Commission without effecting some minimum changes would, in the view of the Inquiry, be counterproductive. Such an option would leave the Commission unable to discharge even its current mandate in a satisfactory manner. This would cause continued frustration and a range of negative reactions from all parties for different reasons.
As indicated, the challenge is to effect changes which, based on the findings of the Inquiry, will enable the Commission to discharge effectively its agreed upon mandate. Once again none of the parties in their submissions to the Inquiry suggested that the Commission should be retained "as is" without major modifications in a number of areas.
c) Adjustments in Financial Resources Made Available
One identifiable impediment to the Commission discharging its current mandate more effectively lies in the demonstrated under-resourcing of the Commission for the functions it was expected to perform.
It is open to the parties to reassess the Commission's financial requirements, to re-examine how these resources should be used, and to ensure that the resources required to discharge its current mandate are provided for the future.
This would do little, in and of itself, to meet the objectives for the Commission put forward by all of the parties in their presentations to the Inquiry.
It is clear that the parties' view of the role that the Commission should perform in the future, and what would be required to enable it to perform this adjusted role, has undergone significant changes from the time of the final all-party negotiations that established the Commission.
A reassessment and assurance of the required financial resources is a constant for any option given serious consideration by the parties. However, it is the conclusion of the Inquiry that changes to mandate, role, powers and associated items are required in addition to a reassessment of financial resources and an assurance that those requirements will be provided in an appropriate manner.
d) Adjustment to the Scope of Mandate to Cover Agreements, Adjustment to Financial Resources and Other Related Changes
It is open to the parties to retain the Commission's current functions as defined in Section 165, but to explicitly broaden the scope of their application to encompass.
. the original Claims Settlement Agreements (the JBNQA and the NEQA);
. The Cree-Naskapi (of Quebec) Act; and
. related or ancillary agreements or legislation.
The Inquiry has earlier indicated its view that the mandate of the Commission, as currently drafted, is open to an interpretation along these lines.
Explicit recognition of this change in the scope of mandate is a minimum consistently put forward by the Crees and the Naskapis in their submissions to the Inquiry. The federal government has remained hesitant to change the scope of the current mandate as they interpret it.
In the view of the Inquiry, such a change would appear to be the minimum required to start to bring the Commission in line with agreements reached between the federal government and claimant groups in other comprehensive claims settlements concluded subsequent to the James Bay Agreements.
However, even such an adjustment in the scope of the mandate would leave the Crees with a mechanism that would fall significantly short, in terms of mandate and authority, of dispute resolution mechanisms agreed to with other claimant groups.
e) Adding a Dispute Resolution Function, Extending the Mandate to Cover the Agreements and Reassessing Financial Requirements
this is the broad option that the Inquiry recommends to the parties.
The Inquiry supports an approach that focuses on discussing a series of more significant changes to the current provisions of The Cree-Naskapi Act that created the Commission, together with the establishment of new all-party structures and approaches. This should be accompanied by a reassessment of the Commission's financial requirements and the financial arrangements needed to fully support the suggested changes.
The Inquiry's specific recommendations on the nature and content of the changes that should be considered by the parties can be found in the final Chapter of this report. They reflect and build upon the findings and conclusions of the Inquiry throughout this report.
In most instances the specific changes recommended should be read in the context of the more detailed analysis and assessment to be found in the main body of the report.
Before providing an overview of the Inquiry's recommended approach, it should be emphasized that the changes suggested would require a set of amendments to Part XII of the Cree-Naskapi Act.
Some may react to the suggestion for changes to those sections of the Act dealing with the Commission by pointing out that there may be merit in engaging in a reconsideraation of other parts of the Act and that accordingly any changes to the Commission that require amendments should await a broader revision process.
It is the Inquiry's view that there is no particular impediment to effecting changes to those sections of the Act dealing with the Commission in advance of and in isolation from any other changes that may ultimately be seen as desirable by the parties.
In fact, facilitation of a broader review of the Act might well be a function that the newly mandated Commission might be asked by the parties to undertake as a priority task.
In overview, it is the Inquiry's view that the parties should consider changes in the areas identified in option (d) above, i.e., specifically extending the scope of the Commission's mandate to encompass the JBNQA and the NEQA and reassessing financial requirements.
This should be accompanied by leaving the Commission with a formal dispute resolution function along the following lines:
Purpose:
A more specific and explicit statement that the Commission's mandate extends to assisting the parties to resolve disputes that may arise between them in the areas and in the manner outlined in the more detailed recommendations provided.
Authority:
The required changes to be reflected in amendments to Part XII of The Cree-Naskapi Act replacing the existing Sections 157 to 172.
Structures:
The basic Commission to remain as presently structured.
Appointment and related procedures to be essentially unchanged (some minor changes suggested).
The probability that the workload of the Commissioners would move from its current minimal part-time level to close to full-time (depending on the mandate and functions agreed upon).
Provision to be made for the Commission, either at its initiative or on request, and with agreement of the parties, to appoint panels for designated special purposes, e.g., to perform a mediation function as part of a broader dispute resolution process, or to conduct issue-specific inquiries for the Commission and the parties.
Working procedures for the appointment and activity of such panels to be defined by the Commission and agreed to by the parties.
Proposed Dispute Resolution Process:
It should be specifically acknowledged that the Commission, as one of its functions, should manage a full-fledged dispute resolution process. The Commission itself would constitute a primary component of this process.
It should be open to the parties to agree, and the Commission at its initiative to suggest, that other more informal processes should be used to resolve disputes prior to resorting to more formal hearings before the Commission itself. This may include the use of specialist panels and other more informal mediation vehicles.
The parties would need to formally agree to subject themselves to the Commission-managed dispute resolution process on an issue-by-issue basis and would be further required to agree to abide by the final outcome of the dispute resolution process. The parties should consider whether, all-party consent should be required for the early, more informal stages of the dispute resolution process, e.g., mediation panels.
Where such agreement exists, and where approaches other than a full formal hearing before the Commission are agreed to, the parties should have the right to insist upon an appeal to the Commission itself as the final step in the agreed-upon dispute resolution process.
Other Functions Retained/Added:
The Commission should retain the functions assigned to it under Section 165 with the modifications suggested in the Inquiry's more detailed recommendations.
Specifically, the Commission should continue to prepare reports and investigate representations submitted by individuals.
It is suggested that the implementation reports be prepared once every three or four years.
There should be explicit recognition that the scope of the implementation reports extends to encompass the Act and the original and subsequent Agreements (see Scope of Mandate below).
The Commission's important functions in the areas of communications, including information and acting as a resource centre for the parties, should be made explicit and enhanced.
There should be a legislative recognition of the ability of the parties to agree to refer issues or requests to the Commission which might otherwise fall outside the legislative mandate of the Commission. This should be conditional upon the financial resources being made available to the Commission to undertake such additional work.
Scope of Mandate:
For the purposes of all of the suggested functions, it should be explicitly indicated in the legislation that those functions are to be discharged or exercised as they relate to:
. The James Bay and Northern Quebec Agreement
. The Northeastern Quebec Agreement
. The Cree-Naskapi Act; and
. any ancillary or related agreements or legislation.
It should be made specific that, within those areas, the Commission can hear disputes or representations and report as appropriate on matters related to the interpretation, application, administration or implementation, or lack thereof, of many of the provisions, obligations, powers or duties reflected in any of these source documents.
Powers:
For the purposes of its agreed-upon mandate, the Commission should have the following powers, exercisable at its discretion:
(1) The power to make decisions binding on the parties where the parties have agreed to so bind themselves and when the Commission deems it appropriate to render a final decision.
(2) The power in all other cases to make recommendations to the parties.
(3) The powers to:
. undertake and commission research;
. compel oral or written testimony;
. receive and accept evidence under oath;
. subpoena witnesses and documents;
. make findings, awards and/or recommendations; and
. direct the parties in respect of the payment of costs.
(4) The parties will need to reach agreement on which of the agreed-upon functions these powers should be exercisable in respect of.
Enforceability of Decisions:
Where the parties have agreed that the Commission shall have the power to render a final decision and the Commission has rendered such a decision, it should be enforceable as a court order with provision made for equivalent remedies.
Appeals:
The parties may wish to define those circumstances where a decision rendered by the Commission shall be appealable to the courts, and if so at what level.
Procedures
The procedures to govern the Commission in its broadened mandate should be developed by the Commission and require the approval of all parties.
Parties:
Provision should be made for the Commission's jurisdiction to extend to encompass the Government of Quebec, if and when Quebec agrees to participate in the working of the Commission either generally or in relation to specific issues
The Province of Quebec should be served notice by the Commission where any of its investigations, reports or recommendations may involve or affect any interest or jurisdiction of the Province of Quebec and invited to make an appearance or provide other inputs at its option.
The Commission should be open to hearing representations from individuals, Bands, as well as regional entities or corporate entities representing the interests of any Cree or Naskapi.
Outside parties or interests should be permitted to participate in specific herarings or other processes with the Agreement of all parties.
Financial
Generally speaking, the federal government should meet the cost of sustaining the Commission in all aspects of its operations.
The parties should also explore ways in which an agreed-upon level of contribution from the Cree and Naskapi parties might be made available in the future to the Commission to assist it in its operations where it is agreed by all parties that this is appropriate.
There should be a total reassessment of the financial resources required to support the Commission in its agreed-upon mandate.
Both the Crees and the Naskapis should participate fully in the budget development process.
The Commission should be asked to do the first detailing of the budget it feels is required to discharge its mandate and should be a full participant in subsequent processes for the consideration of that budget. The same procedure should be applied for identification and discussion of budgetary requirements on an on-going basis.
It is suggested that the Commission be funded by way of direct parliamentary appropriation with the Minister of Indian Affairs being the responsible Minister.
It is suggested that once an appropriate budget has been established and confirmed by Treasury Board, transfer of fiscal resources should be accomplished under a multi-year block funding agreement. Reporting requirements should be limited to the submission of an annual summary activity and audit report by the Commission.
Are the Parties Prepared to Consider this Option?
The approach recommended by the Inquiry reflects many of the elements put forward by the Crees and the Naskapis in their submissions.
For its part, the federal government has indicated its continued willingness to negotiate a dispute resolution mechanism with the James Bay Crees and that it would "consider seriously any proposals from the Cree on the subject including any which might envision a role for the Commission."
The federal submission does not clearly indicate that it is prepared to negotiate the question of a dispute resolution mechanism as part of a negotiation of the future role of the Commission - divorced from all other issues. The Inquiry has earlier indicated its strong feeling that there is no particularly compelling reason for past federal insistence that issues relating to future dispute resolution mechanisms must be tied to other implementation issues. Once again, on the contrary, it would be advantageous to deal separately with the issue of the future of the Commission, and possible approaches to dispute resolutions in that context.
The federal government does identify a number of issues and concerns about such a change in the Commission's mandate, as follows:
. Because the JBNQA and the NEQA involve other parties, it would be necessary to somehow limit the dispute resolution mechanism to matters between the Crees and the federal government, unless the other parties were willing to be involved.
. The relationship, if any, to the dispute resolution mechanisms established with the Naskapi Band and the Inuit through the implementation agreements would have to be clarified.
. An assessment would be necessary on whether or not adding such a function to the Commission would impair its ability to perform its other functions or create a conflict of interest situation.
. It may be difficult to include such a function in the JBNQA or the NEQA without the concurrence of all other parties.
. In any event, such a request could raise significant questions concerning the status of the Commission as an institution established through federal legislation rather than through the JBNQA or the NEQA.
The Inquiry would like to register some brief comments on these concerns:
1. The problem of other parties to the Agreement does not appear to be an impediment to establishing a dispute resolution process for just some of the parties. Indeed this is exactly the outcome of the dispute resolution mechanisms agreed to with the Inuit and the Naskapis. The DRM, whether it be the Commission or some other process, would be limited in its jurisdiction to matters involving the parties who agreed to become involved.
2. The federal government indicates that relationships with the Inuit and the Naskapis would need to be clarified. The Inuit have a separate mechanism contained in their own implementation agreement with the federal government. They have never been a party to the Cree-Naskapi Commission. Accordingly there are no particular problems that can be identified relation to this particular relationship.
In their submissions to the Inquiry, the Naskapis have expressed a preference for the Commission to possess an enhanced role through the management of a dispute resolution process. They indicate that their earlier acceptance of the current dispute resolution mechanism relfected in their Implementation Agreement was agreed to in the absence of other options.
If there is all-party agreement that the Commission should undertake this role, this would likely simply replace the DRM agreed to with the Naskapis in their Implementation Agreement. The parties, i.e., the Naskapis and the federal government in this case, might wish to agree on a defined assessment period in which actual utilization of the Commission and/or the Naskapi DRM is monitored before making a final decision in this regard.
3. The parties should conduct the suggested assessment. It is difficult to see how the addition of a dispute resolution function would impair the Commission's ability to perform other functions or create a conflict of interest situation. Rather it would seem to enhance and complement those functions that presently rest with the Commission. All require the Commission to remain a neutral, independent body and a more specific and stronger dispute resolution role might in fact enhance both the requirement and necessity for the Commission to be seen to perform in this manner.
4. The status of changes and the need for possible concurrence from "all other parties" (presumably Quebec and the Inuit), is not seen as a problem. The concurrence of "all parties" was not required as a condition of the creation of the Commission when it was first established. The Commission is not referenced in either of the Agreements but is in legislation to which the federal government, the Crees and the Naskapis were the negotiating and particpating parties. Nor has such an "all-party agreement" been required for agreements reached on dispute resolution mechanisms with either the Naskapis or the Inuit.
Finally, the question arises as to whether agreement on such an expanded role for the Commission would lead to a requirement for changes in the Agreement as such. This would be acceptable if agreed to by all of the parties. If not, this does not in and of itself present a problem to reaching agreement on the broader range of functions suggested by the Inquiry and reflecting those changes in the Act itself.
In summary, federal concerns about a possible change in the role of the Commission's mandate in this area appear to be surmountable if the political will is present on the part of all parties. If not, this does not in and of itself present a problem to reaching agreement on the broader range of functions suggested by the Inquiry and reflecting those changes in the Act itself.
In summary, federal concerns about a possible change in the role of the Commission's mandate in this area appear to be surmountable if the political will is present on the part of all parties. Agreements reached with other claimant groups, including the Inuit and the Naskapis, all clearly indicate the ability to adopt the Inquiry's suggested approach if the parties themselves (i.e., the federal government, the Crees and the Naskapis) can reach the required agreement.
The Inquiry is somewhat disappointed that while the federal government has left open the possibility of discussing this approach with the Crees and the Naskapis, it is clearly not embracing such a possibility with any enthusiasm. The Inquiry is unable to identify compelling reasons for such reluctance and, indeed, the concerns raised do not appear to be either major or insurountable.
It is to be hoped that, as the parties commence discussions on the future of the Commission, the federal government might more specifically and positively reflect what it has been prepared to do with virtually all claimant groups that have negotiated agreements subsequent to the James Bay Agreements and build on the strengths and potential of what has been, and will likely be for the future, a vehicle unique in its role and functions.
Conclusions
By way of concluding comments, the Inquiry considers it has reviewed the first phase in the development and implementation of a mechanism which is without precedent in the Canadian and international contexts. The Commission is unique in its mandate and in its performance as a vehicle to facilitate dialogue and interaction between the federal government and the beneficiaries of Canada's first modern-day Treaty, the Crees and the Naskapis of Northern Quebec.
At a time when there is considerable challenge at the national level to develop mechanisms which will see governments and Aboriginal representatives working cooperatively to resolve issues of common concern, the federal government, the Crees and the Naskapis have an opportunity to demonstrate leadership and vision by confirming the continuation of the Commission and reaching early agreement on the suggested changes flowing from this assessment of the first five years of the Commission's operation.
The five years reviewed have not been without their "ups and downs" in terms of performance and results. The Inquiry has tried, for the record, to reflect its views of some of the factors present in the environment throughout that five-year period that have had a clear impact on performance and results.
In doing so, we have not sought to unduly attribute blame or focus in a recriminatory way on things that were or were not done.
Such factors have been discussed in large part to contribute to an overall understanding of the Commission. All parties in various ways were unaware of many of the issues and factors affecting the Commission's performance.
These factors are further recorded to provide an adequate basis for the development of a sound vision of how the Commission might operate in the future.
The Inquiry has identified some general questions about the performance of the Commissioners and Commission staff where answers have not been available. It is clear that improvements in a number of areas are both desirable and possible. At the same time, the Inquiry has commended the Commissioners and Commission staff for their achievements in sometimes difficult circumstances.
If the parties manage to deal with the challenges contained within the Inquiry's report, it will then fall to the Commission, however constituted, to pick up that challenge and work with the parties to ensure that the identified potential is realized in a way that will serve the common interests of the parties in the years to come. The Inquiry strongly believes that it is in the interest of all parties to ensure that these challenges are met.