Cree-Naskapi Commission


Commission Crie-Naskapie


Introduction to The Inquiry

The Cree-Naskapi Commission Inquiry was initially struck in June 1990; however, due to a number of procedural delays, the set-up began in mid-July and the appointment of the third Inquiry member was made in mid-August. The federal government issued a press release on September 18, 1990 to announce the formation of the Inquiry.

While the Inquiry office was being set up, the members held a first set of meetings with the parties (the federal government, the Cree communities, the Grand Council of the Crees of Quebec (GCCQ) and the Naskapi Band), and with the Commission.The Inquiry sent to each of the parties, and to the Commission, a framework of the range of issues the Inquiry wish to explore. These were provided to help prepare the comprehensive meetings subsequently held by the Inquiry with each of them.

The Inquiry invited all parties, the Commission, the Government of Quebec and the Assembly of First Nations (AFN) to meet with the Inquiry and to submit their written views, if they so wished.

Several communities supplemented their meetings with written briefs, and the Commission prepared detailed submissions to the Inquiry. The GCCQ and the federal government also prepared written documents, though they were received only in late January 1991. The Government of Quebec did not acknowledge the three letters the Inquiry sent. The AFN had to cancel a scheduled meeting but submitted written commentary.

The Inquiry conducted a thorough review of documentation held by the parties and the Commission relating to all aspects of the history and development of the Commission and of its operations over the five years of its existence, or four years of full operation.

Following the autumn hunting seasons in the communities, the Inquiry travelled to northern Quebec on two occasions and met with all of the Cree and Naskapi communities. Subsequent meetings were held in Ottawa with the Commission and with federal officials of the Department of Indian Affairs and the Department of Justice, and in Montreal with the GCCQ.

The Inquiry also requested an independent audit of the expenditures and financial management of the Commission and, before drafting its report, conducted in-depth research into a number of issues, including dispute resolution mechanisms.



Background to the Report

This chapter presents facts and explanations by way of background to the discussion of issues contained in subsequent chapters. The Act and the Commission are situated in their legal contexts and in the current political and policy environments. This is followed by a brief review of the Agreements, the Act and the peoples they serve.

For those unfamiliar with the mandate and operations of the Commission, there is an overview of what the Commission is expected to do, what tools it has, what it has accomplished and how its operations have been financed.

To facilitate an understanding of points raised by the parties or in the analysis, the various structures within the Department are identified where overall responsibility for managing issues relating to the Agreements and the Act has resided. Finally, there is an identification of the various dispute resolution models that have been examined by the Inquiry.

2.1 The Environment

This Inquiry into the Cree-Naskapi Commission has taken place some thirteen to fifteen years after the conclusion of the original Agreements: The James Bay and Northern Quebec Agreement (TBNQA), 1975; and the Northeastern Quebec Agreement (NEQA), 1978); six years after the enactment of the Cree-Naskapi (of Quebec) Act, 1984 and four years after the Commission itself became fully operational.

For the purposes of the Inquiry, it is important to understand the historical origins of the Commission and the original objectives of the parties as reference points against which to assess performance and options for the future.

It is equally important to understand the general legal, political and policy context within which the Commission's history, performance and options for the future must be assessed. This section provides a brief summary overview of this context.

The Constitutional and Legal Context

Under Section 91 (24) of the Constitution Act, 1867 the legislative authority for Indians and lands reserved for Indians rests with the federal government. Most Indian communities operate under the main federal legislation enacted pursuant to its Section 91 (24) authority - the Indian Act.

There is considerable complexity flowing from the legal program and financial over-lapping of the federal government's primary legislative authority for Indians with provincial constitutional responsibilities in such areas as education, health and justice.

Provincial governments are involved in programs and financial arrangements, to varying degrees across the country, over a broad range of service areas, as well as areas touching directly on Indian lands and resources.

Under the provisions of the Constitution Act, 1982 Indian people are constitutionally recognized as Aboriginal peoples (Section 35(2)). Their Aboriginal and treaty rights are "recognized and affirmed" (Section 35(1)) and those rights are protected from derogation by the Charter of Rights and Freedoms (Section 25).

There is a considerable agenda of "unfinished constitutional business" between Indian peoples and the Governments of Canada and the provinces, including the priority item of Indian government. Constitutional discussions at the First Ministers' level between 1982-1987 ended without agreement on the main agenda items.

The significance of Quebec's non-participation in those discussions and the complexity of the broader constitutional issues now confronting the country are to be noted.

The JBNQA and the NEQA are constitutionally recognized and protected under Section 35(3) of the Constitution Act, 1982 which provides: For greater certainty, in subsection (1), "treaty rights " includes rights that now exist by way of land claims agreements, or may be so acquired.

In large part, the provisions of the all-pervasive Indian Act no longer apply to the Crees or the Naskapis; Section 5 of the Cree-Naskapi (of Quebec) Act, 1984: Except for the purpose of determining which of the Cree beneficiaries and Naskapi beneficiaries are "Indian " within the meaning of the Indian Act, the Indian Act does not apply to Cree Bands or the Naskapi Band nor does it apply on or in respect of Category IA or lA-N lands.

The roles and responsibilities of the Governments of Canada and Quebec are differently defined (and realigned in some areas) as a result of the provisions of the JBNQA and the NEQA, the implementing legislation (both federal and provincial) and related agreements.

The Cree-Naskapi Commission was one of the products of the first legislation recognizing Indian self-government (The Cree-Naskapi (of Quebec) Act), which was itself the product of the first modern-day treaty. Its current mandate and operations are focused in a legal context and relationship, between the Crees, the Naskapis and the Governments of Canada and Quebec, that is unique within Canada.

The Political and Policy Environment

At the national level, the relationships of the Indian First Nations and their membership with the federal and provincial governments are at a major turning point.

The events of 1990, including Indian involvement in the failure of the Meech Lake Accord and widespread Indian protest over a broad range of issues (particularly at Kahnawake and Kahnasatake), have effectively served notice that Indian people are no longer prepared to allow their agenda to be marginalized by "broader national concerns."

In the view of the Inquiry there is an imperative and an inevitability for a fundamental reassessment of all aspects of the current Government-Indian relationship in the years immediately ahead.

Probable outcomes of such a reassessment will include recognition of Indian governments as a distinct order of government in the Canadian political system, as well as realignment of the current roles and responsibilities of governments in relation to Indian peoples and their lands.

The challenge of effecting these required changes, at a time when broader constitutional issues remain unresolved, is apparent. The imperative is likewise clear that the Indian agenda be accorded a priority place in broader constitutional processes, however they unfold.

Central to the failures and confrontations of recent years and the challenges for the future, is the virtual lack of cooperative processes and mechanisms to define the policy agenda and to govern dispute resolution between federal and provincial governments and Indian political representatives.

The national level issues, experience and challenges in the areas identified are mirrored in the experience of the Crees and the Naskapis in their dealings with the Governments of Canada and Quebec over the last ten years.

While a significant portion of the JBNQA has in fact now been implemented, the Crees report the federal government has repeatedly broken promises and failed to implement some of the more important terms of the original agreements and subsequent understandings on implementation. The original agreement was born out of confrontation and the continuing relationship between the Crees and the federal government, in particular, has been marked by suspicion, hostility and disagreement over a broad range of topics. The effective ability to maintain dialogue, let alone achieve progress, has at times been stretched to its limits.

However, during this same time period, it must be said that the transformation of the Cree and Naskapi communities, as well as the evolution and performance of a broad range of Cree and Naskapi institutions and structures (political, social and economic), are without precedent.

The challenges in achieving full implementation of the specific provisions of the original Agreements and subsequent understandings are now compounded by new (but at the same time old) issues, including the proposed James Bay Il hydro-electric developments and broader issues relating to the constitutional place of the Crees and the Naskapis within Quebec and Canada in the future.

Increased tension and confrontation with the Province of Quebec, in particular, appears inevitable in the years immediately ahead over a broad range of issues. For its part, the Government of Quebec is now preoccupied with broader constitutional concerns and is still managing the after-effects of the events of the Summer of 1990. Yet there is little evidence of constructive dialogue between Quebec and its Aboriginal peoples, especially with the Crees and the Naskapis.

Beyond the obvious present and future conflicts with the Crees flowing from the proposed James Bay II developments, the omission of Aboriginal representation from the Belanger-Campeau Commission presently studying constitutional options for the province, further confirms a broad gap in understanding and in the cooperative working relationship needed to avoid further confrontation in the immediate future.

For its part, the federal government's national policy agenda in the post-Meech Lake/Oka environment is reflected in a statement by the Prime Minister to the House Commons on September 25, 1990.

In his address, the Prime Minister confirmed the Government's intention to embark upon a fundamental restructuring of the Government-Indian relationship by adopting a "New Native Agenda." The Government's approach, as described, rests on four "main pillars", namely: the speedier resolution of land claims; improving living conditions on Indian reserves; effecting changes to the Indian Act; and reviewing more generally the fundamental place and role of Indian peoples in contemporary Canada, including the enhancement of the capacity for self-government within the framework of the Canadian Constitution.

At this stage, few details of initiatives under this "new Native agenda" have been announced by the federal government.

In the end, progress at the national level, or with the Crees and Naskapis specifically, is dependent upon having effective means to achieve:

  1. direct Indian input into processes for dealing with their own agenda and broader decision-making; and
  2. the resolution of disputes on a fair and equitable basis.

In this context, the review of how the Cree-Naskapi Commission, a vehicle established to assist the parties to Canada's first modern land claims agreement, might evolve and assist with some of these challenges, takes on new significance.

Answers to questions such as: Has it worked well? and Can it work to serve the common objectives of the parties, and if so what changes are required? may signal the direction that will need to be taken to meet similar requirements with other Aboriginal groups across the country.

What might thus initially appear as a task of marginal importance becomes one of considerable significance not only for the immediate parties, but potentially on a much broader basis.

2.2 The Crees and the Naskapis of Quebec

  1. The Communities

    For thousands of years the Cree and Naskapi peoples have maintained a traditional, semi-nomadic way of life based on hunting, fishing and trapping over a vast territory of present-day northern Quebec, a territory they continue to share with the Inuit of Quebec.

    There are nine separate Cree First Nations in this territory, of which eight were originally recognized under the James Bay and Northern Quebec Agreement. Five communities lie along the eastern shore of Hudson Bay or James Bay:

    - Whapmagoostui (pop. 482)
    - Chisasibi (pop. 2,445)
    - Wemindji (pop. 881)
    - Eastmain (pop. 480)
    - Waskaganish (pop. 1,306)

    The original three inland communities are situated in the southern part of the territory:

    - Nemaska (pop. 406)
    - Waswanipi (pop. 897)
    - Mistissini (pop. 2,173)

    The ninth Cree First Nation, the inland Cree of the Ouje-Bougoumou, has recently won recognition as a distinct Band with its own land base. The JBNQA and The Cree-Naskapi (of Quebec)Act will have to be amended to reflect the ninth Cree First Nation. The new community will be built on the shores of Lake Opemiska, between Waswanipi and Mistissini and will be home to the Ouje-Bougoumou people who currently reside in other communities or towns.

    There are approximately 9,000 Crees in northern Quebec, a majority of whom are under the age of 25. There are two main dialects of the Cree language - coastal and inland, or north and south - but most communities have also developed their own distinct dialects.

    The Naskapi people are related to the Crees, but enjoy their own distinct history, language and culture. Originally a nomadic people who shared the territory south of the Ungava Bay with the Inuit, the Naskapis still maintain their traditional relationship to the caribou that roam the lands of northeastern Quebec. The impressive new community of Kawawachikamach, near Schefferville, is home to approximately 540 Naskapi

  2. The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement

    The James Bay and Northern Quebec Agreement (JBNQA) and The Northeastern Quebec Agreement (NEQA) are the first modern-day Indian land claims agreements in Canada. The Governments of Canada and Quebec (including three Quebec Crown corporations) signed the JBNQA in 1975 with the Crees and Inuit of Quebec, and signed the NEQA with the Naskapis of Quebec in 1978.

    These agreements are negotiated settlements principally concerning the ownership and use of vast amounts of land in the James Bay territory of northern Quebec. They came about as a direct result of the Quebec Government's plan to utilize vast territories for hydro-electric development. Negotiations began after an injunction to stop the development was won by the Crees, followed by appeals to the Quebec Court of Appeal and ultimately to the Supreme Court.

    The JBNQA and the NEQA are also much more than land claims settlements. They are modern-day treaties that are protected under Section 35(3) of the Constitution Act, 1982. They are dynamic and evolutionary documents that, along with The Cree-Naskapi (of Quebec) Act, form the new constitutional framework for the future of the Cree and Naskapi peoples.

    In 1972, the Cree, Naskapi and Inuit peoples, who have lived a traditional way of life on the land, contested the James Bay Hydro-Electric Development Project of the Government of Quebec on the basis of continuing unextinguished Aboriginal title.

    The request for an injunction to stop the development was granted by the Quebec Superior Court in 1974 but was overturned by the Appeal Court a short time later. The Governments of Canada and Quebec had entered into negotiations in 1974 to try to resolve the Cree claim, and an agreement-in-principle was reached in late 1974. The question of title to the land had meanwhile been taken to the Supreme Court of Canada, but before a decision was rendered the parties reached agreement. The JBNQA was signed on November 11, 1975.

    A little over two years later, on January 31, 1978, the Naskapis and the Governments of Canada and Quebec signed a similar Agreement - the Northeastern Quebec Agreement.

    Under the terms of the JBNQA, the then 6,500 Crees and 4,200 Inuit of Quebec relinquished native territorial claims in return for $225 million over 20 years ($155 million for the Crees and $70 million for the Inuit), along with certain rights over specified lands and the promise of substantial self-government, program money and other benefits provided for in the Act.

    The Northeastern Quebec Agreement made $9 million available to the 540 Naskapis, also in return for the surrender of their native claims, rights, titles and interest, and established land rights similar to those for the Crees and Inuit.

    One of the most significant aspects of the two Agreements is the land regime it sets up. There are essentially three categories of lands:

    Category I & I-N (Cree - 3,250 sq.mi.) (Naskapi - 126 sq.mi.)

    Exclusive use of the Cree/Naskapi community. Includes some land under federal jurisdiction and some under provincial jurisdiction.

    Category II & II-N (Cree - 25,130 sq.mi.) (Naskapi - 1,60 sq.mi.)

    Cree/Naskapi have exclusive hunting, fishing and trapping rights, but no special right of occupancy.

    Category III (346,092 sq.mi)

    Remaining territory in JBNQA. Public use and access. Cree/Naskapi have more limited hunting, trapping and fishing rights.

    The two Agreements also affect most other aspects of daily life and future planning for the Crees and the Naskapis, such as:

    individual entitlement;
    local and regional government;
    health and education;
    environmental protection;
    the administration of justice; and
    economic and social development.

    On some matters the Crees and the Naskapis deal with the provincial government and on a few other matters with the federal government. In some cases, however, the involvement of both levels of government is required. The provincial government has a continuing role in areas such as natural resources, the provision of social, health and education services and the administration of justice.

    There was no dispute resolution mechanism provided for in the JBNQA or the NEQA. One has sub-sequently been negotiated with the Inuit (JBNQA) and the Naskapis (NEQA) in their respective implementation agreements signed in 1990.

  3. The Cree-Naskapi (of Quebec) Act, 1984

    The Cree-Naskapi (of Quebec) Act is the first legislation in Canada to provide limited recognition of Indian government. It redefines the relationship between the Government of Canada and the Cree and Naskapi peoples. The Indian Act no longer applies to them.

    The Act is a direct outcome of the JBNQA and the NEQA, giving them life and substance as they apply to those Indian lands held by Canada for the exclusive use of the Crees and the Naskapis. Sections 9 and 7, respectively, of the two Agreements oblige the Government of Canada to recommend "special legislation" to Parliament relating to setting up local governments on IA and IA-N lands that would not be accountable to the Minister of Indian Affairs and Northern Development, but to the Cree and Naskapi people themselves.

    What does The Cree-Naskapi (of Quebec) Act do?

    The Act sets out the detail of how local government will operate. In many ways it acts like a constitution, establishing jurisdictions and overall structures and defining individual and collective rights and responsibilities.

  4. Principal Naskapi and Cree Structures

    The Naskapi Band

    There is only one Naskapi Band, at Kawawachikamach, and there are no regional structures.

    The Cree First Nation

    The Cree-Naskapi (of Quebec) of Act and the JBNQA now recognize eight Cree First Nations, each one of which constitutes a separate community.

    As mentioned above, a ninth First Nation, the Ouje-Bougoumou Crees, was recognized by the Government of Canada on December 24, 1990 as a distinct Band with the right to its own community and land as defined in the JBNQA and the Act.

    Each of the communities is separately constituted as a corporation for purposes relating to IA lands and is incorporated by reference of provincial laws for purposes relating to IB lands.

    The Cree Regional Entities

    There are numerous regional Cree institutions that deal with issues ranging from Cree-federal and international relations to the regulations and income security of hunters, trappers and fishermen, housing, construction, arts and crafts and Cree owned corporations such as the successful airline, Air Creebec.

    In addition, the Crees are involved in an array of intergovernmental corporations, councils and committees with the provincial and/or federal governments to deal with common concerns in economic development, environmental, judicial, policing, zoning and other policy areas.

    For the purpose of providing context for this report, however, we want only to note briefly the principal Cree entities:

    The Grand Council of the Crees of Quebec (GCCQ)

    The GCCQ functions largely as a regional political arm for the Cree nation, mostly on federal-Cree and international affairs. It is a non-profit corporation that takes its mandate directly from the Cree communities through the Cree General Assembly. The GCCQ may act as an agent of the Cree people or the individual Cree First Nations on any delegated issue. The GCCQ is headed by the Grand Chief of the of the Crees.

    The Cree Regional Authority (CRA)

    The CRA is a largely administrative arm dealing mainly with provincial-Cree affairs. Since 1980, the CRA shares the same executive as the GCCQ, but operates under a separate authority. Its mandate is derived from the JBNQA and is concerned with issues of common services and programs, community welfare and development. It also serves as the executive of the Board of Compensation, another entity whose members administer, invest and distribute the compensation monies paid under the Agreement.

    The Cree School Board and the Cree Board of Health and Social Services

    The School Board has full jurisdiction over elementary, secondary and adult education and draws its commissioners from the eight communities and one from the CRA. The Health and Social Services Board administers services on Categories I and II lands.

2.3 The Cree-Naskapi Commission

History of the Commission

Although The Cree-Naskapi (of Quebec) Act was passed into law in July 1984, it was not until December of the same year that Part XII of the Act, the portion establishing the Commission, came into force. The following year was devoted primarily to establishing the necessary funding arrangements and fulfilling the consultation procedures for Commissioner appointments. Once the selection process was concluded, in early 1986, the three commissioners were appointed: Mr. Justice Rejean Paul, Mr. Robert Kanatewat and Mr. Richard Saunders.

As the job of a commissioner involves only a part-time commitment, one of the first priorities was the hiring of support staff personnel. The position of Director General was filled by Ms. Marsha Smoke in August 1986. Additional staffing appointments followed and the head office location of the Commission was moved from Val d'Or, Quebec to Ottawa.

During the latter half of 1986, the Commission hired additional support staff to prepare their first Report to Parliament and embarked on their first tour of the communities. Once completed, the Commission convened the first of the Special Hearings into the implementation of the Act. The information gleaned from the community tour and Special Hearings formed the basis of the first Report, submitted to the Minister of DIAND in early 1987. The report was completed in only a few months to meet the deadline set out in the Act.

Between the first and second Reports to Parliament, the Commission acted on representations submitted for investigation, toured the communities and convened two Special Implementation Hearings in preparation for the second Report, ultimately tabled in June 1989.

The Current Mandate of the Commission

The mandate of the Commission is expressed in its two principal duties as outlined in the Act [see Appendix C]:

  1. To prepare a report every two years on the implementation of the Act. This report is to be delivered to the Minister of DIAND who will table the report in Parliament. [Sections 165(1)a and 171(1)];
  2. To receive and investigate representations of interested persons regarding the implementation of the Act and to prepare reports and recommendations on the matters investigated. This function would include representations that relate to either the exercise or non-exercise of powers or duties created, specified or allocated to the parties under the Act. [Sections 165(1)b,(2),(3) and (4)]

Operationally, the business of the Commission is governed by its Rules of Procedure in conjunction with the provisions stipulated by the Act. The three Commissioners are charged with the responsibility of ensuring compliance with the provisions governing the Commission's duties and powers. Administratively, the Director General is responsible for the daily operation of the Commission's business.

To fulfil their duties, the Commissioners have met an average of 10 times per year, in Ottawa or during their community hearings, in order to discuss various aspects of Commission business. Meetings are more frequent in a biennial report year and less frequent in the non-report year, much less so when there are few or no representations to consider. For instance, only three meetings were held in 1990.

The quorum requirement has always been met and decisions are made on a consensus basis. In addition, the attendance of individual Commissioners, primarily that of the Chairman, has been required on numerous other occasions to satisfy various requirements.

The staff hired to support the activities of the Commission consists of five full-time employees. Although not considered part of the Public Service of Canada, all staffing positions, including remunerations, have been subject to Treasury Board approval, as specified in the Contribution Agreements with DIAND that govern the funding of the Commission. As employees, both the Director General and Director of Research have been appointed under full-time contracts.

Although somewhat difficult to categorize, the primary support functions performed by the staff are those of communications and report preparation. More specifically, the staff maintain an effective administrative liaison between the Commissioners and the parties to the Act. Aside from this and meetings with the federal government, limited primarily to financial administration matters, Commission staff have prepared newsletters, pamphlets and radio announcements, attended conferences, made community visits, investigated representations, prepared briefs and reports on representations and drafted the biennial reports.

Powers of the Commission

The powers that the Act confers on the Commission enable it to perform its duties, but only in relation to the investigation of representations brought before it. There are no specific powers identified for the biennial report function.

The Commission essentially has the following powers:

- to investigate any representation submitted to it relating to the implementation of the Act, including the exercise or non-exercise, by any party, of a power under the Act and the performance or non-performance of a duty under the Act;
- to refuse to investigate or discontinue an investigation for specified reasons;
- to request any document and the appearance of any person to give evidence; and
- to prepare a report on conclusions, findings and recommendations; report is sent to the Minister, to the complainant and to anyone against whom a negative finding is made.

Activities of the Commission

a) Biennial Reports

The Cree-Naskapi Commission has produced two biennial reports at the time of writing. The 1986 Report was submitted to the Minister of DIAND in March 1987 and the 1988 Report in June 1989. Both reports were prepared in English and translated into Cree, Naskapi and French.

Of the fourteen investigations conducted by the Commission, all were submitted by Cree or Naskapi parties, with the majority of complaints (eight) involving individual members vs. their local government. Of the remaining six representations, three involved Indian government complaints (two against the federal government and one against the Quebec government), and three may be classified as references and, as such, did not include a named respondent. To date, the federal government has not filed a representation with the Commission.

The subject matter of the representations accepted ranges across a number of areas, though there seems to be a recurrent theme of issues relating to education, housing and local elections. Other issues referred to in representations primarily concern the areas of finance (taxation and capital funding), health services and the administration of justice.

With few exceptions, investigations conducted by the Commission have involved issues of a local, community nature. As such, these investigations have been confined to one or two well-defined issues within the context of local government administration and, as a general rule, have been free of complex scientific or technical requirements.

The average time taken to complete an investigation ranged anywhere from two months to two years. Of the six investigations which have not been completed, one has been with the Commission since 1986 and the others for two years, on average.

Most of the representations accepted by the Commission for investigation occurred during the mid-point of the Commission's existence, from late 1987 to early 1988. During that period a total of eight representations, or roughly 60 percent of the total number, were accepted for investigation.

Of those accepted for investigation, the Commission has formally utilized its discretionary powers under the Act on four separate occasions to dispose of the representations. One representation was refused due to a lack of jurisdiction and three others were discontinued, of which two under authority of provisions in the Act and the other pursuant to the Commission's Rules of Procedure.

In each of the four instances where the Commission formally exercised its discretionary power to conclude a representation, a report of the investigation was issued by the Commission. The average time taken to prepare and issue the report, from the time of last contact between the Commission and the parties, was approximately two months. The general form and style of the reports are similar to legal decisions. The content of each report consists primarily of a chronology of events, a distillation of the issues and a finding of fact upon which to base the recommendations.

c) Other Activities

The Commissioners and staff have become involved in a number of other activities, largely in the context of their stated duties. These have ranged from speaking engagements, the publication of information brochures and writing radio spots, to the maintenance of a reference library/archive and an active mediation role on Agreement implementation issues between the Crees and the federal government.


The role of mediator has been exercised, if not by the Commission, at least in the context of the Commission. This is not a role that has been conferred on the Commission by the Act.

Judge Paul was asked by the Minister and Grand Chief Matthew Coon-Come, pursuant to an understanding entitled "Parameters, Principles, Objectives and Framework for Negotiations on the James Bay and Northern Quebec Agreement Between Canada and the Grand Council of the Crees of Quebec" dated March 2, 1988, to serve as interim mediator on outstanding issues related to the JBNQA.

More precisely, he was to assist in the resolution of several outstanding issues (past-capital funding, operations and maintenance funding and the situation of the Ouje-Bougoumou Crees) which, for the Crees, were preconditions to entering into formal implementation talks. This understanding authorized the mediator: to oversee and, where appropriate, to lead negotiations between the federal government and the GCCQ, respecting implementation by Canada of the legal obligations it has assumed under the JBNQA and related legislation (including The Cree-Naskapi (of Quebec) Act) and legal documents of arrangements.

This position was to end by March 31, 1988, but was extended. In early December 1988, the Judge withdrew his services as a protest of federal inaction but was subsequently convinced by the GCCQ and by DIAND to continue as mediator, a task he continues to perform at the time of writing.


Speaking engagements:

On a half-dozen occasions either of Commissioners Paul or Saunders has addressed a professional conference. In most cases, each was invited in his other professional capacity but used the occasion to discuss aspects of The Cree-Naskapi (of Quebec) Act.

Attendance at conferences:

The Commission has been represented at 33 conferences or meetings on Aboriginal issues; all meetings were within Canada, mostly in Quebec or Ontario.

Brochures and newsletter:

The Commission produced two informational brochures about the Act and the Commission and about the procedures for pursuing a representation. There were insufficient funds available, however, to translate the brochures from English. A periodic newsletter for distribution to the parties was produced twice, but abandoned.

Library/resource centre:

Documents are collected from conferences attended or from other Indian and governmental sources. Judge Paul also contributes copies of all judicial decisions relating to Aboriginal issues. These resources are available to the use of the parties, or are used to answer requests for information and to keep the Commissioners informed and up to date on Aboriginal issues.

Other activities:

The Commission offices and services are also used for a number of activities, presumably relevant to native interests and activities, but which are either unrelated, or at least peripheral, to the duties of the Commission. These include the provision of office space and telephone services to persons not engaged by the Commission.

How is the Commission Funded?

  1. History of the Funding Allocation

    The funding of the Cree-Naskapi Commission flows under an appropriation made by Parliament in 1980, pursuant to a 1980 Cabinet decision taken in anticipation of the "Cree Special Commission" foreseen in negotiations for The Cree-Naskapi (of Quebec) Act.

    The amount of the appropriation was based on an estimate made by the Department of annual expenses the future commission might incur. A sum of $271,000 was identified for 1980/81 and escalated by an inflation factor to $372,000 for 1984/85, making a total approved five-year allocation of $1,597,450.

    In the months before the Act was finally passed in 1984, the Government directed that the original allocation be reprofiled, upwardly adjusted for inflation and delivered by Contribution Agreement, with terms and conditions to be negotiated.

    Acting on this direction, DIAND made a submission to Treasury Board in early 1986, in anticipation of the setting up of the Commission. It is important to note that the original 1980 estimate was used as the basis for the 1986 submission. The amount approved by Treasury Board in February 1986 was for $1,970,600 over a five-year period (including two months in FY 1985/86 and ten months in FY 1990/91).

    This amount was divided into $394,700 per year with no annual inflation or cost-of-living adjustments and no ability to carry over funds from one year to the next.

    The funds for the Cree-Naskapi Commission are included in a departmental appropriation for the Comprehensive Claims Planning Element, under an item called "Comprehensive Claims Settlements and Related Self-Government Payments".

  2. The Funding Mechanism

    The Cree-Naskapi (of Quebec) Act gives no direction on the funding mechanism for the Commission. An agreement for the negotiation of such funding was included in the August 1984 Statement of Understanding signed by the Minister and representatives of the Crees and the Naskapis. However, the subsequent Minister took the position that the Government would not recognize the Statement of Understanding because it had not been approved by Treasury Board.

    The Commission is in fact funded by annual Contribution Agreements, as per the government directive of 1984. However, the terms of the Contribution Agreements have not been negotiated with the Commission, as required.

    The only related funding direction contained in the Act is found in Section 162(4) and states:

    The remuneration of the members of the Commission and of persons employed or engaged under subsection (1) shall be paid out of money appropriated by Parliament for that purpose.

    The Contribution Agreements nevertheless apply strict terms and conditions to the financial transfers to the Commission (our summary):

    The current funding authority expired on January 31, 1991 and all allocations have been paid to the Commission. Treasury Board and DIAND have decided to await the report of the Inquiry before making a further Treasury Board submission to fund the Commission. For the interim, DIAND asked the Commission to assess its needs up to the end of March 1991, during which time the hearings and other preparations for the next biennial report would be taking place.

    The Commission has estimated its additional needs at $147,000. The Department successfully sought this amount from Treasury Board and has made, at the time of writing, the first of two equal payments to the Commission. The funding authority was extended to March 1992.

  3. Commission Expenditures

    The Commission's annual budget of $394,700 covers all expenses relating to the office, salaries and per diems, and all costs associated with the biennial reports (including community hearings, translation into three languages and printing) and the investigation complaints. At the end of FY1990, the Commission had an unfunded deficit of $37,757.

2.4 How the Parties Work with the Commission

  1. The Federal Government

    Since the Act came into force, there has been progressively less involvement by the Minister of Indian Affairs, and his Department, in Cree and Naskapi Affairs. Although entitled by the Act to do so, the federal government has never initiated a representation before the Commission.

    When the JBNQA and NEQA failed to provide an implementation process, general responsibility for the Act fell by default to the Department of Indian Affairs, where it has been vested in those sections successively responsible for the implementation of the Agreements.

    Most day-to-day relations with the Commission are currently handled by relatively junior officials of the Self-Government Branch of the Department and relate almost entirely to budget management issues, as discussed later.

  2. The Crees

    The Commission maintains relations with all Cree communities, but this has diminished dramatically in recent years except where representations have been filed and when hearings are held for the preparation of biennial reports.

    In some communities relations with the Commission are maintained by the Chief, while in others this duty falls to the Deputy Chief or the Band. Relations tend to be informal and practical. The main Commission contact also varies, depending on the history of interactions; contacts are maintained variously with the Director General, Director of Research, the Office Manager and Commissioner Kanatewat.

    Depending on the reason, contacts with the GCCQ can be with its Ottawa office, with its headquarters in Nemaska, or with its other regional offices.

  3. The Naskapis

    Relations are informal and relatively frequent between the Naskapis and the Commission. The previous Chief, speaking only Naskapi, dealt with Commissioner Kanatewat, or communicated through an official. Day-to-day relations have been maintained with the Commission staff largely by the Director-General of the Naskapi Band.

2.5 Dispute Resolution Mechanisms (DRM)

During the negotiations that culminated with the signing of the Act, there was a good deal of discussion surrounding the issue of creating a DRM. There were questions of what the fundamental characteristics of power, duties and operations of the DRM should entail if the concept of a DRM were found to be acceptable to the parties. Due to a number of circumstances inherent to the negotiation process, however, this particular discussion was terminated. As such, the Commission was created with extremely limited DRM functions.

Current Models

By selecting a representative sample of DRMs, with particular emphasis on Aboriginal-specific models, it is possible to obtain a broad overview of the key characteristics that comprise contemporary DRMs. An analysis of current DRM models can facilitate the identification and consideration of future options relating to the Commission as a DRM.

The following national and international DRMs were selected for analysis by the Inquiry:

- Naskapi
- Inuit (Northern Quebec)
- Other comprehensive claims
- settlements/proposals:
- Inuvialuit
- Dene/Metis
- Inuit (NWT)
- Nunavut
- Indian Commission of Ontario
- Northern Flood Agreement

- Free Trade (Canada/USA)
- Great Lakes Joint Advisory Committee (Canada/USA)

- Waitangi Tribunal (New Zealand)
- Claims Commission (USA)

For further information, please refer to the more detailed description and analysis beginning on page 131, to the Inquiry's companion Research Report or to a summary of the Research Report included as Appendix E.


The issues examined and views of the parties

3.1 Introduction

Before turning to the analysis of the issues and recommendations in Chapters 4 and 5, this chapter both describes the questions the Inquiry examined in its research and in its various hearings and meetings with the parties, and reviews what the many people the Inquiry spoke with had to say.

As noted earlier, a framework of issue areas was sent to the parties in preparation for their formal meetings with the Inquiry. Those "Lines of Inquiry" essentially asked the parties to comment on the development of the idea and mandate of the Commission, on its performance in all aspects of its work, and on what changes they would propose for the Commission.

The Inquiry also sent detailed "Lines of Inquiry" to the Commission itself to serve as a guide for the various meetings held with the Commission, and for the preparation of their written submissions to the Inquiry.

3.2 Original Objectives of the Parties

The Inquiry wished first to examine:

- what positions were taken by the parties during their discussions on the future Commission that took place prior to the signing of The Cree-Naskapi (of Quebec) Act, and

- what level of common agreement was reached regarding

- the role the Commission was to play and

- the tools it was to have to fulfil that role.

These original expectations become important to understanding how each party currently interprets the duties, powers and performance of the Commission as stated in Part XII of the Act.

The Inquiry heard differing, even conflicting, views on where the idea for a Commission originated. Some suggested that the idea originated with the Crees and the Naskapis. Others were confident that the Department of Indian Affairs and Northern Development first proposed the idea of a quasi-judicial commission.

Whatever the case, serious discussions about the Commission and its role did not take place until very late in the negotiations of the Act. By the time negotiations focused fully on the Commission, little time remained.

Original Positions on the Mandate

In reviewing the positions taken in the original discussions, it is clear that the federal position went through some changes as the idea for the Commission evolved.

The federal government took the position, from the outset, that the Commission would be similar to a municipal board that would:

- have a supervisory role confined to local government matters;

- act as a quasi-judicial court of first instance; and

- be charged with preparing a periodic report to Parliament on the operation of local government in the Cree and Naskapi communities.

The federal government then changed its thinking on the quasi-judicial role and proposed the Commission have investigative tribunal powers similar to that of an ombudsman reviewing local government issues.

At the time of the final negotiations, the federal position supported a part-time body that would:

- investigate complaints on the implementation of the Act and regulations and submit a report and recommendations to the parties to the complaint;

- refer complaints not related to implementation of the Act to the appropriate authorities; and

- review how the Act was working in the communities and report to the Minister on all aspects of its implementation.

The Commission would have no power of subpoena. The Government at one time considered giving the Commission full powers of inquiry, including subpoena powers, but that was later dropped.

The final federal proposal was considered acceptable because the Government has agreed to set up an Implementation Secretariat that would minimize the requirement for the Commission to be active on JBNQA and NEQA, as well as Act, implementation problems.

The Crees originally wanted a tripartite advisory and supervisory committee, involving Quebec.

Negotiators eventually argued for a bipartite body:

- by which the federal government would be held accountable for the implementation of the Act, including financial matters;

- that would inquire equally into federal and Cree activities as they affected each jurisdiction;

- that would resolve disputes and implementation problems of any sort; and

- that would cover both the Agreements and the Act, have broad investigative powers and be able to make binding recommendations.

The Naskapi original position on the mandate for the Commission was that it:

- supervise the Department on the implementation of the Act; and

- arbitrate disagreements over appropriate funding for self-government purposes.

The Naskapis took their inspiration in part from recommendation #51 of the Penner Report that called for an independent monitor on official actions affecting Aboriginal peoples.

In order to conclude negotiations on The Cree-Naskapi (of Quebec) Act with some urgency in late 1983 and early 1984, the Crees and the Naskapis dropped their insistence on subpoena and "binding decision" powers for the Commission and for the extension of its authority over the Agreements.

Both the Crees and the Naskapis accepted the final arrangements for the Commission on the two fold understanding:

- that there would be a ongoing special body within the Government, preferably outside the Department, that would deal with the implementation of the Agreements and of the Act; and

- that the role and performance of the Commission would be reviewed after a period of five years.

What was Understood by "Implementation"?

The Inquiry was also interested to know whether, upon reaching agreement on the mandate and powers of the Commission, the parties had established a common understanding of the terms used to describe the mandate. In other words, did the parties really agree on the same things?

While there seems to be little misunderstanding on the term "representations" (or"investigations"), conflicting interpretations are given to the word "implementation".

The federal government:

- wanted an independent evaluation of the "implementation" of the Act to report on how the new system of government was working in the communities in order to help identify what changes might be needed to the Act to facilitate effective government in the communities; and

- acceded to the use of the term "implementation" as a way to allow the other parties the chance to argue that a particular issue related to the Agreement was also related to the Act, and thus within the ambit of the Commission.

The Crees and Naskapis understood "implementation" to mean that:

- the Commission was to act as a watch-dog on how well the federal government met its obligations under the Act;

- the Commission was to listen periodically to Naskapi and Cree assessments of the federal government's actions and recommend to the Minister how to improve implementation of the Act; and

- any role the Commission would have in community affairs was to be triggered by "representations" brought to it by individuals or by communities.

The parties reported to the Inquiry that no discussions have been held to clarify these issues subsequent to the passage of the Act.

3.3 The Commissioner's Performance

  1. Fulfilling Its Mandate
    As noted in the previous chapter, a short paragraph in Section 165 of the Act gives the Cree-Naskapi Commission its two-fold mandate to prepare biennial reports and investigate representations relating to implementation of the Act.
    After reviewing the original understandings of the parties, the Inquiry also wanted to see if the current interpretations of the mandate had achieved any more commonality over the approximately four years of the Commission's actual operation:

    - Are the Commission's duties too broad or too narrow, or even relevant?

    - Are they reasonable or necessary for Cree and Naskapi government?

    - What problems have been encountered and what changes would they suggest?

    The Commission was also asked to comment on its own experience. They had the following concerns:

    - The communities do not accept why the Commission "cannot make things happen".

    - The problems raised often lie outside a strict interpretation of the mandate, even though they may relate to self-government.

    - It is difficult to fulfil their duties effectively unless it is understood by all that the mandate extends beyond the Act to include the JBNQA and the NEQA.

    - If the Commission is supposed to be a dispute resolution mechanism that is an alternative to adversarial litigation, as the Commission feels it should be, then the powers provided may not be adequate to that function.

    The Crees also spoke about the general mandate of the Commission. It was felt almost unanimously that the Commission's mandate should also extend formally over the Agreements, but other points were also raised:


    - The Commission's mandate should include specific reference to the power it arguably already has to investigate financial matters relating to the powers and duties under the Act.

    - The Commission's power also extends over JBNQA matters. The Commission should report annually to Parliament on implementation and these reports should be sent to the House and Senate Committees on Aboriginal Affairs for review.


    - The Commission should oversee both federal implementation obligations and local government issues; by this they mean a body that would review complaints and proposals and judge their validity.

    - The Commission should not deal with private matters.

    - The mandate should centre on Act issues and on Cree-federal relations to assist the communities when they encounter conflict with the laws and actions of the federal and provincial governments.


    - Implementation problems with the Act usually also relate to the Agreement.

    - The Commission needs to bolster its role to investigate and suggest options when a conflict of laws arises.

    - The Commission should also be more active at the local level.


    - The daily life of the Crees and their government system are very closely linked to the Agreement, and thus to both the Quebec and federal governments.


    - A more liberal interpretation should be given to the Commission's mandate to allow it to function both as an "interdepartmental affairs body", with broad decision-making powers, and as a "community relations board" with authority decentralized to the local level.


    - The Commission should also become a full, impartial dispute resolution mechanism, perhaps with the involvement of the Government of Quebec, with binding decision-making authority.


    - The Commission was meant to be a high-profile body to ensure effective implementation of the Act, but the Government excludes dealing with any aspect of financing, with relations with the federal government, or with issues relating to the Agreements that are essential to the support of the Act.

    - Quebec should have a role in the Commission; sooner or later it will have to participate or a parallel body will have to be established.

    - The Commission should act as an alternative dispute resolution mechanism, but not for disputes between Cree First Nations or Cree entities; it should not handle "local, internal" matters such as land issues or hunting, fishing and trapping disputes, nor issues concerning Cree funds or compensation monies.

    - The mandate should also cover federal obligations to the Crees and Naskapis other than those resulting from the Act or the Agreements.

    "... when there is a third party, other than Cree, who interferes with the activity of implementation of The Cree-Naskapi Act, or interferes with the powers or jurisdiction of local governments, then the Commission should be called in to investigate and make a report on the particular problem." (Waskaganish Chief)

    The Naskapi Band also believe the mandate of the Commission should be extended to cover the Northeastern Quebec Agreement, even though there is a dispute resolution mechanism in their new Implementation Agreement with the federal government to deal with NEQA issues. The Naskapis would prefer that an expanded Commission perform the dispute resolution role now assigned to the new mechanism.

    The Naskapis also felt that the wording of Section 165(1)(b) of the Act, though it does not refer specifically to the financing of Bands for local government purposes, is sufficiently broad to allow the Commission to investigate a financing issue brought before it.

    The federal government recognizes the need for the parties to come to a clear and common understanding of the Commission's functions. It is suggested that, at the least, the Commission should continue:

    - to act as an ombudsman between the Cree and Naskapi governments and their members by providing individuals with a forum for resolving disputes without having to go the court;

    - to prepare periodic reports to Parliament on the implementation of the Act; and

    - to act, if agreed by parties involved, as a neutral and independent body to facilitate dialogue and resolve any disputes among the Cree, Naskapi and the federal government on Act implementation matters, as long as there is no conflict with the other functions.

    Department officials submitted that the government is prepared to discuss, among other options, a role for the Commission as a dispute resolution mechanism over JBNQA and NEQA implementation matters as well. This position is discussed later in more detail.

    The Assembly of First Nations (AFN) suggested:

    - the Commission's mandate needs strengthening to make it a neutral third party able to monitor and make binding directives and decisions regarding implementation of the Act;

    - the intrinsic link between the Act and the Agreements necessitates the extension of the mandate into the Agreements to allow the Commission to perform its duties adequately;

    - otherwise, the day-to-day matters affecting self-government, like education, health and policing, become divorced from the implementation of self-government for the purposes of the Commission; and

    - the Commission should be able to investigate representations in the areas mentioned above.

  2. Powers of the Commission

    The mandate is implemented by means of the powers the Act gives the Commission to investigate complaints and prepare its biennial reports to Parliament on implementation. The powers at the Commission's disposal are noted in Chapter 2.

    The Inquiry wanted to know:

    - Have the powers proved adequate to the exercise of these duties and what problems have arisen?

    - What additional powers might be required, especially for the resolution of disputes?

    The parties had very little to say about the powers of the Commission with regard to the investigation of representations, beyond two simple statements heard in virtually all communities and from the GCCQ, namely:

    - that the Commission should have the power to subpoena witnesses and documents; and

    - that the decisions of the Commission should be binding, in certain cases.

  3. Structure and Operations of the Commission

    In its hearings and interviews, the Inquiry asked all the parties:

    - Have they experienced any difficulties with the provisions in the Act regarding the structure and operations of the Commission? Do they find them adequate and appropriate?

    - Have they encountered any problems with the location of the office, the procedures the Commission follows or with their working relationship with the Commission? Would they suggest any changes?

    The questions put to the Commission itself were more detailed, given their daily experience with the procedures they must follow. The parties to the Act have little direct experience or knowledge regarding most of the operations and procedures of the Commission. The following reflects the points that were raised with the Inquiry.

    Composition of the Commission

    The Cree-Naskapi (of Quebec) Act provides for a maximum of three members to be appointed by the Government on the recommendation of the Cree Regional Authority and the Naskapi Band. The Act sets a two-year term of office, with eligibility for reappointment to additional terms.

    The research suggests that a full complement of three Commissioners was agreed upon to provide balance and to reinforce the visible independence of the Commission.

    The communities generally found:

    - the existing number and mix of Commissioners satisfactory for the current duties of the Commission;

    - that with an expanded mandate the membership might also need to be expanded; that to lend more credibility to their findings, the Commission should perhaps be comprised of people with legal background, at least one Cree and someone who understands the federal system.

    The Commissioners felt that:

    - having three part-time members was needed for an adequate debate of the issues and was sufficient to the current tasks; and

    - that at least one member should always be Indian, with Cree or Naskapi language competence assured.

    Appointing the Commissioners

    The parties and the Commission indicated that the required appointment procedures has been adhered to; however, the Cree Regional Authority and the Naskapis did not submit their agreed list of appointees until almost a year after Part XII of the Act came into effect. The Department reported that they then selected the first names on the list suggested by the Native parties, where possible.

    The original three Commissioners were appointed effective February 1, 1986 and were reappointed twice, in 1988 and 1990, for additional two-year terms. The Inquiry heard no real dissatisfaction with the appointment and reappointment procedures, or with the prescribed term of office.

    The Commissioners found the nominating procedures acceptable and a sufficient guarantee of Indian membership and language capabilities; any further precision in the Act, they said, would be too limiting.

    They did stress that reappointments, made in consultation with the parties, must be more timely than on both occasions to date; past delays caused unnecessary financing problems and personal uncertainties for the Commission members and staff.

    In early 1988, the Department proposed to the other parties that the terms of the three Commissioners expire at different times to ensure continuity. This suggestion did not advance any further as it would have required a lengthy process of amending the Act. However, current Department officials do see real advantage to staggering the terms of the three Commissioners, as does the GCCQ.

    Other Provisions in the Act

    Chairmanship: Currently, the chairmanship of the Commission is designated by the Governor-in-Council. The Commissioners suggested the chairmanship might be better decided by election among the appointed members, and that it be rotated among the members. The GCCQ suggested the CRA and the Naskapis should have input into the designation of the Chairman.

    Eligibility Criteria: The Commission members raised the matter that the current restriction that prohibits "a council member, officer, employee or agent of a Band" from serving on the Commission should apply equally to employees or agents of the Government.

    Term of Office: The Mistissini Council suggested that the term of office should be five years; the Naskapi Council preferred four years. The shared concern was that a longer period of time was necessary for Commissioners to acquire the needed knowledge of Cree and Naskapi issues and political cultures, and to establish a mutual familiarity with the people.

    Remuneration: The remuneration of Commissioners is fixed by the Governor-in-Council. This per diem rate is currently paid only to one member, and only for those days when he attends to Commission business. The other two members are ineligible for the per diem because of their particular professional situations.

    The Commission strongly supports the need to raise the current per diem to a level on par with other commissions and inquiries. The other parties made no comment on this item.

    Commission Location: The Act names Val d'Or as the site of the head office of the Commission, unless otherwise designated by the Governor-in-Council on recommendation of the Crees and Naskapis. The office location was changed in this manner to Ottawa in early 1986 before any office was set up in Val d'Or. The Crees and Naskapis still support the Ottawa location as does the Commission itself, although the Commissioners recognized the difficulties this presents for community access, especially for individuals. The GCCQ and some communities suggested that, in addition, the Commission maintain a permanent presence in the communities.

    Current Department officials had no problems with the location but did express concern that, being so far from the communities, the Commission would not readily be used by individual Crees or Naskapis for representations they might want to bring forward for consideration.

    Quorum and Majority Vote:

    The Commission reported that it conducted all its business with a full quorum, except where an investigative function was delegated under section 164 of the Act. The nature of the representations received, they said, has not required the attendance of all three Commissioners in the investigations.

    In almost every instance, the Commissioners have worked to achieve unanimity on decisions where only a majority vote is required by the Act. No comments were made by the parties on this matter.


    There are other provisions in the Act governing tenure, vacancy, and temporary substitution of Commissioners which either have not been used or have been applied without controversy.

    The Commission's Rules of Procedure

    The Commission's Rules of Procedure, adopted under section 163(3) of the Act, govern the filing, consideration, acceptance, refusal, investigation and reporting of representations. No changes have been made to the Rules.

    The Commissioners reported that they have had no real difficulties or complaints regarding the Rules. They have nevertheless found the formal rules to be largely inappropriate to the problems encountered.

    The Commission pointed out to the Inquiry that, under the rules governing representations, the hearing is actually the investigation and there is no provision for preliminary information gathering. They suggested that this creates an adversarial situation not necessarily best suited to the resolution of problems. The Commissioners thus decided that they would insert a preliminary stage to bring parties together to talk, collect information and try to solve the problem without a hearing.

    The only Cree views expressed during the Inquiry's hearings were the suggestions, first, that the Rules of Procedure are perhaps too legal, formal and not well understood by the people, and secondly, that all three Commissioners should investigate representations and write the resulting report, rather than delegate the authority to one Commissioner.

    From the Naskapi point of view, however, this power of delegation has proved useful and they see no need to change any of the Rules under the existing mandate of the Commission.

    The Commission Staff

    In reviewing the hiring, salary and management history of the Commission staff, the Inquiry wanted to ensure that normal, fair and acceptable staffing and management practices had been followed by the Commission.

    Interviews with the Commissioners, with the staff and with the parties uncovered no difficulties in these areas.

    The Inquiry also wanted to ensure that the Commission had been able to exercise freely the authority given it by Section 162 of the Act. Rather than having the authority to deal freely with the hiring and remuneration of staff and contract services, the Commission reported how it is tightly bound by a set of provisions in the annual Contribution Agreements that govern the funding of the Commission by the Department; for example:

    4. Financial Limitations

    The renumeration paid for professional services and to its employees through contract shall be in accordance with government guidelines. The maximum amount under contract for professional services shall be three hundred and fifty dollars ($350) per day for individuals and five hundred dollars ($500) per day for firms. The maximum amount under contract for employment shall not exceed the rate of the AS-6 level. The payment of travel expenses shall be in accordance with the Treasury Board Travel Directive. (1990-91 Contribution Agreement, 24.01.90)

  4. Activities of the Commission


    The Waskaganish Chief suggested that the Commission needs to have the power to initiate the investigation of a specific issue related to its mandate, a power it does not currently possess.

    The Commissioners had a number of general points to raise:

    - Current restrictions on the scope of the mandate and constraints on the Commission's resources mean that investigations cannot be handled properly.

    - Most of the representations, or complaints, received to date fall outside the mandate of the Commission, or simply require explanation or clarification of the substance of the Act.

    - Cree and Naskapi individuals do not generally make distinctions on a legislative or jurisdictional basis. The Commission is understood by most individuals in the communities to be a tribunal that will respond to all their complaints, except those of a private nature like divorce, or custody, or estates.

    - When the Commission constantly has to refuse representations because they fall outside the mandate, individuals cease to approach the Commission.

    - The Crees and Naskapis are so preoccupied with the tasks of implementing self-government and rebuilding their communities that complaints on specific sections of the Act are not priority concerns.

    - Indian societies generally like to resolve local disputes internally and according to their own traditions and values.

    The Commissioners conclude:

    - There is no need to change the investigatory powers as set out in the Act, but they need general clarification.

    - More resources are required for effective investigation of complaints. The Commission should have the authority to review all complaints, advise parties on the best route to take, and monitor progress; simply turning people away just discourages further use.

    - To perform its investigative function adequately, the Commission needs full access to documents and to people; they could then perform a thorough verification of the facts

    - The Commission should also have the power to initiate investigations.

    On specific provisions governing investigative procedures, the Commission shared their views on the few problems encountered to date:

    - Notice: Commissioners would like to see some discretion allowed them in the Act regarding notice provisions; the current inability to guarantee anonymity may discourage use.

    - Evidence: Because of the nature of representations received, there has been little problem in gathering required evidence; however, the absence of a subpoena power leaves the process dependent on the cooperation of all parties.

    - Resources: The principal impediment to an effective investigative role is the lack of financial and human resources. The Commission told the Inquiry that the inability to travel to the communities on a regular basis both to raise understanding of the Act and of the Commission and to hold hearings, contributes directly to the failure of the investigative role of the Commission.

    The Crees added their perspectives on the investigative procedures. These positions were repeated in most of the communities:

    - The Crees have had little direct experience with these procedures.

    - Some communities and many individuals are still unfamiliar with their rights under the Act; thus many are reluctant to take any complaints to the Commission.

    - The communities are too busy meeting their basic responsibilities and functions to consider what the Commission might be able to do to assist them.

    - The Commission needs to travel to the communities to receive representations. It is far too costly, and too daunting an experience to have to travel to or otherwise deal with an office in Ottawa to pursue a complaint.

    - Without the power to ensure the resolution of disputes, the investigative role of the Commission is irrelevant.

    - The Commission must act more expeditiously on the complaints it does receive.

    The Naskapis have used the Commission for three formal representations made by individuals and they have been satisfied with the investigations that followed. The current powers of the Commission have allowed it to discharge its mandate in these cases, though the Naskapis cautioned that, with no subpoena power, resolution has been fully dependent on the cooperation of the parties involved.

    The Department told us it was generally unaware of the activity of the Commission regarding representations and thus could not assess the adequacy of the Commission's powers in that regard.

    Biennial Reports

    "The Cree Nations of Quebec regard these reports as important elements to our continuing existence as self-governments. " (Mistissini Chief)

    The Inquiry carefully reviewed the two biennial reports thus far produced by the Commission and sought the reactions of the Crees, the Naskapis and the Department on the following:

    - Had they been adequately consulted in the preparation of the reports?

    - Did the Commission report on what it was given the mandate to report on?

    - Was there adequate action and follow-up on the recommendations? Is this a useful role for the Commission to perform?

    - Would they recommend any changes?

    The reporting authority was also discussed in some detail with the Commission and they and the Department were asked to report on what follow-up to the reports they had undertaken or monitored.

    Generally speaking, the Crees and the Naskapis consider them to be important instruments, but they see little resulting from the recommendations. As one Band official said: "What is the use of making a report if your recommendations are not going to be implemented?"

    The Crees and the Naskapis made the following main points:

    - The consultations the Commission held prior to drafting its reports were generally satisfactory.

    - The Commission should have sufficient resources to hold hearings in each community, rather than in central locations in the north or in Ottawa.

    - The reports were well done (especially the first one) and the Commission did what it was required to do.

    - A way is needed to ensure action is taken on the recommendations.

    - A follow-up process to the reports is required so the communities can assess progress made on recommendations.

    - A subpoena power, or other assurance of full access to documents and people, is needed for the Commission to acquit itself adequately in its report function.

    The former Naskapi Chief said with an air of resignation that, at the very least, the biennial reports do demonstrate both the types of problems the Naskapis and the Crees are facing and the fact that the federal government does nothing about them.

    The Waskaganish Chief's comments are especially noteworthy:

    - The reports cover many issues not strictly within the Commission's mandate, but this is a reflection of the near impossibility of isolating Act implementation issues from the real experience of self-government development in the communities.

    - The biennial reports should be published and sent to the Commons Standing Committee on Aboriginal Affairs for study.

    - The Commission, if given the resources, might best report annually on the implementation of the Act and submit those reports to the Privy Council, rather than to the Minister.

    The Grand Council of the Crees made similar points:

    - The reports should be automatically tabled with the Committees of each House of Parliament that deals with Aboriginal Affairs. The Minister should have to report to the Committees.

    - The reports should be annual and submitted either directly to the Committees or through the Prime Minister's Office.

    The Department acknowledged that the first report had been largely dismissed by the federal government for dealing with what were judged to be matters essentially outside the Commission's mandate and for not evaluating how well the new governing arrangements were working in the communities. The second report was also seen as dealing with many issues outside the mandate, but was less problematic for the Department.

    The Department advanced the notion that a requirement to report every two years is perhaps excessive. They suggested the Commission continue to report to Parliament through the Minister, but do so only every fourth year, with the added power to prepare special Act implementation reports when the Commission judges a matter to be of sufficient urgency.

    On the question of follow-up, the Department admitted that direct government responses had been limited, but that the recommendations have been considered in formulating departmental strategies for dealing with issues related to the Crees and the Naskapis.

    Finally, the Government also proposes that a formal review procedure should be set up involving the parties and the Commission to allow better understanding of the issues and assist in coordinating follow-up.

    Many of these same issues arose in our discussions with the Commission.

    The Commissioners see the biennial report as a considerable power, but admit it makes little sense to the Crees and the Naskapis if it does not solve problems. The Commissioners made a number of observations:

    - The Commission's role is complete as soon as the report is delivered to the Minister. It cannot campaign for its recommendations or otherwise ensure action is taken.

    - To guarantee there is at least some discussion of the contents of the biennial reports, an automatic referral should be made to the House of Commons Standing Committee on Aboriginal Affairs.

    - The severe lack of financial resources places a major restraint on the power of the Commission in its reporting role on implementation.

    - The Commission should have sufficient resources to conduct its own independent research and investigation of issues raised in the hearings held prior to the drafting of the reports; the text now depends almost entirely on what is raised in the hearings seriously compromising the ability of the Commissioners to make neutral, objective judgements. As the Commission Chairman said: "As it stands, all we have to go on is what one party says and what another party says, and a little bit of information that is readily at hand. It certainly can be argued that is not enough"

    In the Commission's experience, the Act and the Agreements are usually so intermixed and inseparable that the Commission has to go back to the Agreements to report responsibly on the issues facing the Crees and the Naskapis on the implementation of the Act.

    The Mediation Role

    As noted in Chapter 2, Judge Paul was authorized in March 1988 by the Government and the GCCQ to act as mediator to resolve several outstanding issues relating to the implementation of the JBNQA and the Act in the Cree communities.

    The Inquiry tried to establish whether the Judge was asked to serve in his capacity as Commission Chairman or in his own right, but the opinions of the parties cover both possibilities. When the question was put to them, neither Judge Paul himself nor DIAND officials could be sure one way or the other, though the Department was inclined to view the Judge's role as a personal one. The GCCQ, however, assured the Inquiry that in their view Judge Paul was mediating in his position as Chairman of the Commission.

    In any case, there has never been a formal delegation of authority to the Chairman by the other two Commissioners on mediation matters, as one would expect if the Commission were acting as the mediating agent. Nonetheless, the Chairman keeps the other members briefed on mediation activities and seeks their advice on occasion.

    Judge Paul told the Inquiry that because of the very small number of representations received concerning implementation, he accepted the role of mediator. The Judge was also aware that there were few people that could bring the two parties together. In his work "To my astonishment, I found out during the years that the only way to have these people together at the negotiation table was to have a guy like me to facilitate dialogue; otherwise, it wasn't going to happen".

    Judge Paul also admitted that he never expected this work would be so time consuming. He nevertheless chose to spend the time on these issues because of their importance to Cree self-government, to overall Cree-federal relations and even to the credibility of the Commission.

    The Commission informed the Inquiry that the expenses the Judge incurs in the role of mediator are, for the large part, not covered by additional funds from DIAND.

    All of the parties expressed their appreciation of the important role the Chairman has been able to play in the resolution of these important issues. There has been no criticism of what he has been able to do, but some expressed the opinion that mediation was not really part of the Commission's mandate, even though they felt it should become so in the future, and in the case of the GCCQ that the appointment did have an effect on the Commission's discharge of its mandate in other areas.


    To effectively perform its duties, the Commission has to be sure that its role and procedures are well understood. The Inquiry wanted to explore with the communities:

    - Has the Commission made adequate efforts to communicate its role and procedures to the beneficiaries and Councils of the communities?

    We heard from virtually every community that:

    - most individuals, including many Council members, were unaware of the role of the Commission, what it could do for them or what it had done, except to publish two biennial reports; and

    - even those more informed still had difficulty sorting out the type of problems that could be taken to the Commission and which could not.

    Other points were also raised:

    - Many people were aware of the two brochures that the Commission had distributed outlining its role and the procedures to be followed in filing a representation, though these only serve those who read English.

    - All the communities said that they would like to see the Commission more actively involved in promoting and explaining its role and the Act, perhaps by holding workshops. This was encouraged because of the inability of many Crees and Naskapis to read either French or English. Video technology would be useful for this purpose as well.

    - A number of the communities believed it would be very helpful if the Commission were to meet with communities after each biennial report is produced to explain its contents to the general membership.

    - There was general awareness of the financial constraints that prevented the Commission from doing more; many complimented the Commission for doing what it could with its limited resources.

    The Department told the Inquiry that it recognizes the difficulties in communicating with remote communities and it is prepared to take this into consideration in discussions with the Commission on future funding levels.

    The GCCQ would like the Commission to maintain a presence in each community and also to undertake data collection and research, in cooperation with the Government and/or the GCCQ, into implementation issues.

    One further issue was raised on a number of occasions that relates to an activity many wanted the Commission to undertake or oversee. While many Cree and Naskapi speaking people do not read syllabics, there are many others who do, and who do not read English or French. Everywhere the Inquiry went in the north, the point was raised: The Act must be translated into Cree and Naskapi. The suggestion was also made that the report should be translated into two main dialects of Cree - inland and coastal.

    3.4 Financing the Commission

    The main purposes in researching the financial files of the Government and the Commission were:

    - to understand how the budget appropriation levels for the Commission were arrived at;

    - to review the adequacy of the budget to the Commission's duties; and

    - to review the Commission's financial management record.

    The Inquiry gave each of the parties and the Commission an opportunity to comment on these matters. Naturally, the most in-depth questions were reserved for the Commission and for senior officials of the Department.

    The issues are essentially as follows:

    - Is the funding allocation of the Commission based on a reasonable assessment of the responsibilities and expenditures the Commission faces in performing its duties?

    - Has the budget been subject to discussion with the Commission?

    - Have the terms and conditions of the Contribution Agreements been negotiated with the Commission?

    - Do these terms and conditions conform with the provisions of the Act concerning the management of the Commission?

    - Are the terms and conditions reasonable and in conformity with accepted practice?

    - Has the federal government exercised any undue control over the Commission by means of the funding arrangements?

    - Has the Commission managed its finances in a responsible manner, consistent with accepted accounting and management practices?

    When we discussed these financial issues with the Crees and the Naskapis, they told us they had limited knowledge of the Commission's financial arrangements and history. Nevertheless, a few strong messages emerged.

    The Cree and Naskapi communities were mostly well aware of the financial constraints on Commission activities. They urged:

    - that the Commission must possess finances adequate to its mandate, to allow the Commissioners to travel to the communities and to perform research; and

    - that the Commission should be able to go directly to the Treasury Board for its budget appropriation because DIAND is a potential respondent and complainant. If the Commission cannot go to the Treasury Board, it was added, then another senior Department should represent the Commission at the Treasury Board.

    One Band questioned whether funding should come from the federal government alone, since that was seen as allowing it to exercise "direct power" over the Commission.

    The GCCQ considers DIAND to be an inappropriate funding agent of the Commission because it may be a party to a complaint for Commission investigation. Rather, the GCCQ suggests a committee of all parties draft the basic budget submission to be made directly to Treasury Board. They also contend that the Contribution Agreement method of funding gives the Department undue control over Commission activities.

    Finally, the Grand Council urged that the Commission must be adequately funded to perform independent research and a wider dispute resolution function.

    The Commission stated directly that, because of the funding level, it "... has had tremendous difficulties in meeting its obligations as set out in The Cree-Naskapi (of Quebec) Act". The Commissioners confirmed that:

    - they had no involvement in the 1986 Treasury Board submission that fixed the Commission's annual budget; and

    - they have had no input into the terms governing the annual Contribution Agreements.
    The commissioners further explained that:

    - they regularly run out of money late in the calendar year, especially in years when the reports were produced;

    - in those years when the Commissioners were up for reappointment, the Contribution Agreement could not be signed until the reappointments were made. This situation resulted in serious cash-flow problems and the Commission had difficulty securing bridge financing because the new Contribution Agreements had not been signed;

    - they consider virtually all the terms and conditions of the Contribution Agreement, with the exception of the audit requirement, to be unreasonable; and

    - they find the management of Government - Commission funding to be "not up to modern standards of dealing with financial matters."

    The Commissioners echoed what some of the Crees told us, namely that funding through a Contribution Agreement with the Department: "... definitely inhibits the development of the Commission and the role of the Commission. It is inappropriate to have a government department responsible for the financing of the Commission who may also be named as a respondent in any representation filed on the implementation of The Cree-Naskapi (of Quebec) Act."

    From the experience the Commissioners have gained over the last five years, they judge the budget clearly inadequate to the minimum fulfilment of the mandate. They have made numerous requests to the Department for increased funding, but no increase beyond the original appropriation has been secured.

    The Department told the Inquiry that:

    - its hands have been tied in the past five years on the funding issue;

    - the budget allocation in the original Cabinet decision and the Contribution Agreements have not allowed the Department to raise or reduce the annual budget for the Commission;

    - the Contribution Agreement has been administered in the least intrusive way possible;

    - and the terms and conditions were standard for Contribution Agreements in 1984.

    The Department stated its willingness to discuss new funding arrangements and procedures with the Commission that would allow maximum flexibility in managing the budget, to give the Commission the opportunity to draw up and defend its own budget proposals and to minimize any possibility of creating the perception of undue influence by the Department as a result of the budgetary process.

    3.5 Dispute Resolution Mechanisms

    The Inquiry's Research

    As noted earlier in the report, the Cree-Naskapi Commission does act as a dispute resolution mechanism, albeit with limited powers and jurisdiction. The Inquiry considered it important to review in some detail the range of existing DRM models and the experience gained in various fields and countries, as described in Chapter 2, to assist in the assessment of the operations of the Cree-Naskapi Commission and the consideration of future options.

    The Inquiry research looked at twelve DRMs initially to determine:

    - who has access to each body;

    - where its authority comes from;

    - what its mandate is;

    - how it is structured and how it operates;

    - what powers of investigation it possesses;

    - what decision-making authority it has;

    - to whom the recommendations are made; and

    - how it is financed.

    The Inquiry then wanted to analyze the different features of DRMs and identify a set of key dispute resolution issues as they might inform the existing mandate of the Cree-Naskapi Commission, in the first instance, and future options the Inquiry might wish to draw to the attention of the parties.

    A discussion of the Inquiry's major findings in this area is presented in the next chapter.

    DRMs and the Parties to the Act

    Just prior to the Inquiry's hearings with the parties, the Naskapis and the Inuit of northern Quebec signed separate Implementation Agreements with the federal government. These Agreements contain provisions for setting up a DRM for purposes of the Agreements. The Inquiry sought the views of the different parties on the creation of new DRMs to deal with matters arising from the Agreements.

    The Naskapis made the following points to the Inquiry about their new DRM though it has not yet been set up:

    - The Commission is not redundant in light of the new DRM that covers NEQA matters.

    - It can be argued that the new DRM encompasses Act matters that fall under the Commission's purview.

    - A representation to the Commission is the preferred avenue for resolution of disputes because it is a continuing body with an office and support functions, because the costs of investigation are largely borne by the Commission, and because individuals have standing before the Commission; none of these is the case for the new DRM.

    The Crees said they were generally not aware of the new DRM in the implementation agreements that had just been signed by the Naskapis and the Inuit. They told the Inquiry that there had not yet been much discussion among the Crees regarding the need for a new DRM.

    The federal government pointed out that the new DRM's are meant to resolve disputes arising from the land claims settlements and not from the Act. The Department also noted that the Commission in itself is not mandated as a DRM, but could be used as such if the parties agree.

    Department officials told the Inquiry that the Department is willing to begin negotiations with the Crees on outstanding JBNQA issues, including setting up a DRM for JBNQA matters. They left open the possibility that the Commission might be given the mandate to perform this function.


Analysis and Commentary

4.1 Some Initial Questions on the Mandate of the Inquiry

The statutory requirement for this Inquiry is contained in section 172 of The Cree-Naskapi (of Quebec) Act, 1984 and was agreed to in the final negotiations on the Act, when the federal government, the Crees and the Naskapis identified the future need to examine the Cree-Naskapi Commission after an initial testing period.

The Cormmission broke new ground in Canada in its concept, mandate and structure. For different reasons none of the parties were fully comfortable with the mandate and associated powers they conferred upon the Commission. Apprehensions remained about what the Commission might actually do: Could it be impartial? Was it too powerful? Did it possess the required tools to perform to the satisfaction of all parties, given the somewhat ambiguous mandate?

These are questions the parties have asked this Inquiry to examine. The terms of reference for the Inquiry can be found in Appendix A of this Report.

Examination of Broader Dispute Resolution Models and Experience 3

Although an assessment of the Commission has dominated the Inquiry's work and this report, it became apparent early on that many of the issues that required examination were present, and indeed had been dealt with differently, in comprehensive land claims settlements reached subsequent to the JBNQA and the NEQA. Many of the issues examined are thus of broader significance and some of the Inquiry's conclusions and recommendations have the potential for wider application.

In examining the mandate of the Commission The Inquiry engaged in an extensive examination of alternative models, both proposed and established, for resolving disputes between governments and beneficiaries to claim settlements.

This report reflects the results of that work in summary form and incorporates an assessment of other experiences and models which may be of relevance to the parties in their consideration of the future of the Cree-Naskapi Commission.

The Inquiry's research report on alternative dispute resolution processes is available as a separate report for those interested. A summary can be found in Appendix E.

Scope of the Mandate:

Confined to the Commission and the Cree-Naskapi Act or Extending to Encompass the JBNQA and NEQA?

In its discussions with all parties, the Inquiry was careful to emphasize that its mandate was confined to the Cree-Naskapi Commission itself; it did not have the mandate to consider all aspects of the Cree and Naskapi relationships with the federal government, nor the power to re-examine the JBNQA and the NEQA, except as they relate to the Commission itself.

However, for reasons that are discussed in more detail in subsequent sections of this report, the Inquiry was unable to divorce a consideration of the Commission and its mandate as it relates to the provisions and implementation of the Cree-Naskapi Act from broader issues linked to the provisions and implementation of the Agreements.

The Inquiry has done everything possible to ensure that these broader issues have been examined and reflected in our report only where they relate to the performance and the future of the Cree-Naskapi Commission itself.

4.2 Original Objectives of the Parties

The Agreements and the Cree-Naskapi Commission

The Cree-Naskapi (of Quebec) Act, 1984 was negotiated pursuant to Section 9 of the JBNQA and Section 7 of the NEQA which provided for "special legislation" to establish local governments for the James Bay Crees and for the Naskapis.

However, nowhere in the Agreements is there any reference to the establishment of a Commission or other form of dispute resolution mechanism.

What these sections of the Agreements did do was provide for negotiations between the federal government and the Crees and Naskapis to set the terms of the "special legislation". In this context the parties discussed and eventually agreed upon the provisions relating to the Cree-Naskapi Commission.

A Last Minute Deal: No Real Meeting of Minds

The Inquiry is unable to determine definitively which party initially proposed the establishment of something along the lines of the present Commission.

What is clear is that the discussions spanned a significant period of time (from 1976 to 1984) and that during that period the concept and specifics of the proposed body underwent major changes.

This is particularly noticeable in the evolution of the position of the federal government relating to the proposed Commission. From an initial position which reflected a possible broad mandate and extensive powers for the proposed Commission, the written record reveals a steady erosion and narrowing of what the federal government was finally prepared to accept.

This change in position appears to have been based on a concern that the obligations of Canada under the Agreements were so discretionary that the nature of the Band powers provided for could give rise to high-profile investigations by the proposed Commission. The federal government concluded it would be inappropriate to grant important powers to an outside body.

Accordingly, federal objectives in the final stages of negotiations for the Commission focused more on how to limit the potential role and associated powers of the Commission to the bare minimum.

The Cree position also changed during negotiations. At some points they were clearly of the view that the Commission being discussed was too complex and they in fact removed the concept from the negotiating table at various stages.

The Crees became concerned about the complexity of the roles proposed for the Commission and whether or not Cree participation on, and access to, the body could be assured. In the end they insisted that any overseeing or review function agreed to would extend to encompass the federal government as well as the Cree local governments.

The task of reaching agreement on a body that had no precedent was dealt with in detail in the final hours of the negotiations. Both the federal government and the Crees and Naskapis, faced with an impending election in 1984, worked to ensure passage of the Act prior to the dissolution of Parliament.

The Crees were concerned that the results of eight years of work subsequent to the signing of the Act could be lost; the Commission was only one element in a much broader package to be contained in the draft legislation. It appears the federal government shared some of these same concerns.

As a result, the sections of the Act dealing with the Commission were perhaps the subject of more last minute compromise, and resulting ambiguity, than most other parts of the legislation. They reflect a level of ambivalence and apprehension on the part of both the federal government and the Crees.

This in turn meant that differences of opinion on objectives, mandate and powers were "drafted over" with less than desirable precision. In many areas it is evident that there was no real meeting of minds on the specifics of the Commission, its mandate and powers, or what it would be doing and how.

The last-minute negotiations and compromises had two other consequences of importance:

- the inclusion of a statutory requirement for a review of the Commission five years after its establishment; and

- a lack of detailed attention to the financial resources required to support the Commission.

The Five-Year Review Requirement

Reflecting a mixture of haste and unease, agreement was reached that the Commission would be subject to a comprehensive review five years after its creation.

It should be noted that this review requirement was specific to the Commission alone, although other elements of the Act might usefully have been the subject of similar review.

It should also be noted that, in agreeing to a review, the parties do not appear to have entertained the possibility of the termination of the Commission; at least, it was not stated by any of the parties. Rather, the emphasis was on the desirability of the review providing "an opportunity to alter the role of the Commission if necessary" based on the experience gained.

In fact, Cree and Naskapi concern that the wording in early drafts of Section 172 might be interpreted to mean that the continued existence of the Commission would be open to question led to changes in the review clause.

This objective of adjusting and improving the Commission through the review/inquiry process was reflected in the submissions of all parties to the Inquiry.

Lack of Detailed Attention to Resource Requirements

The last-minute agreement resulted in what is, with hindsight, a regrettable lack of attention paid to a number of financial and operational issues, including the resources that the Commission would require to adequately discharge its mandate, and to the type of relationship and associated agreements required between the Department of Indian Affairs and the Commission for staffing and budgetary matters.

It is the Cree position that matters relating to the financial support of the Commission were to be negotiated between the parties under the 1984 Memorandum of Understanding. In the Cree view, this obligation was never met and remains outstanding. These issues are the subject of more detailed comment on page 121.

The Scope of the Mandate

One of the most significant compromises reached in the last moments of negotiation was on the issue of whether the Commission's mandate would cover the implementation of the Act alone, or extend to encompass the Agreements as well. While Section 165 of The Cree-Naskapi (of Quebec) Act is clear in its emphasis on the implementation of the Act itself, there were many questions in the minds of the representatives of all parties as to whether such a cut-off point from the main Agreements was realistic. This issue is discussed in more detail on page 83.

The Lack of Implementation Structures 3

Further confusing the agreement establishing the Commission are the apparent differences of understanding between the parties on the broader issue of implementation of the Agreements, an issue that persists to the present day.

In contrast to virtually all subsequent comprehensive claims agreements concluded in Canada, the JBNQA and the NEQA failed to structurally address the issue of implementation and omitted a full-fledged dispute resolution mechanism.

In reaching final agreement on the Commission itself, it is clear that the federal government anticipated that the establishment of the Commission would be parallelled by the creation of a number of implementation structures involving the federal and provincial governments and the Crees and Naskapis, as well as implementation structures internal to DIAND. These internal structures would handle coordination of both departmental and interdepartmental implementation responsibilities for the federal government. Indeed this expectation was specifically reflected in the Statement of Understanding concluded between the GCCQ and the outgoing Minister of Indian Affairs in 1984.

For their part, the Cree view of what the Commission should be doing and the compromises they accepted in the final drafting were significantly affected by the understanding that the Government would implement the undertakings it made in the Agreement and the Act. It should not have been a concern for the Crees as to how the Government would structure itself to proceed with implementation. There were matters dealt with in the parallel political agreement (the 1984 Statement of Understanding). The assumption was that the Act and associated understandings would be honoured and implemented in full.

The result is clear. While many undertakings in the original agreement have clearly been discharged, implementation of the provisions of the original Agreements, as well as subsequent implementation understandings, remain today a continuing, negative preoccupation of the parties.

Internal to the federal government, the required implementation planning and structural work had not been done.

Under Cree and parliamentary pressure, the federal government did undertake a comprehensive review of how it had met its obligations under the JBNQA. The resulting 1982 "Tait Report" clearly identified the federal government's failure to deliver on many aspects of the original agreement. The report identified a specific problem with the federal government's failure to develop required implementation structures.

A subsequent Understanding signed in 1984 between the Crees and the Minister of Indian Affairs was not honoured by the succeeding Government which adopted the view that the Understanding had been entered into without the required Treasury Board authority.

In 1986, the Auditor General highlighted the federal government's failure to address its implementation responsibilities in the following terms:

The fact that government obligations were included in the Agreement raised Native expectations that they would be carried out within a reasonable time. However, a lack of specificity, the failure to dedicate resources to the obligations and the fact that obligations were not always assigned to a specific department, through an approved implementation plan, have caused serious problems in implementing parts of the Agreement. The Department has estimated that the cost in current dollars of implementing the outstanding obligations would be $190 million.

Cumulatively, these events are seen by the Crees as a continual reneging by the Government on clearly stated obligations.

It is, of course, not the purpose of this review to attempt to detail the full history of Cree attempts to force implementation of both the original Agreement and the subsequent implementation understandings.

However, it is the Inquiry's view that the federal government's failure, from the outset to the present day, to adequately deal with the structural and substantive aspects of implementation of the Agreements has resulted in a federal-Cree preoccupation with these implementation structures and issues. This has not only had major negative consequences for the effective resolution of a broad range of different issues currently on the negotiation table but, more importantly, has had a significant effect on the parties' expectations of the Cree-Naskapi Commission and on its performance over the last five years.

4.3 The Commission

This section of the report provides the Inquiry's assessment and recommendations on the Commission itself- its structure, operations and performance over the five year period.

It should be noted that since the parties concluded the negotiation of the Act, they have engaged in no discussion or exchange of views on any matters relating to Commission structure and operations beyond day-to-day administrative and financial matters.

The Inquiry was surprised that the parties had not conducted their own interim review of the Commission nor made any attempts to jointly address some issues of obvious concern to the Commission and the parties as they arose during the five-year period.

While this can perhaps be explained by the broader difficulties and agenda between the Crees and federal government, it is the Inquiry's view that there is a demonstrated need for more formal, senior level working mechanisms, both between the parties and involving the Commission, to deal in a timely and structured manner with outstanding management, administrative and financial issues.

  1. The Commission's Mandate and Duties

    The Agreed-Upon Mandate

    The final results of the all-party negotiations gave the Commission two primary functions, as reflected in Section 165 of the Act:

    - preparation of biennial reports on the implementation of the Act; and

    - investigation of representations relating to the implementation of the Act.

    Federal resistance prevailed over the idea that these duties should extend to encompass implementation of the JBNQA and the NEQA.

    For its part, the federal government has maintained further that the mandate was to focus on how well local government under the Act was functioning at the community level.

    For their part, the Crees have maintained that the mandate's primary focus was to keep the parties, especially the federal government, "honest" to their commitments and obligations. From this perspective, the Crees felt that implementation of the Agreements could not realistically be separated from implementation of local governments under the Act itself.

    Primary Source of Conflict and Confusion - the Exclusion of the Agreements

    As a result, this somewhat artificial distinction between the Act and the Agreements has proved to be a continuing source of confusion and conflict between the parties, and has had the effect of placing the Commission in the unenviable role of having to force clarification of some of the ambiguities in its own mandate, not always to the liking of one or other of the parties.

    It should be noted that legal opinions internal to the federal government clearly indicated both that the legislative mandate of the Commission would be legally open to the interpretation that it extended to encompass implementation of the Agreements as well as the Act, and that the distinction reflected in the legislation was not going to be an easy one for the Commission to sustain.

    The Commission's Interpretation Of and Experience in Working with its Mandate

    It is the view of the Inquiry that the Commission proceeded responsibly to adopt an interpretation of its mandate which was not only reasonable in all of the circumstances, but was consistent with the legislation and objectives of the parties. For the most part, they have interpreted and discharged this mandate in an impartial manner.

    At an early date the Commission sought legal opinions on what was and was not possible under the two main duties reflected in Section 165.

    Key elements of the legal opinion obtained by the Commission in respect of its mandate were:

    - according to the "spirit" of the Act, the Commission does not have the power to initiate investigations within the meaning of Section 165(1); and

    - an indication that the biennial report function allows the Commission a high level of initiative in undertaking research, investigation and reporting on matters related to the implementation of the Act.

    It should be noted that even the legal opinions provided to the Department of Indian Affairs reflected that Section 165(1)b would probably allow the Commission to investigate a charge of inadequate funding on the basis that adequate financing, although not covered by any provisions in the Act, is essential to the exercise of Band authorities under the Act.

    As anticipated in virtually all legal opinions to the Commission and to the Department of Indian Affairs, the Commission has been unable to make a clear distinction between matters relating to the Act and the Agreements and thus, in its biennial reports, "intruded" into matters which were, in some instances, clearly outside its mandate.

    The Commission's Mandate and The Province of Quebec

    At this point it is desirable to emphasize again that the Commission's mandate in no way provides for any interaction with, or ability to influence, the other main signatory to the Agreements, namely the Province of Quebec.

    The parameters that confine the mandate to implementation of the Cree-Naskapi Act, have effectively denied the Commission the ability to report on implementation issues that involve the Province.

    In fact, because of the predictable blurring of reporting on Act/Agreement implementation issues, the Commission has at some points focused on implementation issues specific to, or involving Quebec. For example, in its 1988 report the Commission dealt with matters concerning the administration of justice, economic development, and the establishment of the Ouje-Bougoumou community.

    The Inquiry later discusses whether the Commission can meaningfully report on implementation issues if Quebec is not a full participant.

    The Impact of "Implementation Issues" on the Work of the Commission and its Mandate

    From the outset, especially in the implementation hearings to prepare its 1986 biennial report, the Commission was confronted with a broad range of submissions from the Cree leadership, at the community and regional levels, to the effect that the federal government was not living up to its obligations under the Act or under the Agreements.

    In its first biennial report, the Commission reflected the range of issues that had been raised, clearly indicated the nature and extent of the implementation problems that existed at that time, and set out recommendations for addressing these problems.

    Cree concerns in this area had been exacerbated by the incoming government's refusal, in 1985, to live up to the terms of a detailed understanding on implementation signed by the outgoing government.

    In commenting on the issues as presented to them, the Commission submitted a first report that clearly went beyond the narrow confines of its legal mandate by reporting on a number of issues that related principally to the implementation of the Agreements, not just of the Act.

    The federal response to this first report was overly defensive and legalistic. It leaves a somewhat simplistic impression that the Commission and its report had adopted a pro - Cree bias from the outset. This view prevails within certain parts of the Department of Indian Affairs to the present day. It is the Inquiry's view that this charge is without foundation.

    The Department severely criticized the Commission for not having adopted the federal interpretation of the mandate, that is, one of reporting on the implementation of the Act at the community level as opposed to a scrutiny of the Government's obligations under the Act/Agreements.

    This in turn led to a short, sharp exchange between the Chairman of the Commission and the Minister of Indian Affairs. The federal government adopted this position notwithstanding the prior federal legal opinion to the effect that Section 165 did not lend itself to such simple interpretation. In addition, it was predictable that implementation issues would dominate given the failure of the parties, and the federal government in particular, to establish required implementation structures.

    At that early stage of the Commission's existence, it was foreseeable, even if the Act had been fully translated and well understood within the communities, that the primary focus of the representations to the Commission and the content of its report would focus on a broad range of implementation issues. The Cree and Naskapi parties used the Commission's hearings to express their principal preoccupations and grievances concerning the performance of the Government on implementation of the Agreements. In this context, then, the Commission's response is understandable.

    The Federal Government Agrees to the Chairman's Involvement as a Mediator of Agreement Implementation Issues

    After subjecting the Commission to strong criticism for having exceeded its mandate, the Minister and the Grand Chief of the Crees of Quebec agreed in 1988 to appoint Mr. Justice Rejean Paul as mediator between the Crees and the federal government on broader Agreement implementation issues. It should be noted that the Judge performed this role with some considerable success in all circumstances.

    When confronted with this apparent reversal of its original position, federal officials responded to the Inquiry to the effect that Mr. Justice Paul had been named mediator in his personal capacity, not as chairman of the Commission.

    The Inquiry finds this distinction somewhat artificial. The reality is that beyond the involvement of the chairman, the staff of the Commission were involved in supporting the Judge's involvement as mediator and the federal government made no separate or additional funding available to cover mediation-related expenses. It was clearly expected that most of these expenses would be paid out of the Commission's budget.

    Later Changes in Federal Policy in Other Comprehensive Claims Settlements

    Relevant to this consideration of the Commission's mandate is the fact that federal policy regarding the implementation of comprehensive claims settlements and the resolution of disputes between parties has undergone major changes since the JBNQA and the NEQA were signed.

    Dispute resolution mechanisms are now a standard feature of comprehensive claims settlements. The mandate of virtually all dispute resolution mechanisms embodied in claims settlement agreements make no distinction between the original settlement agreements and the implementing legislation.

    Those dispute resolution mechanisms now established (including those for the Inuit under the JBNQA and for the Naskapis under the NEQA) have "mandates" which clearly extend to encompass implementation issues arising from the original Agreements as they pertain to the parties to the DRM agreement.

    The Inquiry concludes that the fine distinctions made, both in the drafting of the mandate of the Cree-Naskapi Commission and in the level of federal reaction to how the Commission interpreted its mandate in its first biennial report, must be attributed to the fact that all parties were then clearly dealing, in the Agreement, the Act and the Commission itself, with concepts and mechanisms without precedent.

    The distinctions made are not sustainable and not consistent with current federal policy in this area, 3 as reflected in all subsequent comprehensive claim settlements.

    The Investigation of Representations

    Beginning on page 104, this report details the experience of the Commission in working with the part of its mandate dealing with the investigation of representations.

    It is important to note that it was in this area that the federal government expected that the Commission would focus most of its activities.

    As described in Chapter 3, the low number of investigations reported appears to be attributable to a number of factors, including:

    - the Act has not been translated into Cree or Naskapi;

    - Iittle understanding at the community level of the provisions of the Act, and indeed of the specifics of the Agreements themselves;

    - the federal government has made no representations to the Commission;

    - an inability on the part of the Commission and its staff to be present in the communities with any regularity; and

    - many internal tensions or disputes are dealt with within the communities through a variety of traditional methods. The Cree communities prefer not to put such matters to "outside" bodies for resolution. A slightly different experience is reported by the Naskapis.

    Notwithstanding the relatively low usage to date, the Inquiry feels that the investigation of representations is a valuable function and should be retained. It is possible that the number of representations will increase as knowledge of the Act, the Commission and its mandate improves at the community level in the years ahead. This aspect of the Commission's mandate deserves a chance, under better conditions.

    Other Functions Assumed by the Commission

    Beyond the two major functions assigned to the Commission under Section 165, the Commission has undertaken a range of other functions, to the extent that its budget has permitted. These functions are mentioned in the preceding chapters and include attendance at conferences, speaking engagements and the maintenance of a resource library.

    In the view of the Inquiry, most of these functions have a legitimate place in the discharge of the primary mandate of the Commission. A fuller assessment of the Commission's work in these areas can be found beginning on page 117.

    The Commission as a Dispute Resolution Mechanism

    The Commission's present mandate does not really qualify it as a dispute resolution mechanism of any significance. The two exceptions to this general statement are:

    - that part of its mandate that allows the Commission to investigate and report on representations ( 165 ( 1 ) b); and

    - the mediation function assumed by the current chairman of the Commission on implementation issues, though technically not within the Commission's statutory mandate and arguably not a function assumed by the Commission as such.

    In both areas, actions of the Commission have facilitated the resolution or partial resolution of outstanding issues between the parties, a fact acknowledged by all of the parties in their submissions to the Inquiry.

    The question remains as to whether the Commission's mandate for the future should reflect a much more significant dispute resolution role (including mediation). The related question concerns the additional powers that may be required to perform a more significant function of this type. These issues are discussed in more detail beginning on page 131.

    Questions Relating to Future Mandate

    In our later discussion of options, the Inquiry takes a more integrated look at optional approaches to the Commission's future, including questions relating to mandate. At this stage it is sufficient to note that the major mandate questions that need to be addressed for the future include:

    Should the mandate be explicitly extended to encompass issues arising from all Agreements concluded between the parties, as well as from The Cree-Naskapi Act itself?

    Should the Commission itself be given a more formal dispute resolution mandate (with required adjustments in associated powers)?

    Are there other functions that might usefully be assumed by the Commission, such as facilitating a broader review of the Act?

    What types of issues should be excluded from the Commission's mandate and scrutiny for the future and for what reasons?

  2. The Commission's Powers

    Assessment of Current Powers

    Any assessment of current powers must focus on their adequacy both for the purposes of the two functions under the current mandate and for the purposes of any expanded mandate that might be considered by the parties.

    The Commission's present powers relate to its primary functions of preparing Biennial Reports and investigating representations regarding to the implementation of the Act.

    The Commission's powers associated with its investigative function are noted in Chapters 2 and 3.

    These powers essentially enable the Commissioners to investigate representations brought before it. They have the power to refuse a representation on certain grounds, the power to request the appearance of persons and the submission of documents to the investigation, and the ability to submit a written report on their findings and recommendations to the principal parties to the investigation.

    However, the Commission lacks the power:

    - to compel the production of documents;

    - to compel the attendance of any person;

    - to take evidence under oath;

    - to come to any decision which is enforceable. The most it can do is make a "negative finding" as part of its report which must be circulated to those affected; or

    - to undertake an investigation at its own initiative.

    The Commission's powers related to the preparation of its biennial reports are not specified in the Act as such.

    In preparation of its biennial reports, the Commission lacks the power:

    - to compel the production of documents;

    - to compel the attendance of witnesses; or

    - to require any particular form of follow-up once it has prepared and submitted its report.

    Arguably, the Commission does possess the power to undertake research and investigative work at its own initiative.

    It should be noted again that more extensive powers had originally been proposed during the early discussions on the Commission, or had at least been considered within the federal government.

    An observation consistently advanced in the community hearings phase of the Inquiry was that the Commission was "toothless", lacking the power to achieve results. This comment was applied generally to the Commission's reporting and investigating functions.

    This was usually accompanied by the suggestion that the Commission should have the power to compel, by way of subpoena, the attendance of witnesses and the production of documents.

    The "toothless" comment in most of the the Cree and Naskapi submissions is read by the lnquiry as reflecting frustration on the part of the communities about the Commission's perceived inability to bring about the resolution of issues that, in many instances, were not within their mandate or power to resolve, but were primarily broader Agreement implementation issues.

    In this context, the Cree and Naskapi submissions reflect a clear position in favour both of expanding the mandate of the Commission and of providing it with the requisite powers to effectively discharge that mandate. The federal government did not address the issue of powers in its submission to the Inquiry.

    It should be noted that the Commission itself reports no occasion where it was impeded in carrying out its current mandate by being denied access to written material or to people.

    However, against the expanded mandate the Inquiry will suggest for the Commission, it is proposed that the parties return to earlier suggestions that the Commission be provided with more extensive powers, including the power to subpoena witnesses and documents.

    The Power of the Commission to Initiate and Follow Up

    Questions arose at various points during the five-year period, as well as during the Inquiry hearings, on the extent to which the Act currently allows the Commission to initiate action, irrespective of how it becomes seized of a particular issue.

    Shortly after its establishment, the Commission did obtain legal advice on this issue and the matter was also examined legally by the federal government.

    As indicated above, the situation under the current Act seems clear:

    1. The Commission has no power to initiate an issue-specific investigation (i.e., its investigatory function) unless activated by a representation as provided for in Section 165 ( 1 ) b.

    2. However, the mandate relating to the preparation of its biennial report is much broader. Pursuant to this mandate, the Commission can strike its own agenda (consistent with the language of the Act) and could initiate relatively extensive research and investigative work on selected issues, should it choose to do so.

    In this latter area, the Commission has been criticized by the Cree for not taking sufficient initiative to use its investigative powers to further examine issues raised and positions taken by the various parties and thus facilitate the resolution of a range of issues related to implementation.

    While keeping in mind the limited resources the Commission has had to work with, the Inquiry considers that the Commission does in fact possess relatively extensive research and investigative power which it has not fully used.

    It is clearly open to the Commission to do more than accept the submissions and allegations of either party on implementation issues. It can initiate and carry out its own independent research and verification to a certain point.

    Effective use of such a power would place added premium on the Commission's ability to compel the production of documents and to obtain access to witnesses, and would accordingly reinforce the suggestion made above that the parties consider giving more extensive powers to the Commission.

    A further issue raised was whether the Commission and the parties could have done more by way of follow-up once the biennial reports were tabled. This issue is discussed on page 112.

    In summary, notwithstanding the submissions received, the current powers possessed by the Commission appear to have been adequate to the tasks performed to date. Strong feelings to the effect that the Commission is "ineffective in achieving results", and the related conclusion that this reflects a lack of required powers on the part of the Commission, are understandable. However it is the Inquiry's view that these reflect more the fact of the Commission's inability to bring about a resolution of the more political implementation issues with which it became seized, lacking as it did the real mandate and power to do so.

    The Commission's Powers for the Future

    The powers the Commission would require to discharge an expanded mandate is a separate issue. The central issues to be addressed for the future in light of any expanded mandate that may be agreed upon are:

    Should the Commission possess the power to render binding decisions? If so:

    - for what types of issues;

    - in what circumstances; and

    - how would such decisions be enforced?

    Alternatively: Should the Commission merely possess the power to report and issue non-binding findings and recommendations? or

    Should broader powers, including the power to subpoena witnesses and documents, be conferred upon the Commission and, if so, to be exercised in what circumstances?

    By way of general observation, most issues that have arisen in the past and that will arise in the future are, to varying degrees, political in nature. In many such cases it is extremely unlikely that any of the parties would agree to leave final decision making with an outside body.

    However, as the analysis of other dispute resolution mechanism models reveals, it is possible to consider leaving final decisions on disputes arising from conflicting interpretations of existing agreements and legislation with bodies such as the Commission, as an alternative to having such matters addressed through the Courts. Such an approach does not preclude access to the courts as an option available to the parties.

    It is open to the parties to authorize the Commission to render final binding decisions, subject to the agreement of the parties.

  3. The Commission's Structure and Operations

    The Current Provisions of the Act

    The main provisions relating to the structure of the Commission that are considered in detail by the Inquiry are to be found in Sections 158-160 of the Act.

    The Inquiry has examined each section of the legislation in light of the submissions received.

    As noted in Chapter 3, the parties expressed few problems with the structure of the Commission and had few suggestions for major change. It may be necessary, however, for the parties to consider changes beyond those identified by the Inquiry should they agree on a significant modification to the mandate of the Commission in future years.


    Three Commissioners appear to be adequate and appropriate to the task under both the current mandate and the modified mandate the Inquiry will propose.

    The current mix of legal judicial, Aboriginal and government experience on the Commission represents an optimum mix of the primary requirements identified by the Inquiry.

    The Inquiry would like to underline the critical importance of having a Cree/Naskapi-speaking Commissioner with the stature and background of Commissioner Kanatewat. Mr. Kanatewat has been instrumental to the success of the Commission in establishing effective lines of communication at all levels, especially with the communities. All future appointments, irrespective of the primary skills being sought, should accord priority to knowledge of the Crees and Naskapis, their traditions, customs, values and language.

    Anticipating an expansion of the Commission's mandate, a number of the communities placed emphasis in their submissions on ensuring that appropriate legal skills and knowledge of government structures and procedures should be requirements in future appointments to the Commission.

    Any enhanced quasijudicial role for the Commission will probably require a strengthening of the "legal skills base" of the Commission as a whole.

    Appointment Procedures

    The statutory procedure governing appointments appears satisfactory. The requirement for Cree and Naskapi input is provided for in the Act. This input into all appointments should be maintained. Provisions for similar input on reappointment should also be assured.

    Problems encountered in relation to appointments relate less to the procedures themselves and more to the federal government's processing of the Orders in Council for reappointment. The experience is that these have usually been processed at the last minute or even after the expiration of the terms of the Commissioners.

    Effectively addressing this problem will prevent the recurrence of the situation where the Department advised the Commissioners that they did not have the authority to carry out the business of the Commission until the Department managed to get the Orders in Council signed. The identifiable time lag extended in some instances to three months.

    Designation of Chairman

    The Chairman is designated by the Governor in Council from among the members of the Commission. The Inquiry suggests that provision should be made for Cree and Naskapi input into this decision.

    An alternative put forward in some of the hearings was that the Commissioners should themselves designate, and perhaps rotate, the chair among themselves. The Inquiry does not see this approach as tile preferred option.

    Restrictions on Eligibility

    The current restrictions on eligibility appear to be reasonable. The Inquiry endorses the suggestion that the restriction should be extended to encompass officials of the Department of Indian Affairs, and possibly employees of other federal departments and agencies, in the same manner as they currently apply to Band Council members and officials. The concern here is one of achieving balance in the restrictions on eligibility.

    Term of Office

    The Inquiry agrees with a number of changes suggested in this area, specifically that:

    - the appointments of the Commissioners be for a period of three or four years rather than the current two years; and

    - provision be made for the appointments to be staggered to allow for greater continuity and less disruption in the appointment process.

    Remuneration of Commissioners

    The Inquiry has identified a number of problems in this area. Only one of the current Commissioners (Robert Kanatewat) actually receives a per diem from the Commission budget at this time. As a Judge, Chairman Rejean Paul cannot accept remuneration and the third Commissioner (Richard Saunders), is already a salaried employee of the federal government.

    For future planning purposes, it will be necessary to consider providing adequate resources from within the Commission budget to cover the remuneration of all Commissioners.

    This issue is reviewed later on as part of broader budgetary concerns.

    More importantly, it is the current level of remuneration that requires urgent reassessment. Remuneration should be raised to a level at least comparable with other federal Boards and Commissions. A strong argument can be made that any Cree or Naskapi appointee should be remunerated at the maximum level possible given that such an appointment may severely restrict the individual's ability to accept other parallel employment opportunities.

    It should also be noted that if, as proposed, the Commission's mandate undergoes revision and expansion, it can be anticipated that in some, if not all instances, the per diem arrangements will need to cover Commissioners devoting significantly more time to the work of the Commission.

    Other Provisions Relating to Structure

    No particular problems have been identified with the current provisions relating to:

    - Removal for Cause

    - Vacancies

    - Eligibility for Reappointment

    - Provisions for Temporary Substitutes

    No changes are recommended, with the exception of assuring Cree and Naskapi input on reappointment.

    Head Office Location

    The move of the Commission's head office from Val d'Or to Ottawa was made with the agreement of the Cree Regional Authority and the Naskapis, but has been questioned by the federal government as detracting from the Commission's ability to maintain an adequate presence at the community level. The Crees share some of these concerns.

    As discussed later, difficulty in maintaining such a presence is primarily attributable to budgetary difficulties rather than to the head office location as such.

    The main reasons for the decision of the Crees and the Naskapis to recommend the change in head office location were the decentralization of the Cree offices to the communities, the fact that the GCCQ has a permanent Ottawa office and the predicted need for a high level of contact with federal government departments and agencies. In the Inquiry's view these constitute sound reasons for the decision made to relocate in Ottawa. Given that changes to The Cree-Naskapi (of Quebec) Act would be required to accommodate a number of the Inquiry's recommendations, it may also be desirable to confirm the Ottawa head office location.

    At the same time it is clear that the head office location adds further to the problem of how the Commission is perceived at the community level. Distance has affected the ability of the Commissioners and Commission staff to achieve a high profile within the communities. It appears to the Inquiry that these problems need to be addressed:

    - in the examination of the financial resources to be made available to the Commission (especially for travel); and

    - in exploring complementary ways to achieve a higher level of continuing "presence" within each of the communities. This might be done through the designation of part-time liaison officers within each community.

    Commission Meetings/Procedures

    The review of the meetings held by the full Commission somewhat predictably reveals:

    - a higher frequency of meetings in those years when the Commission is preparing its biennial reports; and

    - a decreasing frequency in meetings in recent years.

    This in turn reflects the fact that:

    - there have been few representations presented for investigation; and

    - much of the Chairman's time has been spent, in recent years, trying to deal with implementation/mediation issues which are technically outside the mandate of the Commission. This additional work load has also extended to the Commission staff.

    These issues are discussed in more detail on page 109.

    The Commission's internal procedures for the conduct of meetings are more than satisfactory. The formal written procedures adopted by the Commission primarily amplify the procedures to govern investigation of representations set out in Section 166 of the Act.

    The Inquiry is concerned that the "investigation" procedures, drafted cooperatively by the Department of Indian Affairs and the Crees and Naskapis when the Commission was first established, appear to reflect an overly formal, legalistic approach to this part of the Commission's mandate. The Inquiry has received assurances that the Commissioners and Commission staff adopt liberal interpretations of the written procedures that are in place and there is some evidence to support this. The Inquiry would suggest that this whole area be reviewed with a view to making the process more easily understood at the community level and less formal and legalistic in its content and application.

    Commission Staff and Related Management Issues

    The Commission's ability to hire staff to meet its needs is subject to an unacceptable level of federal regulation in the budget development process and financial contribution arrangements.

    While this question is addressed later on as part of the broader issue of future budget development arrangements, it should be noted here that the Commissioners have had to deal with the following restrictions as they relate to staffing of the Commission over the past five years:

    - staffing levels and categories established by Treasury Board;

    - a budget which included no cost-of-living increase and did not allow for any additions to staff (one extra staff was hired on contract); and

    - no salary increases provided for in the five-year funding allocation.

    These restrictions, and others such as those setting limits on contract fees, are reflected in the Contribution Agreements that govern the funding of the Commission by the Department. These have been noted in Chapter 3.

    It is the Inquiry's view that the imposition of this level of effective control through the Contribution Agreement and the associated budget development procedures is in conflict with the language and intent of Section 162 of the Act which provides:

    162.(1) The Commission may, with the approval of the Treasury Board, employ or engage such officers, employees and agents as are necessary for the proper conduct of the work of the Commission.

    Not only have the Contribution Agreements, as drafted, affected the Commission's ability to exercise the authority conferred by Section 162, it is the Inquiry's understanding that this level of control over staff and remuneration levels is without precedent in comparable bodies.

    The Commission has never effectively been given the opportunity to assess and identify its own staff requirements and argue a case to Treasury Board for the resources required.

    It is the Inquiry's view that this area requires major changes for the future on a priority basis. The Commission must be assured a level of independence in its day-to-day operations, which clearly includes staffing, as well as an assurance of financial support to perform its agreed-upon responsibilities with required impartiality.

    As noted, the Department's submission to the Inquiry indicated a willingness to discuss new funding arrangements with the Commission to meet some of these concerns.

    This being said, some comments on the performance of the Commission staff are required.

    Generally, the Inquiry commends the current staff for their accomplishments, personal dedication and professionalism under what, at times, have been difficult circumstances. The Director General and her staff have established and maintained effective relations with the communities, both Councils and members, and have always made themselves available to assist on issues relating to the Commission's mandate, and in many other unrelated ways.

    Given the infrequency of full meetings of the Commission, the Commission staff are for much of the time effectively "running" the Commission.

    The Inquiry sought to review internal office procedures, workload and staff performance to identify areas where improvements for the future might be desirable.

    It has proven to be extremely difficult to make final conclusions, primarily because of the lack of information. None of the parties has detailed knowledge of the internal Commission structures and the file review and interviews with Commission staff did not always produce required information in a number of important areas.

    For this reason the Inquiry can only record general impressions and some limited specific observations: 3

    Job descriptions are dated and do not appear to correlate in all cases to actual work performed. Administrative systems and internal procedures are essentially informal and, as such, the Inquiry has no objective criteria against which to measure performance.

    The fact that the Commissioners have worked with the same staff since the Commission was established indicates a satisfactory working relationship. No formal staff evaluation and review process is in place for the management, though an informal written appraisal is prepared for the two support staff.

    File information was particularly lacking regarding tracking and management of inquiries and representations, to the point where the Inquiry has been unable to verify and assess the reasons for the Commission's rejection of a substantial proportion of approaches actually made.

    The Inquiry is unable to render informed judgements on the workload of individual staff. While there are periods of intense activity, especially in report production years, there are other periods when all staff/contractual employees may not actually be kept fully occupied. This conclusion is based on:

    - the limited number of representations received over five years;

    - the lack of frequent travel to the communities;

    - infrequent meetings with the parties at whatever level;

    - biennial reporting activity, while intensive, is concentrated in a few months every second year;

    - communication activities, especially to the communities, range from limited to none at the present time; and

    - work on compiling library and data-base materials on the communities has been extremely limited.

    This raises questions as to whether the actual level of work activity, as best can be verified, and affected as it is by budgetary considerations, keeps two full-time secretarial/support staff, a full-time executive director and a full-time research director (lawyer on retainer) fully occupied.

    To the extent that questions arose with respect to actual workload and "value for money" considerations, responsibility for monitoring this aspect of the Commission's day-to-day activity must rest with the Commissioners and, to a large degree, with the executive director. It is the Inquiry's feeling that probably significantly more could have been accomplished.

    The Commissioners do not appear as a group to have attached the necessary priority to ensuring that adequate direction and review of staff responsibilities and performance are undertaken on an on-going basis.

    In general, the Inquiry feels there is insufficient direction and assessment by the Commissioners of staff priorities and work activity. There are questions which the Inquiry is just unable to answer in respect to whether improvements might be achievable with more input and control on the part of the Commissioners.

    There appears to be a priority need for a review of internal staff structures, workload allocations, assessment and accountability, particularly in light of any expanded mandate and restructuring of the Commission that may occur in the immediate future.

    Further areas where some strengthening and/or more fundamental changes may be desirable include increasing the staff capacity to deal in Cree and Naskapi. Currently, no one on the Commission staff speaks either language.

    Of equal importance, particularly given some of the difficulties encountered during the last five years, is the Inquiry's conclusion that the Commission staff are not sufficiently familiar with complex federal government structures and procedures, particularly in financial and related fields. Such knowledge is required to manage the current relationship with the federal government and the issues that arise. This situation has compounded some of the difficulties the Commission has encountered.

    This comment should be qualified by the observation that the federal government has not had a consistent structure, with clear points of contact, for dealing with the Commission; nor, in the view of the Inquiry, has it had defensible procedures for managing the financial and other matters relating to Commission operations.

4.4 Assessment of the Commission's Performance

  1. General Assessment

    Other sections of this report identify areas where, with the benefit of hindsight, specific issues might have been handled differently, or where the Inquiry sees change and improvement as desirable and possible.

    However, the Inquiry also wishes to record a general finding in relation to the performance of the Commission over the past five years.

    It is the view of the members of the Inquiry that the Commission has performed effectively when the following factors are taken into account:

    - the Commission's structure and mandate being without precedent in Canada;

    - the ambiguity of some of the key parts of its statutory mandate, reflecting

    - the different and, to a degree, conflicting objectives of some of the parties;

    - the different and changing expectations of most of the parties as the Commission began to discharge its mandate and as its role evolved;

    - the limited human and financial resources available to the Commission to discharge its mandate; and

    - the political environment within which the Commission had to function.

  2. The Commission's Relationship with the Parties

    The Inquiry spent a considerable amount of time and effort in an attempt to fully understand and assess the Commission's relationship with each of the main parties.

    The Inquiry attempted to determine where things had worked and where they had not. Where problems were encountered, the Inquiry attempted to determine to what these were attributable and what were the consequences.

    It should be emphasized that the Inquiry saw no benefit in identifying past difficulties and ascribing blame, except to the extent that the lessons learned might assist in achieving changes that will allow the Commission to function effectively in the future to assist in the resolution of issues of concern to all of the parties.

    It will be apparent from earlier comments and the analysis that follows that some major difficulties were encountered.

    These primarily reflect:

    - the growing pains associated with a new, untested body;

    - a failure of the parties to establish effective processes for the resolution of outstanding implementation concerns;

    - the requirement to constantly deal with the artificial distinctions made between the Act and the Agreements; and

    - a level of inadequate resources and an inappropriate level of federal control which seriously affected the Commission's ability to discharge its legal mandate.

    It is the Inquiry's hope that this report will stimulate reflection and assist in addressing the root causes of a good number of the difficulties encountered in the first five years.

    The Commission's Relationship with the Federal Government

    The main characteristics of the working relationship between the Commission and the federal government are: 3

    1. Relations between the Commissioners and the Department are relatively infrequent. Primary contact has been maintained by the Chairman with the responsible Assistant Deputy Minister. This contact has been highly dependent on the personalities involved with clearly identifiable confrontational relationships at certain points and more positive and cooperative relationships at others.

      It is the view of the Inquiry that it would be highly beneficial to structure a continuing, and possibly more formalized, working relationship that is significantly less dependent on the personalities involved. This is a challenge for both the Commission and the Department.

    2. There has been virtually no contact between the Minister and the Commission since 1985, with the exception of an essentially negative exchange of formal reactions and responses to the Commission's report in 1986.

      The Chairman of the Commission expressed his view to the Inquiry that contact with the Minister or the political level would be generally inappropriate. Perhaps this was expressed by the Chairman more from his perspective as a Judge than as Chairman of the Commission. It should be noted that the Commissioners have in the past met with the Cree leadership.

      The Inquiry believes this is perhaps too formal an interpretation of the ethics of interaction at the political level, particularly given the "bridging" functions that are reflected in the spirit of the mandate of the Commission and the mediation tasks that the Commission (or at least its Chairman) have been asked to perform.

    3. Relationships at the staff level have been almost exclusively focused on financial issues such as cash-flow problems, requests for increased budget allocations and regular reporting requirements.

      This relationship has proven to be extremely frustrating for Commission (and departmental) staff. Some of the problems encountered were compounded by the lack of familiarity on the part of Commission staff with government structures and procedures, as discussed above.

      This close to total emphasis on financial issues in the day-to-day relationship has also sent the wrong message to the Cree and Naskapi communities. The communities feel that the Commission should be seen to be handling and resolving different types of issues in its interaction with the federal government.

    4. Except where absolutely required (e.g., the current review), dealings with the Commission are delegated to middle level officials in the Department who have restricted their relationship to a somewhat bureaucratic management of the financial issues that a need to be addressed to keep the Commission operating. This focusing of the relationship at relatively junior levels within the Department on administrative matters has been interpreted by the Crees as down-grading the role and significance of the Commission itself.

      The Commission itself also said that:

    "An irritant is the extent to which the Department would like to trivialize the relationship by having relatively junior people tell us things or deal with the day-to-day administrative issues when they come up."

    Finally, it should be noted that the Department has exhibited little interest in trying to understand the Commission or to work with it in the evolution of its mandate.

    No substantive briefing sessions have been requested by the federal government. Those requests that were made were essentially limited to budgetary or reporting items.

    More fundamentally, as discussed, the federal government has made no effort to take the initiative to employ the Commission's investigative function or to otherwise make the Commission work to achieve jointly held objectives, beyond seeking Judge Paul's involvement as mediator in the implementation negotiations.

    The Inquiry does wish to record that the working relationship between Judge Paul and Roger Gagnon, until recently the Assistant Deputy Minister of Self-Government, clearly went some distance towards repairing damage to the relationship caused in previous years. However the recent change in Mr. Gagnon's responsibilities within the Department further underlines the Inquiry's concern that the relationship is far too dependent on personalities.

    It appears that the history of federal interaction with the Commission has been coloured by the broader difficulties encountered by the federal government in their political dealings with the Crees of northern Quebec.

    Giving the benefit of the doubt to the Department, at least some of the difficulties in the relationship as described are probably attributable to competing priorities and insufficient staff to undertake the more extensive involvement the Inquiry sees as essential.

    Whatever the reasons, if the Commission is to continue, there is a critical need for the Department to reinvest in understanding how it can best support the Commission in achieving the objectives of all of the parties and addressing how it should structure and resource its relationship with the Commission in the future. This should happen irrespective of the separate issue of how the Commission should be funded for the future.

    The Commission's Relationship with the Crees

    The Commission's relationship with the Cree communities and Cree regional bodies (especially the GCCQ and the CRA), has gone through similar peaks and valleys for different reasons.

    At the outset, the Commission put a lot of effort into trying to communicate its mandate and establish effective working relationships with the Cree communities and the Cree regional entities, and they had considerable success.

    The implementation hearings for the preparation of both the 1986 and 1988 biennial reports were the high points in the relationship with the Cree communities.

    In particular, efforts by Commissioner Kanatewat and Commission staff to get into the communities further reinforced the impact of the initial hearings and contacts.

    However, in the latter stages of the five-year period, a number of factors combined to cause the relationship to become strained and then broken in the case of the GCCQ, and close to non-existent with the individual communities:

    - The initial major effort to communicate in a variety of ways at the community level what the Commission was about ran out of steam. The Act was never translated into Cree or Naskapi and major production of pamphlets and videos had to be curtailed. This is attributable, in part, to a lack of financial resources.

    - The visits by the Commission or individual Commissioners and staff became increasingly infrequent. Once again, this is in large part attributable to the lack of financial resources. The cost of travel to and among these northern Quebec communities is extremely high. For example, it could easily cost $6,000 for the return airfare to the Naskapi village alone for the three Commissioners and one staff member.

    - The involvement of Judge Paul and the Commission staff in the implementation - mediation process was carried out mostly with Cree regional bodies. This had the effect of pulling the Commission away from other activities more clearly within its mandate and, to a degree, of rupturing some of the fragile links they had developed with the communities. For many Crees, Judge Paul's involvement in the mediation process compromised his independence. He was seen as too closely associated with the federal government in his dealings with highly controversial issues.

    - The Commission got caught from both the Cree and the federal government sides by being forced to focus so much on Agreement implementation issues in its own implementation hearings and biennial reports. Having reported on a broad range of implementation issues of concern to individual communities, the Commission was not seen to be effective in delivering results. In most instances, there was little if any feedback to the communities on the issues they had raised with the Commission, let alone any effective resolution of those issues.

    - The relationship with the Crees at the regional level took a further turn for the worst with the publication of the Commission's second biennial report in 1988. To some extent, there was a perception by the GCCQ that the Commission had overreacted to federal criticisms of the first report and thus failed to do justice to Cree concerns in the preparation of the second report. The Inquiry does not fully share this view. For whatever reason, the relationship between the Commission and the GCCQ has deteriorated and has not been repaired to the present date.

    - Once again the difficulties encountered by the Commission in trying to discharge a limited mandate in the face of the continued injection of broader political (especially Agreement implementation) issues have to be emphasized. In the absence of other implementation structures and processes, the Commission increasingly became the repository of Cree pressures to force the Government to deal with outstanding implementation responsibilities. The Commission was judged increasingly by the Crees as essentially ineffective in dealing with the issues laid before it, notwithstanding that many of these issues were technically outside its mandate, and it had no ability to compel any resolution of the issues. The Inquiry considers this judgment to be unfair.

    The Inquiry discovered in many of its meetings with the Cree communities that once they were given reason to doubt the Commission's ability to resolve their difficulties, they were not inclined to try to get the Commission to do things it clearly could not do. The Crees had other preoccupations that were competing for their time and resources.

    The Cree Chiefs were nonetheless close to unanimous in praising the efforts made by the Commission to discharge its mandate and to assist in other areas. They were clear in leaving the blame for the relative ineffectiveness of the Commission at the door of the federal government. As the Mistissini Council said:

    "The interaction between the Crees and the Commission is positive and of high expectations since the conception of the Commission.

    The Crees were led to believe that the Commission would ensure that its respective issues would be addressed and in some cases resolved. But in later years the Cree Nations realized that this was an elusive dream. It began to see the failures and difficulties of the Commission in implementing its investigations, undertakings on its concerns and to promote a resolution to these concerns. The Cree Nation became less enthusiastic in their involvement with the Commission, especially in addressing their concerns to the attention of the Commission. The Cree Nation saw their concerns lost in the bureaucracy process.

    "However, the Cree Nation of Quebec never saw the Cree-Naskapi Commission as the cause of this failure and difficulty. On the contrary, the Commission readily made themselves available to any Cree to provide its services. The Cree Nation of Quebec recognized that the federal government was the source of the problem by its reluctance to fulfil its legal obligations and differences in its interpretations as to its responsibilities. The federal government also contested the validity of the Commission's recommendations". [our emphasis]

    - The Crees clearly see the Commission as worthwhile and assess it as having performed a valuable role in very difficult circumstances. Their views reflect a certain resignation accompanied by the hope that the present Inquiry will provide the parties the opportunity to take a step back, assess the difficulties that have been encountered over the first five years on an objective basis and build a new consensus on the mandate, structures and relationships that will be required to support a Commission that, in the future, will operate more effectively in the interests of all parties.

    The Commission's Relationship with the Naskapis

    The relationship between the Naskapis and the Commission has proceeded smoothly and the Naskapis assess the results extremely positively.

    In part, this is attributable to the relative ease of establishing and maintaining a clear relationship with one Band, as opposed to the nine Cree communities and numerous regional structures.

    Proportionately, the Naskapi Band has used the investigative part of the Cree-Naskapi Commission mandate more frequently than have the Crees, and they have been satisfied with the results.

    The tasks of communicating the mandate and maintaining a presence in the community have been more manageable for the Commission in their dealings with the Naskapis than with the Cree communities.

    Cree-speaking Commissioner Kanatewat is sufficiently skilled in the related Naskapi language to have established an effective working relationship with the Naskapi Chief, Council and membership.

    It is possible that the Commission's relationship with the Naskapis was more effective for having been largely conducted by a Commissioner who clearly commands respect within the community but who at the same time remains impartial to the community politics and the issues being considered.

    An additional reason rests in the fact that the political issues and disputes between the federal government and the Crees do not present themselves in the same way, or have been managed differently, in the case of the Naskapis.

    The prime example of this is the conclusion by the Naskapis in 1990 of an implementation agreement with the federal government, including provisions for a full multi-tier dispute resolution process.


    The Commission's working relationships with both the federal government and the Crees have not been without difficulties, for reasons largely beyond the control of the Commission itself. Being asked to deal with issues beyond its mandate, a lack of financial resources and the increasing politicization of the Commission's operations (by both the Crees and the federal government in different ways) together call for a major reconstruction effort by all parties.

    In the early years the Crees and the Naskapis saw the Commission as a body that could work and they did everything possible to ensure that it did work in their interests. This is clear from the way in which they worked with the Commission in its "reporting" function. They did the required background work and presented quality submissions to the Commission.

    The expectation of the Crees and the Naskapis was that the federal government would do the same. For its part, in the initial years, the federal government seems to have viewed the Commission more as a threat, and responded accordingly.

    The federal government generally has not attached the priority or allocated the resources to participate in the work of the Commission.

    A generally confrontational attitude and a preoccupation with administrative detail and financial operations marked much of the early relationship and it is only in the last year or so that efforts seem to have been made to work with the Commission in a more responsive manner. In addition, positions the federal government has taken, and their relative lack of involvement in the Commission's processes, have led some to conclude that the Commission is, in practice, primarily involved with the Crees and the Naskapis, and less with the federal government's role in implementation of the Agreements and the Act. Some parties have even questioned whether the actual name, "the Cree-Naskapi Commission", may compound this view.

    To re-emphasize this point, the Inquiry is of the view that the pressures and difficulties encountered in the Commission's relationship with both the Crees and the federal government are in large part attributable to the distortion arising from becoming involved to varying degrees on outstanding implementation concerns, without the mandate, powers or indeed the full support of the parties need to deal with those issues. All of this has undermined the Commission's ability to build in other areas of its statutory mandate.

  3. Has the Commission Been Sufficiently Impartial?

    The Inquiry has already reflected its judgement that the broad allegations of "pro-Cree" bias made by the federal government in response to the 1986 biennial report were unnecessarily inflammatory and essentially without foundation.

    While both the 1986 and 1988 reports clearly dealt to some degree with Agreement implementation issues, technically outside the mandate of the Commission, it was inevitable that the Commission would confront such issues and be forced to comment on them to some degree. In the view of the Inquiry, the Commission handled this with the balance required to maintain impartiality.

    Similarly, Cree concerns that the 1988 report failed to deal adequately with the Cree agenda reflects unrealistic expectations of what the Commission was able, and mandated, to accomplish.

    As the Commission set about its work, much of the tension and issues raised inevitably focused on the federal government's alleged failure to live up to the terms of the various Agreements as well as the Act itself. The implementation challenges made under the JBNQA and the NEQA rest primarily with the federal government and the Government of Quebec.

    The Inquiry finds that the Commission has, given the circumstances, maintained a commendable impartiality in the discharge of its overall mandate.

  4. Frequency of Meetings

    Problems identified at various points in this report have been compounded by the inability of the Commission to travel with any frequency to the communities.

    A more fundamental problem arises from the fact that the full Commission has met only infrequently, or not at all, with the appropriate representatives of the parties. Major efforts need to be made in this regard. More frequent meetings can and should be possible without compromising thc integrity and impartiality of the Commission.

    The Commissioners all serve on a part-time basis. There is a detectable decrease in the frequency of meetings of the full Commission especially in "non-report" years. While partially explained by other events (e.g., the Judge's involvement in mediation), there does appear to be a less rigorous approach to working within the present mandate. This decline in activity and meetings involving all Commissioners has a number of impacts, including the lack of required direction to staff, as noted earlier.

    In the extreme, with the exception of the Commission's biennial reports and the unique involvement of the Chairman as mediator on implementation issues, a continuation of the current pattern risks an increasing drift by the Commission into marginality, or even irrelevance.

    The Inquiry is left with an overall sense of reasonable staff level activity but decreasing frequency in the meetings of the full Commission itself, less frequent contact with the parties at all levels, especially in the communities, fewer initiatives undertaken, and decreasing creativity in the interpretation of the mandate.

    Lest this be interpreted as overly critical, it should be re-emphasized that this is a predictable result of five years of working with an inadequate budget and of confronting the broader political tensions discussed throughout this report.

    It is hoped that the degree of stagnation perceived in key areas merely reflects the fact that all parties, as well as the Commission itself, were awaiting the current Inquiry as the vehicle for enabling them to refocus and revitalize the Commission in the service of their common interests.

  5. The Biennial Reports

    The distance that separates the federal government from the Crees and the Naskapis in their understanding of the mandate or the performance of the Commission is nowhere greater than on the matter of the biennial reports to Parliament. The gulf between the parties on this issue was sharply evident in the Inquiry's hearings, as reflected in the positions outlined in the previous chapter. Because "implementation" appears to mean very different things to the Government and to the Crees and the Naskapis, their views of the reports are at opposite poles.

    There are essentially three questions that require assessment:

    Did the Commission do what it was supposed to do in the two biennial reports, and are the reports useful to the implementation of self-government?

    Did the Commission perform adequate consultations in preparation for the reports? Was there adequate follow-up to the recommendations of the reports?

    Did the Reports Do What They Were Meant To Do? Are Reports Useful?

    Put simply, the Crees and the Naskapis believe the Commission did what it was supposed to do by reporting on the issues they saw as critical to the proper implementation of the Act. In the early stages of implementation of local government, the most critical issues were seen by the Crees and the Naskapis, and obviously by the Commission, to be related to the fulfilment of federal obligations to the implementation of local government in the largest sense.

    The Crees and the Naskapis see the main role of the reports to be that of ensuring the federal government keeps its promises on all matters of the Act or the Agreements that affect local government, including financing issues. They see the representations side of the Commission's mandate as the way in which implementation problems within the communities would be addressed.

    Still, as discussed earlier, the Crees and the Naskapis found the report exercise to be virtually useless because they believe the federal government has not implemented the recommendations made in the reports and is in no way compelled to do so.

    Cree (GCCQ) concerns in relation to the second biennial report also merit further comment. The report did not meet with a positive response in some respects because, in part, of unrealistic expectations as to what the Commission could and could not accomplish.

    However, some legitimate concerns were raised by the Crees; for example, why the Commission was recommending the appointment of a special Inquirer when it was within the Commission's own mandate and power to undertake significant parts of such an Inquiry itself.

    The unfortunate consequence in this case was an apparent distancing in the relationship between the Cree leadership and the Commission at a time when there was every reason for the Crees to continue to try to use the Commission to better effect.

    The federal government, on the other hand, holds that the reports, especially the 1986 report, largely treat subjects outside the Commission's mandate and do not do what they were meant to do, namely report on how local government is working within the communities.

    For the Government, it is clear that the reports were to deal strictly with the Act, not with the Agreements, and were not meant to supervise the entire relationship between the Covernment and the other parties.

    This is an area that demands clarification. One point is clear: the provision for biennial reports on implementation of the Act was meant to promote the best possible transition to self-government in the Cree and Naskapi communities.

    The Inguiry has found that officials in DIAND know very little about the Cree and Naskapi communities and the issues they face. Indeed, it appears that only one visit has been made in the last five years by any official of the relevant branch of DIAND to a Cree or Naskapi community, and that was to attend a special implementation hearing of the Commission in Chisasibi. Thus, the Department's expressed views on the issues singled out in the two reports are made in isolation from direct experience on what the implementation of local government means to the communities as it unfolds.

    This is to be expected, to a degree, since it is inherent to the notion of Indian self-government that day-to-day relations between the federal government and the communities will be redefined, greatly diminish, or virtually disappear. The distancing of the Department is also an outcome of the level of mistrust that exists between them and the Cree leadership, as discussed earlier.

    The Inquiry finds further that the Government's expectation that the Commission would focus its reports solely on how local government is working in the communities to be inconsistent with the idea and reality of Indian self-government.

    If the Commission is reporting to the Government on the implementation of the Act, as distinct from investigating complaints, it must then supervise the fulfilment of the obligations the parties have made toward one another. Otherwise, the Government has no reason to require a full report card from an independent body on how the Crees or the Naskapis are managing local government implementation.

    Of course, the Act is a living document and will likely require changes in the future through negotiation among the parties. To do that in an effective manner, the federal government must be able to approach the task with knowledge about progress and problems in the communities relating to the Act and the Agreements.

    The Commission could certainly perform this function if all parties agreed and if the Commission is given the resources to do so. Otherwise, it is up to the Crees and the Naskapis to furnish information to the federal government or allow federal officials to learn first hand how local government is working.

    Did the Commission Perform Adequate Consultations in Preparation for the Reports?

    It is the Inquiry's view that the basic process adopted by the Commission in preparing its biennial reports is a sound one. The implementation hearing process allows all parties a full opportunity to identify any concerns and recommendations they may have on implementation issues. The predictable blurring that occurred in both the implementation hearing process and in the actual reports has been discussed in some detail.

    The federal government has been criticized by the Cree communities for its failure to prepare and participate fully in the implementation hearings and to respond in any meaningful way to the specific issues raised both in the implementation hearings and in the reports themselves. The Inquiry finds these criticisms largely justified.

    Issues Relating to Follow-Up and the Future

    A number of additional issues relating to the biennial reports merit further examination and possible changes for the future:

    - what happens to the Commission's report once it is tabled by the Minister in Parliament;

    - what more can be done by the parties themselves to follow up on the Commission's recommendations; this includes the desirability of the Commission following up on its biennial reports with a process for reporting back to the communities - both generally and on the specific issues raised by each community; and

    - how frequently the implementation reports should be produced.

    In the Inquiry's hearings, consistent comments were made to the effect that although the Commission's implementation hearings have allowed the full expression of views, and although the reports have been produced in four languages and have been well circulated, the reports are still generally regarded as ineffective. The Inquiry has tried to isolate the feelings expressed and the related reasons.

    The following should be noted:

    - The reports in many instances captured and advanced recommendations on complex political issues which the parties have themselves been unable to fully resolve.

    - The statutory requirement for the Minister to table the report within ten days of its presentation means little if there is not some effective mechanism within the parliamentary system to ensure that the report receives formal consideration. This has not happened. The suggestion was advanced in a number of submissions that the Act should be modified to require the automatic reference of the report to the House of Commons (and perhaps the Senate) Standing Committee on Aboriginal Affairs which would then hold public hearings. It is the Inquiry's view that this suggestion has much to commend it.

    - The Commission's biennial report has received the further criticism from the communities that after the report is given to the Minister and tabled in Parliament, it "disappears into a black hole." A formal process for the Commission to report back to each of the communities after the report is finalized would do much to address this failing.

    Once again, the financial resources must be made available to allow such feedback.

    We noted earlier that the Commission considers their responsibility for the biennial reports ends upon submission to the Minister; what happens to their recommendations is, they feel, the responsibility of the parties.

    The Inquiry has tried to determine how and in what manner specific issues raised in the Commission's biennial reports were followed up or responded to by the federal government.

    The only formal responses of the Department to the substance of the reports were short, general statements made by the Minister after receiving the reports. No follow-up to the reports was ever submitted to the Crees, the Naskapis or the Commission, nor were there any follow-up discussions held among the parties on the substance of the reports.

    It must be said that officials in the Department followed the submissions to the second report closely and tried to coordinate a report from all concerned departments of government on the status of the issues raised. The initiative was begun but was not pursued.

    The formal federal response to the 1988 Report notes significant progress by the Government in meeting the Commission's recommendations.

    The Inquiry tried to obtain further detailed information on the exact response of the federal government to the presentations of the communities and of the GCCQ, as well as to the concerns and recommendations of the Commission in both of its reports.

    The requested information was not forthcoming and the Inquiry is unable to make any informed judgements on whether, and to what degree, the federal government has in fact responded.

    In discussing this matter with the Inquiry, the Commission and the Department both suggested that follow-up to the reports should be a coordinated effort among the parties and the Commission. The Inquiry supports this view, with the caveat that each party must be prepared to perform the required information-gathering and other initial follow-up internal to their organizations.

    For the Department, this would require an effective interdepartmental implementation body at a very senior level, as originally foreseen. Otherwise, the Department would not have the information or authority needed for meaningful follow-up meetings with the other parties and the Commission.

  6. Investigations

    The representation/investigation function of the Cree-Naskapi Commission has presented a number of difficulties, not so much in the procedures, but in the understanding of this role in the communities, and the use they have made of the Commission in this area.

    The Commission's experience with, and management of, the various representations received has been detailed above, beginning on page 38.

    The Procedures

    An analysis of the investigations undertaken by the Commission must begin with a consideration of the procedures used for investigating a representation. Should a representation be accepted for investigation, the Act stipulates that the investigation take place by convening a hearing. There are no preliminary procedures identified that would enable the Commission to gather evidence, consider issues or otherwise attempt to reconcile the parties before the hearing requirement.

    In consideration of many factors, including the fact that a formal hearing may not be an appropriate first step in informal dispute resolution, the Commission utilized its Rules of Procedure to provide for a "pre-hearing" prior to initiating a formal hearing.

    The development of the pre-hearing concept is a reflection of the Commission's philosophy that every attempt should be made, prior to convening a formal hearing, to resolve the dispute informally to the satisfaction of the parties involved.

    As a further reflection of this philosophy, the Commission has developed, over time, a parallel system of informal procedures to deal with representations at this level. The success of this approach may be gauged by the fact that, for the eight investigations concluded to date, the Commission has yet to convene a formal hearing.

    The evolution of this informal system of dispute resolution has led, however, to difficulties in providing a substantive quantitative and qualitative analysis of the Commission's investigations. As the operation of the informal system, as a general rule, does not follow the structures of the Act, it is somewhat distorting to present an assessment of Commission's capacities based on the provisions in the Act. Of primary concern are the issues surrounding the question of what constitutes an acceptable representation.

    An analysis of the 14 representations accepted by the Commission reveals a diversity in content, form and procedures followed during the investigations. In addition, a general lack of documentation on the 53 representations denied prevents a clarification of these issues. The operation of the informal system, to the extent that it has blurred the distinction between "formal" and "informal" investigations, has therefore added a level of uncertainty to the resolution of such key concepts as what constitutes a valid representation. This same problem underlies the analysis of all Act provisions for duties, powers and procedures as they relate to investigations.

    Concerning the Commission's discretionary power to accept, reject or discontinue investigations, the relatively small number of investigations conducted would indicate limited exercise of these powers. However, the impression is left that, in the operation of the informal system, these powers are used more extensively.

    As such, it is significant to note that the Commission is utilizing its discretionary powers in a fashion not intended by the Act. By directing investigations into the informal system of dispute resolution, the Commission is using its discretionary power to avoid the formal hearing provided for under the Act. In this way, the Commission has been able to resolve all investigations conducted to date without resorting to a formal hearing.

    Nevertheless, the Commission has used its evidentiary powers under the Act to request evidence. With one exception, all parties have availed themselves of the opportunity to address the Commission, either through written or verbal submissions, during the investigations of those representations now completed.

    Due in part to its limited evidentiary powers, very little detailed information has been available to the Commission to assist it in the resolution of any particular investigation. This has diminished the ability of the Commission to provide a detailed issue analysis in their report of the investigation. Consequently, the reports are somewhat superficial, consisting primarily of a recital of events, issues, fact and disposition of the representation.

    The Representations Received and Accepted

    Very few of the representations received were deemed by the Commission to fall within mandate.

    Of the 14 representations accepted for investigation, the majority (eight) involved community member complaints against local governments. As would be expected, these complaints dealt primarily with issues pertaining to the administration of local government.

    It is noteworthy that of the remaining six representations, three were filed by Indian governments. As a general characterization, each of these representations dealt with issues technically outside the mandate of the Commission.

    Also significant is that two of these representations involved a Cree regional entity (the GCCQ) and, for the first time, the federal and provincial governments as respondents. The acceptance of these particular representations may signal a readiness on the part of the Commission to leave aside the issue of mandate restriction and accept representations with a significant potential impact on Indian/ government relations.

    The low number of representations received is attributable to a number of reasons identified earlier, including no Indian language versions of the Act, poor community understanding of the provisions of the Act, little presence of the Commission in the communities and a reluctance to air many disputes outside the community.

    Perhaps these observations need amplification. The Inquiry has found that use by individuals of the representation/investigation function of the Commission depends on their understanding of the Act, the Commission and its mandate.

    Generally speaking, and notwithstanding some good initial efforts on the part of the Commission, there is insufficient understanding on the part of individual members both of the Act and of the Commission and its mandate. Clearly there is a group within each community, including the political leadership, that is informed in these areas, but they confront enormous difficulties in communicating to their membership the complexity of the Act, let alone how the Commission and its mandate fit into the broader scheme of the legislation.

    Of equal, if not greater, importance is the fact that the Cree communities, in particular, have their own traditional methods for dealing with internal political disputes. Many of the communities are now talking about re-establishing Cree institutions, such as Elders Advisory Councils, with a formal mandate to deal with many of these internal issues.

    There is an understandable reluctance on the part of the community members, Chief and Council to take such internal matters to an outside body, even if it is seen to be sufficiently impartial and knowledgeable about the Cree political environment, values and traditions.

    The use by the Cree communities of this part of the Commission's mandate can be contrasted with usage by the Naskapis which, although infrequent, does reflect a willingness to approach the Commission to deal with such issues. The Chief and Council of the Naskapis report positive results on their use of the Commission in this area and strongly support continuation of this part of the Commission's mandate.

    For the future, it is the Inquiry's view that retaining this part of the Commission's mandate is of considerable importance.

    It is clear that the Cree communities and regional structures will have to give further consideration to what types of issues can best be handled by what forum. It can perhaps be anticipated that we may see new Cree structures and institutions established in the foreseeable future at both the village and regional levels to deal with some or all of the matters that might fall under this head of the Commission's current mandate.

    It may be anticipated further that as understanding of the Commission's mandate improves at the community level, the Commission will receive more representations.

  7. Other Functions Assumed by the Commission

    The Commission has performed a range of additional functions, most of which were related to, or supportive of, the Commission's statutory duties.


    In earlier chapters we noted that the Chairman of the Commission, in one guise or another, acted as mediator between the federal government and the Crees on disputes arising from the Agreement or the Act.

    The Inquiry was unable to identify with any certainty whether Judge Paul had been employed in the mediation role in his capacity as Chairman of the Commission or on an individual basis.

    For the Crees, they acquired a mediator who was knowledgeable and trusted, and the ambiguity could serve ex post facto to argue for the power of mediator to be conferred on the Commission on a permanent basis. For the federal government, an interpretation that the Judge was appointed in his personal capacity conflicts with the reality that the Commission staff and financial resources are used to support the mediation activity.

    The question of whether the Chairman or the Judge acted as mediator is in some ways of little consequence, except for the drain it exerted on the limited resources of the Commission. The question the Inquiry puts before the parties is whether they want to empower the Commission in the future to act as mediator, when agreed, in Cree/federal or Naskapi/federal matters and/or in matters internal to the communities involving individuals, local government and regional entities.

    If the Commission is to act as a mediator on a specific question, it must be given a clear mandate to do so. The parties may want to designate a particular commissioner as lead mediator, but this power must be formally delegated to the individual by the other members, as foreseen in the Act for certain other powers of the Commission .

    Finally, there can be no question but that the Commission must be assigned additional resources to perform the mediation role when called on to do so. It would not be difficult to identify the time and expenses incurred for this purpose by the mediator and the Commission staff and to bill the appropriate authority on a separate and additional basis.

    This question will be addressed further in the discussion below on optional approaches.

    Resource Centre

    One of the original directions the newly-appointed Commissioners gave to the staff was to establish a resource library and data base relating to the Cree and Naskapi communities and to self-government issues.

    For want of adequate finances for its other functions, the staff was unable to build the resource base the Commissioners had envisaged. They did manage to establish a modest resource library on these matters without purchasing information or contracting research, but it is very limited.

    In its research efforts, the Inquiry encountered significant difficulties in collecting up-to-date information concerning the Crees and the Naskapis. As might be expected in the context of the new Cree and Naskapi local government arrangements, the Department does not maintain a data base on the communities. The GCCQ is only slowly building up its detailed demographic knowledge of the Cree communities. It is not surprising, then, that the Commission has not been able to build much of a resource base on the Cree and Naskapi communities it serves, although this is an area where the Crees feel the Commission might perform a more effective role.

    The Inquiry suggests that a good resource library on the Cree and Naskapi peoples and on the Cree-Naskapi (of Quebec) Act would be of continuing benefit to any of the parties who, from time to time, need to interact or negotiate from a common knowledge base. It may be worth considering for the GCCQ, the individual communities and the federal and provincial governments to provide non-confidential information, studies, speeches, by-laws and regulations, policy papers, etc. to the Commission library on a regular basis.

    The Commission could also be funded jointly by the parties to conduct research or surveys on issues for which an outside body may be advantageous.

    Speaking Engagements

    As noted in Chapter 2, the Commissioners are occasionally asked to speak at conferences on the Commission and the Act.

    The Inquiry is very conscious of the part-time nature of the Commissioners' functions and the sometimes extraordinary demands made on them, especially the Chairman. We would urge, nonetheless, that as financial resources permit, the Commissioners continue to accept and even seek out opportunities to speak about the Commission experience in the self-government context to Aboriginal and non-Aboriginal groups. Knowledge of The Cree-Naskapi (of Quebec) Act and of the Commission is all too limited among Canadians, even Aboriginal Canadians.

    Communications Activity

    The attempts made by the Commission on various occasions to promote an understanding in the communities of its role and procedures have been identified earlier in this report.

    Two brochures were produced, in English only, some radio announcements were made, a newsletter was begun and a video communication script was started.

    While all are commendable initiatives, most ended up not proceeding or not being sustained because of lack of available funds.

    Some of the major challenges in communications involve achieving workable translations. The complexity of the material is self-evident. There are not only four languages involved (English, Cree, Naskapi, French); for the Crees, two dialect groupings (Coastal and Inland) should also ideally be accommodated.

    At various points the Commission has offered to undertake and oversee the translation of the Act into both Cree and Naskapi. It is the Inquiry's understanding that these proposals were aimed less at producing "parallel legal translations" and more at providing a layman's guide to the most significant aspects of the Act. A draft translation was attempted, but difficulties experienced in producing parallel translations in the Indian languages and cost considerations halted the effort.

    Requests by the Commission for the financial assistance to make a layman's translation have to date been refused by the Department. As noted, it is now some six years since the Act received Royal Assent and many of the individual beneficiaries cannot read what is for them the most important piece of legislation.

    The Department recognized the problem in its submission to the Inquiry. They suggested that there is a need in the communities for more information on the Act. Comprehensive communications packages in Cree and Naskapi might be prepared to explain the essence of the legislation, instead of making further attempts at this point toward a clause-by-clause translation that, itself, would need additional explanation and interpretation to the community members.

    Beyond the difficulties posed by the translation issue itself is the broader problem that written materials, even when made available in syllabics, are not usually the most effective form of communication at the community level.

    it is suggested that future communication efforts include audio-visual communication mediums. Once again, preliminary work of this type was started by the Commission but was dropped because of cost. It should be noted in this regard that full production costs for a 30-minute video could run between fifty and sixty thousand dollars.

    4.5 Financial Issues

    In examining financial issues, the Inquiry focused on:

    - how the Commission budget was arrived at and approved;

    - the adequacy of the budget against the Commission's mandate and actual work activity;

    - how the funds were made available to the Commission; and

    - related day-to-day operational issues.

    The Inquiry's assessment, conclusions and recommendations are based upon a comprehensive review of all file materials, submissions from the main parties, a comprehensive Audit Report of the Commission's books and a review of available funding mechanisms.

    The Audit Report was carried out for the Inquiry by the firm of Dunwoody and Company - Chartered Accountants. In addition to auditing the Commission's revenue and expenditures and the year-by-year audits prepared by the Commission's accountants, the auditors were requested to pay particular attention to any identifiable cash-flow problems experienced by the Commission and the consequences of same.

    1. Development and Approval of the Commission's Budget

      The history of the funding allocation and mechanism is reviewed in Chapter 2.

      The Commission's budget was set unilaterally for a five-year period based on a 1980 appropriation by Parliament pursuant to a Cabinet decision made before the Commission was even established. A 1986 Treasury Board authorization for a five-year funding of $1,970,600 (or $394,700 per year) was based on this original estimate of Commission activities and responsibilities made by departmental officials in 1980 and not revised, except to adjust the 1980 figures once for inflation.

      Notwithstanding earlier federal positions which had suggested that the Commission be funded by way of direct parliamentary appropriation, it was decided in the end that the Department of Indian Affairs would act as the funding agency. Resources were to be made available to the Commission under Contribution Agreements.

      No input was sought from the Crees or the Naskapis at any stage in the development of the Commission budget, either on budget amounts or on DIAND acting as the federal funding agency. Nor was the budget allocation, as set in early 1986, ever subject to discussion with the appointed Commissioners.

      The approved budget amount and expenditure categories were essentially plucked from the air. The current funding allocation for the Commission is based on a hypothetical expenditure projection made by an official in the Department before the negotiations on the Act began, four years before the Act was signed and six years before the Commission came into existence. These original figures were updated only once, in 1986, but have never been rationalized against the actual functions of the Commission.

      For its part, the Commission early on encountered problems with the budget amount and with the specific allocations. Between eight and thirteen formal requests were made by the Commission for budget increases over the five-year period. Requests were also made by the Commission staff to meet directly with Treasury Board staff to re-examine a range of budget-related questions and arrive at a budget more appropriate to the Commission's demonstrated operating needs.

      The requests for increases were all rejected either by the Department or by Treasury Board and no direct contact between Commission staff and Treasury Board officials ever occurred. The rejections were explained as resulting from the firm identification of a specific funding limit in the original Cabinet decisions. They could not be changed without going back to Cabinet.

      It has not even been possible for the Department/Treasury Board to agree to a re-profiling of the budget allocation to accommodate the Commission's significant year-overyear variation in its pattern of expenditure caused by the costs of producing a major, four-language report every second year.

      Be that as it may, the Inquiry must comment here that the very identification in the enabling Cabinet submission of a fixed amount to fund a body like the Commission is unusual and highly inappropriate. Such a budgetary limit should not have been allowed by the Treasury Board or by the Privy Council Office that must review the form and substance of Cabinet submissions by Ministers.

      For their part, the Crees take the position that the 1984 Statement of Understanding clearly provided that the financing and set-up of the Commission was to be negotiated after the Act came into effect. This was never done and it is the Cree view that this remains one of many outstanding obligations on the part of the federal government.

    2. 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.

    3. 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.

    4. 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:

      " 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".


      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.


      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.


      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.


      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.


      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.


      Generally provided for from final decisions to the appropriate level of courts.


      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.


      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:


      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.


      The required changes to be reflected in amendments to Part XII of The Cree-Naskapi Act replacing the existing Sections 157 to 172.


      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.


      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.


      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.


      The procedures to govern the Commission in its broadened mandate should be developed by the Commission and require the approval of all 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.


      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.


      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.


The Inquiry makes the following recommendations for consideration by the parties and where appropriate, by the Cree-Naskapi Commission itself.

The Inquiry recommends:

1.0 General

The Cree-Naskapi Commission should be maintained as a body to serve the defined common interests of the Covernment of Canada, the Crees of Northern Quebec, and the Naskapi Band (Kawawachikamach) in the manner and subject to the changes suggested in the more detailed recommendations that follow.

2.0 Process

2.1 Consideration of Report by Government of Canada, the Cree and the Naskapi

Upon the tabling of this report by the Minister before both Houses of Parliament, as required by Section 171 of The Cree-Naskapi (of Quebec) Act, the major parties (the Department of Indian Affairs, representing the Government of Canada, the Crees and the Naskapis), should establish a senior level negotiating Committee to deal only with the issue of the future of the Cree-Naskapi Commission.

This Committee should be mandated to fully consider the Inquiry's report, and attempt to achieve consensus on the future of the Commission, the changes required in the Act and any other Agreements required to effect such changes.

2.2 Consideration by the House of Commons Standing Committee on Aboriginal Affairs

If it becomes apparent that the parties are unable to reach agreement on the basis for continuing the Cree-Naskapi Commission, the Government should initiate action to have the report referred to the House of Commons Standing Committee on Aboriginal Affairs for consideration, public hearings and reporting back to the House.

2.3 Financial Resources to be Provided to the Cree and Naskapi for their Participation in this Process

Financial resources should be made available to the Crees and the Naskapis to ensure that they can participate fully in the process required to reach agreement on the future of the Commission and to effect the required legislative and other changes.

3.0 New Management Structures

3.1 On-Going All-Party Management Committee

The parties should establish a formal on-going mechanism, at a senior level, to oversee and deal with all matters relating to the Commission and its operations.

3.2 Federal Government/Commission Management Committee

Consideration should be given to the establishment of a more structured relationship between the Commission and the Department of Indian Affairs to deal with issues relating to the operations of the Commission.

4.0 The Commission's Mandate Duties

The Commission's mandate and duties as reflected in Section 165 of The Cree-Naskapi Act should be amended as follows:

4.1 The Commission to Assume Broader Dispute Resolution Functions

4.1.1 Commission Mandate

The Commission should be mandated to assist the Government of Canada, the Crees and, subject to recommendations 4.1.8, the Naskapis of Northern Quebec, through management of and participation in a process to resolve disputes that may arise in relation to the interpretation, administration and implementation of the JBNQA, the NEQA, The Cree-Naskapi Act and related or ancillary legislation or agreements as they relate to the federal government, the Crees and the Naskapis.

4.1.2 Matters to be Excluded from the Commission's DRM Mandate

In discussing and defining the scope of the Commission's new mandate to facilitate dispute resolution, attention should be paid to those matters that should not fall under that part of the Commission's mandate. Exceptions would primarily relate to matters internal to the functioning of Cree local governments and communities, including land disputes, hunting, fishing and trapping disputes, distribution of Cree monies or future compensation monies, administration of the Guaranteed Income Program, etc.; in other words, those matters where Cree structures and institutions are judged to be the more appropriate vehicles for managing such internal matters.

4.1.3 Commission to Act as a Primary Dispute Resolution Mechanism

The Commission itself should serve as the primary dispute resolution mechanism.

4.1.4 Capacity to Establish Special Panels

To facilitate the discharge of this function, the Commission should be empowered, with agreement of the parties, to organize a pool of qualified individuals who may, at the discretion of the Commission, or on the request and with the agreement of the parties, be appointed either individually or as part of a panel to assist in the resolution of disputes through special hearings, mediation and other assigned tasks.

4.1.5 Purpose of Special Panels and Other Informal Mediation Processes

Such panels or any other informal or alternative mediation processes established under the Commission may be used in an attempt to resolve disputes prior to a more formal hearing before the Commission itself. The parties should retain the right to appeal to the Commission itself any hearing before a mediator/panel or other agreed-upon process.

4.1.6 All-Party Consent to the Use of a DRM

The parties would in all cases have to agree to subject themselves to the Commission-managed dispute resolution process, including an agreement to abide by any decision rendered. Such agreement should be required from each party involved on an issue-by-issue basis.

4.1.7 The Parties

Parties who should have access to the Commission-managed dispute resolution process for the purpose of resolving disputes would include:

  • The Governmentof Canada

  • The Naskapi Band of Quebec

  • The Cree First Nations of Northern Quebec

  • Cree or Naskapi corporate or regional entities established under the JBNQA or NEQA

The parties might wish to consider whether Cree and Naskapi individuals should have the right to take concerns and representations before the Commission as a formal dispute resolution mechanism. If so, the Commission's duty to investigate representations (currently Section 165(1)b) would require review.

The parties to the DRM may mutually agree to recognize any person, corporation or government as an interested party. Rules and procedures governing such third-party involvement will need to be developed.

With the agreement of the parties, the Government of Quebec should be permitted to be involved where its interests or jurisdiction are or may be affected in the consideration and resolution of the issue under consideration and where it has formally indicated to the Commission and the parties to that issue its intention to fully participate in the dispute resolution process.

4.1.8 Access by the Naskapis to the Commission as a DRM

The Naskapis should have the right to choose whether disputes should be heard under the DRM established under Section 5 of the Agreement between the Government of Canada and the Naskapi Band of Quebec respecting the implementation of the Northeastern Quebec Agreement or under the proposed Commission-managed dispute resolution process. The Naskapis and the Government of Canada should undertake to assess the future status of the Naskapi DRM, in particular whether it is still required in light of the experience gained over the next couple of years.

4.1.9 Procedures

Appropriate procedures to govern the exercise of the Commission's dispute resolution authority should be prepared by the Commission with input from the parties and agreed to by the parties before being put into effect. In this context, consideration might be given to whether more informal mediation phases of the overall dispute resolution process should be subject to the "all-party consent" requlrement.

4.1.10 Status of Decisions Rendered

Where the parties have agreed that the Commission should have the power to render a final decision and, where the Commission has rendered such a decision, it should be enforceable as a court order with provision made for equivalent remedies.

4.1.11 Appeals

The parties should agree upon defined appeal provisions to an appropriate level of court where the Commission has rendered a decision.

4.2 Commission's Reports

4.2.1 Section 165(1)a should be amended to provide for the preparation of reports on the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement as well as the implementation of The Cree-Naskapi Act and any related or ancillary agreements between the parties.

4.2.2 Such reports should address implementation as it relates to the defined parties to the Act, ie. the federal government, the Crees and the Naskapis.

4.2.3 Section 165 should be further amended to provide that such reports shall be made once every 3 or 4 years.

4.2.4 Section 171 should be amended to require the Commission to formally transmit its report at the same time to the Minister of Indian Affairs representing the federal government, to the Cree Regional Authority representing the Cree, and to the Naskapi Band of Quebec.

4.2.5 Section 171(1) relating to the tabling of the Commission's report in Parliament should be retained in amended form to reflect the broader scope of the mandate to report on implementation; and

4.2.6 Section 171 should be further amended to reflect the requirement that the report once tabled, must be referred to the House of Commons Standing Committee on Aboriginal Affairs which shall be charged with considering the report, holding public hearings and then reporting back to the House with its findings and conclusions.

4.2.7 Provision should be made for the Commission, at its discretion, to prepare interim, issue-specific or other reports which shall be transmitted, tabled and considered in the same manner as its regular implementation reports.

4.3 Investigations

Section 165(l)b should be retained in an amended form to allow the Commission to investigate any representations submitted to it relating to the implementation of the JBNQA, the NEQA, the Act and any related or ancillary agreements to the extent that they involve the Government of Canada, the Crees or the Naskapis. This section retaining the right of individuals to bring forward representations for investigation is seen as complementary to the recommended dispute resolution function.

4.4 Other Functions

Consideration should be given to adding a new subsection to what is now Section 165 to reflect and legitimize the range of broader support functions performed by the Commission including:

communication and information functions with a particular focus on the community level and the federal government; and a resource centre for use by all parties;

together with such other matters as may be referred to the Commission with the consent of all of the parties involved. This latter clause might encompass for example, all-party agreement that the Commission might oversee an all-party review of other provisions of The Cree-Naskapi (of Quebec) Act.

4.5 The Province of Quebec

Consideration should be given to amendments to the Act relating to the Cree-Naskapi Commission to:

specifically reflect the fact that the Commission's mandate is confined to and to be exercised in the areas defined as it relates to the Government of Canada, the Crees and the Naskapis; and to extend the mandate to encompass the Government of Quebec if, after receiving notice that its interests or jurisdiction are or may be involved or affected and/or being invited by the Commission to participate, the Province of Quebec opts to participate fully in the process, with the consent of all parties.

The Commission's mandate to hear and resolve disputes and deal with implementation matters (in both its reporting and investigative functions) should not be drafted or interpreted in such a way as to preclude it from investigating or commenting on issues relating to or involving the Province of Quebec.

Once again, in such cases the Commission should be required to serve notice on Quebec of its intention to examine an issue which might involve or affect Quebec's interest or jurisdiction, and to allow Quebec the opportunity to participate or otherwise provide inputs if it so chooses.

5.0 The Commission's Powers

Consistent with the expanded mandate contained in recommendation 4, it is suggested that the Cree-Naskapi (of Quebec) Act be amended to reflect the following new or modified powers for the Commission.

The Commission should be recognized as having the following powers exercisable at its discretion:

  1. the power to make findings, decisions and awards binding on the parties, where the parties in question have agreed to so bind themselves(exercisable for the dispute resolution and investigation functions);

  2. the power in all other cases to make non-binding recommendations to the parties;

  3. the powers for specified functions to:
    undertake and commission research;
    compel oral or written testimony;
    receive and accept evidence under oath;
    subpoena witnesses and documents;
    direct the parties in respect of the payment of costs; and
    make findings, awards and/or recommendations.

The parties should discuss and reach agreement on which of the specified powers should be exercisable by the Commission in respect of each of its assigned major functions.

6.0 Other Tasks

6.1 Translation of The Cree-Naskapi (of Quebec) Act

As a priority task, the Commission should have the mandate and resources to undertake or oversee, as appropriate, the translation of The Cree-Naskapi (of Quebec) Act into the Cree and Naskapi languages.

Rather than a literal legal translation, it is suggested that an interpretation be developed more as a guide to and explanation of the contents of the Act in a way that will render it more comprehensible at the community level.

6.2 Translation of Other Materials

Materials relating to the modified mandate and new or amended operating procedures of the Commission should in all cases be communicated at the community level in the English, Cree, Naskapi and French languages.

7.0 Structure and Operations of the Commission

7.1 Existing Sections to be Retained

Sections 158, 159, 160 and 163 of the current Act relating to structure, membership and qualifications, appointment procedures and remuneration should be retained with the exceptions and modifications indicated below.

7.2 Designation of Chairman

Section 158(2) should be amended to formally provide for Cree and Naskapi input into the designation of the Chairman.

7.3 Restrictions on Eligibility

Section 159 should be amended so that its provisions apply to employees of any federal department or agency that may deal with issues affecting the Crees or the Naskapis.

7.4 Term of Office

Section 160 should be amended to provide that members be appointed for a term of four years and to reflect the requirement that the appointments of the three Commissioners should be staggered to allow for greater continuity in the Commission's operations.

7.5 Remuneration of Members

General: Section 160(6) should be retained without modification. The current per diem level should be reassessed to ensure that the level of remuneration is comparable to that received by members of other Federal Boards and Commissions.

7.6 Remuneration of Cree/Naskapi Commission Members

Any Cree and/or Naskapi member of the Commission should receive the maximum remuneration possible given that they will generally be restricted in their ability to accept complementary employment opportunities.

7.7 Commission Head Office

Section 161 should be amended to confirm the current Ottawa Head Office location while retaining the same procedure for possible agreements in the future on further changes in this location.

7.8 Commission Presence in the Communities

The parties and the Commission are encouraged to examine ways in which the Commission might be able to achieve a higher level of continuing presence within each of the communities, perhaps through the designation of part-time liaison officers within each community.

7.9 Review and Translation of Commission Procedures Governing Representations and Investigations

As part of a broader communications effort, the Commission's current written procedures should be reviewed to assess whether they can be made less formal and legalistic in their content, and consequently more comprehensible and usable by community members. Simple translations of such procedures and other material relating to the revised mandate of the Commission should be made available in both Cree and Naskapi.

7.10 Commission Staff

7.10.1 The Commission should be assured that it has the clear responsibility to assess and identify its own staffing needs, qualifications and salary levels free from interference from any of the parties. It should receive further assurance of its right to present and defend the budget required to meet those staff needs as part of a modified budget development and approval process. (See Recommendation 8.0)

7.10.2 The Commission should have the authority to determine its own staff qualifications and salary levels and to hire staff without interference from the federal government, the Crees or the Naskapis.

7.10.3 The Commission should be further assured of its right to make its case, directly to the federal Treasury Board (on financial matters) (see recommendation 8.0) and with the Public Service Commission of Canada (on staffing matters), for the human and financial resources it sees as being required.

7.11 Further Strengthening of Commission Staff

Dependent upon the continuation and agreed-upon mandate for the Commission in the future, the Inquiry feels that the Commission should re-examine and enhance its staff capacity and requirements:

to deal in the Cree and Naskapi languages;

to handle any expanded mandate agreed to by the parties; and

to deal with the federal government on a broad range of policy and financial/administrative issues.

8.0 Financial and Reporting Issues

The parties should adopt a completely new approach to budget development, financial arrangements and reporting requirements and procedures.

The Commission should be provided with the financial resources required for it to effectively discharge the mandate agreed to by the parties.

The Commission should further be assured the level of independence of operation appropriate to the impartiality essential to its credibility and to the results ultimately achieved.

8.1 Source of Funds

The federal government should meet the full cost of the Commission in all of its operations, except as indicated below.

The parties should explore ways in which a level of contribution from the Cree and Naskapi parties might be made available to the Commission to assist it in its operations either generally or on an issue-specific basis, where it is agreed by the parties that this is appropriate.

In considering such a contribution, due regard should be paid to the relative economic circumstances and capacities of the parties involved.

8.2 Need to Reassess the Commission's Budget Requirements

There is a need for a complete reassessment of the financial resources that will be required to support the Commission in all aspects of its operations pursuant to an expanded mandate.

8.3 Process for Reassessing Budget Requirements and Settling Upon Final Budget Amounts

8.3.1 Both the Crees and the Naskapis should participate fully at all stages of the budget development process. This process is one that should be undertaken by and involve all parties.

8.3.2 The Commission should be asked to initiate the budget development process by preparing a first draft of the budget it feels is required to discharge its mandate.

8.3.3 The Commission should be a full participant in subsequent stages of an agreed-upon process whereby their budget request is given consideration.

8.3.4 The Commission should deal directly with the staff of the Treasury Board on all matters relating to its budget.

8.4 Proposed Funding Arrangements

The Commission should be funded by way of direct Parliamentary appropriation.

Once an appropriate and sufficient budget has been agreed to and confirmed by Treasury Board, the transfer of fiscal resources should be accomplished by a multi-year block funding agreement.

8.5 Reporting Requirements

The Commission's reporting requirements should consist of an annual summary activity report and a yearly financial audit report.

8.6 Contact and Reporting Points for the Commission Within the Federal Government

Consistent with the recommendation that funding be by way of direct Parliamentary appropriation, the Commission's contact on financial matters should be directly with the federal Treasury Board. The Minister of Indian Affairs should continue to be designated as the responsible minister.

9.0 Provision for a Further Five-Year Review of the Commission

If agreement is reached by the parties to retain the Cree-Naskapi Commission in modified form, it is recommended that the power, duties and operations of the Commission should be further reviewed in a manner similar to that provided for in section 172 of The Cree-Naskapi Act, five years after the date when amendments affecting the changes agreed upon come into effect.