COVER

Mr. Jimmy Sam - Chisasibi, Que

WRITERS

Chairman Richard Saunders

Commissioner Philip Awashish

LAYOUT AND DESIGN

The Gordon Creative Group

PRINTING

Gilmore Printing

TRANSLATION

Mr. George Guanish (Naskapi)

Mrs. Mary Mokoush (Naskapi)

C.I.L.F.O. Translation (French)

Mrs. Anna Blacksmith (Cree)

PHOTOGRAPHY

Mr. Jimmy Sam

Mr. John Mameamskum

Mr. Philip Awashish

Edward Saunders Photography

The Nation

Chief George Wapachee

FOR MORE INFORMATION CONTACT:

Cree-Naskapi Commission

222 Queen Street, Suite 305

Ottawa, Ontario K1P 5V9

Tel: 613-234-4288

Fax: 613-234-8102

Toll Free:1-888-236-6603

Web Site: (Http//www.atreide.net/cnc)

prepare biennial reports on the implementation of this Act, in accordance with subsection 171 (1); and

All three of the Commissioners direct the preparation of the biennial reports, all three also discuss, review and approve in detail every part of the reports regardless of who has written the draft text. Because the positions of Commissioners (including Chairman) are part time and the preparation of the reports is a major task various approaches to research and drafting have been tried since the first report in 1986.

In the early years of the Commission’s existence, regular and temporary staff conducted the necessary research and prepared the initial drafts under the direction of the Commissioners. Lawyers and editors then carried out further revisions. The Commissioners would review the substance and tone of the reports before giving final approval.

Beginning with the 1998 Report a different approach has been adopted. The responsibility of the Commissioners for the entire content of the reports combined with severely limited financial resources have made it a practical necessity that the Commissioners research and write the drafts personally without the benefit of input from lawyers or editors.

In the case of the present report, Commissioner Philip Awashish researched and drafted 75% to 80% of the text. Chairman Saunders prepared the remaining 20% to 25%. All three Commissioners discussed, reviewed and approved in detail every part of the text.

All resolutions, letters and documents referred to in this report are available from the office of the Cree-Naskapi Commission. These materials may also be seen on the Commission web-site.

Acknowledgement

The Commissioners acknowledge with thanks the work of the staff who have been unfailingly professional in their efforts. Brian Shawana, Micheline Ayotte, Gloria Dedam and Charlotte Kitchen have all made outstanding contributions the preparation of this report, without which the task would have been impossible. The Commissioners would also like to recognize the excellent work of Nicole Cheechoo who left the Commission in the past year for studies at Carleton University.

The Commission also acknowledges with thanks the Cree, and Naskapi and federal representatives at the Special Implementation Hearings.

When Tennyson wrote those words in 1842, he expressed the hope and faith which underlies the best instincts of men and women in all times and all places - the belief that we must never stop trying to make our world a better place.

The hopes and dreams (and not merely the practicalities and exigencies) which moved the Crees and Naskapis a quarter of a century ago as they negotiated and signed the first modern-day treaties must never be lost in the morass of political and fiscal expediency or the cynicism of ever declining expectations about what is achievable in Canada.

The ideal of vibrant and vigorous Cree and Naskapi nations flourishing within a strong and progressive Canada cannot be allowed to sink into a swamp of contention and litigation brought on by the failures of treaty implementation.

The year 2000 offers the opportunity both for reflection and for resolve. Given the demands faced by the Cree and Naskapi governments as well as by the Government of Canada, there is all too frequently little time for reflection. The Cree-Naskapi (of Quebec) Act has now been in force for some 16 years. The Act was required under the terms of the James Bay and Northern Quebec Agreement as well as under the Northeastern Quebec Agreement. It provides generally for many aspects of Cree and Naskapi local government, for the land regime contemplated in the Agreements as well as for certain individual and collective rights.

It is not an exaggeration to say that the Act was a bold and innovative step for both the Cree and Naskapi and for the federal government. It represented and honest attempt, not without risk, to bring into operation some of the most creative and definitive plans devised so far to move away from the old internal colonialism represented by the Indian Act. Despite some hard bargaining and difficult compromises, the Agreements and the Act held out the promise of a new day in reconciling the rights and interests of theAboriginal peoples of Northern Quebec with the sovereignty of the Crown and the interests of all Canadians. At the time, and since, critics have argued that Cree and Naskapi conceded too much. Others have argued that the Cree and Naskapi got too rich a deal. Perhaps those criticisms as much as anything else suggest that, as originally agreed upon, the Agreements and the Act represented not a win-lose scenario but a realistic, balanced compromise.

Problems of Implementation of the Agreements

Today the Agreements and the Act are seen in very different terms by the parties. Many senior officials of the government of Canada express the view that the Crees are receiving far too much. "The hugely funded Crees" was the description of one senior official. The Crees for their part feel that Canada is deliberately failing to implement its obligations under the James Bay and Northern Quebec Agreement (JBNQA). Dr. Ted Moses, Grand Chief of the Crees (Eeyou Istchee) in a letter dated March 6, 2000 states:

"Canada’s unwillingness to acknowledge that the JBNQA contains Cree treaty rights is shocking to us. Canada has publicly referred to the JBNQA as Canada’s "first modern treaty", yet both before the courts, and at the negotiating table, Canada reserves its position on the recognition of our rights in the JBNQA as treaty rights…. The direct result of this policy of non-recognition of our treaty rights, is the failure to implement the JBNQA and the failure to recognise other federal obligations to the Crees."²

The Grand Council of the Crees (Eeyou Istchee) as well as each of the Cree local governments and many individuals have brought to the attention of the Commission specific examples of what they believe are breaches of its obligations under the Agreements by the federal government. The federal government has over the years argued that the consideration of matters arising out of the Agreements is beyond the mandate of the Commission.

The Commissioners have addressed this issue on a number of occasions and it is our position that where someone alleges that a Band fails or is unable to properly exercise a power or fails to perform a duty under the Act, the Commission has a duty to investigate whether this is so, and if it is so, then why it is so. Bands derive many of their powers and responsibilities from the Agreements by virtue of the plain words of the Cree-Naskapi (of Quebec) Act. The relevant provisions read as follows:

21. Objects of bands - The objects of a band are

(j) to exercise the powers and carry out the duties conferred or imposed on the band or its predecessor Indian Act band by any Act of Parliament or regulations made thereunder, and by the Agreements.³ (emphasis added)

The objects and powers (including in particular the duties contemplated in subsection (j) ) are comprehensive and costly. The capacity to carry out these responsibilities is dependent for the most part upon the willingness of the federal and provincial governments to fully carry out their obligations under the terms of the Agreements as well as under programs ordinarily provided to First Nations.

Almost from the signing of the James Bay and Northern Quebec Agreement until the present time there have been disputes between the federal government and the Crees concerning questions of the extent and fulfilment of government’s obligations under the Agreement.

Although the Department of Indian Affairs has regularly objected to the Commission’s practice of hearing community concerns based upon issues arising out of the Agreements, that objection has become less strident in the past year. In fact the Director of the James Bay Implementation Office acknowledged during his appearance at the Special Implementation Hearings in February 2000 that the Commission really did have to listen to the actual concerns raised by the communities.

Keeping alive and indeed fulfilling the legitimate hopes and aspirations of the Cree and Naskapi as reflected in the Agreements by approaching the implementation of those Agreements in a positive and good faith manner is part of the Crown’s fiduciary duty. Attempts to "read down" Cree or Naskapi benefits under the Agreements, to secure "signing off" of on-going provisions with one time buyouts and other forms of treaty obligation avoidance are contrary to the letter, spirit and intent of the Agreements, of the James Bay and Northern Quebec Native Claims Settlement Act and to the Government’s own policy as expressed by Minister Nault.

Policy Accountability

At another level, attempts to minimize and circumvent the Agreements demonstrate the problem, which the Commissioners characterized in the 1998 Report as "ministerial impotence".

Minister Nault on behalf of Cabinet has asserted repeatedly that he is committed to finding ways to ensure that the treaties including the Agreements are carried out in letter and in spirit. His predecessor, Minister Stewart had been equally determined to build a new relationship and to turn away from what she called " the mistakes of the past".

The credibility of Minister Nault and his Cabinet colleagues will be determined to a large degree by the extent to which his officials accept his policy direction and carry it out.

Much had been made, in the media and elsewhere, about the need for improved financial accountability particularly in recent months in relation to the Department of Human Resources Development Canada. In spite of serious questions such as this one, the federal government’s overall internal financial controls are formidable. The Financial Administration Act together with regulations, directives etc., does provide a solid framework for the accountability of the public service in managing public funds according to conditions established by Parliament and Treasury Board. Failures and shortcomings in this area are identified by the Auditor General or through the processes of the House of Commons.

The time has come for a similar level of accountability in the area of policy. Just as there are legal requirements for financial accountability so also must there be legal requirements for policy accountability. Canadians elect governments for a variety of reasons and while they may not agree with every decision that their elected representatives make, they do expect that it will be the elected officials whose policy direction will prevail. Many senior officials simply do not accept the direction being taken by Minister Nault. The result is that his policy positions may be seen at best as irrelevant and at worst as insincere. This problem is hardly new or unique to this department. It occurs all too frequently in government and in part accounts for the overall cynicism of a large part of the public towards politicians. The government would do well to consider the need for a Policy Management Accountability Act.

Implementation of Treaties and Agreements: Some Final Thoughts

The Need

There is a need for a just, timely and durable process to implement the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement as well as other existing and future treaties and land claims agreements.

The concept of "just" needs to include a fair and reasonable exercise of the fiduciary duty of government in a manner that is fully consistent with the honour of the Crown in consultation with the Aboriginal parties.

"Timely" involves the idea of resolving implementation issues relating to the Agreements and other treaties and agreements as soon as possible, and in the case of new agreements, upon ratification.

"Durable" suggests that the process must be consistent with applicable principles of law, economically possible and politically sustainable. Governments must take an active responsibility to obtain as broad a measure of political support as possible for the process.

Specific Measures Required

There are many approaches possible, however the approach finally taken must recognize the existing unhappy state of affairs, determine why that exists and introduce processes and structures likely to result in positive change.

The governance function, for the most part, involves making policy choices, establishing expenditure priorities and generally exercising discretion in an atmosphere of primarily political rather than legal accountability.

The implementation of agreements and treaties involves far less exercise of discretion. Treaties create what the Supreme Court has called "enforceable obligations". The overall mind set of institutions whose main task is the management of choice and setting of priorities is not ideal for those whose task is mainly the discharge of "enforceable obligations".⁴ For this reason the Cree-Naskapi Commission in its 1998 Report recommended the creation of a Treaty Implementation Secretariat with a Treaty Implementation Act to guide its work, and a Court of Aboriginal and Treaty Rights to expedite legal resolution of major disputes.

These proposals have been reviewed by the Senate Committee on Aboriginal Peoples which is now considering the possibility of legislative follow-up. Also the proposals have been discussed at various Assembly of First Nations conferences and were endorsed in principle by the Cree and Naskapi Nation as well as the Chiefs at the AFN Confederacy Meeting on December 9, 1999.

The time has come for government to begin a constructive dialogue aimed at developing specific, detailed treaty implementation legislation with "teeth". The time is long past for simple statements of good intentions.

Both our history and our law underscore the desirability of maintaining an on-going dialogue with the Cree, the Naskapi and indeed all of Canada’s Aboriginal peoples. But dialogue alone is not enough. The dialogue must lead to solid legislative development. The Cree and Naskapi and all of the Aboriginal peoples are the founders of our past, they must be part of the development of a national vision of our future. The extent to which we, as a nation, honour our treaties and agreements with them will be a measure of the integrity of our future together as Canadians.

Endnotes

1. Tennyson, A, "Ulyises" from The New Oxford Book of English Verse, Oxford Press, Oxford, 1972. P. 646
2. Letter from Grand Chief, Dr. Ted Moses to the Chairman of the Commission, dated March 6, 2000
3. Cree-Naskapi (of Quebec) Act Section 21 (j)
4. [1996] 2 C.N.L.R. 77 (S.C.C.)

While all states guarantee to their citizens certain civil, political and social rights, it is international law, which guarantees to all peoples certain universal human rights. Indigenous peoples’ rights have been treated as a category of general international human rights law.

Article I of both the UN Covenant on Economic, Social and Cultural Rights and the UN Covenant on Civil and Political Rights provides as follows:

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

All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Canada is a signatory to these Covenants and therefore must respect these Covenants that came into force on August 19, 1976.

The right of self-determination provided for in these Covenants is a basic and continuing or permanent right which is also a fundamental principle.

The Cree and Naskapi First Nations consider themselves as ‘peoples’ with a right of self-determination. The Cree and Naskapi First Nations each constitute a people due to the facts that they have a permanent population (about 14,000 people), a defined territory (in which they have a historical and permanent relationship and are the descendants of the original inhabitants of such lands), a system of government (inherent in the Cree and Naskapi First Nations), and the ability to enter into relations with states (nation-to-nation and government-to-government relations through the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement as treaties).¹

(International law does not appear to provide a general acceptable definition of ‘people’. However, the Cree and Naskapi First Nations do not make a distinction between the concepts of ‘people’ and ‘nation’ under traditional law which is that vast body of Eeyou law that exists in and is inherent in the Cree and Naskapi First Nations).

For the Cree and Naskapi peoples, self-determination is taken to mean authentic self-government, that is, the exercise of the right for a people to "freely determine their political status and freely pursue their economic, social and cultural development." By virtue of this right, the Cree and Naskapi peoples may freely determine their relationships with Canada and Quebec, in a spirit of peaceful co-existence and freely pursue their political development in conditions of freedom and dignity.

The Cree and Naskapi peoples consider themselves as always having been self-governing peoples. The Cree and Naskapi First Nations, like other Aboriginal First Nations, were, before contact with the European peoples, fully independent and as the Supreme Court of Canada described "organized in societies and occupying the land as their forefathers had done for centuries."²

In the last quarter of the past millennium, the Cree and Naskapi peoples and nations have experienced, for better or for worse, many significant changes in their lives, culture and societies.

However, there is no more basic principle in aboriginal history and relations than a people’s right to govern themselves and their land in accordance with their will and aspirations.

In its Report of 1996, the Royal Commission on Aboriginal
Peoples states:

The self-governing status of Aboriginal peoples was reflected, for example, in the practices surrounding treaty making and in such notable British documents as the Royal Proclamation of 1763... Although this status was greatly diminished by the encroachments of outside governments during the nineteenth and twentieth centuries, it managed to survive in an attenuated form. We have come to the conclusion that the inherent right of self-government is one of the "existing Aboriginal and Treaty rights" recognized and affirmed by section 35 of the Constitution Act, 1982. Additional support for this conclusion is provided by emerging international principles supporting the right of self-determination and the cultural and political autonomy of indigenous peoples.³

Furthermore, the Government of Canada in August, 1995, released its policy on the inherent right of Aboriginal self-government - Aboriginal Self-Government - in which it states:

The Government of Canada recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982.⁴

On November 11, 1975, the Grand Council of the Crees (of Quebec) on behalf of the Eeyou ( Cree ) Nation, signed the James Bay and Northern Quebec Agreement to which the Governments of Canada and Quebec are parties and signatories. (The current year marks the 25^th anniversary of the signing of the James Bay and Northern Quebec Agreement.)

On January 31, 1978, the Naskapis de Schefferville Band, on behalf of the Naskapi Nation, signed the Northeastern Quebec Agreement to which the Governments of Canada and Quebec are also parties and signatories.

A historical milestone in aboriginal history and relations was achieved when, in 1982, the Constitution of Canada - the supreme law of the land - was amended, amongst other reasons, to recognize and affirm existing aboriginal and treaty rights.

Section 35 of the Constitution Act,1982, provides for the affirmation and recognition of existing aboriginal and treaty rights, which includes rights that exist by way of land claims agreements.

The Cree and Naskapi First Nations consider their Agreements as modern day treaties or land claims agreements for the purpose of section 35 of the Constitution Act, 1982.

Furthermore, the Eeyou peoples (Cree and Naskapi) possess Aboriginal rights due to their historical and continuing relationship with their traditional territories and status as self-governing peoples.

Consequently, as far as the Cree and Naskapi First Nations are concerned, the Constitution Act, 1982, recognizes and affirms their "existing aboriginal and treaty rights."⁵ Their treaty rights, according to the Eeyouch, include the rights contemplated by the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

The history, purpose and status of these Agreements as Treaties enhance the status of the Cree and Naskapi Eeyouch as peoples and nations. These Agreements or Treaties provide the foundation for new relationships between the Cree and Naskapi First Nations and the Governments of Canada and Quebec.

These Agreements or Treaties provide for a partial expression of the right of self-government of the Cree and Naskapi peoples.

Section 9 (Local Government over Category 1A Lands) of the James Bay and Northern Quebec Agreement provides that "there shall be recommended to Parliament special legislation concerning local government for the James Bay Crees on Category IA lands allocated to them".⁶

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

Consequently, pursuant to section 9 of the James Bay and Northern Quebec Agreement and section 7 of the Northeastern Quebec Agreement, the Cree and Naskapi First Nations and the Government of Canada discussed the terms and provisions of the Cree-Naskapi (of Quebec) Act. This special legislation was enacted by Parliament and assented to on June 14, 1984.

Thus, the Cree-Naskapi (of Quebec) Act, provides "for an orderly and efficient system of Cree and Naskapi local government, for the administration, management and control of Category IA and Category IA-N Land by the Cree and Naskapi bands respectfully and for the protection of certain individual and collective rights under the said Agreements."⁸

The Agreements and the Act, however, are not exhaustive of the Cree and Naskapi right of self-government and powers of Cree and Naskapi local government. Furthermore, the Cree-Naskapi (of Quebec) Act, in its preamble, makes it clear that the Act "is not intended to preclude the James Bay Crees and the Naskapis of Quebec from benefitting from future legislative or other measures respecting Indian government in Canada that are not incompatible with the said Agreements."⁹

Therefore, it appears that these Agreements or Treaties and the subsequent special federal legislation - the Cree-Naskapi (of Quebec) Act - give partial expression of the right of Eeyou self-government.

Because the Cree-Naskapi (of Quebec) Act is federal legislation which appears to establish or ‘create’ local government, this partial expression of local self-government is a form of delegated authority from a level of government (federal) to another level (local government established by the Act). This derivative nature of the source of self-government is inconsistent with the inherent nature of the right of Eeyou self-government. The challenge of the Cree and Naskapi nations and peoples is to ensure compatibility of their treaties and any enabling legislation with the inherent nature of their right of self-government as well as ensuring the establishment of good and effective government.

The source, nature, scope and implementation of the inherent right of Eeyou self-government raises many interesting questions which can be best answered and dealt with by the Cree and Naskapi First Nations who must decide upon the paths of their present journey towards fully governing themselves and their lands in accordance with their aspirations and will.

However, questions remain as to whether the policy of delegated powers, authority and jurisdiction for Cree and Naskapi local government as contemplated in the Agreements and subsequently provided for by and in accordance with the terms and provisions of the Cree-Naskapi (of Quebec) Act is working or not for the benefit and advancement of Cree and Naskapi local self-government.

In this regard, a review of the implementation of the Cree-Naskapi (of Quebec) Act, the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement may provide some answers and direction. .

Furthermore, a relationship among peoples and nations is not a static thing. It changes and develops over time in response to new conditions. If constant efforts are not made to maintain and update it, it can easily deteriorate and fall apart.

The Cree and Naskapi nations and peoples view their Treaties - the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement - respectively, as the pre-eminent means of creating and acknowledging relationships. The proper implementation of the letter, intent and spirit of these Agreements or Treaties is an important and essential mechanism for establishing and adjusting relationships over time to meet new needs and conditions.

Therefore, the past and present relationship between the Cree and Naskapi First Nations and the Government of Canada must also be reviewed to determine if constant efforts are being made to maintain and update it for the benefit and advancement of Cree and Naskapi local government.

The Cree-Naskapi Commission established by Section 165 of the Cree-Naskapi (of Quebec) Act has a duty to "prepare biennial reports on the implementation of this Act"¹⁰ to the Minister of Indian Affairs and Northern Development who "shall cause the report to be laid before each House of Parliament".¹¹

However, the James Bay and Northern Quebec Agreement, the Northeastern Quebec Agreement and the Cree-Naskapi (of Quebec) Act are inseparable, to a large extent, and must be considered as a whole in order to capture the intent and spirit of the exercise and practice of Eeyou self-government. In this regard, the Cree- Naskapi Commission must consider the implementation of these Agreements or Treaties.

The present report of the Cree-Naskapi Commission constitutes the seventh biennial report to the Minister.

In the preparation of the present report, the Commission has conducted the following:

1. Special Implementation Hearings to permit representation from the Cree and Naskapi authorities and the Government of Canada;

2. A review of its findings and recommendations from its past reports; and

3. A follow-up with a course of action with respect to its findings and recommendations of the 1998 Report.

Therefore, the present report is a special one on the general state of Cree and Naskapi local government. In particular, the intent of the present report is to provide information that should promote a better understanding of the issues and concerns that need to be addressed by parties and authorities concerned with the advancement of Eeyou self-government. The present report was also prepared in a manner that is intended to enlighten the public on the general history of Eeyou local government. In this regard, the findings and recommendations of the present report must be acted upon by the governments and authorities - the federal as well the Cree and Naskapi governments and authorities - in order to maintain and strengthen partnerships amongst nations and governments and to promote and achieve the enhancement and advancement of local Cree and Naskapi government.

The Cree and Naskapi peoples, in their language, call themselves ‘Eeyouch’ (or ‘Eenouch’ in the case of the inland Cree people) which means ‘human beings or people.’ ‘Eeyouch/Eenouch’ is the term used by Eeyou for millennia and the terms ‘Cree’ and ‘Naskapi’ or their variants have been used by non-Eeyou peoples over the past centuries.

As the ‘Eeyouch’ consider themselves as self-governing peoples and sovereign in their ways, the ‘Cree’ and ‘Naskapi’ peoples have added the principle of nationhood to their names. The Cree and Naskapi Nations have, after all, concluded their respective treaties - the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement - with the state. In addition, the Eeyouch consider themselves as ‘nations within’ the state.

Furthermore, in order to establish their place in the history of this continent and country, as the first permanent and present inhabitants of their historical and traditional territories, some of the Cree Nations refer to themselves as ‘First Nations.’ The ‘First Nations’ also consider themselves ‘first’ in their unique, continuous and central relationship with their lands ( called ‘Istchee’ or the ‘earth’ by Eeyouch ) and as a Nation and people exercise stewardship and guardianship over ‘Eeyou Istchee’ - the historical and traditional territories and homelands of Eeyouch.

The present background on history does not purport to be a complete and comprehensive narrative of the events and situation of the Eeyouch (Cree and Naskapi) of Quebec; it describes some of the major events and circumstances which have had a major influence and a direct bearing on the exercise of the Eeyou right of self-determination and consequently on the exercise and practice of self-government particularly within the local Eeyou communities.

The Eeyouch consider themselves as self-governing peoples who were before contact with the European peoples, fully independent and "organized in societies and occupying the land as their forefathers had done for centuries." ¹

Thus and based on their history, it is clear that the Eeyouch were the first inhabitants of what is presently a portion of Canada known, generally, as Northern Quebec.

The history of Cree and Naskapi (Eeyou) relations with colonial and later the state powers is a legacy of dispossession of Eeyou lands and resources and the subsequent denial of rights and exclusion of Eeyou peoples in the political and economic development of Canada and Quebec. Consequently, the past and present relations between the Eeyouch and the state powers - Canada and Quebec - focus on conflicts over lands, resources and power.

The colonization of their historical and traditional lands has affected the Eeyouch in a number of ways which has led to the dispossession of their lands and rights. The methods, philosophy and legal doctrines used to dispossess them are too varied, detailed and extensive to examine for the purpose of the present report. It is safe to conclude that the attitudes, doctrines and policies developed to justify the taking of lands and resources with the consequent denial of rights of the Eeyouch were and continue to be largely driven by the political and economic agenda of the state.

As it happened in other regions of Canada, so it happened in the traditional and historical territories of the Eeyouch: non-Eeyou sovereignty and jurisdiction were asserted, generally, through the fur trade, followed by missionaries and later the state.

However, the present report primarily and generally examines Eeyou and federal relations particularly in respect to the exercise and practice of Eeyou (Cree/Naskapi) local government.

Section 91 (24) of the Constitution Act 1867, confers upon the federal government the power to make laws in relation to "Indians, and lands reserved for the Indians." ² This responsibility was assumed by the federal government without consultations with and consent of the "Indians."

The Royal Proclamation of 1763, had established that treaty-making with the Indians was the sole responsibility of the (imperial) Crown in right of the United Kingdom. After confederation, the federal government was the natural successor to that responsibility as well as for all matters relating to "Indians, and lands reserved for the Indians."

In the late 1800’s pursuant to its constitutional authority for Indians and Indian lands, Parliament passed the Indian Act, which was based on Indian policies developed in the nineteenth century. These policies were conceived under assumptions about the inferiority and incapacity of "Indians" and an assimilationist approach to the "Indian problem."

The mentality, which perpetuates such policies, believes that their choices are right and others wrong their beliefs true and others false. Such a relativism which pervaded Canadian society questions the nature of truth and makes one guilty for being ‘Eeyou’ and for believing in their culture, values and society. Such a mentality and relativism constituted a threat to the society, values and culture of Eeyouch as policies were created and implemented in an attempt to eradicate or substantially modify Eeyou society and culture.

The Indian Act was an oppressive piece of legislation with significant disparities in legal rights with penalties and prohibitions for Indians. If applied to others, these legal rights would have been declared illegal and unconstitutional. Indian women, for example, were greatly disadvantaged by the unfair and discriminatory provisions of the Indian Act. This is particularly so with regard to discriminatory provisions on land surrender, wills, band elections, Indian status, band membership, and enfranchisement.

Furthermore, as a matter of policy, the manner of extending voting rights to ‘Indians’ clearly constituted a significant disparity in legal rights. In 1885, the right to vote in federal elections was extended to Indians in eastern Canada; eligibility included male Indians who met the qualification of occupying real property (i.e. a lot on reserve land) worth at least $50. However, the legislation granting the vote to eastern Indians was repealed in 1898, thereby making all Indians ineligible to vote in federal elections. Then provincial laws determined voter eligibility requirements for federal elections as well as for provincial elections. Such provincial laws generally involved property ownership requirements that reserve-based Indians could not meet unless they enfranchised. In 1960, the federal vote was finally extended without qualification to all Indians. And in 1969, the provincial vote in Quebec was extended to Indians.

In effect, the Government of Canada, in implementing the Indian Act and its subsequent policies, treated ‘Indians’ as children or wards of the state.

Over the years, the Indian Act and its amendments intruded massively on the lives and cultures of aboriginal First Nations including the Cree and Naskapi First Nations.

Until the execution of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement and the subsequent enactment of the Cree-Naskapi (of Quebec) Act by Parliament, the Indian Act was the single most prominent piece of legislation respecting Eeyou local government, control and administration of local Cree/Naskapi lands.

The Indian Act, as amended, broke up Indian Nations including the Cree and Naskapi Eeyouch into ‘bands’ and imposed an elective form of government with very limited powers and vested in the Minister of Indian Affairs veto powers over decisions of local governments. The traditional forms of government based on traditional law and customs were ignored and replaced by the federal authorities pursuant to the Indian Act. The elective system was meant to hasten assimilation by eliminating traditional systems of governance.

Under the Indian Act, Indian people including the Cree and Naskapi peoples, could not manage their own reserve lands or money and were under the supervision of federally appointed Indian Agents whose job it was to ensure that federal policies were carried out in the various reserves or communities across Canada.

The Indian Act and its subsequent amendments gave the superintendent general of Indian Affairs power to control the band council, elections and erode traditional systems of governance.

Under the 1951 Revisions to the Indian Act, the authority of the Minister of Indian Affairs and the Governor in Council remained formidable, with administration of more than half the Act being at their discretion. The elective system of local government was maintained with the supervisory role albeit with veto powers given to the Minister of Indian Affairs.

The legal system of limited and supervised law-making powers of bands under the Indian Act was an impediment for the proper exercise of local autonomy and local government.

Many measures were passed to increase federal control and reduce the political and cultural autonomy of ‘Indians’ under the Indian Act.

The Act regulated almost every important aspect of the daily lives of ‘Indians’ - from acquisition of ‘Indian’ status to disposition of the property of an ‘Indian’ at death.

Many attempts have been made through the years to free Indian people from the legal regime of the Indian Act. Some amendments have been made to narrow the disparity of legal rights due to certain decisions of the courts.

While some consultation with the Indian peoples had been attempted by the federal government, the proposals for reform to the Indian Act from Indian peoples were almost never taken seriously by the federal government.

However, in respect to local government of ‘bands’ and administration of their lands, the provisions of the Indian Act basically maintained and retained the same legal regime established in the 1800’s.

The Indian Affairs Branch of the federal government later evolved into the present day Department of Indian and Northern Affairs which asserts control over ‘Indians’ and their governmental and administrative affairs and relationships.

Control over Indian political structures, land administration and management, economic and social development gave the federal government everything it appeared to need to complete the unfinished policies inherited from its colonial predecessors.

The Eeyouch (Cree and Naskapi peoples) clearly remember the era of the Indian Act, which for them began, with the arrival of the Indian Agent to their communities and territories.

In the early 1900’s, the Cree of Eeyou Istchee (historical and traditional homeland of the Eeyou) were registered by Indian Agents as ‘Indians’ within the meaning of the Indian Act.

From the confederation of Canada in 1867 to 1898, the portion of Eeyou Istchee located south of the Eastmain River was, initially, part of Rupert’s Land and then the North West Territories until it was transferred to the Province of Quebec in 1898 by the Government of Canada without consultation with and consent by Eeyou who inhabited the territory for millennia. In 1912, the portions of Eeyou Istchee and Naskapi lands, as well as Inuit lands, located north of the Eastmain River were transferred to the Province of Quebec by the Government of Canada under similar circumstances. ( By virtue of the Quebec Boundaries Extension Act,1912, this vast territory was transferred to the Province of Quebec by the federal government. In acquiring this territory, Quebec assumed an obligation, under the Act, to settle land and other claims of the Native peoples of the territory.)

In the 1930’s, most of the Cree within their communities were listed as ‘bands’ dispersed throughout Eeyou Istchee.

With respect to the Naskapi, their first regular contacts with the federal government began in 1949 when the Indian Agent visited them in Fort Chimo.³

The Indian Agent dispensed some form of relief by ‘rations’ initially and later by vouchers for food and/or clothing. Stories abound about boots and canned goods such as tomatoes being given to the Cree by the Indian Agent.

The Indian Agent such as Herve Lariviere, as a representative of the superintendent general of Indian Affairs, exercised a vast array of powers in almost all areas of the daily lives of the Cree and Naskapi peoples. The Indian Agent, known by most of the Cree communities as Chisa-Chemaou Kouhpahnehou ( ‘great boss’s agent’) or Weech-heewehou Oujemaaou ( ‘helping boss’), exercised control of local administrative, financial and judicial matters. The Indian Agent often arrived at the Cree villages with the police - the Royal Canadian Mounted Police - to enforce law and order. It is easy to understand how the Indian Agent come to be regarded as all powerful and as a person of enormous influence in daily and village life of the Cree and Naskapi peoples.

The federal Indian Agent was the first government official to conduct direct relations on a significant and regular basis, with the Cree and Naskapi peoples. Clearly, the Indian Agent was the first and most influential agent in Cree/Naskapi and federal relations.

(With exception to the application and enforcement of provincial fish and game laws and regulations, the Government of Quebec, in Eeyou Istchee was considered ‘absent’ until the late 1960’s by the Cree (Eeyou) of Eeyou Istchee. In fact, the Government of Quebec considered ‘Indians’ the exclusive responsibility of the Government of Canada. Furthermore, Eeyou Istchee was considered as crown or public lands by Quebec and Canada and therefore constituted as part of the territory of Quebec.)

Although Indian Agents began to be phased out in the 1960’s, band councils of the Cree and Naskapi peoples still operated under the restrictive and limiting framework of the Indian Act first developed in the late 1800’s.

In the 1960’s, the isolated and fragmented Cree villages were occupied by one or more recognised ‘bands’ and administered by a regional office of the Department of Indian Affairs.

Villages of Eeyou were named and linked to trading posts of the Hudson’s Bay Company. Subsequent administrative ‘bands’ of Cree ‘Indians’ retained the name. In fact, the Cree people had named their villages with reference to its historical, geographical and other attributes.

In the 1960’s, the Hudson’s Bay Company closed their stores in the posts of Waswanipi and Nemaska. Amid reports of flooding of their traditional territories and villages by future hydroelectric development, the Cree of Waswanipi and Nemaska had no choice but to leave their villages. The Nemaska Eenouch relocated to the villages of Mistassini and Rupert’s House (Waskaganish). The Waswanipi Eenouch were dispersed in several encampments and in some non-Eeyou towns such as Chapais, Miquelon, and Mattagami. The Eenouch of Waswanipi and Nemaska consider their relocation as a move that was not instigated by them - a relocation in which they had no choice because of their social and economic situation.

The Ouje-Bougoumou Eenouch were dispersed and relocated on several occasions to various sites and encampments throughout their historical and traditional territories. The Ouje-Bougoumou Eenouch were registered as members of the Mistassini Band by the Department of Indian Affairs for administrative and economic reasons.

Furthermore, the Eenouch of Neoskweskow and Nitchequon which were trading posts of the Hudson’s Bay Company were also registered as members of the Mistassini Band by the Department of Indian Affairs for economic and administrative reasons. It is doubtful that the Eenouch of these posts were consulted and given a choice in their relocation to the village of Mistassini.

In 1956, the Naskapi Eeyouch arrived at Schefferville, Quebec, after several relocations from the communities of Fort Chimo, Fort Nascapie and Fort McKenzie covering a period of over a century. The Naskapi settled in a site adjacent to John Lake without the benefit of basic and essential infrastructures and services for a village.⁴

In 1969, Indian Affairs acquired a site north of the town centre of Schefferville for the Naskapi Eeyouch. By 1972, some new houses had been constructed for them. (This new site became known as the Matimekosh Reserve which was shared by the Montagnais and Naskapi Bands.)⁵

In 1971, the Naskapi Eeyouch became a ‘band’ as the ‘Naskapis de Schefferville Band’ under the Indian Act.⁶

The Indian Act with its imposition of an elective system determined the formal structure for limited local government by Chief and Council of each Cree and Naskapi community or ‘band’. This formal structure was stressed by the Department of Indian Affairs in its relations with the Cree and Naskapi ‘Bands’.

The Ouje-Bougoumou Eenouch asserted and exercised the right of self-government in accordance with traditional law and customs as the federal government did not consider them as a distinct ‘Band’ under the Indian Act. (The local government of other Cree and Naskapi villages also operated within the parameters of traditional law and customs, notwithstanding the legal regime of the Indian Act.)

As a typical example ( in the Cree villages of the early 1970’s) for local ‘Band’ government and administration, the Chief received a salary, usually as a half-time employee and was assisted by a full-time band manager and secretary who ran the office of each Band - in a one or two room small structure in most villages.

Often officials from Indian Affairs made important decisions which were rubber-stamped by the Chief and Council.

Effective political action by Eeyouch and Eeyou leadership was rare within the narrow limits of decision-making provided by the bureaucracy of the Department of Indian Affairs. The Department of Indian Affairs tended to regard the official structures of band government and band administration as a means of promoting and implementing federal policies such as the Indian Act did not grant any real authority to these local structures.

The Indian Act and the Department of Indian Affairs eventually came to be seen as instruments or agents of intrusion into Eeyou society.

The Cree and Naskapi peoples like other ‘Indian Bands’ were at the bottom of the bureaucratic hierarchy. Within the Department of Indian Affairs, Ottawa was the centre of Indian policy-making offices for all of the various programs and services administered by the Department. In these offices, with little or no consultation with the ‘Indian Bands’ such as the Cree and Naskapi ‘Bands’, government employees determined local budgets and costed administrative arrangements, made designs for houses for Indian communities, designed water and sewage systems, planned curricula for Indian schools, planned and suggested economic development schemes, conducted legal research and generally did whatever they considered was in the best interests of the ‘Indian Band’ if not in the best interests of the Department.

Each province had a regional headquarters administering all ‘Indian’ Bands in the province. Quebec City was the regional administrative ‘head office’ for Indian ‘Bands’ of Quebec. In the 1970’s, the majority of Cree ‘Bands’ were administered within the Abitibi District from the District Office of Indian Affairs in Val d’Or, Quebec. ( In the 1960’s, the District Office of Indian Affairs was located in Amos, Quebec.) In effect, the District Office of Indian Affairs was the centre of Cree ‘Bands’ and federal relations.

The Cree and Naskapi ‘Bands’rarely conducted direct relations with the Government of Canada.

However, the Department of Indian Affairs did permit certain Cree Bands to administer locally, but not control, certain federal programs and/or services through administrative and contractual arrangements. Consequently, as an example, Cree bands operated the local schools to some limited extent.

By 1970, the Eeyouch saw and still agree that progress in self-government, in social and economic development and in eradicating the social ills afflicting them cannot and could not be accomplished within the confines of the Indian Act and the dominating administrative arm of the Department of Indian Affairs.

Consequently, for the Eeyouch, the comprehensive control and domination asserted by the federal government over Eeyou society and territory through the Indian Act and the Department of Indian Affairs became the catalyses for change in Eeyou and federal relations.

In the early 1970’s, before the execution of the James Bay and Northern Quebec Agreement (JBNQA) and the Northeastern Quebec Agreement (NEQA), the following brief and general summary describes the situation and conditions of the Eeyouch (Cree and Naskapi), their local government and administrations, and governmental relations:

1. The population of the Eeyouch was about 6,000 Cree and about 350 Naskapi.

2. The traditional way of life based on hunting, fishing and trapping and related activities constituted ( and still remains ) an essential and necessary component of Eeyou culture and society.

3. The Eeyouch (Naskapi) began to settle in the Montagnais Reserve of Matimekosh with the commencing of housing for them.

4. The Eeyouch (Cree) of Eeyou Istchee were residing in six (6) isolated villages - Great Whale River, Fort George, Paint Hills, Eastmain, Rupert’s House and Mistassini. The Cree of these villages lived in inadequate housing shelters without suitable infrastructures for water and sewage systems.

5. With the exception of the Ouje-Bougoumou Cree, the Cree and Naskapi peoples had ‘Band’ status under the Indian Act.

6. Only three (3) Cree communities - Mistassini, Waswanipi and Eastmain - were allocated lands as ‘reserves’ established by provincial law under an administrative arrangement with the federal government. (But only the Cree of Mistassini were residing on their ‘reserve.’ The Cree of Waswanipi had no choice but to leave the old Waswanipi Post and their ‘reserve’. The ‘reserve’ for the Cree of Eastmain was located outside of the Cree village of Eastmain.)

7. The Cree of Nemaska, having been relocated from the old Nemaska Post, resided in the villages of Rupert’s House and Mistassini.

8. The Waswanipi and Ouje-Bougoumou Cree were dispersed and residing in small crude encampments throughout their traditional territories and in some non-Native municipalities.

9. The Ouje-Bougoumou Cree were registered as members of the Mistassini Band by Indian Affairs for economic and administrative reasons. (Some Ouje-Bougoumou Cree resided in the village of Mistassini.)

10. The Indian Act applied and was enforced upon the Cree and Naskapi peoples. Hence, the legal system of a limited and supervised regime of local government was imposed on the Cree and Naskapi ‘Bands’.

11. Notwithstanding the legal regime of the Indian Act, the Cree and Naskapi peoples continued to use their traditions and customs for ‘band’ elections and decision-making over local individual and collective matters.

12. The federal government, mainly through the Department of Indian Affairs and Northern Development (DIAND), provided programs and services to the Cree and Naskapi ‘bands’.

13. The Cree and Naskapi ‘Bands’ conducted federal relations through officials of the District Office of the Department of Indian Affairs and Northern Development.

14. The Department of Indian Affairs and Northern Development arranged contractual and administrative measures to permit some Cree bands to manage some federal programs and services such as operations of local schools.

15. Relations with the Government of Quebec were virtually non-existent in most Eeyou communities.

16. The imposed Indian Act regulated almost every important aspect of the lives of the Cree and Naskapi ‘Indians’.

17. Questions existed about the capacity of the ‘Band’ under the Indian Act to undertake contractual obligations and assume legal responsibilities as a legal entity or a legal personality.

18. The Department of Indian Affairs and Northern Development asserted control over political structures, land administration and management, community development and social and economic development of the Cree and Naskapi ‘Bands’.

19. The Government of Quebec considered the welfare of the Cree and Naskapi ‘Indians’ as the responsibility of the Government of Canada and hence provided little or no services and programs to the Cree and Naskapi peoples.

20. The DIAND controlled local governmental and administrative matters.

21. The Government of Canada and the Government of Quebec did not recognize aboriginal rights. The Constitution of Canada was silent on the issue of aboriginal and treaty rights.

22. Hence, Canada and Quebec did not recognize the aboriginal right of self-government. The federal government and provincial government held the view that Native people had no rights of government other than those the government chose to legislate or impose such as the regime under the Indian Act.

23. However, the Government of Canada acknowledged the legitimacy of ‘Indian’ land claims in light of the Calder,1973 decision by the Supreme Court of Canada on the issue of aboriginal title.

24. The obligations of Quebec to settle land and other claims of Native people when its boundaries were extended in 1898 and 1912 remained outstanding and unfulfilled.

25. The Government of Canada, as in the past, continued to insist upon and implement the policy of extinguishment of aboriginal rights, claims, title and interests in and to lands in any settlement, agreement or treaty respecting aboriginal land claims.

26. The Indian Act and the Department of Indian Affairs and Northern Development came to be regarded as instruments and agents of intrusion into Eeyou affairs.

27. In general, the courts had not yet clarified the fiduciary role and responsibility of the Crown.

28. Resource development such as hydro-electric development within the Cree traditional and historical territories became a major issue and concern.

In 1974, the Cree (Eeyou) of Eeyou Istchee established the Grand Council of the Crees (of Quebec) in order to protect their rights and interests in and to their historical and traditional territories and to promote their sense of collectively and identity and status as a people and a nation.

For the Cree and Naskapi people, there is no more basic principle in aboriginal history and relations than a people’s right to govern themselves and their territories in accordance with their traditions, values, goals and aspirations. In particular, mutual recognition of coexisting and self-governing peoples is basic in the continuing relationships with Canada and Quebec.

The negotiations, throughout the 1970’s, that led to the execution of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement were a rare opportunity for the Cree and Naskapi peoples, respectively, to achieve recognition of particular rights, guarantees and benefits for their distinct societies and way of life based on their central and special relationship with their historical and traditional territories. These negotiations and Agreements also provided a means for achieving, to some extent, their vision of self-government for their people, communities and lands but constrained by the existing political and legal environment of the 1970’s.

Consequently, on November 11, 1975, the James Bay and Northern Quebec Agreement (JBNQA) was signed by the Grand Council of the Crees (of Quebec), Northern Quebec Inuit Association, Government of Canada, Government of Quebec and certain crown corporations such as Hydro-Quebec.

The Northeastern Quebec Agreement (NEQA) was signed on January 31, 1978, by the Naskapis de Schefferville Band, Grand Council of the Crees (of Quebec), Northern Quebec Inuit Association, Government of Canada, Government of Quebec and certain crown corporations such as Hydro-Quebec.

The JBNQA and the NEQA, arose out what was, initially, opposition by the Cree of Eeyou Istchee to a major hydroelectric development project within their historical and traditional territories. Therefore, these Agreements or Treaties are also out-of-court settlements as well land claims agreements or treaties. As far as the Eeyouch ( Cree ) are concerned, the JBNQA was signed under duress: refusing hydro-electric development outright was never an option, construction of access roads to sites for hydro-electric development had begun in 1971, work on the first dam had begun in 1973, and a court injunction briefly halting construction on the hydro-electric development project had been overturned on appeal.

On May 4, 1977, Parliament passed the James Bay and Northern Quebec Native Claims Settlement Act which approves, gives effect to and declares valid the James Bay and Northern Quebec Agreement. Pursuant to this Act, the Governor in Council, later by order, approved, gave effect to and declared valid the Northeastern Quebec Agreement.

Furthermore, the National Assembly of Quebec enacted numerous statutes to give effect to particular sections of the JBNQA and the NEQA.

Section 9 (Local Government over Category IA Lands) of the JBNQA provides that "there shall be recommended to Parliament special legislation concerning local government for the James Bay Crees in Category IA lands allocated to them."

Section 7 (Local Government over Category IA-N Lands) of the NEQA provides for similar undertakings and obligations respecting local government for the Naskapis of Quebec in Category IA-N lands allocated to them.

Subsection 5.1.2 of section 5 of the JBNQA defines Category IA Lands as "lands set aside for the exclusive use and benefit of the respective James Bay Cree Bands, including the Great Whale River Band, under the administration, management and control of Canada, subject to the terms and provision of the Agreement."

In a similar way, subsection 5.1.2 of section 5 of the NEQA defines Category IA-N Lands as "lands set aside for the exclusive use and benefit of the Naskapi band, under the administration, management and control of Canada, subject to the terms and conditions of the present Agreement."

All of the Cree and Naskapi villages are (or in the case of Ouje-Bougoumou would be) situated within Category IA or Category IA-N Lands.

It is clear that the Cree and Naskapi peoples wanted to maintain a relationship but a redefined relationship with the Government of Canada on a basis of the letter, spirit and intent of the terms and provisions of the JBNQA and NEQA as treaties and the constitutional responsibilities of Canada.

Consequently, pursuant to Section 9 of the JBNQA and Section 7 of the NEQA and to establish a redefined relationship with Canada, the Cree and Naskapi peoples and the Government of Canada discussed the terms and provisions of the Cree-Naskapi (of Quebec) Act which was given royal assent on June 14, 1984.

The Cree-Naskapi (of Quebec) Act provides for "an orderly and efficient system of Cree and Naskapi local government, for the administration, management and control of Category IA and IA-N land by the Cree and Naskapi bands respectively, and for the protection of certain individual and collective rights" under the JBNQA and NEQA.

During the period of discussions for the terms and provisions of the Cree-Naskapi (of Quebec) Act (1975 to 1984), the following relocations and resettlement of the Cree and Naskapi peoples took place:

1. The Cree people of Waswanipi reassembled and constructed their present community of Waswanipi. Construction began in 1976.

2. The Cree people of Nemaska, pursuant to subsection 7.4 of section 7 of the JBNQA, relocated and resided in their new village of Nemaska along the shores of Champion Lake. Construction of the present community of Nemaska began in 1977.

3. The Cree people of Fort George moved from the island of Fort George to a new village - Chisasibi - on the mainland along the south shore of the Chisasibi ( La Grande ) River because of potential impacts of hydroelectric development on the island of Fort George and the desire of Hydro-Quebec to substantially modify its hydroelectric development project. (The JBNQA was subsequently amended in 1978 for this purpose.) The community of Chisasibi was constructed by the Eeyouch of Chisasibi.

4. Pursuant to section 20 of the NEQA, the Naskapi people accepted to relocate from Matimekosh Reserve and establish a new village named Kawawachikamach. Construction of the new village began in 1981 and was substantially completed by the end of 1984.

In the discussions for a new regime respecting local government and administration, management and control of community lands, the Eeyouch ( Cree and Naskapi ) rejected the legal regime of limited and supervised powers of local government with the veto powers of the Minister under the Indian Act. Consequently, the Cree-Naskapi (of Quebec) Act replaces the Indian Act which ceases to apply to the Cree bands and the Naskapi band, nor does it (Indian Act) apply to or in respect of Category IA or IA-N Lands except for the purpose of determining which of the Cree and Naskapi beneficiaries are "Indians" within the meaning of the Indian Act.

Therefore, in addition to building new communities and accelerating community development such as housing and infrastructures for new and existing communities, the Cree and Naskapi peoples were implementing a new regime for local government and administration and management of Category IA and IA-N Lands, respectively.

The situation of the Ouje-Bougoumou Cree is described in Chapter 5 of the present report. The Cree-Naskapi (of Quebec) Act and the Indian Act do not apply to the Ouje-Bougoumou Cree who consequently are not constituted as a separate and distinct band corporation or band under the Acts. Nevertheless, the Ouje-Bougoumou Cree exercise their right of self-government through the Ouje-Bougoumou Eenouch Nation - their traditional and historical unit of authority and governance.

Notwithstanding the legal regime of local government under the Cree-Naskapi (of Quebec) Act, the Eeyouch ( Cree and Naskapi people ) continue to incorporate their traditions and customs in the exercise and practice of local government.

To enable and provide for a system of Cree and Naskapi local government and for the administration, management and control of community lands by the Cree and Naskapi bands, respectively, the Cree-Naskapi (of Quebec) Act provides for the following principal and general matters:

1. Application of the Indian Act (The Indian Act does not apply)

2. Incorporation, Name and Membership of Cree and Naskapi Bands

3. Objects and Powers of Bands

4. Band Council and Council Meetings

5. By-laws Respecting Local Government

6. Procedure for Making By-laws and Resolutions

7. Challenges to By-laws or Resolutions

8. Band Elections - Elections By-laws

9. Calling of Elections

10. Contestation of Election Results

11. Meetings and Referenda of the Band

12. Financial Administration of Bands

13. Residence and Access Rights on Category IA or IA-N Land

14. Rights of Bands, Quebec and Others in Relation to Category IA and IA-N Land

15. Expropriation of Category IA or IA-N Land by Quebec

16. Disposition of Rights and Interests in Category IA or IA-N Land and Buildings

17. Cession by Bands

18. Land Registry System

19. Expropriation by Bands

20. Cree-Naskapi Commission

21. Successions

22. Policing

23. Offences

24. Administration of Justice

Clearly, the Cree-Naskapi (of Quebec) Act is a comprehensive and intricate statute for Cree and Naskapi local government and administration.

During the discussions respecting the terms and provisions of the Cree-Naskapi (of Quebec) Act, a historic milestone was achieved in the history of aboriginal relations when the Constitution of Canada was amended to affirm and recognize existing Aboriginal and Treaty rights.

Section 35 of the Constitution Act, 1982 reads:

1. The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

2. In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada.

3. For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

4. Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Consequently, as far as the Cree and Naskapi peoples are concerned, the Constitution Act, 1982, recognizes and affirms their "existing aboriginal and treaty rights." The treaty rights include rights contemplated by the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

Hence, the source, terms and provisions of the Cree-Naskapi (of Quebec) Act differs significantly, from the Indian Act in the following ways:

1. The Cree-Naskapi (of Quebec) Act flows from federal obligations and undertakings pursuant to the JBNQA and NEQA as treaties.

2. The treaty rights, including the provision of Cree and Naskapi local government and administration, control and management of lands, are recognized and affirmed by the Constitution Act, 1982.

3. The terms and provisions of the Cree-Naskapi (of Quebec) Act were discussed by the representatives of the Cree and Naskapi peoples and the Government of Canada.

4. The Act provides for more and increased powers and control by the Cree and Naskapi Band Corporations and local government over their communities, lands and local affairs.

5. Cree and Naskapi local governments are accountable to their people.

6. The authority of the Minister to approve, disallow or veto and the Governor in Council to approve or regulate is restricted and limited to certain matters.

7. It clarifies the capacity of band corporations to undertake and assume legal obligations and responsibilities.

8. An independent body - the Cree-Naskapi Commission - has a legal duty to report on the implementation of the Act.

9. It takes into account certain traditions and customs such as manner of adoption and successions.

10. The CNQA specifically permits the use of the Cree or Naskapi language in council meetings in addition to any other rights relating to the use of such languages. In addition, the report of the Cree-Naskapi Commission must be written in Cree and Naskapi as well as in English and French.

However, the source, terms and provisions of the Cree-Naskapi (of Quebec) Act (CNQA) are similar to the Indian Act in the following significant ways:

1. The Cree-Naskapi (of Quebec) Act is federal legislation ( albeit constitutionally entrenched ) which provides for and creates a legal regime for Cree and Naskapi local governments.

2. The CNQA creates new entities such as band corporations that have as an object to act as the local government authority - without a clear acknowledgement or recognition of the Eeyou nation - the historical and traditional unit of authority and power.

3. The Governor in Council retains authority to make regulations prescribing matters that by the CNQA are to be prescribed.

4. Under the Indian Act, the Minister of Indian Affairs has extensive discretionary authority to oversee and control local government. Under the CNQA, the Minister’s authority is far more limited and specific.

5. Certain by-laws of the Cree and Naskapi local governments require the approval of the Minister of Indian Affairs or the Governor in Council.

6. The CNQA does not acknowledge or recognize traditional forms of governance and does not fully take into account the application of traditional law and customs by the Cree and Naskapi people.

7. The CNQA does not provide for the development and implementation of a Cree and Naskapi system for the administration of justice.

8. The Indian Act is administered by the Minister of Indian Affairs and Northern Development. The Minister is responsible also for the administration of the CNQA.

9. The Land Registry Systems are under the control and supervision of the Minister.

The implementation of the Cree-Naskapi (of Quebec) Act has been difficult for all parties concerned. The numerous problems, issues and concerns of the Cree and Naskapi peoples and the Department of Indian Affairs and Northern Development are described in Chapters 5,6,7,8,9 and 10 of the present report.

It must be noted and stressed that the exercise and practice of Cree and Naskapi local government can only be understood if the JBNQA and NEQA and the Cree-Naskapi (of Quebec) Act are read and taken into account as a whole. After all, other sections of the JBNQA and NEQA refer to the jurisdiction and responsibilities of Cree and Naskapi local government and authorities.

The spirit and intent of these treaties must also be understood and respected to maintain and improve Cree and Naskapi and federal relations.

In light of recent decisions of the Supreme Court respecting the interpretation of treaties and the importance of oral historical accounts by Aboriginal peoples, it becomes necessary to gather oral and written accounts of the making and meaning of the modern day Treaties - the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. Most of the major participants who were involved in these historical processes are still living and could contribute in a significant manner that would promote and enable a better understanding of the spirit, intent and meaning of these Agreements or Treaties.

Furthermore, the Cree and Naskapi peoples have an inherent right of Eeyou self-government. The right of self-government inheres in the Cree and Naskapi nations. Consequently, it is through the nation that the Cree and Naskapi express their personal and collective autonomy. The Eeyou nation is the traditional and historical unit of self-governing power recognized in the treaty-making process and through nation-to-nation and government-to-government relationships.

In its Report of 1996, the Royal Commission on Aboriginal Peoples concluded "that the inherent right of self-government is one of the existing Aboriginal and Treaty rights" recognized and affirmed by section 35 of the Constitution Act, 1982.

Furthermore, the Government of Canada, on the basis of its policy statement of August, 1995 recognizes the inherent right of self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982.

Consequently, the interpretation and implementation of the JBNQA and NEQA and CNQA are partial expressions of the inherent right of Eeyou self-government. The implicit recognition of the inherent right of Eeyou self-government with viable ways and means for the proper implementation of self-government in the JBNQA and NEQA and enabling legislation such as the CNQA would constitute a full expression of the Cree and Naskapi right of local self-government.

However, the meaning, source, nature, scope and other related attributes of Eeyou self-government need to be determined and clarified in order to determine the path to local Eeyou government in accordance with the needs, aspirations and goals of the Eeyouch. These questions and related issues can be best addressed by the Eeyouch and perhaps through negotiations and subsequent agreement(s) with the Government of Canada (and the Government of Quebec).

As far as Eeyou self-government is presently exercised and practised, the Cree-Naskapi Commission has observed and concluded the following:

1. The principal and primary authority rests with the local government; but Eeyouch recognize that, in practice, powers, responsibilities and mandates are exercised by other Eeyou authorities such as the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority. Therefore, certain powers and duties are dispersed among several Cree and Naskapi institutions such as school boards and health boards as established in accordance with the terms and provisions of the James Bay and Northern Quebec Agreement and Northeastern Quebec Agreement.

2. The powers and authority of local Eeyou government arise from long-standing practices based on traditional law and customs and from other formal sources such as the James Bay and Northern Quebec Agreement, Northeastern Quebec Agreement and the Cree-Naskapi (of Quebec) Act.

3. In the transition from the restrictive regime of the Indian Act to the local government regime of the Cree-Naskapi (of Quebec) Act, Eeyouch took the opportunity to evolve and develop their political and administrative institutions at their pace in meeting the strenuous demands of adaptation required for an orderly and effective local government based also on the foundation of traditional elements of Eeyou governance and an existing and inherent right of Eeyou self-government.

4. The meaning and practice of local Eeyou government has evolved and has been redefined over the past sixteen (16) years. The Eeyouch are presently using their local governments to meet needs such as housing, economic development, traditional (hunting, fishing and cultural) pursuits, policing, administration of justice, education, health, delivery and administration of programs and services, community development, environmental protection and political representation to conduct government-to-government relations.

5. The effectiveness of local Eeyou governments depend on their ability to devote their resources and energies to improving the welfare of their constituents rather than continuously having to defend their rights and interests in an atmosphere of acrimony and confrontation. ( The Cree Nation of Eeyou Istchee has had to expend substantial resources and energies in the defense of Eeyou rights and interests, particularly, in respect to resource development such as water for hydroelectric purposes, forestry and the proper implementation of the James Bay and Northern Quebec Agreement.)

6. The Eeyouch and the Government of Canada must be engaged in an effective process of ‘making Eeyou rights work’ in the redefinition of Eeyou self-government.

7. Federal officials from the Department of Indian Affairs and Northern Development are noticeably absent in the Eeyou communities as Eeyou -federal relations are conducted directly with federal officials in Ottawa. Furthermore, Eeyouch , through their local governments and other Eeyou authorities, are exercising a substantial control over their affairs.

8. The full potential of local Eeyou government , with its dynamic and evolving nature, has not yet been realized and achieved by the Eeyouch because, as one principal constraint, the Cree-Naskapi (of Quebec) Act, since its enactment sixteen years ago, remains an inflexible, rigid and unchanging instrument.

9. Local Eeyou government must have full legitimacy, power and resources to be orderly and effective.

10. A redefined relationship between the Eeyou and federal governments must adequately affirm, recognize and provide for legitimacy, power and resources for orderly and effective local Eeyou government.

11. Sufficient resources and appropriate funding arrangements must be in place to enable the exercise of effective local Eeyou government.

12. The Federal-Eeyou relationship including its fiduciary nature needs to be redefined and clarified by the Eeyouch and the Government of Canada.

13. Eeyouch and Eeyou leadership envisage the enhancement and advancement of local Eeyou government on the basis of Eeyou rights, goals, needs and aspirations. In particular, the vision for local Eeyou self-government encompasses the following principles, elements and attributes:

1. Exercise of right of self-determination;

2. Full expression and exercise of inherent right of Eeyou self-government;

3. Enhancement of powers and authority;

4. Extension of territorial jurisdiction;

5. Redefinition of forms and institutions of governance;

6. Allocation of adequate resources;

7. Establishment of a firm economic base to promote self-sufficiency;

8. Clarification and recognition of legitimacy of Eeyou governance;

9. Redefinition and establishment of just relationships;

10. Establishment of Eeyou-oriented and community-based administration of justice;

11. Recognition and affirmation of traditional law and customs;

12. Application of Eeyou principles and values;

13. Conformity with the present state of aboriginal law; and

14. Empowerment of the Eeyouch.

The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement ("the agreements") were signed in 1975 and 1978 respectively. With the passage of the Constitution Act, 1982, rights of the Cree and Naskapi included in the agreements were declared to be "treaty rights" and were "recognized and affirmed" as part of the "supreme law of Canada". Since that time numerous decisions of the Supreme Court of Canada have filled out the meaning and application of these constitutional provisions and with them the force and effect of the agreements.

All of this may seem unremarkable from the point of view of someone looking at the state of Canadian Aboriginal law and policy in the year 2000. It represents however a dramatic change from the situation in 1975 and before.

From the late nineteenth century until well into the twentieth, the courts, although of the opinion that governments ought to honour the treaties, still considered them to be "mere promises of the Crown. " Without legislation to give specific effect to their provisions, they were basically unenforceable against an unwilling government. Most of the time governments interpreted treaties so narrowly that even their "mere promises" involved few or no real obligations for governments or rights for Aboriginal peoples.¹

Democracy, Minorities and Aboriginal Peoples

Canada is one of a few countries in which a very large majority of the population are either immigrants or descendants of immigrants. This has meant that our politics has usually involved a large component of inter-communal policy debate. This has been framed variously in terms of English/French relations, separate school issues, bilingualism, multiculturalism policy and immigration policy as well as human rights law. Overall there has often been a dynamic tension between the "melting pot" and "community of communities" concepts. This tension is frequently a good and positive part of our public consciousness. From time to time of course it also brings into focus rather more negative aspects of our politics. Expressed another way, Canada has always been faced with maintaining the delicate balance between respect for and legal protection of minorities on the one hand and the need for national unity and democratic decision-making on the other. The rule of law, the federal system and the Charter of Rights have all been (mainly successful) attempts to achieve this balance.

In this melange of political concepts and realities, the Aboriginal peoples of Canada have all too often had their rights ignored. As recently as 1969, the then Prime Minister, Pierre Trudeau was denying the existence of Aboriginal rights and musing that Treaty rights should be done away with.² To his credit the same Prime Minister later supported the inclusion in the Constitution of sections "recognizing and affirming Aboriginal and Treaty rights."

A continuing political challenge not only to Aboriginal peoples but to all Canadians is to be able and willing to make a distinction between the unique (sui generis) treaty and Aboriginal rights of Aboriginal peoples and the Charter and other rights of all Canadians. As Canadians all of us have the individual (and to some extent group) rights spelled out in the Charter and in other provisions of the Constitution. Existing Aboriginal rights are the rights which the Aboriginal peoples have had since time immemorial and which were never modified by treaties with France, Britain or Canada. Treaty rights are the result of treaties and agreements under which the Aboriginal signatories provided certain benefits such as land or resources to government in return for benefits such as economic development, health, education etc. These benefits are in addition to services provided to all Canadians and are a form of payment analogous perhaps to rent for the land and resources. Those who criticize treaty entitlement are frequently unaware of the enormous benefits which all Canada has received under the treaties. The Agreements in Northern Quebec for example have provided access to Canadians and Quebeckers to billions of dollars worth of forest and mineral products, land and hydro resources to name just a few. For all of these reasons Aboriginal treaties and agreements while providing some specific entitlements to Aboriginal peoples are the means by which other Canadians acquired access to virtually unlimited lands and resources.

The Rule of Law

A central value in Canadian legal theory is the rule of law, while there have been many definitions, perhaps Hilaire Barnett described it best:

"The essence of the rule of law is that of the sovereignty or supremacy of law over man. The rule of law insists that every person-irrespective of rank or status in society-be subject to the law. For the citizen, the rule of law is both prescriptive-dictating the conduct required by law-and protective of citizens-demanding that government acts according to the law."³

More recently and more authoritatively, the Supreme Court of Canada in 1998 in the Quebec Secession Reference case discussed the rule of law and the related concept of "constitutionalism." The court said, inter alia:

Simply put, the constitutionalism principle requires that all government action comply with the Constitution. The rule of law principle requires that all governments action must comply with the law, including the Constitution."⁴

The fact that the Constitutional amendments of 1982 entrenched Aboriginal and treaty rights has had an enormous significance. Section 35 reads as follows:

These two provisions made applicable by the principle of the rule of law have changed everything. The Supreme Court of Canada found in the Badger case that: Treaties ...create enforceable obligations…."⁷ This is a far cry indeed from the "mere promises" which the courts had identified in various judgements from Confederation until well into the twentieth century.

The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement are constitutionally recognized and affirmed and part of the "supreme law of Canada." The agreements have indeed created "enforceable obligations." Governments may find it inconvenient, costly or even impolitic to honour these obligations from time to time. This does not however permit them to default on those obligations. The Crown has been found to have a fiduciary relationship which requires it to honour its treaty obligations even when fiscal or political pressures might dictate otherwise."⁸

The Nature of Agreements and Treaties

Treaties and agreements can vary greatly from massive agreements such as were negotiated by the Cree and Naskapi and which contain hundreds of thousands of words detailing a wide range of rights and responsibilities to the simple military "pass" identified as a treaty in the Sioui case. The Supreme Court made some insightful comments in R.V. Sioui (1990) saying:

"...the word "treaty" is not a term of art, it merely identifies agreements in which the "word of the whiteman" is given and by which the latter made certain of the Indians’ cooperation."⁹

"...it must be remembered that a treaty is a solemn agreement between the Crown and the Indians, an agreement the nature of which is sacred."¹⁰

The Supreme Court has understood quite clearly the interplay of politics and law throughout the history of relations between governments and aboriginal peoples. Referring to the history of James Bay, the court said in the course of the Sparrow decision"

"In the same general period, the James Bay development by Quebec Hydro was originally initiated without regard to the rights of the Indians there, even though these were expressly protected by a constitutional instrument; see the Quebec Boundary Extension Act, 1912, S.C. 1912, c.45,"¹¹

There has been a good deal of concern expressed in some quarters that the courts are, at least in part, displacing governments in making Aboriginal Affairs policy. Part of the reason for this has been that for decades governments have not only made policy without consulting Aboriginal people, they have also often made those policies in direct contravention of the established treaty rights of First Nations. Given the limited political power of First Nations, many had no choice but to resort to the courts to protect their rights. This approach has impacted the policy making process, but all too frequently where the courts have given clear direction on how policy is to be made, government has complied with the decision in the specific case but failed to observe the principle established and failed to apply it in analogous circumstances. In Sparrow, the Supreme Court observed:

"It took numbers of judicial decisions and notably the Calder case in this Court (1973) to prompt a reassessment of the position being taken by government."¹²

The Court has of course never initiated any extra-judicial role for itself. On the contrary, it continues to urge governments and Aboriginal peoples to negotiate settlements themselves. In the case of the Cree and Naskapi of northern Quebec the agreements were negotiated and signed in 1975 and 1978 respectively. The difficulty has been with implementation of the agreements especially with the James Bay and Northern Quebec Agreement. This difficulty has been the common experience of the First Nations that signed the historical treaties during the 18th and 19th centuries. In the case of those early treaties, the actual wording of the written documents was prepared by government representatives using their own language as well as their own legal concepts. The result is that, in many cases the words of the written treaty do not always fully or accurately reflect the matters discussed or the terms actually agreed upon. The courts have developed rules of interpretation which compensate in large measure for this difficulty.

In the case of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement the language and legal concepts were common to the parties and well understood. The disputes have been primarily about interpretation, of obligations as well as about whether or not government was carrying out those obligations under the agreements (as well as under arrangements made pursuant to the agreements). These are seen by the communities as the main problems of the Agreements. It is especially frustrating because the Agreements were guaranteed first legislatively by the Northern Quebec Native Claims Settlement Act and later constitutionally by the Constitution Act, 1982 (s.35). Numerous court cases have been initiated by the Cree as the only method left to them to resolve these issues.

Prior to the amendment of the Constitution in 1982, treaty and Aboriginal rights were in a somewhat precarious legal position. They could be extinguished (according to the courts) by British and later Canadian (federal) legislation which clearly intended to achieve extinguishment. Insofar as the treaties were concerned, the courts traditionally regarded them as having only limited status. In 1897 the Judicial Committee of the Privy Council (at the time the final court of appeal for Canada) said:

"Their lordships have had no difficulty in coming to the conclusion that, under the treaties, the Indians obtained no right to their annuities, whether original or augmented, beyond a promise and an agreement, which was nothing more than a personal obligation by its governor, as representing the old province, that the latter should pay the annuities as and when they became due;" (Olmsted, Vol I, p. 401)¹³

This situation persisted with only minor variations until the 1980’s. As late as 1969 the Prime Minister was describing treaties as contracts and adding that perhaps they should not continue indefinitely. If treaty rights were accorded less legal protection than they deserved, Aboriginal rights were even worse off. In the same speech in 1969 the Prime Minister stated "...we say we won’t recognize aboriginal rights."¹⁴ As we know, Prime Minister Trudeau later changed his view (in part perhaps because of the reasoning put forward in the Calder case) and supported the adoption of Section 35 protecting Aboriginal rights.

The Crown Fiduciary Duty

At the time of the Guerin decision in 1985 the Supreme Court of Canada found that a sui generis fiduciary relationship existed which imposed a number of responsibilities on the Crown. In Guerin these responsibilities related to land although the principles established may extend to certain aspects of land claims settlements. In the Sparrow case decided in 1990, an additional fiduciary duty was recognised which requires government act in a trust-like rather than in an adversarial manner in relating to Aboriginal peoples. Other cases have expanded upon these concepts.

The Cree-Naskapi Commission believes that what exists today between the federal government and the Crees is an atmosphere which is far too adversarial. The James Bay Implementation Office is, to a far too great extent, more of a regular discretion-exercising, priority setting type of government agency and less of a body intended and empowered to implement the letter, spirit and intent of an Agreement with Section 35 treaty status. However much the government of the day may wish to change history and disregard provisions of an Agreement which it finds inconvenient, expensive or impolitic, it has a clear duty to act honourably and in a fiduciary capacity.

Examples of the difficulty are to be found in the controversy surrounding federal proposals on fire protection. Section 28. 1 1 .1 (c) of the James Bay and Northern Quebec Agreement provides that Canada and Québec in consultation with the Crees, "shall provide funding and technical assistance for: c) fire protection including the training of Crees, the purchase of equipment, and when necessary, the construction of facilities in each Cree community." This would mean to most reasonable people that Canada and Quebec accepted an on-going responsibility in the area of fire protection. The federal government however offered a one time payment on condition that the Crees free Canada from its obligation to assist with fire protection forever. This type of conduct which is incompatible with the duty of a fiduciary and the honour of the Crown. A treaty right which is "recognized and affirmed" by the Constitution should be respected by the government. Attempting to manipulate First Nations into "signing off" such rights under pressure of immediate needs is unconscionable. It also undermines the credibility of Minister Stewart and Minister Nault who have been publicly repudiating the "mistakes of the past" calling for a new relationship based on trust and stating a firm resolve to ensure that treaties are implemented. This continuing inconsistency between stated government policy and bureaucratic behaviour underlines the urgent need for policy accountability in the public sector. The Commissioners are optimistic that, if Minister Nault has the span and depth of policy management authority, the consistant support of his Cabinet colleagues, and a term of office of more than two or three years, he may well achieve his stated objective of implementing the treaties. If he lacks any one of these three conditions, he will face the same limitations of effectiveness as have his predecessors. The Financial Administration Act provides for accountability and control in financial management. A parallel Policy Accountability Act might ensure that civil servants are required to carry out policy established by Cabinet and Ministers. In short the agreements must be carried out according to the letter, spirit and intent of the provisions. An act of this sort would compensate in large measure for the de facto lack of real policy management powers of most ministers.

The history of the Ouje-Bougoumou Eenouch is an epic of a people’s territorial dispossession, a community’s continual displacement and relocation for administration and development reasons and a nation’s aspirations and struggles for a rightful place in their historical and traditional territory.

Historically and traditionally, the Ouje-Bougoumou Eenouch have always been a distinct group of Eenouch (Cree) who used and occupied their traditional territory comprised of about 1,000 square miles of lands within Eeyou Istchee (Cree homeland). The discovery and exploitation of mineral resources within their traditional and historical territory has led to the territorial dispossession and continual displacement and relocation of the Ouje-Bougoumou Eenouch.

The Ouje-Bougoumou Eenouch, as a distinct First Nation, are not a party to the James Bay and Northern Quebec Agreement (JBNQA). At the time of negotiations leading to the JBNQA, the Ouje-Bougoumou Eenouch, were registered as members of the Mistassini Band by the Department of Indian Affairs and Northern Development (DIAND) for administrative and economic reasons. Consequently, the Crees of Ouje-Bougoumou are beneficiaries of the James Bay and Northern Quebec Agreement. However, the JBNQA, does not provide for Category IA, IB and II lands for the Crees of Ouje-Bougoumou. As members of the Mistassini Band in 1974 and 1975, the entitlement of Category I and II lands for the Crees of Ouje-Bougoumou was calculated and included in the Category I and II lands of Mistassini in the JBNQA. Because the Ouje-Bougoumou Cree Nation are not a separate party to the JBNQA, the Agreement is silent on the issue of allocation of Category I and II lands, specifically, for the Crees of Ouje-Bougoumou. Consequently, the Cree-Naskapi (Of Quebec) Act does not apply to the Ouje-Bougoumou Cree Nation.

At the time of negotiations leading up to the JBNQA, the Cree and governmental parties acknowledged that the situation of the Crees of Ouje-Bougoumou (who numbered about 200 Ouje-Bougoumou Eenouch in 1974-75) would be addressed after the JBNQA came into force.

The Governments of Canada and Quebec initially denied such an acknowledgement; but the Ouje-Bougoumou Eenouch continued to press for negotiations. The Crees of Mistissini and the Grand Council of the Crees (of Quebec) acknowledged and recognized the status of the Crees of Ouje-Bougoumou as a separate and distinct group and therefore entitled to a separate land base and a new village.

In the 1980’s, the Government of Quebec came to the negotiation table. The Crees of Ouje-Bougoumou and the Government of Quebec signed the Ouje-Bougoumou Agreement on September 6, 1989. The main provisions of the Agreement deal with, among other things, funding for the construction of a new village and a socio-economic development fund and recognition by Quebec of the Crees of Ouje-Bougoumou as a distinct First Nation.

With respect to a land base for the Crees of Ouje-Bougoumou, the Ouje-Bougoumou Agreement with Quebec provides for the following:

4.1	The parties have as an objective that, eventually, after a settlement with the Government of Canada, the Crees of Ouje-Bougoumou will have 167 km² of Category I lands and 2,145 km² of Category II lands, subject to proper implementation with the Crees of Mistissini.
4.4	The parties acknowledge that the Ouje-Bougoumou Village shall eventually be situated on Category I A lands and that subject to an express agreement to this effect between the parties concerned, the provisions of the James Bay and Northern Quebec Agreement respecting Category I A lands will be applicable to the village.

The Crees of Ouje-Bougoumou pursued their goals and aspirations through negotiations with the Government of Canada. On December 22, 1990, the Crees of Quje-Bougoumou signed an Agreement in Principle with Canada. The Agreement in Principle focuses on the recognition of the Ouje-Bougoumou as a distinct First Nation and Canada’s contribution to the costs of construction of a new village. This Agreement in Principle paved the way for further negotiations with the Government of Canada.

The Ouje- Bougoumou/Canada Agreement was signed on May 22, 1992 by the Crees of Ouje-Bougoumou, Grand Council of the Crees (of Quebec)/Cree Regional Authority and the Government of Canada. The Ouje-Bougoumou/Canada Agreement also provides for the recognition by Canada of the Crees of Ouje-Bougoumou as a distinct First Nation and furthermore recognizes the need to provide the Crees of Ouje-Bougoumou with a land base.

In this respect, Canada and the Crees have undertaken to amend the JBNQA by way of a Complementary Agreement which would incorporate the Crees of Ouje-Bougoumou for all intents and purposes as full signatories of the JBNQA. Furthermore, Canada undertook in the Ouje-Bougoumou/Canada Agreement to recommend to Parliament legislation to amend the Cree-Naskapi (Of Quebec) Act in order to incorporate the Crees of Ouje-Bougoumou as the ninth James Bay Cree Band and to provide that the new Ouje-Bougoumou Band shall have Category IA lands.

The Ouje-Bougoumou/Canada Agreement and the Ouje-Bougoumou Agreement with Quebec contemplate a land ‘transfer’ from present portions of Cat