COVER, LAYOUT & DESIGN

The Gordon Creative Group

WRITERS

Richard Saunders, Chairman

Philip Awashish, Commissioner

LAYOUT AND DESIGN

The Gordon Creative Group

PRINTING

Gilmore Printing

TRANSLATION

Mr. George Guanish (Naskapi)

Mr. Joseph Guanish (Naskapi)

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

Mrs. Anna Blacksmith (Cree)

PHOTOGRAPHY

Mr. John Mameamskum

Edward Saunders Photography

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.creenaskapicommission.net)

The Commissioners acknowledge, with thanks, the Cree, Naskapi and Government of Canada representatives who made presentations at the Special Implementation Hearings which were held in preparation of this Report. Without their work and interest, this Report would not have been possible.

The Commissioners acknowledge with appreciation the work of Robert Epstein, long-time advisor on domestic and international issues to the Grand Council of the Crees (Eeyou Istchee), his tireless effort for the Cree Nation. His commitment, his profession-alism and his friendship are a gift to us all.

The Commissioners also acknowledge the outstanding work of staff members involved in the production of the 2002 Report. Brian Shawana, Gloria Dedam and Charlotte Kitchen each made important contributions and deserve a special "thank you".

The Royal Commission on Aboriginal Peoples (RCAP), almost uniquely, possessed both an uplifting vision and an earthy pragmatism as it canvassed the issues facing the Aboriginal Nations and their place in the Canadian Confederation. The idealism and vision of the grand notion are, after all, implicit in the subtle but pervasive sense that all Canadians have of who we are and where we are going together.

The James Bay and Northern Quebec Agreement (JBNQA) and the Northeastern Quebec Agreement (NEQA) are specific examples of RCAP’s grand notion in practice. What has taken place in the quarter century since the Agreements were signed is, in no small degree, a real measure of the extent to which the grand notion can work in reality. There are many successes to celebrate and there is much about which to be hopeful. Clearly the dream remains. Arguably it is in the early stages of being realized at the community level. The JBNQA and the NEQA provide for a certain sharing of the "lands". The Cree-Naskapi (of Quebec) Act facilitates, in specific but limited ways, some sharing of the "power". The recent Quebec-Cree Agreement is a significant step towards the sharing of "resources" (albeit that the Naskapi do not yet have any similar arrangement). So some large parts of RCAP’s "grand notion" are now in place. The true measure of whether or not RCAP’s vision can be fully realized will depend upon whether or not all of the partners are commited to pursuing it comprehensively and unrelentingly until it is finally realized.

There will be many temptations along the road to real fulfillment. Success in some of the major steps may lead some to assume that the job is done. Many may be tempted to turn their energies to other priorities. Some may lose their enthusiasm as conflicting demands for attention, political capital and resources press in upon them. But if the possibilities for failure seem formidable, the consequences of success are nothing less than the triumph of our best instincts as a society - the instinct that tells us that differences can be settled through respectful negotiation - that agreements among us can and must be honoured and that the values which motivate us as individuals can drive our public policy as well. If this process is a concrete example of the "test case" that RCAP speaks of, it must also become another example of the Canadian "can do it" approach that has made so many "test cases" throughout our history the successes that they have been.

One of the most essential elements in making the "grand notion" a reality is the development of functional working relationships between governments and First Nations. The unhappy state of those relationships throughout most of Canada’s history has been widely known and well documented. The present Minister of Indian Affairs and Northern Development, Honourable Robert Nault, has identified the problem in very clear terms. In a speech to the Assembly of First Nations Confederacy of Chiefs on December 9, 1999, he said:

Aboriginal people have had to go to court again and again to get even the most basic recognition of their rights, and governments have fought them every step of the way.²

The difficulties have been obvious to everyone and parties on all sides of the issues want a new relationship in which trust and respect will empower the parties to address the concerns productively and on a timely basis. The Supreme Court of Canada has, in a number of recent rulings, advocated negotiation as the appropriate alternative to litigation. A current example of the ability and willingness of the Crees to resolve major litigated disputes through negotiation is provided by the Quebec-Cree Agreement signed on February 7 of this year. The Government of Canada would be well advised to approach negotiations with the same level of serious commitment that Quebec has shown.

In Gathering Strength as well as in other statements, the federal government has acknowledged that its past approaches have not worked and has signalled a willingness to work in partnership with First Nations. This changed attitude at the ministerial level needs to be reflected in the actual day-to-day relationships in which departmental officials work with Aboriginal organizations, elected Chiefs and Councils and First Nations communities.

What does all of this mean as the Cree-Naskapi Commission reports on the implementation of the Cree-Naskapi (of Quebec) Act? It means, I believe, four basic things. First, the attitudes evident in Gathering Strength, the approach based upon respect and the replacement of paternalism with partnership must be made the operating principles of officials of the Department of Indian Affairs and Northern Development. Secondly, it means that real self-government, arising out of the inherent right of Aboriginal peoples, guaranteed by the Agreements and contemplated in the Cree-Naskapi (of Quebec) Act, can only be fully implemented and fairly evaluated when it has the autonomous fiscal capacity to exercise its powers and carry out its duties in keeping with the letter, spirit and intent of the Act. The economic dimensions of self-government are discussed more fully in Chapter 7 of this report. Thirdly, it means that the current outstanding issues which make the relationship problematic must be addressed and resolved in the near term. The lessons learned in the recent negotiations between the Crees and Quebec are useful here. Finally it also means that the special needs and priorities of the Naskapi Nation must be the subject of a focussed effort to ensure that meaningful self-government becomes a reality for them in the very near future.

END NOTES
1. Royal Commission on Aboriginal Peoples (RCAP), People to People, Nation to Nation, Ottawa, 1996 (highlights from the report of the RCAP).
2 Honourable Robert D. Nault, P.C., M.P., Minister of Indian Affairs and Northern Development, address to the AFN Confederacy of Chiefs, Ottawa,
December 9, 1999.

Section 9 (Local Government over Category IA 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."¹

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.

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

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 respectively, and for the protection of certain individual and collective rights under the said Agreements."²

The Cree-Naskapi Commission established by section 158 of the Cree-Naskapi (of Quebec) Act has a duty to "prepare biennial reports on the implementation of this Act"³ to the Minister who "shall cause the report to be laid before each House of Parliament."⁴

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 Cree and Naskapi local government. In fact, paragraph 21(j) of the Act stipulates that the objects of a band are "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."⁵ For this reason, the Cree-Naskapi Commission must also consider the implementation of the Agreements in so far as these Agreements contemplate the powers and duties of the Cree and Naskapi First Nations.

In addition, on February 7, 2002, the Cree Nation(s) of Eeyou Istchee and the Government of Quebec executed the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec. This new Agreement paves the way for a new era of a nation-to-nation relationship based on cooperation, partnership and mutual respect between the Crees and Quebec. Pursuant to this Agreement, the Crees assume a greater responsibility for their economic and community development within the context of an increased autonomy. Clearly, the local government(s) of the Cree with the Crees Nation and regional authorities will be exercising their duties and powers and assuming a greater responsibility for their economic and community development. In this regard, the pertinent sections of the James Bay and Northern Quebec Agreement have been amended by Complementary Agreements No. 13 and No. 14.

The Government of Canada has persistently taken the position that the Cree-Naskapi Commission has no mandate to report on the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

Furthermore, pursuant to section 10 of the James Bay and Northern Quebec Native Claims Settlement Act, the legal requirement of the Minister of Indian Affairs and Northern Development to submit an annual report to the House of Commons on the implementation of these Agreements had expired by the end of 1998. Consequently, the Cree and Naskapi Nations are faced with a complete absence of a reporting and monitoring system on the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

Notwithstanding the position of Canada, the Cree-Naskapi Commission is the sole and only remaining body that reports on some aspects on the implementation of the Agreements.

The Government of Canada agrees that the Cree-Naskapi Commission has a mandate to report on the implementation of the Cree-Naskapi (of Quebec) Act.

In response to a request from the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, the Minister of Indian Affairs and Northern Development has, by letter dated January 28, 2001, and addressed to the Chair of the said Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, responded to the 2000 Report of the Commission. This response of the Minister is dealt with in Chapter 9 of the present report.

Nevertheless, Canada has taken and continues to take the position that it (Canada) has no legal obligation to respond to the reports of the Cree-Naskapi Commission. In fact, the representative of the Government of Canada has stated to the Commission at its Special Implementation Hearings on February 27, 2002: "Well, in the Cree-Naskapi Act, there is no formal requirement for the Government of Canada to respond to the reports."⁶ Therefore, with the exception of the above-mentioned response, Canada has never made a formal written response to the findings and recommendations of the reports of the Cree-Naskapi Commission even for matters that Canada agrees is within the man-date of the Commission. Furthermore, an appropriate response which will advance and enhance Eeyou local government requires more than mere words. The present position and actions of Canada derogate from the intent and spirit of the Cree-Naskapi (of Quebec) Act as well as the Agreements. In addition, Canada’s position and action does not conform with the objectives of its own action plan - Gathering Strength - which was intended to renew partnerships and strengthen Aboriginal governance. There is promise of major positive changes in federal relations with the First Nations of Canada, but inertia continues in a manner that is detrimental to Eeyou local government.

The absence of formal written responses and the refusal to make a formal response with appropriate and timely measures to the report(s) of the Commission by the Government of Canada is disturbing to the Commission as well as to the Eeyou authorities who had made representations with the understanding and belief that they would be heard by the decision-makers who have the responsibilities to maintain the honour of Canada by responding in a timely and positive manner to their needs, concerns and problems.

Consequently, the Eeyou leadership does not consider the Cree-Naskapi Commission and its reports to be effective as the findings and recommendations of the Commission have had no positive influence on Canada’s policies and legislation respecting the advancement and strengthening of Eeyou governance.

The Cree and Naskapi Nations have responded to the reports of the Commission through resolutions of their general assemblies, resolutions of Councils and letters to the Commission.

The Cree-Naskapi Commission has now been, legally, in existence since December 1, 1984, or for about eighteen (18) years.

The present report constitutes the eighth biennial report to the Minister pursuant to section 165(1) and in accordance with section 171(1) of the Cree-Naskapi (of Quebec) Act.

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

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 recommen-dations of the 2000 Report.

Consequently, the findings and recommendations as presented in the present report of the Commission are primarily based on the representations made to the Commission. The tone of the report is determined by what the Commissioners understand is being said by the representatives of the Cree and Naskapi First Nations as well as the representatives of the Government of Canada and the Department of Indian Affairs and Northern Development.

END NOTES
1 Cree-Naskapi (of Quebec) Act, S.C. 1984, C. 46.
2 Ibid.
3 Ibid.
4 Ibid.
5 Ibid.
6 Statement of Mr. Jim McCarthy, Director of the James Bay Implementation Office and representative of the Government of Canada, from the transcripts of his testimony at the Special Implementation Hearings of the Cree-Naskapi Commission held in Ottawa, Ontario, on February 27, 2002.

1. LANDS TRANSFER BETWEEN MISTISSINI AND OUJE-BOUGOUMOU

In the 2000 Report of the Cree-Naskapi Commission, a brief history of the Ouje-Bougoumou Eenouch was outlined on their quest and pursuit for a rightful place in their historical and traditional territory. In the said report, the Commission stated that as of March 2000, the Cree Nation of Ouje-Bougoumou has not received official allocation of their Category I and II lands with a regime similar to those of the other Cree communities.

The Ouje-Bougoumou/Canada Agreement of May 22, 1992, and the Ouje-Bougoumou Agreement with Quebec contemplate a land "transfer" from existing portions of Category I and II lands of Mistissini to constitute the land base for the Crees of Ouje-Bougoumou.

Under the Ouje-Bougoumou/Canada Agreement, Canada and the Crees have under-taken to amend the James Bay and Northern Quebec Agreement (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.

On February 7, 2002, the Crees of Quebec and the Government of Quebec executed the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec (New Relationship Agreement).

The Crees and Quebec agreed to allow the definitive settlement of the transfer of lands between Mistissini and Ouje-Bougoumou and of the "Abel Bosum" proceedings in regard to Quebec in conformity with the framework set out in Schedule G of the New Relationship Agreement.

Under Schedule G, the parties have agreed to the following respecting the transfer of lands:

1. To define a specific process and schedule which will result in the allocation of Category IA, IB and II lands to Ouje-Bougoumou, involving retrocession of equivalent quanta of lands from Mistissini. Cree-Naskapi Commission Report 2002
2. To develop a schedule and time frame for the conclusion of a Complementary Agreement to the James Bay and Northern Quebec Agreement which will have as its objective the creation of Ouje-Bougoumou as the ninth Cree Band.
3. To sever from the Mistissini Category I and II lands those lands originally allocated on the basis of the Ouje-Bougoumou Cree population then registered as members of the Mistassini Band as of November 11, 1975.
4. To modify the descriptions of the Category I and II lands of the community of Mistissini in order to respect the allocations of Category I and II lands of Mistissini and Ouje-Bougoumou on the basis of their respective populations at the time of the signing of the James Bay and Northern Quebec Agreement and to permit the establishment of Category I and II lands for the community of Ouje-Bougoumou.
5. To reallocate portions of Category I and II lands of Mistissini to Ouje-Bougoumou and these portions comprise of the following: 100 km 2 of Category IA lands, 67 km 2 of Category IB lands and 2,145 km 2 of Category II lands.
6. To comply and conform with the applicable laws and within the process accepted by the parties for the original allocation of Category I and II lands in respect to all subtractions and allocations of Category I and II lands. In this regard, the provisions of Part IX - Cessions By Bands - of the Cree-Naskapi (of Quebec) Act apply to Mistissini Category IA Lands.
7. To submit, prior to the survey of Category I lands for Mistissini and Ouje-Bougoumou, plans specifying survey work to be undertaken for approval by these communities. In addition, Quebec will not ask from Mistissini and Ouje-Bougoumou the payment of surveying fees for Category I lands, or the expenses related to the allocation of Category II lands.

In addition, Quebec has made the following undertakings for the transfer of lands:

1. To apply protective measures, until March 31, 2005, to lands to be designated as Category I and II lands for Ouje-Bougoumou.
2. To eliminate, upon execution of the Final Agreement, the 200-foot corridor along the shores of the lakes and rivers adjacent to Category I lands of Mistissini which is currently retained by Quebec. ( The consequent adjustment of about 33 km 2 representing the area covered by the 200-foot corridor will be done in accordance with the present Agreement.)
3. To ensure that the 200-foot corridor will not apply on the lands of Ouje-Bougoumou.

However, Mistissini and Ouje-Bougoumou agree that there will be access to the shore lands surrounding Category I lands for safety and security purposes.

The parties agree to take the appropriate steps to make the necessary amendments to the JBNQA through a Complementary Agreement.

The parties undertake to make their best efforts to see that the Final Agreement and the Complementary Agreement be signed simultaneously.

The parties undertake to make their best efforts to obtain the involvement of the Government of Canada as a signatory to the Complementary Agreement pursuant to this Agreement, in as timely a manner as possible.

The process resulting in the cession of portions of Category IA lands by Mistissini and allocation of Category of IA lands to Ouje-Bougoumou as well as the creation of Ouje-Bougoumou as the ninth Cree Band and the conclusions of the Final Agreement and the Complementary Agreement are not possible without the active and direct participation and involvement of the Government of Canada.

The Complementary Agreement to the JBNQA is intended to amend the pertinent sections of the JBNQA to ensure conformity with the terms and provisions of the Final Agreement. In particular, the Complementary Agreement shall incorporate the Ouje-bougoumou Eenouch into the JBNQA with their own Category I and II lands and as the ninth Cree Band.

In its 2000 report, the Commission made the following recommendation:

7. The Government of Canada, the Grand Council of the Crees (Eeyou Istchee) and Ouje-Bougoumou Eenouch engage in a meaningful process for the full and proper implementation of the Ouje-Bougoumou/Canada Agreement signed on May 22, 1992. In this regard, the parties concerned should conclude a Complementary Agreement, through a treaty-making process, that would formally incorporate the Ouje-Bougoumou Cree Nation into the James Bay and Northern Quebec Agreement. While the Commission recognizes that the participation and consent of the Government of Quebec is essential, Canada must exercise its fiduciary responsibilities and ensure the protection of the rights and interests of the Ouje-Bougoumou Eenouch in this process.

The response of the Department of Indian Affairs and Northern Development dated January 28, 2002, to this particular recommendation of the Commission states as follows:

This recommendation is considered to be beyond the Commission’s mandate: it does not deal with local government among the Crees, but rather with efforts to incorporate, in the JBNQA, a group which Canada and Quebec have long accepted to be a distinct Cree community.

In this regard, Canada is fully engaged in this process to formally incorporate the Ouje-Bougoumou Cree Nation into the JBNQA, and is fully exercising its fiduciary responsibilities to the Ouje-Bougoumou Eenouch. The required activities include transferring lands from Mistissini to Ouje-Bougoumou, concluding a complementary agreement to the JBNQA, and asking Parliament to amend the CNA to formally recognize Ouje-Bougoumou as a distinct band. The process is extremely complex and hinges on agreement and cooperation between Ouje-Bougoumou and the Mistissini Band, as well as Quebec. To date, the parties have not achieved the necessary level of agreement for the process to reach conclusion. Once this process is complete, Canada will have met all of its obligations under the 1992 Ouje-Bougoumou/Canada Agreement.

It is not clear to the Commission as to how "Canada is fully engaged in this process" as the Cree Nation of Ouje-Bougoumou has been calling for the full, direct and active participation of Canada in the process for a full and complete implementation of the Ouje-Bougoumou/Canada Agreement of May 22, 1992. However, it is clear that the Government of Quebec, Mistissini and Ouje-Bougoumou have achieved a level of agreement for Canada to fully, directly and actively participate in the process and fulfill its obligations to the Ouje-Bougoumou Eenouch under the Ouje-Bougoumou/Canada Agreement of 1992.

2.BLOCK D

Paragraph 10.1 of Chapter 10 - Other Provisions - of the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec states as follows:

"Quebec and the Crees confirm the settlement of their differences concerning the Chisasibi "Block D" lands. The terms of this settlement are set out in Schedule D hereof."

The parties have agreed that Quebec shall transfer the administration, management and control of the lands designated as Block D, including the air strip, to the Government of Canada for the exclusive use and benefit of the Cree Nation of Chisasibi subject to certain terms and conditions of Schedule D of the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec. The parties have also agreed and Quebec undertakes to ensure that the southern and western boundaries of the lands designated as Block D shall be contiguous to and about the present perimeter of Category IA lands. Furthermore, the parties will use their best efforts to ensure that the final transfer by Quebec is completed no later than September 30, 2002.

In its 2000 Report, the Commission recommended that "the Government of Canada assist the Cree Nation of Chisasibi in the resolution of the status of Block D and in the allocation of appropriate funds for the proper operation and maintenance of the airstrip."

The Commission affirms this recommendation as Quebec and the Crees have confirmed the settlement of their differences concerning the Chisasibi Block D lands.

3.Nemaska First Nation

a. Past Presentations

Chief George Wapachee of the Nemaska First Nation stated that the end results of their past presentations to the Commission enabled "the federal government to be in a position to say ‘we are dealing with it.’ This form of delaying tactic becomes all too familiar."¹

b. Housing

The Nemaska First Nation suffers from a continuing housing crisis with an increasing backlog of needs for the community. Last year, the community was allocated only two units from the housing "package" allocated to the Cree region. The regional allocation for the Crees has decreased steadily for the past several years.² For the Nemaska First Nation, the trend of allocating a decreasing or small number of housing units will never meet the needs and the present backlog of housing.

c. Accountability

According to Chief George Wapachee, the Department of Indian Affairs and Northern Development has analyzed the results of the 1999-2000 funding agreement and the financial status of the Nemaska First Nation. After a clarification over the total amount of deficit which was initially higher, the Nemaska First Nation questions the method of analysis used by the Department. Furthermore, an amount of $1,787 for the disabled "will soon be recovered as we [the Department] cannot accept the deferral of these funds."³

The Department of Indian Affairs has found the Nemaska First Nation to be financially sound. However, according to the Nemaska First Nation, the tactics of the Department threaten such a status.

Chief George Wapachee concludes that as far as the local government is concerned "we are accountable to our members and we take all the opportunity to inform them how we spend their funds, which they approve and that is the obligation we have."⁴

4.Cree Nation of Mistissini

According to Chief John Longchap, the issues and concerns of the Cree Nation of Mistissini raised in its past presentations remain outstanding and are supported in the reports of the Cree-Naskapi Commission. It is still the hope of the Cree Nation of Mistissini that concrete measures will result from their past presentations.5

5.Crees of the Waskaganish First Nation

a. Finance and Administration

In February 2002, the Crees of the Waskaganish First Nation began to implement a financial recovery plan to respond to a financial crisis and reorganize their financial administration and management. In this regard, the financial institutions and the Department of Indian Affairs and Northern Development are satisfied with the progress of the Crees of Waskaganish.

However, this progress has been achieved without new assistance from Canada and recent actions taken by the Department of Indian Affairs and Northern Development have seriously jeopardized the recovery plan of Waskaganish.⁶

b. Housing Ministerial Guarantees

From 1998 to 2002, Waskaganish constructed houses with the cooperation of the Canada Mortgage Housing Corporation (CMHC). The construction was to be funded through capital grants and mortgages secured from CMHC and guaranteed by the Minister of Indian Affairs and Northern Development. In total, approximately $2 million of loans are due to Waskaganish and are essential to the success of the financial recovery plan.⁷

In early 2002, Waskaganish was informed that the ministerial guarantees would not be granted until Waskaganish paid amounts that are presently in dispute with the Department of Indian Affairs and Northern Development for the provision of electricity to the community. Waskaganish has responded by agreeing to negotiate a settlement to this dispute. This response has resulted in the release of the guarantees for past projects but the guarantees for the future and planned projects have been withheld. This action of the Department and its position respecting the payment of costs for the provision of electricity to the community has resulted in the cessation of all future housing construction in the community.⁸

According to the Crees of the Waskaganish First Nation, under the present circumstances, the Department of Indian Affairs and Northern Development is not negotiating in good faith.

c. Electricity in Waskaganish

Under the James Bay and Northern Quebec Agreement, Canada is committed to the provision of electricity to the community. In this regard, the Department of Indian Affairs and Northern Development has provided electricity locally by diesel generation. With the growth of the community, the current facilities are inadequate to meet the needs of the community.

New capital projects are planned for construction and consequently will require the provision of electricity that the present facilities cannot generate.

The Crees of the Waskaganish First Nation are promised connection to the provincial grid within five (5) years under the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec. However, the Crees of Waskaganish cannot wait five (5) years for the provision of electricity that is adequate for the present needs of the community. The provision of electricity presently remains an obligation by Canada and Quebec under the James Bay and Northern Quebec Agreement.⁹

d. Housing

As with other Cree communities, Waskaganish is facing a housing crisis but, in this case, the crisis is further aggravated by the refusal of the Department of Indian Affairs and Northern Development to grant ministerial guarantees by associating it with the demand for payment by Waskaganish for the provision of electricity.

The current housing program is inadequate to meet the present and future needs of the community.¹⁰

e. Training

All Cree communities are continually faced with new needs and demands in fiscal and administrative responsibilities for effective local government. Consequently, there is an increasing need for further training and capacity development. Canada must respond to these needs by expanding and creating training opportunities.¹¹

6.Whapmagoostui First Nation

As far as the Whapmagoostui First Nation is concerned, effective self-governance can be realized "only when the Government of Canada begins to act in full recognition and respect of the aspirations and needs of the Eeyouch" on the exercise of local government as envisaged in the James Bay and Northern Quebec Agreement (JBNQA) and the Cree-Naskapi (of Quebec) Act.¹²

The Commission has expounded on the aspirations and needs of the Eeyouch on the exercise of local government as envisaged in the JBNQA and the Cree-Naskapi (of Quebec) Act in its past reports and particularly in its 2000 Report entitled Eeyou Tapaytahchesouwin (Cree and Naskapi Governance). It remains to be seen whether Canada will respond in a timely manner with positive measures to the aspirations and needs of Eeyouch.

On March 5, 2002, at the Special Implementation Hearings of the Commission held in Waskaganish, Eeyou Istchee, the Whapmagoostui First Nation raised the following issues and concerns:

a. Town Plan and Community Expansion

With an increasing population and the structure of its land base, concerns and questions are raised as to how and where houses can be constructed for the people of Whapmagoostui.

In consideration of the structure of its land base, the town plan will require changes in order to meet the needs of the community. Over the past few summers, the community has commenced the construction of a short gravel road giving access to the northeast area of the lands of the community. This short road has enabled some people to build cabins away from the community. In order to realize a northeastward expansion of its community, the Whapmagoostui First Nation requires adequate funding for an adequate road, installation of power lines and moveable housing units.

b. Lack of Quorum at General Band Meetings

Since the enactment of the Cree-Naskapi (of Quebec) Act, the present quorum requirements for general band meetings remain a major barrier for effective decision-making for local government. Amendments to the said Act are required to remove these serious impediments for effective decision-making by the people.

c. Federal Obligations on Local Self-Government and Related Matters

The recent Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec will enhance and advance the exercise of local government particularly for matters relating to community and economic development.

The Whapmagoostui First Nation urges the Government of Canada to enter into a new nation-to-nation relationship with the Cree Nation in a manner that properly fulfils and respects the commitments and obligations of Canada to the Cree under the James Bay and Northern Quebec Agreement and advance the exercise of Cree local government consistent with the spirit and intent of the Agreement and the Cree-Naskapi (of Quebec) Act.

7.Cree Nation of Wemindji

a. Implementation Mechanism for the Recommendations of the Commission

The Cree Nation of Wemindji acknowledges that the recommendations of the Commission reflect the will and aspiration of the communities respecting the recognition and exercise of the inherent right of Eeyou self-government. Consequently, the Cree Nation of Wemindji has expressed concern about the lack of implementation for the recommendations of the Commission in a manner that recognizes, enhances and enables the present state, exercise and potential of Eeyou local government.¹³

b. Administration of Justice

The circuit court comes to the communities four to five times a year. Sometimes, six months to a year will have elapsed before the alleged offence is dealt with by the court. The administration of justice should proceed in a timely manner if the rule of law is to have any impact in the communities.

The Cree Nation of Wemindji recommends that the judicial advisory committee con-templated by paragraph 18.0.37 of section 18 of the James Bay and Northern Quebec Agreement address the need for a timely administration of the judiciary process for the Cree communities.

8.Washaw Sibi Eeyou

The Washaw Sibi Eeyou are a group of about two hundred (200) Crees affiliated with the Eeyou of Waskaganish and the Eenou of Waswanipi but do not reside in the Cree communities contemplated by the James Bay and Northern Quebec Agreement.

The mission of the Washaw Sibi Eeyou is to be recognized as members of the Cree Nation and to be fully integrated as beneficiaries of the James Bay and Northern Quebec Agreement and other related agreements.¹⁴

To this end, the Washaw Sibi Eeyou are determined to attain status as a community of Eeyou and receive benefits and exercise rights under the James Bay and Northern Quebec Agreement and related agreements.

In its 2000 Report, the Cree-Naskapi Commission made the following recommendation:

"30. The Department of Indian Affairs and Northern Development (DIAND) and Washaw Sibi Eeyou initiate a meaningful process with appropriate meas-ures to ensure the future and welfare of the Washaw Sibi Eeyou as envisaged and determined by the said Eeyouch. In particular, funds for the completion of the plan of action and study on the feasibility of various options for the future of the Washaw Sibi Associated must be provided by the DIAND."¹⁵

The response of the Department of Indian Affairs and Northern Development to this recommendation can be summarized as follows:

"The Cree-Naskapi (of Quebec) Act was intended to provide for local government in the eight Cree communities and does not imply any obligations to provide services to individuals who have chosen to live outside these communities. The situation of the Washaw Sibi Eeyou is therefore considered to be beyond the explicit legislated mandate of the Commission."

"Washaw Sibi Eeyou receive some benefits under the James Bay and Northern Quebec Agreement. However, local government rights and provisions under section 9 of the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act apply only to Category 1A lands, where the specified Cree communities are located. While the Department has in the past provided some funding to Washaw Sibi Eeyou for research purposes, there is no obligation under either the James Bay and Northern Quebec Agreement or the Cree-Naskapi (of Quebec) Act to provide further financial support."¹⁶

END NOTES
1 Letter of Chief George Wapachee addressed to Mr. Richard Saunders, Chairman, Cree-Naskapi Commission, dated April 19, 2002, p. 1.
2 Ibid., p. 2.
3 Letter of Mr. Jim McCarthy, Director, James Bay Implementation Office, Indian and Northern Affairs, Canada, addressed to the Chief and Council of the Nemaska First Nation, dated December 21, 2001, p. 2.
4 Letter of Chief George Wapachee addressed to Mr. Richard Saunders, Chairman, Cree-Naskapi Commission, dated April 19, 2002, p. 3.
5 Letter of Chief John Longchap addressed to Mr. Richard Saunders, Chairman, Cree-Naskapi Commission, dated March 13, 2002.
6 Brief prepared for the Cree-Naskapi Commission, Ottawa, April 2002, by Chief Robert Weistche, Crees of the Waskaganish First Nation, p. 3.
7 Ibid., p. 4.
8 Ibid., p. 5.
9 Ibid., p. 5.
10 Ibid., p. 6.
11 Ibid., p. 6.
12 Submission to the Cree-Naskapi Commission by Chief David Masty, Whapmagoostui First Nation, March 5 2002, p. 2.
13 Submission of the Cree Nation of Wemindji to the Cree-Naskapi Commission, April 18, 2002, p. 1.
14 Grant Proposal for an Anthropological Study – Washaw Sibi Eeyou Association, July 19, 2001, p. 2.
15 Report of the Cree-Naskapi Commission 2000, p. 112.
16 Letter of Mr. Robert D. Nault, P.C., M.P., Minister of Indian Affairs and Northern Development, addressed to Mr. Raymond Bonin, M.P., Chair, Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, dated January 28, 2002, with enclosure Response to the 2000 Biennial Report of the Cree-Naskapi Commission, p. 18.

On March 13, 2002, Chief Sam Bosum and representatives of the Ouje-Bougoumou Eenouch made a presentation to the Cree-Naskapi Commission at its Special Implementation Hearings held in Ouje-Bougoumou, Eeyou Istchee. Rachel Bush, youngest member of the Council of the Ouje-Bougoumou Eenouch, made the presentation to the Commission.

In its presentation, the Ouje-Bougoumou Eenouch are concerned with the following issues:

1. Implementation of the Ouje-Bougoumou/Canada Agreement of May 22, 1992¹

The Ouje-Bougoumou Eenouch remain very concerned about the lack of a full imple-mentation of the Ouje-Bougoumou/Canada Agreement of May 22, 1992. Amongst other obligations and commitments of Canada, the said Agreement provides for Operations and Maintenance funding on an ongoing basis and an approach for continued availability of funding for capital projects.

The Department of Indian Affairs and Northern Development (DIAND) maintains its position that it is not required to reimburse the Cree Regional Authority for the funding, in the amount of $1.7 million dollars, allotted to the Ouje-Bougoumou Eenouch for capital projects after 1994-95. The present position of the DIAND, according to the Ouje-Bougoumou Eenouch, contradicts clear obligations of Canada under the Ouje-Bougoumou/Canada Agreement which clearly stipulates that the funding available to the other Cree communities will not decrease as a result of funding which would be made available to Ouje-Bougoumou.

In its 2000 Report, the Commission had made the following recommendation:

"8. The Department of Indian Affairs and Northern Development (DIAND), Grand Council of the Crees ( Eeyou Istchee ) and the Ouje-Bougoumou Cree Nation review the funding arrangements for capital projects of Ouje-Bougoumou to ensure compliance with the Ouje-Bougoumou/Canada Agreement. This review should include an understanding and resolution on the outstanding claim of $1.7 million received by the Ouje-Bougoumou Cree Nation for capital projects after the 1994-95 fiscal year and apparently owed to the Cree Nation of Eeyou Istchee by the DIAND."

In a letter from Mr. Robert Nault, Minister of the Department of Indian Affairs and Northern Development, dated January 28, 2002, and addressed to Mr. Raymond Bonin, Chair of the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, the Department has responded to this recommendation as follows:

"As with recommendation No. 7, this recommendation is considered to be beyond the Commission’s mandate. The Government of Canada is awaiting the receipt of a capital needs assessment from Ouje-Bougoumou upon which to base capital negotiations, as required by the 1992 Ouje-Bougoumou/ Canada Agreement. The fact that the Cree Regional Authority may have expended $1.7 million on Ouje-Bougoumou capital projects does not create a funding obligation for Canada."

In regards to Operations and Maintenance (O&M) funding, the Ouje-Bougoumou Eenouch continue to have serious concerns about the adjustments to the funding levels and the basis on which they are made. The current approach for adjusting annual transfers is inadequate in addressing the needs of the communities.

The Cree-Naskapi Commission recommends a review of the O&M funding formula by the federal and Cree parties with a view to incorporating a financial capacity to address new needs not contemplated in 1984.

In addition, the Ouje-Bougoumou Eenouch reminded "the Commission that there is a payment amount outstanding in relation to the funds transferred to Ouje-Bougoumou under the Ouje-Bougoumou/Canada Agreement which reflects the late payment of agreed-upon amounts and the loss of earnings associated with that amount. This remains an outstanding claim for an amount of $2,952,000."²

2. Complementary Agreement to the James Bay and Northern Quebec Agreement 3

For the Ouje-Bougoumou Eenouch, the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec (New Relationship

Agreement) has begun to set a useful standard for the implementation of the major sections of the James Bay and Northern Quebec Agreement which for so long has not been properly implemented. (The New Relationship Agreement does not contemplate and does not affect the obligations of Canada towards the Crees stipulated, among others, in the James Bay and Northern Quebec Agreement.)

Schedule G - Settlement Framework Related to the Transfer of Lands Between Mistissini and Ouje-Bougoumou - of the New Relationship Agreement constitutes an agreement-in- principle for the resolution of outstanding issues for Mistissini and Ouje-Bougoumou arising from the transfer of lands and the proposed new land base for the Ouje-Bougoumou Eenouch. This agreement-in-principle is essential for the Ouje-Bougoumou Eenouch. More particularly, this agreement-in-principle contemplates negotiations which hopefully will lead to a Complementary Agreement to the James Bay and Northern Quebec Agreement (JBNQA) as a major part of the process of formally incorporating the Ouje-Bougoumou Cree Nation into the JBNQA. Such a Complementary Agreement cannot be achieved without the full and active involvement and participation of the Government of Canada.

According to the Ouje-Bougoumou Eenouch, Canada has maintained that the only role of the federal government is to "facilitate" the conclusion of a Complementary Agreement. Canada’s full involvement and active participation in the negotiation of a Complementary Agreement is essential and necessary due to the following:

1. Canada is a party and a signatory to the James Bay and Northern Quebec Agreement and the Ouje-Bougoumou/Canada Agreement.
2. There are matters which will be negotiated as part of the finalization of a Complementary Agreement which fall clearly within the jurisdiction of the Government of Canada.
3. Canada has a fiduciary responsibility with respect to the Crees of Ouje-Bougoumou (as well as to Mistissini).

Consequently, Canada’s role must be much more substantive than playing a facilitative role in the negotiation and finalization of a Complementary Agreement to the JBNQA.

The Ouje-Bougoumou Eenouch urge Canada to take Quebec’s lead in fulfilling its obligations to the Cree Nation in a way which addresses the spirit and intent of the James Bay and Northern Quebec Agreement and which sets a reasonable standard for the structuring of the nation-to-nation relationship between the Cree people and Canada.

End Notes
1 Presentation by Ouje-Bougoumou at a Special Implementation Hearing of the Cree-Naskapi Commission held in Ouje-Bougoumou, Eeyou Istchee, on March 13, 2002, p. 3.
2 Ibid., p. 6.
3 Ibid., p. 7.

On February 26, 2002, Chief Philip Einish and representatives of the Naskapi Nation of Kawawachikamach presented a brief to the Commission at its Special Implementation Hearings held in Ottawa, Ontario.

In its brief, the Eeyouch of Kawawachikamach raised the following principal matters and concerns:

1. Success Stories

The Naskapi Nation has completed construction and commenced the operation of the Naskapi Recreation Facility with funding from Quebec and Canada.

In addition, the Naskapi Nation has renovated and extended its administration office which is presently operational. The costs of the renovation and extension were funded by Quebec and Canada.

Furthermore, RAMtelecom, a telecommunications company, installed a broadband Satellite Internet System that provides the Naskapi Nation with Internet access at a high speed. The capital cost to purchase and install the system was shared by the Naskapi Nation, the Naskapi Local Management Board and the Department of Indian Affairs and Northern Development.

2. Amendments to the Cree-Naskapi (of Quebec) Act

The Naskapi Nation expressed a preference to reach an agreement with the James Bay Crees on amendments to the Cree-Naskapi (of Quebec) Act and thereafter make a joint proposal to the Minister of Indian Affairs and Northern Development.

The Naskapi Nation desires amendments to the Act on the following matters: permitting enforcement officers to issue tickets rather than summonses under the Criminal Code to offenders of Naskapi Nation by-laws and enabling of Council to conduct business with-out calling a meeting in certain circumstances.

In February 2000, without consulting the Naskapi Nation and the Cree Nation of Eeyou Istchee, the Government of Canada tabled Bill C-23 (The Modernization of Benefits and

Obligations Act) to amend certain federal statutes, including the Cree-Naskapi (of Quebec) Act, in order to extend benefits and obligations to same sex couples.

The Naskapi Nation as well as the Cree Nation of Eeyou Istchee strongly objected to the proposed amendment to the Cree-Naskapi (of Quebec) Act without the consent of the Naskapi and Cree Nations. The Naskapi Nation considers the Cree-Naskapi (of Quebec) Act as an integral part of treaty rights flowing from section 7 of the Northeastern Quebec Agreement. Consequently, Canada cannot unilaterally derogate from treaty rights that are constitutionally recognized and protected.

Notwithstanding the strong objections of the Naskapi and Cree Nations, Bill C-23 was adopted by both Houses of Parliament. Furthermore, Bill C-23 has received Royal Assent. However, the amendment to the Cree-Naskapi (of Quebec) Act has come into force due to the lack of an agreement so far between the Government of Canada and the Naskapi Nation and the Cree Nation of Eeyou Istchee on the regulations defining "consorts." The Naskapi Nation maintains that the amendment, if proclaimed to be in force, would be in conflict with the Northeastern Quebec Agreement.

The Commission in its 2000 Report made the following recommendation:

"34. The Government of Canada recognizes the principle that the Cree-Naskapi (of Quebec) Act cannot be unilaterally amended by the federal government. Any amendment to the terms and provisions of the Act requires, through negotiation, the agreement and consent of the Cree and/or Naskapi parties."

In a letter, dated January 28, 2002, from Mr. Robert D. Nault, Minister of Indian Affairs and Northern Development, addressed to Mr. Raymond Bonin, Chair of the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, the Department made the following response to this particular recommendation of the Commission:

"As provided under section 9.0.2 of the JBNQA, and section 7.2 of the NEQA, the CNA was drafted through discussions between Canada, the Crees, and the Naskapis. The Government of Canada agrees that any amendments to the CNA should follow the same approach."

3. Nunavik Commission

On November 5, 1999, the Nunavik Commission was established with the mandate to study and make recommendations on the creation of a Nunavik Government. The efforts of the Naskapi Nation to seek representation on the Nunavik Commission were unsuccessful. Nevertheless, the Naskapi Nation met the Nunavik Commission to state their position respecting Naskapi historical and traditional territory and the inherent right of Naskapi governance.

The report of the Nunavik Commission entitled Amiqqaaluta. Let Us Share. Mapping the Road Toward a Government for Nunavik was released at the end of March 2001. The Naskapi Nation of Kawawachikamach has appealed, by letters to Minister Nault, for the protection of Naskapi rights and interests in the negotiations and possible establishment of a Nunavik Government.

In the opinion of the Naskapi Nation, the Department of Indian Affairs and Northern Development has been derelict in its duty to protect Naskapi rights and interests. Therefore, the Naskapi Nation of Kawawachikamach has requested the Cree-Naskapi Commission to intervene and ensure the protection of Naskapi rights and interests.

4. Policing

In the past year, the Naskapi Nation has succeeded in making arrangements with Canada and Quebec for an infrastructure grant to cover the cost of constructing a new police station in Kawawachikamach.

However, for the fiscal year of 2000-2001, the Naskapi Nation had a shortfall of thirty-two thousand dollars ($32,000) for their police operations budget due to a cost-sharing dispute between Canada and Quebec.

The cost-sharing dispute continued into the 2001-2002 fiscal year.

In January 2002, Quebec undertook to pay the short-fall while maintaining its position that Canada pay its share in compliance with paragraph 13.2.1 of the Northeastern Quebec Agreement.

The position of the Naskapi Nation is that under paragraph 13.2.1 of the Northeastern Quebec Agreement, Canada and Quebec had contracted a treaty obligation to fund the Naskapi Police, and that their inability to reach an agreement on cost-sharing should in no way affect their treaty obligations to the Naskapi Nation of Kawawachikamach.

5. Electricity Supply

The electricity used at Kawawachikamach comes from the Menihek Generating Station and associated transmission and distribution infrastructure. The Naskapi Nation owns the transmission line from Dolly Ridge to Kawawachikamach and the associated distri-bution system. It purchases its electricity in bulk from the Schefferville Power Company, a subsidiary of the Iron Ore Company (of Canada).

The Iron Ore Company (of Canada) which had built the power facilities decided to sell these assets in 1992. The Naskapi Nation jointly with the Nation Innu Matimekusk/ Lac-John submitted a bid to purchase these power facilities. This bid was accepted. The Iron Ore Company (of Canada) then became aware that its water rights for the Menihek Generating Station had lapsed.

Consequently, despite negotiations and other initiatives, the future of the power facilities assets remains unresolved.

Furthermore, despite its threat to cease operating the power facilities assets on November 1, 2001, the Iron Ore Company (of Canada) is still operating them under contract with the Naskapi Nation’s subsidiary Kawawachikamach Energy Services Inc.

From the outset, the Department of Indian Affairs and Northern Development has played a vital role in ensuring the supply of electricity to Kawawachikamach. However, it presently denies that it has any responsibility whatsoever for supplying electricity to Kawawachikamach.

The Naskapi Nation of Kawawachikamach has requested the intervention of the Cree-Naskapi Commission in ensuring that the Minister of Indian Affairs and Northern Development and his officials exercise their responsibilities for supplying electricity to Kawawachikamach.

6. Housing

Housing is the single largest asset owned by the Naskapi Nation of Kawawachikamach.

The Naskapi Nation has the following challenges to meet their housing needs:

1. Declining funding; and
2. Backlog caused by overcrowding and active requests for housing.

The Naskapi Nation of Kawawachikamach has requested the intervention of the Cree-Naskapi Commission to ensure that the responsible federal authorities provide adequate funding to meet the current and future housing needs of the Naskapi Nation of Kawawachikamach.

7. Northern Ecosystem Initiative

The Northern Ecosystem Initiative was initiated by Environment Canada in 1989 as a Canada-wide initiative to support research on certain environmental priorities of the North.

The on-going five-year programme of the Northern Ecosystem Initiative will terminate at the end of March 2003. Environment Canada has not yet announced whether the Northern Ecosystem Initiative will be extended.

The budget under the first phase of the Northern Ecosystem Initiative was insufficient to respond to all the needs for essential research in Northern Quebec ecosystems.

The Naskapi Nation of Kawawachikamach has requested that the Cree-Naskapi Commission write to Environment Canada to urge that the Northern Ecosystem Initiative be extended for a further five years and that its budget be at least doubled.

8. Mid-Canada Line - Clean-up

The Mid-Canada Line, an intermediate early warning system for defence, was one of three radar networks scattered across Canada’s northern frontier.

It became operational in January 1958, and was shut down permanently in April 1965.

In April 1998, the Kativik Regional Government signed an agreement with Quebec and Canada to clean up the forty-two (42) sites located in Northern Quebec. The Naskapis participated in the clean-up of the seventeen (17) sites that are located in the Naskapi territory.

Subject to the approval of Environment Quebec of the clean-up work done in 2001, the clean-up of the sites in the Naskapi territory is complete.

For each site that is cleaned to a satisfactory standard, the Government of Quebec issues a release in favour of the Government of Canada to the effect that the clean-up was done in accordance with agreed criteria and standards and that the current state of the sites is acceptable. The Naskapi Nation is concerned that these releases might be invoked by Canada in the future to refuse to undertake further work.

The Naskapi Nation of Kawawachikamach has asked that the Cree-Naskapi Commission review the text of the releases with a view to determining whether they are prejudicial to the long-term interests of the Naskapi Nation.

Since its conclusion and signature in 1975, the proper implementation of the meaning, intent and spirit of the James Bay and Northern Quebec Agreement (JBNQA) has remained a contentious and outstanding issue between the Crees and the Government of Canada and the Government of Quebec as well as with Hydro-Quebec. As a matter of fact, the Crees have initiated or participated in about thirty (30) court proceedings expending millions of dollars for the enforcement of Cree rights. Most of these court proceedings pertain to the alleged failure or refusal of the governments to respect and honour their commitments and obligations to the Crees under the James Bay and Northern Quebec Agreement. Some of these commitments and obligations of the governments to the Crees under the JBNQA relate to health, education, economic development, community development, resource development, and environmental protection. Resource development includes hydroelectric and commercial forestry devel-opment in Eeyou Istchee. In the past, negotiations to settle matters such as commercial forestry have failed. However, agreements have been achieved on some implementation issues relating to education, health, Cree policing services and local government. Such agreements often need to be reviewed and renewed by the Crees and the government concerned. Some of these issues remain outstanding and consequently need to be resolved and settled by the parties concerned.

On October 23, 2001, Quebec and Eeyou of Eeyou Istchee executed an Agreement In Principle (AIP) which promises to strengthen political, economic and social relations between Quebec and Eeyou of Eeyou Istchee. Under the AIP, the parties agreed "to set an exchange table made up of representatives of both parties and responsible for clarify-ing the principles established, agreeing on the modalities of application and drawing up for signature a draft final agreement, including its schedules, by the end of 2001."

On February 7, 2002, in Waskaganish, Eeyou Istchee, the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and the Government of Quebec executed the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec.

The said Agreement refers to separate agreements between the Grand Council of the Crees (Eeyou Istchee) and Hydro-Quebec. These separate agreements are referred to as the Nadoshtin Agreement, Boumhounan Agreement and the Cree Employment Agreement (Eeyou Apatisiiwin Niskomon).

In addition, the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority, Hydro-Quebec and the James Bay Energy Corporation have concluded the Mercury Agreement (2001) which supersedes and replaces the former Mercury Agreement (1986).

The Agreement of February 7, 2002, also contemplates Complementary Agreements No. 13 and No. 14 amending pertinent sections of the James Bay and Northern Quebec Agreement in order to ensure compliance and conformity with the terms and provisions of the new Agreement with Quebec.

The Agreement has the following purposes:

1. Establishment of a new nation-to-nation relationship;
2. Assumption of greater responsibility by the Cree Nation for its economic and community development;
3. Establishment of means to allow the parties to work together in regard to the development of mining, forestry and hydroelectric resources in the Territory;
4. Settlement, with discharges, of the provisions of the James Bay and Northern Quebec Agreement pertaining to the economic and community development of the Crees;
5. Settlement or the withdrawal of certain legal proceedings;
6. Consent of the Crees for the carrying out of the Eastmain 1-A/Rupert Project; and
7. Facilitation of the construction of the EM 1 Project.

The Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec came into force on the date of its signature by the Parties and shall end March 31, 2052.

Quebec and Eeyou of Eeyou Istchee enter into a nation-to-nation agreement which promises to strengthen the political, economic and social relations between Quebec and the Crees.

The Agreement marks an important stage in a new nation-to-nation relationship based on openness, mutual respect and a greater responsibility of the Cree Nation for its own development within the context of a greater autonomy.

The Agreement recognizes an important right of Eeyou to benefit from resource development within Eeyou Istchee. For the first time in Quebec, the right of Aboriginal People to benefit from resource development within their own lands is recognized.

For the period of 50 years commencing on April 1, 2002, the Crees assume the obligations of Quebec concerning economic and community development under certain provisions of the James Bay and Northern Quebec Agreement in accordance with the terms and provisions of Chapter 6 of the Agreement Concerning the New Relationship Between the Government of Quebec and the Crees of Quebec.

Furthermore, for a period of 50 years commencing on April 1, 2002, Quebec shall pay to the Crees an annual amount so that the Crees may assume the obligations of Quebec under certain provisions of the James Bay and Northern Quebec Agreement respecting economic and community development. The annual payments from Quebec shall be indexed in accordance with a formula that reflects the evolution of the value of hydro-electric production, mining exploitation production and forestry harvest production in Eeyou Istchee.

The assumption of these obligations by Eeyou for Cree community and economic development with the annual payments from Quebec will definitely advance Eeyou Governance and will particularly contribute to effective local government in the Cree communities.

The new Cree-Quebec Agreement does not affect the obligations of Canada towards the Crees including those stipulated in the James Bay and Northern Quebec Agreement.

The new Agreement between Quebec and the Crees of Eeyou Istchee sets out a bold new way of implementing certain provisions of the James Bay and Northern Quebec Agreement of 1975 and which for so long have not been properly implemented by the Government of Canada and the Government of Quebec. This new Agreement is an example of how the treaty implementation process ought to work for Aboriginal Peoples across Canada.

As far as the Cree Nation of Quebec is concerned, "it is this type of initiative that the Government of Canada will have to undertake with the Grand Council if it is to meet its obligations [to the Crees] under the 1975 Agreement."¹

It remains to be seen if the Government of Canada intends to follow the lead of Quebec in fulfilling its obligations to Eeyou of Eeyou Istchee in a manner which addresses the spirit and intent of the James Bay and Northern Quebec Agreement and which sets an acceptable standard of the nation-to-nation relationship between Eeyou and Canada.²

END NOTES
1 Submission of the Grand Council of the Crees (Eeyou Istchee) to the Cree-Naskapi Commission, March 22, 2002, Montreal, Quebec, p. 8-9.
2 Presentation by Ouje-Bougoumou at a Special Implementation Hearing of the Cree-Naskapi Commission, March 13, 2002, Ouje-Bougoumou, Eeyou Istchee, p. 13.

In the 1998 Report of the Cree-Naskapi Commission, Chapter 12 dealt at length with the issue of the Commission’s mandate. The question was addressed only briefly in the 2000 Report, however recent events make it appropriate to consider the matter once again and to offer a recommendation.

The mandate of the Cree-Naskapi Commission is outlined in the Cree-Naskapi (of Quebec) Act, sections 151 to 172. Two specific aspects of the mandate can be found in section 165(1) which states:

"165.(1) The Commission shall

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

(b) except as provided by subsections (2) and (3), investigate any representation submitted to it relating to the implementation of this Act, including representations relating to the exercise or non-exercise of a power under this Act and the performance or non-performance of a duty under this Act."¹

From the time of the first report of the Cree-Naskapi Commission in 1986 to the present there has been an on-going and occasionally sharp difference of opinion between the Department of Indian Affairs and Northern Development and the Commission concerning the mandate of the Commission. Specifically the Department has asserted that the Commission has no mandate to consider issues arising out of the James Bay and Northern Quebec Agreement or the Northeastern Quebec Agreement. More generally the Department has objected to the Commission commenting on any self-government or Aboriginal issues, except as they are explicitly enumerated in the Cree-Naskapi (of Quebec) Act. The most recent expression of this view is contained in a submission by the department to the Standing Committee dated January 28, 2002 which says:

"...we point out that much of the content of the Commission’s 2000 Biennial Report, and a substantial proportion of the Report’s recommendations, venture well beyond the legislated mandate of the Commission"²

The position of the Commission is that this is an unrealistically narrow interpretation of their mandate as well as a misunderstanding of the Act itself. We base this position upon four considerations:

1. the express provisions of the Cree-Naskapi (of Quebec) Act, and the application of generally accepted rules of interpretation,
2. the findings of the Commission of Inquiry into the Cree-Naskapi Commission (the "Cowie Report"),
3. the express views of the community including those of its members who negotiated the terms of the Cree-Naskapi (of Quebec) Act,
4. the lack of existing effective alternatives.

In view of the significance and duration of the differences of opinion between the Department and the Commission, it is worthwhile to elaborate on these four considerations.

1. The Act

First of all the Act itself acknowledges that it flows from the Agreements. The preamble reads as follows:

"Whereas the Government of Canada is obligated, pursuant to section 9 of the James Bay and Northern Quebec Agreement and section 7 of the Northeastern Quebec Agreement, to recommend to Parliament special leg-islation to provide for an orderly and efficient system of Cree and Naskapi local government, for the administration, management and control of Category IA and IA-N lands by the Cree and Naskapi bands respectively and for the protection of certain individual and collective rights under the said Agreements;" (emphasis added)³

Clearly (in our view) Parliament expressly intended that the Act would, among other things, provide for the protection of rights under the Agreements. Surely a Commission responsible for reporting on the implementation of the Act should not turn a deaf ear to those who appear at its hearings, and assert their rights under the Agreements have not been protected by the operation of the Act which was explicitly intended to protect those rights.

While the preamble helps define the overall purpose of the Act, specific sections focus its meaning even more precisely.

Section 21 outlines the objects of bands and describes their powers and duties.

"21 the objects of a band are

(j) to exercise the powers and carry out the duties conferred or imposed on the band or on its predecessor Indian Act band by any Act of Parliament or regulations made thereunder, and by the Agreements." (emphasis added)⁴

Once again it is the view of the Commission that the Act is clear. If someone (including a band itself) alleges that a band does not or cannot exercise its power or carry out its duties under the Agreements, this constitutes an issue under section 21(j) which the Commission has a duty both to consider and to report upon. Similarly if a band failed or was unable to exercise its powers and carry out its duties under any other Act of Parliament, the Commission ought to consider the matter when asked to do so.

It can of course be argued that this is an overly broad interpretation of the powers and duties of the Commission. The Supreme Court of Canada has in recent years outlined how both treaties (including the Agreements) as well as legislation are to be interpreted. This process began in earnest with the Nowegijick decision in 1983 in which the court said:

"...treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians." (emphasis added)⁵

Since that time the Supreme Court has elaborated the basic rule. It is not helpful to assert that narrow, legalistic interpretations of "statutes relating to Indians" are to be preferred to the approach spelled out by the Supreme Court of Canada.

2. The "Cowie Report"

The Cree-Naskapi (of Quebec) Act provides in section 172(1) as follows:

"172(1) Within six months after the fifth anniversary of the coming into force of this Part, the Governor in Council shall appoint a person or persons to inquire into the powers, duties and operation of the Commission."⁶

In 1990 the government appointed a three member Commission of Inquiry into the Cree-Naskapi Commission. This inquiry resulted in a comprehensive report ("the Cowie Report") which was submitted on April 4, 1991. Among its specific recommendations was one that the Cree-Naskapi Commission should report on issues arising out of the Agreements. The government of the day simply ignored this recommendation (as well as the others) made by an independent, legislatively mandated commission which it had itself appointed.

3. Community Views

Community views as expressed by individuals as well as by elected leaders consistently reflect the notion that the Commission has a duty to consider whether, and the extent to which, the implementation of the Act has lived up to its purpose of implementing many aspects of the Agreements. Included among those appearing before the Commission and expressing this point of view are many of those who were personally involved in negotiating the provisions of the Act. Their understanding is relevant and important. Justice McLachlin, writing in the Marshall decision in 1999 said:

"The words of a treaty must be given the sense which they would naturally have held for the parties at the time...".⁷

Arguably the negotiation of legislation explicitly required by a treaty also sheds light on what was intended. The Cree party to those negotiations has made its understanding clear. Speaking about the implementation of section 28 of the JBNQA, Dr. Ted Moses, Grand Chief of the Grand Council of the Crees (Eeyou Istchee), stated to the Commission at a hearing on March 22, 2002:

"I submit to you that in respect to the implementation of that section of the Agreement by Canada and the Cree Communities, the Cree-Naskapi Commission already had the task of oversight of its implementation. However, in as much as the Department of Indian and Northern Affairs refuses to recognize this role, [it] undermines the Commission’s role and mandate in regard to community and economic development and thereby weakens the Cree’s ability to achieve a just implementation of Canada’s obligations in this regard."⁸

4. Lack of Alternatives

The implementation of the JBNQA and the NEQA are important public functions. That this importance was recognized is reflected by the fact that under the provisions of section 10 of the James Bay Northern Quebec Native Claims Settlement Act the Minister of Indian Affairs was required to report to the House of Commons annually until 1998 on the implementation of the Agreements. (Similar measures applied to the Northeastern Quebec Agreement.) Since 1998 there has been no mechanism for reporting. Because the communities continue to have issues about implementation, but no formal process to air them, they have increasingly demanded that the Commission address them. The Director of the James Bay Implementation Office acknowledged that the Commission was not in a position to ignore these demands during his testimony at the Commission’s Special Implementation Hearings in February 2000. (This unfortunately was an exception to the Department’s usual position.)

The difference of opinion between the Department and the Commission about the latter’s mandate is significant and has persisted for the past 16 years. The Commissioners believe that a good working relationship is important and that, whenever possible, honest differences should be resolved.

With that in mind, the Commission recommends that a three-member working group be established to negotiate joint recommendations regarding the mandate of the Cree-Naskapi Commission. This group should include one member appointed by each of the Cree and Naskapi, the Department and the Commission. The working group should be given up to six months to complete its task.

END NOTES
1 Cree Naskapi (of Quebec) Act, section 165(1)(a).
2 Response to the 2000 Biennial Report of the Cree-Naskapi Commission (an attachment to a letter from Hon. Robert Nault, P.C., M.P., to Mr. Raymond Bonin, M.P., Chair of the Standing Committee on Aboriginal Affairs, dated January 28, 2002).
3 Cree-Naskapi (of Quebec) Act, preamble.
4 Ibid., section 21(j).
5 Supreme Court of Canada, Nowegijick, 1983.
6 Op. cit., section 172.(1).
7 Supreme Court of Canada, Marshall, 1999.
8 Grand Council of the Crees (Eeyou Istchee); presentation by Dr. Ted Moses, Grand Chief at Special Implementation Hearings held on March 22, 2002.

"Consistent with the recommendations of the Royal Commission on Aboriginal Peoples, the federal government has recognized the inherent right of self-government for Aboriginal people as an existing right within section 35 of the Constitution Act, 1982."¹

This statement in the government’s 1997 document, Gathering Strength, signaled the intention to change direction in which successive governments had been moving for some time. In fact, after the enactment of the Cree-Naskapi (of Quebec) Act, the government regularly referred to it as "the first modern-day self-government legislation in Canada." Indeed the Cree-Naskapi (of Quebec) Act provides an important set of legislative and jurisdictional tools for the exercise of self-government by the Cree and Naskapi Nations. Elsewhere in this report the Commission argues that the Act is only a part of the overall package of jurisdictional authorities within the "inherent right" concept. At this point however it is important to consider the extent to which the effective exercise of the self-government powers under the Act is dependent upon factors outside of the provisions of the Act itself. Clearly the economic viability of the Cree and Naskapi communities and the consequent fiscal capacity of the Cree and Naskapi governments will determine the practical ability of Cree and Naskapi Nations to exercise their powers and carry out their duties under the Act. Additionally, true self-government will depend upon the degree to which fiscal resources are adequate and within the control of the Crees and the Naskapis.

The Statement of Understanding signed on August 9, 1984, by the then Minister, Hon. Douglas Frith, the then Grand Chief, Billy Diamond and the then Naskapi Chief, Joe Guanish, was intended to provide a stable funding base for local Cree and Naskapi governments. The document said in its "objectives" section:

"Suitable local government funding presupposes that adequate financial resources are provided to ensure stable autonomous local governments, the safeguarding of community infrastructures, the delivery of essential services, the management of Category IA and IA-N lands and effective implementation of the Cree-Naskapi Act." (emphasis added)²

Subsequent to the public signing of this document, the Department of Indian Affairs on October 23, 1986, unilaterally repudiated a substantial portion of it. Officials had apparently recommended that Minister Frith not sign it in the first place. He had knowingly decided to reject their advice and sign it anyway. It would appear that the officials simply waited for a new Minister and convinced him to disavow his predecessor’s signature. This episode makes it clear that what the Department calls "stable autonomous local governments" are not possible if they are financially dependent upon agreements with government - agreements which governments feel free to repudiate in whole or in part whenever it suits them.

Self-government, if it is to be effective and sustainable, needs "own-source revenues" as a major source of its fiscal requirements. Self-government of any people requires that the fiscal mechanisms and capacity to fund the central functions of governance be under the control of that people. Other jurisdictions may have financial obligations based upon treaty provisions, constitutional responsibilities or contractual undertakings. The simple fact however is that true freedom to exercise any measure of independent jurisdiction requires "own-source revenues" adequate to cover at least the core costs of governance. A government whose central revenues can be withheld, reduced or made conditional at the discretion of others is no government at all. It is, at best, a semi-autonomous administrative agency. The Cree Nation and the Naskapi Nation are not and cannot be mere administrative agencies of Canada or of Quebec.

It is a good thing that the Cree-Naskapi (of Quebec) Act provides a long list of powers and duties for the Cree and Naskapi governments. It is a hollow jurisdiction however if the exercise of each and every power is entirely dependent upon whether or not and under what conditions another level of government is prepared to provide the funding.

"If self-government is accompanied by fair redistribution of lands and resources - as we argue it must be - Aboriginal governments can become largely self-financing in the long term through greater access to what are called ‘own-source revenues.’" (RCAP)³

The vast traditional territories of the Cree and Naskapi Nations provided an economic base for the people and their governments for tens of thousands of years. The traditional economy has evolved dramatically in recent years as have the economies of the rest of the world. The point is simply this: the traditional territory has in the past, and must in the future, be available to support the Cree and Naskapi societies and their governments. Means must be found for direct access for these governments to the fiscal potential of the territory. The spirit and intent of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement are based upon a sharing of the resources and resource potential of the territory. The spirit of partnership is at the heart of Canada’s stated intentions as outlined in Gathering Strength. Partnership and sharing must involve direct access by the Crees and the Naskapis to a fair share of resources and to the fiscal potential of those resources. The benefits of the partnership cannot be acquired and dis-tributed unilaterally by one partner at its own sole discretion. Meaningful self-government will depend to a very great extent upon the degree to which the Cree and Naskapi govern-ments have direct access to appropriate fiscal resources. That Canada understands this, at least in theory, is evident from Gathering Strength which says:

"Jobs and wealth creation are the underpinnings of prosperous, self-reliant Aboriginal communities and of meaningful self-government."⁴

"For many First Nations, land and natural resources offer the most important opportunity for creating jobs and economic development. The government will work with First Nations, provinces and territories to strengthen the co-management process, and to provide increased access to land and resources."⁵

The recent agreement between Quebec and the Crees puts into practice some of what the federal government has been talking about. It constitutes a positive step in the direction of recognizing that the lands and resources of the traditional territory should and will provide some of the fiscal requirements of Cree self-government free from the year-to-year interposition of the preferences and priorities of other governments.

While some very substantial long-term "own-source revenue" is made possible by this remarkable agreement between the Crees and Quebec, the need remains for a similar formal resolution of outstanding issues with the federal government. A somewhat parallel situation in relation to resources in the traditional territory still under federal jurisdiction exists with respect to the James Bay "offshore." The traditional access to and use of the offshore islands, the intervening waters and seabed by the Crees has historically been a source of "own-source revenues." The areas in question are part of Nunavut rather than Quebec. The federal government should fast-track discussions aimed at resolving this issue in line with its avowed intention of working with First Nations and territories to "strengthen the co-management process, and to provide increased access to land and resources." A settlement of this matter should have as one of its objectives the enhance-ment of Cree "own-source revenue" generating potential.

The Quebec/Cree Agreement (as well as any potential Canada/Cree Offshore Agreement) are only the first steps. It would be a great mistake to assume that such agreements will fully satisfy the need to address the fiscal dimensions of self-government. The obligations

contemplated in the original James Bay and Northern Quebec Agreement and in the Northeastern Quebec Agreement must be fully implemented. The fiscal resources con-templated in those agreements cannot continue to be the subject of annual budgetary discretion on the part of other levels of government. Additionally the full range of eco-nomic development inputs suggested by Gathering Strength along with regular federal and provincial programs must be brought to bear on building local economies in the territory. Finally the Naskapi Nation must be afforded the same opportunities to access the resources of its traditional territory and the fiscal potential of that territory.

Each of these and other steps to facilitate and stimulate economic development will enhance the "own-source revenue" generating capacity of the Cree and Naskapi Nations. Each will be a further step towards fuller and more meaningful self-government. Each will enable a fuller and more meaningful exercise of powers and discharge of duties and responsibilities by the Cree and Naskapi governments under the provisions of the Cree-Naskapi (of Quebec) Act.

---

END NOTES
1 Canada (Minister of Indian Affairs and Northern Development), Gathering Strength, Canada’s Aboriginal Action Plan, Ottawa, 1997.
2 "Statement of Understanding of Principal Points Agreed To by the Cree-Naskapi (of Quebec) Working Group," (signed by Minister Frith, Grand Chief Diamond, Chief Guanish, on August 9, 1984, at Eastmain, Quebec). Reproduced in full as Appendix A of the 1986 Report of the Cree-Naskapi Commission.
3 Royal Commission on Aboriginal Peoples (RCAP), People to People, Nation to Nation, Ottawa, 1996 (highlights from the report of the RCAP).
4 Gathering Strength, p. 28.
5 Ibid., p. 30.

The Duty to Report

One of the most important duties which the Cree-Naskapi (of Quebec) Act imposes on the Cree-Naskapi Commission is the duty to report every second year on the implementation of the Act. These implementation reports must be submitted to the Minister of Indian Affairs and Northern Development who is in turn required to table them in the House of Commons and the Senate.

The duty to report, especially when prescribed in legislation, is more than a formality. It is a substantive responsibility. It requires that the Commission, to the greatest extent practical within its resources, canvass the issues relating to implementation, analyse these and prepare recommendations for both the Minister, to whom the reports are initially submitted, and the House of Commons and Senate with whom they are subsequently tabled. With this in mind, the Commission conducts Special Implementation Hearings at which members of the Cree and Naskapi communities, government officials and others bring forward issues and concerns relating either directly or indirectly to the implemen-tation of the Act. Especially, in the case of presentations from the communities, the Commission strives to include input which the communities consider relevant and important. These hearings are after all the only regular opportunity to raise issues with the knowledge that, if reasonable, they will usually be passed on to the Minister and brought to the attention of MPs and Senators. This is why most witnesses prepare their presentations with great care, and consider that what they say is taken seriously and will be formally dealt with. The Commission believes that these are reasonable expectations.

It is for these reasons that the Commission feels that it has a duty to ensure that, at the very least, the contents of the reports receive the attention of appropriate officials in government. The duty to report, we are convinced, involves more than a duty to fill files and add to archives. It obliges us to make every reasonable effort to ensure that issues raised by the people whose lives are intimately affected by the Act are brought to the attention of those with a mandate to effect positive change. It also requires us to assertively seek remedial action where needed or, failing that, an explanation as to why officials consider that action should not be taken. To simply submit reports and then forget about them, in our judgement, would be an abdication of our responsibilities under the legislation and an act of disrespect to those in the communities who have raised their concerns at the hearings.

It is with these concerns in mind that the Commission has developed the practice of attempting to discuss the reports with the Cree and Naskapi authorities, the Department of Indian Affairs and Northern Development, the relevant parliamentary committees and other affected groups. The Cree and Naskapi authorities, while they have disagreed with certain of our recommendations, have always been prepared to discuss the contents of the reports and consider how to address their implications. The parliamentary committees have devoted considerable time to reviewing the contents of the reports and other affected organizations have also been interested in discussing the issues whenever appropriate. Regrettably, while Ministers of Indian Affairs and Northern Development have promised response and dialogue, their departmental officials have generally avoided any follow-up or discussion, preferring instead to observe that some recommendations may be technically beyond our mandate or to claim that any suggestion for improvements in the department’s policies and administration is merely "fed bashing."

That various ministers, on the other hand, have favoured a collaborative approach to dealing with the reports of the Commission is clear. In a letter of June 11, 1999, for example, Hon. Jane Stewart, the then Minister said:

"The Commission is one of several parties with a role to play in the imple-mentation of the Cree-Naskapi (of Quebec) Act. This role entails not only the provision of recommendation, but also suggestions as to possible mechanisms and/or solutions to implement these recommendations through a balanced approach." (emphasis added)1

The Commission believes that the approach advocated by the former Minister is a good one and that it ought to be applied in practice. The Commission therefore makes the following recommendation.

It is recommended that within three months of the tabling in the House of Commons and Senate of the biennial reports of the Cree-Naskapi Commission, a working group consisting of Representatives from the Department of Indian Affairs and Northern Development, the Grand Council of the Crees (Eeyou Istchee), the Naskapi Band and the Cree-Naskapi Commission be established to work collaboratively on addressing the findings and recommendations in the Report.

Follow-Up With the Minister of Indian Affairs and Northern Development

Since the Commission’s first biennial report in 1986, various ministers have met with the Commissioners for the formal submission of the biennial reports and then tabled the reports in the House of Commons and in the Senate. (In the case of the 2000 Report, a general election intervened and the meeting did not take place. Minister Nault, during a visit to Chisasibi, said that he intended to have such a meeting later; however, none has taken place.) When tabling the 1998 Report in the House of Commons, Minister Stewart said "I want to thank the Cree-Naskapi Commission for its important work. I look forward to reviewing the recommendations of the Commission."² The meetings with the Commissioners have generally included a discussion of the three or four main issues and recommendations as well as a commitment by the Minister that departmental officials would prepare a more detailed response. Unfortunately the Minister’s views that response and follow-up should take place appear not to have been shared by her officials. The various letters from former Minister together with the subsequent inaction by her officials illustrate the difficulty. On November 27, 1998, Minister Stewart wrote to the Commission saying:

"With respect to your latest biennial report, my officials have been analyzing and discussing it extensively since you tabled it with me on October 5, 1998. An approach is now being developed, outlining how federal depart-ments, the province of Quebec, the Commission, the Cree and Naskapi might be engaged to follow up on the 41 recommendations you have provided in the report.

Mr. Jeff Moore, Director of the James Bay Implementation Office, will soon be in touch with the Commission regarding this follow-up approach."³

On June 11, 1999, almost seven months after this apparent undertaking to have officials follow-up, Minister Stewart again wrote to the Commission saying:

"I have taken note of the points raised in your report and have asked my officials to review and assess the report’s recommendations. Such work has actually been in progress since last October."

"I have asked my officials to organize a follow-up meeting(s) with the Commission, the Cree and the Naskapi in order to discuss the report. You should expect to hear from them in the near future."⁴

The officials did not attempt to set up meetings or hold any discussions. In fact it was not until February 2, 2000 (some 16 months after the initial meeting with Minister Stewart), that any response whatsoever was made to the 1998 Report. On that date, the Director of the James Bay Implementation Office appeared at a Commission hearing, and in the context of the federal input into the 2000 Report, made a few brief comments on the 1998 Report’s recommendations. The details of his responses are outlined in Chapter 10 of the 2000 Report.

Follow-Up With the House Of Commons Standing Committee

The House of Commons has mechanisms in place which guarantee that when legislation requires that reports be tabled in the House, there is follow-up action to ensure that those reports are in fact dealt with. Standing Order 32(5) provides the overall rule:

"Reports, returns or other papers laid before the House in accordance with an Act of Parliament shall thereupon be deemed to have been permanently referred to the appropriate standing committee."⁵

In the case of the reports of the Cree-Naskapi Commission, these are permanently referred to the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources.

In the context of the 2000 Report, the Standing Committee invited the Commissioners to make a presentation of their findings. Given the volume of work of the Committee and the short time available for oral presentations, Committee staff prepared an overview which, along with copies of the Report, was provided to members of the Committee prior to the hearing. On April 24, 2001, the Commissioners were asked to appear and provide brief oral presentations of the highlights of the Report followed by questions and answers. Commissioners Saunders, Kanatewat and Awashish spoke briefly about the following: the need for improved policy accountability mechanisms in government, the idea that the Department of Indian Affairs and Northern Development should address the specific recommendations of the Commission, the specific issues raised by Wemindji too late for inclusion in the Report, the need for specific mechanisms to monitor imple-mentation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, and the need for amendments to the Cree-Naskapi (of Quebec) Act.

The MPs present focused a significant proportion of their questions on the issue of how the Department had responded (or not responded) to the recommendations contained in the 2000 Report.

In order to determine the reasons for the lack of written response from the Department, the Committee decided to call DIAND officials to a second hearing to provide answers. This hearing was held on May 10, 2001, and the Department was represented by Mr. Terry Henderson, Director General of the Implementation Branch. In response to questioning about why there had been no written responses, Mr. Henderson began by saying that such responses were not required by the legislation. When asked whether Minister Stewart’s letters did not in fact call for a response, Mr. Henderson said:

"...not having had an opportunity to conclude our total review and analysis, we’ve been struggling quite frankly with how best to deal with that report and respond in an appropriate way to the Cree-Naskapi Commission. I believe my Minister has been faced with the same kind of uncertainty and struggle."⁶

By the time that this explanation was given to the Committee, more than a year and a half had passed since the Minister had told the Commission that her department would review the Report and respond to its recommendations. It is difficult to take seriously that by May of 2001 the officials had not "had an opportunity to conclude [their] total review and analysis." It requires considerable imagination to conceive of the Minister facing "the same kind of uncertainty and struggle." The simple fact appears to be either that the officials didn’t pay any attention to Minister Stewart’s direction or simply decided to ignore it.

The Vice- (and Acting) Chairman of the Committee, Mr. John Godfrey, MP, gave notice that he intended to introduce a motion which, in effect, would have made the recommendations, in the 1998 and 2000 reports of the Cree-Naskapi Commission, Committee documents and would have required that the Department respond to them in a timely fashion. Within days, the Vice-Chairman told the Committee that he and the Minister had spoken, that his (Godfrey’s) motion was "a bit too aggressive" and that the Minister would respond favourably to a simple letter from the Committee requesting responses to the recommendations in the 2000 Report of the Cree-Naskapi Commission. This letter was agreed to by the Committee, signed by the Chair and sent to the Minister in May of 2001. Finally more than eight months after the Committee’s request and more than two years after the original commitment of the Minister, the department responded in a somewhat superficial fashion addressing some recommendations while saying that many of the Commission’s recommendations were outside of the explicit legislated mandate. All of this can be looked at from a variety of perspectives. In the final analysis it demonstrates disrespect on the part of the Indian Affairs bureaucracy - disrespect for a legislatively mandated process - disrespect for their Minister’s commitments - disrespect for the requests of a Committee of the House of Commons with a clear mandate to make such requests. Most unfortunate of all, it demonstrates disrespect for the Cree and Naskapi people at the community level who prepared and made the presentations that form the basis of the Commission’s reports in the first place, and who clearly expect that their concerns will be responded to by those with a mandate to do so. It would appear that the Department, in having Mr. Godfrey asked to withdraw his formal motion, wanted to avoid being in the position of having any legally enforceable duty to carry out their stated intention of responding. This might be reasonable if a full and complete response had been made to all or most of the recommendations. When com-bined with superficial and incomplete responses, it is not reasonable.

END NOTES
1 Letter from Minister Stewart to Commission Chairman Saunders, dated June 11, 1999, on file at the Cree-Naskapi Commission.
2 Hansard, Oct. 9, 1998 (Routine Proceedings).
3 Letter from Minister Stewart to Commissioner Chairman Saunders, dated November 27, 1998, on file at the Cree-Naskapi Commission.
4 Letter from Minister Stewart to Commission Chairman Saunders, dated June 11, 1999, on file at the Cree-Naskapi Commission.
5 House of Commons Standing Order 32(5).
6 Minutes of the Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, Hearing May 10, 2001, Testimony by Mr. Terry Henderson, 11:10 a.m.

After the submission of the 2000 Report to the Minister and its subsequent tabling in Parliament, the Department of Indian Affairs and Northern Development did not respond to the Commission on any of the Report’s recommendations.

As noted in Chapter 8 of the present Report, the Commission raised the problem with the House of Commons Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources during its appearance on April 24, 2001. The Committee then wrote to Minister Nault on May 15, 2001, requesting a response. On January 28, 2002, more than eight (8) months after receiving the letter and sixteen (16) months after receiving the Report, the Minister replied to the Committee and responded to the 2000 Report of the Commission. (The full text of the Minister’s response is attached as Appendix 1.)

The response contained four major sections: Background (on implementation of the Agreements and the Act), Recent Implementations Achievements, Mandate of the Cree-Naskapi Commission and Analysis of Recommendations.

In terms of background on implementation, the Minister, among other things, noted:

"The implementation process with the Crees is overseen and guided by the Cree-Canada Round Table made up of Cree leaders and federal ministers, who held their inaugural meeting in June of 1998."¹

...and though we have not always agreed on the details, we have accomplished a lot, both with respect to implementing the CNA and spe-cific provisions of the JBNQA."²

This sounds reasonable until one considers the comments of Dr. Ted Moses, Grand Chief of the Grand Council of the Crees (Eeyou Istchee). In his presentation at a Special Implementation Hearing held in Montreal on March 22, 2002, he said:

...the Minister claims that the present implementation discussions are ‘...guided by the Cree-Canada Round Table made up of the Cree leaders and federal ministers who held their inaugural meeting in June of 1998.’

The truth is that there has never been a subsequent meeting of the Round Table in spite of my repeated requests to the Minister that they be held and assurances from him that he would organize them."³

The apparent difficulty of personal assurances by the Minister not in fact being acted on by departmental officials is reminiscent of the problems discussed in Chapter 8 of Minister Stewart’s repeated oral and written assurances not being acted upon by her officials. Ministerial credibility is an essential element of responsible government. The public cannot be expected to have confidence in and respect for our public institutions when assurances by ministers are ignored or repudiated by officials whose job it is to give effect to such assurances.

The simple facts are that the Round Table is touted as the main instrument to resolve implementation issues and that the Round Table met once four years ago and has never met again despite Minister Nault’s assurances to Grand Chief Ted Moses.

On the subject of "Recent Implementation Achievements" the Minister outlined what he feels the department has accomplished in a two and a half page section of his response. The entire section is reproduced verbatim in Chapter 11 of the present Report.

The section dealing with the mandate of the Commission is addressed in Chapter 6 of the present Report.

The final and largest section of the Minister’s letter entitled "Analysis of Recommendations" provides the department’s reaction to each of the thirty-four (34) recommendations con-tained in the 2000 Report.

In the view of the Department sixteen (16) of the recommendations were in relation "to the JBNQA" and considered to be beyond the explicit legislated mandate of the Commission. This sort of response avoids dealing with issues considered important by those who raised them and invites a more vigorous proactive approach. The Department responded to eight (8) of the recommendations in a substantive manner. In the case of five (5) recommendations, the Department indicated that they were in the process of being addressed or had already been addressed. In the case of one (1) recommendation the department simply agreed with the Commission, and in the case of four (4) the response was that the communities needed to make a "formal expression of interest."

Comments

The Commission appreciates the fact that the Department has, for the first time, provided a written response to recommendations contained in a biennial Report. This represents, we believe, a step in the direction of working to resolve the issues and concerns being raised by the communities during the course of the Special Implementation Hearings and contained in the reports. We invite the Department to respond to the current recom-mendations by writing directly to the Commission without waiting to be directed to do so by a parliamentary committee. We look forward to constructive discussion about the issues raised.

1. Cree Nation of Eeyou Istchee

Many of the Cree communities have raised questions about the lack, or absence of a comprehensive response from Canada to their needs and concerns as described in the past reports of the Cree-Naskapi Commission. They stress that the ineffectiveness of the Commission is due to the failure of Canada to respond to the findings and recommendations of the Commission in a manner that advances and enhances the exercise and practice of local government and local administration.

On August 23, 2001, at the Annual General Assembly of the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority, the members adopted a resolution which states the following:

a) Eeyou of Eeyou Istchee acting through the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority support and endorse, in principle, the findings and recommendations of the Cree-Naskapi Commission as described in the reports of the Commission.

b) In particular, Eeyou of Eeyou Istchee support and accept the findings and recommendations of the Commission respecting:

i. The immediate establishment of a meaningful and effective process for the review and proper implementation of and amendments to the Cree-Naskapi (of Quebec) Act;

ii. The establishment of a new relationship between Eeyou and Canada pursuant to a redefinition of Eeyou Governance and the spirit and intent of the James Bay and Northern Quebec Agreement;

iii. The enactment by Canada of a Treaty Implementation Act and a Policy Management Accountability Act, in collaboration with Eeyou of Eeyou Istchee; and

iv. The fair settlement of the common and specific issues of the Eeyou communities as identified and described in the reports of the Commission."

The resolution of the members of the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority also calls upon the Government of Canada to fulfill its responsibilities and respond, in a comprehensive manner, to the findings and recommendations of the Commission as described in the reports of the Cree-Naskapi Commission and the local and regional Eeyou authorities and governments to review, consider and respond to the findings and recommendations of the Commission for the advancement of Eeyou rights and Eeyou Governance and for the fair and just settlement of community issues and concerns. (The full text of the resolution is reproduced as Appendix II.)

2. Naskapi Nation of Kawawachikamach

In a letter addressed to the Cree-Naskapi Commission and dated July 24, 2001, Chief Philip Einish responded to the 2000 Report of the Cree-Naskapi Commission in the following principal manner:

a) The Naskapi Nation supports, in principle, recommendations that concern the Naskapi Nation of Kawawachikamach.

b) However, the Naskapi note that funding and other resources are required for some measures contemplated in the recommendations of the Commission such as the oral history project, process for the redefinition of Eeyou self-government and review of the James Bay and Northern Quebec Agreement (JBNQA) and the Northeastern Quebec Agreement (NEQA).

c) Furthermore, the Naskapi Nation is waiting for the Cree Nation of Eeyou Istchee to take the initiative on the development and negotiations for a community-based local justice system and the establishment and implementation of a process for the determination of appropriate amendments to and implementation of the Cree-Naskapi (of Quebec) Act.

d) The Naskapi expressed grave concerns about the failure of the Nunavik Commisssion’s Report to take into account the rights and concerns of the Naskapi.

On the latter issue, the Commission has recommended that "the Government of Canada exercise its fiduciary responsibility and protect the interests and rights of the Naskapi Eeyouch in the negotiations respecting regional self-government with the Inuit of Nunavik."¹

In its response of January 28, 2002, the Department of Indian Affairs stated as follows:

"The recommendation deals with issues far beyond those of local self-government for the Naskapis and thus is not within the explicit legislated mandate of the CNC.

The mandate of the Nunavik Commission clearly states that "the mandate of the Nunavik Government shall not prejudice the rights of the Crees or Naskapis as set out in the JBNQA and the NEQA." In its recent report, the Nunavik Commission, which includes representatives of Canada, "is convinced that the rights north of the 55th parallel of the - Naskapi - that have been fully recognized by the - NEQA, are fully respected in the present report".

On page 48 of the Nunavik Commission’s Report, the Naskapis are described as expressing frustration over the failure of the Government of Canada to assist them in the protection of their rights in this area, although it is not specified in what respect the government has failed. It is clear from the Nunavik Commission’s mandate and its recent report that the parties, including Canada, are committed to protecting those rights and are convinced that these rights are being fully respected.2

END NOTES
1 2000 Report of the Cree-Naskapi Commission, p. 109.
2 Letter from Robert D. Nault, P.C., M.P., dated January 28, 2002, and addressed to Mr. Raymond Bonin, M.P., Chair, Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources, p. 11 and 12.

A. Federal Accomplishments in Implementation

The Department of Indian Affairs and Northern Development has expressed concern that the Commission, in previous reports, has accentuated criticism of government’s efforts in implementing the Act and the Agreements. The Department has acknowledged that the Commission will hear mostly complaints but has felt that many of its positive accomplish-ments have gone unnoticed.

"...if you are talking about implementation of the Act, sure what you are going to hear is mostly complaints, but there is also stuff that is happening that is reasonable and good stuff."¹

With a view to providing an opportunity for the Department to speak for itself about the "good stuff" which has happened, the Commission is reproducing verbatim a section of a letter dated January 28, 2002, from Minister Nault to the Standing Committee on Aboriginal Affairs. Section II of that letter includes the following:

"In response to the Cree-Naskapi (of Quebec) Act, to provide for normal programming to the Crees in a self-government context, recent achievements are as follows:

• in 1993, Indian and Northern Affairs Canada (INAC) established ongoing allocations for Cree community capital, including housing, which by 2001- 2002 have risen to $9.9 million annually;
  
  
• in 1995, INAC negotiated an agreement for Operations and Maintenance (O&M) of Cree communities, covering local government services, with appropriate adjusters, resulting in over $44 million flowing in 2001-2002;
  
  
• in 1997, INAC provided $6.5 million in one-time funding under the new housing policy; and in March 2001, a further "special" $2.1 million in emergency housing assistance was provided to the Chisasibi Band to help address its mould problem;
  
  
• an agreement to provide stable funding to the operations and programs of the Cree Trappers Association; while agreement has not yet been reached, Canada provided $300,000 for operations and programs in 2000-2001 and 2001-2002, and has formally committed to continue providing $300,000, adjusted annually through 2004-2005.
  
  
• an agreement whereby Human Resources Development Canada (HRDC), with (INAC) participation, would provide $54.5 million over five years, to cover regular HRDC programming devolved to Cree administration (service delivery structure and employment programs), including a new provision of $12 million for Special (Territorial) Training Programs to enhance employment opportunities for the Crees in the Cree territory, supported by the necessary delivery structure; this agreement was signed November 2001."

In addition to these, Canada is currently in the process of negotiating agreements with the Crees regarding:

• renewal of the Operations and Maintenance and Community Special Capital agreements (CNA);
  
  
• provision of a Community Centre in each community (JBNQA);
  
  
• stable support to programs and operations of the Cree Outfitting and Tourism Association, and the Cree Native Arts Association (JBNQA).

Please note that many of the JBNQA Initiatives noted above (including those relating to fire protection, essential sanitation, policing and access road), will also contribute significantly to effective local government in Cree communities.

With respect to the Naskapi, the following has been accomplished:

in 1999, renewal of a five-year Capital Agreement, which the Naskapi Council considers to be "a fair and acceptable agreement" (the Commission’s 2000-2001 Report, p. 45), and under which the Naskapis received $1,260,600 in 2000-2001;


• in 2000, renewal of a five-year Operations and Maintenance Agreement, under which the Naskapi received $3,272,167 in 2000-2001, to be adjusted annually for price and population;
  
  
• for 2000-2001 and 2001-2002, renewal for one-year periods by the SGA of a policing agreement, towards which Canada contributes $208,000 annually.

And in addition, since tabling of the CNC’s 2000 Report:

• in 2000-2001, a contribution of $280,519 towards construction and upgrading of the Naskapi police station;
  
  
• in March 2001, a contribution of $200,000 towards emergency remediation of an environmental problem resulting from an oil spill near the Naskapis’ source of drinking water.

As previously noted, the efforts and financial contributions listed above are highly significant, and reflective of Canada’s desire to respond deliberately and credibly in meeting its responsibilities under the CNA and the Agreements.²

"...in 1998, the Department of the Solicitor General Canada (SGA), with INAC support, signed a five-year Cree-Quebec-Canada policing agreement which provides $5.687 million annually (Canada’s share is $2.95 million) to support ongoing local policing services in the Cree communities, and included provision of $6.3 million for construction of police stations (Canada’s share is $3.8 million); note that this initiative responds to the JBNQA as well as the CNA."

The large ongoing allocations for Community Capital and O&M since 1995 represent a stable funding base for the Crees, most of which (the O&M portion) is escalated annually for population and price increases, and which provides full flexibility and discretion to the Cree Regional Authority and Cree Bands for reallocation of funding to respond to local priorities and changes in the operating environment.

In direct response to provisions of the James Bay and Northern Quebec Agreement affecting the Crees, the Government of Canada has:

• from 1993 to 1997, provided $39.4 million for "essential sanitation" Emergency Projects;
  
  
• in 1997, signed a $15 million agreement for the provision of fire protection and further essential sanitation services;
  
  
• provided to the Cree Trappers’ Association;
  
  

  in 1997-1998, $200,000 for operations

  in 1998-1999, $750,000 for capital and $114,000 for operations;

  in 1999-2000, $300,000 for operations and programs;

  
  
  
• in March 1999, concluded an agreement to construct the Waskaganish access road, involving the Province of Quebec and the community, costshared; $24 million from Canada and $21 million from Quebec;
  
  
• in October 1999, finalized the transfer of category IA (reserve) lands from Quebec to Canada;
  
  
• in 1999-2000, provided $5.4 million for fire protection equipment for all Cree communities.

At the time that the CNC’s 2000 Report was tabled, Canada was pursuing the following initiatives:

• "an agreement to provide another $20 million over two years for essential sani-tation services, signed in October 2000."

The foregoing quotation outlines what the Department of Indian Affairs and Northern Development considers to have been its past and recent achievements both in delivering "normal" programs in response to the Cree-Naskapi (of Quebec) Act, as well as in the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

The Commission believes that any objective assessment of the successes and failures in the implementation of the Act and the Agreements requires that all parties have an opportunity to express their views. We also believe that readers of our Report are entitled to understand the views of those who make presentations to the Commission particularly if the presenters do not feel that the Commission fully appreciates their input.

B. Federal Concerns About Accountability

In its submission to the Commission at the Special Implementation Hearings held on February 27, 2002, the Department of Indian Affairs and Northern Development expressed concern about accountability, more specifically about the timeliness of the submission of audited financial statements.

The Cree-Naskapi (of Quebec) Act makes provision for deadlines for the submission of audited financial statements. Section 94 subsection 1 and 2 read as follows:

"94.(1) The auditor shall, within four months after the end of the band’s fiscal year, prepare and submit to the band (with a copy to the Minister) a report on the band’s financial statement, stating whether, in the opinion of the auditor, the financial statement presents fairly the financial position of the band in accordance with generally accepted accounting principles applied on a basis consistent with that applied in the previous fiscal year.³

(2) Where the auditor has not been able to prepare the report within the period mentioned in subsection (1), he shall notify the band and the Minister of the reasons for the delay.⁴

During his presentation at the February 27, 2002 hearing, Mr. Jim McCarthy, Director of the James Bay Implementation Office, said:

"Unfortunately, none of the bands met the statutory target date of four months after the end of the band’s fiscal year that is cited in the Cree-Naskapi Act.⁵

On March 25, 2002, the Chairman of the Commission wrote to Minister Nault asking whether the auditors had supplied the Minister with reasons for the delay as they are required to do by section 94 subsection 2 of the Cree-Naskapi (of Quebec) Act.

On June 7, 2002, Minister Nault replied that the auditors had not provided any reasons. He said:

"We do not have any record of an auditor for a Cree band notifying INAC, verbally or in writing, of the reasons for the substantial delays in the submission of audited financial statements by the Cree bands.⁶

He added that departmental officials had reminded the bands of the need for timely compliance with the reporting requirements of the Act.

Because the Minister is responsible for the proper administration of the Cree-Naskapi (of Quebec) Act and because the Act requires that auditors notify the Minister of reasons for delays, it is reasonable to expect that departmental officials would have reminded the auditors of their obligations under the Act.

The issue requires some further analysis and review. The Commission intends to look into the reasons for this problem in greater depth than is possible for the purposes of this report. For that reason the Commission will discuss the matter with all concerned parties with a view to preparing a special report on how this problem can be avoided in the future.

C. Federal Concerns About Indebtedness

The departmental submission to the Commission also stressed its concern about indebtedness. The Director of the James Bay Implementation Office said on February 27, 2002:

"The next concern is indebtedness. There is a challenge posed by debt. A number of Cree communities have in the recent past developed uncomfortably high levels of debt and one of these communities is under a remediation plan. Excessive debt can affect the capacity of a community to deliver to its population the type of services mandated under the Cree-Naskapi Act. Even more directly, an unresolved debt situation can affect the eligibility of a community to benefit from ministerial loan guarantees and we have encountered that situation in a couple of cases.⁷

Certainly these are serious concerns and deserve a full investigation of the reasons as well as detailed recommendations for avoiding similar debt loads in the future. The Commission intends to discuss the issue with the parties and to conduct a full review.

---

END NOTES
1 Transcript of DIAND presentation at the CNC Special Implementation Hearings, Ottawa, February 27, 2002. (On file with the Cree-Naskapi Commission.)
2 Letter from Hon. Robert Nault, Minister of Indian Affairs, to Ray Bonin, M.P., Chair of the House of Commons Standing Committee on Aboriginal Affairs, Northern Development and Natural Resources dated January 28, 2002.
3 Cree-Naskapi (of Quebec) Act, section 94, subsection (1).
4 Ibid., subsection (2).
5 Transcript of DIAND presentation at CNC Special Implementation hearings, Ottawa, February 27, 2002.
6 Letter from Hon. Robert Nault to Richard Saunders, Chairman, Cree-Naskapi Commission, June 7, 2002. (On file with the CNC.)
7 Transcript of DIAND presentation at CNC Special Implementation Hearings, Ottawa, February 27, 2002.

EEYOU SELF-GOVERNMENT AND THE CREE-NASKAPI (OF QUEBEC) ACT

In its response of January 28, 2002, to the 2000 Report of the Cree-Naskapi Commission, the Department of Indian Affairs and Northern Development states that "the Government of Canada would welcome a formal expression of interest from the Crees and/or Naskapis Nations to engage in - discussions and negotiations leading to a redefinition of Cree and/or Naskapi self-government."¹

Furthermore, the Department expresses the view that any amendments to the Cree-Naskapi (of Quebec) Act "should only be considered in the context of a broader-based review of self-government for the Cree and/or Naskapi peoples."²

According to the Department, amendments to the Act "would require a renewed process of discussion among Canada, the Crees and the Naskapis. In order to launch such a process, the Crees and the Naskapis should formally indicate their interest to Canada."³

The Cree and Naskapi Nations have, through their representations to the Commission in its special implementation hearings for the preparation of its biennial reports, formally expressed the need for appropriate review of and amendments to the Cree-Naskapi (of Quebec) Act to reflect the realities of Eeyou self-government. The Commission has repeatedly recommended the establishment of a process to enable dialogue and negotia-tions for the implementation of and amendments to the Cree-Naskapi (of Quebec) Act.

In consideration of its mandate and origin as a Commission created by special federal legislation arising from a Treaty obligation, the Commission considers its biennial reports as a formal means of reporting on the implementation of the Cree-Naskapi (of Quebec) Act and related matters. These biennial reports are submitted in four languages to the Minister of Indian Affairs and Northern Development who causes each such report to be laid before each House of Parliament. Therefore, the Department of Indian Affairs and Northern Development should consider these reports with the findings and recommen-dations in a manner that reflects the intent and spirit of the Cree-Naskapi (of Quebec) Act as well as the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement.

1. The Cree-Naskapi Commission recommends the establishment of a process for the redefinition of Eeyou self-government and the subsequent review and revision of the Cree-Naskapi (of Quebec) Act. The Government of Canada and the Cree and Naskapi Nations must determine this process which should be allocated adequate financial resources from Canada.

Ouje-Bougoumou Eenouch (Cree Nation)

The Ouje-Bougoumou Eenouch remain very concerned about the lack of a full implementation of the Ouje-Bougoumou/Canada Agreement of May 22, 1992.

2. Because the Ouje-Bougoumou/Canada Agreement affects the status of the Ouje-Bougoumou Eenouch and their local government, the Commission recommends that the Government of Canada establish a process jointly and in collaboration with the Cree Nation of Eeyou Istchee, the Ouje-Bougoumou and Mistissini Eenouch for the full implementation of the Ouje-Bougoumou/Canada Agreement of May 22, 1992. This process should also address the issue of the "land transfer" which entails reallocation of portions of the local land base of Mistissini to establish the local land base of Ouje-Bougoumou. (See also Recommendation No. 11 of the present report.)

Naskapi Eeyouch (Nation)of Kawawachikamach

The Naskapi Nation of Kawawachikamach remain very concerned about the protection of their rights and interests in the current negotiations respecting the possible establishment of a Nunavik Government. In its response of January 28, 2002, the Department of Indian Affairs and Northern Development states that the mandate of the Nunavik Government and the report of the Nunavik Commission respect the recognized rights of the Naskapi. However, the Naskapi Nation of Kawawchikamach needs assurances beyond mere words that their rights including their right of self-government are protected.

3. The Department of Indian Affairs and Northern Development and the Naskapi Nation of Kawawachikamach should review the present process of negotiations respecting the possible establishment of a Nunavik Government and determine how the rights and interests of the Naskapi can be best protected.

Naskapi local government provides policing services which are funded by Quebec and Canada as a treaty obligation under paragraph 13.2.1 of Section 13 of the Northeastern Quebec Agreement. However, the Naskapi have experienced a shortfall in their funding for policing services in recent fiscal years due to a cost-sharing dispute between Canada and Quebec.

4. The Department of Indian Affairs and Northern Development and the Naskapi Nation of Kawawachikamach should review the funding arrangement for policing services for Kawawchikamach and determine a possible solution for the current cost-sharing dispute. The Commission recognizes the required participation of Quebec in this process.

According to the Naskapis, the Department of Indian Affairs and Northern Development denies that it has any responsibility whatsoever for supplying electricity to Kawawachikamach.

5. The Department of Indian Affairs and Northern Development must exercise its responsibilities for the provision of electricity to Kawawachikamach.

The housing situation of the Naskapi Nation of Kawawachikamach has been aggravated by declining funding and a backlog caused by overcrowding of houses.

6. The responsible federal authorities must provide adequate funding to meet the current and future housing needs of the Naskapi Nation of Kawawachikamach.

Concerns and Issues of the Eeyou (Cree)Nation

Operation and Maintenance Funding

7. The Department of Indian Affairs and Northern Development and the Cree Nation of Eeyou Istchee should review and revise the Operations and Maintenance funding formula with a view to incorporating a financial capacity to address new needs that were not contemplated in 1984.

Housing

8. The Department of Indian Affairs and Northern Development and the Cree Nation of Eeyou Istchee review the housing needs of the Cree Nation and take appropriate measures to meet the present and future housing needs of the Cree Nation of Eeyou Istchee.

9. The Department of Indian Affairs and Northern Development should negotiate in good faith with the Crees of the Waskaganish First Nation to settle the dispute over the ministerial guarantees for housing projects as the dispute is seriously hindering the proper implementation of the financial recovery plan of Waskaganish.

Provision of Electricity in Waskaganish

According to the Crees of the Waskaganish First Nation, under the James Bay and Northern Quebec Agreement, Canada is committed to the provision of electricity to the community. With the growth of the community, the current facilities (diesel generation) are inadequate to meet the needs of the community.

10. The Department of Indian Affairs and Northern Development must meet its responsibilities and obligations and ensure the provision of electricity in a manner that meets the needs of the Crees of the Waskaganish First Nation.

Lands Transfer Between Mistissini and Ouje-Bougoumou

The Government of Quebec and Cree Nations of Mistissini and Ouje-Bougoumou have achieved, by virtue of Schedule G of the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec, a level of agreement for Canada to fully participate in the process and fulfill its obligations to the Ouje-Bougoumou Eenouch under the Ouje-Bougoumou/Canada Agreement of 1992 and exercise its responsibilities for the Cree Nations of Mistissini and Ouje-Bougoumou.

The Commission is concerned about the protection of rights, as a land base and band status are essential for the exercise of local government under the Cree-Naskapi (of Quebec) Act.

11. The Government of Canada must fully, directly and actively participate in the process for the conclusion of a Final Agreement and a Complementary Agreement concerning the finalization of the lands transfer between Mistissini and Ouje-Bougoumou as contemplated in Schedule G of the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec. (See Recommendation No. 2 of the present report.)

New Relationship Between Canada and the Cree Nation of Eeyou Istchee

On February 7, 2002, Quebec and the Crees entered into a nation-to-nation agreement which promises to strengthen the political, economic and social relations between Quebec and the Crees. Amongst other provisions, the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec provides that Quebec shall pay to the Crees, for a determined period, an annual amount so that the Crees may assume the obligations of Quebec concerning economic and community development under certain provisions of the James Bay and Northern Quebec Agreement. These undertakings and obligations will definitely advance Eeyou Governance and will particu-larly contribute to effective local government over matters respecting economic and community development in the Cree communities.

12. Canada and the Cree Nation of Eeyou Istchee should enter into a similar agree-ment and relationship for the proper implementation of the obligations and commitments of Canada and in a manner which addresses the spirit and intent of the James Bay and Northern Quebec Agreement and related agreements.

Cree-Naskapi Commission

The Cree communities remain concerned about the lack and absence of a comprehen-sive response from Canada on the findings and recommendations of the Cree-Naskapi Commission. Furthermore, the Department of Indian Affairs and Northern Development has continuously questioned the role and mandate of the Cree-Naskapi Commission.

13. Canada and the Cree and Naskpi Nations should establish a working group to review:

a) the findings and recommendations of the Cree-Naskapi Commission as stated in its present and past biennial reports; and

b) the appropriate role and mandate of the Cree-Naskapi Commission.

The working group, with the direct participation of the Commission, should make recommendations on these matters to their respective parties within a six-month period with the objective of advancing and enhancing the exercise of local government and local administration by improving the effectiveness of the Commission.

Block D

Quebec and the Crees have confirmed the settlement of their differences concerning the Chisasibi "Block D" lands. The terms of this settlement are set out in Schedule D of the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec. The Commission is concerned as it is envisaged that Block D will form part of the land base of Chisasibi for the exercise of local government by the Cree Nation of Chisasibi.

14. Canada must exercise its responsibilities and ensure the proper transfer of Block D lands for the exclusive use and benefit of the Cree Nation of Chisasibi.

Training

The Cree communities are continually faced with new needs and demands in fiscal and administrative responsibilities for effective local government. Consequently, there is an increasing need for further training and capacity development.

15. The Government of Canada must respond to these needs by expanding and creating new training programs and opportunities.

Community Expansion of Whapmagoostui

The structure of its land base presents barriers and constraints in the expansion of Whapmagoostui for a growing population. However, a northeastward expansion is possible with adequate resources.

16. The Department of Indian Affairs and Northern Development and the Whapmagoostui First Nation should review the community plan and determine funding for the expansion of the community in accordance with the aspirations of the Eeyouch of Whapmagoostui.

Administration of Justice

The administration of justice should proceed in a timely manner if the rule of law is to have impact in the Cree communities.

17. As the administration of justice is clearly a function and concern of local gov-ernment, the Commission recommends that the Judicial Advisory Committee contemplated by paragraph 18.0.37 of section 18 of the James Bay and Northern Quebec Agreement address the need for a timely administration of the judicial process for the Cree communities. While the administration of justice in this case is considered a provincial matter, Canada must ensure that treaty and constitu-tional rights of the Cree are respected in this process.

Washaw Sibi Eeyou

The Washaw Sibi Eeyou are a group of about two hundred (200) people of Cree ancestry who live in the various municipalities and Algonquin villages within the Territory con-templated by the James Bay and Northern Quebec Agreement. According to the Washaw Sibi Eeyou Association, the Washaw Sibi Eeyou are beneficiaries or are entitled to be beneficiaries of the James Bay and Northern Quebec Agreements and other related Agreements.

18. The Government of Canada, Grand Council of the Crees (Eeyou Istchee) and the Crees of the Waskaganish First Nation should determine, with the participation of Washaw Sibi Eeyou, the feasibility and viability of the objective of Washaw Sibi Eeyou to be recognized as full members of the Cree Nation of Eeyou Istchee and as full beneficiaries of the James Bay and Northern Quebec Agreement and other related Agreements. With respect to these matters, the participation of the Government of Quebec is required.

Federal Response to the 2000 Report of the Cree-Naskapi Commission The Cree-Canada Round Table was established to oversee the implementation process of the James Bay and Northern Quebec Agreement. It met in June of 1998 and has never met again despite assurances by Minister Nault to the Grand Chief of the Grand Council of the Crees (Eeyou Istchee) that he would organize further meetings.

19. The Cree-Canada Round Table should be reconvened in order to proceed with its work on an urgent basis. Senior officials of the Department of Indian Affairs and Northern Development should move quickly to carry out the Minister’s assurances.

On February 28, 2002, Mr. Jim McCarthy, a federal representative, made a representa-tion to the Commission at its Special Implementation Hearings. Amongst other issues, Mr. McCarthy spoke on problems with the Crees in the areas of "accountability" and "indebtedness." The Commission recognizes these matters as serious issues.

20. The Cree-Naskapi Commission should and will discuss with the Crees and Naskapis and the Department of Indian Affairs and Northern Development plans for an investigation by the Commission of the root causes of what the department considers to be major problems in the areas of "accountability" and "indebtedness." Such an investigation would be intended to offer recommendations to all parties about how these issues should be addressed. This investigation would be conducted pursuant to section 165(1)(b) of the Cree-Naskapi (of Quebec) Act.

End Notes
1 Response to the 2000 Biennial Report of the Cree-Naskapi Commission, January 28, 2002, p. 12.
2 Ibid., p.19.
3 Ibid., p.19.

Jan/janv 28 2002
Mr. Raymond Bonin, M.P.
Chair
Standing Committee on Aboriginal Affairs,
Northern Development and Natural Resources
House of Commons
OTTAWA ON K1A OA6

Dear Mr. Bonin:

This provides my department’s response to the 2000 Biennial Report of the Cree-Naskapi Commission, as your predecessor had requested in her letter of May 15, 2001.

I apologize for the length of time it has taken to prepare this response. The issues raised in the Commission’s Report are complex and have required careful analysis. As well, since these issues affect not just my own department, but deal with the overall relation-ship between Canada and the Crees and Naskapis of Quebec, it was essential to consult other federal departments involved.

My department takes these issues extremely seriously, and we welcome this opportunity to update members of your Committee on Canada’s recent progress in implementing the Cree-Naskapi of Quebec Act. I would be pleased to appear before your Committee, or to have my officials appear before you, to further elaborate on the information contained in this response.

Yours sincerely,
Original signed by
a signé l’original

Robert D. Nault, P.C., M.P.

Encl.