The Cree-Naskapi Commission has been in operation for twenty years. Although the Cree-Naskapi (of
Quebec) Act, which created the Commission, was passed in 1984, the first commissioners were not
appointed until February of 1986. Since that time the Commission has submitted nine biennial reports
on the implementation of the Act. This current report is the tenth. In addition, the Commission has
investigated many individual complaints, prepared several major discussion papers, appeared before
Parliamentary Committees and has made innumerable presentations on various aspects of the Act. To
put the period covered into some perspective, there have during the same period been ten Ministers of
Indian Affairs and Northern Development. The list includes: Crombie, McKnight, Siddon, Cadieux,
Irwin, Stewart, Nault, Mitchell, Scott and Prentice.

Looking back over that period one cannot help but notice four things:

It is perhaps worthwhile, before considering the specific issues addressed in the current report, to reflect briefly upon these four observations.

1986–2006: Years of Change

If one looks back to 1986 and before, and compares the life of the Cree and Naskapi communities then with the life of those same communities today, the changes are obvious and dramatic.

Clearly the overall standard of living has improved. Health in general has improved with, for example, longer life expectancy and a decline in infant mortality. On the other hand diabetes has come to be a major problem. Suicide and attempted suicide, especially among young people, has become a tragic concern in some communities. Levels of educational attainment have risen dramatically. Many successful new economic enterprises are in operation. So, in spite of some serious challenges, the past twenty years have seen a very significant improvement in the standard of living.

While living standards are important, there are other social indicators of equal, perhaps greater, importance. For example the Cree and Naskapi languages are strong and vibrant with most young people speaking their language fluently while also being fully conversant in English and/or French. This is unfortunately not the case in many other communities across the country. Also, unlike the experience in many other First Nations, there is no significant out-migration of population in the communities. In fact, there has been a comparatively large growth of population in recent years. This growth shows no signs of slackening. The high rate of formation of new families does put pressures on housing supply, education facilities and many other programs, but it also bodes well for the long term strength and viability of the Cree and Naskapi Nations. In the area of governance, Cree leaders are pursuing new initiatives to empower Cree Nation Government in ways that are consistent with Cree values and traditions but which also meet the challenges of governance in Eeyou Istchee in the 21st century. The Naskapi Nation is turning its attention to its own jurisdictional autonomy as its Inuit neighbours begin a new process of regional governance.

The Relationship with the Federal and Provincial Governments

The relationship between the Cree and Naskapi governments on the one hand and the governments of Canada and Quebec on the other, while showing some signs of solid improvement in recent years, continues to be an area of concern and of occasional dysfunctionality. In the 1998 Report of the Cree-Naskapi Commission we reported on a number of generic problems which bedevil governments especially in their relationships with First Nations. Identified as concerns at the time were the issues of limited collective awareness, limited corporate memory, and ministerial impotence. Associated with the matter of ministerial impotence was the need for bureaucratic accountability mechanisms in the area of policy management that are as strong as those in place in the area of financial management. Finally the Commission has on many occasions stressed the need for tools to ensure that Agreements and Treaties

are implemented in a timely and comprehensive manner and that disputes concerning their provisions are resolved without a recourse to confrontation and litigation.

The remarkably short time in office of Ministers as noted above, highlights one of the reasons why they have had such difficulty in bring about positive change and why in fact their specific decisions usually have less than optimal impact on changing the policy direction of the department. With a few exceptions, the trend has been that Ministers are evolving into “Mini Governors General,” in the sense that they act as figureheads for a large and complex bureaucracy in which most of the real decisions are made by others. Despite their limited role in the actual decision making, it is the Ministers who are accountable in the House of Commons as well as with First Nations, the media and the public when those decisions turn out to be wrong.

The fact that real decisions are frequently made in practice by unelected and all too frequently less than truly accountable bureaucrats is a growing challenge for our democracy. This is hardly surprising given that, in the two years or so that Ministers are in office, they cannot hope to understand the historical and legal context in which Indian Affairs policy is made. The basic facts of the numerous treaties and land claims Agreements, the rapid evolution of Aboriginal law, the cultures and traditions of the more than six hundred First Nations for whom they are responsible are all matters about which even a rudimentary knowledge would require their full attention during their average two years in office. It is rare indeed for a Minister to be appointed who already has any significant knowledge of these matters. It is only with broad substantive knowledge and understanding that a Minister can begin to comprehend the full significance of the many policy and program decisions which he or she is asked to approve. It is in this environment that officials become the de facto decision makers.

Regrettably it is commonplace to hear senior officials making comments such as “the Minister hasn’t got a clue” or, “It’s hard to keep him on message” or that “he’s a loose cannon,” etc. This perceived problem is being made worse by having communications staff in each department who report to central communications officials in order to “ensure consistency in messaging” throughout the government. Ministers rarely say a word that hasn’t been scripted or at least pre-approved by unelected “communications specialists.” Typically these so-called specialists see themselves as keeping the Minister from “getting into trouble.” In fact they emasculate speeches, press releases etc. to the point that they frequently contain little of substance and at a minimum are crafted to include enough ambiguity to allow for future denial of any commitments which may have become inconvenient. Far from “keeping the Minister out of trouble,” this sort of calculated meaninglessness frequently makes Ministers appear uninformed, indecisive or simply liars.

Senior officials typically will agree on every word in a ministerial decision before the Minister ever sees it. All too often reasons will be found to justify past mistakes and to defend the status quo. In any case the final document placed before the Minister will most often reflect the thinking of only the senior officials, with options crafted so that only their recommended option is likely to be approved.

This approach may at times escape the notice of the public and the media because it has become almost the norm in the context of a political discourse which is too often geared to the avoidance of public debate on difficult choices. The “communications specialist” will strive for policy output that is as ambiguous as possible and which requires the minimum in terms of advocating, explaining or defending it in public. The current cliché stresses the desirability of “staying below the radar.”

First Nations are confronted by these twin challenges of limited ministerial control of policy and communications-based policy outputs in the context of decades of treaties broken, promises not kept and Agreements repudiated in whole or in part. They have come to accept that the battle against these barriers to change as a normal part of their task. The larger challenge for Canadians is to find ways of keeping a large and complex government democratic in more than merely symbolic ways.

The Vision of the Treaty Makers

The leaders who fought the unilateral decision of Premier Bourassa in 1971 to undertake the massive James Bay Hydroelectric Development Project without any consideration of the rights of the people whose land it had been since time immemorial, the leaders who launched the court action to block that development, the leaders who negotiated the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement and subsequently the terms of the Cree-Naskapi (of Quebec) Act were visionaries. They saw Cree and Naskapi Nations that would be strong, viable nations in control of their own destinies whose values and traditions would be practiced as effectively in the context of the twenty first century as they had been for millennia before. They negotiated Agreements under which Canada and Quebec agreed to support their rights and interests as partners, Although some of the former leaders are gone and a new generation of leaders gradually takes their places, the Cree and Naskapi leadership continues the fight to implement the letter and the spirit of the Agreements as well as the full intent of the Act. New arrangements are made as needed to address today’s realities. The 2002 Agreement

Concerning a New Relationship Between le Gouvernement du Quebec and the Crees of Eeyou Istchee is an example of such a new arrangement. The current negotiations with the federal government led by Bill Namagoose and Raymond Chrétien are another. The Naskapi are now engaged in examining their own jurisdictional needs in view of the development of regional government by the Inuit of Northern Quebec.

The Treaty Makers had strong visions of what it meant to be the Cree Nation or the Naskapi Nation in the context of the pressures created by Quebec’s unilateral decisions of the time. Today three and one half decades later, a new generation is challenged to lead in the evolution of the Treaty Makers’ vision to make it a blueprint for action in the twenty first century. The old concept of “Bands”in the Indian Act sense is gone. The “Band” as envisioned in the Cree-Naskapi (of Quebec) Act is in need of some fundamental change. The communities have raised many specific suggestions for amendments to the Act which we have recommended in previous reports. What is needed now is a process of looking at what the vision of the Cree Nation and the vision of the Naskapi Nation mean today and into the future. What it means in terms of governance structures and processes, what it means in terms of language and cultural priorities, what it means in terms of economic and social priorities. Determining what this vision will be or even that a visioning process is needed is not for outsiders to decide. It is the Cree people and the Naskapi peoples to make those decisions. It is for others to accept and support the exercise of these basic rights of self-determination.

Sharing the Lessons Learned

Much of what has taken place in the last thirty-five years of Cree and Naskapi history can be of enormous value as scores of First Nations across Canada work to achieve fair and just settlements of their land claims and their efforts to restore governance structures and processes consistent with their own values and needs. Ways need to be found to share the Cree and Naskapi experience where and when it can be helpful to other First Nations. Many of the present and past leaders have shared their insights and would be happy to do so in future. The self-government and land claims support which the Department provides could increase its effectiveness by enabling the Cree and Naskapi (as well as a number of other nations) to share their experience in workshops, presentations and short term consultancies with nations currently engaged in land and/or governance negotiations.

The Cree-Naskapi Commission has now been in existence since December 1, 1984 when Part XII (Cree-Naskapi Commission) of the Cree-Naskapi (of Quebec) Act came into force by proclamation of the Government of Canada. However, the first Commissioners were not appointed until February, 1986. Consequently, the year 2006 represents the 20th anniversary of the operations of the Cree-Naskapi Commission.

The Cree-Naskapi (of Quebec) Act is the “special legislation” contemplated by section 9 of the James Bay and Northern Quebec Agreement (JBNQA) and section 7 of the Northeastern Quebec Agreement (NEQA). This special legislation was enacted by Parliament and assented to on June 14, 1984.

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

Section 7 (Local Government over Category 1A-N Lands) of the Northeastern Quebec Agreement provides for similar undertakings respecting local government for the Naskapis of Quebec on Category 1A-N lands allocated to them.

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” ² to the Minister who “shall cause the report to be laid before each House of Parliament.” ³

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

The Commission conducts Special Implementation Hearings in order to prepare for its present report. These hearings, conducted in Montreal on February 13–16, 2006, provide an opportunity for the representatives of the Cree and Naskapi Nations and the Government of Canada to express their concerns and to discuss their issues. The findings and tone of the report are based on the Commission’s understanding and analysis on the issues and concerns raised in these hearings.

The Commission reports also on the implementation of the JBNQA and the NEQA as particular sections of these Agreements contemplate the powers and duties of the local governments of the Cree and Naskapi First Nations. The Commission reports on the implementation of these Agreements in virtue of paragraph 21 (j) of the Act which 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.” ⁴

With respect to its mandate, the Commission has commented further in Chapter Two of the present report.

Over the past years, the Commission has reported on specific issues and concerns of the Cree and Naskapi Nations. Consistent themes have evolved from these issues and concerns. These themes include important needs such as:

In Chapter Four (Issues and Concerns of the Eeyou (Cree Nation) of Eeyou Istchee), Chapter Five
(Naskapi Nation of Kawawachikamach) and Chapter Seven (Recommendations of the Cree-Naskapi
Commission) of its present report, the Commission repeats some of these themes.

Since its response to the 2002 Report of the Commission, the Department of Indian Affairs and
Northern Development has provided a comprehensive response to the recommendations of the
Commission. The responses of the Department represent an entirely different approach in its dealings
with the Commission. (Before its comprehensive response to the 2002 Report, the Department failed to
deal substantively with the recommendations of the Commission.) It appears that the Department
wants to improve its relations with the Commission as well with the Cree and Naskapi communities.
Consequently, the Commission reports and comments on these responses of the Department in its
biennial reports. Chapter six of the present report outlines and comments on the response of the
Department of Indian Affairs and Northern Development to the 2004 Report of the Commission.
In this manner, the Cree and Naskapi Nations are aware of the Department’s responses to their
particular issues and concerns. The Commission hopes that the communities concerned will follow-up
on these matters.

In addition, the Commission presents certain important perspectives on Cree and Naskapi governance
in its biennial reports.

Chapter Three (Eeyou Law and Eeyou Governance) of the present report discusses the existence and
continuity of Eeyou law, customs and traditions and the need for formal recognition by the Government
of Canada for these traditional laws.

In its conclusions (Chapter Eight of the present report), the Commission concludes that the
Government of Canada has a legal, as well as a moral and political, duty to act in the best interests of
Aboriginal peoples.

End Notes

The duties of the Commission are spelled out in section 165 of the Cree-Naskapi (of Quebec) Act which says:

Since Commissioners were first appointed in 1986, the Cree and Naskapi communities have raised issues, at almost every hearing, that arise from either the implementation of the James Bay and Northern Quebec Agreement (JBNQA) or the Northeastern Quebec Agreement (NEQA). This is of course in addition to the many matters that flow from the provisions of the Cree-Naskapi (of Quebec) Act. That the Agreements and the Act should both be sources (often jointly) of issues brought to the attention of the Commission is hardly surprising given that the Agreements committed Canada to introduce the Act into Parliament and that the Act itself explicitly states,

Despite the Commission’s responsibilities in relation to “the exercise or non-exercise of powers” and “the performance or non-performance of a duty” under the Act as well as the bands’ powers and duties as described in section 21. (j) above, the Department of Indian Affairs and Northern Development has, from 1986 to the present time taken the position that the mandate of the Commission does not extend to consideration of matters arising under the Agreements. This view has been applied in practice repeatedly by the Department particularly when it has refused to respond to Commission recommendations which referenced the Agreements on the grounds that they were “beyond the explicit legislated mandate of the Commission”.

Most recently however the Department has begun to address such recommendations while still denying that the Commission has jurisdiction. The most recent statement of the Department’s view came during the 2006 Special Implementation Hearings in Montreal. On February 13, 2006, Michel Blondin, Director of the James Bay Implementation Office, said:

“ … as you know, INAC’s view has been that the Commission does not have jurisdiction
to investigate and make recommendations on the implementation of the James Bay and
Northern Quebec Agreement and the Northeastern Quebec Agreement, and that is still
the federal position.” ³

That may indeed be the federal position when speaking in Canada however the government takes the opposite position when extolling its accomplishments at the United Nations. For example, when explaining how well Canada implements its agreements with Aboriginal peoples and how it resolves disputes arising out of those agreements the federal government frequently cites the role of the Cree-Naskapi Commission. During a presentation to the United Nations Seminar on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Peoples, held December 15 to 17, 2003, Canada’s representative said:

“The first of the modern treaties, the James Bay and Northern Quebec Agreement (JBNQA),
provides for a monitoring mechanism, namely the Cree-Naskapi Commission.” ⁴

When informed of this obvious contradiction at the February 13, 2006 hearing, Mr. Blondin replied:

“I have someone to kill, that’s all. That was just a joke – it’s a joke.” ⁵

Interestingly the presentation to the United Nations quickly disappeared from the Department’s Web site where it had been available to the public for the previous two years. The Commissioners had not mentioned to Mr. Blondin that a much more explicit statement of the government’s position was also on the Department’s official website and remains there as this report is being written. This statement reads as follows:

“Part XII of the Cree-Naskapi (of Quebec) Act provided for the creation of the Cree-Naskapi
Commission to privately investigate complaints arising from the James Bay and Northern
Quebec Agreement, the Northeastern Quebec Agreement or the Cree-Naskapi (of Quebec)
Act implementation or lack thereof.” ⁶

In any event, the Commission will continue to address issues raised by individuals, communities and
governments whenever they relate to the Act or to relevant provisions of the Agreements.

End Notes

Introduction

The Eeyouch (Cree) exist as a people and as a nation with their aboriginal and treaty rights, basic human rights and fundamental freedoms.

The Eeyouch of Eeyou Istchee (Cree Nation of the Cree Territory) consider themselves as a self-governing people who were, before contact with the European peoples, fully independent and an organized society occupying and governing their land as their forefathers have done for centuries. Although this self-governing status was greatly diminished by the encroachments of outside governing regimes, it managed to survive in an attenuated form.

The sovereign claims and colonial regimes of the European powers were established in virtual disregard of the fact that Eeyou Istchee (Cree traditional and historical territory) was already occupied and used by self-governing Eeyou people.

For Eeyouch, there is no more basic principle in Eeyou history and relations than a people’s right to govern themselves and their territories in accordance with their traditional laws, customs, values and aspirations. Therefore, as far as Eeyouch are concerned, Eeyouch of Eeyou Istchee have an inherent right of Eeyou governance.

This right is inherent in the sense that it finds its ultimate origins in the collective lives, traditions and Eeyou law and history rather than the Crown or Parliament. In particular, the inherent right to Eeyou self-government flows from the original and present occupation of Eeyou Istchee by Eeyouch. In this

regard, Eeyou Tapay-tah-jeh-souwin (Eeyou governance) isn’t something that’s going to happen in the future. It’s something that has happened, is happening and will continue to happen in accordance with Eeyou law, rights and aspirations. After all, Eeyouch of Eeyou Istchee have always been a self-governing people.

The right of Eeyou governance inheres in the Eeyou nation. Consequently, it is through the nation that Eeyouch express their personal and collective autonomy.

In 1982, Aboriginal and treaty rights were embodied in the written constitution of Canada for the first time in Canadian history. In particular, section 35 of the Constitution Act, 1982, states that the “existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.”

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

Aboriginal rights evolve from prior occupation of lands by Aboriginal Peoples and prior social organization and distinct cultures of Aboriginal Peoples. In Van der Peet ¹ the Chief Justice of the Supreme Court of Canada stated:

In my view, the doctrine of aboriginal rights exists, and is recognised and affirmed by s. 35(1),
because of one simple fact: when Europeans arrived in North America, aboriginal peoples were
already here, living in communities on the land, and participating in distinctive cultures, as they
had done for centuries. It is this fact, and this fact above all others, which separates aboriginal
peoples from all other minority groups in Canadian society and which mandates their special
legal, and now constitutional, status. ²

Aboriginal rights arise from the prior occupation of land, but they also arise from the prior social
organization and distinctive cultures of aboriginal peoples on that land. In considering whether a
claim to an aboriginal right has been made out, courts must look at both the relationship of an
aboriginal claimant to the land and at the traditions, customs and traditions arising from the
claimant’s distinctive culture and society. Courts must not focus so entirely on the relationship
of aboriginal peoples with the land that they lose sight of the other factors relevant to the
identification and definition of aboriginal rights. ³

The Supreme Court affirmed in Adams ⁴ that these practices, customs and traditions did not require the formal recognition of Europeans in order to be protected:

The fact that a particular practice, custom or tradition continued following the arrival of Europeans,
but in the absence of the formal gloss of legal recognition from the European colonizers should
not undermine the protection accorded to aboriginal peoples. Section 35 (1) would fail to achieve
its noble purpose of preserving the integral and defining features of distinctive aboriginal societies
if it only protected those defining features which were fortunate enough to have received the legal
approval of British and French colonizers. ⁵

Madam Justice McLachlin wrote on the recognition by the common law of the ancestral laws and customs of Aboriginal Peoples in her Reasons in Van der Peet. ⁶

The history of the interface of Europeans and the common law with aboriginal peoples is a long one.
As might be expected of such a long history, the principles by which the interface has been governed
have not always been consistently applied. Yet running through this history, from its earliest beginnings
to the present time is a golden thread – the recognition by the common law of the ancestral laws and
customs the aboriginal peoples who occupied the land prior to European settlement. ⁷

Furthermore, Madam Justice L’Heureux-Dubé spoke of the doctrine of continuity in the context of an approach to interpreting the nature and extent of aboriginal rights. Justice L’Heureux-Dubé wrote: ⁸

… Instead of considering it as the turning point in aboriginal culture, British sovereignty would be
regarded as having recognized and affirmed practices, traditions and customs which are sufficiently
significant and fundamental to the culture and social organization of aboriginal people. This idea
relates to the “doctrine of continuity,” founded in British imperial constitutional law, to the effect that
when new territory is acquired the lex loci of organized societies, here the aboriginal societies,
continues at common law. ⁹

It could not have been only specific traditional laws that were continued but rather the jurisdiction of aboriginal governments to formulate, enact and enforce laws. ¹⁰

It is clear that the Supreme Court of Canada affirms and acknowledges the existence and continuity of aboriginal traditional law and customs.

Eeyou governance has evolved from long-standing practices based on Eeyou law, traditions and customs. However, Eeyou governance has also evolved from the implementation of the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act.

Pursuant to the terms and provisions of the James Bay and Northern Quebec Agreement (JBNQA), Eeyou Istchee was carved out into three (3) categories of land. Lands classified as Category 1A, under federal

jurisdiction, and Category 1B, under provincial jurisdiction, were set aside and allocated to the Cree for their exclusive use and benefit and under the administration and control of Cree local governments.

Pursuant to federal obligations to Eeyouch (Cree and Naskapi Nations) under the JBNQA and NEQA, special federal legislation – the Cree-Naskapi (of Quebec) Act – enacted by Parliament and assented to on June 14, 1984 – provides for an orderly and efficient system of Cree and Naskapi local government and for the administration, management and control of local community lands by the Cree and Naskapi First Nations. The Cree-Naskapi (of Quebec) Act replaces the Indian Act for the Cree Nation of Eeyou Istchee and the Naskapi Nation of Kawawachikamach. During the course of negotiations leading to the signing of the JBNQA, Eeyouch of Eeyou Istchee rejected the restricted, supervised and imposed local government regime of the Indian Act. Consequently, except for the purpose of determining which of the Cree beneficiaries and Naskapi beneficiaries are “Indians” within the meaning of the Indian Act, the Indian Act does not apply to the Cree and Naskapi First Nations nor does it apply on or in respect of their community lands.

Moreover, the Indian Act fails to take into account tradition law, customs and practices for governance.

Notwithstanding the legal regime of local government under the Cree-Naskapi (of Quebec) Act and other powers and responsibilities of Eeyou for Governance under the JBNQA, its related Agreements and subsequent legislation, Eeyouch continue to incorporate Eeyou law, traditions and customs in the exercise and practice of local government and Eeyou nation governance. (With the exception of provisions relating to Part XIII – Successions, the Cree-Naskapi (of Quebec) Act is silent on the existence and continuity of Eeyou law, customs and traditions.)

The present chapter explores the origin and nature of Eeyou law, traditions and customs.

Eeyou Weesou-wehwun, Eeyou Eedou-wun and Eeyou Kas-jeh-hou-wun
(Eeyou Law, Eeyou Customs and Traditions, and Eeyou Rights)

The Eeyouch have exercised and will continue to exercise their right of self-determination which is referred to as “Weesou-way-tah-moo-wun” in the language of the Eeyouch of Eeyou Istchee. The words “Eeyou weesou-way-tah-moo-wun” are best described as “determination by Eenou” or Eeyou self-determination which is the power of choice in action.

The exercise and practice of Eeyou Tapay-tah-jeh-souwin (Eeyou governance) has evolved from the exercise of Eeyou weesou-way-tah-moo-wun (Eeyou self-determination).

The Cree people, as they are called by contemporary society, have the collective and individual right to maintain and develop their distinct identity and characteristics. In particular, the Cree people have the right of self-identification and they identify themselves, as they have done for millennia, as Eeyou/Eeyouch and Eenouch/Eenou. Furthermore, Eeyouch have the individual and collective right to a nationality and to be recognised as a distinct nation. Eeyouch have a right to belong to an Eeyou community and an Eeyou Nation within their traditional and historical homeland, which Eeyouch call Eeyou Istchee. Consequently, the so-called James Bay Crees are Eeyouch of Eeyou Istchee. (The word “Cree” has its origins from the French and English peoples).

Eeyou Istchee is the totality of community and traditional and historical hunting territories of the Eeyouch. Eeyou Istchee is the land that Eeyouch have used and occupied for millennia. Therefore, Eeyou Istchee is essential and central for the “meeyou pimaat-tahseewin” or holistic well-being of Eeyouch. The centrality of Eeyou Istchee forms the foundation of Eeyou governance, Eeyou culture, identity, history, spirituality and the traditional way of life. This unique and special relationship between Eeyouch and Eeyou Istchee – is part of the nature of ‘being Eeyou/Eenou.’

The Eeyouch of Eeyou Istchee refer to the Eeyou right of self-government or any Eeyou right as “Eeyou Kas-jeh-hou-wun” which means Eeyou power or ability given by human authority or by a divine source. This inherent right (of self-government) is exercised by and through the Eeyouch which is the historical and traditional authority of governance. It is through the nation or people that the Eeyouch express their personal and collective autonomy. This practice or exercise of governance through the Eeyou nation or people is described as “Eeyou Tapay-tah-jeh-souwin” by the Eeyouch of Eeyou Istchee. Furthermore, the Eeyouch have, by Eeyou law, established their Eeyou land tenure system of Eeyou Indoh-hoh Istchee (Eeyou hunting territories) with the governing authority of the Indoh-hoh Ouje-Maaoo (Hunting Governor or Tallyman). This Eeyou land tenure system was determined and established by “Eeyou Weesou-wehwun” (Eeyou law-making).

“Eeyou Kas-jeh-hou-wun” in the Eeyou language means “Eeyou capacity or power.” “Eeyou Kas-jehhou-wun” are the words used by the Eeyou/Eenou leadership to express the fundamental principle of Eenou/Eeyou rights.

“Eeyou Eedou-wun” in the Eeyou language means “Eeyou/Eenou way (of doing things).” “Eeyou Eedou-wun” are the words used by the Eeyouch to express the concept of customs and traditional practices.

“Eeyou Weesou-wehwun” in the Eeyou language means “Eeyou law” (as a direct result of Eeyou decision-making). “Eeyou Weesou-wehwun” are the words used by the Eeyou/Eenou leadership to express the concept of Eeyou law inherent in Eenou/Eeyou society. Consequently and subject to Canadian law and jurisprudence affecting Aboriginal “customary/traditional” law, Eeyou Weesou-wehwun is distinct from Aboriginal law (contemporary law affecting Aboriginal peoples). One must note the similarity of the Eeyou words “Eeyou Weesou-wehwun” (Eeyou law) and “Eeyou Weesou-way-tah-moo-wun” (Eeyou self-determination).

In the exercise of Eeyou Tapay-tah-jeh-sou (Eeyou government) Kas-jeh-hou-wun (right) or the inherent right of self-government, the Eeyouch of Eeyou Istchee have determined and will continue to determine Eeyou Weesou-wehwun or Eenou law. The Eeyouch have also determined and will continue to determine Eeyou Eedou-wun or customs and traditions. In this manner, the Eeyouch will continue to shape Eeyou culture.

Eeyou law is the body of law inherent in Eeyou. It is a body of law passed down from generation to generation. Eeyou law manifests the common value of Eeyou society. For the Eeyouch, Eeyou law, custom and tradition do not consist of static principles, practices and institutions from the distant past. They constitute an evolving body of ways of life that adapts to changing situations and readily integrates new attitudes and practices. Consequently Eeyou law is not a static body of law; but is an evolving body of principles and norms of life in Eeyou society.

The Eeyouch, like other contemporary people, are constantly reworking their institutions to cope with new circumstances and demands. In doing so, they freely borrow and adapt cultural traits that they find useful and appealing. In this regard, Eeyou law can be regarded as a continuing process of attempting to resolve the problems of a changing society, than a set of rules .It is not the heedless reproduction of outmoded practices that makes an effective Eeyou law and a vigorous tradition, but a strong connection with the living past especially a strong and living connection with the land – Eeyou Istchee.

It is often said that ‘custom makes law.’ For the Eeyouch, Eeyou law may flow from Eeyou customs and traditional practices. However, traditions appeal to values and actions that sustain customs. In fact, Eeyou values form the building blocks for the ethical principles which form the basis for Eeyou law and tradition. Consequently, Eeyou law and tradition flow from Eeyou values and principles.

In addition, Eeyou culture may be defined simply as the way of life adopted by the Eeyouch. In fact, Eeyouch describe Eeyou culture as “Eeyou pimaat-seewun” (Eenou way of life). For the Eeyouch, culture is determined by Eeyou Eedou-wun – the Eeyou way of doing things – and encompasses the complex whole of beliefs, values, principles, practices, institutions, attitudes, morals, customs, traditions and knowledge. These elements influence the determination of Eeyou law as Eeyouch know what values and principles are Eeyou law.

In summary and in consideration of the Eeyou legal system, one must consider the following important aspects of Eeyou society and contemporary law:

In summary, Eeyou law is:

Conclusion

Eeyou governance has evolved dramatically over the past three decades mainly in response to the fundamental changes in the political, social and economic landscape of Eeyou Istchee. This evolution of Eeyou governance is customary and natural as political power is universal and inherent in human nature. After all, Eeyou self-determination is the power of choice in action. In many instances, Eeyouch of Eeyou Istchee have adopted a “just do it” approach.

Consequently, the meaning and practice of Eeyou governance has evolved and has been redefined by Eeyouch on the basis of Eeyou law, rights, freedoms, value, culture, customs, traditions, aboriginal law and the intent and spirit of the James Bay and Northern Quebec Agreement and its related Agreements such as the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Quebec and the Cree-Naskapi (of Quebec) Act.

Eeyou governance has definitely evolved dramatically over the last quarter of the past century beyond the Indian Act, Cree-Naskapi (of Quebec) Act and the James Bay and Northern Quebec Agreement.

The reconciliation of pre-existing and inherent Eeyou rights and Eeyou law with the sovereignty of the Crown has been, and continues to be, a major political, legal/constitutional and socio-economic challenge.

In order for Eeyou and Canada to work together, Canada must explicitly recognize the inherent right of Eeyou governance and the existence and continuity of Eeyou laws and traditions within its constitutional and fundamental laws. The courts have already recognised the existence and continuity of the laws, traditions and customs of Aboriginal Peoples including aboriginal decision-making, regulation, and indeed Aboriginal governance.

For Eeyouch of Eeyou Istchee, mutual recognition of coexisting and self –governing peoples and nations is basic and fundamental in the continuing Eeyou relationships and partnerships with Canada and Quebec.

End Notes

In preparation for its 2006 report, the Cree-Naskapi Commission conducted its Special Implementation Hearing on February 13–16, 2006 in Montreal, Quebec. Representatives of the Eeyou (Cree and Naskapi) Nations and the Department of Indian Affairs and Northern Development presented written and oral submissions to the Commission at this special hearing.

Grand Council of the Crees (Eeyou Istchee)

On February 16, 2006, Mr. Bill Namagoose and Chief Billy Diamond, representatives of the Grand Council of the Crees (Eeyou Istchee) presented a submission to the Commission on the following issues and concerns:

1. Implementation of the James Bay and Northern Quebec Agreement (JBNQA)

According to the representatives of the Grand Council of the Crees, the implementation of the JBNQA – a modern day Treaty – has been, so far, a long, difficult and acrimonious process entailing reviews, negotiations, litigation and mediation on certain provisions of the Agreement. Certain sections of the JBNQA remain to be implemented properly. As an example, the application of section 22 (Environmental and Social Protection) remains to be properly implemented by the Government of Canada which has decided to unilaterally apply the federal regime of the Canadian Environmental Assessment Act. The regime established by and in accordance with section 22 of the JBNQA is the

In 2002, the Eeyou Nation of Eeyou Istchee and the Government of Quebec negotiated and accepted the Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Quebec which is also known as the Paix des Braves. In this Agreement, the Eeyou of Eeyou Istchee assume certain obligations of Quebec under the JBNQA for a period of fifty years with indexed annual funding. This particular arrangement which is an innovative way of implementing certain sections of the JBNQA has enabled the Eeyou governments and leadership to decide on the implementation of programs and services which meet their priorities and needs as determined by Eeyou authorities. In the past, priorities and programs were often debated with non-Eeyou authorities. ²

Since the execution of the JBNQA which was signed by the Eeyou, Canada and Quebec Governments in 1975, the Eeyou Nation of Eeyou Istchee has sought the proper implementation of the JBNQA with the Government of Canada. Certain Agreements such as the Operation and Maintenance Agreement and the Agreement Respecting Cree Human Resources Development have been achieved by Eeyou and Canada. However, Eeyou of Eeyou Istchee sought a new relationship with Canada – a new relationship that should have evolved if the spirit, intent and letter of the JBNQA had been properly respected and honoured by the Government of Canada.

2. New Relationship Between Eeyou (Cree) and Canada

Recently, the Eeyou and federal negotiators, through the Chrétien-Namagoose process, have made some progress in negotiating an agreement on a new relationship between Eeyou of Eeyou Istchee and the Government of Canada in a manner which sets out an acceptable way of implementing Canada’s obligations to the Crees under the JBNQA.

In August 2004, the Eeyou and Federal negotiators signed a joint statement of intent which sets out the intentions of the parties to negotiate an agreement on the following matters:

In June 2005, the Eeyou and federal negotiators signed a document entitled: Outline for Agreement between the Government of Canada and the Cree Nation of Quebec. This document outlines the progress made on the following issues:

In December 2005, a final agreement was achieved by the negotiators of the Eeyou Nation and the Government of Canada. This Agreement was approved by the Federal Steering Committee that oversaw the negotiations for the Government of Canada and by the Board of Directors of the Grand Council of the Crees (Eeyou Istchee).

However, the Government of Canada under Prime Minister Paul Martin fell and a federal election was called. Consequently, the parties decided to leave the execution of this Agreement until after the federal election. (The federal election held in January, 2006, resulted in the election of a new government under Prime Minister Stephen Harper.)

According to Mr. Bill Namagoose, the Eeyou negotiator, the “proposed agreement is the culmination of many years of efforts on the part of all of the three previous Grand Chiefs and the present administration. I firmly support this agreement and hope that the new Federal Government of Prime Minister Harper will embark on this new Canada – Cree relationship with us.” ⁵

The Grand Council of the Crees requests the Cree-Naskapi Commission to “monitor the process relating to the treatment of this issue in the forthcoming months until the related Agreements are signed.” ⁶

3. Cree Housing

The provision of housing has always been a priority for the Cree and Naskapi Nations. The Cree-Naskapi Commission in its past reports has reported on the housing situation for the Cree and Naskapi communities.

Chief Billy Diamond, representative of the Grand Council of the Crees (Eeyou Istchee), made a presentation on the housing situation in the Eeyou communities as follows:

The Cree housing situation is the most difficult one to resolve and is presently in a crisis state.

In a 1999 survey on the Cree housing situation, the findings were as follows:

Indian Affairs has always used an average of 4.0 persons as an ideal planning measurement. The Cree study indicates that the ideal persons per house ratio for planning purposes should be 3.5 based on Cree demographics.

The number of houses that the Cree communities have constructed over the last 5 years has not kept pace with the increasing family units forma