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Richard Saunders, Chairman
Philip Awashish, Commissioner

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Delta Printing

Translation

wedo (CILFO) translation inc. (French)
George Guanish (Naskapi)
Bill Jancewicz (Naskapi)
Louise Blacksmith (Cree)

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Luc Deveault (Cover)
Ian Diamond

Cree-Naskapi Commission
222 Queen Street, Suite 305
Ottawa, Ontario K1P 5V9

telephone: 613 234-4288
facsimile: 613 234-8102
toll-free: 1 888 236-6603

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Acknowledgements

In preparing this report, the Commissioners depend upon many people for their input. The insights, suggestions and ideas of the Cree and Naskapi Elders, leaders and youth have been an invaluable part of the process. The presentations of the Cree Trappers’ Association and of the Government of Canada are also vital parts of our understanding of how best to present a realistic picture of implementation to the Minister, and through him to Parliament.

The questions and feedback which we received on our 2008 Report from the communities, from the House of Commons Standing Committee and from individuals have assisted us in elaborating our findings and framing our recommendations in the present Report.

Finally, the Commissioners acknowledge with thanks the excellent work of the staff of the Commission, Brian Shawana, Gloria Dedam and Charlotte Kitchen, without whose continuous efforts this Report would not have been possible.

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Philip Awashish Commissioner	Richard Saunders Chairman	Robert Kanatewat Commissioner
Philip Awashish was one of the principal Cree negotiators for the Cree Nation of Eeyou Istchee in the negotiations leading to the signing of the James Bay and Northern Quebec Agreement. For 40 years, he has served the Cree Nation of Eeyou Istchee, in various capacities, such as the Executive Chief and Vice- Chairman of the Grand Council of the Crees (of Quebec) and the Cree Regional Authority, Chief and Councillor of the Cree Nation of Mistissini and as a member to various bodies and committees created by the James Bay and Northern Quebec Agreement. In 2009, Philip Awashish received an honorary Doctor of Laws degree from McMaster University for his work on Eeyou governance and Eeyou law.	Richard Saunders holds degrees in Political Science and Public Administration from Carleton University. He has worked for the Assembly of First Nations, the Indian Association of Alberta, and the Ontario, Alberta and federal governments. He also served as Director of Negotiations with the Government of Nova Scotia which in 2002 signed an Umbrella Agreement with the Mi’kmaq Chiefs and the federal government. Richard was a member of the Cree-Naskapi Commission for three terms from 1986 to 1992. He has been Chairman since 1997.	Robert Kanatewat, Eeyou from Chisasibi, was instrumental in promoting the awareness of Eeyou rights as an executive member of the Indians of Quebec Association in the late 1960s and early 1970s. He was the principal plaintiff in Kanatewat v. James Bay Development Corporation when the Cree Nation decided to oppose the initial hydroelectric development in Eeyou Istchee. He was a chief executive involved in the negotiations leading to the execution of the James Bay and Northern Quebec Agreement. For many years, he has served Eeyou of Istchee as the Executive Chief of the Grand Council of the Crees (of Quebec), Chief of the Cree Nation of Chisasibi and in various business enterprises. With the exception of one term, Robert Kanatewat has been a member of the Cree-Naskapi Commission since 1986.

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June 30, 2010

Honourable Chuck Strahl PC, MP
Minister of Indian Affairs and Northern Development
Parliament Buildings
Ottawa, Ontario
K1A 0H4

Dear Minister:

We are pleased to submit herewith the 2010 Report of the Cree-Naskapi Commission. This is our twelfth biennial report submitted in English, French, Cree and Naskapi pursuant to section 171. (1) of the Cree- Naskapi (of Quebec) Act.

The report is based upon evidence presented at the Special Implementation Hearings held in Montreal on February 16, 17 and 18, 2010 as well as on written submissions. During this process we heard presentations from the Cree and Naskapi leadership, from Elders and from youth as well as from the Government of Canada and the Cree Trappers’ Association. We also look into account the issues raised in numerous representations filed over the past two years as well as many less formal discussions with various interested parties.

Since our 2008 Report there have been several notable achievements; amendments to the Cree-Naskapi (of Quebec) Act, the Eeyou Marine Region Agreement and the Naskapi-Quebec Partnership Agreement to name a
few. Many challenges remain to be worked on and new issues arise to demand the best efforts of all of us. This forms the basis of the present report.

We look forward to meeting with you at an early date to review our findings and recommendations and to consider how they might best be used for the benefit of all concerned.

Respectfully,

CREE-NASKAPI COMMISSION


Richards Saunders Chairman	Robert Kanatewat Commissioner	Philip Awashish Commissioner

Table of Contents

Message froM the ChairMan ............................................................................................ 3

Chapter 1 Introduction and Background .................................................................................................................. 6

Chapter 2 Role and Duties of the Cree-Naskapi Commission Pursuant to the Amendments to the Cree-Naskapi (of Quebec) Act............................................................................................................ 10

Chapter 3 Updates to the James Bay and Northern Quebec Agreement and the New Relationship Agreements ............................................................................................................ 32

Chapter 4 Response of Canada to the Recommendations in the 2008 Report of the Cree Naskapi Commission........................................................................................................................ 42

Chapter 5 Concerns and Issues of the Eeyou (Cree) Nation and Naskapi Nation of Kawawachikamach ...................................................................................................... 50

Chapter 6 Role and Importance of the Cree Trappers’ Association – Establishing the Importance of Traditional Hunting Law and Linkage to Present Day ...................................................... 64

Chapter 7 Recommendations of the Cree-Naskapi Commission.................................................................................... 70

Chapter 8 Conclusions............................................................................................................................................. 78

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Message from the Chairman

Cree and Naskapi Developments

In the two years since our last report there have been a number of major achievements which give reason for optimism about the future of the Cree Nation of Eeyou Istchee and the Naskapi Nation of Kawawachikamach and their resumption of a full range of self-government powers and responsibilities. Notable among these have been the amendments to the Cree-Naskapi (of Quebec) Act, the Eeyou Marine Region Agreement and the Naskapi-Quebec Partnership Agreement. These developments are cause for celebration now and lay the basis for major work on implementation over the coming months and years.

The work of implementation of the amended Act will involve the development of a Cree Nation Constitution – a history-making event which will involve an enormous amount of work and participation from all members of the Cree Nation as well as the active support and cooperation of many external partners including the Commission.

Implementation of the amendments will also mean that the Ouje-Bougoumou Cree Nation will finally be fully recognized in both the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act. Follow up on this will also involve much work for Ouje-Bougoumou and will need full cooperation and support externally.

The Eeyou Marine Region Agreement expands the recognition of Cree rights and jurisdiction in traditional Cree territory and it can be expected to provide many opportunities and challenges especially for resource management and governance in the coming years.

The Naskapi-Quebec Partnership Agreement was signed in Kawawachikamach on October 19, 2009 by the Nation, by Quebec and by the Naskapi Development Corporation. The Agreement addresses a number of community and economic development matters. The implementation of this Agreement will be an important process for the future growth and development of the community.

In spite of this good news, some stubborn problems, both large and small, persist and will demand more priority to resolve. These include (to name only a few):

housing – the large and growing backlog must be eliminated;
further amendments to the Cree-Naskapi (of Quebec) Act to empower local governments to do their work (e.g. the problem of quorums has been raised year after year with no result);
community specific issues (e.g. Block “D” at Chisasibi which is unresolved after many years of discussion).

A number of new developments are underway. On the positive side, the committing to paper of the Eeyou Indoh-hoh Weeshou-Wehwun (Traditional Eeyou Hunting Law) will, I think, prove to have been a pivotal event leading to a fuller recognition of the rights and interests of the Indoho-sou.

A problematic new development was the passage by Quebec of Bill 40 without any consultation with the Crees of Eeyou Istchee. The Grand Council of the Crees (Eeyou Istchee) told us during the Special Implementation Hearings, “We think this is a unilateral amendment to the James Bay and Northern Quebec Agreement and therefore is unconstitutional.” I think that the Grand Council is right and I am hopeful that their efforts to discuss the matter with the Premier of Quebec result in a positive outcome. The legislation would bring about drastic changes in the governance of Northern Quebec and would,

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in effect, hand significant control over much of the territory to a group which includes no Crees but does include mayors – some of them not even the territory! Certainly this would constitute a major violation of a constitutionally protected Agreement (the JBNQA), would be a breach of the Crown’s duty to consult as affirmed by the Supreme Court of Canada, is incomprehensible coming from a government which only recently signed an agreement aimed at creating a positive new relationship (the Paix des Braves). It is also probably a breach of Quebec’s fiduciary responsibilities. Finally it makes a mockery of the concept of “the honour of the Crown” which the Supreme Court has recently invoked as an underlying principle in Aboriginal/government relations.

Commission Developments

The Amendments to the Cree-Naskapi (of Quebec) Act deal mainly with the evolution of fuller recognition of Cree governance authority and responsibility as well as with the incorporation of Ouje-Bougoumou into the Agreement and the Act. Of rather less importance are the impacts on the work of the Cree-Naskapi commission. The new Cree Regional Authority by-law making provisions of the Act will mean that issues concerning those by-laws and actions taken pursuant to them could form the basis of representations to the Commission in much the same way as issues concerning Band bylaws do now. This is an issue which we shall discuss with the CRA in the coming months.

When the Cree-Naskapi Commission was established 26 years ago it was one of the first Aboriginal commissions. Now more than 50 Aboriginal commissions, tribunals and boards (Aboriginal CTBs) operate across the country. Originally, the Commission’s work was largely guided by the terms of the Act and our own rules made pursuant to section 163 (3). Over time it became increasingly useful to look at best practices, common challenges and common experiences of other CBTs. In order to do this economically the Commission joined the Council of Canadian Administrative Tribunals. Discussion of common problems and sharing of best practices was usually interesting and often useful. As time passed we became more experienced with specific Cree and Naskapi issues and processes. We also became increasingly aware that often the “administrative law” processes and even occasionally the principles of “mainstream” CTBs were not always suitable for a bodygoverned by the Cree-Naskapi (of Quebec) Act, a constitutionally recognized treaties (the JBNQA and NEQA), traditional and customary law, and the body of Aboriginal case law emerging from the Supreme Court of Canada. Often the practical and even the theoretical ways of ensuring fairness are very different for Aboriginal CTBs than for the Immigration and Refugee Board, the Ontario Labour Relations Board or the Transportation Safety Board, for example. The duty of fairness can be achieved, in part, for these bodies by ensuring that no one on the CTB is related by blood, marriage, business relationship or friendship to any party appearing before them. This is frequently not a practical possibility for Aboriginal communities. Fairness must still be achieved but other ways must sometimes be found. Decision-making by consensus rather than by majority is another example. The need to respect traditional law as well as rights flowing from a treaty or based upon Aboriginal law are concepts rarely relevant to the work of most non-Aboriginal CTBs. For these reasons the Commission has initiated discussions with some of the other Aboriginal CTBs, for example the British Columbia Treaty Commission, about the possibility of sharing best practices etc, among ourselves.

After each biennial report, the Cree-Naskapi Commission undertakes a number of proactive follow-up activities. Prior to the 1998 Report, the Commission took the view that once the reports were submitted to the Minister and tabled in the House of Commons and the Senate, our task was complete. We were in legal terminology “functus officio.” It seemed obvious that recommendations based upon extensive community-based presentations and Commission analysis would be seriously considered. If not, why would Parliament have created the Commission and mandated it to report?

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We believed somewhat naively that our recommendations would be addressed by those whose substantive responsibilities included the matters being addressed. This proved not to be the case. The idea that our job was done or, if you like, that we were “functus” would have been a reasonableassumption if, like some other commissions, our findings resulted in binding decisions. In those circumstances the decision must be acted upon (subject of course to judicial review or other intervention by the courts). This means that follow-up by the commission would be both unnecessary and inappropriate. The output of the Cree-Naskapi Commission is not in the form of binding decisions but rather recommendations which the affected parties are free to follow or not as they see fit.

At the same time the Cree, Naskapi and Canadian governments as well as the organizations and individuals who make presentations to the Commission generally have serious concerns, issues and suggestions. They usually prepare thoroughly and frequently answer difficult questions as part of their appearances before the Commission. They participate in hearings knowing that our reports are submitted to the Minister and are subsequently tabled in the House of Commons and the Senate. They may also be aware that the reports are then referred by the Standing Orders of each house to the respective Standing Committee. In light of all this, they have the reasonable expectation that their concerns and suggestions will at least be given serious consideration.

The problem for the Cree-Naskapi Commission was what to do to ensure that serious community issues were taken seriously by those who could address them. Beginning after the 1998 Report, we undertook increasingly proactive follow-up. At various times this has included such things as face-toface meetings with the Minister and/or senior officials, meetings with Parliamentary Secretaries, other federal departments and agencies when appropriate and, perhaps to the greatest effect, appearances before the House of Commons and Senate Standing Committees. We also meet with the Cree and Naskapi leadership to review the reports every two years. From time to time we have met with other Aboriginal organizations when our reports raised issues of interest to them.

In the case of the 2008 Report, a concrete example of our follow-up was the appearance on May 9, 2009 before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development. On that occasion the Committee heard the Commissioners for 1 hour and 55 minutes. This is a lengthy period and it is a reflection of the seriousness with which the Committee considered Cree and Naskapi issues. It is also an indication of the extent to which matters raised by the communities come to the direct attention of Members of Parliament via the Commission. On a previous occasion the Commission had suggested that the Naskapi themselves be invited to appear before the Committee to elaborate upon community concerns which we had raised. The Committee agreed and the Naskapi leaders made a full presentation.

While we realize that many of our community-based recommendations may not be implemented, nevertheless we make every effect to ensure that they are seriously considered by those with the ability to do something about them. The Standing Committees are one of the most effective ways of achieving that objective.

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Chapter 1:

Introduction and Background

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

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

The Agreement in Principle, signed on November 15, 1974 by the representatives of the Crees, Canada, Quebec and certain crown corporations provided for 2000 square miles of land as reserves (Category I lands) to the Crees and of which 1274 square miles were to be administered under the Indian Act. In addition, section 16 of the Agreement in Principle stated that the “Band Councils will have certain powers ... in addition to those provided at present by the Indian Act.”

However, the Cree leadership, in the negotiations leading to the final agreement which is the James Bay and Northern Quebec Agreement, rejected the restrictive and supervised regime of local government imposed on the Cree bands by the Indian Act.

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

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The Supreme Court of Canada, in a decision rendered on May 14, 2010, states:

“The Agreement, which is both an Aboriginal rights agreement and an intergovernmental
agreement, establishes a comprehensive and elaborate regime for the administration of
the James Bay territory … This Agreement, which was clearly intended to have force of
law, has supra-legislative status. It came into force and bound the parties only after both
provincial and federal legislation approving and giving it effect was in force, and includes
a clause which clearly indicates that, in the event of a conflict, the Agreement is to be
paramount over other federal and provincial laws of general application. Both provincial
and federal authorizing legislation confirm the Agreement’s paramountcy. The Agreement
has also constitutional status as it qualifies as a modern treaty for the purposes of s. 35(3)
of the Constitution Act, 1982.”¹

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

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.”²

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.

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.

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The representatives of the Cree and Naskapi parties and the Government of Canada arrived at an understanding as to the implications and impact of the Cree-Naskapi (of Quebec) Act, in the Statement of Understanding of 1984, which is best described as follows:

“The Cree-Naskapi (of Quebec) Act is the cornerstone of the achievement of the full
potential of the James Bay and Northern Quebec Agreement and Northeastern Quebec
Agreement. The new structures which were created by the Agreements were meant to
interface with properly constituted local governments. The Cree-Naskapi (of Quebec)
Act is also the basis upon which the relationship with the Federal Government will be
redefined. By way of the new Cree-Naskapi (of Quebec) Act, the Cree and Naskapi will
be able to go beyond the restrictions inherent in the Indian Act and thereby assume full
control in the administration of their communities and management of Category IA and
IA-N Lands.”

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 1A and Category 1A-N Land by the Cree and Naskapi bands respectively, and for the protection of certain individual and collective under the said Agreements” (Preamble of the Act).

Consequently, the Cree-Naskapi (of Quebec) Act, 1984, is the first legislation in Canada to provide some recognition of Aboriginal self-government. It redefines the relationship between the Government of Canada and the Cree and Naskapi peoples.

Except for the purposes of determining which of the Cree and Naskapi beneficiaries are “Indians” within the meaning of the Indian Act, the Cree-Naskapi (of Quebec) Act replaces the Indian Act which does not apply to the Cree and Naskapi First Nations, nor does the Indian Act apply on or in respect of Category IA or IA-N land of the Cree bands and Naskapi band respectively.

With the exception of Part XII (provisions respecting the establishment, duties and operations of the Cree-Naskapi Commission) of the Act, the Cree-Naskapi (of Quebec) Act came into force on July 3, 1984.

Part XII of the Cree-Naskapi (of Quebec) Act respecting the establishment, duties and operations of the Cree-Naskapi Commission came into effect on December 1, 1984.

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

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.”⁵

The present report constitutes the twelfth (12th) biennial report to the Minister pursuant to subsection 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 16 –18, 2010, 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.

Bill C-28, An Act to Amend the Cree-Naskapi (of Quebec) Act, was introduced in the House of Commons on April 27, 2009. The legislation aims to implement Canada’s undertakings under

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agreements seeking to resolve longstanding issues under the 1975 James Bay and Northern Quebec Agreement (JBNQA). In particular, the legislation amends the Cree-Naskapi (of Quebec) Act, in respect of Cree bands and Category IA land,

a) to provide the Cree Regional Authority with additional responsibilities and powers, including
by-law making powers; and

b) to recognize the Cree of Ouje-Bougoumou as a separate band and a local government under
the Act.

Chapter 2 of the present report describes the role, duties and mandate of the Cree-Naskapi Commission in a consolidated manner and as a consequence of the recent amendments to the Act.

Chapter 3 of the present report entitled “Updates to the James Bay and Northern Quebec Agreement and the New Relationship Agreements” describes the development and the future of Cree Nation Governance. This chapter is primarily based on the representation of the Grand Council of the Crees (Eeyou Istchee) made at the Commission’s Special Implementation Hearings.

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. 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 4 of the present report outlines and comments on the response of the Department of Indian Affairs and Northern Development to the 2008 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.

Chapter 5 of the present report, “Concerns and Issues of the Eeyou (Cree) Nation and the Naskapi Nation of Kawawachikamach,” outlines the issues and concerns of the Cree and Naskapi Nations as expressed at the Special Implementation Hearings of the Commission.

On February 16, 2010, representatives of the Cree Trappers’ Association (CTA) spoke to the members of the Commission at its Special Implementation Hearings held in Montreal. The Commission, in Chapter 6 of the present report discusses the importance and role of the Cree Trappers’ Association in relation to the Cree First Nations and the Cree Regional Authority and in the implementation of Section 24 (Hunting, Fishing and Trapping) of the James Bay and Northern Quebec Agreement. In addition, Cree Trappers’ Association has been involved in the development of a written compilation of Cree customary law and practice. In particular, the CTA has engaged in an important exercise regarding the development of Eeyou Indoh-hoh Weeshou-wehwun or Traditional Eeyou Hunting Law. Chapter 6 describes the importance of this development.

Chapters 7 and 8 of the present report describe the comments, recommendations and conclusions of the Commission respectively.

END NOTES

Quebec (Attorney General) v. Moses, 2010 SCC 17.
James Bay and Northern Quebec Agreement – 1991 Edition, les Publications du Quebec, Section 9 (Local Government over Category IA Lands), paragraph 9.0.1, p. 172.
Cree-Naskapi (of Quebec) Act, S.C. 1984. C. 46, section 165 (1) (a).
Cree-Naskapi (of Quebec) Act, S.C. 1984. C. 46, section 171 (1).
Cree-Naskapi (of Quebec) Act, S.C. 1984. C. 46, section 21 (j).

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Chapter 2:

Role and Duties of the Cree-Naskapi Commission
Pursuant to the Amendments to the Cree-Naskapi
(of Quebec) Act

Introduction and Background

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

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Powers, Duties and Operations of the Cree-Naskapi Commission

a. part Xii – Cree-naskapi CoMMission

Part XII of the Cree-Naskapi (of Quebec) Act respecting the establishment, duties and operations of the Cree-Naskapi Commission came into effect on December 1, 1984.

B. staff of the Cree-naskapi CoMMission

Section 162 of the Act provides for the staff of the Commission. The Commission may, with the approval of the Treasury Board, employ or engage such officers, employees and agents as are necessary for the proper conduct of the work of the Commission. Presently, the Commission has a Director-General, a Director of Finance, an Executive Assistant and a Receptionist. Persons employed or engaged by the Commission shall be paid such remuneration as is fixed by the Commission with the approval of the Treasury Board (subsections 162 (1) and (2) of the Act.)

C. QuoruM and deCision-Making

A quorum of the Commission consists of all members (subsection163 (1) of the Act). Decisions of the Commission shall be made by majority vote, except as provided in section 164 (subsection 163 (2) of the Act). Section 164 states that the “Commission may, by unanimous decision of its members, delegate its powers or duties, except those referred to in subsection 163 (3) and paragraph 165 (1) (a), to one or more members thereof.” Consequently, the Commission cannot delegate its powers or duties for making rules for the conduct of its business and for preparing biennial reports on the implementation of the Act.

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Amendments to the Cree-Naskapi (of Quebec) Act

d. speCifiC duties, powers and responsiBilities of the CoMMission

In addition to the authority of the Cree-Naskapi Commission to engage staff for the proper conduct of its work and pursuant to subsection 163 (3) of the Cree-Naskapi (of Quebec) Act, the Commission may make rules for the conduct of its business. Therefore, on September 1, 1986, the Commission established its rules of procedure for the conduct of its investigations and hearings.

Sections 165–171 of the Act set out the other and principal duties, powers and responsibilities of the Cree-Naskapi Commissions as follows:

“165. (1) The Commission shall

a) prepare biennial reports on the implementation of this Act, in accordance subsection 171
(1) and;
b) except as provided by subsection (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.

(2) The Commission shall not investigate or continue to investigate a representation in respect of whose subject-matter judicial proceedings have been commenced. (The Act not only provides for a relatively simple representation and investigation process, it also recognizes that everyone has the right to seek to have their concerns heard and determined through the normal court processes and that in such cases any investigation by the Commission will cease.)

(3) The Commission may refuse to investigate a representation or may discontinue an investigation if it is satisfied

a) that the representation has not been made in good faith;
b) that the person making the representation does not have a sufficient personal interest in the
subject-matter of the representation;

c) that, having regard to all the circumstances of the case, an investigation, or the continuation
of the investigation, as the case may be, would serve no useful purpose; or

d) that there exists a suitable alternative means by which the representation may be investigated
or otherwise pursued.
(These provisions do give the Commission certain parameters within which it may refuse to investigate or may discontinue an investigation already underway. In exercising this limited discretion, the Commission is required to follow certain procedures to ensure transparency and accountability.)

(4) Where the Commission refuses to investigate a representation or discontinues an investigation, it shall forthwith, in writing, so inform the person who made the investigation, stating and explaining on which of the grounds set out in subsection (2) or (3) the Commission’s decision was based.

(The standard practice of the Commission is not only to fully and promptly follow this section but, where appropriate, to advise the individual that further consideration may be given if new and relevant information is provided. Also the Commission may suggest alternative ways to address the concern, particularly when subsection 165 (3) (d) was the grounds on which the refusal to investigate was based.
When the Commission does decide to investigate a representation, the Act provides some clear procedures which must be followed:)

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166. (1) Where the Commission decides to investigate a representation, it shall forthwith give
notice to

a) the person who made the representation;

b) the band or bands referred to in the representation;

c) any person whose misconduct is alleged in the representation; and

d) the Minister.
(These provisions are intended to ensure that the Commission’s investigative activities are known to all concerned and that anyone whose conduct is in question is informed and has an opportunity to address the issues.
The Act also protects the privacy of the parties while providing that in appropriate circumstances a public investigation may be held. The relevant provision reads as follows:)

(2) An investigation by the Commission under this Part shall be conducted in private unless the Commission is satisfied that the public conduct of the investigation would not be prejudicial to the interests of any person, in which case it may order the investigation to be conducted in whole or in part in public.

(The Act also explicitly gives the right to anonymity to those filing representations.)

(3) Where a person making a representation to the Commission under this Part so requests, the Commission shall not identify that person in any proceeding under this Part or in any report under section 170 or subsection 171 (1).

(While conducting an investigation the Commission may request evidence but does not have the power to compel compliance with the request.)

167. The Commission, where it deems it necessary, in the conduct of an investigation under
this Part, may request any person to appear before it, give evidence and produce documents and things, but such person is under no obligation to comply with the request, and the Commission has no power of subpoena.

(As a practical matter, the Commission has never been faced with a refusal to testify. If it were, the fact of that refusal would be explicitly noted in the Report of the Investigation.
The right of any person, against whom a negative finding may be made, is entitled to be informed beforehand and to be heard on the matter.)

168. The Commission shall not make any negative finding against a person unless it has given
him reasonable notice of his alleged misconduct that might form the substance of such a finding and has allowed him an opportunity to be heard in person or by counsel.

(Standard protections are afforded to those participating in hearings provided that they are acting in good faith. These provisions permit participants to speak freely so long as they are not acting in bad faith or out of malice.)

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Amendments to the Cree-Naskapi (of Quebec) Act

169. (1) No action lies against the Commission, any member thereof, or any person holding
an office or appointment under the Commission, for anything done or reported or said in the
course of the exercise or intended exercise of his official functions, unless it is shown that he
acted in bad faith.

(2) In the absence of malice, no action for defamation lies against a person for testimony that he has given under oath before the Commission.

(The Act also provides clarity on the minimum reporting requirements which the Commission must follow at the end of an investigation.)

170. At the conclusion of an investigation under this Part, the Commission shall prepare a report stating its findings, conclusions and recommendations in respect of the matter investigated, and shall forthwith send copies of the report to the persons referred to ubsection 166 (1) and to any person against whom the Commission has made a negative finding.

171. (1) Within two years after the coming into force of this Part and thereafter within six months of every second anniversary of the coming into force of this Part, the Commission shall prepare and submit to the Minister a report, in English, French, Cree and Naskapi, on the implementation of this Act, and the Minister shall cause the report to be laid before each House of Parliament on any of the first ten days on which that House is sitting after the day the Minister receives it.

(2) Forthwith after a report is laid before each House of Parliament under subsection (1), the Minister shall send a copy of the report to the Cree Regional Authority, the Naskapi Development

Corporation, the council of each Cree band and the council of the Naskapi band.”

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In the exercise of its duties under the Act, the Commission has prepared the following documents:

a) discussion papers on the implementation of and amendments to the Cree-Naskapi (of Quebec) Act,
treaty implementation and local government elections under the Act;

b) submissions to the parliamentary committees;

c) investigation reports on representations made under paragraph 165 (1) (b) of the Cree-Naskapi
(of Quebec) Act; and

d) eleven biennial reports prepared pursuant to section 171 (1) of the Cree-Naskapi (of Quebec) Act.

In order to prepare for its biennial reports, the Commission conducts special implementation hearings which enable the Commission to gather information on the concerns and issues of the Cree Nation of Eeyou Istchee, Naskapi Nation of Kawawachikamach and Government of Canada. In addition to local community issues, the Cree and Naskapi Nations have expressed concerns about matters relating to the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. Consequently, the commission reports, in its biennial reports, on the implementation of these Agreements.

In fact, the preamble of the Act 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 legislation 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;”

In virtue of section 165 (1) (b) of the Cree-Naskapi (of Quebec) Act, the Commission has the duty to investigate any representation submitted to it relating to the implementation of the 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.”

Furthermore, section 21 (j) of the Act states that one of the powers and objects of the Bands is “to exercise the powers and carry out 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.”

The Commission, clearly by these provisions of the Act, has the duty and responsibility to report on the implementation of the Act and Agreements as well as investigate and report (when a representation is made and the Commission agrees to investigate) on the exercise or non-exercise of a power under this Act and Agreements and the performance or non-performance of a duty under this Act and Agreements.

Furthermore, pursuant to section 10 of the James Bay and Northern Quebec Native Claims Settlement Act, the Minister of Indian Affairs and Northern Development has an obligation to submit an annual report to the House of Commons on the implementation of the provisions of the said Act, for the period between 1978 and 1998 inclusive. The Minister, therefore, had a legal obligation and duty to report on the implementation of the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, as the Act and the regulation respecting the NEQA made pursuant to the Act, approve and give effect to and declare valid the Agreements.

| 15 | Role and Duties of the Cree-Naskapi Commission Pursuant to the
Amendments to the Cree-Naskapi (of Quebec) Act

With the exception of compliance in a timely fashion, the Minister appears to have complied with this duty and obligation.

In 1998, the period specified in the Act for the Minister to report annually on the implementation of the JBNQA and NEQA expired.

However, the Cree members at the 1999 Annual General Assembly of the Grand Council of the Crees (Eeyou Istchee) and the Naskapi members at the 1999 local General Assembly of the Naskapi Nation of Kawawachikamach adopted resolutions which direct the Cree-Naskapi Commission to report on the implementation of the James Bay and Northern Quebec Agreement and Northeastern Quebec Agreement. It is intended by the Cree and Naskapi members that the Cree-Naskapi Commission assume this reporting duty in the absence of a comprehensive reporting mechanism and until the parties concerned have achieved an agreement on an appropriate and effective reporting mechanism or process on the implementation of the Agreements.

Implementation of the Act and Agreements means putting into effect or action the spirit, intent and letter of the Act and Agreements. The federal government as well as the Cree and Naskapi local governments has the duty and responsibility for putting into effect or action the spirit, intent and letter of the Act and Agreements. Consequently, the Commission has the duty to monitor and report on the manner and progress of the Government of Canada and the Cree and Naskapi local governments in putting into effect or action the spirit, intent and letter of the Act and Agreements.

In particular, the Commission must monitor and report on the implementation of the terms and provisions of the Cree-Naskapi (of Quebec) Act. The terms and provisions of the Act include the following:

1) Preamble;

2) Interpretation;

3) Inconsistency with Federal and Provincial Law;

4) Application of Indian Act;

5) Band By-laws and Resolutions;

6) Regulations;

7) Incorporation by Reference of Provincial Laws;

8) Part I – Local Government;

9) Part II – Band Elections;

10) Part III – Meetings and Referenda of the Band;

11) Part IV – Financial Administration of Band;

12) Part V – Residence and Access Rights on Category IA and IA-N Land;

13) Part VI – Rights of Bands, Quebec and Others in Relation to Category IA and IA-N Land;

14) Part VII – Expropriation of Category IA or IA-N Land by Quebec;

15) Part VIII – Disposition of Rights and Interests in Category IA and IA-N Land and Buildings;

16) Part IX – Cessions by Bands;

17) Part X – Land Registry System;

18) Part XI – Expropriation by Bands;

19) Part XII – Cree-Naskapi Commission;

20) Part XIII – Successions;

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21) Part XIV – Tax Exemptions;

22) Part XV – Seizure Exemptions;

23) Part XVI – Policing;

24) Part XVII – Offences;

25) Part XVIII – Administration of Justice;

26) Part XIX – General;

27) Part XX – Consequential Amendments to other Acts; and

28) Coming into Force.

A Brief Outline on Filing a Representation

If you have a concern

about the implementation of the provisions of the Cree-Naskapi (of Quebec) Act, James Bay and Northern Quebec Agreement, Northeastern Quebec Agreement; or
about the exercise or non-exercise of a power under the Act or Agreement(s); or
about the performance or non-performance of a duty under the Act or Agreement(s),

You should

read the relevant sections of the Act or the Agreement(s) carefully;
consider the facts as you understand them;
review the various ways you might have the concern addressed;
decide whether you wish the Commission to consider the matter.

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Amendments to the Cree-Naskapi (of Quebec) Act

Then, if you wish to proceed with a “representation” to the Commission, you should

write out your concern(s) including which section of the Act or Agreements you feel is relevant;
assemble whatever documentary evidence you have;
call the Cree-Naskapi Commission office (1-888-236-6603) and discuss the matter; and/or
send a letter to the Commission explaining that you wish to file a representation along with an outline of the issue or concern.

Upon receipt of your letter, the Director General of the Commission will brief the Commissioners at the next regular monthly meeting of the Commission. If the Commissioners consider that the matter may form the basis of a representation under the Act or Agreement(s), you will be invited to a pre-hearing to explore the matter in more detail. After the pre-hearing, the Commissioners will decide whether to proceed to an investigation under the Act. The Director General will then advise you of the decision as well as of the next steps in the process. If the decision is not to proceed, you will be advised of the reasons and you may be given some suggested alternatives.

e. duties and powers of Canada and the Cree and naskapi loCal
governMents and the Cree regional authority

The Government of Canada, the Cree and Naskapi local governments and the Cree Regional Authority and subsequently the Cree Nation Government have powers and duties under the Act as well as responsibilities and obligations under the Agreements.

What are these duties, powers, responsibilities and obligations of the Government of Canada, the Cree and Naskapi local governments and the Cree Regional Authority?

As a formal mode of governance and by enacting the Cree-Naskapi (of Quebec) Act pursuant to treaty obligations, the Government of Canada assumed certain duties and responsibilities for the proper administration and implementation of the Act. Canada’s duties and responsibilities flow from the following:

i. Treaty obligations and undertakings pursuant to the James Bay and Northern Quebec Agreement
and the Northeastern Quebec Agreement;
ii. Section 91 (24) of the Constitution Act, 1867, respecting federal power to make laws in relation to
“Indians, and lands reserved for Indians;”
iii. Cree-Naskapi (of Quebec) Act;
iv.     Section 35 of the Constitution Act, 1982, which provides for the recognition and affirmation of
   existing Aboriginal and treaty rights;

v.     Fiduciary responsibility to protect the interests of Aboriginal peoples;
vi. Federal policy respecting recognition of the inherent right to self-government as an existing
Aboriginal right under section 35 of the Constitution Act, 1982;
vii.   Federal plan of action as outlined in the document entitled ‘Gathering Strength’ and centered on
  renewing the partnerships, building strong communities, strengthening Aboriginal governments
  and establishing new fiscal relationships;
viii. Duty of government to maintain the ‘honour’ of the Crown;
ix. Custom, usage, and practice;

x. Principles of public law and administration;
xi. Ministerial responsibility and accountability to Parliament; and
xii. Moral suasion.

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It is clear that the duties and responsibilities of the Government of Canada extend beyond the enactment of the Cree-Naskapi (of Quebec) Act. Canada must also respect and honour its primary duties and responsibilities for the proper administration and implementation of its legislation – the Cree-Naskapi (of Quebec) Act. (The Cree and Naskapi local governments also assume certain duties and responsibilities for the proper implementation of the Act.)

In the first place, it was the Cree and Naskapi peoples who had the political will and vision to demand and initiate the change of local government from the restrictive legal regime of the Indian Act to that of the Cree-Naskapi (of Quebec) Act as contemplated in the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. Therefore, the Cree and Naskapi peoples expect the Government of Canada to find the political will and provide legislative and administrative as well as financial measures neessary for the advancement and completion of this change. In many ways, this change involves the redefinition of relations between the Government of Canada and the Cree and Naskapi (First) Nations.

The Cree-Naskapi (of Quebec) Act does not, specifically, establish a process for its proper implementation. In the absence of such a process, general responsibility for the proper implementation and administration of the Cree-Naskapi (of Quebec) Act was assumed by the Department of Indian Affairs and Northern Development (DIAND). In addition, the Cree-Naskapi Commission was established and empowered to monitor and report on the implementation of the Act.

Typically, the process of implementation, as in the case of the Cree-Naskapi (of Quebec) Act, has been that Parliament enacts legislation and its administration and implementation remains the responsibility of the Minister of Indian Affairs and Northern Development. At best, there are a few questions of organization such as the present James Bay Implementation Office.

Furthermore, under the Act, the Governor in Council may make regulations prescribing anything that by the Act is to be prescribed and generally for carrying out the purposes and provisions of the Act. In particular, the Governor in Council may make regulations on the following matters:

a) taxation powers of the band;

b) band elections;

c) land registry systems;

d) special band meetings and referenda;

e) long-term borrowing of the band;

f) substantive or procedural aspects of expropriations by bands; and

g) maximum fine or a maximum term of imprisonment, or both, for contravention of a regulation.

A band by-law respecting a change in the name of a band is not valid unless approved by the Governor in Council (subsection 16 (1) of the Act.)

Pursuant to subsections 158 (1) and (2) of the Act, upon the recommendation of the Cree Regional Authority and the Naskapi Nation of Kawawachikamach, the Governor in Council shall appoint a maximum of three individuals to the Cree-Naskapi Commission and shall designate one member of the Commission as Chairman. The Governor in Council shall also designate the place of the head office of the Commission on the recommendation of the Cree Regional Authority and the Naskapi Band if the head office of the Commission is to be relocated from the City of Val d’Or, Quebec (Under section 161 of the Act, the city of Val d’Or is designated as the location for the head office of the Commission. However, an Order-in-Council was adopted to relocate the head office of the Commission from Val d’Or to Ottawa.)

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Amendments to the Cree-Naskapi (of Quebec) Act

In addition, the Minister of Indian Affairs has the authority to approve or disallow certain band bylaws (i.e. band election by-laws pursuant to section 66 of the Act). The Minster has also some duties under the Act for matters respecting the financial administration of the bands (i.e. appointment of an administrator if a band’s financial affairs are in serious disorder and appointment of the band’s auditor if band fails to make such an appointment).

Furthermore, the Minister receives the biennial reports of the Commission and causes the report to be laid in each House of Parliament.

Under subsection 176 (2), the Minister may accept as a will any written instrument signed by a Cree beneficiary or Naskapi beneficiary, or bearing his mark, in which he indicates his wishes or intention with respect to the disposition of his property on his death.

Pursuant to section 21 of the Act, the objects and powers of a band are

a) to act as the local government authority on its Category IA or IA-N land;

b) to use, manage, administer and regulate its Category IA or IA-N land and the natural resources thereof;

c) to control the disposition of rights and interests in its Category IA or IA-N land and in the natural
resources thereof;

d) to regulate the use of buildings on its Category IA or Category IA-N land;

e) to use, manage and administer its moneys and other assets;

f) to promote the general welfare of the members of the band;

g) to promote and carry out community development and charitable works in the community;

h) to establish and administer services, programs and projects for members of the band, other
residents of the Category IA or IA-N land and residents of the Category III land referred to
in paragraph 6(b);

i) to promote and preserve the culture, values and traditions of the Crees or Naskapis, as the case
may be; and
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.

Pursuant to section 22 of the Act, a “band has, subject to this Act and the regulations, the capacity, rights, powers and privileges of a natural person”. However, a band shall act through its council in exercising its powers and carrying out its duties under the Act (section 26 of the Act) and a council shall act by resolution, except where required to act by by-law (section 27 of the Act.)

Under section 45 of the Act, a band may make by-laws of a local nature for the good government of its Category IA or IA-N land and of the inhabitants of such land, and for the general welfare of the members of the band. In particular, a band may make by-laws respecting

a) the administration of band affairs and the internal management of the band;

b) the regulation of buildings for the protection of public health and safety, including the
construction, maintenance, repair and demolition of buildings;

c) health and hygiene, including

i. the prevention of overcrowding of residences,

ii. the sanitary condition of public and private property,

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iii. the control or prohibition of activities or undertakings that constitute a danger to public
health,

iv. the construction, operation and regulation of waste disposal systems and the collection,
removal and disposal of waste generally, and

v. subject to the laws of the Province, the establishment, maintenance and operation of
cemeteries;

d) public order and safety, including

i. the establishment, maintenance and operation of fire departments,

ii. the discharge of firearms or of arms discharged by compressed air or any other means,

iii. the keeping of animals,

iv. curfews,

v. the prohibition of the sale or exchange of alcoholic beverages,

vi. the possession and consumption of alcoholic beverages in public places, and

vii. the control of public games, sports, races, athletic contests and other amusements;

e) the protection of the environment, including natural resources;

f) the prevention of pollution;

g) the definition of nuisances and the control and prohibition of nuisances;

| 21 | Role and Duties of the Cree-Naskapi Commission Pursuant to the
Amendments to the Cree-Naskapi (of Quebec) Act

h) the taxation for local purposes, otherwise than by means of an income tax,

i. of interests in its Category IA or IA-N land, except those of Canada and Quebec, and

ii. of occupants and tenants of its Category IA or IA-N land, except Canada and Quebec,
subject to subsections (2) and (3) and subject to and in accordance with the regulations
made under subsection (4);

i) subject to subsection (5), the establishment, maintenance and operation of local services, including
services relating to water, sewers, fire protection, recreation, cultural activities, roads, garbage
removal and disposal, lighting, heating, power, transportation, communication or snow removal,
and respecting user charges for any such service;

j) roads, traffic and transportation, including

i. the operation and speed of vehicles,

ii. the maintenance, construction and operation of roads,

iii. the regulation of traffic of all kinds,

iv. the transportation of dangerous substances, and

v. the establishment, maintenance and operation of wharves, harbours, dry-docks and
other landing places;

k) the operation of businesses and the carrying on of trades; and

l) parks and recreation.

Under section 7 of the Act, a by-law of a band may require the holding of a licence or permit and may provide for the issuance thereof and the fees thereunder.

Under other provisions of the Act, a band may make by-laws on the following matters:

a) prohibition of an activity (section 8 of the Act);

b) change of its English, French or Cree or Naskapi name subject to the approval by the Governor in
Council (section 16 of the Act);

c) land and resource use and planning subject to approval by the electors of the band (section 46
of the Act);

d) zoning subject to approval by the electors of the band (section 47 of the Act);

e) hunting, fishing and trapping and the protection of wildlife subject to submission to and
recommendations of the Coordinating Committee referred to in section 24 of the JBNQA and
approval by the electors of the band (section 48 of the Act);

f) ordinary band meetings including the calling of meetings, the conduct of meetings, quorums,
voting, and the preparation and keeping of records of votes taken (subsection 82 (2) of
the Act);

g) special band meetings and referenda including the calling of meetings and referenda, the conduct
of meetings and referenda, voting at meetings and in referenda and keeping of records of votes
taken (subsection 86 (1) of the Act);

h) adoption of a fiscal year different from that provided for in subsection 89 (1) of the Act;

i) preparation and implementation of budgets;

j) short and long term borrowing subject to the approval of the electors of the band (section 97
of the Act);

k) procedures for the awarding of contracts and the calling of tenders;

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l) exercise of residence and access rights; and

m) stipulation of a maximum fine or maximum term of imprisonment, or both, for contravention of a
band by-law, but such maximum fine or maximum term of imprisonment may not exceed two
thousand dollars or six months, respectively.

Pursuant to sections 64, 65 and 66 of the Act, a band may make election by-laws which shall include
provision for

a) the calling of elections and notices of elections;

b) the number of positions of council members;

c) the length of the term of office of council members;

d) the method of electing council members;

e) the basis on which one of the council members shall hold the office of chief;

f) the basis on which one of the councillors shall hold the office of deputy chief;

g) nomination procedures;

h) election method and procedures; and

i) the recording and certification of election results.

These election by-laws are subject to approval by the electors of a band and the Minister.

In virtue of section 6 of the Act, a “by-law made under this Act may have application within the following territorial limits:

a) the band’s Category IA or IA-N land; and

b) Category III land situated within the perimeter of that band’s Category IA or IA-N land and the
ownership of which was ceded by letters patent or by any other method

i. prior to November 11, 1975, in the case of Category III land within the perimeter of
Category IA land, or

ii. prior to January 31, 1978, in the case of Category III land within the perimeter of
Category IA-N land.”

The band has other responsibilities such as adoption of an annual budget by resolution and appointment of a duly accredited auditor at a special meeting or referenda.

Under the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec, for the period of 50 years commencing from April 1, 2002, the Crees assume the obligations of Quebec, Hydro-Québec and the James Bay Energy Corporation concerning Economic and Community Development, in favour of the Crees, under the provisions of the JBNQA.

Furthermore, pursuant to the Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee, the Cree Regional Authority, and subsequently the Cree Nation Government, assumes certain responsibilities of Canada under the JBNQA for the 20-year term of this Agreement. The assumed federal JBNQA responsibilities comprise the federal share of capital costs, operations and maintenance (including insurance), and programs and services, as applicable, for the term of this Agreement respecting the items listed under the following provisions of the JBNQA:

a) Section 18, regarding Administration of Justice (Crees), with the exclusion of certain matters listed
in the Agreement;

b) paragraph 24.3.24, sub-paragraph 28.4.1 a) and subsection 28.5, regarding the Cree Trappers’
Association;

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Amendments to the Cree-Naskapi (of Quebec) Act

c) sub-paragraph 28.4.1 b) and subsection 28.6 regarding the Cree Outfitting and Tourism
Association;

d) sub-paragraph 28.4.1 c) and subsection 28.7 regarding the Cree Native Arts and Crafts
Association;

e) paragraphs 28.9.1 and 28.9.2 regarding training courses, job recruitment and placement related to
Territorial Programs and Enhanced Delivery Structure;

f ) paragraphs 28.9.1 regarding training facilities and 28.9.5 regarding Manpower offices;

g) sub-paragraph 28.11.1 a) regarding the construction or provision of a community centre in each
Cree community;

h) sub-paragraph 28.11.1 b) regarding essential sanitation services in each Cree community;

i) sub-paragraph 28.11.1 c) regarding fire protection, including training of Crees, the purchase of
equipment and the construction of facilities in each Cree community; and

j) paragraph 28.11.2 regarding the provision of an Economic Development Agent in each Cree
community and community affairs services.

This assumption of federal responsibilities referred is made on and subject to the condition of the fulfillment of this Agreement by Canada, including the payments by Canada as set out in Section 6.2 of this Agreement. Furthermore, subject to Cree undertakings regarding certain facilities and services, the Parties of this Agreement recognize and accept that the CRA, and subsequently the Cree Nation Government, shall have full and complete discretion to implement the assumed federal JBNQA responsibilities in the manner, according to the priorities, in the timeframes and to the extent it deems appropriate.

For greater certainty, the CRA is governed by the accountability provisions under the Act Respecting the Cree Regional Authority, R.S.Q., c. A-6.1 with respect to its responsibilities and powers under this Agreement, and the CNQA, as amended from time to time (Section 4.3 – CRA Accountability) of the Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee.

In addition, it should be noted that both of these new relationship agreements have a principle purpose of improving the implementation of the JBNQA.

Consequently, in the execution of its duties, the Cree-Naskapi Commission must take into account the assumed federal (and provincial) duties and responsibilities of the Crees (Cree Regional Authority, and subsequently the Cree Nation Government) under these Agreements. In addition, the Commission should report on the implementation of Canada’s obligations under these Agreements.

However, pursuant to section 4.13 of the Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee, the Cree Regional Authority, and subsequently the Cree Nation Government, will provide to Canada an annual report on the implementation of the assumed federal JBNQA responsibilities.

f. Agreement ConCerning A new relAtionship Between the
government of CAnAdA And the Cree of eeyou istChee

The Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee commits Canada to recommend to Parliament amendments to the Cree-Naskapi (of Quebec) Act.

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Under this Agreement, proposed amendments to the Cree-Naskapi (of Quebec) Act (CNQA) will achieve the following objectives:

1. To enable the Cree Regional Authority (CRA) to receive and carry out the assumed federal
responsibilities as listed in the Agreement;

2. To equip the Cree Regional Authority with the by-law-making powers similar to those of the Cree
Bands under the CNQA; and

3. To expand Cree Nation Governance beyond the scope of the CNQA. (This latter objective is
subject to successful negotiations between the Cree and Canada leading to a Governance
Agreement, Governance Legislation and possible amendments to the JBNQA and to the CNQA.)

In particular, the amendments to the Cree-Naskapi (of Quebec) Act will reflect the following understanding between the Cree and Canada:

a) “an amendment to Section 6 of the CNQA providing that the by-laws of the CRA adopted under the
Act will have application within the territorial limits of Category 1A land and of Category III land
situated within the perimeter of a band’s Category 1A land;

b) amendments to Sections 8 and 9 of the CNQA providing that the provisions of those Sections
apply to by-laws of the CRA adopted pursuant to the CNQA;

c) the inclusion of a new objects section providing, in a manner similar to paragraphs 21(a), (d),
(e), (f), and (i) of the CNQA in relation to Cree bands, that the objects of the CRA under
the CNQA are:

i. to act as a regional government authority on Category 1A land;

ii. to establish minimum regional standards that meet or exceed generally applicable
federal and provincial standards with regard to essential sanitation facilities and
housing and to regulate the use of buildings on Category 1A lands, but only to the
extent that such buildings are used for the purposes of regional governance;

iii. to use, manage and administer moneys and other assets;

iv. to promote the general welfare of the Cree beneficiaries and of the Cree Bands; and v. to
promote and preserve the culture, values and traditions of the Cree beneficiaries and the
Cree Bands;

d) the inclusion of sections of the CNQA providing that the CRA may assume certain federal
responsibilities under the JBNQA or any other agreement, authority or program that may
be agreed upon from time to time by the CRA and Canada;

e) the inclusion of sections in the CNQA providing the CRA with by-law-making powers of a regional
nature for the purpose of establishing minimum regional standards applicable on Category 1A
land in areas where the Cree Bands currently have by-law making powers under the following
paragraphs of the CNQA:

i. 45 (1) (b), respecting the regulation of buildings for the protection of public health and
safety, including the construction, maintenance, repair and demolition of buildings, but
only with respect to housing and with respect to buildings that are used for regional
governance;

ii. 45 (1) (c), respecting health and hygiene, but only with respect to essential sanitation
facilities and housing;

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Amendments to the Cree-Naskapi (of Quebec) Act

iii. 45 (1) (d), respecting public order and safety, but only with regard to sub-paragraph (i)
of the paragraph, for the establishment, maintenance and operation of the fire
departments;

iv. 45 (1) (e), respecting the protection of the environment, including the natural
resources; and

v. 45 (1) (f), respecting the prevention of pollution;

f) the inclusion of a section in the CNQA providing the CRA with by-law-making powers of a regional
nature for the purpose of establishing minimum regional standards applicable on Category 1A
lands respecting essential sanitation;

g) the inclusion of a section in the CNQA that the CRA’s by-laws establishing minimal regional
standards under paragraphs 3.3 e) and f) of the Agreement must meet or exceed generally
applicable federal and provincial standards;

h) the inclusion of a section in the CNQA that, in the event of an inconsistency or conflict between a
by-law of a Cree band and a CRA by-law under the CNQA, the CRA by-law will prevail to the
extent of the inconsistency or conflict;

i) the inclusion of a section in the CNQA providing that adoption process for by-laws by the CRA shall
be through a resolution of the Council of the CRA adopted at a duly convened public CRA
Council meeting and approved by a majority of the members of that Council;

j) the inclusion of a section in the CNQA providing that the powers of the CRA under the CNQA
cannot affect, modify or prejudice or be interpreted as affecting, modifying or prejudicing any
of the rights, privileges or benefits of:

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i. the Inuit beneficiaries under the JBNQA:

ii. the Naskapi Nation of Kawawachikamach or Naskapi beneficiaries under the
Northeastern Quebec Agreement;

iii. the Inuit of Fort George or the Naskapi Nation of Kawawachikamach or Naskapi
beneficiaries under the CNQA; or

iv. the Inuit beneficiaries under the JBNQA and the Naskapi beneficiaries under the
Northeastern Quebec Agreement or under any agreement or undertaking, to which the
government of Quebec or Canada is a party with such Inuit or Naskapi beneficiaries or
with another party on their behalf;

k) the inclusion of a section in the CNQA providing, in a manner similar to Sections 52, 53, and 54 of
the CNQA for band by-laws, that the by-laws of the CRA adopted under the CNQA must be
maintained in a publicly accessible register, a copy must be posted in a public place in the Cree
communities, and a copy must be sent to the Minister;

l) the inclusion of a section in the CNQA providing, in a manner similar to Sections 55 and 57 of the
CNQA for band by-laws, that the by-laws of the CRA adopted under the CNQA may be challenged
by interested persons before the Provincial Court or Superior Court of Quebec;

m) an amendment to paragraph 90 (2) (c) of the CNQA to provide that a copy of the annual budget of
a Cree band is to be sent to the CRA in addition to the Minister, as well as amendments to
subsection 91 (2) of the CNQA to provide that the CRA or any person authorized by the CRA
may, in addition to the persons there enumerated, inspect the books of accounts and financial
records of the Cree bands;

n) an amendment to subsection 93 (5) of the CNQA to provide that, where delegated by the Minister
and such delegation is accepted by the CRA, the CRA may appoint a new auditor for a band and
fix his/her remuneration when a band fails to act pursuant to subsection 93 (4) of the CNQA;

o) an amendment to subsection 94 (2) of the CNQA to add the CRA as a recipient of the notification
from a Cree band auditor as provided for under that subsection;

p) an amendment to section 100 of the CNQA to provide that the CRA receive a copy of any written
notice or order referred to in that Section;

q) an amendment to subsection 138 (1) of the CNQA to add the CRA as a party to be consulted before
permitting a person other than those enumerated therein to develop a project of a regional or
provincial nature on a Cree band’s Category 1A land;

r) an amendment to section 139 of the CNQA to provide that a Cree band shall allocate by way of
servitude, lease or similar contract, and for a fee not exceeding One Dollar ($1.00), land
necessary for services provided or activities carried out by the CRA;

s) an amendment to section 166 of the CNQA to add the CRA to the list of those to whom the
Cree-Naskapi Commission shall give a notice when referred to in a representation that it
decides to investigate;

t) amendments to subsections 190 (1) and (2) of the CNQA to add that the movable and immovable
property situated on Category 1A land and belonging to a Cree beneficiary or a Cree band, and
any right or interest of a Cree beneficiary in Category 1A land (but not the right or interest of a
Cree band in its Category 1A land) may be subject to privilege, hypothec or any other charge,
or to attachment, levy, seizure or execution, in favour of or at the instance of the CRA, in the
same manner as is provided for a Cree band;

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u) the replacement of section 194 of the CNQA to provide that the Eeyou-Eenou Police force under
the CRA and the members of that force have jurisdiction over the Category 1A land of the Cree
bands for the purpose of enforcing the applicable laws of Canada and Quebec and the applicable
by-laws of the Cree bands and of the CRA;

v) an amendment to section 196 of the CNQA to provide that, when an agreement referred to in that
section involves a Cree band, the prior approval of the CRA must also be obtained in order for
that agreement to be validly entered into;

w) amendments to subsections 199 (1) and (2) of the CNQA to add that contraventions of a CRA
by-law adopted pursuant to that Act are offences under the CNQA subject to the same conviction
mechanisms and punishments as provided in those subsections with regard to contraventions of
Cree band by-laws;

x) any consequential amendments to other Acts of Parliament and to regulations or orders adopted
pursuant to the CNQA or pursuant to any other Act of Parliament as may be required or useful to
render effective the amendments to the CNQA set out in this Agreement.”²

The Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee lists other issues that the parties agree to address such as “a review of the role of the Cree-Naskapi Commission, and particularly having regard to avoiding duplication with processes or bodies provided for under this Agreement or the Governance Agreement.”³

g. Bill C-28: an aCt to aMend the Cree-nAskApi (of QueBeC) ACt

Bill C-28, An Act to Amend the Cree-Naskapi (of Quebec) Act, was introduced in the House of Commons on April 27, 2009. The legislation aims to implement Canada’s undertakings under agreements seeking to resolve longstanding issues under the 1975 James Bay and Northern Quebec Agreement (JBNQA). In particular, the legislation amends the Cree-Naskapi (of Quebec) Act, in respect of Cree bands and Category IA land,

a) to provide the Cree Regional Authority with additional responsibilities and powers, including
by-law making powers; and

b) to recognize the Cree of Ouje-Bougoumou as a separate band and a local government under
the Act.

Section 12 of the Cree-Naskapi (of Quebec) Act is amended by adding the following after section 12:

“12.1 Pursuant to subparagraph 9.0.3A (probably should be 9.0.1 a) 4 of the James Bay and Northern Quebec Agreement, the collectivity known as the Crees of Ouje-Bougoumou is constituted as a corporation, and that corporation may be legally designated by its English name, Ouje-Bougoumou Band, its French name, Bande de Ouje-Bougoumou, or its Cree name, Ouje-Bougoumou Eenuch, subject to section 16.”

(Section 16 of the Act provides for power of a band to adopt a by-law respecting change of band name.)

Under paragraph 13.1 (1) of the Act, “the assets, obligations and liabilities of the collectivity known as the Crees of Ouje-Bougoumou shall vest in the Ouje-Bougoumou Band” when this section comes into force. Furthermore, paragraph 13.1 (2) states that the rights, titles, interests, assets, obligations and liabilities of the Ouje-Bougoumou Eenuch Association shall vest in the Ouje-Bougoumou Band when this section comes into force. However, according to subsection 60.1 of the Act, the “by-laws of the Ouje-Bougoumou Eenuch Association that are in force immediately before the coming into force of this section remain in force on the territory, described in section 6, of the Ouje-Bougoumou Band for a period of one year commencing on that coming into force, unless repealed during that period pursuant to this Act”.

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Nevertheless, the collectivity known as the Crees of Ouje-Bougoumou is fully incorporated into the Cree-Naskapi (of Quebec) Act as a band with all the powers, duties and responsibilities of a band under the Act.

Consequently, the Cree-Naskapi Commission must take the powers, duties, responsibilities, issues and concerns of the Ouje-Bougoumou Band or Ouje-Bougoumou First Nation into account in its biennial reports and investigation reports on the implementation of the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act.

Under subsection 9.1 of the amended Act, a “by-law of the Cree Regional Authority made under this Act, may have application within the following territorial limits:

a) Category IA land; and

b) Category III land situated within the parameters of Category IA land and ownership of which was
ceded by letters patent or by any other method before November 11, 1975.”

Subsection 9.2 stipulates that a “by-law of the Cree Regional Authority made under this Act may prohibit an activity.”

The Act is further amended by adding, after section 62, a new Part 1.1 respecting the Cree Regional Authority. Subsection 62.01 of the Act, sets out the objects of the Cree Regional Authority as follows:

a) to act as a regional government authority on Category IA land;

b) to regulate essential sanitation services – including water and sewer services, drainage and solid
waste management – and housing situated on Category IA land and to regulate buildings used for
the purposes or regional governance that are situated on those lands;

c) to use, manage and administer moneys and other assets;

d) to promote the general welfare of the members of the Cree bands; and

e) to promote and preserve the culture, values and traditions of the members of the Cree bands.

Subsection 62.02 of the Act states as follows:

“For greater certainty, the Cree Regional Authority may assume any federal responsibility agreed on by that Authority and the Government of Canada that are set out in the James Bay and Northern Quebec Agreement or any other agreement or in any federal Act or that are in relation to any program of the Government of Canada.”

Under the Agreement concerning a New Relationship between the Government of Canada and the Crees of Eeyou Istchee, the Cree Regional Authority, and subsequently the Cree Nation Government, will assume for the 20-year term of the Agreement the responsibilities of Canada in regard to certain provisions of the JBNQA referred to as the Assumed Federal JBNQA Responsibilities, and will have full and complete discretion to implement these Assumed Federal JBNQA Responsibilities for that term. The Assumed Federal JBNQA Responsibilities comprise the federal share of capital costs, operations and maintenance (including insurance) and programs and services, as applicable, respecting the items listed under the following provisions of the JBNQA:

a) Section 18 – Administration of Justice, including post-detention rehabilitation institutions,
almshouses, workhouses and refuges for women but excluding i) detention facilities contemplated
by paragraphs 18.0.26, 18.0.27 and 18.0.29, ii) amendments to the Criminal Code and the
Canada Evidence Act, and iii) appointments of justices of the peace.

b) Paragraphs 24.3.24, and 28.4.1 and Sub-sections 28.5, 28.6 and 28.7 regarding the Cree Trappers’
Association, Cree Outfitting and Tourism Association and Cree Native Arts Crafts Association
subject to continued annual funding to these associations by Canada;

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c) Paragraphs 28.9.1 and 28.9.2 regarding training courses, job recruitment, and placement related to
Territorial Programs and Enhanced Delivery Structure;

d) Paragraphs 28.9.1 regarding training facilities and 28.9.5 regarding Manpower offices;

e) Paragraph 28.11.1 regarding, in each Cree community, the construction or provision of a
community centre, essential sanitation services and fire protection;

f) Paragraph 28.11.2 regarding the provision of an Economic Development Agent in each Cree
community and community affairs services.

The assumption in regard to paragraphs 28.9.1 and 28.9.2 regarding training courses, job recruitment, and placement related to Territorial Programs and Enhanced Delivery Structure is premised on the continuation by Canada for the duration of the Agreement of the additional funding for training programs and facilities and of job recruitment and placement services in the Territory on terms reasonably comparable to those provided to the CRA in 2008-09 by Canada pursuant to the HRSDC Agreement (Agreement respecting the Aboriginal Human Resources Development Program and Related Services between Her Majesty the Queen in Right of Canada and the Cree Regional Authority).

The by-laws powers of the Cree Regional Authority are set out in subsection 62.03 (1) of the Act. The Council of the Council of the Cree Regional Authority may make by-laws respecting

a) the regulation – for the protection of public health and safety – of buildings and for housing or for
regional governance, including their construction, maintenance, repair and demolition;

b) essential sanitation services – including water and sewer services, drainage and solid waste
management – and health and hygiene in relation to those services and housing;

c) the establishment, maintenance and operation of fire departments; and

d) the protection of the environment, including natural resources, and the prevention of pollution.

However, standards “established in the by-laws in respect of a matter referred to in subsection (1) must be at least equivalent in their effect to any standards established by federal or provincial laws of general application in respect of the matter.”

Pursuant to subsection 62.05 (1), a by-law of the Cree Regional Authority prevails over a by-law of a Cree band in the event of an inconsistency or conflict between such by-laws. However, “if the standards established in a by-law of a Cree band in respect of a matter are more stringent in their effect than the standards established in a by-law of the Cree Regional Authority, the provisions of the by-law of the Cree band that relate to those standards prevail to the extent that they are inconsistent with or conflict with the provisions of the by-law of the Cree-Regional Authority that relate to those standards” (subsection 62.05 (2) of the Act.)

In respect to the financial administration of Cree bands, the Cree Regional Authority has some powers such as access to records and books of bands and appointment of a new auditor of a Cree band.

As a result of the new amendments to the Cree-Naskapi (of Quebec) Act, the Cree-Naskapi Commission must take the powers, duties, responsibilities, obligations, issues and concerns of the Cree Regional Authority into account in its biennial reports and investigation reports on the implementation of the James Bay and Northern Quebec Agreement, its related Agreements and the Cree-Naskapi (of Quebec) Act.

However, the Commission must limit itself to taking into account only the powers, duties and responsibilities of the Cree Regional Authority as provided for in the JBNQA, related Agreements and the Act (i.e. by-laws of the CRA under the Cree-Naskapi (of Quebec) Act).

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In addition, under the amended subsection 166 (1) of the Act, when “the Commission decides to investigate a representation, it shall forthwith give notice to

a) the person who made the representation;

b) the band or bands referred to in the representation;

c) any person whose misconduct is alleged in the representation;

d) the Minister; and

e) the Cree Regional Authority, if it is referred to in the representation.”

Pursuant to section 170 of the Act, the Commission shall, at the conclusion of its investigation of a representation, prepare a report stating its findings, conclusions and recommendations in respect of the matter investigated, and shall forthwith send copies of the report to the persons referred to in subsection 166 (1) and to any person against whom the Commission has made a negative finding.

END NOTES

1 Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee,
paragraph 3.1 of Chapter 3 – Cree Nation Governance

2 Ibid, paragraph 3.3 of Chapter 3 – Cree Nation Governance

3 Ibid, paragraph 3.11 (z) of Chapter 3 – Cree Nation Governance

4. Subparagraph 9.0.3A of the James Bay and Northern Quebec Agreement does not exist. However subparagraph 9.0.1 a)
of the James Bay and Northern Quebec Agreement states as follows: “9.0.1 a) the incorporation of each Cree band and
the extension of the corporate membership to include all Crees eligible to benefit under the Agreement;”

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Amendments to the Cree-Naskapi (of Quebec) Act

Chapter 3:

Updates to the James Bay and Northern Quebec
Agreement and the New Relationship Agreements

Introduction

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 Agreement of February 7, 2002 contemplates also Complementary Agreements No. 13 and No. 14 which amend the pertinent sections of the James Bay and Northern Quebec Agreement (JBNQA) in order to ensure compliance and conformity with the terms and provisions of the present Agreement.

The parties 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.

“This Agreement has the following purposes:

a) The establishment of a new nation-to-nation relationship, based on the common will of the parties
to continue the development of the James Bay Territory and to seek the flourishing of the Crees
and the Cree Nation within a context of growing modernization;

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b) The assumption of greater responsibility on the part of the Cree Nation in relation to its economic
and community development and, in so doing, the achievement of increased autonomy with a
greater capacity to respond, in partnership with Quebec, to the needs of the Crees;

c) The setting up of modern means in order to allow the parties to work together in regard to the
development of mining, forestry and hydroelectric resources in the Territory for the period
of application of this Agreement;

d) The settlement, with discharges identified in this Agreement, for the period of application of this
Agreement, of the provisions pertaining to the economic and community development of the
Crees found in the provisions of the JBNQA identified in this Agreement (as amended as the case
may be by Complementary Agreements thereto), including the nature, scope and implementation
of Quebec’s commitments in this respect;

e) The definitive settlement or the withdrawal of the legal proceedings opposing the Crees, Quebec
and SDBJ in accordance with the provisions of the present Agreement and the establishment of a
process to resolve the legal proceedings opposing the Crees, Hydro-Quebec and the SEBJ;

f) The consent of the Crees to the carrying out of the Eastmain 1-A/Rupert Project; and

g) To facilitate the construction of the EM-1 Project.”¹

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. (The Agreement has a term of fifty (50) years.)

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

On February 21, 2008, in Mistissini, Eeyou Istchee, the representatives of the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and the Government of Canada signed the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee.

The Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee came into force when Parliament appropriated the funding contemplated by the said Agreement. The Agreement has a term of twenty (20) years.

“This Agreement has the following principal purposes:

a) To establish the basis for a new relationship between Canada and the Cree Nation;

b) To improve the implementation of the JBNQA and to provide for the amendment of certain
provisions thereof under the terms of Complementary Agreements as referred to in this
Agreement;

c) To commit Canada to recommend to Parliament amendments to the Cree-Naskapi (of Quebec)
Act (CNQA);

d) To provide the process for negotiating an agreement and related legislation concerning a Cree
Nation Government with powers and authorities beyond the scope of the Cree-Naskapi (of
Quebec) Act and correlative amendments to the JBNQA and the CNQA;

e) To provide for the assumption of the CRA, and subsequently by the Cree Nation Government,
of certain responsibilities of Canada under the JBNQA for the Term of this Agreement;

f) To resolve the claims, grievances and other matters between Canada, the GCC(EI), the CRA
and/or one of several Cree bands as set out in this Agreement; and

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g) To resolve disputes between the Cree Nation and Canada concerning certain of Canada’s
responsibilities under the JBNQA through the resolution, to the greatest extent possible, of
legal proceedings, and to provide a framework for the resolution of future issues that may
arise.”²

The Cree Nation of Eeyou Istchee, the Government of Canada and the Government of Quebec, through these Agreements, agree to resolve differences between them as to the implementation by Canada and Quebec of the James Bay and Northern Quebec Agreement and claims, grievances and other matters, including the resolution of litigation, so as to embark upon a new and positive relationship.

It is important to note that these Agreements purport to settle the differences, grievances and disputes between the Cree Nation of Eeyou Istchee and Canada and Quebec over the implementation of certain obligations and commitments of Canada and Quebec, in favour of the Crees, under the James Bay and Northern Quebec Agreement.

In addition, the parties have agreed, through these Agreements, to establish new and positive relationships.

To this end and as one principal means, the Cree Nation of Eeyou Istchee are presently conducting discussions and negotiations with Canada and Quebec on fundamental issues and serious concerns respecting Eeyou (Cree) Nation Governance.

On February 18, 2010, at its Special Implementation Hearings in Montreal, the representatives of Grand Council spoke to the Commission on recent developments respecting Cree Nation Governance and the future of Cree Nation Governance.

Cree Nation Governance

In 1974, the Cree Nation of Eeyou Istchee established the Grand Council of the Crees (of Quebec). The Grand Council of the Crees was, in later years, renamed the Grand Council of the Crees (Eeyou Istchee.) The Grand Council became the political arm of the Cree Nation of Eeyou Istchee. Under the leadership of the Grand Council, the Crees negotiated and signed the James Bay and Northern Quebec Agreement in 1975. The Cree Nation of Eeyou Istchee exercised the first form of regional nation governance through the Grand Council of the Crees (Eeyou Istchee).

Under Section 5 of the James Bay and Northern Quebec Agreement, Quebec undertook to transfer the administration and management of Category IA lands to Canada for the exclusive use and benefit of the Crees. Under Section 9 of the JBNQA, Canada was obligated to recommend “to Parliament special legislation concerning local government for the James Bay Crees on Category IA lands allocated to them.”³

In 1984, after discussions between Canada and the Crees, Parliament passed the Cree-Naskapi (of Quebec) Act which is the special legislation contemplated by Section 9 of the JBNQA. This Act

provides “for an orderly and efficient system of Cree ... local government, for the administration, management and control of Category IA ... land by the Cree ...”⁴ (In 1984, the Act does not establish a system for Cree regional governance.)

Under Section 11A of the JBNQA, the establishment of a public corporation under the name of the Cree Regional Authority is contemplated. In 1978, the Government of Quebec passed provincial legislation to establish the Cree Regional Authority with the following powers:

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1) “to appoint Cree representatives to the James Bay Regional Zone Council,

2) to appoint Cree representatives to other structures and entities created by the JBNQA.

3) to give consent on behalf of the Crees where required under the Agreement,

4) to allow the Cree bands a central authority to coordinate and administer programs on category
I lands (arguably IB and IB Special lands.)”⁵

The Cree Regional Authority became the administrative arm of the Cree Nation of Eeyou Istchee.

In 1983, the Grand Council (political entity of the Crees) and the Cree Regional Authority (administrative entity of the Crees) began to operate jointly but as separate entities. The leaders and representatives of the Board of Directors of the Grand Council and the Council of the Cree Regional Authority were the same individuals and consequently held joint Council/Board meetings on half of the two entities. The Grand Chief of the Grand Council also assumed the title as the Chairman of the Cree Regional Authority. The Deputy Grand Chief of the Grand Council was also the Vice-Chairman of the Cree Regional Authority.

The Grand Council/Cree Regional Authority continued to seek the proper implementation of the James Bay and Northern Quebec Agreement. “The effort to obtain fulfilment of treaty obligations and the will to define future directions for the Cree Nation has been at the heart of the political and administrative development of the Grand Council-Cree Regional Authority.”⁶

Moreover, the institutions such as the Cree School Board and the Cree Board of Health and Social Services of James Bay established pursuant to the James Bay and Northern Quebec Agreement have resulted in the transfer of substantial powers to the Crees.

The creation and administration of these institutions including the Cree Regional Authority have resulted in the creation of long term relationships between the Crees and the Government of Quebec.

Under the Agreement Concerning a New Relationship Between the Government of Quebec and the Crees of Quebec, in 2002, the Cree Nation assumes the greater responsibility of its economic and

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community development and, in so doing, achieves increased autonomy with a greater capacity to respond, in partnership with Quebec, to the needs of the Crees.

However, some of the treaty obligations under the JBNQA are joint between Canada and Quebec. Consequently, the resolutions of these obligations are complex. So the resolution of these obligations had to await the results of the discussions between Canada and the Crees.

In 2008, the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee was signed. Under this Agreement, the Cree Nation of Eeyou Istchee, through the Cree Regional Authority, and subsequently by the Cree Nation Government, assumes certain responsibilities of Canada under the JBNQA for the Term of this Agreement.

Consequently, Canada must now recognize the present role of the Cree Regional Authority. Furthermore, under the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee, Canada undertook to seek amendments to the Cree-Naskapi (of Quebec) Act (CNQA) to achieve the following objectives:

1. To enable the Cree Regional Authority to receive and carry out the assumed federal
responsibilities as listed in the Agreement;

2. To equip the Cree Regional Authority with the by-law-making powers similar to those of the Cree
Bands under the CNQA; and

3. To expand Cree Nation Governance beyond the scope of the CNQA.⁷ (This latter objective is
subject to successful negotiations between the Cree and Canada leading to a Governance
Agreement, Governance Legislation and possible amendments to the JBNQA and to the CNQA.)

The Cree-Naskapi (of Quebec) Act was recently amended to provide the Cree Regional Authority with additional responsibilities and powers, including by-law making powers.

The representatives of the Grand Council of the Crees (Eeyou Istchee) are presently working to implement the phase I portion of the negotiations set out in Chapter 3 of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee. These negotiations are intended to lead to accommodations by Canada and Quebec for the existence of a new level of Cree Regional Government. “For Canada this involves recognition of the existence and the present role of the Grand Council-Cree Regional Authority and the expansion of certain responsibilities of the CRA and its role as a form of Cree regional government as recently recognized by Canada in amendments to the Cree-Naskapi (of Quebec) Act.”⁸

The first five (5) principal purposes of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee “concern the improvement and evolution of the relationship between the Crees and the Government of Canada:

a) to establish the basis for a new relationship between Canada and the Cree Nation;

b) to improve implementation of the JBNQA and to provide for the amendment of certain provisions
thereof under the terms of Complementary Agreements as referred to in this Agreement;

c) to commit Canada to recommend to Parliament amendment to the Cree-Naskapi (of Quebec) Act;

d) to provide the process for negotiating an agreement and related legislation concerning a Cree
Nation Government with powers and authorities beyond the scope of the Cree-Naskapi (of
Quebec) Act and correlative amendments to the JBNQA and the CNQA;

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e) to provide the assumption by the CRA and subsequently by the Cree Nation Government, of certain
responsibilities of Canada under the JBNQA for the Term of this Agreement.”⁹

Chapter 3 of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee sets out the intent of Canada and the Crees to have Canada recognize and equip the CRA with the tools to act as regional government and it also sets out the intent to further develop the Cree Nation Government in a subsequent phase of negotiations.

Amendments to the Cree-Naskapi (of Quebec) Act

Bill C-28, An Act to Amend the Cree-Naskapi (of Quebec) Act, was introduced in the House of Commons on April 27, 2009. In particular, the legislation amends the Cree-Naskapi (of Quebec) Act, in respect of Cree bands and Category IA land,

a) to provide the Cree Regional Authority with additional responsibilities and powers, including
by-law making powers; and

b) to recognize the Cree of Ouje-Bougoumou as a separate band and a local government under
the Act.

These recent amendments to the Act will allow the Crees to implement the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee as “they provide Federal recognition of a form of Cree Nation Government based on an incremental development in the capacities of the Cree Regional Authority.”¹⁰

In assuming certain responsibilities of the Government of Canada, the Cree Regional Authority has certain obligations in regard to the Cree Nation. For the term of Agreement, the CRA must assume the responsibilities of Canada under the JBNQA in regards to certain aspects of justice, certain Cree regional associations, training and employment services, community centres, essential sanitation services, fire protection and economic development. For this purpose, the CRA recently acquired new powers under the Cree-Naskapi (of Quebec) Act. These amendments came into force on February 1, 2010.

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The amendments to the Act regarding the recognition of the Cree of Ouje-Bougoumou as a separate band and a local government under the Act will come into force when land is set aside by the Governor in Council as Category IA land for Ouje-Bougoumou.

The representatives of the Cree Nation of Eeyou Istchee are presently engaged in discussions with Canada and the Naskapis to review certain technical amendments to the Cree-Naskapi (of Quebec) Act.

CRA By-laws Under the Cree-Naskapi (of Quebec) Act

In order to implement their new responsibilities under the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee, the Cree Regional Authority may, pursuant to recent amendments of the Cree-Naskapi (of Quebec) Act, adopt regional by-laws respecting:

a) the protection of public health and safety of buildings used for housing or for regional governance;

b) essential sanitation services including water and sewer services, drainage and solid waste
management and health and hygiene in relation to those services and housing;

c) the establishment, management and operation of fire departments; and

d) the protection of the environment, including natural resources and the prevention of pollution.

These by-laws will establish minimum regional standards that will apply on all Category IA lands. However, these standards must be at least equivalent in their effect to any relevant standards established by federal or provincial laws of general application.

The Cree Regional Authority is currently working with technical groups to develop the following particular by-laws:

a) by-law respecting the establishment, maintenance and operation of fire departments;

b) by-law concerning the quality of drinking water in the Cree communities;

c) by-law respecting the management of solid waste and residual materials in the Cree communities;
and

d) by-law concerning the treatment of sewage in the Cree communities.

Amendments to the James Bay and Northern Quebec Agreement called
for in the Agreement Concerning a New Relationship between the
Government of Canada and the Cree of Eeyou Istchee

A table with the Crees and Canada has been established to discuss the following amendments to the James Bay and Northern Quebec Agreement as called for in the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee:

a) Amendments to paragraph 2.15 of the JBNQA so as to allow amendments to the JBNQA to be made
without the consent of all the parties to the JBNQA when such amendments do not affect the
interest of a party thereto;

b) Amendments to Section 3 of the JBNQA related to eligibility of Cree beneficiaries; and

c) Amendments to Section 4 of the JBNQA in order to incorporate therein the final territorial
descriptions of Category I lands.

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Delegation of Federal Authorities

Under section 5.9 of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee, Canada and the Crees undertook to discuss the feasibility of delegating to the Cree Regional Authority certain federal authorities under certain pieces of federal legislation respecting the environment and wildlife. A table has been set up for these discussions.

Amendments to the Criminal Code and Other Federal Legislation

Under section 5.10 of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee, Canada and the Crees undertook to discuss certain amendments to the Criminal Code and other federal legislation in order to take into consideration the circumstances, usages, customs and way of life for the Crees. A preliminary list of concerns and potential amendments has been developed. However, Quebec must be involved in this process as most issues also affect the jurisdiction of Quebec. Consequently, the Cree-Quebec Justice Advisory Committee has reviewed and a sub-committee will review these issues and recommend a list of amendments.

Phase Two (2) Cree-Canada Governance Agreement Negotiations

As phase two (2) of the Cree-Canada negotiations respecting Cree Nation Governance, paragraph 3.1 b) of Chapter 3 of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee, provides for “a process for the negotiations leading to a Governance Agreement, Governance Legislation and possible amendments to the JBNQA and the CNQA concerning a Cree Nation Government with powers and authorities beyond the scope of the CNQA and its amendments ... Such negotiations, if successful, would expand Cree Nation governance beyond the CNQA powers by establishing the structures and powers of a Cree Nation Government and the relationship of such Government with Cree bands and federal and provincial governments.”¹¹

Quebec is to be invited to these negotiations for relevant matters.

The issues that the Crees and Canada agree to address during the negotiations process leading to the Governance Agreement are listed in paragraph 3.11 of Chapter 3 of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee. This list includes the following issues:

a) process for approval of the Governance Agreement and the Cree Constitution;

b) legal status of the Governance Agreement and correlative amendments to the JBNQA;

c) amendment procedures for the Governance Agreement;

d) application of various federal and provincial laws;

e) the relationship of Cree Nation Government laws to the laws of other governments;

f) inter-governmental dispute resolution mechanisms;

g) creation of new Cree bands and Cree band amalgamations;

h) measures for addressing international legal obligations of Canada;

i) the Canadian Charter of Rights and Freedoms;

j) fiscal relations between Canada and the Crees;

k) tax treatment matters;

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l) delegation of powers;

m) legal status and capacity;

n) exemption from seizures of assets;

o) geographical scope of powers;

p) own source revenues;

q) clarification of the respective roles of the Cree Nation Government in relation to those of the Cree
bands, the GCC(EI) and the CRA and the identification of any potential impact on the CNQA and
the JBNQA;

r) implementation, including principles for development and content of an implementation plan for
the Governance Agreement and Governance Legislation, and transition measures; and

s) a review of the role of the Cree-Naskapi Commission, and particularly having regard to avoiding
duplication with processes or bodies provided for under this Agreement or the Governance
Agreement.

This Cree-Canada table is also the forum where a Cree Nation Constitution will be discussed with Canada. This Cree Nation Constitution, as the fundamental law of the Cree Nation, shall reflect its values and beliefs and shall be consistent with the Governance Agreement. “The Cree Nation Constitution may reflect the structure of Cree government – both at the local and regional levels – their relationship with the governments of Canada and Quebec and their laws. It will also include the general principles guiding Cree relations with Canada and Quebec.”¹²

In addition and outside the context of the Cree-Canada table and negotiations, the Cree Nation “may wish to develop another declaration outlining the internal rights of Cree citizens …, the expectations of the collectivity for the individuals and the means to enforce these. Such a document if developed would be public, but would not necessarily require the consent of any authority but the Cree Nation Government and/or the Cree people.”¹³

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Cree-Quebec Negotiations

The Municipalité de la Baie James (MBJ) was created by the James Bay Region Development Act, enacted by Quebec in 1971, as a regional municipal government in the James Bay Region. It was placed directly under the control the Société de développement de la Baie James (SDBJ) … a Quebec Crown Corporation. The MBJ Council was formed of the directors of the SDBJ appointed by Quebec.

In 2001, Quebec enacted the Act to Amend the James Bay Region Development Act and other Legislative Provisions, S.Q. 2001, c.61 (Bill 40). Bill 40 purportedly changed the governing structure of the MBJ, shifting effective control of the MBJ away from the SDBJ (controlled by Quebec) to a local, non-representative municipal council, accountable only to local interests of certain non-Aboriginal communities situated outside, but adjacent to, the territory of the MBJ. Bill 40, in effect, excludes the elected representatives of the Cree communities of Eeyou Istchee from the MBJ despite the fact that the Crees represent more than half the entire population of the James Bay territory. As a result of Bill 40, the representatives of certain non-Aboriginal communities are presently purportedly recognized as the sole regional government representatives for the entire James Bay territory which encompasses Category II and III lands of Eeyou Istchee.

Consequently, another “distinct process – the Cree-Quebec Territorial Issues Process – has been set up with Quebec to review and resolve the issues concerning the Municipalité de la Baie James … and the role of the Crees in regional governance over category II and III lands.”¹⁴

END NOTES

1 Agreement Concerning a New Relationship between the Government of Quebec and the Crees of Quebec – paragraph 2.5 of Chapter 2 – General Provisions.

2 Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee – paragraph 2.1 (Principal Purposes) of Chapter 2 – General Provisions.

3 James Bay and Northern Quebec Agreement and Complementary Agreements –1991 Edition – Les Publications du Quebec – Section 9 (Local Government over Category IA Lands) – p. 172.

4 Cree-Naskapi (of Quebec) Act, S.C. 1984, C. 46.

5 Submission of the Grand Council of the Crees (Eeyou Istchee) to the Cree-Naskapi Commission, Montreal,
February 18, 2010, p. 2.

6 Ibid, p. 3.

7 Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee – paragraph 3.1 of Chapter 3 – Cree Nation Governance

8 Submission of the Grand Council of the Crees (Eeyou Istchee) to the Cree-Naskapi Commission, Montreal,
February 18, 2010, p. 6.

9 Ibid.

10 Ibid, p. 7.

11 Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee – paragraph 3.1 b) of Chapter 3 – Cree Nation Governance

12 Submission of the Grand Council of the Crees (Eeyou Istchee) to the Cree-Naskapi Commission, Montreal, February 18, 2010,
p. 15.

13 Ibid, p. 16.

14 Ibid, p. 17.

| 41 | Updates to the James Bay and Northern Quebec Agreement and the New Relationship Agreements

Chapter 4:

Response of Canada to the Recommendations in
the 2008 Report of the Cree-Naskapi Commission

On February 16, 2010 Mr. Damon Rourke, Director, James Bay Implementation Office of the Department of Indian Affairs and Northern Development, appeared at the Special Implementation Hearing being held in Montreal. At that time he presented Canada’s response to the recommendations contained in the Commission’s 2008 Report. What follows is the text of each recommendation, Canada’s response and, where appropriate, a comment by the Commission.

reCoMMendation 1

The Cree and Naskapi authorities and the representatives of the government of Canada should determine a meaningful process for the full and comprehensive review of the Cree-Naskapi (of Quebec) Act with the objective of identifying and determining appropriate amendments to the Act for the advancement and benefit of Cree and Naskapi local government.

Canada’s Response

“So in terms of the amendments that have been made to the Cree-Naskapi Act, obviously that’s a great step forward and we would be open to and have already begun discussions with the Naskapi, with the Inuit [sic] and with the Crees on further amendments. So in terms of the first recommendation, I think the onus is on the parties to look at appropriate amendments to the Act and I think the Naskapi have been clear over the years on what exactly those are. So we’re willing to work with the parties on those.”

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Comment

The Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee provided among other things that Canada would recommend to Parliament amendments to the Cree-Naskapi (of Quebec) Act. Those amendments were introduced and duly passed. They addressed primarily, recognition of certain governance powers for the Cree Regional Authority and the incorporation of Ouje-Bougoumou into the Act. These amendments to the Act were needed and are most welcome. They constitute the foundation for a fuller recognition by Canada of the nature and powers of the Cree Nation. They also constitute a long overdue recognition of OujeBougoumou’s status as a band within the meaning of the Act.

The Commission agrees that the Naskapi have been clear on what further amendments are needed. We would add that the Cree have also been clear on other necessary amendments. Certainly the biennial Reports of the Cree-Naskapi Commission have stressed the need for various amendments (e.g. regarding quorums, etc.) year after year. Once again in the current report the Commission reports that communities continue to ask for the same amendments. The enthusiasm generated by the recent amendments is justified – the Commission shares it – but we must not lose sight of the fact that further amendments have been called for by the communities for years and still need to be addressed.

reCoMMendation 2

Within an eighteen (18) month period, the Cree and Naskapi authorities and the representatives of the government of Canada should determine, as a priority, appropriate and suggested amendments to the particular sections of the Cree-Naskapi (of Quebec) Act that have been most detrimental to decision-making and good Cree and Naskapi local government. (Some of these detriments which should be resolved as a priority are identified and discussed in the present report of the Commission.)

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the 2008 Report of the Cree-Naskapi Commission

Canada’s Response

“ … So again, in terms of the second recommendation, we’re supportive of working together and really looking at the key amendments that are needing to be done.”

Comment

The Commission will monitor progress on this and hopefully will be able to describe the next round of amendments in our 2012 Report.

reCoMMendation 3

The Cree and Naskapi local governments should review their respective by-laws respecting band elections to ensure compliance with the requirement resulting from the Corbiere decision.

Canada’s Response

“So I think in terms of the recommendation that the Cree and Naskapi local governments should review their respective by-laws. I think that once that is done we would be willing to discuss any implications of the Corbiere ruling.”

Comment

The Corbiere decision was in relation to procedures under the Indian Act. Canada should deal with the issue proactively by initiating discussions that would enable the Cree and the Naskapi to adopt whatever procedural changes are necessary in an orderly way.

reCoMMendation 4

The Cree and Naskapi authorities and the representatives of the government of Canada should determine funding arrangements for compliance with the requirement under the Corbiere decision.

Canada’s Response

“ … I think that we see that as a viable step once we address the third recommendation and go from there.”

Comment

The Commission will monitor and report on progress.

reCoMMendations 5

The local and regional Cree authorities and representatives of Canada and Quebec should review this situation [in relation to the road corridor at Chisasibi] and determine appropriate solutions that would permit the expansion of the community of Chisasibi.

Canada’s Response

“ … as I alluded to in my opening comments, we have a Cree-Naskapi Standing Liaison [sic]

Committee and it does—it’s not only Cree and Canada, it does and we did last year have at least one meeting with the representatives from Quebec … So I guess we’re open to looking at exactly or drilling down on exactly what the problem is and we would like to make sure that everybody is involved, that we can find a solution as quickly as possible.”

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Comment

Clearly the department was unaware of the road corridor issue at Chisasibi but at least wanted to address it. The Commission will follow up and enquire what is being done in fact.

reCoMMendations 6

The “certain issues related to the restoration of these lands” should be resolved by the parties in an expedient and efficient manner so that so that the transfer of Block “D” can proceed in the manner contemplated and agreed upon by the Cree Nation of Chisasibi, the GCC(EI), the CRA, Quebec and Canada.

Canada’s Response

“ … I think we’ve agreed to look at it in two phases. And I think the reason for that is that, one, we want to make sure that everybody is informed of what exactly is going on. So the key part of that is to make sure that we’re all in agreement on the condition of the lands. So I think, you know, and we’re trying to do this as quickly as possible, once we receive the decree or the order-in council from Quebec, then the onus is on us to do the next step, which would be the actual transfer of the lands. So that would be [sic] hopefully complete Phase 1.

“Phase 2, I think, is a little bit more challenging in terms of the environmental condition of certain lands and the use of those lands into the future but we have had and continue to have discussions with not only Chisasibi and Quebec but on that second phase, which is obviously another key piece of the recommendation.

“So on the first phase, hopefully that will be completed very shortly. The second phase we are continuing our discussions and, again, looking for a speedy resolution to that as well.”

Comment

The Commission is seeing progress on what Canada called “Phase 1.” We hope that the completion of Phase 2 will be an achievement which we can report before our 2012 Report. It should be noted that our commendation on Block “D” has been included in every biennial Report starting with the 1996. The current Report of the CNC (Chapter 7) contains detailed comments and recommendation on the Block “D” matter.

reCoMMendation 7

The Cree and Naskapi authorities and the representatives of the government of Canada should review the present housing situation of the Cree and Naskapi communities and resolve the present and outstanding issues for housing in the communities.

Canada’s Response

“ … I think that the New Relationship Agreement did resolve some of the past grievances or claims …

so that’s one piece … we continue to have programs available for housing, and I realize that those need to be more responsive to what is a pretty young and growing population. In that respect, we’ve set up, you know, not to put too much bureaucracy around it but we have set up a working group that has representatives from ourselves and from Canadian Mortgage and Housing Corporation, which hopefully, looking at – and this is contingent on all of us working together – how best to look at the housing needs of those in most need to try to find a balance between private ownership but also programs and services that are available and, like I said, to try to focus in on meeting the-how best to meet the needs of those most required.”

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the 2008 Report of the Cree-Naskapi Commission

Comment

The critical and ever worsening housing shortage in the Cree and Naskapi communities has been in a major concern of the communities for many years. It has been highlighted in the 2000, 2002, 2004, 2006 and 2008 Reports of the Cree-Naskapi Commission. Now, in 2010 the Department reports that they and CMHC have set up an internal working group which (“…contingent on all of us working together …” will look at “… how best to meet the needs of those most required.”) Later during the same hearings the Grand Council emphasized the urgency of the housing situation. It appears from Canada’s response that either they do not consider housing to be a serious problem or have chosen not to address it. Some clear and specific direction from the Minister seems to be the only action likely to motivate the bureaucracy to action.

reCoMMendation 8

The Cree authorities, Canada and Quebec should establish a table for discussions on ways and means for improvements on enforcement of law in the communities.

Canada’s Response

“In terms of recommendation number 8, policing, just as a lead-in, some of the work that we’ve been doing internally to the federal government is to try to build what we’re calling the Implementation Management Framework. Yes, Indian Affairs coordinates on behalf of Canada the implementation of obligations of land claims across the country and we have put in place the structures needed to not only educate other governments on how implementation is unfolding and the successes and challenges that we’re facing but also to have a more structured approach to that so that we can have more interaction within the federal government, which will then help us, as I alluded to in the opening comments, around these operational tables where we bring representatives from other government departments that have a role.

“I highlighted that now because in terms of policing, you know, and our colleagues at Public Safety Canada are ready to participate in what is being mentioned in this eighth recommendation, and that is to establish a table for discussion on ways and means on law enforcement in the communities. So along with Public Safety, there may be other players and that’s why we’re supportive of setting up some type of group to look at these issues.

“I think that some of the successes, sometimes these don’t get – how should I say – highlighted enough, but we did have Complementary Agreement 19 come into force December 9th, 2009, which sets up a Regional Police Force. So that’s another indication of us – I mean it’s a by-product of our success working together and I think we should seize that opportunity to help address the recommendation that the Commission has put forward.”

Comment

Canada’s response speaks for itself. The agreement reporting the establishment of the Regional Police Force is a solid step forward. The Commission will monitor progress on the other aspects of the law enforcement recommendation.

reCoMMendation 9

The Cree authorities, Canada and Quebec should discuss funding arrangements (in addition to the exiting ones) such as enabling collection of fines by local authorities for local infractions of law and transferring these funds to the local governments for local policing operations.

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Canada’s Response

“ … I think we can – as the recommendation suggests, Cree authorities, Canada and Quebec should discuss funding arrangements such as a number of things for local policing operations.”

Comment

The Commission will monitor and report on progress.

reCoMMendation 10

The Cree and Naskapi local government adopt a by-law respecting the Code of Ethics and Professional Conduct of Elected and Administrative Officials for their respective members and communities. (This recommendation is submitted to the Cree and Naskapi local governments that presently do not have such a by-law.)

Canada’s Response

“ … we don’t have anything to add on that …”

Comment

The Commission will raise the issue at its follow-up meeting with the Cree and Naskapi governments.

reCoMMendation 11

The Cree Regional Authority should immediately “initiate exploratory discussions with the Washaw Sibi Eeyou” in order to identify possible options for the Washaw Sibi Eeyou respecting the aspirations of the Washaw Sibi Eeyou to be recognized as a separate Cree band.

Canada’s Response

“I think that’s something that they’re doing but I’ll leave it to them to respond to.”

Comment

During their appearance at the Special Implementation Hearings, Chief Billy Katapatuk Sr. of Washaw Sibi Eeyou indicated that the community was close to making a final selection of lands and that once the decision was made discussions would be initiated by Washaw Sibi Eeyou jointly with the Grand Council of the Crees (Eeyou Istchee) and Canada and Quebec. This certainly is positive progress.

reCoMMendation 12

The Government of Canada should exercise its continuing duties and responsibilities for the development of Washaw Sibi Eeyou and the incorporation of the Washaw Sibi Eeyou into the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act.

Canada’s Response

“ … we would be willing to participate in any follow-up discussions or even more focused discussions on looking at whatever the community and the Cree Regional Authority might agree.”

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the 2008 Report of the Cree-Naskapi Commission

Comment

This is a welcome response. Clearly there will be much more to report in the coming months and years as the Washaw Sibi Eeyou advance to being fully recognized as a band within the James Bay and Northern Quebec Agreement and in the Cree-Naskapi (of Quebec) Act.

reCoMMendation 13

The Government of Canada, the Government of Quebec and the Cree Regional Authority should review Sub-Section 28.5 (Cree Trappers’ Association) of Section 28 of the James Bay and Northern Quebec Agreement with the objective of amending the said Sub-Section in a manner that recognizes the Cree Trappers’ Association as an organization which protects the rights and interests of the “Indoho-sou” and promotes the welfare of the “Indoho-sou” of Cree society.

Canada’s Response

“ … I think it’s a good idea for us to sit down and review the section or the subsections that have been highlighted here and I think that if we can focus in on – you know, find some consensus around what needs to be done based on your recommendation, then we would follow, in due course, the amending procedures set out in the JBNQA.”

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Comment

This is also a welcome response which will lead hopefully to a just and appropriate recognition of and incorporation into the JBNQA of the ”Indoho-sou.”

reCoMMendation 14

The Cree Regional Authority, and subsequently, the Cree Nation Government should provide the support necessary to enable the Cree Trappers’ Association in continuing to provide assistance and support for the “Indoho-sou” of Cree society.

Canada’s Response

(No response. Not a federal issue.)

Comment

This issue is being addressed by the Grand Council of the Crees (Eeyou Istchee) and the Cree Trappers’ Association. The Commission will monitor and report progress.

reCoMMendation 15

Eeyou of Eeyou Itchee, in its constitution, should recognize and affirm the importance, role and necessity of the Cree Trappers’ Association, or its successor, in the maintenance and continuance of the Cree traditional way of life and hence Cree culture.

Canada’s Response

(No response. Not a federal issue.)

Comment

Again this is an issue being addressed by the Grand Council of the Crees (Eeyou Istchee) and the Cree Trappers’ Association. The Commission will monitor and report progress.

| 49 | Response of Canada to the Recommendations in
the 2008 Report of the Cree-Naskapi Commission

Chapter 5:

Concerns and Issues of the Eeyou (Cree) Nation and
the Naskapi Nation of Kawawachikamach

On February 16, 17 and 18, 2010, the Cree-Naskapi Commission held Special Implementation Hearings in Montreal, Quebec in order to permit the representatives of the Cree, Naskapi and Federal governments to make submissions to the Commission in preparation for its present report. This chapter describes the main concerns and issues raised by the representatives.

1. Grand Council of the Crees (Eeyou Istchee)

The Grand Council of the Crees (Eeyou Istchee) in a submission dated February 18, 2010 discusses the recent developments and the future of Cree Nation Governance, particularly at the regional level.

The submission of the Grand Council of the Crees (Eeyou Istchee) outlines the history of the James Bay and Northern Quebec Agreement (JBNQA) which provides for legislation respecting the creation of the Cree Regional Authority (CRA) and enactment of legislation for Cree local government over Category 1A land. From 1975 to 1984, the Cree-Naskapi (of Quebec) Act legislation for Cree local government was developed in close consultation with the Grand Council of the Crees.

The Government of Quebec passed legislation in 1978 to create the Cree Regional Authority. Under this legislation, the powers of the Cree Regional Authority are described as follows:

1. “To appoint Cree representatives to the James Bay Regional Council;

2. To appoint Cree representatives to other structures and entities created by the JBNQA;

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3. To give consent on behalf of the Crees when required under the Agreement;

4. To allow the Cree Bands to empower a central authority to coordinate and administer programs on
Category I lands (arguably IB and IB Special Lands).”¹

In 1983, the Grand Council of the Crees and the Cree Regional Authority began to operate jointly in a manner that brought together the Cree regional political and administrative entities.

The effort to obtain fulfillment of treaty obligations under the JBNQA and the drive to define future directions for the Cree Nation have been at the heart of the political and administrative development of the Grand Council of the Crees/Cree Regional Authority.

The Grand Council of the Crees/Cree Regional Authority conducted numerous reviews over treaty obligations with Canada and Quebec. In some cases, the Crees initiated court proceedings over alleged breaches of the JBNQA by Canada and Quebec. The many years of reviews of treaty obligations and litigation over alleged breaches of treaty obligations led to new relationship agreements with the Crees, Quebec and Canada. The fulfillment of certain treaty obligations under these new relationship agreements has led to empowerment of Cree Nation Governance at the local and regional level.

2. Cree Nation of Chisasibi

The representatives of the Cree Nation of Chisasibi raised the following issues and concerns:

a. eleCtions

The Cree Nation of Chisasibi is presently revising its Election by-law which hopefully will be in force for its summer general band elections. However, as raised in its presentation to the “Commission in February 2008, the Cree Nation of Chisasibi has not been apprised of any additional funding by the

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Naskapi Nation of Kawawachikamach

government for the additional expenses of complying with the Corbiere decision”² of the Supreme Court of Canada.

The case before the Court concerned the right of off-reserve band members to participate in the affairs of their community. In particular, the issue put to the Court was whether off-reserve band members of the Batchewana reserve had voting rights in the community.

The Supreme Court of Canada published its decision in the case of Corbiere et al versus the Queen and the Batchewana band on May 20, 1999. The Judges declared that the words “and is ordinarily resident on the reserve” in subsection 77 (1) of the Indian Act are discriminatory and have to be changed or struck out. The Judges also set out a number of guidelines about how the voting rights of off-reserve band members could be implemented.

The case was argued exclusively as an “Indian Act” issue. Consequently the ruling impacts Indian Act Bands that would incur additional expenses regarding the implementation of federal guidelines respecting off-reserve voting rights.

Except for the purposes of determining which of the Cree and Naskapi beneficiaries are “Indians” within the meaning of the Indian Act, the Cree-Naskapi (of Quebec) Act replaces the Indian Act which does not apply to the Cree and Naskapi Nations, nor does the Indian Act apply on or in respect of Category IA or IA-N land.

Consequently, the question of the application of the Corbiere decision of the Supreme Court of Canada to the Cree and Naskapi Nations of Quebec remains to be determined.

B. QuoruMs

The quorum provisions of the Cree-Naskapi (of Quebec) Act continue to be hindrances in the decision-making process of local government.

The quorum provisions respecting the approval of borrowing by-laws by the electors of the band continue to be detrimental to financial administration of the band.

The present quorum (50%) to determine if an election should be called under section 75 (3) (a) of the Act is unreachable.

C. BloCk “d”

The issues respecting the decontamination and transfer of Block “D” remain to be resolved. A substantial portion of Block “D” is ready to be transferred in accordance with the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee.

However the portion of Block “D” that needs to be decontaminated may take a while longer to be ready for transfer. “Canada and Quebec are at a stalemate as to which criteria will be used to carry out the clean-up of the areas most affected, mostly by oil contamination”.³

d. finanCial reporting

The Cree Nation of Chisasibi enters into funding agreements with governments in order to provide programs and services to its members. However, governments impose reporting requirements on the use and expenditure of public funds. Compliance with the financial reporting requirements of governments incurs additional expenses for the band. These additional expenses are not covered by the present funding arrangements with the governments.

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e. housing

According to the Cree Nation of Chisasibi, housing has not been addressed adequately by the government of Canada and the Cree Regional Authority.

The Cree Nation of Chisasibi still has to use funds from the agreements to address its housing needs such as maintenance and replacement of houses.

The New Relationship Agreement does not address the housing crisis in Chisasibi which has the most shortage of houses. Overcrowding in the houses is another issue.

The funding formula for housing does not address the real need in housing for Chisasibi.

According to the Cree Nation of Chisasibi, the Cree Regional Authority, in assuming certain responsibilities, in virtue of the New Relationship Agreement, has not addressed housing adequately.

The Cree Nation of Chisasibi is constantly working on seeking innovative ways to resolve its current housing situation.

f. poliCe serviCes

With the police services being regionalized, the local government of Chisasibi still does not have adequate human and financial resources and the support system to enforce its by-laws.

g. adMinistration of JustiCe

The financial resources are presently not available to set up a Cree justice system which would mainly deal with lessor offences that can be remedied with local resources.

The Cree Nation of Chisasibi has created a Justice Committee but funds are not available. The responsible regional entity is still not organized to assist the communities in setting up the local justice system.

3. Ouje-Bougoumou Cree Nation

In the past, the representatives of the Ouje-Bougoumou Cree Nation have made representations to the Commission on the following issues and concerns:

a) proper implementation of the Ouje-Bougoumou/Canada Agreement;

b) breaches of sections of the said Agreement respecting the funding of Ouje-Bougoumou’s capital
projects;

c) unsuitable method for determining annual increases in Operation and Maintenance (O&M) funding;

d) legal status of the Ouje-Bougoumou Cree Nation; and

e) treaty process for the Ouje-Bougoumou Cree Nation to be incorporated into the James Bay and
Northern Quebec Agreement.

The representatives of the Ouje-Bougoumou Cree Nation report that they are well on their way, after many years of hard work, to concluding a Complementary Agreement to the James Bay and Northern Quebec Agreement. This Complementary Agreement will at last formally incorporate the Ouje-Bougoumou Cree Nation into the James Bay and Northern Quebec Agreement.

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Naskapi Nation of Kawawachikamach

The parties to the Complementary Agreement – Ouje-Bougoumou, the Province of Quebec and the Government of Canada – have agreed on a March 31, 2010 deadline for completion of a final text which will then be forwarded to the respective parties for approval and ratification.

Upon the signature of this Complementary Agreement, Ouje-Bougoumou will finally take its place as an equal with the other Cree communities and will have the same rights, benefits, programs and services as the other communities.⁴

Bill C-28, An Act to Amend the Cree-Naskapi (of Quebec) Act, was introduced in the House of Commons on April 27, 2009. The legislation aims to implement Canada’s undertakings under agreements seeking to resolve longstanding issues under the James Bay and Northern Quebec Agreement (JBNQA). In particular, the legislation amends the Cree-Naskapi (of Quebec) Act, in respect of Cree bands and Category IA land,

a) to provide the Cree Regional Authority with additional responsibilities and powers, including
by-law making powers; and

b) to recognize the Cree of Ouje-Bougoumou as a separate band and a local government under the
Act.

However, the amendments to the Cree-Naskapi (of Quebec) Act that recognizes Ouje-Bougoumou as the ninth Cree “band” would only come into force upon the conclusion of the Complementary Agreement to the James Bay and Northern Quebec Agreement and Category IA land has been set aside for the exclusive use and benefit of the Ouje-Bougoumou Band.

4. Cree Nation of Eastmain

The representatives of the Cree Nation of Eastmain spoke about the following issues and concerns:

a. housing

The Cree Nation of Eastmain is facing a housing crisis due to inadequate provision of housing, increasing backlog of housing and overcrowding of housing. The present federal programs, including CMHC, do not meet the current demand for housing.

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B. MuniCipalité de la Baie JaMes and Cree hunting, fishing and
trapping rights

The Municipalité de la Baie James has enacted a by-law that prevents hunting by persons including Crees within 2000 meters from airports and other infrastructure. Cree hunters are presently getting fined for alleged violation of this by-law.⁵

The Cree Nation of Eastmain considers Canada in full violation of its fiduciary duties to the Crees by failing to ensure that the treaty rights of the Crees under the James Bay and Northern Quebec Agreement are protected from incompatible legislation.

C. enforCeMent of Band By-laws

Pursuant to section 45 of the Cree-Naskapi (of Quebec) Act, a band may make by-laws respecting local government. However, a band lacks the practical means of enforcing such by-laws.

Presently, the Cree bands may enter into an agreement with the Quebec Ministry of Public Security for the prosecution of offences under the Quebec Highway Safety Code if this Code is adopted by reference as part of a band’s traffic by-law. There are no similar arrangements, including with Canada, for the prosecution of offenders under other band by-laws. Canada must provide a remedy “by implementing a policy of giving access to federal prosecutors by the Cree Bands at no charge.”⁶

d. Cree nations and eConoMiC developMent

The Cree Nation of Eastmain states that powers and objects of Bands under section 21 of the Cree-Naskapi (of Quebec) Act are lacking in providing leadership in local economic development. Furthermore, section 22 of the Act should be amended to enhance and promote local economic development.

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e. long-terM Borrowing

The quorum provisions of the Act for approval of long-term borrowing are impractical. Compliance with such provisions by the band is very difficult. The quorum provisions of the Act for borrowing should be amended to facilitate financial transactions with financial institutions.

f. rent ColleCtion

The Band presently has to resort to a Court process in order to collect rent or evict a tenant if a tenant of a band house defaults on rental payment(s).

The Cree-Naskapi (of Quebec) Act should be amended in order to empower Bands to carry out directly, without recourse to the Courts, the collection of rents and eviction of tenants who default on rental payment(s).

5. Cree Nation of Washaw Sibi

The representatives of the Cree Nation of Washaw Sibi stated that they are beneficiaries of the James Bay and Northern Quebec Agreement. However, even as beneficiaries of the Agreement, they do not receive many of the benefits as other Cree communities.

The primary preoccupation of the Cree Nation of Washaw Sibi is the establishment of a distinct Cree community with their own Category I lands so that they can receive programs and services at the same level as the Crees in the other nine communities. To this end, the Cree Nation of Washaw Sibi intends to achieve the following:

a) selection of a site for the new Washaw Sibi village;

b) feasibility study of the village site for construction purposes;

c) urban planning process for water, sewage system, electricity and other infrastructures;

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d) housing; and

e) discussions with Quebec and Canada for:

i. a land regime that includes Category I and II lands for the Cree Nation of Washaw Sibi;
and

ii. incorporation of Washaw Sibi into the James Bay and Northern Quebec Agreement and
related legislation such as the Cree-Naskapi (of Quebec) Act.

The Cree Nation of Washaw Sibi hopes to achieve their objectives with the assistance of the Grand Council of the Crees (Eeyou Istchee).

6. Whapmagoostui First Nation

The representatives of the Whapmagoostui First Nation spoke on the following principal issues and concerns:

a. Band finanCes

The administration of the Whapmagoostui First Nation has had financial problems in its operations. Since 2004, the band has accumulated a deficit in the order of about $4.5 million. The deficit was caused by diversion of band operation funds into the funding of certain capital projects.⁷

B. inCoMpatiBility of the Cree-nAskApi (of QueBeC) ACt

Some of the present terms and provisions of the Cree-Naskapi (of Quebec) Act are incompatible with Eeyou Eehdou-wun or the Cree way of doing things. Some of the present provisions of the Act are considered an imposition on the Cree Nation in the exercise of self-government. As the representative of the Whapmagoostui First Nation said:

“There’s a lot of things in the Act that don’t comply because the way the people want to have their local government be recognized. It’s not recognized under the Act, and a lot of people have different perceptions and different views or a different understanding of what the role of a Chief or a Council member is and the role of the administrators.”⁸

The representative of Whapmagoostui also noted the absence of provisions in the Act relating to Eeyou (Cree) culture.

C. adMinistrative and eXeCutive funCtions of the Band

Band members, administrators and Council members need to know the administrative and executive functions of the band in respect to local government and administration. In addition, Council members and administrators need to be informed on the legal framework of local government and administration as provided for in the Cree-Naskapi (of Quebec) Act, the James Bay and Northern Quebec Agreement and Eeyou traditional law.

d. QuoruM provisions of the Cree-nAskApi (of QueBeC) ACt

Like other bands, Whapmagoostui have problems and difficulties in complying with some of the quorum provisions of the Cree-Naskapi (of Quebec) Act. Some of the quorum provisions of the Act are too high for decision-making in band meetings. In some cases, decision-making by referenda is a better process.

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e. eeyou youth

The representative of the Whapmagoostui First Nation stressed the importance of promoting the presence and participation of Eeyou youth in the activities and affairs of the band.

The youth representative of the Whapmagoostui First Nation reiterated the importance of participation of Eeyou youth in decision-making on matters that impact the community. However, the youth of Whapmagoostui need motivation and incentives to enable such participation. The youth representative suggested provisions in the Cree-Naskapi (of Quebec) Act to enable and empower the youth to participate in the activities and affairs of the community.

In addition, the Grand Council of the Crees (Eeyou Istchee) should invite the Eeyou youth to participate in its meetings and activities.

f. housing

Like other Cree communities, Whapmagoostui has a serious shortage of housing for its members and families.

7. Waskaganish First Nation

The representatives of the Crees of the Waskaganish First Nation raised the following main concerns and issues:

a. QuoruM provisions of the Cree-nAskApi (of QueBeC) ACt

The Crees of the Waskaganish First Nation, like other Cree bands, have great difficulties in complying with certain quorum provisions of the Cree-Naskapi (of Quebec) Act. Decision-making on matters such as granting of land, waiver of property exemption and borrowing by-laws are seriously hindered by the present quorum requirements of the Act. A reduction in the percentage of electors required to constitute a quorum for decision-making would be helpful for the band.

B. Band voting proCess

The representatives of the Crees of the Waskaganish First Nation suggest the incorporation of a new technology to improve the present voting process of the band so as to enable and permit voting by beneficiaries or electors who normally reside outside of the community. They suggested looking into alternative voting means such as electronic voting which would increase voter turnout in elections or referenda.⁹ Elections or referenda by Waskaganish are costly exercises as eligible electors who are Washaw Sibi or MoCreebec Crees may wish to exercise their right to vote.

C. granting of a right of superfiCie

Waskaganish has for a number of years been implementing Homeownership Programs and recently a Rent-to-Own Housing Program. The proper implementation of these housing programs requires the granting of a right of superficie to members who wish to be homeowners.

The present process for the granting of a right of superficie under the Cree-Naskapi (of Quebec) Act is unnecessarily long and problematic. It is also a hindrance to local economic development.

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The representatives of the Waskaganish First Nation recommend that the Band be granted legislative authority in the Act to enact a by-law on the granting of a right of superficie. Such a by-law would be subject to the approval of the band members.

d. Mining eXploration and trappers

Mining companies have been conducting mining exploration activities within the hunting territories of the Crees of the Waskaganish First Nation. Mining companies have directly consulted tallymen or hunters of the impacted area. However, these mining companies should consult the community as well. The activities of these mining companies impact the community as a whole.

e. iMpaCts of the diversion of the rupert river

As a representative of the Waskaganish First Nation stated to the Commission:

“In another matter of concern to us too is there are changes in the river because of the diversion of the Rupert and one thing that we are concerned about is the effect on IA and IB lands, IA land and IB across the river from Waskaganish. Parts of the area are going to be difficult to access because of the changes in the river.”¹⁰

Waskaganish recommends a study or review be conducted on the impacts of the diversion of Rupert River on its Category IA, IB and IB special lands that are adjacent to or part of the community.

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f. land of the roMan CatholiC Mission in waskaganish

The Roman Catholic Mission presently owns land that is considered Category III land situated within the perimeter of the Category IA land of Waskaganish. As the community is expanding, the Waskaganish First Nation has identified the land of the mission for residential purposes and plans to construct houses within the said land. However, after many years of work on this matter, the land of the mission has not been transferred as part of Category IA land of Waskaganish. Consequently, this matter has hindered the construction of houses and community development within the land of the mission.

Waskaganish has encountered an environmental issue regarding contaminated land. It appears that no one wants to assume any responsibility for cleaning up the contaminated part of the land of the mission.

The Waskaganish First Nation request the intervention of the Government of Canada to resolve this matter and have the land in question transferred as part of the Category IA of Waskaganish.

g. housing

The Waskaganish First Nation faces a serious backlog in housing for its members. Recently with an increasing local population, fewer houses are being allocated to Waskaganish for construction. Housing is not part of any recent agreements with Canada. Consequently, housing for the Cree communities remains a major outstanding issue.

8. Cree First Nation of Waswanipi

The representatives of the Cree First Nation of Waswanipi raised the following issues and concerns:

a. outstanding and ongoing issues and ConCerns of waswanipi

In the past, the representatives of the Cree First Nation of Waswanipi have been consistent and persistent in stating its issues and concerns to the Commission which addresses these issues and concerns in its past reports. However, from the perspective of Waswanipi, “there appears to be no acknowledgement, response, action or follow-up on the part of the Government of Canada on Waswanipi’s issues and concerns.”¹¹

Waswanipi requests clarification from the Minister of Indian Affairs as to whether the past outstanding and ongoing issues of Waswanipi may have been considered in the recent New Relationship Agreement with the Government of Canada.

The Cree First Nation of Waswanipi concludes that there still remains a tremendous amount of work to be done requiring a lot of time, energy and resources in order to clear the backlog of follow-up and action on all its outstanding issues and concerns dating back to 1984.

The Cree First Nation of Waswanipi recommends the establishment of a Special Implementation Task Force or Working Group to revisit all their submissions and to develop a concrete plan of action.

B. eeyou governanCe proCess

The Cree First Nation of Waswanipi has been developing their Cree Constitution over a period of 10–12 years; but need to review the draft. However, considerable amount of work remains to be done before the Waswanipi Cree Constitution can be adopted and approved as Cree Law by the members. To this end, Waswanipi needs a team of legal and constitutional experts to offer proper assistance.

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By means of a General Assembly Resolution, Waswanipi has adopted and approved its own Peace Act and Police Act.

The Cree First Nation of Waswanipi recommends a series of intensive public hearings be planned and organized during 2010–2011 and 2011–2012 as a fine-tuning process.

C. silent But not forgotten people

The Cree people of Washaw Sibi and Waswanipi Crees (of Senneterre) are beneficiaries of the James Bay and Northern Quebec Agreement. Some of these people are members of the Cree First Nation of Waswanipi. They are still registered as members of the Waswanipi Band. However, the Cree First Nation of Waswanipi respects their decision to consider their home where they are currently living or working in or near the Towns of Amos or Senneterre. In the near future, these people may need to decide as to whether or not they want to come home to Waswanipi where they can share their lives with the whole Waswanipi Family.

The Cree First Nation of Waswanipi concludes that it may be likely that these people may decide not to reside in Waswanipi.

Nevertheless the Cree First Nation of Waswanipi recommends a dialogue process and a negotiating table be set up through the Grand Council of the Crees (Eeyou Istchee) for these special people.

d. key politiCal portfolios

To promote accountability and transparency in the local government of Waswanipi, the Chief and Council has introduced and implemented – on a trial-and-error-run – a system in which each member of the Council is given or assigned a political portfolio based on a specific issue or priority on a two (2) year rotating basis. This particular mandate is considered to be over and above their normal duties and responsibilities.

Since the introduction of this system, the Chief and Council has taken this process to the next level by developing and elaborating a new Accountability and Transparency System for both Chief and Council and Management Committee.

Waswanipi hopes to develop and finalize this system into a Code of Values, Ethics and Conduct and an Accountability Act of Waswanipi.

The Cree First Nation of Waswanipi concludes that accountability, honesty and transparency are considered as fundamental and basic key elements of Eeyou Governance and Cree Government.

The Cree First Nation of Waswanipi recommends proper consultation and dialogue be continued throughout Eeyou Istchee (including with Cree Tallymen) as the foundation of its Eeyou Accountability Act.

e. the greater Master plan

Eeyou consider that the present generation of Eeyou are simply borrowing Eeyou Istchee (Cree Land) from their children and grandchildren. Therefore, the present generation of Eeyou has a duty and responsibilities to cherish, protect and preserve Eeyou Istchee for the benefit of Eeyou children, grandchildren and future generations of Eeyou.

Since 1975, Eeyou has paid a tremendous social and environmental price as a result of impacts caused by mining, commercial forestry and hydroelectric development projects. As a result, the social, economic and political landscape of Eeyou Istchee has changed dramatically over the past four (4) decades.

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The Cree First Nation of Waswanipi calls upon the Cree Nation of Eeyou Istchee to rethink reconsider or reevaluate the whole philosophy and process of so-called “development”. The Cree Nation of Eeyou Istchee needs to work and develop together the Great Master Plan to protect and respect Eeyou Istchee for the benefit of present and future generations of Eeyou.

9. Naskapi Nation of Kawawachikamach

On April 30, 2010, the Naskapi Nation of Kawawachikamach submitted a brief to the Commission. In this brief, the Naskapi Nation of Kawawachikamach raises the following issues:

a. kawawaChikaMaCh energy serviCes inC. – serviCe ContraCts with
hydro-QuÉBeC

Kawawachikamach Energy Services Inc. (KESI) was incorporated as a corporation under federal legislation in May 1998. The main duties of KESI include operating and maintaining the Menihek Generating Station and transmission lines located in Labrador and maintaining and operating the Quebec transmission and electricity distribution systems located in Schefferville, Lac John and Kawawachikamach.

In late 2008, KESI signed operations and maintenance contracts with Newfoundland and Labrador and Hydro-Québec. These contracts have extended for an additional year with the hope for renewals.

“KESI has become an integral part of the Nation’s operations, employing roughly 30 persons on a permanent and seasonal basis.”¹²

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B. nunavik CoMMission/inuit self-governMent

Pursuant to the Agreement-in-Principle Concerning the Amalgamation of Certain Public Institutions and the Creation of the Nunavik Regional Government (AIP-NRG), between the Inuit (of Quebec), Canada and Quebec, the Joint Working Committee (JWC) in which the Naskapi Nation is represented was established in 2008. Several meetings have been held in 2008 and 2009 with positive results. The Naskapi Nation will be entitled to participate in the negotiation of a Supplementary Agreement that may flow from the AIP-NRG and that may affect the Naskapi Area and the area of common interest for the Inuit and Naskapi.

C. nAskApi-QueBeC pArtnership Agreement

In 2007, negotiations began between the Naskapi Nation and Quebec for a Partnership Agreement on Economic and Community Development (NQPA). It is estimated that the community and economic development fund would be worth between $60 and $75 million over a 25-year period. The final text of the NQPA has been approved by Quebec, Naskapi Development Corporation and the Naskapi Nation. The Partnership Agreement on Economic and Community Development was signed by the parties concerned on October 19, 2009, in Kawawachikamach.

d. Mining developMents in the kawawaChikaMaCh/sChefferville
region

In recent years, mining companies have been conducting mining activities in the Kawawachikamach/ Schefferville Region. The Council of the Naskapi Nation has approached the mining companies active in the Naskapi area of interest with positive results. The Naskapi have benefitted from employment, a training program and several contracting opportunities. In addition, the Naskapi has advanced relationships with the New Millennium Capital Corporation and Labrador Iron Mines Ltd. and negotiations are proceeding well with these companies for Impact and Benefits Agreements. Furthermore, the Naskapi Nation will own one-third of Tshiuetin Rail Transportation Inc. along with the Nation Innu Matimekosh-Lac John and Innu Takuaikin Uashat mak Mani-Utenam.

END NOTES

1 Submission of the Grand Council of the Crees (Eeyou Istchee) to the Cree-Naskapi Commission, Montreal,
February 18, 2010, p. 2.

2 Presentation to the Cree-Naskapi Commission by the Cree Nation of Chisasibi, February 16, 2010, p. 1.

3 Ibid, p. 4.

4 Presentation by the Ouje-Bougoumou Cree Nation to Hearing of the Cree-Naskapi Commission, Montreal,
February 17, 2010, p. 2.

5 Point Form Summary of the Eastmain Presentation to the Cree-Naskapi Commission, February 18, 2010, p. 1.

6 Ibid, p. 2.

7 Transcripts of Special Implementation Hearings of the Cree Naskapi Commission, February 16, 2010, p. 42.

8 Ibid, p. 45.

9 Transcripts of Special Implementation Hearings of the Cree Naskapi Commission, February 17, 2010, p. 6.

10 Ibid, p. 12.

11 Submission to 2010 Cree-Naskapi Commission Special Implementation Hearings on Behalf and in the Name of Chief John Kitchen and Council of the Cree First Nation of Waswanipi Cree Government, February 17, 2010, Delta Centre Ville Hotel, Montreal, Quebec, p. 3.

12 Brief Presented to the Cree-Naskapi Commission – In Support of its 2010 Biennial Report to Parliament by the Naskapi Nation of Kawawachikamach, April 20, 2010. p. 1.

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Chapter 6:

Role and Importance of the Cree Trappers’
Association – Establishing the Importance of
Traditional Hunting Law and Linkage to the
Present Day

Introduction

The Cree Trappers’ Association (CTA) was created as a non-profit organization pursuant to subsection 28.5 of Section 28 of the James Bay and Northern Quebec Agreement (JBNQA). It was incorporated March 10, 1978. Since that time it has played a very active role in protecting and promoting the interests of the Cree hunters and trappers, and generally supporting their wildlife harvesting activities through the provision of programs and services.

The Cree Trappers’ Association consists of a regional board, with its head office located in Eastmain. The regional CTA works with local CTA branches in each of the Cree communities, and these local CTA branches are responsible for most of the data collection activities, with the regional CTA providing a supervisory and coordinating role.

In practice, the Cree Trappers’ Association is an organization which protects the rights and interests of the “Indoho-suu” and promotes the welfare of the “Indoho-suu” of Cree society. (The “Indohosuu” are the traditional Crees who live a life based primarily on hunting, fishing and trapping and related activities.) This is an essential role and a necessity for the maintenance and continuance of Cree culture and the Cree traditional way of life.

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Under paragraph 28.5.6 of the James Bay and Northern Quebec Agreement, Canada, Quebec and the Cree Regional Authority, in a proportion to be mutually agreed upon, assists the Cree Trappers’ Association to the extent possible with funding with respect to its objects. However, the parties focus this funding on support for the CTA’s activities relating to the commercial trapping industry. This limited view of the actual role of the CTA is detrimental in getting sufficient funds to support and assist the “Indoho-suu” of Cree society. (The Crees or the Cree Regional Authority has assumed some responsibilities of Canada and Quebec for the funding of the CTA pursuant to the pertinent new relationship agreements. The assumptions are premised on continuing annual funding from Canada and Quebec for the terms of the Agreements.)

On February 16, 2010, representatives of the Cree Trappers’ Association spoke to the members of the Commission at its Special Implementation Hearings held in Montreal.

The Cree Trappers’ Association acknowledges and supports the development of regional governance capacity in the form of an expanded role for the Cree Regional Authority.

role of the Cree trappers’ assoCiation in relation to the Cree
first nations and the Cree regional authority

In relation to the Cree First Nations and the Cree Regional Authority, the Cree Trappers’ Association considers its role as follows:

a) to represent the interests of the Cree communities and their members in matters relating to the
management and use of wildlife resources; and

b) to play a complementary role to the Cree Regional Authority and the Cree First Nations in the
management and use of wildlife resources.

iMportant role of the Cree-naskapi CoMMission in the
iMpleMentation of the Cree-nAskApi (of QueBeC) ACt

The Cree-Naskapi Commission is expected to play an important role in tracking and evaluating experience gained by the Cree First Nations and the Cree Regional Authority with the by-law powers conferred on them by the Cree-Naskapi (of Quebec) Act.

In this regard, the Cree Trappers’ Association is concerned about slow progress in the exercise of bylaws powers of the Cree First Nations in relation to the use of wildlife resources in Category IA, IB and Category II lands. “The general nature of the regulatory powers in question is set out in Section 24 of the James Bay and Northern Quebec Agreement and is inevitably an important test of the level of interest in developing the concepts of governance in relation to the use of wildlife resources.”¹ As far as the CTA is aware, none of the Cree First Nations have exercised the legislative authority to enact these by-laws.

iMpleMentation of seCtion 24 of the JAmes BAy And northern
QueBeC Agreement

The proper implementation of Section 24 (Hunting, Fishing and Trapping) of the James Bay and Northern Quebec Agreement is fundamental for the recognition, protection and maintenance of Cree rights in relation to Cree wildlife hunting and food economy. The CTA sees a number of areas where the Cree communities and the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority should be working more actively on the implementation of Section 24 of the JBNQA.

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The CTA recommends to the Commission “that it pay close attention to the implementation of Section 24 and related sections of the Agreement – notably as they relate to the function of the Cree-Naskapi (of Quebec) Act governments in the territory.”²

Closer working relationships with the non-Cree population
in the territory

Since the signing of the James Bay and Northern Quebec Agreement in 1975, the social and economic
landscape of Eeyou Istchee has dramatically changed.

According to the CTA, with the development of natural resources that has led to hydroelectric, mining and commercial forestry projects and increased access to the territory, the non-Cree population is larger than the Cree population. As a result, the Crees are outnumbered in most of the Category III land in the territory. This is reflected in the number of chalet and land leases granted by Quebec. Patterns of occupation by non-Cree population in the hunting territories of the Crees have changed with social implications.

Furthermore, in a few years, the Cree population (with a substantial majority who are young) will have increased three-fold from about 6,000 to 18,000 Crees.

The Cree Trappers’ Association is concerned about the social and economic consequences as these changes will have direct impact on the use of land and its wildlife resources. These changes and consequences will become central issues of concern to the Cree communities in the coming years.

iMpleMenting the ConCept of the guaranteed level of harvesting

Under Section 24 of the James Bay and Northern Quebec Agreement, the Cree are guaranteed levels of harvesting equal to present levels of harvesting of all wildlife species in the territory. In order for this principle of priority of Native harvesting to be properly implemented, the Cree Trappers’ Association needs to work with governments on the acquisition of the following knowledge and information;

a) populations of wildlife resources; and

b) levels of harvesting and taking of wildlife resources by the Crees and non-Cree population.

The CTA is particularly aware of the general challenges involved in implementing the principle of priority of Native harvesting. The CTA is very concerned about what it perceives as “serious reluctance to address the core elements of wildlife management policy set out in the Agreement, among which the concept of the Guaranteed Level of Harvesting plays a central role.”³

Changing patterns of land use in the Cree territory

Before the signing of the James Bay and Northern Quebec Agreement, the entire traditional and historic territory of the Crees consisted of about 300 Cree hunting territories of which each is governed by a Cree tallyman. This traditional Cree system of governance of hunting territories is recognized by Quebec and Canada in Section 24 of the James Bay and Northern Quebec Agreement. This Cree system is presently still maintained and practiced by the Cree hunters and communities.

However, much has, since then, happened and changed within the hunting territories of the Crees. The development of natural resources (water, minerals, and forestry) has happened and will continue. The construction of roads throughout Eeyou Istchee has increased and will continue to provide access to the Cree hunting territories from the south.

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Furthermore, the government of Quebec has been actively engaged in planning the use of land in the Territory. Quebec is planning ‘protected areas’ such as reserves and parks.

These developments and changes have impacted and will continue to impact Cree use of Cree hunting territories in the present and long term. As an example, these developments and changes result in a great deal of variation in the uses and conditions amongst Cree hunting territories.

“In response to these pressures, the Cree Trappers’ Association has been involved in the development of a written compilation of Cree customary law and practice – a document which includes measures which are intended to help hunters and families, as well as their communities, tackle some of the problems referred to here – including disputes about the boundaries between hunting territories as well as the role and responsibilities of the individual tallymen.”⁴

the role of the Cree trappers’ assoCiation as the agenCy
responsiBle for gathering inforMation and the ongoing
Question of resourCes

As an important activity, the Cree Trappers’ Association gathers information on harvesting and related activities. This data gathering is steadily becoming more and more critical as other Cree institutions such as the Cree Regional Authority, Cree School Board and the Cree Board of Health and Social Services of James Bay need reliable information on Cree harvests and other aspects of the Cree hunting economy.

Under the Agreement between the Crees of Eeyou Istchee and Her Majesty the Queen in Right of Canada
concerning the Eeyou Marine Region, the Cree Trappers’ Association is designated as the agency responsible for gathering information needed to support wildlife management in the region identified by the said Agreement.

In order to support and continue these present and foreseen activities, the Cree Trappers’ Associations needs financial and political support.

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the iMportanCe of the eeyou hunting law and its linkage to
the present day

As mentioned in the present chapter, the Cree Trappers’ Association has been involved in the development of a written compilation of Cree customary law and practice. In particular, the CTA has engaged in an important exercise regarding the development of the Eeyou Indoh-hoh Weeshou-Wehwun or Traditional Eeyou Hunting Law. A copy of the Eeyou Indoh-hoh Weeshou-Wehwun or Traditional Eeyou Hunting Law was submitted to the Commission by the CTA.

The Cree-Naskapi Commission considers the written compilation of the Traditional Eeyou Hunting Law by the Cree Trappers’ Association as a critical and fundamental attestation to the exercise of inherent authority by the Cree people of Eeyou Istchee.

For Eeyou of Eeyou Istchee, as a nation and a people with their own homeland (Eeyou Istchee), there is no more basic principle in Iiyiyiu Eeyou history and relations than a people’s right to govern themselves and their territories in accordance with their laws, traditions, customs, practices, values and aspirations. Therefore, Eeyou of Eeyou Istchee have an inherent right of governance. This Eeyou right is inherent in the sense that it finds its ultimate origins in the collective lives, traditions, and history of Eeyou of Eeyou Istchee. Consequently, Eeyou of Eeyou Istchee 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 homeland as their forefathers have done for centuries. Although this self-governing status was greatly diminished by the encroachments of outside governing authorities and regimes, it has managed to survive in an attenuated form.

In the exercise of the inherent right of Eeyou governance, Eeyou of Eeyou Istchee have determined and will continue to determine Eeyou Weeshou-wehwun or Eeyou Law.

Eeyou law originates from the political, economic, spiritual and social values and principles of Eeyou of Eeyou Istchee. These principles and values are expressed and enunciated through the teachings of Eeyou Elders, customs, traditions and practices of Eeyou.

The Supreme Court of Canada has recognized that Aboriginal peoples possessed and continue to possess legal traditions. In R. v. Van der Peet, the Court held that “traditional laws or customs are those things passed down, and arising from the pre-existing culture and customs of Aboriginal peoples.”⁵ It held that Aboriginal rights are based in Aboriginal legal customs and traditions,⁶ and are concerned with the protection of customary laws.⁷ In R. v. Mitchell, the Supreme Court affirmed the survival of Aboriginal law and wrote that “European settlement did not terminate the interests of Aboriginal peoples arising from their historical occupation and use of the land. To the contrary, Aboriginal interests and customary laws were presumed to survive the assertion of sovereignty ...”⁸. Aboriginal customs, practices and traditions are presently recognized and affirmed in section 35 (1) of the Constitution Act, 1982.⁹ Consequently, they are part of the present Canadian law.

Eeyou of Eeyou Istchee consider themselves as the stewards, guardians and custodians of Eeyou Istchee. The duties and responsibilities of Eeyou as the stewards, guardians and custodians of Eeyou Istchee flow from Chishaaminituu (Great Spirit). The duties and responsibilities of Eeyou as the stewards, guardians and custodians of Nituuhuuschiih (Hunting Territories) are prescribed by Eeyou Weeshou-wehwun or Eeyou Law which is the expression of the internal sovereignty of Eeyou and the result of Eeyou self-determination.

“In order to promote the conservation and management of natural and wildlife resources, Eeyou determined and implemented the Eeyou laws, particularly Eeyou Indoh-hoh Weeshou-Wehwun (Traditional Eeyou Hunting Law) that set out the tools and rules regarding the allocation of hunting

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territories, the governance of these hunting territories and the conduct of activities within these territories.”¹⁰

The present Eeyou Indoh-hoh Weeshou-Wehwun (Traditional Eeyou Hunting Law) covers the following
principles and subjects:

1) Part I: Purpose of This Law

2) Part II: Understanding This Law

3) Part III: Traditional System of Governance of Indoh-hoh Istchee and the Role of the
Kaanoowapmaakin

4) Part IV: Role and Responsibilities of Eeyou

5) Part V: Transfer of Indoh-hoh Istchee

6) Part VI: Registry System for Indoh-hoh Istchee

7) Part VII: Dispute Resolution Mechanism

8) Part VIII: Guidelines for the Approval of Economic Development Projects or Activities Affecting
An Indoh-hoh Istchee

9) Part IX: Amendment Process

10) Part X: Recognition Process

Because “the knowledge of Eeyou Weeshou-wehwun or Eeyou Law has been eroded with the passing of Eeyou Elders…, there is an urgent need to revitalize the Eeyou legal tradition so that Youth and the general public can understand it.”¹¹

Furthermore, Eeyou of Eeyou Istchee “affirm the Traditional Eeyou Law and adopt this Eeyou Indoh-Hoh Weeshou-Wehwun (Traditional Eeyou Hunting Law) to honour their past, to respect their present and to guide their future as the stewards, guardians and custodians of Eeyou Istchee.”¹²

Clearly, Eeyou of Eeyou Istchee have the duty and responsibility to transmit knowledge of the Eeyou legal tradition and its laws such as the present Eeyou Indoh-oh Weeshou-Wehwun (Traditional Eeyou Hunting Law) to the present and future generations of Eeyou in order to protect and maintain Eeyou tradition.

END NOTES

1 The 2010 Hearings of the Cree-Naskapi Commission – A Brief Survey of Issues which the Cree Trappers’ Association seeks to Bring to the Attention of the Cree-Naskapi Commission, p. 3.

2 Ibid, p. 4.

3 Ibid, p. 6.

4 Ibid, p. 8.

5 R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 40.

6 Ibid.

7 Ibid, at para. 42.

8 R. v. Mitchell, [2001] 1 S.C.P. 911 at para. 8.

9 Constitution Act, 1982, Schedule B to the Canada Act, 1982, (U.K.) 1982, c.11.

10 Eeyou Indoh-hoh Weeshou-Wehwun – Traditional Eeyou Hunting Law – 2009, p. 2.

11 Ibid, Part I: Purpose of this Law, p. 3.

12 Ibid.

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Chapter 7:

Recommendations of the Cree-Naskapi Commission

After a review and analysis of the presentations, submissions and comments of the representatives of the Cree, Naskapi and federal authorities at the Special Implementation hearings of the Commission held in February 16–18, 2010, the Cree-Naskapi Commission submits the following comments and recommendations:

Amendments to the Cree-Naskapi (of Quebec) Act

Many of the current quorum provisions of the Cree-Naskapi (of Quebec) Act have seriously hindered decision-making by local governments and local administrations. The bands have great difficulties in complying with the present high quorum requirements such as approval of band by-laws respecting long-term borrowing.

The representatives of the Cree Nation of Eeyou Istchee are presently engaged in discussions with Canada and the Naskapis to review certain technical amendments to the Cree-Naskapi (of Quebec) Act.

1. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority should as a priority in these discussions with Canada seek amendments to the Cree-Naskapi (of Quebec)
Act pertaining to the quorum provisions of the Act which have seriously hindered the
decision-making process of local government and administration.

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Band By-law referenCe of federal legislation and enforCeMent
of Band By-laws

Furthermore, under section 5.10 of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee, Canada and the Crees undertook to discuss certain amendments to the Criminal Code and other federal legislation in order to take into consideration the circumstances, usages, customs and way of life for the Crees.

Presently, the Cree bands may enter into an agreement with the Quebec Ministry of Public Security for the prosecution of offences under the Quebec Highway Safety Code if this Code is adopted by reference as part of a band’s traffic by-law. There are no similar arrangements with Canada for the prosecution of offenders under federal legislation if such federal legislation or regulation is adopted by reference as part of a band’s by-law.

2. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority should discuss
with Canada particular arrangements for the enforcement of band by-laws such as:

a) agreement with Canada for the prosecution of offences under certain federal legislation or
regulations if such legislation or regulation is referred to as part of band’s by-law;

b) adequate support systems to enforce band by-laws; and

c) provision of federal prosecutors or funding for prosecution.

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Band Elections

The Supreme Court of Canada published its decision in the case of Corbiere et al versus the Queen and the Batchewana band on May 20, 1999. The Judges declared that the words “and is ordinarily resident on the reserve” in subsection 77(1) of the Indian Act are discriminatory and have to be changed or struck out. The Judges also set out a number of guidelines about how the voting rights of off-reserve band members could be implemented.

Except for the purposes of determining which of the Cree and Naskapi beneficiaries are “Indians” within the meaning of the Indian Act, the Cree-Naskapi (of Quebec) Act replaces the Indian Act which does not apply to the Cree and Naskapi Nations, nor does the Indian Act apply on or in respect of Category IA or IA-N land.

Consequently, the question of the application of the Corbiere decision of the Supreme Court of Canada to the Cree and Naskapi Nations of Quebec remains to be determined.

3. The Government of Canada should initiate discussions with the Cree Nations on the question of whether the Corbiere decision of the Supreme Court applies or does not apply to the Cree bands. If the Corbiere decision applies to the Cree Bands, then Canada and the Crees must discuss any subsequent amendments to the Cree-Naskapi (of Quebec) Act and its implementation.

4. The Cree Regional Authority and the Crees of the Waskaganish First Nation should determine innovative means of improving the present voting process of the band so as to enable and permit voting by beneficiaries or electors who normally reside outside of the community.

Block “D”

In its 1996 Report, the Cree-Naskapi Commission first reported on the issue of Block “D” in which the current airstrip and airport of Chisasibi is located. Letters patent for this tract of land, known as Block “D”, were issued to the James Bay Development Corporation in 1979, after the James Bay and Northern Quebec Agreement was signed. Since then the Commission has repeatedly mentioned this issue in its biennial reports.

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

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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 addition, with respect to the Chisasibi Block “D”, paragraph 5.5 of Chapter 5 of the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee states
as follows:

“Canada agrees, in principle, to accept the transfer of the lands known as Block “D” in the community of Chisasibi, subject to certain issues related to the restoration of these lands. These issues are currently being addressed between the Cree Nation of Chisasibi, the GCC(EI), the CRA, Quebec and Canada. The Parties agree that Canada shall not be responsible for any costs associated with the land transfer of Block “D”, save and except land survey costs.”

The current and long delay respecting the transfer of Block “D” to the Cree Nation of Chisasibi can no longer be justified.

5. Block “D” should be transferred to the Cree Nation of Chisasibi forthwith.

Financial Reporting of Bands

Cree bands enter into funding agreements with governments in order to provide programs and services to their members. However, governments impose reporting requirements on the use and expenditure of public funds. Compliance with the financial reporting requirements of governments incurs additional expenses for the band. These additional expenses are not covered by the present funding arrangements with the governments.

6. Canada and Quebec should enter into discussions with Cree bands and/or the Cree Regional
Authority for adequate funding arrangements respecting the costs incurred by bands in
complying with the financial reporting requirements of governments.

Cree Housing

The issue of the housing needs and housing problems in the Cree communities has been reported by the Cree-Naskapi Commission since it began its biennial reports in 1986.

According to the representatives of the Cree communities, housing is seriously deficient in the Cree communities. Because of a substantial backlog and a rapidly growing population, the problem is deteriorating and badly in need of corrective and remedial action by Canada, the Cree Regional Authority and the Cree local governments. (The Cree local governments which may provide some funding cannot resolve the present housing needs and problems of their communities without the assistance of other governments.)

According to the representatives of the Cree communities, the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee inadequately or fails to provide corrective and remedial measures by Canada and the Cree Regional Authority to resolve the present housing crisis in the Cree communities.

7. The federal, Eeyou (Cree) and Naskapi authorities should determine and agree on the present and future needs of the Cree and Naskapi communities for housing and implement a strategic master plan, in the short and long term, to address these needs.

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Police Services and Administration of Justice

With the police services being regionalized, the Cree local governments presently do not have adequate human and financial resources. Furthermore, financial resources are currently not available to set up a Cree justice system which would mainly deal with lessor offences that could be remedied with local resources.

8. Canada, Quebec and the Cree Regional Authority should determine and agree on the present and future needs of the Cree communities for police services and a Cree Justice System and implement a strategic master plan to address these needs.

Cree Nations and Economic Development

The Cree Nation of Eastmain states that powers and objects of Bands under section 21 of the Cree-Naskapi (of Quebec) Act are lacking in providing for leadership in local economic development. Furthermore, section 22 of the Act should be amended to enhance and promote local economic development.

9. Canada and the Cree Regional Authority should review section 21 and section 22 of the Cree-Naskapi (of Quebec) Act with the objective of seeking amendments to the Act in order to enhance and promote local economic development.

Rent Collection

The Cree Nation of Eastmain presently has to resort to a Court process in order to collect rent or evict a tenant if a tenant of a band house defaults on rental payment(s).

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10. Canada and the Cree Regional Authority (in collaboration with the Cree bands) should determine innovative measures to ensure efficient collection of rent for band houses and residences.

Cree Nation of Washaw Sibi

11. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and the Cree Nation of Washaw Sibi should establish a process of discussions and planning to enable the realization of the objective of the Cree Nation of Washaw Sibi for the establishment of a distinct Cree community with their own Category I lands so that they can receive programs and services at the same level as the Crees in the other nine communities. Canada and/or Quebec should be invited to participate in this process on matters under their respective responsibilities and jurisdiction.

Incompatibility of the Cree-Naskapi (of Quebec) Act with Eeyou Eehdou-wun

Some of the present terms and provisions of the Cree-Naskapi (of Quebec) Act are incompatible with Eeyou Eehdou-wun or the Cree way of doing things in governance and administration.

12. Canada and the Cree Regional Authority (in collaboration with the Cree bands) should review the present terms and provisions of the Cree-Naskapi (of Quebec) Act with the objective of seeking amendments to the Act to ensure, where practical, compatibility with Eeyou Eehdou-wun or the Cree way of doing things in governance and administration.

Knowing and Understanding the Cree-Naskapi (of Quebec) Act

According to the representative of the Whapmagoostui First Nation, band members, administrators and council members need to know the administrative and executive functions of the band in respect to local government and administration. In addition, council members and administrators need to be informed on the legal framework of local government and administration as provided for in the Cree-Naskapi (of Quebec) Act, the James Bay and Northern Quebec Agreement and Eeyou traditional law.

13. Canada and the Cree Regional Authority in collaboration with the Cree-Naskapi Commission should develop and implement an orientation program which would promote understanding and knowledge of the terms and provisions of the Cree-Naskapi (of Quebec) Act amongst members of band councils, band employees and members of the band.

Eeyou (Cree) Youth

The representative of the Whapmagoostui First Nation stressed the importance of promoting the presence and participation of Eeyou youth in the activities and affairs of the band.

14. In the current process for the negotiations and establishment of the Cree Nation Government, the GCCEI/CRA should consult the Eeyou (Cree) Youth in the consideration of their participation in Cree governance and affairs of the Cree Nation of Eeyou Istchee.

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Granting of a Right of Superficie

The proper implementation of these housing programs requires the granting of a right of superficie to members who wish to be homeowners. The present process for the granting of a right of superficie under the Cree-Naskapi (of Quebec) Act is unnecessarily long and problematic. It is also a hindrance to local economic development.

15. Canada and the Cree Regional Authority (in collaboration with the Cree bands) should review the present terms and provisions of the Cree-Naskapi (of Quebec) Act with the objective of seeking amendments to the Act to empower the bands with legislative authority to enact a by-law on the granting of a right of superficie in a more efficient manner. (Such a by-law would be subject to the approval of the band members.)

Impacts of the Diversion of the Rupert River

The Eastmain-1-A Powerhouse and Rupert Diversion Project is presently under construction. The diversion of the Rupert River is a component of this hydroelectric development project. In fact, the Rupert River has already been diverted northward into the Eastmain 1 reservoir of the existing La Grande complex. The Waskaganish First Nation are concerned about the impacts of the diversion of the Rupert River on their Category IA and IB lands located across the river from Waskaganish. According to the Waskaganish First Nation, parts of the area are going to be difficult to access because of the changes in the river.

16. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority and the Waskaganish First Nation should initiate discussions with Hydro-Québec/Société d’Energie de la Baie James (SEBJ) on the need for impact studies on the impacts of the diversion of the Rupert River on the Category IA and IB lands of the Waskaganish First Nation.

Transfer of Land of the Roman Catholic Mission to the Waskaganish First Nation

17. Canada and the Cree Regional Authority in collaboration with the Waskaganish First Nation should initiate discussions to ensure the proper and efficient transfer of the said land of the Roman Catholic Mission to the Waskaganish First Nation as part of the Category IA of
Waskaganish.

Outstanding Issues and Concerns of the Cree Communities

In the past, the representatives of the Cree First Nations have been consistent and persistent in stating their issues and concerns to the Commission which addressed these issues and concerns in its past reports. However, from the perspective of Waswanipi, there appears to be no acknowledgement, response, action or follow-up on the part of the Government of Canada on Waswanipi’s issues and concerns.

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18. The Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority should establish a Special Implementation Task Force or Working Group to revisit the outstanding issues and concerns of the Cree communities as described in the biennial reports of the Commission since 1986 and to develop a concrete plan of action to resolve these matters.

Senneterre Crees

19. Canada and the Grand Council of the Crees (Eeyou Istchee)/Cree Regional Authority in collaboration with the Cree First Nation of Waswanipi should establish a dialogue process and a negotiating table to discuss and settle the issue of the Waswanipi Crees who live in Senneterre.

Importance and Role of the Cree Trappers’ Association

In relation to the Cree First Nations and the Cree Regional Authority, the Cree Trappers’ Association considers its role as follows:

a) to represent the interests of the Cree communities and their members in matters relating to the
management and use of wildlife resources; and

b) to play a complementary role to the Cree Regional Authority and the Cree First Nations in the
management and use of wildlife resources.

In assuming certain responsibilities of the Government of Canada, the Cree Regional Authority has certain obligations in regard to the Cree Nation. For the term of Agreement, the CRA must assume the responsibilities of Canada under the James Bay and Northern Quebec Agreement in regards to certain aspects of justice, certain Cree regional associations (such as the Cree Trappers’ Association), training and employment services, community centres, essential sanitation services, fire protection and economic development.

20. The Cree Regional Authority should acknowledge and recognize the present and future importance and role of the Cree Trappers’ Association and provide sufficient financial resources to enable the CTA to carry out its important role in conformity with the intent and spirit of the James Bay and Northern Quebec Agreement, Canada/Quebec/Cree new relationship agreements and the Agreement between the Crees of Eeyou Istchee and Her Majesty the Queen in Right of Canada concerning the Eeyou Marine Region.

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Chapter 8:

Conclusions

Over the past years, the Eeyou (Cree) Nation of Eeyou Istchee appears to have embarked on a journey of nation-building. One fundamental and important element in nation-building is the enhancement and advancement of governance. To this end, the Eeyou (Nation) are presently engaged in discussions with the representatives of Canada and in some matters with Quebec to formalize the establishment and implementation of the Cree Nation Government.

In its 2008 Report, the Commission has concluded that the Agreement Concerning a New Relationship between the Government of Quebec and the Crees of Quebec and the Agreement Concerning a New Relationship between the Government of Canada and the Cree of Eeyou Istchee will enhance Cree governance and administration. These Agreements will particularly promote and facilitate Cree Nation regional governance. However, it is equally important for the Government of Canada and the Cree Nation of Eeyou Istchee to find expression in their new relationship by advancing and enhancing Cree (and Naskapi) local government through appropriate amendments to the Cree-Naskapi (of Quebec) Act.

Over the past years and in its past reports, the Commission has advocated the need for the full and comprehensive review of the Cree-Naskapi (of Quebec) Act with the objective of identifying and determining appropriate amendments for the advancement and benefit of Cree and Naskapi local government.

Furthermore, the resolution of numerous concerns and issues of the Cree and Naskapi communities represents the core of recommendations contained in the present and past reports of the Commission. The present basic unit of government in the Cree and Naskapi Nations is the band corporation. The local community is the principal unit. Unless accompanied by the assumption of

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appropriate power with adequate resources, no progress can be made on these issues and concerns. These principles are central to the implementation of our recommendations.

Nevertheless, while principle primary authority rests with the local community, the Eeyou (Cree) Nation of Eeyou also recognizes that in practice powers and responsibilities would often have to be exercised at higher levels by governmental bodies representing the entire Cree Nation. The result would be multi-level Cree Nation governments, in which authority spreads upward from the people. This approach is reflected in the current process described in Chapter 3 of the present report for negotiating an agreement and related legislation concerning a Cree Nation Government. Consequently, the Cree Nation of Eeyou Istchee will have a Cree Nation regional government in addition to the Cree local governments of the communities. This approach appears to be the manner in which the Eeyou Nation of Eeyou Istchee wishes to exercise self-government.

The Commission considers that the right of self-determination and the constitutional right of self-government together provide a strong basis for realizing these Eeyou (Cree) aspirations.

| 79 | Conclusions