IMPLEMENTATION AND AMENDMENTS |
OF THE CREE-NASKAPI (OF QUEBEC) ACT |
DISCUSSION PAPER |
JANUARY 1999 |
PREPARED BY THE CREE-NASKAPI COMMISSION |
Richard Saunders - ChairmanRobert Kanatewat - CommissionerPhilip Awashish - Commissioner |
CREE-NASKAPI COMMISSION, 222 QUEEN STREET, SUITE 305... OTTAWA, ON K1P 5V9Tel: (613) 234 4288Fax: (613) 234-8102Toll-free: 1 888-236-6603 |
INTRODUCTION |
The Cree and Naskapi peoples have the right to freely determine their
political status and freely pursue their economic, social and cultural
development, and accordingly have the right of self-government based on
their history, status as 'peoples' and 'nations', occupancy of lands, prior
sovereignty and authority.
The Cree and Naskapi peoples have exercised and will continue to exercise their right of self-determination so as to strengthen their governments, institutions, culture and traditions in accordance with their aspirations and needs. In fact, the terms 'Eeyou/Eenou Kastchehouwun and Eetouwun' used by the Cree and Naskapi leadership encompass the principles of human rights, fundamental freedoms and aboriginal rights. For the recognition and protection of their rights and interests, the Cree and Naskapi peoples negotiated their respective modern day treaties - the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement. The Cree and Naskapi view these Agreements or treaties as reaffirmation of their rights and status as a 'nation' and 'people'. They consider also that these Agreements or treaties establish a framework for meaningful and positive relations with the Governments of Canada and Quebec as well as with contemporary society. The Governments of Canada and Quebec view these Agreements or treaties as extinguishment of rights and acceptance of the supremacy of the Crown by the Native parties. In particular, as far the Governments of Canada and Quebec are concerned, these treaties pave the way for the development of natural resources within Cree and Naskapi (as well as Inuit) territories. Upon the insistence of the Cree and Naskapi (as well as Inuit) leadership, the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement have been approved, given effect to and declared valid by legislation of the Governments of Canada and Quebec. Furthermore and most important, the Constitution Act, 1982, recognizes and affirms Aboriginal and Treaty rights. Consequently, the treaty rights of the Cree and Naskapi peoples under the James Bay and Northern Quebec Agreement (JBNQA) and the Northeastern Quebec Agreement (NEQA) as well as their aboriginal rights are protected by the supreme law of Canada. Prior to the implementation of the JBNQA and the NEQA, the Cree and Naskapi peoples were considered governed by and subject to the terms and provisions of the Indian Act and its amendments. The Indian Act provides the Government of Canada with the means to manage the lives and affairs of 'Indians'. As far as the Cree and Naskapi peoples were concerned, the Indian Act severely limited the exercise of the right of self-determination and the practice and right of self-government. Hence, as a means of reaffirmation and gaining recognition of their right of self-government, the Cree and Naskapi leadership, respectively, negotiated Section 9 (Local Government over Category IA Lands) and other relevant Sections of the JBNQA and Section 7 (Local Government over Category IA-N Lands) and other pertinent Sections of the NEQA. These Sections of the modern day treaties provide for partial expressions of the Cree and Naskapi right of self-government. |
CREE-NASKAPI (OF QUEBEC) ACT |
Pursuant to Section 9 of the JBNQA and Section 7 of the NEQA, respectively,
the Government of Canada, undertook to recommend to Parliament "special
legislation concerning local government for the James Bay Crees on Category
IA Lands" and "suitable legislation.... concerning local government for
the Naskapis of Quebec on Category IA-N Lands".
Consequently, from 1976 to 1984, the Governments of Canada and the Cree and later the Naskapi negotiated the terms and provisions of this 'special and suitable legislation' as well as funding arrangements for its implementation. This special legislation - the Cree-Naskapi (of Quebec) Act - according to its preamble provides "for an orderly and efficient system of Cree and Naskapi local government, for the administration, management and control of Category IA and Category IA-N land by the Cree and Naskapi bands respectively.........". 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. The representatives of the Cree and Naskapi parties and the Government of Canada arrived at a shared understanding as to the implications and impact of the Cree-Naskapi (of Quebec) Act, in the Statement of Understanding of 1984, which is best summarized as follows:
The challenge and goal of the Cree and Naskapi First Nations are to achieve proper social and economic development and political self-empowerment in the exercise of their rights of self-determination and self-government while protecting their rights, basic freedoms and interests and preserving and maintaining their distinctiveness and cultural identity in accordance with their aspirations and needs. In this regard, the implementation of the Cree-Naskapi (of Quebec) Act, in letter and spirit, must enable and facilitate the development and evolution of Cree and Naskapi local government by taking into account the social, economic and political realities and conditions prevailing from time to time of the Cree and Naskapi First Nations. Hence, the proper implementation of the Cree-Naskapi (of Quebec) Act bears exceptional significance and tremendous consequences on the aspirations and goals of the Cree and Naskapi First Nations as self-governing peoples. |
IMPLEMENTATION AND AMENDMENTS OF THE CREE-NASKAPI (OF QUEBEC) ACT |
To enable and provide for an orderly and efficient system of Cree and
Naskapi local government and for the administration, management and control
of Category IA and Category IA-N Lands by the Cree and Naskapi bands respectively,
the Cree-Naskapi (of Quebec) Act provides for terms and provisions for
the following principal and general matters:
In the transition from the regime of the Indian Act (which does not apply to the Cree and Naskapi bands and in their community lands after the coming into force of the Cree-Naskapi (of Quebec) Act), the implementation of local government under the new Act contemplates the following significant and major departures from the Indian Act:
The meaning and practice of local self-government has evolved and been redefined over the past fifteen (15) years in a manner consistent with the aspirations, goals and political will of the Cree and Naskapi First Nations. The Cree and Naskapi people are using their governments to meet needs such as housing, economic development, traditional (hunting, fishing, and culture) pursuits, policing, administration of justice, education, health, delivery and administration of programs and services, community development, environmental protection, and political representation to conduct government-to-government relations. The full potential of local self-government, with its dynamic and evolving nature, has not yet been realized nor achieved by the Cree and Naskapi First Nations because, as one principal constraint, the Cree-Naskapi (of Quebec) Act, after fifteen (15) years, remains an inflexible, rigid and unchanging instrument. (However, the JBNQA is a treaty, with an evolving character, as it has been amended by means of twelve (12) Complementary Agreements to meet the needs and changing conditions of the parties concerned.) Therefore, the Cree-Naskapi (of Quebec) Act, must be amended in order to provide a flexible framework to accommodate the full range of governmental and political arrangements needed and sought by the Cree and Naskapi First Nations and peoples. 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 of the Cree-Naskapi (of Quebec) Act was assumed by the Department of Indian Affairs and Northern Development (DIAND). This assumption of general responsibility by the DIAND has resulted to both positive and negative consequences for the implementation of the Cree-Naskapi (of Quebec) Act. Nevertheless, the Cree-Naskapi (of Quebec) Act should be amended to provide for a meaningful, periodic and effective process of review and implementation of the Act with the direct participation of the Cree and Naskapi parties. This periodic review should include the assistance of the Cree-Naskapi Commission. However, the Cree-Naskapi (of Quebec) Act establishes the Cree-Naskapi Commission with duties to prepare biennial reports on the implementation of the Act and to investigate any representation submitted to it relating to the implementation of the Cree-Naskapi (of Quebec) Act. After the preparation and submission of six such biennial reports to the Minister of DIAND on the implementation of the Act, from 1986 to 1998, the Cree-Naskapi Commission has concluded that the proper implementation of the special federal legislation respecting Cree and Naskapi local government depends essentially upon the cooperation, good faith and political will of the Governments of Canada and the Cree and Naskapi First Nations and peoples. In the preparation of its biennial reports on the implementation of the Cree-Naskapi (of Quebec) Act, the Cree-Naskapi Commission has conducted public consultations with the Government of Canada, Cree and Naskapi First Nations and other interested parties as part of its fact-finding procedures. Based on its findings and conclusions and submissions of federal and Natives parties, the following general issues and concerns constitute the major constraints and barriers for the proper implementation of the Cree-Naskapi (of Quebec) Act and exercise of local Cree and Naskapi self-government:
The renewal of levels of funding for periods of five (5) years and its transfer arrangements as well as its implementation by means of "Operations and Maintenance Funding Transfer Payment Agreements" have been and continue to be an exercise of acrimony and confrontation.
In addition, the Act should provide for or recognize local and regional Cree government-to-government relations as determined by the Cree Nation and peoples and similar provisions should be determined by and for the Naskapi Nation and people.
In some cases, the requirement of quorums or the percentage of electors of a band meeting or referendum are serious detriments and barriers in the exercise of necessary to vote on certain matters and the requirements for a special decision-making and policy-making by the local governments of the Cree and Naskapi First Nations and peoples. Furthermore, Section 86 (2) of the Cree-Naskapi (of Quebec) Act permits a band to make by-laws which determine a different minimum percentage of electors required to vote on a matter but not a lower percentage than that specified in the relevant provision of the Act. The quorum provisions of the Act guarantee band members a direct role and participation in decision-making respecting important matters. However, some of the Cree and Naskapi local governments have expressed concern that certain minimum percentage requirements are too high. But, the Cree and Naskapi local government, peoples or bands cannot reduce these quorums or minimum percentage requirements under the present terms of Section 86(2) of the Cree-Naskapi (of Quebec) Act. In some cases, the requirements for approval by the electors on certain matters should be eliminated. The Cree and Naskapi local government should determine their own quorums by their own legislative powers and authority. Therefore, it has become necessary and essential that a full review of these requirements of the Act be conducted by the parties concerned so that appropriate amendments can be made to the Cree-Naskapi (of Quebec) Act to facilitate and not constrain the decision-making process of local government.
Furthermore, the Cree and Naskapi First Nations should be provided adequate financial resources to provide effective policing services for their communities. As the provision of effective policing services as well as the maintenance of law and order are essential dimensions of self-government, the Cree-Naskapi (of Quebec) Act should be amended to guarantee the provision of appropriate and adequate resources for effective policing services by the Cree and Naskapi First Nations. Most important, the Cree and Naskapi First Nations should create their own police forces which are recognized by the Act. In addition, Section 19 - Police (Crees) of the JBNQA and Section 13 - Police (Naskapi) -of the NEQA should be reviewed and implemented properly by the parties to complement the implementation and development of Cree and Naskapi self-government.
The Cree-Naskapi (of Quebec) Act should be amended to take into account these aspirations and goals for a Native justice system with adequate resources. Accordingly, Section 18 - Administration of Justice (Crees) - of the JBNQA and Section 12 - Administration of Justice - of the NEQA should be reviewed, amended and implemented properly to reflect these aspirations and goals of the Cree and Naskapi First Nations and peoples.
For many reasons, Quebec, as a provincial government, is becoming increasingly important to the lives of Cree and Naskapi peoples. After all, the Government of Quebec is a party and a signatory to the treaties - the JBNQA and the NEQA. Quebec has enacted legislation to put into force, into effect and to declare valid these treaties. In the areas of policing and justice, the Cree and Naskapi parties should negotiate with Quebec for a parallel legislation on local governments. These negotiations should cover jurisdiction of local governments and Native police forces outside of Category I Lands as well as the development, review and implementation of a Native justice system with adequate resources. A negotiated agreement and appropriate enabling legislation or legislation which recognizes these matters would definitely complement the practice and exercise of Cree and Naskapi self-government. However, full legislative and policy making powers on matters affecting the Cree and Naskapi peoples, their communities and lands should be among the powers of the Cree and Naskapi local governments. Consequently, the powers of the Minister of the DIAND and the Governor in Council provided for in the Cree-Naskapi (of Quebec) Act must be reviewed and the Act should be amended accordingly. Furthermore, the Act should provide for or recognize the authority of the Cree local and regional governments and authorities to make agreements with governments and public bodies and agencies. The application of such agreements should also be recognized in the Act. Similar amendments to the Act should be determined by and for the Naskapi Nation and people. As an example, the Cree-Naskapi (of Quebec) Act should be amended to provide for agreements between Cree, Naskapi and other governments and public bodies for the purpose of facilitating government administration of Category I A, I B, I B Special, I A-N, Category II and Category III lands. (Section 196 of the Cree-Naskapi (of Quebec) Act , simply, permits a Cree or Naskapi band, with the approval of Quebec, to enter into an agreement with certain authorities for the provision of policing services on Category I A or I A-N land.)
For the Cree-Naskapi Commission, it has become apparent that the proper implementation of the JBNQA and the NEQA is essential and fundamental for the realization of Cree and Naskapi self-government. The implementation of the Cree-Naskapi (of Quebec) Act, as legislation enabling self-government contemplated by pertinent Sections of the JBNQA and the NEQA, is complementary and inseparable from the implementation of these treaties. Therefore, the question also remains and must be asked if the appropriate legislative and administrative measures are in place for the proper implementation of the Cree-Naskapi (of Quebec) Act. As far as legislative measures are concerned, the advancement of the Cree and Naskapi local governments and the Cree-Naskapi Commission require appropriate amendments to the Cree-Naskapi (of Quebec) Act. Furthermore, productive and effective new administrative measures are needed for adequate funding, appropriate fiscal policies and proper structures for the implementation of the Act. The Governments of Canada, the Cree and Naskapi must avoid adversarial and acrimonious exercises and adopt a plan based on the principles of cooperation, good faith, mutual respect and mutual responsibility for the proper implementation of the letter and spirit of the JBNQA, the NEQA and the Cree-Naskapi (of Quebec) Act. The federal government conducted a review of the JBNQA, in 1982. In its report, entitled James Bay and Northern Quebec Implementation Review, the full federal review concluded as follows: "Lack of proper mechanism, structure and attitudes regarding implementation has been a major impediment to the smooth and efficient implementation of the Agreement. The establishment of more effective systems for implementation can do a great deal to prevent the build up of the type of conflict and tensions which, in recent years, have consumed time and resources that could be used much more productively in achieving the aims and objectives of the Agreement". Furthermore, the Report of the Auditor General of Canada to the House of Commons (Chapter 14 - Indian and Northern Affairs Canada - Comprehensive Land Claims), September 1998, states as one of its main points as follows: "We found deficiencies in implementation, including inadequate or non-existent implementation plans, and the need to improve, reporting and evaluating". The accountability, obligations and responsibilities of the federal government, as well as those of the Native parties, for proper implementation of the JBNQA and the NEQA including the Cree-Naskapi (of Quebec) Act must also be clarified. While the Government of Canada has concluded implementation agreements with the Cree and Naskapi First Nations, experience and history will determine their effectiveness. Clearly, the good will, faith and political resolve of all the parties concerned are needed for the proper and effective implementation of the JBNQA, the NEQA and the Cree-Naskapi (of Quebec) Act. ( The Cree-Naskapi Commission has prepared a separate discussion paper on the implementation process of treaties such as the JBNQA and the NEQA.)
The Report of the Inquiry into the Cree-Naskapi Commission, February 1991, includes the following principal recommendations: As the nineties come to an end, it is clear that the "challenges" contemplated in the Report of the Inquiry into the Cree-Naskapi Commission have not been met and remain outstanding. The members of the Inquiry in their letter of submission of the Report to the Minister of Indian Affairs and Northern Development have stated: Clearly, there is an essential need for an appropriate report system on the implementation of the JBNQA and the NEQA for the years after 1998. As stated, the Report of the Inquiry into the Cree-Naskapi Commission has recommended, as one of its recommendations, that the report function of the Commission should extend to encompass implementation of the Agreements, as well as the Cree-Naskapi (of Quebec) Act. However, the report on the implementation of the JBNQA and the NEQA should cover only matters that affect the Cree and Naskapi parties. The Cree-Naskapi Commission should submit such a report to the Governments of Canada, the Cree and Naskapi peoples. The Cree and Naskapi First Nations have also expressed the need to expand the role and mandate (of the Cree -Naskapi Commission) which should include all issues relating to the proper implementation of the JBNQA and the NEQA in the absence of a proper implementation process for these treaties. As a matter of fact, in March 1988, the Honourable Mr. Justice Réjean Paul, Chairman of the Cree-Naskapi Commission, at the request of the federal and Cree governments, served as an interim-mediator for the negotiations respecting resolution of difficult issues such as funding of past capital projects, operations and maintenance funding and the situation of the Ouje-Bougoumou Cree Nation. The successful resolution of these issues through mediated negotiations demonstrates the potential of the Cree-Naskapi Commission in assuming a more active and effective role in resolving disputes and securing satisfactory agreements which facilitate the implementation of the JBNQA. Furthermore, the "Operations and Maintenance Funding Transfer Payment Agreement" of 1995 between the Government of Canada and the Cree parties provides for an important role of the Cree-Naskapi Commission in the Dispute Resolution Mechanism contemplated by the said Agreement. Moreover, the Cree leadership has stated that the Cree-Naskapi Commission:
The Ouje-Bougoumou/Canada Agreement of 1992 provides for the agreement by the parties to amend the James Bay and Northern Quebec Agreement and the Cree-Naskapi (of Quebec) Act in order that the Cree of Ouje-Bougoumou be recognized as the ninth Cree Band. Therefore, the Cree-Naskapi (of Quebec) Act should be amended, accordingly, for the incorporation of the Cree of Ouje-Bougoumou as the Ouje-Bougoumou Band or Ouje-Bougoumou Eenouch.
It is not clear on the question of holding an election for the office of the Chief as the 'bands' use a separate ballot system for the elections of Councillors and the Chief. The Cree and Naskapi First Nations should exercise full legislative authority to establish and maintain their own systems for calling of elections, contestation of election results, process and mechanism for resolution of disputes, eligibility to be elected council member, appointment and duties of Returning Officers. The requirements for Ministerial approval and legislative authority of the Governor in Council respecting band elections should be repealed.
The Cree-Naskapi (of Quebec) Act should be amended to permit the Cree and Naskapi local governments to:
The period of time determined for the preparation of audited financial statements should not be an obstacle for financial administration (ie., securing and transfer of advance funds).
CONCLUSIONSPursuant to Eeyou/Eenou law and the state of Canadian law respecting aboriginal and treaty rights, the exercise and practice of Cree and Naskapi self-government is a reality and a fundamental right of the Cree and Naskapi peoples. The Cree and Naskapi First Nations and peoples are exercising the right of self-government, in a manner, that extends beyond the scope of the Cree-Naskapi (of Quebec) Act. This evolution of the Cree and Naskapi local government is customary and natural as political power is universal and inherent in human nature.However, for the past fifteen (15) years, the Cree-Naskapi (of Quebec) Act has not maintained pace nor evolved with the exercise and practice of the Cree and Naskapi local government. In fact, certain existing provisions and terms and the absence of essential provisions of the Cree-Naskapi (of Quebec) Act constitute as serious obstacles and constraints for Cree and Naskapi local government and administration. Therefore, based upon the findings, six biennial reports and public consultation process of the Cree-Naskapi Commission, it is definitely and essentially clear that the Cree-Naskapi (of Quebec) Act should be amended to provide for an orderly and efficient system of Cree and Naskapi local government, for the administration, management and control of Category I A and Category I A-N land by the Cree and Naskapi bands respectively. The Government of Canada outlines four key objectives in its document entitled - Gathering Strength - Canada's Aboriginal Action Plan as follows:
In addition, the trust and fiduciary responsibilities and obligations of the Government of Canada must be exercised, on a government-to-government basis, for enhancement of Cree and Naskapi local government. Consequently, and in conclusion, a meaningful process must be established and implemented by the Governments of Canada, Cree and Naskapi peoples for a full and comprehensive review of the Cree-Naskapi (of Quebec) Act with the objective of identifying and determining appropriate amendments to the special federal legislation respecting Cree and Naskapi local government. This process must include a clear undertaking that the Government of Canada shall amend the Cree-Naskapi (of Quebec) Act, in a manner, that recognizes, enhances and enables the present state and exercise and full potential of Cree and Naskapi local self-government. |