Introduction to The Inquiry

The Cree-Naskapi Commission Inquiry was initially struck in June 1990; however, due to a number of procedural delays, the set-up began in mid-July and the appointment of the third Inquiry member was made in mid-August. The federal government issued a press release on September 18, 1990 to announce the formation of the Inquiry.

While the Inquiry office was being set up, the members held a first set of meetings with the parties (the federal government, the Cree communities, the Grand Council of the Crees of Quebec (GCCQ) and the Naskapi Band), and with the Commission.The Inquiry sent to each of the parties, and to the Commission, a framework of the range of issues the Inquiry wish to explore. These were provided to help prepare the comprehensive meetings subsequently held by the Inquiry with each of them.

The Inquiry invited all parties, the Commission, the Government of Quebec and the Assembly of First Nations (AFN) to meet with the Inquiry and to submit their written views, if they so wished.

Several communities supplemented their meetings with written briefs, and the Commission prepared detailed submissions to the Inquiry. The GCCQ and the federal government also prepared written documents, though they were received only in late January 1991. The Government of Quebec did not acknowledge the three letters the Inquiry sent. The AFN had to cancel a scheduled meeting but submitted written commentary.

The Inquiry conducted a thorough review of documentation held by the parties and the Commission relating to all aspects of the history and development of the Commission and of its operations over the five years of its existence, or four years of full operation.

Following the autumn hunting seasons in the communities, the Inquiry travelled to northern Quebec on two occasions and met with all of the Cree and Naskapi communities. Subsequent meetings were held in Ottawa with the Commission and with federal officials of the Department of Indian Affairs and the Department of Justice, and in Montreal with the GCCQ.

The Inquiry also requested an independent audit of the expenditures and financial management of the Commission and, before drafting its report, conducted in-depth research into a number of issues, including dispute resolution mechanisms.

Background to the Report

This chapter presents facts and explanations by way of background to the discussion of issues contained in subsequent chapters. The Act and the Commission are situated in their legal contexts and in the current political and policy environments. This is followed by a brief review of the Agreements, the Act and the peoples they serve.

For those unfamiliar with the mandate and operations of the Commission, there is an overview of what the Commission is expected to do, what tools it has, what it has accomplished and how its operations have been financed.

To facilitate an understanding of points raised by the parties or in the analysis, the various structures within the Department are identified where overall responsibility for managing issues relating to the Agreements and the Act has resided. Finally, there is an identification of the various dispute resolution models that have been examined by the Inquiry.

2.1 The Environment

This Inquiry into the Cree-Naskapi Commission has taken place some thirteen to fifteen years after the conclusion of the original Agreements: The James Bay and Northern Quebec Agreement (TBNQA), 1975; and the Northeastern Quebec Agreement (NEQA), 1978); six years after the enactment of the Cree-Naskapi (of Quebec) Act, 1984 and four years after the Commission itself became fully operational.

For the purposes of the Inquiry, it is important to understand the historical origins of the Commission and the original objectives of the parties as reference points against which to assess performance and options for the future.

It is equally important to understand the general legal, political and policy context within which the Commission's history, performance and options for the future must be assessed. This section provides a brief summary overview of this context.

The Constitutional and Legal Context

Under Section 91 (24) of the Constitution Act, 1867 the legislative authority for Indians and lands reserved for Indians rests with the federal government. Most Indian communities operate under the main federal legislation enacted pursuant to its Section 91 (24) authority - the Indian Act.

There is considerable complexity flowing from the legal program and financial over-lapping of the federal government's primary legislative authority for Indians with provincial constitutional responsibilities in such areas as education, health and justice.

Provincial governments are involved in programs and financial arrangements, to varying degrees across the country, over a broad range of service areas, as well as areas touching directly on Indian lands and resources.

Under the provisions of the Constitution Act, 1982 Indian people are constitutionally recognized as Aboriginal peoples (Section 35⁽²⁾). Their Aboriginal and treaty rights are "recognized and affirmed" (Section 35⁽¹⁾) and those rights are protected from derogation by the Charter of Rights and Freedoms (Section 25).

There is a considerable agenda of "unfinished constitutional business" between Indian peoples and the Governments of Canada and the provinces, including the priority item of Indian government. Constitutional discussions at the First Ministers' level between 1982-1987 ended without agreement on the main agenda items.

The significance of Quebec's non-participation in those discussions and the complexity of the broader constitutional issues now confronting the country are to be noted.

The JBNQA and the NEQA are constitutionally recognized and protected under Section 35⁽³⁾ of the Constitution Act, 1982 which provides: For greater certainty, in subsection (1), "treaty rights " includes rights that now exist by way of land claims agreements, or may be so acquired.

In large part, the provisions of the all-pervasive Indian Act no longer apply to the Crees or the Naskapis; Section 5 of the Cree-Naskapi (of Quebec) Act, 1984: Except for the purpose of determining which of the Cree beneficiaries and Naskapi beneficiaries are "Indian " within the meaning of the Indian Act, the Indian Act does not apply to Cree Bands or the Naskapi Band nor does it apply on or in respect of Category IA or lA-N lands.

The roles and responsibilities of the Governments of Canada and Quebec are differently defined (and realigned in some areas) as a result of the provisions of the JBNQA and the NEQA, the implementing legislation (both federal and provincial) and related agreements.

The Cree-Naskapi Commission was one of the products of the first legislation recognizing Indian self-government (The Cree-Naskapi (of Quebec) Act), which was itself the product of the first modern-day treaty. Its current mandate and operations are focused in a legal context and relationship, between the Crees, the Naskapis and the Governments of Canada and Quebec, that is unique within Canada.

The Political and Policy Environment

At the national level, the relationships of the Indian First Nations and their membership with the federal and provincial governments are at a major turning point.

The events of 1990, including Indian involvement in the failure of the Meech Lake Accord and widespread Indian protest over a broad range of issues (particularly at Kahnawake and Kahnasatake), have effectively served notice that Indian people are no longer prepared to allow their agenda to be marginalized by "broader national concerns."

In the view of the Inquiry there is an imperative and an inevitability for a fundamental reassessment of all aspects of the current Government-Indian relationship in the years immediately ahead.

Probable outcomes of such a reassessment will include recognition of Indian governments as a distinct order of government in the Canadian political system, as well as realignment of the current roles and responsibilities of governments in relation to Indian peoples and their lands.

The challenge of effecting these required changes, at a time when broader constitutional issues remain unresolved, is apparent. The imperative is likewise clear that the Indian agenda be accorded a priority place in broader constitutional processes, however they unfold.

Central to the failures and confrontations of recent years and the challenges for the future, is the virtual lack of cooperative processes and mechanisms to define the policy agenda and to govern dispute resolution between federal and provincial governments and Indian political representatives.

The national level issues, experience and challenges in the areas identified are mirrored in the experience of the Crees and the Naskapis in their dealings with the Governments of Canada and Quebec over the last ten years.

While a significant portion of the JBNQA has in fact now been implemented, the Crees report the federal government has repeatedly broken promises and failed to implement some of the more important terms of the original agreements and subsequent understandings on implementation. The original agreement was born out of confrontation and the continuing relationship between the Crees and the federal government, in particular, has been marked by suspicion, hostility and disagreement over a broad range of topics. The effective ability to maintain dialogue, let alone achieve progress, has at times been stretched to its limits.

However, during this same time period, it must be said that the transformation of the Cree and Naskapi communities, as well as the evolution and performance of a broad range of Cree and Naskapi institutions and structures (political, social and economic), are without precedent.

The challenges in achieving full implementation of the specific provisions of the original Agreements and subsequent understandings are now compounded by new (but at the same time old) issues, including the proposed James Bay Il hydro-electric developments and broader issues relating to the constitutional place of the Crees and the Naskapis within Quebec and Canada in the future.

Increased tension and confrontation with the Province of Quebec, in particular, appears inevitable in the years immediately ahead over a broad range of issues. For its part, the Government of Quebec is now preoccupied with broader constitutional concerns and is still managing the after-effects of the events of the Summer of 1990. Yet there is little evidence of constructive dialogue between Quebec and its Aboriginal peoples, especially with the Crees and the Naskapis.

Beyond the obvious present and future conflicts with the Crees flowing from the proposed James Bay II developments, the omission of Aboriginal representation from the Belanger-Campeau Commission presently studying constitutional options for the province, further confirms a broad gap in understanding and in the cooperative working relationship needed to avoid further confrontation in the immediate future.

For its part, the federal government's national policy agenda in the post-Meech Lake/Oka environment is reflected in a statement by the Prime Minister to the House Commons on September 25, 1990.

In his address, the Prime Minister confirmed the Government's intention to embark upon a fundamental restructuring of the Government-Indian relationship by adopting a "New Native Agenda." The Government's approach, as described, rests on four "main pillars", namely: the speedier resolution of land claims; improving living conditions on Indian reserves; effecting changes to the Indian Act; and reviewing more generally the fundamental place and role of Indian peoples in contemporary Canada, including the enhancement of the capacity for self-government within the framework of the Canadian Constitution.

At this stage, few details of initiatives under this "new Native agenda" have been announced by the federal government.

In the end, progress at the national level, or with the Crees and Naskapis specifically, is dependent upon having effective means to achieve:

1. direct Indian input into processes for dealing with their own agenda and broader decision-making; and
2. the resolution of disputes on a fair and equitable basis.

In this context, the review of how the Cree-Naskapi Commission, a vehicle established to assist the parties to Canada's first modern land claims agreement, might evolve and assist with some of these challenges, takes on new significance.

Answers to questions such as: Has it worked well? and Can it work to serve the common objectives of the parties, and if so what changes are required? may signal the direction that will need to be taken to meet similar requirements with other Aboriginal groups across the country.

What might thus initially appear as a task of marginal importance becomes one of considerable significance not only for the immediate parties, but potentially on a much broader basis.

2.2 The Crees and the Naskapis of Quebec

1. The Communities

   For thousands of years the Cree and Naskapi peoples have maintained a traditional, semi-nomadic way of life based on hunting, fishing and trapping over a vast territory of present-day northern Quebec, a territory they continue to share with the Inuit of Quebec.

   There are nine separate Cree First Nations in this territory, of which eight were originally recognized under the James Bay and Northern Quebec Agreement. Five communities lie along the eastern shore of Hudson Bay or James Bay:

   - Whapmagoostui (pop. 482)

   - Chisasibi (pop. 2,445)

   - Wemindji (pop. 881)

   - Eastmain (pop. 480)

   - Waskaganish (pop. 1,306)

   The original three inland communities are situated in the southern part of the territory:

   - Nemaska (pop. 406)

   - Waswanipi (pop. 897)

   - Mistissini (pop. 2,173)

   The ninth Cree First Nation, the inland Cree of the Ouje-Bougoumou, has recently won recognition as a distinct Band with its own land base. The JBNQA and The Cree-Naskapi (of Quebec)Act will have to be amended to reflect the ninth Cree First Nation. The new community will be built on the shores of Lake Opemiska, between Waswanipi and Mistissini and will be home to the Ouje-Bougoumou people who currently reside in other communities or towns.

   There are approximately 9,000 Crees in northern Quebec, a majority of whom are under the age of 25. There are two main dialects of the Cree language - coastal and inland, or north and south - but most communities have also developed their own distinct dialects.

   The Naskapi people are related to the Crees, but enjoy their own distinct history, language and culture. Originally a nomadic people who shared the territory south of the Ungava Bay with the Inuit, the Naskapis still maintain their traditional relationship to the caribou that roam the lands of northeastern Quebec. The impressive new community of Kawawachikamach, near Schefferville, is home to approximately 540 Naskapi

2. The James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement

   The James Bay and Northern Quebec Agreement (JBNQA) and The Northeastern Quebec Agreement (NEQA) are the first modern-day Indian land claims agreements in Canada. The Governments of Canada and Quebec (including three Quebec Crown corporations) signed the JBNQA in 1975 with the Crees and Inuit of Quebec, and signed the NEQA with the Naskapis of Quebec in 1978.

   These agreements are negotiated settlements principally concerning the ownership and use of vast amounts of land in the James Bay territory of northern Quebec. They came about as a direct result of the Quebec Government's plan to utilize vast territories for hydro-electric development. Negotiations began after an injunction to stop the development was won by the Crees, followed by appeals to the Quebec Court of Appeal and ultimately to the Supreme Court.

   The JBNQA and the NEQA are also much more than land claims settlements. They are modern-day treaties that are protected under Section 35(3) of the Constitution Act, 1982. They are dynamic and evolutionary documents that, along with The Cree-Naskapi (of Quebec) Act, form the new constitutional framework for the future of the Cree and Naskapi peoples.

   In 1972, the Cree, Naskapi and Inuit peoples, who have lived a traditional way of life on the land, contested the James Bay Hydro-Electric Development Project of the Government of Quebec on the basis of continuing unextinguished Aboriginal title.

   The request for an injunction to stop the development was granted by the Quebec Superior Court in 1974 but was overturned by the Appeal Court a short time later. The Governments of Canada and Quebec had entered into negotiations in 1974 to try to resolve the Cree claim, and an agreement-in-principle was reached in late 1974. The question of title to the land had meanwhile been taken to the Supreme Court of Canada, but before a decision was rendered the parties reached agreement. The JBNQA was signed on November 11, 1975.

   A little over two years later, on January 31, 1978, the Naskapis and the Governments of Canada and Quebec signed a similar Agreement - the Northeastern Quebec Agreement.

   Under the terms of the JBNQA, the then 6,500 Crees and 4,200 Inuit of Quebec relinquished native territorial claims in return for $225 million over 20 years ($155 million for the Crees and $70 million for the Inuit), along with certain rights over specified lands and the promise of substantial self-government, program money and other benefits provided for in the Act.

   The Northeastern Quebec Agreement made $9 million available to the 540 Naskapis, also in return for the surrender of their native claims, rights, titles and interest, and established land rights similar to those for the Crees and Inuit.

   One of the most significant aspects of the two Agreements is the land regime it sets up. There are essentially three categories of lands:

   Category I & I-N (Cree - 3,250 sq.mi.) (Naskapi - 126 sq.mi.)

   Exclusive use of the Cree/Naskapi community. Includes some land under federal jurisdiction and some under provincial jurisdiction.

   Category II & II-N (Cree - 25,130 sq.mi.) (Naskapi - 1,60 sq.mi.)

   Cree/Naskapi have exclusive hunting, fishing and trapping rights, but no special right of occupancy.

   Category III (346,092 sq.mi)

   Remaining territory in JBNQA. Public use and access. Cree/Naskapi have more limited hunting, trapping and fishing rights.

   The two Agreements also affect most other aspects of daily life and future planning for the Crees and the Naskapis, such as:

   individual entitlement;

   local and regional government;

   health and education;

   environmental protection;

   the administration of justice; and

   economic and social development.

   On some matters the Crees and the Naskapis deal with the provincial government and on a few other matters with the federal government. In some cases, however, the involvement of both levels of government is required. The provincial government has a continuing role in areas such as natural resources, the provision of social, health and education services and the administration of justice.

   There was no dispute resolution mechanism provided for in the JBNQA or the NEQA. One has sub-sequently been negotiated with the Inuit (JBNQA) and the Naskapis (NEQA) in their respective implementation agreements signed in 1990.

3. The Cree-Naskapi (of Quebec) Act, 1984

   The Cree-Naskapi (of Quebec) Act is the first legislation in Canada to provide limited recognition of Indian government. It redefines the relationship between the Government of Canada and the Cree and Naskapi peoples. The Indian Act no longer applies to them.

   The Act is a direct outcome of the JBNQA and the NEQA, giving them life and substance as they apply to those Indian lands held by Canada for the exclusive use of the Crees and the Naskapis. Sections 9 and 7, respectively, of the two Agreements oblige the Government of Canada to recommend "special legislation" to Parliament relating to setting up local governments on IA and IA-N lands that would not be accountable to the Minister of Indian Affairs and Northern Development, but to the Cree and Naskapi people themselves.

   What does The Cree-Naskapi (of Quebec) Act do?

   The Act sets out the detail of how local government will operate. In many ways it acts like a constitution, establishing jurisdictions and overall structures and defining individual and collective rights and responsibilities.

4. Principal Naskapi and Cree Structures

   The Naskapi Band

   There is only one Naskapi Band, at Kawawachikamach, and there are no regional structures.

   The Cree First Nation

   The Cree-Naskapi (of Quebec) of Act and the JBNQA now recognize eight Cree First Nations, each one of which constitutes a separate community.

   As mentioned above, a ninth First Nation, the Ouje-Bougoumou Crees, was recognized by the Government of Canada on December 24, 1990 as a distinct Band with the right to its own community and land as defined in the JBNQA and the Act.

   Each of the communities is separately constituted as a corporation for purposes relating to IA lands and is incorporated by reference of provincial laws for purposes relating to IB lands.

   The Cree Regional Entities

   There are numerous regional Cree institutions that deal with issues ranging from Cree-federal and international relations to the regulations and income security of hunters, trappers and fishermen, housing, construction, arts and crafts and Cree owned corporations such as the successful airline, Air Creebec.

   In addition, the Crees are involved in an array of intergovernmental corporations, councils and committees with the provincial and/or federal governments to deal with common concerns in economic development, environmental, judicial, policing, zoning and other policy areas.

   For the purpose of providing context for this report, however, we want only to note briefly the principal Cree entities:

   The Grand Council of the Crees of Quebec (GCCQ)

   The GCCQ functions largely as a regional political arm for the Cree nation, mostly on federal-Cree and international affairs. It is a non-profit corporation that takes its mandate directly from the Cree communities through the Cree General Assembly. The GCCQ may act as an agent of the Cree people or the individual Cree First Nations on any delegated issue. The GCCQ is headed by the Grand Chief of the of the Crees.

   The Cree Regional Authority (CRA)

   The CRA is a largely administrative arm dealing mainly with provincial-Cree affairs. Since 1980, the CRA shares the same executive as the GCCQ, but operates under a separate authority. Its mandate is derived from the JBNQA and is concerned with issues of common services and programs, community welfare and development. It also serves as the executive of the Board of Compensation, another entity whose members administer, invest and distribute the compensation monies paid under the Agreement.

   The Cree School Board and the Cree Board of Health and Social Services

   The School Board has full jurisdiction over elementary, secondary and adult education and draws its commissioners from the eight communities and one from the CRA. The Health and Social Services Board administers services on Categories I and II lands.

2.3 The Cree-Naskapi Commission

History of the Commission

Although The Cree-Naskapi (of Quebec) Act was passed into law in July 1984, it was not until December of the same year that Part XII of the Act, the portion establishing the Commission, came into force. The following year was devoted primarily to establishing the necessary funding arrangements and fulfilling the consultation procedures for Commissioner appointments. Once the selection process was concluded, in early 1986, the three commissioners were appointed: Mr. Justice Rejean Paul, Mr. Robert Kanatewat and Mr. Richard Saunders.

As the job of a commissioner involves only a part-time commitment, one of the first priorities was the hiring of support staff personnel. The position of Director General was filled by Ms. Marsha Smoke in August 1986. Additional staffing appointments followed and the head office location of the Commission was moved from Val d'Or, Quebec to Ottawa.

During the latter half of 1986, the Commission hired additional support staff to prepare their first Report to Parliament and embarked on their first tour of the communities. Once completed, the Commission convened the first of the Special Hearings into the implementation of the Act. The information gleaned from the community tour and Special Hearings formed the basis of the first Report, submitted to the Minister of DIAND in early 1987. The report was completed in only a few months to meet the deadline set out in the Act.

Between the first and second Reports to Parliament, the Commission acted on representations submitted for investigation, toured the communities and convened two Special Implementation Hearings in preparation for the second Report, ultimately tabled in June 1989.

The Current Mandate of the Commission

The mandate of the Commission is expressed in its two principal duties as outlined in the Act [see Appendix C]:

1. To prepare a report every two years on the implementation of the Act. This report is to be delivered to the Minister of DIAND who will table the report in Parliament. [Sections 165(1)a and 171(1)];
2. To receive and investigate representations of interested persons regarding the implementation of the Act and to prepare reports and recommendations on the matters investigated. This function would include representations that relate to either the exercise or non-exercise of powers or duties created, specified or allocated to the parties under the Act. [Sections 165(1)b,(2),(3) and (4)]

Operationally, the business of the Commission is governed by its Rules of Procedure in conjunction with the provisions stipulated by the Act. The three Commissioners are charged with the responsibility of ensuring compliance with the provisions governing the Commission's duties and powers. Administratively, the Director General is responsible for the daily operation of the Commission's business.

To fulfil their duties, the Commissioners have met an average of 10 times per year, in Ottawa or during their community hearings, in order to discuss various aspects of Commission business. Meetings are more frequent in a biennial report year and less frequent in the non-report year, much less so when there are few or no representations to consider. For instance, only three meetings were held in 1990.

The quorum requirement has always been met and decisions are made on a consensus basis. In addition, the attendance of individual Commissioners, primarily that of the Chairman, has been required on numerous other occasions to satisfy various requirements.

The staff hired to support the activities of the Commission consists of five full-time employees. Although not considered part of the Public Service of Canada, all staffing positions, including remunerations, have been subject to Treasury Board approval, as specified in the Contribution Agreements with DIAND that govern the funding of the Commission. As employees, both the Director General and Director of Research have been appointed under full-time contracts.

Although somewhat difficult to categorize, the primary support functions performed by the staff are those of communications and report preparation. More specifically, the staff maintain an effective administrative liaison between the Commissioners and the parties to the Act. Aside from this and meetings with the federal government, limited primarily to financial administration matters, Commission staff have prepared newsletters, pamphlets and radio announcements, attended conferences, made community visits, investigated representations, prepared briefs and reports on representations and drafted the biennial reports.

Powers of the Commission

The powers that the Act confers on the Commission enable it to perform its duties, but only in relation to the investigation of representations brought before it. There are no specific powers identified for the biennial report function.

The Commission essentially has the following powers:

- to investigate any representation submitted to it relating to the implementation of the Act, including the exercise or non-exercise, by any party, of a power under the Act and the performance or non-performance of a duty under the Act;

- to refuse to investigate or discontinue an investigation for specified reasons;

- to request any document and the appearance of any person to give evidence; and

- to prepare a report on conclusions, findings and recommendations; report is sent to the Minister, to the complainant and to anyone against whom a negative finding is made.

Activities of the Commission

a) Biennial Reports

The Cree-Naskapi Commission has produced two biennial reports at the time of writing. The 1986 Report was submitted to the Minister of DIAND in March 1987 and the 1988 Report in June 1989. Both reports were prepared in English and translated into Cree, Naskapi and French.

Of the fourteen investigations conducted by the Commission, all were submitted by Cree or Naskapi parties, with the majority of complaints (eight) involving individual members vs. their local government. Of the remaining six representations, three involved Indian government complaints (two against the federal government and one against the Quebec government), and three may be classified as references and, as such, did not include a named respondent. To date, the federal government has not filed a representation with the Commission.

The subject matter of the representations accepted ranges across a number of areas, though there seems to be a recurrent theme of issues relating to education, housing and local elections. Other issues referred to in representations primarily concern the areas of finance (taxation and capital funding), health services and the administration of justice.

With few exceptions, investigations conducted by the Commission have involved issues of a local, community nature. As such, these investigations have been confined to one or two well-defined issues within the context of local government administration and, as a general rule, have been free of complex scientific or technical requirements.

The average time taken to complete an investigation ranged anywhere from two months to two years. Of the six investigations which have not been completed, one has been with the Commission since 1986 and the others for two years, on average.

Most of the representations accepted by the Commission for investigation occurred during the mid-point of the Commission's existence, from late 1987 to early 1988. During that period a total of eight representations, or roughly 60 percent of the total number, were accepted for investigation.

Of those accepted for investigation, the Commission has formally utilized its discretionary powers under the Act on four separate occasions to dispose of the representations. One representation was refused due to a lack of jurisdiction and three others were discontinued, of which two under authority of provisions in the Act and the other pursuant to the Commission's Rules of Procedure.

In each of the four instances where the Commission formally exercised its discretionary power to conclude a representation, a report of the investigation was issued by the Commission. The average time taken to prepare and issue the report, from the time of last contact between the Commission and the parties, was approximately two months. The general form and style of the reports are similar to legal decisions. The content of each report consists primarily of a chronology of events, a distillation of the issues and a finding of fact upon which to base the recommendations.

c) Other Activities

The Commissioners and staff have become involved in a number of other activities, largely in the context of their stated duties. These have ranged from speaking engagements, the publication of information brochures and writing radio spots, to the maintenance of a reference library/archive and an active mediation role on Agreement implementation issues between the Crees and the federal government.

Mediation

The role of mediator has been exercised, if not by the Commission, at least in the context of the Commission. This is not a role that has been conferred on the Commission by the Act.

Judge Paul was asked by the Minister and Grand Chief Matthew Coon-Come, pursuant to an understanding entitled "Parameters, Principles, Objectives and Framework for Negotiations on the James Bay and Northern Quebec Agreement Between Canada and the Grand Council of the Crees of Quebec" dated March 2, 1988, to serve as interim mediator on outstanding issues related to the JBNQA.

More precisely, he was to assist in the resolution of several outstanding issues (past-capital funding, operations and maintenance funding and the situation of the Ouje-Bougoumou Crees) which, for the Crees, were preconditions to entering into formal implementation talks. This understanding authorized the mediator: to oversee and, where appropriate, to lead negotiations between the federal government and the GCCQ, respecting implementation by Canada of the legal obligations it has assumed under the JBNQA and related legislation (including The Cree-Naskapi (of Quebec) Act) and legal documents of arrangements.

This position was to end by March 31, 1988, but was extended. In early December 1988, the Judge withdrew his services as a protest of federal inaction but was subsequently convinced by the GCCQ and by DIAND to continue as mediator, a task he continues to perform at the time of writing.

Communications

Speaking engagements:

On a half-dozen occasions either of Commissioners Paul or Saunders has addressed a professional conference. In most cases, each was invited in his other professional capacity but used the occasion to discuss aspects of The Cree-Naskapi (of Quebec) Act.

Attendance at conferences:

The Commission has been represented at 33 conferences or meetings on Aboriginal issues; all meetings were within Canada, mostly in Quebec or Ontario.

Brochures and newsletter:

The Commission produced two informational brochures about the Act and the Commission and about the procedures for pursuing a representation. There were insufficient funds available, however, to translate the brochures from English. A periodic newsletter for distribution to the parties was produced twice, but abandoned.

Library/resource centre:

Documents are collected from conferences attended or from other Indian and governmental sources. Judge Paul also contributes copies of all judicial decisions relating to Aboriginal issues. These resources are available to the use of the parties, or are used to answer requests for information and to keep the Commissioners informed and up to date on Aboriginal issues.

Other activities:

The Commission offices and services are also used for a number of activities, presumably relevant to native interests and activities, but which are either unrelated, or at least peripheral, to the duties of the Commission. These include the provision of office space and telephone services to persons not engaged by the Commission.

How is the Commission Funded?

1. History of the Funding Allocation

   The funding of the Cree-Naskapi Commission flows under an appropriation made by Parliament in 1980, pursuant to a 1980 Cabinet decision taken in anticipation of the "Cree Special Commission" foreseen in negotiations for The Cree-Naskapi (of Quebec) Act.

   The amount of the appropriation was based on an estimate made by the Department of annual expenses the future commission might incur. A sum of $271,000 was identified for 1980/81 and escalated by an inflation factor to $372,000 for 1984/85, making a total approved five-year allocation of $1,597,450.

   In the months before the Act was finally passed in 1984, the Government directed that the original allocation be reprofiled, upwardly adjusted for inflation and delivered by Contribution Agreement, with terms and conditions to be negotiated.

   Acting on this direction, DIAND made a submission to Treasury Board in early 1986, in anticipation of the setting up of the Commission. It is important to note that the original 1980 estimate was used as the basis for the 1986 submission. The amount approved by Treasury Board in February 1986 was for $1,970,600 over a five-year period (including two months in FY 1985/86 and ten months in FY 1990/91).

   This amount was divided into $394,700 per year with no annual inflation or cost-of-living adjustments and no ability to carry over funds from one year to the next.

   The funds for the Cree-Naskapi Commission are included in a departmental appropriation for the Comprehensive Claims Planning Element, under an item called "Comprehensive Claims Settlements and Related Self-Government Payments".

2. The Funding Mechanism

   The Cree-Naskapi (of Quebec) Act gives no direction on the funding mechanism for the Commission. An agreement for the negotiation of such funding was included in the August 1984 Statement of Understanding signed by the Minister and representatives of the Crees and the Naskapis. However, the subsequent Minister took the position that the Government would not recognize the Statement of Understanding because it had not been approved by Treasury Board.

   The Commission is in fact funded by annual Contribution Agreements, as per the government directive of 1984. However, the terms of the Contribution Agreements have not been negotiated with the Commission, as required.

   The only related funding direction contained in the Act is found in Section 162⁽⁴⁾ and states:

   The remuneration of the members of the Commission and of persons employed or engaged under subsection (1) shall be paid out of money appropriated by Parliament for that purpose.

   The Contribution Agreements nevertheless apply strict terms and conditions to the financial transfers to the Commission (our summary):

   The current funding authority expired on January 31, 1991 and all allocations have been paid to the Commission. Treasury Board and DIAND have decided to await the report of the Inquiry before making a further Treasury Board submission to fund the Commission. For the interim, DIAND asked the Commission to assess its needs up to the end of March 1991, during which time the hearings and other preparations for the next biennial report would be taking place.

   The Commission has estimated its additional needs at $147,000. The Department successfully sought this amount from Treasury Board and has made, at the time of writing, the first of two equal payments to the Commission. The funding authority was extended to March 1992.

3. Commission Expenditures

   The Commission's annual budget of $394,700 covers all expenses relating to the office, salaries and per diems, and all costs associated with the biennial reports (including community hearings, translation into three languages and printing) and the investigation complaints. At the end of FY1990, the Commission had an unfunded deficit of $37,757.

2.4 How the Parties Work with the Commission

1. The Federal Government

   Since the Act came into force, there has been progressively less involvement by the Minister of Indian Affairs, and his Department, in Cree and Naskapi Affairs. Although entitled by the Act to do so, the federal government has never initiated a representation before the Commission.

   When the JBNQA and NEQA failed to provide an implementation process, general responsibility for the Act fell by default to the Department of Indian Affairs, where it has been vested in those sections successively responsible for the implementation of the Agreements.

   Most day-to-day relations with the Commission are currently handled by relatively junior officials of the Self-Government Branch of the Department and relate almost entirely to budget management issues, as discussed later.

2. The Crees

   The Commission maintains relations with all Cree communities, but this has diminished dramatically in recent years except where representations have been filed and when hearings are held for the preparation of biennial reports.

   In some communities relations with the Commission are maintained by the Chief, while in others this duty falls to the Deputy Chief or the Band. Relations tend to be informal and practical. The main Commission contact also varies, depending on the history of interactions; contacts are maintained variously with the Director General, Director of Research, the Office Manager and Commissioner Kanatewat.

   Depending on the reason, contacts with the GCCQ can be with its Ottawa office, with its headquarters in Nemaska, or with its other regional offices.

3. The Naskapis

   Relations are informal and relatively frequent between the Naskapis and the Commission. The previous Chief, speaking only Naskapi, dealt with Commissioner Kanatewat, or communicated through an official. Day-to-day relations have been maintained with the Commission staff largely by the Director-General of the Naskapi Band.

2.5 Dispute Resolution Mechanisms (DRM)

During the negotiations that culminated with the signing of the Act, there was a good deal of discussion surrounding the issue of creating a DRM. There were questions of what the fundamental characteristics of power, duties and operations of the DRM should entail if the concept of a DRM were found to be acceptable to the parties. Due to a number of circumstances inherent to the negotiation process, however, this particular discussion was terminated. As such, the Commission was created with extremely limited DRM functions.

Current Models

By selecting a representative sample of DRMs, with particular emphasis on Aboriginal-specific models, it is possible to obtain a broad overview of the key characteristics that comprise contemporary DRMs. An analysis of current DRM models can facilitate the identification and consideration of future options relating to the Commission as a DRM.

The following national and international DRMs were selected for analysis by the Inquiry:

Aboriginal-Specific

- Naskapi

- Inuit (Northern Quebec)

- Other comprehensive claims

- settlements/proposals:

- Inuvialuit

- CYI

- Dene/Metis

- Inuit (NWT)

- Nunavut

- Indian Commission of Ontario

- Northern Flood Agreement

General

- Free Trade (Canada/USA)

- Great Lakes Joint Advisory Committee (Canada/USA)

International

- Waitangi Tribunal (New Zealand)

- Claims Commission (USA)

For further information, please refer to the more detailed description and analysis beginning on page 131, to the Inquiry's companion Research Report or to a summary of the Research Report included as Appendix E.

The issues examined and views of the parties

3.1 Introduction

Before turning to the analysis of the issues and recommendations in Chapters 4 and 5, this chapter both describes the questions the Inquiry examined in its research and in its various hearings and meetings with the parties, and reviews what the many people the Inquiry spoke with had to say.

As noted earlier, a framework of issue areas was sent to the parties in preparation for their formal meetings with the Inquiry. Those "Lines of Inquiry" essentially asked the parties to comment on the development of the idea and mandate of the Commission, on its performance in all aspects of its work, and on what changes they would propose for the Commission.

The Inquiry also sent detailed "Lines of Inquiry" to the Commission itself to serve as a guide for the various meetings held with the Commission, and for the preparation of their written submissions to the Inquiry.

3.2 Original Objectives of the Parties

The Inquiry wished first to examine:

- what positions were taken by the parties during their discussions on the future Commission that took place prior to the signing of The Cree-Naskapi (of Quebec) Act, and

- what level of common agreement was reached regarding

- the role the Commission was to play and

- the tools it was to have to fulfil that role.

These original expectations become important to understanding how each party currently interprets the duties, powers and performance of the Commission as stated in Part XII of the Act.

The Inquiry heard differing, even conflicting, views on where the idea for a Commission originated. Some suggested that the idea originated with the Crees and the Naskapis. Others were confident that the Department of Indian Affairs and Northern Development first proposed the idea of a quasi-judicial commission.

Whatever the case, serious discussions about the Commission and its role did not take place until very late in the negotiations of the Act. By the time negotiations focused fully on the Commission, little time remained.

Original Positions on the Mandate

In reviewing the positions taken in the original discussions, it is clear that the federal position went through some changes as the idea for the Commission evolved.

The federal government took the position, from the outset, that the Commission would be similar to a municipal board that would:

- have a supervisory role confined to local government matters;

- act as a quasi-judicial court of first instance; and

- be charged with preparing a periodic report to Parliament on the operation of local government in the Cree and Naskapi communities.

The federal government then changed its thinking on the quasi-judicial role and proposed the Commission have investigative tribunal powers similar to that of an ombudsman reviewing local government issues.

At the time of the final negotiations, the federal position supported a part-time body that would:

- investigate complaints on the implementation of the Act and regulations and submit a report and recommendations to the parties to the complaint;

- refer complaints not related to implementation of the Act to the appropriate authorities; and

- review how the Act was working in the communities and report to the Minister on all aspects of its implementation.

The Commission would have no power of subpoena. The Government at one time considered giving the Commission full powers of inquiry, including subpoena powers, but that was later dropped.

The final federal proposal was considered acceptable because the Government has agreed to set up an Implementation Secretariat that would minimize the requirement for the Commission to be active on JBNQA and NEQA, as well as Act, implementation problems.

The Crees originally wanted a tripartite advisory and supervisory committee, involving Quebec.

Negotiators eventually argued for a bipartite body:

- by which the federal government would be held accountable for the implementation of the Act, including financial matters;

- that would inquire equally into federal and Cree activities as they affected each jurisdiction;

- that would resolve disputes and implementation problems of any sort; and

- that would cover both the Agreements and the Act, have broad investigative powers and be able to make binding recommendations.

The Naskapi original position on the mandate for the Commission was that it:

- supervise the Department on the implementation of the Act; and

- arbitrate disagreements over appropriate funding for self-government purposes.

The Naskapis took their inspiration in part from recommendation #51 of the Penner Report that called for an independent monitor on official actions affecting Aboriginal peoples.

In order to conclude negotiations on The Cree-Naskapi (of Quebec) Act with some urgency in late 1983 and early 1984, the Crees and the Naskapis dropped their insistence on subpoena and "binding decision" powers for the Commission and for the extension of its authority over the Agreements.

Both the Crees and the Naskapis accepted the final arrangements for the Commission on the two fold understanding:

- that there would be a ongoing special body within the Government, preferably outside the Department, that would deal with the implementation of the Agreements and of the Act; and

- that the role and performance of the Commission would be reviewed after a period of five years.

What was Understood by "Implementation"?

The Inquiry was also interested to know whether, upon reaching agreement on the mandate and powers of the Commission, the parties had established a common understanding of the terms used to describe the mandate. In other words, did the parties really agree on the same things?

While there seems to be little misunderstanding on the term "representations" (or"investigations"), conflicting interpretations are given to the word "implementation".

The federal government:

- wanted an independent evaluation of the "implementation" of the Act to report on how the new system of government was working in the communities in order to help identify what changes might be needed to the Act to facilitate effective government in the communities; and

- acceded to the use of the term "implementation" as a way to allow the other parties the chance to argue that a particular issue related to the Agreement was also related to the Act, and thus within the ambit of the Commission.

The Crees and Naskapis understood "implementation" to mean that:

- the Commission was to act as a watch-dog on how well the federal government met its obligations under the Act;

- the Commission was to listen periodically to Naskapi and Cree assessments of the federal government's actions and recommend to the Minister how to improve implementation of the Act; and

- any role the Commission would have in community affairs was to be triggered by "representations" brought to it by individuals or by communities.

The parties reported to the Inquiry that no discussions have been held to clarify these issues subsequent to the passage of the Act.

3.3 The Commissioner's Performance

1. Fulfilling Its Mandate
   As noted in the previous chapter, a short paragraph in Section 165 of the Act gives the Cree-Naskapi Commission its two-fold mandate to prepare biennial reports and investigate representations relating to implementation of the Act.
   After reviewing the original understandings of the parties, the Inquiry also wanted to see if the current interpretations of the mandate had achieved any more commonality over the approximately four years of the Commission's actual operation:

   - Are the Commission's duties too broad or too narrow, or even relevant?

   - Are they reasonable or necessary for Cree and Naskapi government?

   - What problems have been encountered and what changes would they suggest?

   The Commission was also asked to comment on its own experience. They had the following concerns:

   - The communities do not accept why the Commission "cannot make things happen".

   - The problems raised often lie outside a strict interpretation of the mandate, even though they may relate to self-government.

   - It is difficult to fulfil their duties effectively unless it is understood by all that the mandate extends beyond the Act to include the JBNQA and the NEQA.

   - If the Commission is supposed to be a dispute resolution mechanism that is an alternative to adversarial litigation, as the Commission feels it should be, then the powers provided may not be adequate to that function.

   The Crees also spoke about the general mandate of the Commission. It was felt almost unanimously that the Commission's mandate should also extend formally over the Agreements, but other points were also raised:

   GCCQ:

   - The Commission's mandate should include specific reference to the power it arguably already has to investigate financial matters relating to the powers and duties under the Act.

   - The Commission's power also extends over JBNQA matters. The Commission should report annually to Parliament on implementation and these reports should be sent to the House and Senate Committees on Aboriginal Affairs for review.

   Wemindji:

   - The Commission should oversee both federal implementation obligations and local government issues; by this they mean a body that would review complaints and proposals and judge their validity.

   - The Commission should not deal with private matters.

   - The mandate should centre on Act issues and on Cree-federal relations to assist the communities when they encounter conflict with the laws and actions of the federal and provincial governments.

   Chisasibi:

   - Implementation problems with the Act usually also relate to the Agreement.

   - The Commission needs to bolster its role to investigate and suggest options when a conflict of laws arises.

   - The Commission should also be more active at the local level.

   Mistissini:

   - The daily life of the Crees and their government system are very closely linked to the Agreement, and thus to both the Quebec and federal governments.

   Waswanipi:

   - A more liberal interpretation should be given to the Commission's mandate to allow it to function both as an "interdepartmental affairs body", with broad decision-making powers, and as a "community relations board" with authority decentralized to the local level.

   Nemaska:

   - The Commission should also become a full, impartial dispute resolution mechanism, perhaps with the involvement of the Government of Quebec, with binding decision-making authority.

   Waskaganish:

   - The Commission was meant to be a high-profile body to ensure effective implementation of the Act, but the Government excludes dealing with any aspect of financing, with relations with the federal government, or with issues relating to the Agreements that are essential to the support of the Act.

   - Quebec should have a role in the Commission; sooner or later it will have to participate or a parallel body will have to be established.

   - The Commission should act as an alternative dispute resolution mechanism, but not for disputes between Cree First Nations or Cree entities; it should not handle "local, internal" matters such as land issues or hunting, fishing and trapping disputes, nor issues concerning Cree funds or compensation monies.

   - The mandate should also cover federal obligations to the Crees and Naskapis other than those resulting from the Act or the Agreements.

   "... when there is a third party, other than Cree, who interferes with the activity of implementation of The Cree-Naskapi Act, or interferes with the powers or jurisdiction of local governments, then the Commission should be called in to investigate and make a report on the particular problem." (Waskaganish Chief)

   The Naskapi Band also believe the mandate of the Commission should be extended to cover the Northeastern Quebec Agreement, even though there is a dispute resolution mechanism in their new Implementation Agreement with the federal government to deal with NEQA issues. The Naskapis would prefer that an expanded Commission perform the dispute resolution role now assigned to the new mechanism.

   The Naskapis also felt that the wording of Section 165(1)(b) of the Act, though it does not refer specifically to the financing of Bands for local government purposes, is sufficiently broad to allow the Commission to investigate a financing issue brought before it.

   The federal government recognizes the need for the parties to come to a clear and common understanding of the Commission's functions. It is suggested that, at the least, the Commission should continue:

   - to act as an ombudsman between the Cree and Naskapi governments and their members by providing individuals with a forum for resolving disputes without having to go the court;

   - to prepare periodic reports to Parliament on the implementation of the Act; and

   - to act, if agreed by parties involved, as a neutral and independent body to facilitate dialogue and resolve any disputes among the Cree, Naskapi and the federal government on Act implementation matters, as long as there is no conflict with the other functions.

   Department officials submitted that the government is prepared to discuss, among other options, a role for the Commission as a dispute resolution mechanism over JBNQA and NEQA implementation matters as well. This position is discussed later in more detail.

   The Assembly of First Nations (AFN) suggested:

   - the Commission's mandate needs strengthening to make it a neutral third party able to monitor and make binding directives and decisions regarding implementation of the Act;

   - the intrinsic link between the Act and the Agreements necessitates the extension of the mandate into the Agreements to allow the Commission to perform its duties adequately;

   - otherwise, the day-to-day matters affecting self-government, like education, health and policing, become divorced from the implementation of self-government for the purposes of the Commission; and

   - the Commission should be able to investigate representations in the areas mentioned above.

2. Powers of the Commission

   The mandate is implemented by means of the powers the Act gives the Commission to investigate complaints and prepare its biennial reports to Parliament on implementation. The powers at the Commission's disposal are noted in Chapter 2.

   The Inquiry wanted to know:

   - Have the powers proved adequate to the exercise of these duties and what problems have arisen?

   - What additional powers might be required, especially for the resolution of disputes?

   The parties had very little to say about the powers of the Commission with regard to the investigation of representations, beyond two simple statements heard in virtually all communities and from the GCCQ, namely:

   - that the Commission should have the power to subpoena witnesses and documents; and

   - that the decisions of the Commission should be binding, in certain cases.

3. Structure and Operations of the Commission

   In its hearings and interviews, the Inquiry asked all the parties:

   - Have they experienced any difficulties with the provisions in the Act regarding the structure and operations of the Commission? Do they find them adequate and appropriate?

   - Have they encountered any problems with the location of the office, the procedures the Commission follows or with their working relationship with the Commission? Would they suggest any changes?

   The questions put to the Commission itself were more detailed, given their daily experience with the procedures they must follow. The parties to the Act have little direct experience or knowledge regarding most of the operations and procedures of the Commission. The following reflects the points that were raised with the Inquiry.

   Composition of the Commission

   The Cree-Naskapi (of Quebec) Act provides for a maximum of three members to be appointed by the Government on the recommendation of the Cree Regional Authority and the Naskapi Band. The Act sets a two-year term of office, with eligibility for reappointment to additional terms.

   The research suggests that a full complement of three Commissioners was agreed upon to provide balance and to reinforce the visible independence of the Commission.

   The communities generally found:

   - the existing number and mix of Commissioners satisfactory for the current duties of the Commission;

   - that with an expanded mandate the membership might also need to be expanded; that to lend more credibility to their findings, the Commission should perhaps be comprised of people with legal background, at least one Cree and someone who understands the federal system.

   The Commissioners felt that:

   - having three part-time members was needed for an adequate debate of the issues and was sufficient to the current tasks; and

   - that at least one member should always be Indian, with Cree or Naskapi language competence assured.

   Appointing the Commissioners

   The parties and the Commission indicated that the required appointment procedures has been adhered to; however, the Cree Regional Authority and the Naskapis did not submit their agreed list of appointees until almost a year after Part XII of the Act came into effect. The Department reported that they then selected the first names on the list suggested by the Native parties, where possible.

   The original three Commissioners were appointed effective February 1, 1986 and were reappointed twice, in 1988 and 1990, for additional two-year terms. The Inquiry heard no real dissatisfaction with the appointment and reappointment procedures, or with the prescribed term of office.

   The Commissioners found the nominating procedures acceptable and a sufficient guarantee of Indian membership and language capabilities; any further precision in the Act, they said, would be too limiting.

   They did stress that reappointments, made in consultation with the parties, must be more timely than on both occasions to date; past delays caused unnecessary financing problems and personal uncertainties for the Commission members and staff.

   In early 1988, the Department proposed to the other parties that the terms of the three Commissioners expire at different times to ensure continuity. This suggestion did not advance any further as it would have required a lengthy process of amending the Act. However, current Department officials do see real advantage to staggering the terms of the three Commissioners, as does the GCCQ.

   Other Provisions in the Act

   Chairmanship: Currently, the chairmanship of the Commission is designated by the Governor-in-Council. The Commissioners suggested the chairmanship might be better decided by election among the appointed members, and that it be rotated among the members. The GCCQ suggested the CRA and the Naskapis should have input into the designation of the Chairman.

   Eligibility Criteria: The Commission members raised the matter that the current restriction that prohibits "a council member, officer, employee or agent of a Band" from serving on the Commission should apply equally to employees or agents of the Government.

   Term of Office: The Mistissini Council suggested that the term of office should be five years; the Naskapi Council preferred four years. The shared concern was that a longer period of time was necessary for Commissioners to acquire the needed knowledge of Cree and Naskapi issues and political cultures, and to establish a mutual familiarity with the people.

   Remuneration: The remuneration of Commissioners is fixed by the Governor-in-Council. This per diem rate is currently paid only to one member, and only for those days when he attends to Commission business. The other two members are ineligible for the per diem because of their particular professional situations.

   The Commission strongly supports the need to raise the current per diem to a level on par with other commissions and inquiries. The other parties made no comment on this item.

   Commission Location: The Act names Val d'Or as the site of the head office of the Commission, unless otherwise designated by the Governor-in-Council on recommendation of the Crees and Naskapis. The office location was changed in this manner to Ottawa in early 1986 before any office was set up in Val d'Or. The Crees and Naskapis still support the Ottawa location as does the Commission itself, although the Commissioners recognized the difficulties this presents for community access, especially for individuals. The GCCQ and some communities suggested that, in addition, the Commission maintain a permanent presence in the communities.

   Current Department officials had no problems with the location but did express concern that, being so far from the communities, the Commission would not readily be used by individual Crees or Naskapis for representations they might want to bring forward for consideration.

   Quorum and Majority Vote:

   The Commission reported that it conducted all its business with a full quorum, except where an investigative function was delegated under section 164 of the Act. The nature of the representations received, they said, has not required the attendance of all three Commissioners in the investigations.

   In almost every instance, the Commissioners have worked to achieve unanimity on decisions where only a majority vote is required by the Act. No comments were made by the parties on this matter.

   Others:

   There are other provisions in the Act governing tenure, vacancy, and temporary substitution of Commissioners which either have not been used or have been applied without controversy.

   The Commission's Rules of Procedure

   The Commission's Rules of Procedure, adopted under section 163(3) of the Act, govern the filing, consideration, acceptance, refusal, investigation and reporting of representations. No changes have been made to the Rules.

   The Commissioners reported that they have had no real difficulties or complaints regarding the Rules. They have nevertheless found the formal rules to be largely inappropriate to the problems encountered.

   The Commission pointed out to the Inquiry that, under the rules governing representations, the hearing is actually the investigation and there is no provision for preliminary information gathering. They suggested that this creates an adversarial situation not necessarily best suited to the resolution of problems. The Commissioners thus decided that they would insert a preliminary stage to bring parties together to talk, collect information and try to solve the problem without a hearing.

   The only Cree views expressed during the Inquiry's hearings were the suggestions, first, that the Rules of Procedure are perhaps too legal, formal and not well understood by the people, and secondly, that all three Commissioners should investigate representations and write the resulting report, rather than delegate the authority to one Commissioner.

   From the Naskapi point of view, however, this power of delegation has proved useful and they see no need to change any of the Rules under the existing mandate of the Commission.

   The Commission Staff

   In reviewing the hiring, salary and management history of the Commission staff, the Inquiry wanted to ensure that normal, fair and acceptable staffing and management practices had been followed by the Commission.

   Interviews with the Commissioners, with the staff and with the parties uncovered no difficulties in these areas.

   The Inquiry also wanted to ensure that the Commission had been able to exercise freely the authority given it by Section 162 of the Act. Rather than having the authority to deal freely with the hiring and remuneration of staff and contract services, the Commission reported how it is tightly bound by a set of provisions in the annual Contribution Agreements that govern the funding of the Commission by the Department; for example:

   4. Financial Limitations

   The renumeration paid for professional services and to its employees through contract shall be in accordance with government guidelines. The maximum amount under contract for professional services shall be three hundred and fifty dollars ($350) per day for individuals and five hundred dollars ($500) per day for firms. The maximum amount under contract for employment shall not exceed the rate of the AS-6 level. The payment of travel expenses shall be in accordance with the Treasury Board Travel Directive. (1990-91 Contribution Agreement, 24.01.90)

4. Activities of the Commission

   Representations

   The Waskaganish Chief suggested that the Commission needs to have the power to initiate the investigation of a specific issue related to its mandate, a power it does not currently possess.

   The Commissioners had a number of general points to raise:

   - Current restrictions on the scope of the mandate and constraints on the Commission's resources mean that investigations cannot be handled properly.

   - Most of the representations, or complaints, received to date fall outside the mandate of the Commission, or simply require explanation or clarification of the substance of the Act.

   - Cree and Naskapi individuals do not generally make distinctions on a legislative or jurisdictional basis. The Commission is understood by most individuals in the communities to be a tribunal that will respond to all their complaints, except those of a private nature like divorce, or custody, or estates.

   - When the Commission constantly has to refuse representations because they fall outside the mandate, individuals cease to approach the Commission.

   - The Crees and Naskapis are so preoccupied with the tasks of implementing self-government and rebuilding their communities that complaints on specific sections of the Act are not priority concerns.

   - Indian societies generally like to resolve local disputes internally and according to their own traditions and values.

   The Commissioners conclude:

   - There is no need to change the investigatory powers as set out in the Act, but they need general clarification.

   - More resources are required for effective investigation of complaints. The Commission should have the authority to review all complaints, advise parties on the best route to take, and monitor progress; simply turning people away just discourages further use.

   - To perform its investigative function adequately, the Commission needs full access to documents and to people; they could then perform a thorough verification of the facts

   - The Commission should also have the power to initiate investigations.

   On specific provisions governing investigative procedures, the Commission shared their views on the few problems encountered to date:

   - Notice: Commissioners would like to see some discretion allowed them in the Act regarding notice provisions; the current inability to guarantee anonymity may discourage use.

   - Evidence: Because of the nature of representations received, there has been little problem in gathering required evidence; however, the absence of a subpoena power leaves the process dependent on the cooperation of all parties.

   - Resources: The principal impediment to an effective investigative role is the lack of financial and human resources. The Commission told the Inquiry that the inability to travel to the communities on a regular basis both to raise understanding of the Act and of the Commission and to hold hearings, contributes directly to the failure of the investigative role of the Commission.

   The Crees added their perspectives on the investigative procedures. These positions were repeated in most of the communities:

   - The Crees have had little direct experience with these procedures.

   - Some communities and many individuals are still unfamiliar with their rights under the Act; thus many are reluctant to take any complaints to the Commission.

   - The communities are too busy meeting their basic responsibilities and functions to consider what the Commission might be able to do to assist them.

   - The Commission needs to travel to the communities to receive representations. It is far too costly, and too daunting an experience to have to travel to or otherwise deal with an office in Ottawa to pursue a complaint.

   - Without the power to ensure the resolution of disputes, the investigative role of the Commission is irrelevant.

   - The Commission must act more expeditiously on the complaints it does receive.

   The Naskapis have used the Commission for three formal representations made by individuals and they have been satisfied with the investigations that followed. The current powers of the Commission have allowed it to discharge its mandate in these cases, though the Naskapis cautioned that, with no subpoena power, resolution has been fully dependent on the cooperation of the parties involved.

   The Department told us it was generally unaware of the activity of the Commission regarding representations and thus could not assess the adequacy of the Commission's powers in that regard.

   Biennial Reports

   "The Cree Nations of Quebec regard these reports as important elements to our continuing existence as self-governments. " (Mistissini Chief)

   The Inquiry carefully reviewed the two biennial reports thus far produced by the Commission and sought the reactions of the Crees, the Naskapis and the Department on the following:

   - Had they been adequately consulted in the preparation of the reports?

   - Did the Commission report on what it was given the mandate to report on?

   - Was there adequate action and follow-up on the recommendations? Is this a useful role for the Commission to perform?

   - Would they recommend any changes?

   The reporting authority was also discussed in some detail with the Commission and they and the Department were asked to report on what follow-up to the reports they had undertaken or monitored.

   Generally speaking, the Crees and the Naskapis consider them to be important instruments, but they see little resulting from the recommendations. As one Band official said: "What is the use of making a report if your recommendations are not going to be implemented?"

   The Crees and the Naskapis made the following main points:

   - The consultations the Commission held prior to drafting its reports were generally satisfactory.

   - The Commission should have sufficient resources to hold hearings in each community, rather than in central locations in the north or in Ottawa.

   - The reports were well done (especially the first one) and the Commission did what it was required to do.

   - A way is needed to ensure action is taken on the recommendations.

   - A follow-up process to the reports is required so the communities can assess progress made on recommendations.

   - A subpoena power, or other assurance of full access to documents and people, is needed for the Commission to acquit itself adequately in its report function.

   The former Naskapi Chief said with an air of resignation that, at the very least, the biennial reports do demonstrate both the types of problems the Naskapis and the Crees are facing and the fact that the federal government does nothing about them.

   The Waskaganish Chief's comments are especially noteworthy:

   - The reports cover many issues not strictly within the Commission's mandate, but this is a reflection of the near impossibility of isolating Act implementation issues from the real experience of self-government development in the communities.

   - The biennial reports should be published and sent to the Commons Standing Committee on Aboriginal Affairs for study.

   - The Commission, if given the resources, might best report annually on the implementation of the Act and submit those reports to the Privy Council, rather than to the Minister.

   The Grand Council of the Crees made similar points:

   - The reports should be automatically tabled with the Committees of each House of Parliament that deals with Aboriginal Affairs. The Minister should have to report to the Committees.

   - The reports should be annual and submitted either directly to the Committees or through the Prime Minister's Office.

   The Department acknowledged that the first report had been largely dismissed by the federal government for dealing with what were judged to be matters essentially outside the Commission's mandate and for not evaluating how well the new governing arrangements were working in the communities. The second report was also seen as dealing with many issues outside the mandate, but was less problematic for the Department.

   The Department advanced the notion that a requirement to report every two years is perhaps excessive. They suggested the Commission continue to report to Parliament through the Minister, but do so only every fourth year, with the added power to prepare special Act implementation reports when the Commission judges a matter to be of sufficient urgency.

   On the question of follow-up, the Department admitted that direct government responses had been limited, but that the recommendations have been considered in formulating departmental strategies for dealing with issues related to the Crees and the Naskapis.

   Finally, the Government also proposes that a formal review procedure should be set up involving the parties and the Commission to allow better understanding of the issues and assist in coordinating follow-up.

   Many of these same issues arose in our discussions with the Commission.

   The Commissioners see the biennial report as a considerable power, but admit it makes little sense to the Crees and the Naskapis if it does not solve problems. The Commissioners made a number of observations:

   - The Commission's role is complete as soon as the report is delivered to the Minister. It cannot campaign for its recommendations or otherwise ensure action is taken.

   - To guarantee there is at least some discussion of the contents of the biennial reports, an automatic referral should be made to the House of Commons Standing Committee on Aboriginal Affairs.

   - The severe lack of financial resources places a major restraint on the power of the Commission in its reporting role on implementation.

   - The Commission should have sufficient resources to conduct its own independent research and investigation of issues raised in the hearings held prior to the drafting of the reports; the text now depends almost entirely on what is raised in the hearings seriously compromising the ability of the Commissioners to make neutral, objective judgements. As the Commission Chairman said: "As it stands, all we have to go on is what one party says and what another party says, and a little bit of information that is readily at hand. It certainly can be argued that is not enough"

   In the Commission's experience, the Act and the Agreements are usually so intermixed and inseparable that the Commission has to go back to the Agreements to report responsibly on the issues facing the Crees and the Naskapis on the implementation of the Act.

   The Mediation Role

   As noted in Chapter 2, Judge Paul was authorized in March 1988 by the Government and the GCCQ to act as mediator to resolve several outstanding issues relating to the implementation of the JBNQA and the Act in the Cree communities.

   The Inquiry tried to establish whether the Judge was asked to serve in his capacity as Commission Chairman or in his own right, but the opinions of the parties cover both possibilities. When the question was put to them, neither Judge Paul himself nor DIAND officials could be sure one way or the other, though the Department was inclined to view the Judge's role as a personal one. The GCCQ, however, assured the Inquiry that in their view Judge Paul was mediating in his position as Chairman of the Commission.

   In any case, there has never been a formal delegation of authority to the Chairman by the other two Commissioners on mediation matters, as one would expect if the Commission were acting as the mediating agent. Nonetheless, the Chairman keeps the other members briefed on mediation activities and seeks their advice on occasion.

   Judge Paul told the Inquiry that because of the very small number of representations received concerning implementation, he accepted the role of mediator. The Judge was also aware that there were few people that could bring the two parties together. In his work "To my astonishment, I found out during the years that the only way to have these people together at the negotiation table was to have a guy like me to facilitate dialogue; otherwise, it wasn't going to happen".

   Judge Paul also admitted that he never expected this work would be so time consuming. He nevertheless chose to spend the time on these issues because of their importance to Cree self-government, to overall Cree-federal relations and even to the credibility of the Commission.

   The Commission informed the Inquiry that the expenses the Judge incurs in the role of mediator are, for the large part, not covered by additional funds from DIAND.

   All of the parties expressed their appreciation of the important role the Chairman has been able to play in the resolution of these important issues. There has been no criticism of what he has been able to do, but some expressed the opinion that mediation was not really part of the Commission's mandate, even though they felt it should become so in the future, and in the case of the GCCQ that the appointment did have an effect on the Commission's discharge of its mandate in other areas.

   Communications

   To effectively perform its duties, the Commission has to be sure that its role and procedures are well understood. The Inquiry wanted to explore with the communities:

   - Has the Commission made adequate efforts to communicate its role and procedures to the beneficiaries and Councils of the communities?

   We heard from virtually every community that:

   - most individuals, including many Council members, were unaware of the role of the Commission, what it could do for them or what it had done, except to publish two biennial reports; and

   - even those more informed still had difficulty sorting out the type of problems that could be taken to the Commission and which could not.

   Other points were also raised:

   - Many people were aware of the two brochures that the Commission had distributed outlining its role and the procedures to be followed in filing a representation, though these only serve those who read English.

   - All the communities said that they would like to see the Commission more actively involved in promoting and explaining its role and the Act, perhaps by holding workshops. This was encouraged because of the inability of many Crees and Naskapis to read either French or English. Video technology would be useful for this purpose as well.

   - A number of the communities believed it would be very helpful if the Commission were to meet with communities after each biennial report is produced to explain its contents to the general membership.

   - There was general awareness of the financial constraints that prevented the Commission from doing more; many complimented the Commission for doing what it could with its limited resources.

   The Department told the Inquiry that it recognizes the difficulties in communicating with remote communities and it is prepared to take this into consideration in discussions with the Commission on future funding levels.

   The GCCQ would like the Commission to maintain a presence in each community and also to undertake data collection and research, in cooperation with the Government and/or the GCCQ, into implementation issues.

   One further issue was raised on a number of occasions that relates to an activity many wanted the Commission to undertake or oversee. While many Cree and Naskapi speaking people do not read syllabics, there are many others who do, and who do not read English or French. Everywhere the Inquiry went in the north, the point was raised: The Act must be translated into Cree and Naskapi. The suggestion was also made that the report should be translated into two main dialects of Cree - inland and coastal.

   3.4 Financing the Commission

   The main purposes in researching the financial files of the Government and the Commission were:

   - to understand how the budget appropriation levels for the Commission were arrived at;

   - to review the adequacy of the budget to the Commission's duties; and

   - to review the Commission's financial management record.

   The Inquiry gave each of the parties and the Commission an opportunity to comment on these matters. Naturally, the most in-depth questions were reserved for the Commission and for senior officials of the Department.

   The issues are essentially as follows:

   - Is the funding allocation of the Commission based on a reasonable assessment of the responsibilities and expenditures the Commission faces in performing its duties?

   - Has the budget been subject to discussion with the Commission?

   - Have the terms and conditions of the Contribution Agreements been negotiated with the Commission?

   - Do these terms and conditions conform with the provisions of the Act concerning the management of the Commission?

   - Are the terms and conditions reasonable and in conformity with accepted practice?

   - Has the federal government exercised any undue control over the Commission by means of the funding arrangements?

   - Has the Commission managed its finances in a responsible manner, consistent with accepted accounting and management practices?

   When we discussed these financial issues with the Crees and the Naskapis, they told us they had limited knowledge of the Commission's financial arrangements and history. Nevertheless, a few strong messages emerged.

   The Cree and Naskapi communities were mostly well aware of the financial constraints on Commission activities. They urged:

   - that the Commission must possess finances adequate to its mandate, to allow the Commissioners to travel to the communities and to perform research; and

   - that the Commission should be able to go directly to the Treasury Board for its budget appropriation because DIAND is a potential respondent and complainant. If the Commission cannot go to the Treasury Board, it was added, then another senior Department should represent the Commission at the Treasury Board.

   One Band questioned whether funding should come from the federal government alone, since that was seen as allowing it to exercise "direct power" over the Commission.

   The GCCQ considers DIAND to be an inappropriate funding agent of the Commission because it may be a party to a complaint for Commission investigation. Rather, the GCCQ suggests a committee of all parties draft the basic budget submission to be made directly to Treasury Board. They also contend that the Contribution Agreement method of funding gives the Department undue control over Commission activities.

   Finally, the Grand Council urged that the Commission must be adequately funded to perform independent research and a wider dispute resolution function.

   The Commission stated directly that, because of the funding level, it "... has had tremendous difficulties in meeting its obligations as set out in The Cree-Naskapi (of Quebec) Act". The Commissioners confirmed that:

   - they had no involvement in the 1986 Treasury Board submission that fixed the Commission's annual budget; and

   - they have had no input into the terms governing the annual Contribution Agreements.

   The commissioners further explained that:

   - they regularly run out of money late in the calendar year, especially in years when the reports were produced;

   - in those years when the Commissioners were up for reappointment, the Contribution Agreement could not be signed until the reappointments were made. This situation resulted in serious cash-flow problems and the Commission had difficulty securing bridge financing because the new Contribution Agreements had not been signed;

   - they consider virtually all the terms and conditions of the Contribution Agreement, with the exception of the audit requirement, to be unreasonable; and

   - they find the management of Government - Commission funding to be "not up to modern standards of dealing with financial matters."

   The Commissioners echoed what some of the Crees told us, namely that funding through a Contribution Agreement with the Department: "... definitely inhibits the development of the Commission and the role of the Commission. It is inappropriate to have a government department responsible for the financing of the Commission who may also be named as a respondent in any representation filed on the implementation of The Cree-Naskapi (of Quebec) Act."

   From the experience the Commissioners have gained over the last five years, they judge the budget clearly inadequate to the minimum fulfilment of the mandate. They have made numerous requests to the Department for increased funding, but no increase beyond the original appropriation has been secured.

   The Department told the Inquiry that:

   - its hands have been tied in the past five years on the funding issue;

   - the budget allocation in the original Cabinet decision and the Contribution Agreements have not allowed the Department to raise or reduce the annual budget for the Commission;

   - the Contribution Agreement has been administered in the least intrusive way possible;

   - and the terms and conditions were standard for Contribution Agreements in 1984.

   The Department stated its willingness to discuss new funding arrangements and procedures with the Commission that would allow maximum flexibility in managing the budget, to give the Commission the opportunity to draw up and defend its own budget proposals and to minimize any possibility of creating the perception of undue influence by the Department as a result of the budgetary process.

   3.5 Dispute Resolution Mechanisms

   The Inquiry's Research

   As noted earlier in the report, the Cree-Naskapi Commission does act as a dispute resolution mechanism, albeit with limited powers and jurisdiction. The Inquiry considered it important to review in some detail the range of existing DRM models and the experience gained in various fields and countries, as described in Chapter 2, to assist in the assessment of the operations of the Cree-Naskapi Commission and the consideration of future options.

   The Inquiry research looked at twelve DRMs initially to determine:

   - who has access to each body;

   - where its authority comes from;

   - what its mandate is;

   - how it is structured and how it operates;

   - what powers of investigation it possesses;

   - what decision-making authority it has;

   - to whom the recommendations are made; and

   - how it is financed.

   The Inquiry then wanted to analyze the different features of DRMs and identify a set of key dispute resolution issues as they might inform the existing mandate of the Cree-Naskapi Commission, in the first instance, and future options the Inquiry might wish to draw to the attention of the parties.

   A discussion of the Inquiry's major findings in this area is presented in the next chapter.

   DRMs and the Parties to the Act

   Just prior to the Inquiry's hearings with the parties, the Naskapis and the Inuit of northern Quebec signed separate Implementation Agreements with the federal government. These Agreements contain provisions for setting up a DRM for purposes of the Agreements. The Inquiry sought the views of the different parties on the creation of new DRMs to deal with matters arising from the Agreements.

   The Naskapis made the following points to the Inquiry about their new DRM though it has not yet been set up:

   - The Commission is not redundant in light of the new DRM that covers NEQA matters.

   - It can be argued that the new DRM encompasses Act matters that fall under the Commission's purview.

   - A representation to the Commission is the preferred avenue for resolution of disputes because it is a continuing body with an office and support functions, because the costs of investigation are largely borne by the Commission, and because individuals have standing before the Commission; none of these is the case for the new DRM.

   The Crees said they were generally not aware of the new DRM in the implementation agreements that had just been signed by the Naskapis and the Inuit. They told the Inquiry that there had not yet been much discussion among the Crees regarding the need for a new DRM.

   The federal government pointed out that the new DRM's are meant to resolve disputes arising from the land claims settlements and not from the Act. The Department also noted that the Commission in itself is not mandated as a DRM, but could be used as such if the parties agree.

   Department officials told the Inquiry that the Department is willing to begin negotiations with the Crees on outstanding JBNQA issues, including setting up a DRM for JBNQA matters. They left open the possibility that the Commission might be given the mandate to perform this function.

Analysis and Commentary

4.1 Some Initial Questions on the Mandate of the Inquiry

The statutory requirement for this Inquiry is contained in section 172 of The Cree-Naskapi (of Quebec) Act, 1984 and was agreed to in the final negotiations on the Act, when the federal government, the Crees and the Naskapis identified the future need to examine the Cree-Naskapi Commission after an initial testing period.

The Cormmission broke new ground in Canada in its concept, mandate and structure. For different reasons none of the parties were fully comfortable with the mandate and associated powers they conferred upon the Commission. Apprehensions remained about what the Commission might actually do: Could it be impartial? Was it too powerful? Did it possess the required tools to perform to the satisfaction of all parties, given the somewhat ambiguous mandate?

These are questions the parties have asked this Inquiry to examine. The terms of reference for the Inquiry can be found in Appendix A of this Report.

Examination of Broader Dispute Resolution Models and Experience 3

Although an assessment of the Commission has dominated the Inquiry's work and this report, it became apparent early on that many of the issues that required examination were present, and indeed had been dealt with differently, in comprehensive land claims settlements reached subsequent to the JBNQA and the NEQA. Many of the issues examined are thus of broader significance and some of the Inquiry's conclusions and recommendations have the potential for wider application.

In examining the mandate of the Commission The Inquiry engaged in an extensive examination of alternative models, both proposed and established, for resolving disputes between governments and beneficiaries to claim settlements.

This report reflects the results of that work in summary form and incorporates an assessment of other experiences and models which may be of relevance to the parties in their consideration of the future of the Cree-Naskapi Commission.

The Inquiry's research report on alternative dispute resolution processes is available as a separate report for those interested. A summary can be found in Appendix E.

Scope of the Mandate:

Confined to the Commission and the Cree-Naskapi Act or Extending to Encompass the JBNQA and NEQA?

In its discussions with all parties, the Inquiry was careful to emphasize that its mandate was confined to the Cree-Naskapi Commission itself; it did not have the mandate to consider all aspects of the Cree and Naskapi relationships with the federal government, nor the power to re-examine the JBNQA and the NEQA, except as they relate to the Commission itself.

However, for reasons that are discussed in more detail in subsequent sections of this report, the Inquiry was unable to divorce a consideration of the Commission and its mandate as it relates to the provisions and implementation of the Cree-Naskapi Act from broader issues linked to the provisions and implementation of the Agreements.

The Inquiry has done everything possible to ensure that these broader issues have been examined and reflected in our report only where they relate to the performance and the future of the Cree-Naskapi Commission itself.

4.2 Original Objectives of the Parties

The Agreements and the Cree-Naskapi Commission

The Cree-Naskapi (of Quebec) Act, 1984 was negotiated pursuant to Section 9 of the JBNQA and Section 7 of the NEQA which provided for "special legislation" to establish local governments for the James Bay Crees and for the Naskapis.

However, nowhere in the Agreements is there any reference to the establishment of a Commission or other form of dispute resolution mechanism.

What these sections of the Agreements did do was provide for negotiations between the federal government and the Crees and Naskapis to set the terms of the "special legislation". In this context the parties discussed and eventually agreed upon the provisions relating to the Cree-Naskapi Commission.

A Last Minute Deal: No Real Meeting of Minds

The Inquiry is unable to determine definitively which party initially proposed the establishment of something along the lines of the present Commission.

What is clear is that the discussions spanned a significant period of time (from 1976 to 1984) and that during that period the concept and specifics of the proposed body underwent major changes.

This is particularly noticeable in the evolution of the position of the federal government relating to the proposed Commission. From an initial position which reflected a possible broad mandate and extensive powers for the proposed Commission, the written record reveals a steady erosion and narrowing of what the federal government was finally prepared to accept.

This change in position appears to have been based on a concern that the obligations of Canada under the Agreements were so discretionary that the nature of the Band powers provided for could give rise to high-profile investigations by the proposed Commission. The federal government concluded it would be inappropriate to grant important powers to an outside body.

Accordingly, federal objectives in the final stages of negotiations for the Commission focused more on how to limit the potential role and associated powers of the Commission to the bare minimum.

The Cree position also changed during negotiations. At some points they were clearly of the view that the Commission being discussed was too complex and they in fact removed the concept from the negotiating table at various stages.

The Crees became concerned about the complexity of the roles proposed for the Commission and whether or not Cree participation on, and access to, the body could be assured. In the end they insisted that any overseeing or review function agreed to would extend to encompass the federal government as well as the Cree local governments.

The task of reaching agreement on a body that had no precedent was dealt with in detail in the final hours of the negotiations. Both the federal government and the Crees and Naskapis, faced with an impending election in 1984, worked to ensure passage of the Act prior to the dissolution of Parliament.

The Crees were concerned that the results of eight years of work subsequent to the signing of the Act could be lost; the Commission was only one element in a much broader package to be contained in the draft legislation. It appears the federal government shared some of these same concerns.

As a result, the sections of the Act dealing with the Commission were perhaps the subject of more last minute compromise, and resulting ambiguity, than most other parts of the legislation. They reflect a level of ambivalence and apprehension on the part of both the federal government and the Crees.

This in turn meant that differences of opinion on objectives, mandate and powers were "drafted over" with less than desirable precision. In many areas it is evident that there was no real meeting of minds on the specifics of the Commission, its mandate and powers, or what it would be doing and how.

The last-minute negotiations and compromises had two other consequences of importance:

- the inclusion of a statutory requirement for a review of the Commission five years after its establishment; and

- a lack of detailed attention to the financial resources required to support the Commission.

The Five-Year Review Requirement

Reflecting a mixture of haste and unease, agreement was reached that the Commission would be subject to a comprehensive review five years after its creation.

It should be noted that this review requirement was specific to the Commission alone, although other elements of the Act might usefully have been the subject of similar review.

It should also be noted that, in agreeing to a review, the parties do not appear to have entertained the possibility of the termination of the Commission; at least, it was not stated by any of the parties. Rather, the emphasis was on the desirability of the review providing "an opportunity to alter the role of the Commission if necessary" based on the experience gained.

In fact, Cree and Naskapi concern that the wording in early drafts of Section 172 might be interpreted to mean that the continued existence of the Commission would be open to question led to changes in the review clause.

This objective of adjusting and improving the Commission through the review/inquiry process was reflected in the submissions of all parties to the Inquiry.

Lack of Detailed Attention to Resource Requirements

The last-minute agreement resulted in what is, with hindsight, a regrettable lack of attention paid to a number of financial and operational issues, including the resources that the Commission would require to adequately discharge its mandate, and to the type of relationship and associated agreements required between the Department of Indian Affairs and the Commission for staffing and budgetary matters.

It is the Cree position that matters relating to the financial support of the Commission were to be negotiated between the parties under the 1984 Memorandum of Understanding. In the Cree view, this obligation was never met and remains outstanding. These issues are the subject of more detailed comment on page 121.

The Scope of the Mandate

One of the most significant compromises reached in the last moments of negotiation was on the issue of whether the Commission's mandate would cover the implementation of the Act alone, or extend to encompass the Agreements as well. While Section 165 of The Cree-Naskapi (of Quebec) Act is clear in its emphasis on the implementation of the Act itself, there were many questions in the minds of the representatives of all parties as to whether such a cut-off point from the main Agreements was realistic. This issue is discussed in more detail on page 83.

The Lack of Implementation Structures 3

Further confusing the agreement establishing the Commission are the apparent differences of understanding between the parties on the broader issue of implementation of the Agreements, an issue that persists to the present day.

In contrast to virtually all subsequent comprehensive claims agreements concluded in Canada, the JBNQA and the NEQA failed to structurally address the issue of implementation and omitted a full-fledged dispute resolution mechanism.

In reaching final agreement on the Commission itself, it is clear that the federal government anticipated that the establishment of the Commission would be parallelled by the creation of a number of implementation structures involving the federal and provincial governments and the Crees and Naskapis, as well as implementation structures internal to DIAND. These internal structures would handle coordination of both departmental and interdepartmental implementation responsibilities for the federal government. Indeed this expectation was specifically reflected in the Statement of Understanding concluded between the GCCQ and the outgoing Minister of Indian Affairs in 1984.

For their part, the Cree view of what the Commission should be doing and the compromises they accepted in the final drafting were significantly affected by the understanding that the Government would implement the undertakings it made in the Agreement and the Act. It should not have been a concern for the Crees as to how the Government would structure itself to proceed with implementation. There were matters dealt with in the parallel political agreement (the 1984 Statement of Understanding). The assumption was that the Act and associated understandings would be honoured and implemented in full.

The result is clear. While many undertakings in the original agreement have clearly been discharged, implementation of the provisions of the original Agreements, as well as subsequent implementation understandings, remain today a continuing, negative preoccupation of the parties.

Internal to the federal government, the required implementation planning and structural work had not been done.

Under Cree and parliamentary pressure, the federal government did undertake a comprehensive review of how it had met its obligations under the JBNQA. The resulting 1982 "Tait Report" clearly identified the federal government's failure to deliver on many aspects of the original agreement. The report identified a specific problem with the federal government's failure to develop required implementation structures.

A subsequent Understanding signed in 1984 between the Crees and the Minister of Indian Affairs was not honoured by the succeeding Government which adopted the view that the Understanding had been entered into without the required Treasury Board authority.

In 1986, the Auditor General highlighted the federal government's failure to address its implementation responsibilities in the following terms:

The fact that government obligations were included in the Agreement raised Native expectations that they would be carried out within a reasonable time. However, a lack of specificity, the failure to dedicate resources to the obligations and the fact that obligations were not always assigned to a specific department, through an approved implementation plan, have caused serious problems in implementing parts of the Agreement. The Department has estimated that the cost in current dollars of implementing the outstanding obligations would be $190 million.

Cumulatively, these events are seen by the Crees as a continual reneging by the Government on clearly stated obligations.

It is, of course, not the purpose of this review to attempt to detail the full history of Cree attempts to force implementation of both the original Agreement and the subsequent implementation understandings.

However, it is the Inquiry's view that the federal government's failure, from the outset to the present day, to adequately deal with the structural and substantive aspects of implementation of the Agreements has resulted in a federal-Cree preoccupation with these implementation structures and issues. This has not only had major negative consequences for the effective resolution of a broad range of different issues currently on the negotiation table but, more importantly, has had a significant effect on the parties' expectations of the Cree-Naskapi Commission and on its performance over the last five years.

4.3 The Commission

This section of the report provides the Inquiry's assessment and recommendations on the Commission itself- its structure, operations and performance over the five year period.

It should be noted that since the parties concluded the negotiation of the Act, they have engaged in no discussion or exchange of views on any matters relating to Commission structure and operations beyond day-to-day administrative and financial matters.

The Inquiry was surprised that the parties had not conducted their own interim review of the Commission nor made any attempts to jointly address some issues of obvious concern to the Commission and the parties as they arose during the five-year period.

While this can perhaps be explained by the broader difficulties and agenda between the Crees and federal government, it is the Inquiry's view that there is a demonstrated need for more formal, senior level working mechanisms, both between the parties and involving the Commission, to deal in a timely and structured manner with outstanding management, administrative and financial issues.

1. The Commission's Mandate and Duties

   The Agreed-Upon Mandate

   The final results of the all-party negotiations gave the Commission two primary functions, as reflected in Section 165 of the Act:

   - preparation of biennial reports on the implementation of the Act; and

   - investigation of representations relating to the implementation of the Act.

   Federal resistance prevailed over the idea that these duties should extend to encompass implementation of the JBNQA and the NEQA.

   For its part, the federal government has maintained further that the mandate was to focus on how well local government under the Act was functioning at the community level.

   For their part, the Crees have maintained that the mandate's primary focus was to keep the parties, especially the federal government, "honest" to their commitments and obligations. From this perspective, the Crees felt that implementation of the Agreements could not realistically be separated from implementation of local governments under the Act itself.

   Primary Source of Conflict and Confusion - the Exclusion of the Agreements

   As a result, this somewhat artificial distinction between the Act and the Agreements has proved to be a continuing source of confusion and conflict between the parties, and has had the effect of placing the Commission in the unenviable role of having to force clarification of some of the ambiguities in its own mandate, not always to the liking of one or other of the parties.

   It should be noted that legal opinions internal to the federal government clearly indicated both that the legislative mandate of the Commission would be legally open to the interpretation that it extended to encompass implementation of the Agreements as well as the Act, and that the distinction reflected in the legislation was not going to be an easy one for the Commission to sustain.

   The Commission's Interpretation Of and Experience in Working with its Mandate

   It is the view of the Inquiry that the Commission proceeded responsibly to adopt an interpretation of its mandate which was not only reasonable in all of the circumstances, but was consistent with the legislation and objectives of the parties. For the most part, they have interpreted and discharged this mandate in an impartial manner.

   At an early date the Commission sought legal opinions on what was and was not possible under the two main duties reflected in Section 165.

   Key elements of the legal opinion obtained by the Commission in respect of its mandate were:

   - according to the "spirit" of the Act, the Commission does not have the power to initiate investigations within the meaning of Section 165(1); and

   - an indication that the biennial report function allows the Commission a high level of initiative in undertaking research, investigation and reporting on matters related to the implementation of the Act.

   It should be noted that even the legal opinions provided to the Department of Indian Affairs reflected that Section 165(1)b would probably allow the Commission to investigate a charge of inadequate funding on the basis that adequate financing, although not covered by any provisions in the Act, is essential to the exercise of Band authorities under the Act.

   As anticipated in virtually all legal opinions to the Commission and to the Department of Indian Affairs, the Commission has been unable to make a clear distinction between matters relating to the Act and the Agreements and thus, in its biennial reports, "intruded" into matters which were, in some instances, clearly outside its mandate.

   The Commission's Mandate and The Province of Quebec

   At this point it is desirable to emphasize again that the Commission's mandate in no way provides for any interaction with, or ability to influence, the other main signatory to the Agreements, namely the Province of Quebec.

   The parameters that confine the mandate to implementation of the Cree-Naskapi Act, have effectively denied the Commission the ability to report on implementation issues that involve the Province.

   In fact, because of the predictable blurring of reporting on Act/Agreement implementation issues, the Commission has at some points focused on implementation issues specific to, or involving Quebec. For example, in its 1988 report the Commission dealt with matters concerning the administration of justice, economic development, and the establishment of the Ouje-Bougoumou community.

   The Inquiry later discusses whether the Commission can meaningfully report on implementation issues if Quebec is not a full participant.

   The Impact of "Implementation Issues" on the Work of the Commission and its Mandate

   From the outset, especially in the implementation hearings to prepare its 1986 biennial report, the Commission was confronted with a broad range of submissions from the Cree leadership, at the community and regional levels, to the effect that the federal government was not living up to its obligations under the Act or under the Agreements.

   In its first biennial report, the Commission reflected the range of issues that had been raised, clearly indicated the nature and extent of the implementation problems that existed at that time, and set out recommendations for addressing these problems.

   Cree concerns in this area had been exacerbated by the incoming government's refusal, in 1985, to live up to the terms of a detailed understanding on implementation signed by the outgoing government.

   In commenting on the issues as presented to them, the Commission submitted a first report that clearly went beyond the narrow confines of its legal mandate by reporting on a number of issues that related principally to the implementation of the Agreements, not just of the Act.

   The federal response to this first report was overly defensive and legalistic. It leaves a somewhat simplistic impression that the Commission and its report had adopted a pro - Cree bias from the outset. This view prevails within certain parts of the Department of Indian Affairs to the present day. It is the Inquiry's view that this charge is without foundation.

   The Department severely criticized the Commission for not having adopted the federal interpretation of the mandate, that is, one of reporting on the implementation of the Act at the community level as opposed to a scrutiny of the Government's obligations under the Act/Agreements.

   This in turn led to a short, sharp exchange between the Chairman of the Commission and the Minister of Indian Affairs. The federal government adopted this position notwithstanding the prior federal legal opinion to the effect that Section 165 did not lend itself to such simple interpretation. In addition, it was predictable that implementation issues would dominate given the failure of the parties, and the federal government in particular, to establish required implementation structures.

   At that early stage of the Commission's existence, it was foreseeable, even if the Act had been fully translated and well understood within the communities, that the primary focus of the representations to the Commission and the content of its report would focus on a broad range of implementation issues. The Cree and Naskapi parties used the Commission's hearings to express their principal preoccupations and grievances concerning the performance of the Government on implementation of the Agreements. In this context, then, the Commission's response is understandable.

   The Federal Government Agrees to the Chairman's Involvement as a Mediator of Agreement Implementation Issues

   After subjecting the Commission to strong criticism for having exceeded its mandate, the Minister and the Grand Chief of the Crees of Quebec agreed in 1988 to appoint Mr. Justice Rejean Paul as mediator between the Crees and the federal government on broader Agreement implementation issues. It should be noted that the Judge performed this role with some considerable success in all circumstances.

   When confronted with this apparent reversal of its original position, federal officials responded to the Inquiry to the effect that Mr. Justice Paul had been named mediator in his personal capacity, not as chairman of the Commission.

   The Inquiry finds this distinction somewhat artificial. The reality is that beyond the involvement of the chairman, the staff of the Commission were involved in supporting the Judge's involvement as mediator and the federal government made no separate or additional funding available to cover mediation-related expenses. It was clearly expected that most of these expenses would be paid out of the Commission's budget.

   Later Changes in Federal Policy in Other Comprehensive Claims Settlements

   Relevant to this consideration of the Commission's mandate is the fact that federal policy regarding the implementation of comprehensive claims settlements and the resolution of disputes between parties has undergone major changes since the JBNQA and the NEQA were signed.

   Dispute resolution mechanisms are now a standard feature of comprehensive claims settlements. The mandate of virtually all dispute resolution mechanisms embodied in claims settlement agreements make no distinction between the original settlement agreements and the implementing legislation.

   Those dispute resolution mechanisms now established (including those for the Inuit under the JBNQA and for the Naskapis under the NEQA) have "mandates" which clearly extend to encompass implementation issues arising from the original Agreements as they pertain to the parties to the DRM agreement.

   The Inquiry concludes that the fine distinctions made, both in the drafting of the mandate of the Cree-Naskapi Commission and in the level of federal reaction to how the Commission interpreted its mandate in its first biennial report, must be attributed to the fact that all parties were then clearly dealing, in the Agreement, the Act and the Commission itself, with concepts and mechanisms without precedent.

   The distinctions made are not sustainable and not consistent with current federal policy in this area, 3 as reflected in all subsequent comprehensive claim settlements.

   The Investigation of Representations

   Beginning on page 104, this report details the experience of the Commission in working with the part of its mandate dealing with the investigation of representations.

   It is important to note that it was in this area that the federal government expected that the Commission would focus most of its activities.

   As described in Chapter 3, the low number of investigations reported appears to be attributable to a number of factors, including:

   - the Act has not been translated into Cree or Naskapi;

   - Iittle understanding at the community level of the provisions of the Act, and indeed of the specifics of the Agreements themselves;

   - the federal government has made no representations to the Commission;

   - an inability on the part of the Commission and its staff to be present in the communities with any regularity; and

   - many internal tensions or disputes are dealt with within the communities through a variety of traditional methods. The Cree communities prefer not to put such matters to "outside" bodies for resolution. A slightly different experience is reported by the Naskapis.

   Notwithstanding the relatively low usage to date, the Inquiry feels that the investigation of representations is a valuable function and should be retained. It is possible that the number of representations will increase as knowledge of the Act, the Commission and its mandate improves at the community level in the years ahead. This aspect of the Commission's mandate deserves a chance, under better conditions.

   Other Functions Assumed by the Commission

   Beyond the two major functions assigned to the Commission under Section 165, the Commission has undertaken a range of other functions, to the extent that its budget has permitted. These functions are mentioned in the preceding chapters and include attendance at conferences, speaking engagements and the maintenance of a resource library.

   In the view of the Inquiry, most of these functions have a legitimate place in the discharge of the primary mandate of the Commission. A fuller assessment of the Commission's work in these areas can be found beginning on page 117.

   The Commission as a Dispute Resolution Mechanism

   The Commission's present mandate does not really qualify it as a dispute resolution mechanism of any significance. The two exceptions to this general statement are:

   - that part of its mandate that allows the Commission to investigate and report on representations ( 165 ( 1 ) b); and

   - the mediation function assumed by the current chairman of the Commission on implementation issues, though technically not within the Commission's statutory mandate and arguably not a function assumed by the Commission as such.

   In both areas, actions of the Commission have facilitated the resolution or partial resolution of outstanding issues between the parties, a fact acknowledged by all of the parties in their submissions to the Inquiry.

   The question remains as to whether the Commission's mandate for the future should reflect a much more significant dispute resolution role (including mediation). The related question concerns the additional powers that may be required to perform a more significant function of this type. These issues are discussed in more detail beginning on page 131.

   Questions Relating to Future Mandate

   In our later discussion of options, the Inquiry takes a more integrated look at optional approaches to the Commission's future, including questions relating to mandate. At this stage it is sufficient to note that the major mandate questions that need to be addressed for the future include:

   Should the mandate be explicitly extended to encompass issues arising from all Agreements concluded between the parties, as well as from The Cree-Naskapi Act itself?

   Should the Com