Indigenous and Northern Affairs Committee on Feb. 1st, 2007

[Philip Awashish]

First of all, I would have to clarify two distinct processes that the Cree–Naskapi Commission has recommended. One process involves the Cree–Naskapi leadership and the federal government reviewing the Cree–Naskapi of Quebec Act itself and determining possible amendments to the act. Another process that the commission has recommended and is in a process of doing is to review the treaties themselves, those being the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, in which the Quebec government would be involved, as well as Canada, because the two governments are parties to the treaties.

Our contention is that since the act itself evolves from the treaties, the treaties themselves have to be reviewed and amended to recognize, in particular, the existence and continuity of Cree–Naskapi traditional law. One of the problems has been that the act itself is silent on the existence and continuity of the ayoowkwx traditional law. We have found that when we are up north talking about the Cree–Naskapi of Quebec Act, people tell us that's not the way things are done up there. That simply means, of course, that they have their own ways of doing things. They have their own laws. When that happens, of course, then the tendency is to simply ignore existing law, contemporary law.

[Richard Saunders]

I might add just one comment to that as an example, because I'm sure members are wondering, “The act isn't the way you do things? What are you talking about?”

Take a thing as simple as, say, the election provisions. The election provisions say you're going to post a notice and there's going to be so many days between the notice and the election, etc. If an elder dies in a community, they're going to move the election one day. That's technically illegal. We need to deal with those kinds of things, with something as simple as that.

[Todd Russell, Liberal, Labrador, NL]

Okay, but getting back to my question, why are you not receiving cooperation in moving either of those processes forward? Why hasn't the federal government or the Quebec government engaged with the Cree and Naskapi nations to address some of these matters? What is the major holdup, whether it's based on the treaties or whether it's based on the act in terms of revisions and amendments?

[Philip Awashish]

The federal government's reasoning is that they want to take the approach of looking at Cree and Naskapi governance in a global and comprehensive manner. Rather than simply looking at the act itself, they want to look at the exercise of the inherent right of governance globally.

They spoke of their own policy regarding negotiating the exercise of the right of self-government. They want to look at this whole process of first nation governance globally and comprehensively, rather than restricting it to looking simply at the act itself.

[The Chair, Conservative, Colin Mayes]

Thank you.

Mr. Lévesque.

[Yvon Lévesque, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Gentlemen, thank you very much for being with us today. I will ask you all my questions at once, because we don't have much time.

I was present for discussions regarding the territories. I regularly make my rounds, and we are aware of the fact that you are asking for housing in certain places. In fact, there isn't enough room on the available land. For example, funding is needed to expand the available space, so that additional housing can be built.

As regards the letters you sent to the Minister with respect to the negotiations you referred to in your statement, unfortunately, we have not received a copy of them. We would very much like to know what you are asking for, as well as the Minister's response in that regard.

There is an additional point of interest to me. I would like to be given an explanation with respect to your territory—for example, Kawawachikamach, which is located on land now recognized as being part of Nunavik. Which land is currently yours and which land are you claiming? The Innu from the South, who attended a meeting with you, also live in that region. In fact, if I'm not mistaken, you had a meeting in August with representatives from Nunavik with respect to divvying up the land. Could you tell us a little bit about the outcome of that meeting?

Finally, are the Inuit and the Naskapi still talking about how the land will be divvied up?

I had asked Chief Jimmy James Einich, the Chief of the Kawawachikamach, who has since been replaced by Philip Awashish, for a report, but I never received any. However, we do know that a meeting or forum is scheduled to take place in Nunavik in the week of February 15. I have heard that an agreement in principle will probably be signed with the Government of Nunavik. I would also like to hear your comments on that.

[Richard Saunders]

Thank you, Mr. Lévesque, for those questions. They're very helpful, and there are a number of them.

In order to be quick, we can provide letters to the minister concerning these discussions back and forth. Our office will provide the exchange of letters between us, the minster, Donat Savoie, and others around that issue. We'd be happy to do that.

The Naskapi territory essentially is very similar to the Cree territory in that there's a category 1 type of territory that is reserve-like in nature. There is also some category 2 land, that being a substantial piece to the north and somewhat west of the Naskapi main community, which is outside of Schefferville.

To my knowledge, they have no desire to increase either of those blocks of territory. Their concern is that as the Nunavik proposed agreement stands right now, the Nunavik government would cover that territory entirely. It talks about respecting some of their rights, but the fact of the matter is that their rights are prescribed in the Northeastern Quebec Agreement. They would like to see some explicit undertaking in which, first of all, they would be consulted about what takes place there. Secondly, the Nunavik regional government as proposed would be a public government similar to that of Nunavut, Ontario, or any other public government.

Their issues are that, by and large in the territory as described right now, they would be a minority with special rights, subject to a public government. That would be less effective for them than having their own government in their own territory, without any overlapping jurisdiction.

You probably could benefit by hearing it straight from them if you want to go into more detail. I know they'd be happy to speak with you or with anyone who wants to hear it. I can give you that overview, but it's always best to hear directly from the people with the issue than it is from some third party. But it's definitely an issue.

Insofar as this meeting on the 15th is concerned, of course we're interested in what's taking place there, and in whether or not this agreement in principle is in fact going to be signed at that time. Of course, we're interested and we'll follow up on your information and certainly see what's happening.

On housing, I agree. With the chairman's approval, as soon as we have the French translation, we will present this report in detail. If you want the existing copy today, en anglais, I'd be more than happy to give it to you. Out of respect, though, we wanted to have both the French and the English. That ought to provide the kind of detail that I think you are asking for.

[The Chair, Conservative, Colin Mayes]

Madam Crowder.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

I want to thank the commissioners for coming before the committee today. When reports are presented to the minister and the House of Commons, I think it's really important that the committee has an opportunity to take a further look at them.

I have a lot of questions, but because I have only a couple of minutes I'm going to focus on two pieces in your report. One is on page 12 in the English version. You talk about the fact that the Department of Indian and Northern Affairs, from 1986 to the present time, has taken the position that the mandate of the commission does not extend to consideration of matters arising under the agreements. So I'd like you to address that piece.

I know you've talked about the inherent right to self-government, but that seems to be a fundamental underpinning of what's at stake here. On page 42 you recommend that section 9 and section 7 be amended to provide for full and explicit recognition of inherent right. You go on to say you're concerned that Canada's current recognition of inherent right is merely a policy as to how the government of the day chooses to interpret section 35.

Just for context, I come from British Columbia, where many treaties are under negotiation. One of the fundamental pieces in British Columbia is recognition of the inherent right to self-government. So it's distressing to hear that treaties and an act have been in place for so many years, yet you're still having a discussion about trying to have that inherent right to self-government recognized.

I wonder if you could provide some advice to others who are negotiating treaties at this point, where there doesn't appear to be recognition of the ability of the commission to deal with matters arising out of the agreement, and there's an inability to get governments to actually agree to the inherent right to self-government.

[Richard Saunders]

There are really two questions there. I'll deal with the mandate and very briefly with the inherent right, but Philip has done more work on that and I'll ask him to respond.

On the mandate, Indian Affairs has always taken the position--and as you can see on page 12, it continues to take the position--that we have no jurisdiction to discuss issues arising out of the James Bay agreement and the Northeastern Quebec Agreement. We've taken the position that the act itself, which creates the commission and describes our duties, also describes the duties of band councils. It says, among other things, in paragraph 21(j), that the objects of a band are “to exercise the powers and carry out the duties conferred or imposed on the band...by the Agreements.” I think it speaks for itself.

They continue to say we don't have jurisdiction, and then they move to the position of saying we don't have explicit legislative jurisdiction. They outlined that again in their presentation in February 2006, yet at the same time they spoke to the United Nations and kind of bragged about what they'd been doing, saying the first of the modern treaties--the James Bay and Northern Quebec Agreement--provided for a monitoring mechanism, namely the Cree-Naskapi Commission.

We pointed that out to Michel Blondin, the director of the James Bay implementation office, who said, well, that's a joke; I'm going to have to kill somebody, that's all.

The next day, this thing disappeared from their website.

What we didn't tell him was that they left some more material on the website, called “The Hybrid Process”, which said the following: Part XII of the Cree-Naskapi (of Quebec) Act provided for the creation of the Cree-Naskapi Commission to privately investigate complaints arising from the James Bay and Northern Quebec Agreement, the Northeastern Quebec Agreement or the Cree-Naskapi (of Quebec) Act....

So we're not going to argue with them any more. We don't take them seriously. They don't take themselves seriously, obviously, so we're just moving on. If lawyers want to go and argue somewhere in the corner, let them.

On the inherent right, one of our concerns is that the Government of Canada has consistently said that they “think” that section 35, aboriginal and treaty rights, includes the inherent right to self-government. Some provinces do not think so; some others don't think so.

That “thinking” is a policy: the government thinks. That's a policy. There's no law or no Supreme Court interpretation that says the inherent right is part of section 35. Section 35 doesn't say so, the Supreme Court hasn't said so, and there's no federal legislation saying so. If it's just a policy, it may be a great policy but it's kind of fragile. Policy changes, as we know, and quite properly in most cases. But if this is so important, it should be legislated.

Philip, do you want to add anything to that quickly?

[Philip Awashish]

Quickly, yes.

The James Bay and Northern Quebec Agreement was signed in 1975 and the Northeastern Quebec Agreement was signed in 1978. So both of these agreements came into force before the Constitution Act of 1982.

What we end up with is a position taken by the Cree and Naskapi nations that their treaties of 1975 and 1978 are protected under section 35 of the Constitution. They consider their treaty rights protected under section 35. They consider their treaty right includes their right to govern themselves. But of course the courts haven't ruled on this question. It's simply a matter of positions taken or interpretations taken by the first nations peoples and the policy that the federal government has followed regarding self-government.

The Quebec government, interestingly, has not recognized the inherent right. The Quebec government simply says that first nations people have a right to govern themselves on lands allocated to them by legislation. So they don't refer to these rights as inherent, and they subject them to the legislation of Quebec.

[The Chair, Conservative, Colin Mayes]

Mr. Albrecht, do you have any questions?

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Yes, thank you, Mr. Chair.

I want to follow up on the central statement on your second page, Mr. Saunders, where you highlighted Chief Billy Diamond's comment about changing attitudes and approaches to housing from entitlement to ownership, and so on. I understood you to say that you can't share any details, and I respect that, but can you give us a bird's-eye view on what kind of allocation there might be between the various levels of government and individual ownership?

[Richard Saunders]

I think what Chief Diamond is saying...and again, he's a better spokesman for himself than I am, obviously. My understanding of what he's saying is that rather than coming to government and saying we should be given money for 100% of our necessary housing costs, he's saying we should be given a fair deal, a fair formula that makes sense, that takes into account that 95% of our young people are remaining in their Cree communities, and not some national formula that says half of them are moving to Toronto.

In addition to that, he's saying we should look at a blended formula, and sit down and negotiate a formula. So you have the federal cash, you also have some Cree cash from the Cree government, and you also factor in an ownership factor based upon the need and the ability of the individual or family to participate in ownership of their property.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

So there'd be a range of percentages and a case-by-case scenario.

[Richard Saunders]

Yes, and I think he's looking for an overall formula that would recognize three-party responsibility for this, not just the federal government unilaterally.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I'd certainly applaud the initiative in that direction. I think it's the way to go in terms of increasing the individual ownership percentage of the people who have that kind of housing.

Secondly, to Mr. Kanatewat, regarding the inquiry that was called and the department refusing to come to the hearing of the commission, could you tell us when that was? What are the timelines there?

I don't want exact dates, but are we talking three months ago, three years ago, or...?

[Richard Saunders]

It was last year. We can provide you with the exact dates, if necessary.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Last year, so the spring or summer of 2006.

[Richard Saunders]

It was the summer of 2006.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

That's all, Mr. Chair.

[The Chair, Conservative, Colin Mayes]

Okay.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I'm sorry, I have another commitment and I have to leave. But before I do, I might as well just get it on the record again, Mr. Chair, that in terms of the committee giving due diligence to a hearing like this, I do think we need to allocate more time in future.

[The Chair, Conservative, Colin Mayes]

All right.

First of all, I want to thank the witnesses for the information. The committee will take it under advisement. If there's anything coming forward with regard to your concerns for the opportunity to sit down and negotiate with the department, then that will be forwarded by a committee member.

The other thing is that we appreciate and thank you for the offer of that report on housing. We likely will be starting on our housing study in the near future.

Thank you very much for your time. It was very informative.

To committee members, would you like to have lunch brought in for these meetings?

The answer is yes? Then it shall be.

We're adjourned.