Indigenous and Northern Affairs Committee on May 5th, 2009

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

This is the first time that my speaking time has been this long, Mr. Chairman.

Good morning, Mr. Saunders, Mr. Awashish and Mr. Kanatewat. Under the 2008 agreement, Oujé-Bougoumou is recognized as coming under the James Bay agreement. Is the reserve recognized by this bill, or are you still waiting for the negotiations with Mistissini?

[Richard Saunders]

Thank you.

The bill itself recognizes the band as a legal entity. It doesn't resolve the issue of the actual land. What that requires is, again, a referendum on the part of the current holders of the category IA land, which is Mistissini, to approve its transfer.

That's not a problem in terms of politics or anything like that. It's more a problem in terms of getting the required turnout, meeting the quorum. That has been the issue. It's one of those many quorum issues that need to be addressed.

Philip, of course, is from Mistissini. He knows more of the history and may want to add to that.

[Philip Awashish]

Thank you.

In order for the land transfer to Ouje-Bougoumou to take effect, certain amendments to the James Bay and Northern Quebec Agreement are required, amendments for lands to be set aside as category I and category II for the benefit of the Ouje-Bougoumou. Some type of amendment is required in the James Bay and Northern Quebec Agreement.

The agreement as a whole has to be amended in order to bring the Ouje-Bougoumou Cree as a party into the James Bay and Northern Quebec Agreement. Back in 1975 they were not a band, so they did not sign the James Bay and Northern Quebec Agreement. Most, if not all, of the Ouje-Bougoumou members were transferred by Indian Affairs to the Mistissini Band before 1975. When the James Bay and Northern Quebec Agreement was signed in 1975, the Ouje-Bougoumou people were members of the Mistissini Band. Their chief signed the James Bay and Northern Quebec Agreement. So technically the Ouje-Bougoumou Cree were not recognized as a separate entity and therefore were not officially a party to the James Bay and Northern Quebec Agreement.

The next step, of course, is to bring them into the agreement. That will require amendments to the agreement so that they can have their category I and II lands.

I think the act itself refers to this particular issue. The act contemplates agreements to be made between Canada, Quebec, and the Cree respecting the lands to be set aside for the use and benefit of the Ouje-Bougoumou Cree.

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

The Kawachikamach Nation came and spoke to the committee about a problem raised by the tripartite agreement between Canada, Quebec and Nunavik, under which steps are being taken to establish a regional Inuit government—we know the Naskapi are included in that. Are you involved in the Naskapi claims in this matter?

[Richard Saunders]

The Naskapi had raised, in previous reports, the issue with us that they were concerned about the creation of Nunavik as a public government as opposed to a first nations government, or in their case an aboriginal government. They had some concerns, because although their actual community, their category IA-N land, is not covered, a lot of their traditional territory, their category II-N lands, for example, a lot of the traditional territory where they hunt and carry on traditional activities, will be within this new public government. They, of course, are to all intents and purposes an aboriginal government, part of whose traditional territory is within the jurisdiction of a public government that is dominated entirely by the Inuit.

So they had some concerns that they wanted their rights and interests guaranteed, and they raised some of those concerns. They weren't happy at the degree of consultation that had occurred with them. They were a bit concerned that they were kind of an afterthought to an Inuit-Quebec-Canada agreement. We suggested that one of the things that might be worthwhile would be for them to come to this committee. The committee graciously asked them to come, and they raised those issues again. There hasn't been, as far as we know, any satisfactory follow-up. The issue is hanging there at the moment.

It continues to be an issue, Monsieur Lévesque, and it's unresolved at this point in time.

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

Is your commission concerned by this debate?

[Richard Saunders]

Yes. In our previous report, we made some clear recommendations. We felt that Canada had a responsibility as a signatory to the Northeastern Quebec Agreement, which is the agreement covering the Naskapi. It's a constitutional document the same as the James Bay agreement.

We felt that Canada had a responsibility to act as a fiduciary in a loose sense, not necessarily a strictly legal sense, in looking after the rights and interests of the Naskapi under their agreement. We felt they ought to be asserting some leadership role in ensuring the Naskapi were appropriately consulted.

We had contact with federal officials about that. As I say, the Naskapi First Nation appeared before this committee and raised those issues itself and still there is no resolution of that issue. Neither they nor we have any difficulty with Nunavik and the Inuit people in that region having whatever form of government they feel is appropriate and that they negotiate. We are concerned, however, that the Naskapi be satisfied at the end of the day that their rights and interests are protected.

[The Chair, Conservative, Bruce Stanton]

Thank you, Mr. Lévesque.

Ms. Crowder, you have seven minutes.

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

Thank you, Mr. Chair.

I want to thank the commissioners for coming before the committee once again.

I have a couple of questions. One is that back in 2006, you had raised the issue around the fact that the Department of Indian Affairs and Northern Development had from 1987 to the present taken the position that the mandate of the commission does not extend to consideration of matters arising under the agreement. Is that still the case?

[Richard Saunders]

No.

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

So that has shifted and improved?

[Richard Saunders]

Yes, very much so.

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

That's good news, because that was a serious concern in 2006.

[Richard Saunders]

It was a very serious concern at the time, and it has changed. The government now takes the position that we do have a responsibility and a mandate to look into issues arising out of the agreements as well as the act.

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

Great.

In your overview presentation, I may be misunderstanding this, but under section (c), “Implementation of the Cree-Naskapi (of Quebec) Act”--it seems to me a lot of the issues we're talking about are around implementation, and I think you point out there was no concurrent implementation agreement in the original piece of legislation in 1984--you've listed a whole series of things. The way I'm understanding this is that these are unresolved items with regard to implementation.

Toward the end, it says this:

...the Cree and Naskapi peoples expect the Government of Canada to find the political will and provide legislative and administrative as well as financial measures necessary for the advancement and completion of this change.

Then it goes down in a later paragraph to talk about this:

The conventional style of implementation is frequently insensitive to the actual needs and aspirations of the Cree and Naskapi peoples and has resulted in symbolic implementation that amounts to no real change in how decisions are made and in how things are done.

My understanding is that these are ongoing issues around financial, appropriate consultation, and inclusion about implementation. Is that a fair assessment?

[Richard Saunders]

I think it is.

Commissioner Awashish will comment, but just quickly, I would mention that when we have representations--or complaints, under the act--brought to us by individuals and communities and so on, we whip out a copy of the Cree-Naskapi (of Quebec) Act and say, “Well, it says this and this and this.” One of the comments we get, and we've had it a number of times, is, “That's not the way we do things around here.” And the same is true for bylaws made under the act.

The first reaction of someone from southern Canada.... Let's say I held an act out in front of one of my MPPs, or my MLAs, or one of you guys, and I said, “How come this is not happening?” If you replied, “That's not how we do things”, I'd be pretty mad. I'd say, “But that's how you should be doing them. It's the law.”

But we're in a different context here. We're in a situation where the Cree and the Naskapi have had traditional and customary law for thousands of years. The Cree-Naskapi (of Quebec) Act and the bylaws made under it are supposed to be a way to give legal effect, in the Canadian legal system, to making community decisions that are approved by the community and are within the powers of the community.

If you look at the election sections of the act, most communities have made an election bylaw. When we began to look at them--because a lot of disputes are about elections--we saw that one day, along came the Cree-Naskapi (of Quebec) Act, and it was, “Oh, we have to have an election bylaw.”

It was fairly obvious that some lawyer from southern Canada--with all due respect--opened up the briefcase, said, “Aha! An election bylaw”, changed a few names and a few things in a few places, and there it was, there was the template.

There's nothing wrong with that. It had to be done. But the reality is that things operate a little differently in the community. It's not that there's any moral violation of the law, it's just that the technicalities are more consistent with traditional and customary law, such as postponing an election for a day if an elder dies. That's not permitted in the act. That's an example anybody can follow, but there are a lot of other similar things.

One of the things we've been pushing at for years is the need to make the law accommodate and empower the Cree way of doing things, while still being consistent with the charter and so on, to make it a tool for the communities to use, so that when the community decides to do something, then it's a legitimate decision. There's legislative capacity to give that effect and to protect it from attack from people who want to argue that the election was a day late and therefore invalid.

I think the problem very frequently is that the act doesn't sufficiently empower the communities. With all due respect, it's a great improvement over the Indian Act, but it suffers from some of the same straitjacket effect that the Indian Act has always imposed.

That's inevitable. It was written, yes, with negotiation, but it was ultimately written by people who have written for years such things as the Indian Act. There's a need to break out of that box, to make sure that traditional and customary law, to the extent possible....

We all recognize the charter, the Criminal Code, and the other instruments that we all respect and share. But within those contexts, there's a need to make this act a tool of empowerment for the Cree community so that they can get on with doing things.

I'm sorry I took a little long, Mr. Chair.

[The Chair, Conservative, Bruce Stanton]

There's less than a minute left. You mentioned that you wanted some time for Commissioner Awashish to answer as well.

We're just about out of time, but a brief response to Madam Crowder's question would be fine.

[Philip Awashish]

Thank you.

On the question of traditional law, being a Cree person myself--we call ourselves Eeyou--we are not, of course, a lawless society. We have our own laws that are enunciated through our traditions, customs, and practices. We do have our laws for elections and for other matters in the Cree community.

These traditional laws, as I like to call them, often conflict with the contemporary law, such as the Cree-Naskapi (of Quebec) Act, so there is obviously a need to amend the act to ensure conformity with traditional law, customs, and practices.

The Cree tend to view a law, at least within our own traditions, as a tool rather than a set of rules. It's a tool to facilitate decision-making processes, as well as facilitate local governments and also the Cree hunters and trappers in the north.

There are ways, of course, to enhance local government. I believe the Royal Commission on Aboriginal Peoples stated that there are three basic elements for effective local governments. One is legitimacy, the other one is resources, and the third one is powers.

On resources, there has been ongoing and still continuing discussions between the Cree and the local government authorities on financial resources, financing or funding of local governments. There are agreements that run every five years that have to be renewed every five years. Recently, this has been acceptable to the Cree. There were initially a lot of problems and issues arising in our reports concerning the funding of local governments. However, there is a new relationship between the Cree and Canada, so there are ongoing discussions to resolve matters concerning local governments, insofar as funding is concerned.

[The Chair, Conservative, Bruce Stanton]

Thank you, Commissioner. I'm sorry, we are well over time. If there's something you wanted to add, perhaps you can do so in the course of our next responses.

Thank you, Ms. Crowder.

We'll now go to Mr. Duncan for seven minutes.

[John Duncan, Conservative, Vancouver Island North, BC]

Good morning, witnesses.

You've been wrestling with this for a long time. There was a comment about the Naskapi, and I wanted to clarify. My understanding is the Naskapi have put in writing their support for this bill.

Is that your understanding as well?

[Richard Saunders]

My understanding from the Cree office is that they have, indeed.

[John Duncan, Conservative, Vancouver Island North, BC]

In the new relationship document, there is an understanding, as I read it, that there are two phases. There are amendments, which we're currently looking at in Bill C-28, and then there's an agreement to negotiate a governance agreement that would include a Cree constitution and a Cree Nation government. You've certainly been talking about that phase two.

Now, the Province of Quebec is obviously jurisdictionally involved to some significant degree, so I guess my question is, how is the relationship going in terms of negotiations with Canada and Quebec, and is there any other Inuit or first nation that would be directly impacted that's outside of the current ambit?

[Richard Saunders]

You raised a couple of points. First of all, the concern we brought up relates directly to what you're saying. There are a couple of phases. There are the amendments that are before the House now, and then there's a second, as you say, series of discussions established by the agreement to discuss governance and a Cree constitution and things of that sort. A great many issues, hopefully, will be covered there and addressed.

Our concern isn't with those extra things. Our concern is with the housekeeping issues that have been kicking around for twenty-odd years and the fact that they're not dealt with now. They're non-contentious. They're pretty straightforward. Nobody's arguing about them. They could have been included in the package and we could have moved on and looked at future things.

Our concern is that they're going to have to wait until there's a full set of negotiations on governance issues in the broader and long-term sense. They may not be before this committee and the House for some time. We all know how long these negotiations frequently take.

Our concern is that these non-contentious housekeeping things are going to keep on festering until there's broad agreement on much longer-term issues, and that may take some time. We're not upset and angry. We're just a bit disappointed. We really would like to have seen those housekeeping things in front of you now so they could be addressed.

Are other aboriginal groups impacted? I would say no, not directly. The Inuit of Fort George, for example, as they're referred to in the agreement, have their issues addressed. They reside in Robert's community, and the issues that they have are addressed, or will be addressed. We haven't had any representations from anybody else who is raising concerns. I'm sure that we'll hear about it if there are concerns, but we haven't heard any yet.

[John Duncan, Conservative, Vancouver Island North, BC]

Okay.

The new relationship agreement also contemplates a dispute resolution mechanism, or actually establishes a new Canada-Cree Standing Liaison Committee. I'm wondering if you can tell us the state of this, at this point in time, and whether there's been any progress within that structure.

[Philip Awashish]

The Cree-Canada liaison committee was established to discuss any outstanding issues resulting from the implementation of the James Bay and Northern Quebec Agreement and from the implementation of the new agreement between the Cree and Canada concerning a new relationship.

This is a form of a dispute resolution mechanism. It was created mainly as a means of preventing further litigation. The parties agreed, to the extent that they possibly could, to try to resolve any disputes at that level.

The agreement is a new one. It's fairly recent. It was signed in 2008. There haven't yet been, to my knowledge, any outstanding issues arising from the new agreement.

But there are outstanding issues arising from the original James Bay and Northern Quebec Agreement. One, of course, is the Ouje-Bougoumou land transfer issue. It's something that will have to be discussed, because it requires, as I said, an amendment to the original James Bay and Northern Quebec Agreement.