Indigenous and Northern Affairs Committee on May 14th, 2009

[The Vice-Chair, Liberal, Todd Russell]

My name is Todd Russell. I'm vice-chair and I'll be filling in for our chair, Mr. Stanton, for a short period of time.

On the order paper today is BillC-28, An Act to amend the Cree-Naskapi (of Quebec) Act.

Witnesses appearing today for the Grand Council of the Crees are Bill Namagoose, executive director; Brian Craik, director, federal relations; Denis Blanchette, legal counsel, Gowlings Montreal; Pierre Pilote, legal counsel, Gowlings Montreal; and on behalf of the Oujé-Bougoumou First Nation, James O'Reilly, legal counsel.

I welcome you all here this morning. We look forward to your comments. I believe you've already been informed that because of the joint presentation we will allow about 20 minutes for you to speak in whatever order you please and to present as you wish.

I welcome the first speaker.

[Bill Namagoose, Executive Director, Grand Council of the Crees]

[Witness speaks in Cree]

First, I'd like to thank the members for this opportunity to speak in favour of Bill C-28. We are delighted that Bill C-28 received all-party support in the House of Commons on May 7 and was referred to the standing committee.

The amendments contained in this proposed legislation comply with those that it was agreed would be recommended in the 2008 Canada-Cree New Relationship Agreement. The amendments will put the Cree community of Oujé-Bougoumou on the same footing as the other Cree communities with respect to local governance, as was agreed to with both Canada and Quebec, and the amendments will bring about an evolution of Cree governance structures from those originally recognized and agreed to in the 1975 James Bay and Northern Quebec Agreement.

The Cree community of Oujé-Bougoumou is composed of the families of Crees who once were known as the Doré Lake Crees and who, at the time of the negotiation of the James Bay and Northern Quebec Agreement, had been forced by mining development to relocate to other Cree communities and to camps around the region of the town of Chibougamau.

At that time in the early 1970s, the parties to the James Bay and Northern Quebec Agreement—the Crees, Canada, and Quebec—agreed to provide a just settlement for this community through subsequent discussions. These discussions culminated in the agreement in 1989 between Oujé-Bougoumou and Quebec and the Oujé-Bougoumou/Canada Agreement of 1992. Both these agreements dealt primarily with the long overdue construction of the community of Oujé-Bougoumou, but also provided for the integration of the Crees of Oujé-Bougoumou into the James Bay and Northern Quebec Agreement.

However, several issues and controversies remained outstanding. In 1993, the Crees of Oujé-Bougoumou instituted distinct legal actions against Canada and Quebec respecting their aboriginal rights, their status, breach of trust by Canada and Quebec, and claims for damages, including those from the forced relocations.

Resolution of these claims with respect to Quebec was provided for in the Paix des braves agreement signed with the Government of Quebec in 2002. An out-of-court settlement was reached with Canada in 2008, pursuant to the Canada-Cree New Relationship Agreement. The Oujé-Bougoumou/Canada Agreement of 1992 contemplates specific amendments to the Cree-Naskapi (of Quebec) Act respecting Oujé-Bougoumou, and Bill C-28 satisfies this important undertaking of Canada.

The Cree governance structures set out in the James Bay and Northern Quebec Agreement provided for the setting-up of a Cree Regional Authority under provincial legislation to oversee certain Cree responsibilities in respect to Cree involvement in regional governance and in regard to matters delegated to it by the Cree communities. Provisions in section 9 of the James Bay and Northern Quebec Agreement also provided for the incorporation of the Cree communities in federal legislation distinct from the Indian Act. The resulting Cree-Naskapi (of Quebec) Act was the first local self-government legislation for aboriginal peoples in Canada, and it broke from the colonial tradition of the Indian Act.

The Cree-Naskapi (of Quebec) Act was passed by Parliament in 1984 after several years of discussion between the parties and consultations with the Cree communities and the Naskapi Band. With great difficulty, a new funding regime was eventually put in place by Canada that was compatible with the assumption by the Cree communities of new responsibilities in respect to the planning priorities for their development and administration.

After adoption of the act, and to the present day, the Grand Council of the Crees of Quebec/Cree Regional Authority has acted as a forum for the concerted implementation of the act. It also continues to be the guarantor and protector of Cree rights. While the act opened the door for the assumption by the Cree communities of certain responsibilities concerning their development, there were still many aspects of the James Bay and Northern Quebec Agreement that had not been properly implemented by Quebec and Canada.

It was the announcement by Quebec of its intention to build further hydroelectric development projects in the territory—and particularly the Great Whale hydroelectric project—that sparked the Crees in 1989 to take out a comprehensive court action that sought to stop the proposed developments and also sought the implementation of those numerous aspects of the James Bay and Northern Quebec Agreement that had not been implemented by Canada and Quebec.

Without going into the details of the 1990s struggle of the Cree Nation, suffice it to say that in 2002 the Quebec-Cree new relationship agreement, also known as the Paix des braves, settled certain legal disputes between the Crees and Quebec. It also resolved immediate issues concerning certain hydroelectric developments and set a clear example for Canada with regard to the implementation of some of its obligations to the Crees under the same 1975 James Bay and Northern Quebec Treaty.

Under the Paix des braves, the Crees assumed responsibilities for certain of Quebec’s obligations under the 1975 James Bay and Northern Quebec Agreement, and Quebec provided for the funding related to this for a period of 50 years. This largely resolved the lack of congruity between Quebec's priorities and programs and those of the Crees, which had largely been the cause of the legal disputes.

When Canada and the Crees entered into out-of-court discussions from 2005 to 2008, this model of devolving to the Crees the planning and setting of priorities for the certain of the obligations that were in dispute was found to be adaptable to the issues between the parties. However, Canada went further in accepting the Cree view that it was time once again for another step in the evolution of Cree government structures and responsibilities.

The last two whereas clauses of the Canada-Cree Agreement of 2008 state:

WHEREAS the Cree Nation and Canada seek to improve implementation of the James Bay and Northern Québec Agreement, to provide for the assumption by the Cree Nation of greater responsibility for Cree economic and community development, to provide for the achievement of increased autonomy, and to better respond to the traditions and needs of the Crees by ensuring that decisions respecting the Cree Nation will be made at a regional level; WHEREAS the Cree Nation and Canada have been working and will continue to work cooperatively towards an agreement and conforming federal legislation relating to a Cree Nation Government with powers and authorities, to be negotiated, beyond the scope of the Cree-Naskapi (of Quebec) Act;

Chapter 3 of the agreement also states a two-part program for the evolution of Cree governance. It states:

The purpose of this Chapter is twofold: a. As a first step, Part 1, in order to better enable the CRA to receive and carry out the Assumed Federal JBNQA Responsibilities (as listed in Section 4.3 of this Agreement), to equip the CRA with by-law-making powers similar to those of the Cree bands under the CNQA, through proposed amendments to that Act; b. As a second step, in Part 2, to set out a process for negotiations leading to a Governance Agreement, Governance Legislation and possible amendments to the JBNQA and to the CNQA concerning a Cree Nation Government with powers and authorities beyond the scope of the CNQA and its amendments in Part 1 of this Chapter. Such negotiations, if successful, would expand Cree Nation governance beyond the CNQA powers by establishing the structures and powers of a Cree Nation Government and the relationship of such Government with Cree bands and federal and provincial governments.

The amendments before you today in Bill C-28 accomplish part 1 of this program and are set out in chapter 3 of the new agreement. The discussions on part 2 are beginning, with the involvement of Canada, Quebec and the Crees. The intention is to present a new Cree Nation governance law for your consideration within three to five years.

In brief, the phase one amendments call for a recognition in the law of the following powers of the Cree Regional Authority: one, to pass bylaws that have force in the Cree communities and to provide for their public availability, and to provide for the passage of standards that exceed federal and provincial standards; two, these bylaws would include central sanitation services, housing, building use for regional governance, fire departments, protection of the environment, including natural resources; three, to manage funding and assets; four, to promote the welfare of the Crees and the Cree Bands; five, to preserve Cree culture, values and traditions; six, to assume certain federal responsibilities as may be agreed to; and finally, to empower the Eeyou-Eenou police force on category 1 lands.

Moreover, the agreement calls for Canada to consult the Crees on the amendments contained in Bill C-28. Canada has done this, and we are satisfied that the requirements of the agreement will be met by the proposed amendments, once passed by Parliament.

In fact, we commend the representatives at the Department of Justice for the courteous and insightful manner in which they have carried out their work in consultation with us. Moreover, both Canada and the Crees have consulted the Inuit through their representative organization, the Makivik Corporation, and also both parties have consulted the Naskapi Band. From both the Inuit and the Naskapi Band, we have received assurances that they accept and do not object to the amendments and that their rights are rendered safe and untouched by them.

We are pleased to answer any questions you may have.

First of all, Mr. Chair, I bring greetings from Grand Chief Matthew Mukash and Deputy Grand Chief Ashley Iserhoff. They were unable to make it today because they are practising their traditional way of life on the land, goose hunting. It's that time of year in our nation. Chief Louise Wapachee is out on the land also practising a traditional way of life. Some of us get to preserve our culture, and so I'm here on their behalf.

Also, as you know, Oujé-Bougoumou is part of the Cree Nation. James O'Reilly may have some comments with respect to this presentation.

[The Vice-Chair, Liberal, Todd Russell]

Thank you, Mr. Namagoose.

We'll hear from Mr. O'Reilly.

[James A. O'Reilly, Legal Counsel, Oujé-Bougoumou First Nation]

Thank you very much, Mr. Chairman.

It has been a long time since I've been before the Standing Committee on Aboriginal Affairs. I've been working as a lawyer in regard to various Indian rights and claims for 43 years now. I was involved with the James Bay and Northern Quebec Agreement. Prior to that I had quite a huge battle with the Quebec government, the federal government, and Hydro-Québec.

This is a culmination of a very long quest for the Crees of Oujé-Bougoumou. As Mr. Namagoose has just told you, Chief Wapachee and Mr. Abel Bosum, who was chief for quite a while during the long trek, are out practising their traditional way of life. Unfortunately, you just have me as the witness for Oujé-Bougoumou. But I have been intimately involved in virtually every step of the way since the early 1980s.

It's not often that I can commend the justice department, because I've been locked in vicious battles with Canada throughout the land, in litigation in particular. In this instance, certainly in the last number of years, there has been exemplary cooperation. I point this out to your committee because sometimes, if the initiative were to come from Canada rather than having to come all the time from the aboriginal peoples, you might be amazed at the results.

Often Canada has a defensive position because it's attacked in court. Usually people go to court because they just can't come to agreements or compromises, because the parties are too far apart in principle. I suggest to your committee, in its work, that you consider asking the Department of Justice whether it shouldn't be taking a real advocacy role far more often. By advocacy role, I mean initiating the process. Don't wait for the aboriginal peoples, and for people to say, “Well, we're too far apart.” That's a personal recommendation that I've been wanting to make for a long time.

This is an example. The Oujé-Bougoumou were scattered throughout northern Quebec.

I believe that the Bloc Québécois members are the ones most concerned here because this involves their territory. They know that none of these battles were easy.

No one recognized them — except for the Cree Nation. Since the 1980s, they have made tremendous efforts to integrate themselves, to fit under the James Bay and Northern Quebec Agreement, along with their brothers and sisters from the other communities.

In terminating, I want to thank, this very rare time, the lawyers from the Department of Justice and the external lawyer, Ms. Deborah Corber, whom the Department of Justice hired. These were tough technical positions to have to try to refine in legalese, or legal language, but they accomplished it, and in a cooperative spirit. Maybe this is a new dawn, as I'm about to trod off to other areas, but certainly I think that one of the keys to better solutions for relationships between Canada and the aboriginal peoples of Canada is a cooperative spirit, which is exemplified here, in regard to the Department of Justice and the Government of Canada as a whole.

With that, and reiterating what Mr. Namagoose has said in his presentation, I will say that Oujé-Bougoumou is strongly in favour of Bill C-28 . Have no doubt about it, they've been wanting to have this day come--and the day when Bill C-28 will be, hopefully, proclaimed into law--for a long time. The complementary agreement is virtually finished. You see the parallel in the complementary agreement and Bill C-28. Parliament will have the chance, when it is filed in Parliament, for approval through a negative resolution to review the complementary agreement if there are any concerns whatsoever with it.

Thank you very much, Mr. Chairman. It is indeed a pleasure to come back.

[The Vice-Chair, Liberal, Todd Russell]

Thank you, Mr. O'Reilly. It's a pleasure to have your word shared with us. Indeed, it is a rare occasion when the Department of Justice gets such a resounding endorsement. It speaks to the process that has been undertaken on this particular bill.

Thank you, Mr. Namagoose, as well. We hope that the grand chief and the others have happy hunting. I'm sure there will be goose on Sunday, maybe for many.

We will go to our first round of questions. The way it will work is that it's seven minutes both for the questioner and for the response. Each party will have seven minutes on the first round, and if we get a chance to go to the second round, the questions will be for five minutes.

So we will start with the Liberal party. Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I appreciate your endorsement of the bill. I just want to ask about something that came up in previous testimony, and that was a number of administrative concerns that have been asked for, for--I can't remember now--10 to 15 years, and haven't been incorporated. The request was that there be a commitment within a year from Indian and Northern Affairs to deal with those. If that does not happen, should we try to incorporate them in this process?

Anyone who wants to can answer that.

[Bill Namagoose]

Yes, there is a commitment from the Department of Indian Affairs that we would deal with those amendments as called for by the Cree-Naskapi Commission. We have a process established for the Department of Indian and Northern Affairs, the Naskapi, and the Cree.

So there is a process that will come back and bring amendments again to this, but we feel that Bill C-28 should be passed as is. There is a process established to take care of those amendments, and it will take some time to agree amongst ourselves on how those administrative amendments should be. I think it had to do with referendums and borrowing bylaws. We will take care of those, yes.

[Larry Bagnell, Liberal, Yukon, YT]

Good. I'm very glad that you are confident it is proceeding.

Mr. O'Reilly, that was a very interesting comment, the systems comment related to justice and advocacy. I think there are some serious system things that we can discuss. I'd be happy if any of the witnesses want to comment on them, but as an example, I think we have improved specific claims in the sense that now there's an independent arbitrator who will deal with them. But as for those particular types of issues, I don't think we have yet dealt with them in comprehensive land claims or in implementation of land claims. They are still seated in a department that has a zillion other things to do. Obviously, when you have two parties negotiating and then the judge of the result is one of those parties, that doesn't make any sense, but that is our present system.

So to at least have Justice as an independent arbitrator is one step. I wonder if any of the witnesses--because we don't often get a chance to see you--have any comments on the structure of those negotiations or any other types of processes within the department or within the federal government that might be changed.

[James A. O'Reilly]

Thank you.

If I may respond, Mr. Chairman, I have thought about this for a long time. I worked on a committee in 1989 for the Canadian Bar Association. As I've said often, there isn't equal justice for Indian people in Canada.

You point to a very fundamental problem in regard to land claims--what they call land claims or land rights. I think the tribunal will help, although I think there are some real problems about getting it started. But what happens is that in the United States there had been this idea that a department of the government should in effect advocate the interests and rights of aboriginal peoples even within the department. You know that the courts have said, okay, the crown wears many hats. Fine, but why can't one of those hats be a specific group whose job, whose vocation, is to take the side of the Indian people with the rest of the crown, with the rest of the government?

The crown is the defendant in litigation. I've had a lot of experience in this. Fine, it will keep all of its rights, its recourses, its remedies. The battle will be there. But when it comes time for negotiation, there seems to be a great difficulty to have anybody acknowledge that compromises must be found, that there must be reconciliation.

How does this great reconciliation principle get applied in practice? That is one of your most fundamental problems, and I think it will happen by asking somebody in the department--not necessarily even an ombudsman, just somebody in government who's charged with initiating this reconciliation or trying to reconcile this. That would be my suggestion to the committee.

[The Vice-Chair, Liberal, Todd Russell]

Would anybody else like to comment?

[Bill Namagoose]

Yes, in our negotiations on the implementation of the James Bay and Northern Quebec Agreement, even though it was not a land claim agreement but the implementation, we went through seven negotiators from the federal side from 1990 on. It was only when the federal government brought Raymond Chrétien to the negotiating table that the atmosphere changed. Prior to that, the federal government took a defence lawyer's type of position in the negotiations on implementation. Raymond Chrétien took a problem-solving approach. That changed the whole dynamics for negotiations.

If Canada sends negotiators to the table to act as defence lawyers, of course there will be no agreement. But if Canada sends negotiators with a mandate to solve the problem, then we will have agreements such as this.

[The Vice-Chair, Liberal, Todd Russell]

Thank you.

You have about a minute and a half left.

[Larry Bagnell, Liberal, Yukon, YT]

You've pointed out two problems. One is this. For people who don't know, there's a conference going on right now with all the modern treaty bands in Canada, the first nations, and the only reason it's going on is because of their problems with implementation and people not following up. One of the things they keep mentioning is, as you said, the change-over in negotiators; the federal government keeps changing negotiators. One discussion has been going for 10 years, and then you get a new negotiator.

The other one is, as you said, that if you're sending defence lawyers, why, when you're doing an implementation problem—it's already a signed agreement, and you're just doing a rule of law thing—don't you have someone independent?

Does anyone else want to comment on any of those issues?

[Bill Namagoose]

Yes, the commitments are there in the agreement; you just need a mechanism or means to implement them. That's what we've done with this agreement. In this agreement, there was a transfer of the treaty obligations of Canada to the Crees. The problem has been transferred to the Cree Nation government, so we will carry out those treaty obligations.

That's the way we see self-governance. You cannot ask for self-governance and then ask the federal government to do something for you. You have to set up a structure and means, with the proper resources, to do it yourself. That's the way we've approached it.

[The Vice-Chair, Liberal, Todd Russell]

Thank you.

That will end the first round. We'll move to the Bloc Québécois and Mr. Lévesque.

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

Welcome, gentlemen.

If there is a man who is proud of the Cree Nation, he owes much of this pride to those who represented it. I have known Mr. O'Reilly for quite some time. I have also met with Bill a few times. I am a little disappointed at not seeing Louise here, this morning.

It is however rather difficult to follow the evolution of this file. One must really have participated in it to truly understand. Today, in Oujé-Bougoumou, some people are saying that they are on the Mistissini territory. Nothing will budge unless the government of Quebec cedes this territory to the federal government. That would provide a solution to the problem. I would like you to explain the situation to us.

[James A. O'Reilly]

Mr. Chairman, with your permission, I would provide the following explanation.

Under the agreements between the Oujé-Bougamou and Quebec in 1989 and 1992, it was established that in order to make room for Oujé-Bougoumou, those who were considered to be Mistissini at the signing of the James Bay and Northern Quebec Agreement would henceforth be considered as belonging to the Oujé-Bougoumou, and that on that basis certain lands would be taken from the Mistissini, with their accord, in order to be annexed to Oujé-Bougoumou.

Over time, it became known that the Mistissini had other problems. There was not complete agreement as to when all of this was to take place. The government of Quebec therefore accepted that these lands not be withdrawn from the Mistissini and that that community take the time it needed to resolve these problems. It was agreed that if an agreement were eventually reached, the parties would meet once again.

As we speak — and this is the basis for this Bill —, these lands have not been withdrawn from the Mistissini, this community has maintained all of its rights and remedies, and Quebec has accepted to give the government of Canada the 100 km² of category 1A lands. Therefore, if the Mistissini problems are resolved, there will be no transfer. Oujé-Bougoumou will officially have the use of category 1A lands, and the issue will have been resolved once and for all.

Thus, the Oujé-Bougoumou situation will have been resolved, but without causing the slightest injury to the Mistissini. At one time, there was some compatibility between the parties. The Mistissini even participated in the discussions. However, they wanted to resolve certain problems which, I recognize, were very important. It remains that it was their choice. The Oujé-Bougoumou and the Grand Council declared that they had been waiting since the 1980s and that they could not wait another 5, 10 or 15 years. I think that it was very fair for everyone.

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

We know that the Mistissini, Oujé-Bougoumou and Waswanipi communities are very dynamic economically and that they work alongside non-Aboriginals. In this situation, the Oujé-Bougoumou community was slightly more anaemic because it did not have very much room.

I really have the impression that a partnership between Aboriginals and non-Aboriginals is going to develop and that agreements will be made. Of course, there is some racism, and sometimes there is too much of it, but it is our hope that it will abate, with the participation of more and more Cree.

Are the 100 km² sufficient for these nations to develop their economy? What had been envisaged when these agreements were negotiated?

[James A. O'Reilly]

There are 100 km² of category 1A land, 67 km² of category 1B land and there will be more than 2,000 km² of category 2 land. Furthermore, by integrating the James Bay and Northern Quebec Agreement, these people will enjoy all of the rights that the other Cree have on category 3 lands. They will be able to continue to hunt and trap. They already enjoy the provisions of the Paix des Braves and the agreement between Canada and the Cree that Bill C-28 refers to.

In my view, this will provide greater security to everyone. At the present time, we can consider that these people still have their ancestral rights and that they are still a nation. Neither the non-Aboriginals nor the Aboriginals know where they stand. With this, it will be clear that these people fall under the James Bay and Northern Quebec Agreement. I believe that with the security thus being offered to everyone in the region, economic development opportunities will grow considerably.

[The Vice-Chair, Liberal, Todd Russell]

You have 30 seconds, Mr. Lévesque.

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

I wish to take this opportunity to thank you. I do not have enough time left to pursue this any further, but we will probably have the opportunity to speak again. Congratulations for your initiative.

[The Vice-Chair, Liberal, Todd Russell]

And now we'll turn to Ms. Crowder, with the NDP, for seven minutes.

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

Thanks, Mr. Chair.

I want to thank you for coming before the committee today. This is an important bill. I know when the chair of the commission came before the committee he talked about the fact that it took 19 years to get to this place, but that in the last couple of years things had really been expedited.

I want to touch on a couple of things. One is that, Mr. Namagoose, in your speech you talked about the intention being to present a new Cree governance law for your consideration within three to five years. I wonder if you could talk a little bit about the process that's in place, because given that it took us 19 years to get to this point, I think it's important that we have on record the process that's in place, the plan, the timeframe, and the degree of confidence that you have in reaching that next stage, because I don't think any of us here wants to see another 19 years pass before the next round of amendments comes.

My understanding is that when the chair of the Cree-Naskapi Commission was before the committee, he said that the amendments were largely non-contentious from the Cree side. So I wonder if you could speak to that specifically.

[Bill Namagoose]

Yes, thank you.

I think you're referring to the undertaking we have with respect to governance negotiations of an agreement and eventually legislation. That process is now under way. The federal government has appointed Senator Jean Bazin from Montreal to be its chief federal negotiator. We are having meetings with him now. That process has started. The Quebec government is also to be invited to these tripartite negotiations. They have recently appointed Judge René Dussault, former chairman of the Royal Commission on Aboriginal Peoples. He will be the Quebec government negotiator. He's a very eminent person, and we welcome that appointment.

So all the parties now are present at the table to negotiate the Cree Nation governance agreement. However, there is a Cree-federal process. Our position is that if there is an agreement with the federal government on governance, through an agreement or legislation, then that process should be allowed to proceed, even without the participation of Quebec. On the other hand, if we have an agreement on governance with respect to the Quebec government on areas of Quebec jurisdiction, then that agreement and that process should be allowed to proceed, even if the federal government is not ready to be part of that agreement.

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

So you could have two parallel processes happening in respective jurisdictions?