The Cree-Naskapi Commission is putting on a new face in this year’s report to the federal government. The report starts off talking about the limited resources that the commission has had to deal with. Perhaps one of the most serious for the Crees is the inability to do detailed follow-ups to commission decisions.
Later, the meat of the report deals with the inadequacies of the governments when dealing with First Nations. The commission says government bureaucrats don’t understand or agree with the government’s directions, don’t know the difference between obligations and funding priorities, and that senior officials are unaware of recent decisions by the Supreme Court of Canada. This latest report says the government bureaucracy is limited to its own views and lacks of consideration of other perspectives. As a result, the commission says the “credibility of ministerial undertakings when dealing with First Nations is minimal.”
In a daring move, the commission says three things are needed: a Court of Aboriginal and Treaty Rights since this area of law will be active and in transition for the next 10 to 20 years; a Treaty Implementation Secretariat to ensure that obligations and treaties are implemented and enforced; and a Treaty Implementation Act to oversee financial aspects of treaties as well as incorporating some of the new court decisions in a way that would allow a more disciplined and open process in negotiations.
The commission touched on many other issues and below are excerpts from an interview with the three Cree-Naskapi Commissioners: chairman Richard Saunders, commissioners Philip Awashish and Robert Kanatewat.
The Netlon: You’ve talked about the lack of |ust about everything In your report. Is fbdng this going to be a priority for the commission?
Richard Saunders; Well, these are certainly problems that will have to be solved. In order to do our jobs properly we have to be able to be accountable to the communities, to get adequate input from the communities, we have to have proper research, proper legal advice. Those things have to be done if you expect us to do our |ob properly.
Lattr on In the report you talk about how tha bureaucratic structure doesn’t see fulfilling these types of obligations with adequate funding. Wouldn’t you have to educate first?
Saunders: I think educating bureaucrats is certainly a challenge. We had a meeting with the Minister (of Indian Affairs) and we
raised the issue of adequate funding. (Grand Chief) Matthew Coon Come attended the meeting and he raised it also. We’ll have to see what happens.
You did mention there was a new attitude from the top down, starting wtth Indian Affairs Minister Jane Stewart. Do you feel this will help In making changes?
Saunders: The minister has good intentions but she isn’t the first one. If she is going to make changes at a practical level such as implementing the outstanding obligations under the James Bay and Northern Quebec Agreement; if she is going to translate the good intentions into anything practical — then she is going to have to be minister for a while. Not the revolving door where we see a new minister every couple of years. She’ll need proper resources because you can’t fulfill your obligations if you haven’t got the money. And she’s going to have to change the attitudes of her bureaucrats from stonewalling the Cree, Naskapi and other First Nations across the country to one of cooperation and fulfillment of obligations. That’s a big challenge. I’m not sure that’s going to happen. We’ll have to wait and see.
Philip Awashish: The report is directed to the government. What we have to say may not be news to the Crees or the Grand Council, but it will certainly be to the Department of Indian Affairs. We hope the report will stimulate discussions. We don’t want the report to simply be tabled in the House of Commons and then forgotten as the first five reports were. We feel the present government has to evolve along with the present realities. As you know the Cree-Naskapi Act hasn’t been amended despite the recommendations of the commission in Its first five reports.
Our mandate has evolved over the years. The communities have interpreted our mandate to be broad themselves. They consider us a place where they can voice their concerns on the Implementation of the JBNQA and other agreements, for example. People do not restrict themselves to local government problems or the Cree-Naskapi Act. This would be a chance for the federal government to provide a forum where people could talk about the implementation of agreements and acts. We feel the commission has gone a little way in achieving that objective.
The adequate funding of the commission is a big problem. In the act it is implicit thatthe minister is responsible for implementing the act and, as the commission, we reporton the implementation of that act. We are concerned that the department
not only continues to fund us but that we receive sufficient funding so we can work effectively. In order to work effectively it’s clear the role and mandates of the commission need to be reviewed and substantially modified so we can provide an effective role in the evolution of Cree government.
As an advisory body we cannot make binding recommendations. We feel the government should act on the recommendations and simply not neglect them.
When you talk about a modified role for the commission, would we be talking about not only mediation but giving the commission more teeth?
Awashish: Well, that would be the primary objective, the commission having more teeth, as they say. It’s evident it has to go beyond being an advisory body. The Cree and the Naskapi want to be able to influence policy at the government levels. Policies respecting the evolution of local government.
Robert Kanatewat: One of the things you mentioned from the start was the change. The fact is that before, in the previous reports where we got some criticism from different parties, we never did any follow-up. With our sixth report we felt something had to be done. Either from us or from the Crees’ side or from the government side. More or less it was us who got pointed out to do something from our end.
Most of the time, Native people as a whole are not aware of the commission and what its functions are. This is part of why you seen a change a style for the commission.
A lot of people just ignored the previous reports after they made their comments andthen put them on the self. We thought we would be able to do something and do follow-ups. There are concerns that the quorums are too high for some of these communities. This and other things are ignored in the reports every time. A lot of these things could be resolved. The minister seemed to see that. We also said they didn’t have to wait to make amendments to the Cree-Naskapi Act while the Indian Act was being amended.
Saunders: Let me add one thing while we’re still on the topic of role expansion. Over the past 12 years we’ve said that we’ll only investigate things under the act. The communities have saying a lot of the things don’t rise directly out of the act, but they arise more out of the JBNQA and the Eastern James Bay Agreement. We commissioners have had a look at the act line by line in some detail again to see if there’s a bit more room in the mandate, and we’ve concluded there’s some for a more active role.
As an example, one part says the commission shall investigate any representation given to it relating to the implementation of the act, including representations relating to the exercise or non-exercise of a power under the act and the performance or non-performance of a duty. That means the whole Act so we went back to Section 21 ,J, which outlines the objects of the Band. It says the object of the Band is too exercise the powers and carry out the duties conferred or imposed on the Band by any Act of Parliament or any regulations made thereunder and by the agreements.
So even within the legislation, even if you take a narrow view, there’s some room fordealing with issues coming out of the agreements themselves. If a Band under theagreement has certain powers and duties but they’ve never been funded to do those thingsthat’s an issue we could consider because the objects as defined in the act are not being carried out. This is expansion of a sort but it doesn’t mean that amendments are not needed. Changes are needed.
In your proposed expanded role you’re looking at making the commission a quasijudicial body with the proper complaint procedures. Would this include being able to fine the Feds or the Bands for not complying with the act?
Saunders: I don’t think so. It would be the powers statutory tribunals have requiring people, including the government, to provide information they may be reluctant to provide, to require people to answer questions relating to their responsibilities. Other commissions have made binding decisions, which can be appealed. This would be helpful.
What If the federal government just chose to ignore a binding decision?
Saunders: Then the First Nations could take the government to court and seek to have it enforced, but that wouldn’t be our responsibility. I would like to say the three of us have not discussed this in this level of detail. I’m just fantasizing at the moment.
The commission talks about three steps that have to be taken. The creation of a Treaty Implementation Secretariat, a Treaty Implementation Act, and a Court of Aboriginal and Treaty Rights. These are three very interesting concepts. How did the minister receive them?
Saunders: When we met with the Minister, for the most part the discussion was aboutfunding the commission and whether we would be able to survive and do our work forthe next six months. At this point we haven’t talked about the bulk of the report. We certainly hope to meet with her and some of her senior officials later if we’re still around and functioning. We hope to discuss it at the community level with the Cree and Naskapi if we have the resources to do so also. We can’t just make a bunch of recommendations and then go off home and not be accountable in any way for what we’re saying. We need to tell the minister what we mean.
Kanatewat: After a number of years we know what we’re talking about when we ask for these things.
Awashish: Robert mentioned the experience of the last 20 years. You are looking at implementation problems of these agreements. One begins to look at how the Cree and Naskapi people have responded to the government’s failure to respect obligations under these agreements. As a last resort First Nations have
had to use litigation. There is a gap between the Cree-Naskapi and federal government. They disagree on implementing the acts and agreements. There have to be certain options available to the Cree-Naskapi communities in seeing that these agreements are being implemented properly and in the spirit in which they were made. The fact is the present bureaucracies sent up by the government seem to circumvent the process, according to the Cree and Naskapi people we have met. When I say circumvent I mean to drag on discussions so there is no resolution in sight. We stress the fact that we are looking at an independent secretariat, separate from the government or at least Indian Affairs.
The minister is also aware the department isn’t the only recipient of our report.
The commission Is very critical of the bureaucracy and bureaucrats?
Saunders: One of the problems is government is set up to consider policy options. It’s set up to consider expenditure priorities. It’s set up to exercise discretion because they’re elected and run by people who work for them. They feel they have the discretion to decide on policy and spending. That’s fine for most areas of government but once you enter into a land-claims settlement, agreements, treaties, then implementing that is no longer a matter of making choices, exercising discretion or doing what you what to do. It’s a matter of carrying out your lawful obligations. But the difficulty is when you have a bunch of departments whose primary duty is making discretionary choices, they tend to treat lawful obligations as discretionary when they’re not. That’s the problem as we see it.
In terms of the bureaucrats themselves, the minister has made some fairly decentintentions in her agenda and policy statements. That’s all good stuff. The problemis the bureaucrats know ministers come
and then they go. They know the financial situation changes from month to month, year to year. They know ministers lose interest and they also have their own agenda, which is basically doing things the way they have always done them. That’s human nature. A lot of them are not in tune with what’s going on. They take an attitude of middle-management-level stonewalling, saying this is our position, take it or leave it. Something as serious as dealing with the transfer of land. That issue has been on the table for years and years. It’s absurd and ridiculous that it hasn’t been solved.
If you’re not going to repeat the mistakes of the past and you’re going to work in partnership, it’s time to do the things that need to be done at a practical level. It’s really good for the minister to have those intentions but does that mean the bureaucrats are going to get busy and do their work on land transfers? Does it mean they’re going to deal with issues like revenue-sharing or ignore them? What does
it mean in practical terms? We feel it doesn’t mean a heck of a lot just yet. We want to see the minister’s attitude repeated at all levels. We don’t see it yet.
I would like to touch on a comment you made a while ago about you maybe not being around In six months. Does this concern funding?
Saunders: We’ll be around. The question is whether we’ll be able to meet and respond to requests from the communities, do any work or basically doing nothing until the next fiscal year. We’ve asked the minister to provide funding so we can do the work but if we don’t get it we won’t be doing much for the next six months. We asked for $150,000 for the remaining six months. It’s kind of the bottom-line.
I know one of the proposed amendments Is the status of Ouje-Bougoumou. Is there a good chance for that community?
Awashish: Ouje-Bougoumou has expressed the need for an amendment so we can incorporate the community as a Band. Logically, it shouldn’t be so hard because the governments treat them as a separate band from the other communities. This needs to be stressed with the government of Canada. This matter of the land transfer has not been settled with the governments. The problems are thrown into the pot of Cree issues so there isn’t a particular issue that is isolated. The government tends to say they need an overview of the Cree issues rather than individual issues which can be resolved.
Next Issue: The commission’s recommendations.
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