Dear Editor of The Nation:
We, as Cree beneficiaries and members of the Cree Nation of Chisasibi, are submitting a proposed resolution for a vote at the next Annual General Meeting of the Cree Nation Government. We are seeking your help in making Crees aware of the issue and generating supporting votes for the upcoming meeting in Waswanipi on August 5-7, 2014. You can do so by publishing this letter and accompanying resolution in The Nation.
According to section 3.2.7 of the James Bay and Northern Quebec Agreement (JBNQA), a Cree beneficiary is entitled to exercise his or her rights and benefits under the Agreement unless he or she “is absent from the Territory during ten continuous years and is domiciled outside the Territory.” This is known as the “10-year clause.”
The Pachano/Willis/Newton family in Chisasibi, Christmas 2002
The rights we as Cree beneficiaries enjoy under the Agreement are Aboriginal and treaty rights protected under section 35(1) of the Constitution Act, 1982. The residency requirement in the 10-year clause can be challenged as an unconstitutional infringement of these rights. Specifically, the 10-year clause violates the equality rights of non-resident Cree beneficiaries, as guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms. (See, e.g., Corbiere v. Canada [1999] 2 S.C.R. 203, in which the Supreme Court of Canada held that the denial of voting rights to non-resident Band members is unconstitutional.)
In any event, even if we presume that the 10-year clause is constitutional, under its plain language, it does not affect the rights of a Cree beneficiary who is domiciled outside of Eeyou Istchee for 10 years or more unless the Cree beneficiary is also absent from Eeyou Istchee for the entire period. Put another way, the 10-year clause clearly was not intended to apply to Crees who maintain ties to Eeyou Istchee. In fact, a long-time attorney for the Crees, who was involved in the negotiations on the Agreement, publicly confirmed at the Cree Nation Government Agreements Information Session in Val d’Or on October 30 and 31, 2013, that the 10-year clause was not intended to suspend the rights of Cree beneficiaries who do regularly return to Eeyou Istchee even while domiciled outside the area for 10 years or more.
The 10-year clause is being narrowly and inconsistently applied by Cree entities resulting in Cree beneficiaries being unfairly denied their rights and benefits under the Agreement.
For example, Cree employees of the Grand Council of the Crees who have been domiciled outside of Eeyou Istchee for ten years or more while so employed, and their children, are considered eligible for post-secondary assistance from the Cree School Board. In contrast, Crees who are domiciled outside of Eeyou Istchee for 10 years or more who are only able to secure work as independent contractors with the Grand Council of the Crees, and their children, are considered ineligible for post-secondary assistance from the Cree School Board.
Many Crees, if not most, have members of our extended families who are directly affected by the 10-year clause. There are many compelling reasons why Cree beneficiaries may reside outside of Eeyou Istchee. There are individuals with special needs that cannot be met with the available resources in the Cree communities. There are chronic housing shortages and limited employment opportunities. There are social problems that may require an individual to move away to protect themselves or their children or to break free from unhealthy habits or relationships. There are choices we make freely out of a desire to seek out education, training and experiences not available in the communities or simply to honor our commitments to our partners in life.
In our family, there are five living adult siblings, all of whom have been domiciled for parts of their lives in Chisasibi, where their mother and grandmother still live. The three eldest of us were baptized on Fort George Island and attended residential school there. Only one of us currently lives in Eeyou Istchee. The remaining four of us have lived outside of Eeyou Istchee for more than 10 years. However, each of us, and our children, have returned to Eeyou Istchee on numerous occasions since moving away and have participated in social and cultural activities during these return visits. For example, all of our children, five in total, have had their Walking Out Ceremonies in Eeyou Istchee.
Of the four of us who live outside Eeyou Istchee, we have each followed different paths. One of us is an R.C.M.P. officer whose domicile is determined by her job posting (her last assignment was in Ottawa in a special unit dedicated to Aboriginal issues). The youngest of us is a researcher who moved to Ottawa to pursue post-secondary studies and remained there after marrying a U.S. citizen who was fortunate to be able to utilize his work experience in the U.S. to secure a position with a major retailer located in the U.S. and Canada. One of us is an environmental engineer who moved to Oshawa, Ontario to work with General Motors and has remained there since to pursue her career. One of us is an attorney who, after several unsuccessful attempts to secure employment with any of the Cree local or regional governments, moved to California to pursue a Masters of Law in Comparative Law for the purpose of comparing Aboriginal law in Canada with Indian law in the United States and has remained there while continuing to gain experience and further education and providing legal services on a contract basis to several Cree entities.
What the four of us non-resident siblings have in common, is that each of us were able to pursue our post-secondary studies with the assistance of the Cree School Board, yet none of us are currently considered eligible for Cree School Board benefits under their interpretation of the 10-year clause. Nor are our children, two of whom have already applied for and been denied those benefits.
The political leaders and attorneys for the Crees are quick to argue that federal and provincial agencies should interpret the James Bay and Northern Quebec Agreement in a broad and liberal manner and resolve any ambiguities in favor of the Crees. Shouldn’t we expect the same of our own Cree governments and agencies?
We are entering a new era of self-government with the establishment of the Cree Nation Government. We must discard the remnants of the historic “divide and conquer” tactics of federal and provincial governments, such as narrow interpretations of the 10-year clause. These tactics create and perpetuate tensions between our peoples, promoting an “us” versus “them” mentality that divides us, such as resident versus non-resident Crees. When we as Crees fight against each other, we undermine our strength as local governments and as the Cree Nation Government and make ourselves vulnerable to external political powers. As we engage in nation-building, we must recognize that we are all in this together.
We Cree beneficiaries were guaranteed the rights and benefits under the JBNQA because of our ancestors’ use and occupation of Eeyou Istchee since time immemorial. These rights and benefits are their legacy and our birthright. Imagine what our ancestors would think if they could see how we have become the masters of our own oppression by seeking to take away or deny these rights to our youth.
Our Elders teach us to act for the benefit of future generations when we make decisions. We must demand the same from our Cree governments and agencies. We are blessed with sufficient economic resources to ensure all Cree beneficiaries who wish to can receive post-secondary education assistance. In fact, according to the Cree School Board’s Annual Report 2012-2013, they had an available surplus of over 8 million dollars as of June 30, 2012. If it is our will as a people to support higher education for all Crees, we have the sovereign authority to do so, without the need to seek approval or permission from the provincial or federal governments.
Why should our Cree youth be denied post-secondary education assistance or other JBNQA rights or benefits due to the residency choices of their parents? Isn’t it in the interests of our Cree governments, our Cree communities, and our Cree families that Cree youth be educated regardless of their parents’ domicile? or even regardless of the young person’s chosen field of study? Should we not encourage our youth to pursue their dreams, wherever they may lead, be it as a professional hockey player, an overseas relief worker, an astronaut, or an actor? Don’t these accomplishments, even if pursued outside of Eeyou Istchee, enrich our Nations?
The proposed resolution asks our Cree Nation Government to adopt a uniform interpretation of the 10-year clause that is consistent with both the language and the spirit and intent of the JBNQA, to ensure that Cree entities implement this interpretation, and to provide remedies for Cree beneficiaries who have been denied their rights and benefits under overly restrictive interpretations of the JBNQA. We urge other Cree beneficiaries to show support for the proposed resolution by attending the Annual General Assembly in Waswanipi on August 5-7, 2014 and voting in favor of the proposed resolution. You can also help by asking your local governments for resolutions in support of the proposed resolution.
Respectfully and jointly,
Janie & Roderick Pachano
Sandra Willis
Joanne Willis Newton
Kelly (Willis) Beach
Mark Pachano
Tarynne Pachano
Jenna Newton
Jayme Newton
The Proposed Resolution:
GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE)/
CREE NATION GOVERNMENT
Annual General Assembly
Resolution 2014-XX: Resolution Regarding Adoption and Implementation of Uniform Interpretation of 10-Year Clause in Section 3.2.7 of the James Bay and Northern Quebec Agreement to Promote Education of Cree Youth
WHEREAS the rights that Cree beneficiaries enjoy under the James Bay and Northern Quebec Agreement are constitutionally protected under section 35(1) of the Constitution Act, 1982, which recognizes and affirms the “existing aboriginal and treaty rights of the aboriginal peoples of Canada;”
WHEREAS section 3.2.7 of the James Bay and Northern Quebec Agreement, known as the “10-year clause,” reads as follows:
“In the event [a Cree beneficiary] is absent from the Territory during ten continuous years and is domiciled outside the Territory, such person shall not be entitled to exercise his rights or receive benefits under the Agreement. Upon such person re-establishing his domicile in the Territory, the right of such person to exercise his rights or to receive benefits under the Agreement shall revive.”
WHEREAS under the plain language meaning of the 10-year clause, a Cree beneficiary who is domiciled outside Eeyou Istchee for ten continuous years remains entitled to exercise his or her rights or receive benefits under the Agreement so long as he or she has not been absent from Eeyou Istchee for the entire period.
WHEREAS the 10-year clause was not intended to suspend the rights of Cree beneficiaries who maintain ties to Eeyou Istchee even while domiciled outside Eeyou Istchee for 10 years or more.
WHEREAS the Grand Council of the Crees (Eeyou Istchee)/Cree Nation Government consistently advocates for broad and liberal construction and interpretation of the James Bay and Northern Quebec Agreement in its dealings with the federal and provincial governments and agencies;
WHEREAS Cree entities and agencies should be held to the same standard of liberal interpretation and resolve any ambiguity in the scope and meaning of the 10-year clause in favor of non-resident Cree beneficiaries;
WHEREAS there is a lack of consistency amongst Cree entities and agencies in their policies interpreting the 10-year clause and establishing exceptions to it, resulting in non-resident Cree beneficiaries not having uniform access to the rights and benefits to which they may remain entitled, including, but not limited to, education rights and benefits administered by the Cree School Board, such as post-secondary education assistance;
WHEREAS, pursuant to section 6 of an Act Respecting the Cree Nation Government, the objects of the Cree Nation government include the following: to advance the education of the James Bay Cree; to assist in the furtherance of education and youth training; to assist the James Bay Crees in the defence of their interests; and to deal with all persons in working toward the solution of problems of the James Bay Cree; and
WHEREAS our youth are the Cree Nation’s most precious resource and it is in the social and economic interests of the Cree Nation, each of the individual Nations of Eeyou Istchee, and Cree families that we improve educational outcomes for our youth, including post-secondary graduation, regardless of domicile;
IT IS RESOLVED by the delegates of the Grand Council of the Crees (Eeyou Istchee)/Cree Nation Government 40th/37th Annual General Assembly
THAT the Grand Council of the Crees (Eeyou Istchee)/Cree Nation Government hereby adopts the following uniform interpretation of the 10-year clause:
1. A Cree beneficiary who is domiciled outside Eeyou Istchee for ten consecutive years remains entitled to exercise rights and receive benefits under the James Bay and Northern Quebec Agreement if he or she visits Eeyou Istchee during that period and has social, economic, political or cultural ties with his or her Cree community.
2. The 10-year clause is not triggered until a Cree beneficiary turns 18 years of age, as a person under 18 years of age is presumed to have little or no control over his or her domicile or the means to visit Eeyou Istchee independently. In other words, a Cree youth remains eligible to exercise rights and receive benefits under the James Bay and Northern Quebec Agreement until he or she turns 28 years of age and thereafter his or her eligibility is determined by the 10-year clause.
THAT the Grand Council of the Crees (Eeyou Istchee)/Cree Nation Government will forthwith take appropriate and necessary steps to work with Cree entities and agencies, including but not limited to the Cree School Board, to ensure prompt implementation of this uniform interpretation of the 10-year clause; and
THAT such implementation measures shall include retroactive remedial measures for Cree beneficiaries who were denied rights or benefits to which they were entitled under the James Bay and Northern Quebec Agreement under more restrictive interpretations of the 10-year clause, including post-secondary education assistance.
Carried: August __, 2014
Proposed by:
Seconded by:
