The Cree Naskapi Commission (CNC) has given the Canadian Government 7 reports in the past 14 years and says the federal and provincial governments are continuing to stall full implementation of the James Bay and Northern Quebec Agreement.
On the Federal side the problem doesn’t seem to originate with the Ministers of Indian Affairs and Northern Development, but with the senior officials at Indian Affairs, according to the Commission. In the report, the CNC said the officials do not accept the approach of the Ministers and simply don’t carry out their decisions.
This inaction has forced the CNC to adopt new techniques in ensuring their reports are not ignored as in the past. It’s not just the Cree and Naskapi communities that learn about the findings and recommendations these days. The Commission goes around explaining their report to MP’s, senators, Aboriginal leaders and government leaders.
Indian Affairs argue that the recommendations of the CNC aren’t “formal requests” from the Crees or Naskapis and therefore needn’t be addressed.
The Nation: The report said the Agreement isn’t being fully implemented. What is the problem?
CNC: The difficulty centers around what the Agreement really means and indeed there have regularly been problems right from the beginning. The government has argued that explicit parts of the Agreement weren’t binding, or that they could implement them or not as a matter of policy. The Agreement from our point of view has been constitutionally recognized and is legally binding. The regular refusal of the government to abide by the Agreement has been an ongoing problem from our first set of hearings in 1986 until today. Our reports are merely recommendations. It’s up to First Nations leaders to react and respond to our recommendations. We don’t have a mandate to represent First Nations and speak directly to the governments on treaty implementation.
Given that, would you recommend any First Nations looking to make a deal with the government does so based on this inaction of not following up and fulfilling their Agreements?
Well, that’s a hard question. By and large we would, but it wouldn’t be the same standard. At least the other Nations would have something in writing, rather than nothing at all. We would say that as long as they are treaties under Section 35 of the Canadian Constitution Act of 1982. Another condition, one of the things we said in the 98 report and we’ve said it again in this report, is the government needs some treaty implementation legislation. A lot of the problem is just in the nature of governments. A lot of what governments do is they exercise their discretion and they select priorities. They select what policy to go with and which one to change. They decide their funding priorities and what ones to cut back on. That’s what governments do; they exercise choice and that’s why we elect them. But that type of discretion is not compatible in our view with simply carrying out an enforceable, legally binding agreement. Doing what you are required to do is different from doing what you chose to do. So we think there should be a Treaty Implementation Secretariat that would be independent from Indian Affairs. The sole duties of the Secretariat would be to implement treaties and modern land claims agreements. That body should report, like the Auditor General does, to Parliament and not to the Minister. It wouldn’t be exercising discretion; it would be carrying out the Crown’s obligations under the agreements or treaties. It should have an act the way the bureaucrats are bound by the Financial Administration Act to manage money by certain rules and criteria. The Secretariat would have a Treaty Implementation Act, which would require it to apply the rules of interpretation the Supreme Court has developed and letter end intent of treaties and agreements.
Thirdly, look at things like the Marshall Case, which has caused a lot of fuss in Atlantic Canada. That began in provincial court. Marshall lost. It went on to the Supreme Court of Nova Scotia and he lost again. The same in the Nova Scotia Court of Appeal. It went to the Supreme Court of Canada and they overturned all of the lower court decisions and enforced his treaty rights. That takes a lot of time and money and is a big waste. What we’ve recommended is that there be a panel of the Federal Court of Canada, whose judges be appointed on the recommendations of First nations, that would have original jurisdiction. In other words, if Marshall was charged with taking eels and he argued he had a treaty right to do so, his case would be bumped immediately to that court. Things would be settled more quickly. The judges there would have some knowledge of Aboriginal law, unlike the majority of provincial court judges at the moment. Hopefully, it would cut down on the costs and time spent litigating.
We are suggesting a three-part solution: a treaty implementation secretariat, a treaty implementation act, and a temporary court of treaty and Aboriginal rights at a senior level.
There has been a trail of broken treaties and the First Nations leadership should clearly take the appropriate action to ensure that this ends and treaties are respected.
I’ve noticed you’ve said a temporary court. Would that expedite the implementation of treaty rights?
Yes, it would hopefully get rid of the outstanding backlog of outstanding Aboriginal and treaty rights issues. Secondly, there are a lot of Aboriginal lawyers coming on stream now and non-Aboriginal lawyers are regularly taking Aboriginal law in universities. Judges now are becoming aware of Supreme Court decisions. The regular court system in 10 to 20 years should be able to administer this new area of law just like it administers everything else. Part of our point is that in the Marshall Decision, for example, all of the lower courts made the wrong decision, so we have to fix that. Until there is that change, let’s get it right at a senior level. Once that body of law and precedents are established, the lower courts will become increasingly aware of that body of law and then could administer it themselves. Maybe we’re being optimistic, but that’s the idea.
You have recommended a Policy Management Accountability Act?
Yes, it’s a new thing. We’ve said in our last report to Minister Stewart that she was impotent. We partly said that because it would draw attention to the problem, however, the fundamental problem is that a lot of ministers have good intentions but the bureaucrats don’t carry them forward. As we’ve said in this report, in a year or two the Minister is gone. The fact of the matter is that Ministers come and ministers go. A few of them have had good ideas, like Nault, who talks endlessly about how he wants to see treaties implemented. Well, that’s nice, but he’s going to be gone soon and the bureaucrats don’t give a damn whether or not treaty provisions will be implemented. It won’t depend on Nault’s good intentions; it’ll depend on whether there is some legislative structure in place that requires implementation of treaties. Just going around saying he wants them implemented won’t do it.
The treaty implementation process has always been a problem for the Crees. In our reports we have identified this as a major problem.
Has this report gone out to more than just the Crees and the Naskapis because a process such as the Policy Management Accountability Act would affect more than just Indian Affairs? This could’ve affected even the HRDC billion-dollar boondoggle?
Yes, we customarily present the report to other First Nations. We’ll be presenting it to the National Grand Chief, Inuit, Congress of Aboriginal People, and so on. We also have it on our website and it has been visited over 4,000 times. So there are people out there reading what we have put on the site. That’s worldwide. There are a lot of areas that are affected by lack of implementation and we’ll be sending out our book.
One of the other things in the report was the promise by Minister Stewart, when she was with Indian Affairs, that they would respond quickly to the report, yet according to this CNC report it took a year and a half and the answers were superficial. Do you see this as a sign of how seriously the Commission is taken by Indian Affairs?
We think probably the Department of Indian Affairs would prefer not to deal with a number of the issues we raise. They can do that in two ways. One is to not respond in a timely way or in detail and another is to argue, as they have, that a lot of these issues are outside of our formal mandate. However, because of that we began the process two years ago of going to the parliamentary committees for the first time, meeting with Members of Parliament and Senators and going to other First Nations organizations. So now we feel that we’ve said that when people come to the Commission and they have a concern, they expect something will be done about it If Indian Affairs isn’t going to do that without a bit of prodding then we’re going to see that a bit more prodding is done.
You’ve said it again and again that the senior officials at Indian Affairs are refusing to carry out the Ministers wishes. This is a continuing problem?
Yes, and it’s a problem across government. We elect a government with the expectations that they’ll give policy direction and it’ll be carried out Then you get a situation where then Indian Affairs Minister, Jane Stewart, says that we’re going to move away from the mistakes of the past We’re going to establish a new relationship based on trust and this and that. You have Nault coming along saying we’re going to implement treaties in the spirit and letter of intent.
Meanwhile, you find those things aren’t happening and you ask why not? Then you run into various people like a senior official at Indian Affairs talking about the hugely funded Crees. This immediately reveals an attitude that basically anything that hasn’t been fulfilled in the James Bay and Northern Quebec Agreement the Crees had better not count on because he thinks they are hugely funded already. The fact of the matter is that you can’t have the bureaucracy acting based on those kinds of attitudes. At the same time, you have a Minister running around saying he is committed to treaty implementation. The question is who is the boss? Well, the boss is the Minister. Underneath you need greater accountability to see that senior officials have to carry out the policy that Ministers and Cabinet decide. It needs the Policy Management Accountability Act to ensure that when a Minister says to do something, as a senior official you are responsible to see it happens instead of ignoring it.
You’ve talked about the needs of the communities not being met. Could you describe the moods of the Cree communities when they aren’t seeing such basic needs as housing being met?
The Cree chiefs and representatives feel that they have said and described the problems repeatedly in the past six reports. They feel the government must listen not only to the report of the CNC but also to the various negotiations that go on between the Crees and the Federal Government. They feel it’s time the Government started to take the report seriously because these issues keep returning. They seemed to get discouraged at some of the hearings because they have to repeat themselves over and over again on these issues. There is a feeling of disappointment in the Government for failing to respond positively to the recommendations that the CNC makes. There is some anger and a feeling of frustration.
At one time, around our fifth report, the Cree chiefs almost refused to come to the hearings. What they did was to put the hearings into one and sent the Grand Chief and Vice-Grand Chief to appear on their behalf because of the frustrations. They had felt that they continually come to the CNC and nothing happens. This is why we started to do followups and went to the Standing Committee on Aboriginal Affairs, the Senate and some First Nations organizations. We felt there had to be a change in the tone of being quiet. Even though they made a rough response this is the first time Indian Affairs made any response in regards to the report. Of course it was a broken record downplaying the fact that nothing really happens, but they made a response after six reports. This is why we will be continuing to pursue the same types of follow-ups in the future. The response from Indian Affairs has shone a small light of hope that we could hopefully see some change in their usual inaction in the future.
We also recommend in this report that Indian Affairs take another look at past reports because those issues and recommendations are still there and need to be acted on. In the last two reports there are 75 recommendations that we feel are still valid.
Haw many have been acted upon in what could be considered a positive manner?
Two or three over fourteen years.
One of the other things discussed in the report that is new this year is the firearms control Act and the Crees. Would you care to talk about that?
As you know that has been an issue as soon as the Government enacted the Firearms Control legislation. First there was a question of whether or not the legislation infringed upon Aboriginal and treaty rights. It’s a question of validity, but that is up to the courts to determine. The other concern is whether the administration of the Act itself constitutes a financial burden on the Crees or Naskapi to administer the Act itself. If it is to be done through the local authorities then shouldn’t they be accorded appropriate funds to properly administer the Art? Those are the two main issues. A number of these concerns and the need to address them properly were raised in the 96 report before the legislation was passed. It’s not like we pulled this out of a hat or added it at the last minute after it was on the books. The communities were concerned about this before and we passed on those concerns back then.
The 2000 report is supposed to be a special one. In what way?
We decided that it would be a special one that dealt on the history of Cree/Naskapi governance, at least at the local level. The Cree and the Naskapi peoples view themselves as being on a path towards fully governing themselves. We outline the history of this journey as starting with being under the restricted and limited Indian Art that was imposed upon them. Then we go to the Cree Naskapi of Quebec Act, which was enacted pursuant to the treaty obligations under the James Bay and Northern Quebec Agreement and Northeastern Quebec Agreement.
Basically the report traces this journey of where they have been, where they are now, and where they are heading.
Where do you think they are heading?
They are looking at governing themselves based on an inherent right. We had recommended that the Crees, Naskapi and the Federal Government enter into a meaningful process of redefining self-government. It needs to be redefined so that inherent right is taken into account
At the moment one only has to look at the created corporations to see the Cree Naskapi Art is a process of delegation by the Federal Government. The Crees and the Naskapi have always said that they should be the ones to govern themselves, not a corporation.
Non-Aboriginal people have to start looking at self-government in a different perspective. It’s not good enough to say we have the Cree Naskapi Art and that’s a big improvement over the Indian Art and everything you need to know about self-government is in there. It’s not.
Tradition and customary law is only partially embodied by the JBNQA or the Cree Naskapi Act, but it’s not the whole story. An example would be elections. Seems pretty much everything is covered, but what do you do if there is a funeral in the community? It would be traditional to stop campaigning and put off the election until after the funeral. It’s just a matter of respect. That’s not something that would happen in a non-Aboriginal community normally. They would go ahead and have the election.
So, for example, if someone wanted to argue if an election didn’t go ahead, they could argue that the Cree Naskapi Art does not provide for a funeral. The Act, then doesn’t provide for something that is recognized by traditional law and custom, therefore, based on inherent right, the traditional law and custom prevails. It would be that simple. That is just a small example, but we’re talking about the fact that the whole authority of the Cree or Naskapi Nation is only in part reflected by documents. There has to be room for this to be included.
