Any substantive changes in this Legislative Summary that have been made since the preceding issue are indicated in bold print.
Bill C-28, An Act to amend the Cree-Naskapi (of Quebec) Act, was introduced in the House of Commons on 27 April 2009. The legislation implements Canada’s undertakings under agreements seeking to resolve long-standing issues under the 1975 James Bay and Northern Québec Agreement (JBNQA). In the 1992 Oujé Bougoumou/Canada Agreement, Canada committed to remedy the non-inclusion of the Oujé-Bougoumou Crees in the JBNQA and the 1984 Cree-Naskapi (of Quebec) Act. The 2008 Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee reiterated that undertaking and committed Canada to amend the Cree-Naskapi statute to provide the Cree Regional Authority with by-law powers in the region akin to those exercised on a local basis by individual Cree bands(1) under that Act.
Bill C-28 was considered by the House of Commons Standing Committee on Aboriginal Affairs and Northern Development on 14 May and was adopted by the House unamended on 26 May 2009. The legislation was introduced in the Senate on 27 May, was considered by the Standing Senate Committee on Aboriginal Peoples on 9 June and was similarly adopted without amendment on 10 June 2009. Bill C-28 received Royal Assent on 11 June and enters the statute books as S.C. 2009, c. 12.
The following paragraphs outline selected developments related to the JBNQA so as to place Bill C-28 in context.
In 1973, facing the inevitability of massive hydro-electric development in their traditional territories, the Crees of Eeyou Istchee(2) (Cree homeland in the James Bay region of Quebec) and the Northern Québec Inuit Association entered into negotiations with the Quebec and federal governments, Hydro-Québec and the Société d’énergie and Société de développement de la Baie James. Their objective was to mitigate the impact of development on their respective populations by securing recognition and protection of certain rights and benefits, including certain governance rights. Negotiations culminated in the 1975 signing of the JBNQA,(3) Canada’s first comprehensive land claim agreement, now constitutionally protected as a modern treaty pursuant to section 35 of the Constitution Act, 1982. In it, the Crees ceded, released and surrendered “all their Native claims, rights, titles and interests ... in and to the land in the Territory and in Québec”(4) in exchange for defined rights and benefits. The Agreement was ratified by the Quebec Assemblée nationale in 1976,(5) and by Parliament in 1977.(6)
Among the JBNQA’s numerous chapters, the following aspects are worth noting for present purposes:
In 1984, in keeping with its commitments under Section 9 of the JBNQA and section 7 of the 1978 Northeastern Quebec Agreement with the Naskapi, Parliament adopted the Cree-Naskapi (of Quebec) Act (CNQA).(12) The CNQA provided for the exercise of local government powers and other rights of the James Bay Crees and the Naskapi, and set up a system of land management for their Category IA lands, that is, those areas under federal jurisdiction.(13) Under the Local Government heading, the CNQA incorporated the eight Cree bands recognized by the JBNQA (Part I, section 12),(14) and set out their by-law-making powers over Category IA lands (section 45) in administrative matters; regulation of buildings for public safety; health and hygiene; public order and safety; environmental protection; pollution prevention; taxation for local purposes; a broad range of local services; roads and transportation; operation of businesses; and parks and recreation. Other headings include Part IV regarding bands’ financial administration; Part V governing residence on and access to Category IA lands; Part VI concerning the rights of bands, Quebec and others in relation to Category IA lands; Part VIII on the disposition of interests in Category IA lands and buildings; and Part XVI regarding policing. Bill C-28 includes amendments to each of these parts.
The CRA currently plays a limited role under the CNQA. Part XII of the CNQA, establishing the Cree-Naskapi Commission to oversee and report on implementation of the legislation, does provide for appointment to the Commission on the CRA’s recommendation, and requires the Minister of Indian Affairs to provide a copy of the Commission’s biennial report to the CRA.
Unlike comprehensive land claim agreements concluded after 1984, the JBNQA did not contain or require a plan for its implementation, or provide for a dispute resolution mechanism. The decades since its ratification have been marked by chronic Cree grievances related to implementation that “often resulted [in] confrontations and conflicts over the failure of Canada and Quebec to honour and respect their commitments, responsibilities and obligations to the Crees under certain terms and provisions of the JBNQA.”(15) Numerous legal proceedings undertaken by the James Bay Crees over this period have also related to implementation. Disputes and conflicts over implementation have covered a broad range of substantive and process concerns.(16)
Negotiations between the Crees and the Quebec government to resolve outstanding implementation issues led to the conclusion of the February 2002 Agreement Concerning a New Relationship Between le Gouvernement du Québec and the Crees of Québec (2002 Agreement, also known as the Paix des Braves).(17) Notable aspects of this comprehensive, 50-year, multi-billion-dollar agreement(18) include its provisions for the James Bay Crees to assume defined provincial and Hydro-Québec obligations related to community and economic development under Chapters 28 and 8 of the JBNQA (Chapter 6) and for Quebec to fund the Crees for carrying out those responsibilities (Chapter 7).(19)
In 2004, Canada and the Grand Council of the Crees (Eeyou Istchee)/CRA(20) similarly entered into negotiations to address unresolved implementation issues and, in February 2008, signed the 20-year Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee (2008 Agreement).(21)
Reflecting Cree aspirations to exercise broader governance powers, Chapter 3 of the 2008 Agreement describes a two-phased approach to governance. It involves (1) defining the CRA’s by-law-making authority through amendments to the CNQA, in order to enhance the Authority’s capacity to assume defined federal responsibilities under the JBNQA; and (2) describing a process for negotiations toward a Governance Agreement and related legislation, as well as possible consequential amendments to the JBNQA and the CNQA to establish “a Cree Nation Government with powers and authorities beyond the scope of the CNQA.”(22) In accordance with the first phase, section 3.3 describes the numerous specific amendments agreed to by the parties, which are set out in Bill C-28 and reviewed under the Description and Analysis heading below.
Federal responsibilities to be assumed by the CRA as set out in Chapter 4 of the 2008 Agreement include limited post-detention responsibilities related to the administration of justice(23) (JBNQA, para. 18.0.29e) and g)); establishment of Cree Associations (JBNQA, section 28.4); the federal portion of joint Canada–Quebec obligations regarding trapping (JBNQA, para. 24.3.24); support of Cree associations (JBNQA, sections 28.5–28.7), training programs, job recruitment and placement (JBNQA, para. 28.9.1 and .2); and community services such as essential sanitation and fire protection (JBNQA, para. 28.11.1 and .2).(24) Chapter 6 stipulates that federal funding totalling $1.4 billion is in consideration of the assumption of these federal responsibilities, as well as the resolution of grievances and litigation, and costs related to participation of the Grand Council/CRA in consultations and negotiations on Cree Nation governance.(25)
It is worth noting that the 2008 Agreement does not amend the JBNQA or the CNQA and is not a treaty within the meaning of section 35 of the Constitution Act, 1982 (sections 2.2, 2.5).
The Oujé-Bougoumou Crees, although a distinct group with traditional territory within the greater Eeyou Istchee, lost their land base and became dispersed after being subjected to a series of forced relocations related to mining and forestry development, beginning in the 1920s. Unlike other Cree communities, the group had not been recognized as a “band” under the Indian Act and, at the time of negotiations leading to the JBNQA, its members were registered as members of the Mistissini band “for economic and administrative reasons.”(26) As a result, the Oujé-Bougoumou Crees, although beneficiaries of the JBNQA, were not recognized as a band with entitlement to Category I and Category II lands in their own right under the JBNQA; their entitlement was calculated as included in Mistissini lands. Similarly, the Oujé-Bougoumou Crees were not included in the federal CNQA implementing local government on Category IA lands for recognized Cree bands.(27)
The group has long sought redress for its exclusion from both regimes, which has been acknowledged as a critical outstanding issue in a succession of agreements with federal and provincial governments dating back 20 years. The 1989 Oujé-Bougoumou Agreement with Quebec, reduced to its essence, provided for partial financial and technical support for the construction of a village for the group at an agreed-upon site, and set the objective of eventual allocation to the Oujé-Bougoumou Crees of specific amounts of Category I and Category II lands, pending settlement with Canada and negotiations regarding a land transfer with the Crees of Mistissini.(28) Under key provisions of the 1992 Oujé-Bougoumou/Canada Agreement, Canada committed to provide the bulk of funding for the Oujé-Bougoumou village, and to recognize the Oujé-Bougoumou Crees as a distinct legal entity and the ninth Cree band under both the JBNQA and the CNQA, with entitlement to Category I and Category II lands as set out in the 1989 Agreement. To this end, Canada and the Crees undertook to amend both the JBNQA (through a Complementary Agreement)(29) and the CNQA.
In the 2002 Agreement, Quebec and the Crees agreed “to allow the definitive settlement of the transfer of lands between Oujé-Bougoumou and Mistissini” (section 10.4). Schedule G to the Agreement set out a settlement framework for the transfer of lands between Mistissini and the Oujé-Bougoumou Crees, including the development of a schedule for completion of a Complementary Agreement to the JBNQA.(30) The 2008 Agreement between the James Bay Crees and Canada commits the parties to sign the Complementary Agreement for the establishment of the Oujé-Bougoumou Band and its Category I land as soon as possible, and reiterates the commitment of the 1992 Oujé-Bougoumou/Canada Agreement to amend the CNQA.
Bill C-28’s amendments to the CNQA consist of 33 clauses which, as the foregoing review illustrates, address two distinct subject matters: enhancement of the CRA’s powers of governance on the one hand, and inclusion of the Oujé-Bougoumou Crees in the CNQA regime on the other. This paper considers selected significant elements of each of the bill’s components together.
As previously mentioned, at present the CRA does not feature prominently in the CNQA. Bill C-28 amendments to the CNQA are intended to reflect those agreed to by the parties in Chapter 3 of the 2008 New Relationship Agreement, with a view to enhancing the CRA’s authority under the legislation.
Sections 6 and 8–9 of the CNQA set out a general framework for the exercise of an individual band’s by-law-making authority under the legislation, limiting its reach to each band’s Category IA land and specified Category III land, and providing that band by-laws may prohibit activities and are not covered by the federal Statutory Instruments Act. Under Bill C-28, new sections 9.1 to 9.3 mirror these provisions for the CRA, with the significant distinction that the potential reach of its by-laws extends to all Category IA land (clause 2).
The CNQA defines the objects of a band (section 21), sets out its by-law-making powers (section 45), related process requirements (sections 52–54) and procedures for challenges to by-laws (sections 55–57). Bill C-28 amendments do not modify these provisions, but rather introduce analogous measures for the CRA in new Part I.1, which also sets out additional provisions agreed to in the 2008 Agreement for implementing the CRA’s regional regime. New sections 62.01 to 62.06 are of particular significance (clause 9).
Most remaining Bill C-28 amendments related to the CRA pertain largely to administrative matters, or are incidental to the generally enhanced scope of CRA involvement in governance. For instance, Bill C-28 amends provisions of the CNQA dealing with bands’ financial administration in order to ensure greater CRA involvement and oversight (clauses 10–14). The bill replaces the CNQA’s current provision related to policing of Category IA land (section 194) with one stipulating that, in the event the CRA establishes a regional police force under the Quebec Police Act, it will have enforcement jurisdiction over the territory described in that Act (clause 28).(35) It adds a provision requiring that Cree bands obtain CRA approval prior to entering into a policing agreement with Quebec or other specified bodies (clause 29).
Bill C-28 amendments related to the CRA come into force on a day or days to be fixed by order of the Governor in Council (clause 33(1)).
Leaving aside key provisions discussed immediately below dealing with definitions and incorporation, amendments related to the Oujé-Bougoumou Crees are not intended to effect substantive changes to the operation of the legislation. They aim to integrate the group into the CNQA regime, while reflecting the particular features of its accession to that regime, that is, through a complementary agreement to the JBNQA rather than under the original JBNQA.
Section 2 of the CNQA currently defines “band” and “Cree band” to include those incorporated by section 12 of the Act, that is, the eight bands recognized under the JBNQA. Bill C-28 expands that definition to include “the Oujé-Bougoumou Band referred to in section 12.1” (clause 1). It is this provision that establishes a new legal entity and the ninth Cree band, incorporating the “collectivity known as the Crees of Oujé-Bougoumou” with the legal designation of “Oujé-Bougoumou Band” (clause 3). Bill C-28’s definition of the “Oujé-Bougoumou Complementary Agreement” makes it clear that the realization of this term is contingent upon the Agreement’s completion, since it is the Agreement itself that provides for incorporation of that collectivity (clause 1). According to officials at the Department of Indian Affairs, the Agreement is nearing completion. Following its approval,(36) additional measures are required prior to the setting aside of Category IA land for the Oujé-Bougoumou Crees by order in council. The coming into force of all Bill C-28 amendments related to the Oujé-Bougoumou Crees will coincide with completion of this process, that is “on the day on which ... [the] land is set aside” (clause 33(2)).(37) When the amended definition in section 2 and new section 12.1 do take effect, all references to “band” or “Cree band” in the CNQA will apply to the incorporated Oujé-Bougoumou Band.(38)
Section 13 of the CNQA provided for the termination of the eight Indian Act Cree bands, and the vesting of all their existing rights, interests, assets and liabilities in the newly incorporated “successor” bands created by the legislation, as required by the JBNQA. Similarly, new section 13.1 terminates the Oujé-Bougoumou Eenuch Association (Association) – the existing federally incorporated entity with governance authority – and vests its existing assets and liabilities, as well as those of the collectivity of Oujé-Bougoumou Crees, in the new incorporated Oujé-Bougoumou Band (clause 4).(39) New sections 58.1 and 60.1 are concerned with continuity of governance for the Oujé-Bougoumou Crees during the transition to the CNQA regime; the Association’s existing Board of Directors becomes the council of the new Band for the reminder of their term in office, and its existing by-laws remain in force for a year (clauses 7–8).
The CNQA made special provision, in section 18, for members and electors of the former Indian Act Cree bands who were not beneficiaries under the JBNQA to continue as members and electors of the successor bands for prescribed purposes. Bill C-28 replaces section 18 to ensure members of the collectivity of Oujé-Bougoumou Crees with status under the Indian Act at the time of incorporation remain members of the new Band for the same purposes (clause 5).
Sections 104 and 105 of the CNQA define who may reside on, occupy and gain access to Category IA land of the eight Cree bands. Similarly, sections 113–117 describe those entitled to exercise mineral, subsurface, mining rights and pre-existing rights on that land – and the manner of, and compensation obligations arising from, that exercise – largely by reference to the date of the signing of the JBNQA on 11 November 1975.(40) Bill C-28 amends or replaces the relevant portions of these measures in order to provide for similar entitlement in similar circumstances with respect to the Category IA land of the Oujé-Bougoumou Band, by reference to the date of the coming into force of the anticipated Complementary Agreement under which the land becomes Category IA land. By way of example, if, prior to 11 November 1975, the Province of Quebec granted an exploration permit to the Société de développement de la Baie James (SDBJ) for land that later became Category IA land under the JBNQA, the SDBJ may continue to use that land for exploration and exploitation purposes (section 114). Under new section 114(1), the SDBJ may continue to use the Category IA land of the Oujé-Bougoumou Band for exploration if the provincial permit for that land predates the coming into force of the Oujé-Bougoumou Complementary Agreement (clauses 15–21).
Bill C-28 does not appear to have received any media attention. It is generally considered a non-controversial piece of legislation that addresses a particular context and, as anticipated, appears not to have attracted the attention of unaffected individuals or groups.
In their 5 May 2009 appearance before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, members of the Cree-Naskapi Commission mandated to report on implementation of the CNQA expressed support for the two series of amendments set out in Bill C-28. At the same time, Commissioners underscored both their long-standing recommendation that a number of additional and non-contentious amendments to CNQA provisions related to local government are also required, and their hope that protracted delays in this regard might be avoided.
* Notice: For clarity of exposition, the legislative proposals set out in the bill described in this Legislative Summary are stated as if they had already been adopted or were in force. It is important to note, however, that bills may be amended during their consideration by the House of Commons and Senate, and have no force or effect unless and until they are passed by both houses of Parliament, receive Royal Assent, and come into force. [ Return to text ]
(1.46 MB, 112 pages), 2002. (392 KB, 97 pages), 2008.© Library of Parliament