Mr. Chairman and members of the Commission.
Wachiya, Good Day.
We are pleased to have been invited to these special hearings in view of the preparation by the Commission of this year’s report on the implementation of the Cree-Naskapi (of Quebec) Act.
Our presentation will focus on our current governance negotiations with Canada and the implementation of the Federal New Relationship Agreement. Also, in response to your recent discussion paper on Eeyou/Eenou Law respecting Family Issues, I will briefly address the matter of matrimonial real property on Category IA lands. This matter has been on our agenda for some time and it is part of our current discussions with Canada in the context of the Cree-Canada governance negotiations.
Since the James Bay and Northern Quebec Agreement, the Crees have worked to consolidate and implement an incremental Cree Nation Governance. They have also worked with the Governments of Canada and Québec to increase its formal recognition.
The adoption in 1984 of the Cree-Naskapi (of Quebec) Act is an important milestone, particularly at the community level. This federal legislation established a management regime for Category IA lands and formally recognized that Cree Bands would act as local government authorities for their communities.
At the regional level, the signing of the Federal NRA in 2008 represented another important milestone for Cree Nation governance.
The Federal NRA established the basis for a new relationship between the Cree Nation and Canada. Among other things, it sought to improve the implementation of the JBNQA. It also provided for the assumption by the Cree Regional Authority, and subsequently by the Cree Nation Government, of certain responsibilities of Canada under the JBNQA, particularly in terms of economic and community development.
Pursuant to the Federal NRA, and to better enable the CRA to receive and carry out the assumed federal JBNQA responsibilities, Parliament made certain amendments to the Cree-Naskapi (of Quebec) Act to provide to the CRA by-law-making powers similar to those of the Cree bands.
These new provisions of the Cree-Naskapi (of Quebec) Act came into force on February 1st, 2010. Since then, the CRA has been working on strengthening its institutional capacities and on the development of several regional by-laws, including on the following matters:
These regional by-laws will soon be in place and they will contain standards that are at least equivalent in their effect to any standards established by federal or provincial laws of general application. The regional by-laws will co-exist with band law-laws on the same matters, but in the case of inconsistencies or conflict between the regional and local by-laws, the by-laws containing the higher standards will prevail.
In terms of Cree Nation governance, the Federal NRA is important for another reason: it sets out a process for negotiations with Canada leading to a Governance Agreement, Governance Legislation and possible amendments to the JBNQA and to the Cree-Naskapi (of Quebec) Act concerning a Cree Nation Government with powers and authorities beyond the scope of the Cree-Naskapi (of Quebec) Act.
The purpose of these negotiations is to expand Cree Nation governance beyond the Cree-Naskapi (of Quebec) Act powers and to establish the structures and powers of a Cree Nation Government and the relationship of such Government with Cree Bands and federal and provincial Governments.
The main object of the Cree Nation Governance Agreement with Canada will be to consolidate the establishment of the Cree Nation Government and to refine and expand its powers and other responsibilities.
For the Crees, the mission of the Cree Nation Government will be to exercise governmental powers and functions of a regional, or Cree Nation, nature. In this capacity, the Cree Nation Government would be expected to have two overriding responsibilities:
We envision a Cree Nation Government built on the CRA model while expanding its powers. The Cree Nation Government would be distinct from the Grand Council of the Crees (Eeyou Istchee) and from the Cree Bands.
Some examples of the law making powers of the Cree Nation Government could include:
In terms of family matters, and among other things, we would like the negotiations with Canada to address the power of the Cree Nation Government to develop rules that would apply uniformly in all Cree communities concerning the following aspects of matrimonial real property:
The development by the Cree Nation Government of regional standards and rules on these family matters would help ensure that every Cree and their families benefit from the same advantages and receive the same protections, no matter in which community they reside.
The governance negotiations with Canada have progressed more slowly than we would like. This is mainly due to three factors. The first is a change in the federal negotiator. The mandate of the first Chief Federal Negotiator, Mr. Jean Bazin, ended on March 31, 2011 and the appointment of his replacement, Mr. John Lemieux, was officially announced on September 22, 2011.
The second reason has been Canada’s previous insistence that the negotiations should be tripartite, with the Cree, Canada and Québec participating in talks on all matters. The third reason has been the time taken by Québec to take a position on the list of matters to be discussed.
There has been movement on all these fronts, and we expect that the pace of negotiations will speed up.
Initially, Canada has spent much time at the negotiating table insisting that the Federal Policy on Aboriginal Self-Government be strictly followed and that it apply to the whole negotiation process. The Policy calls for self-government negotiations to take place through trilateral negotiations involving the Aboriginal party, the Province and Canada. The Crees never accepted this Federal Policy to be the sole framework for the negotiations; they simply agreed that Canada could be “guided” by the Policy. This provision of the Federal NRA applied only to Canada and we believed that it would guide internal federal discussions but instead, it became for Canada an essential condition for the entire negotiations.
Also, the Federal NRA calls for Québec to be involved in the negotiations “…insofar as areas of jurisdiction of Québec are involved…”. Although Québec initially accepted this invitation, it has devoted most of its time and resources to the separate bilateral negotiations with the Crees over the governance of Category II and III lands.
The Cree are strongly opposed to Canada’s unilateral position. Québec has recently sent a letter to Canada to clarify their own position in respect to the Cree-Canada governance negotiations. They now seem to view their involvement as being more limited to certain areas of the negotiations.
The Cree, Canada and Québec will hold a meeting in the coming weeks in order to finalize the list of subject matters for negotiations and to have it approved by Canada as soon as possible.
Under the Federal NRA, Canada and the Crees were committed to making best efforts to conclude negotiations of a Governance Agreement-in-Principle within three (3) years, and a Governance Agreement within five (5) years, of the coming into force of the Federal NRA. On March 29, 2011, we agreed to extend the period to conclude an Agreement-in-Principle until March 31, 2012, but we remained committed to concluding a Final Governance Agreement with Canada by March 2013.
On October 25, 2011, the Crees and Canada finalized the discussions over certain amendments to the JBNQA including:
These proposed amendments are currently under review by Québec which is to be a party to these amendments.
A series of amendments to Section 4 of the JBNQA concerning the final territorial descriptions of the Cree Category I lands are under discussion with Québec and Canada.
On November 3, 2010, the Crees tabled with Canada a proposal for a consolidation of certain federal base funding arrangement. Initially, the funding currently provided to the CRA and the Cree Bands under the Operations & Maintenance Agreement and the Capital Grants Agreement and the regular funding to the regional Associations would be consolidated under a single long-term funding arrangement between Canada and the CRA. Other federal funding could also be incorporated into this arrangement in the future.
This proposal is currently under review by Canada. We expect this arrangement to be in place for the 2013-2014 financial year at the latest, which coincides with the renewal of the Operations & Maintenance Agreement and the Capital Grants Agreement. At a minimum, a new five-year agreement will be required under the terms of the Federal NRA. However, we are optimistic that a longer term agreement can be concluded in the coming months.
In the context of the governance negotiations, the Crees have proposed to negotiate the required legal framework to clarify the administration of this family matter. As you may be aware, there are aspects of this matter that go beyond Category 1A lands and involve provincial and federal jurisdictions. Moreover, Cree society itself is changing, people in our communities have more valuable assets and there are more conjugal relationships between Cree beneficiaries and non-Crees. These changes raise questions with consequences that deserve a consistent approach that will be recognized in all Cree communities and outside. These matters are already on the table for discussion with Canada in the context of the Cree-Canada governance negotiations.
The situation of Cree families has changed over the past decades. Provincial laws apply, with adaptations, to most aspects of Cree family relations. However, the use, occupation and possession of the family homes and the division of the value of rights or interests in such family homes are matters beyond the reach of provincial laws. Also, as the Commission pointed out “…Eeyou family law does not presently deal with matters relating to matrimonial real property issues in relation to Category IA lands…”.
As a result of this and the absence of explicit federal provisions on these matters, Crees are faced with an absence of formal rules when it comes to resolving disputes concerning matrimonial real property situated on Category IA lands. Specific rules should be adopted for Cree Category 1A lands and such rules should also be recognized by Québec and Canada.
For many years, the federal Government has tried to fill the legislative gap that exists in respect to these matters within the similar context of the Indian Act. The latest such attempt is the proposed Family Homes on Reserves and Matrimonial Interests or Rights Act (Bill S-2), which was introduced on December 8, 2011 in the House of Commons after its passage by the Senate on December 1, 2011.
Under the proposed Bill S-2, First Nations will have the ability to make laws concerning:
If enacted, the proposed Bill S-2 would apply to Indian Act First Nations and would fill the legislative gap that exists in respect to matrimonial real property in the context of Indian Act reserve lands.
However, Cree Bands and Category IA lands are not governed by the Indian Act and, as such, Bill S-2 would not apply to them. As a result, the legislative gap concerning matrimonial real property in the Cree context will still remain even if Bill S-2 is enacted. The Crees need specific rules that will be consistent with their particular legal context and governance regime.
We are now taking the approach that I described earlier: the adoption of Cree rules by the Cree Nation Government based on the provisions of the Governance Agreement to be concluded with Canada.
There is no doubt that the Crees, as a self-governing First Nation, can determine for themselves the rules that govern their family affairs and family relations.
We believe that the Crees’ inherent right to self-government supports the recognition of a Cree power to set the rules that govern family matters such as certain aspects of matrimonial real property on Category IA lands.
We also believe that such Cree power should be formally recognized by the Cree Nation, and also by Quebec and Canada, and that it should be clearly articulated and given expression.
Traditionally, the Crees dealt with such family matters, and disputes concerning the family homes were often resolved among themselves.
However, with our modern way of life, private home ownership, and family relations that now also include non-Crees and extend beyond our communities, the issue of matrimonial real property on Category IA lands has become a complex matter with important personal and financial repercussions.
The power to set the rules that govern such important family matters in a modern Cree society must be clearly expressed. People residing in one Cree community deserve the same level of benefits and protection as residents of other Cree communities. They also deserve the same rights and benefits as other residents in the Province. Our people deserve that the rules that govern their affairs and their family relations be fair and that such rules be based on clear and explicit authority.
The incorporation in the Governance Agreement of a regional power for the Cree Nation Government to address these family matters would help ensure that such matters are dealt with appropriately and uniformly by the Cree Nation as a whole.
We are confident that the Cree Nation Governance Agreement will provide an ideal instrument for the recognition and formalization of the Cree power to set rules concerning the specific aspects of matrimonial real property on Category IA lands.
We believe that the Cree Nation Government will represent an ideal forum for discussions on this important matter and for the adoption of uniform and consistent rules that apply equally in all Cree communities. And where appropriate, the development of such rules may take into account certain aspects of Eeyou law and Eeyou traditions, customs, values and principles.
In closing, Mr. Chairman, I am confident that our discussions with Canada will lead to a new Governance Agreement which will recognize and formalize certain powers for our Cree Nation Government to better address some additional aspects of our daily life on Category IA lands and as Eeyouch of Eeyou Istchee.
Meegwetch, Thank you.