The Cree Naskapi Commission just released its 1996 Report. The Honourable Justice Réjean Paul, who is Chair of the Commission, gave The Nation a chance to look into this year’s recommendations. Some were expected and others were as surprising as this man turned out to be. He talks candidly about the lengthy court process in Canada. The need fora mediation process to speed things up. Judge Paul is a refreshing breath of air in what most people perceive as the stuffy bureaucracy of government.
Judge Paul has been chairman for 10 of the Cree Naskapi Commission’s 10 years. He talks about a need for mediation and increased powers for the CNC as well as updating its mandate to reflect today’s needs.
The Nation: In the past and in this latest report the CNC talks about the unfulfilled obligations of the James Bay and Northern Quebec Agreement (JBNQA), you seem to feel very strongly about that?
Justice Réjean Paul: Yes, well, let’s face it, the Agreement is from my point of view a modern treaty which was signed by the Crees in 1975 and the Naskapi in 1978. A lot of the obligations have not been fulfilled by either the federal or mainly by the provincial government. And to a certain extent, the federal government.
So the Crees had to go to the Superior Court and they filed a suit in 1990, but since then nothing much has happened. Since 1994, nothing has happened on this file so I figured that a lot of things can be done. A lot of things can be done through mediation in this case instead of going through the very long process of the court system.
I was involved, for example, in the Adams case, which was handed down last week. Well, that case started in 1984. The judgment in the first instance, I sat on appeal in 1985. Eleven years after, the Supreme Court of Canada has rendered a very good decision in my opinion, in favour of the Mohawks. And the Coté case was handed down in favour the same day of the Algonquins. But the court process is very long if you go up the ladder. Instead of going through that process we found out that based on our experience mediation is more effective and less expensive for the communities.
Say, for example, you look at Chapter 28 (“Economic and Social Development—Crees. – Ed. Note) in the JBNQA. All of the socioeconomic section has mainly not been dealt with by the authorities. This is of great concern to me because the only socio-economic funding, to my knowledge, that has been granted was for Ouje-Bougoumou. And the other communities, they have from our point of view, according to the Commission, a lot of obligations like that which have not been fulfilled.
We can talk about Chapter 22 (Environment and Future Development North of the 55th Parallel). We can talk about Chapter 19 (Police—Crees). Here and there are bits and pieces of obligations that have not been fulfilled. We all know that the provincial government is in hard times, a difficult financial situation and the federal government also. The way to cope with the situation where you have financial obligation, in my opinion, will cost a lot of moneys. Whether you are Hydro-Quebec or the federal authorities, a lot of these obligations cannot be met right now if it’s cash payments or some other kind of payments.
Instead of that maybe we should look at revenue-sharing from the hydro-electric projects, in order for the government to fulfill their obligations. And for the Crees, to have some sort of substantial income coming on a yearly basis to all communities. That might be an interesting avenue to explore in the years to come. This can quite easily be done through mediation.
In fact what we found out is… Look at Ouje-Bougoumou. In 1988, when I was appointed mediator, I had to deal with the Ouje-Bougoumou file. As you can see they were spread out all over the place, living in Third World conditions from everyone’s point of view. At one of the first mediation meetings that I chaired, the federal authorities refused to grant $50,000 in order to do a feasibility study on the village. And finally I had to push hard on the federal government.
What has happened? These people have their home and probably the most beautiful village in Canada. They were granted the UN award last year. It’s quite an achievement. And that was realized in three years. This village started in 1992.
In comparison if these people had gone through the court process, Ouje-Bougoumou would not exist. We don’t know what would have been the end result. There are a lot of things that have to be done, legally speaking, to recognize Ouje-Bougoumou as the ninth Cree Band. We have to amend the JBNQA and the Cree Naskapi Act. Transfer the land from Mistissini to Ouje-Bougoumou via referendums and the quorums are too high. They have tried desperately to have their land under Category I and recognized.
They have had tremendous support from Mistissini. Still not enough people showed up to vote. Even though 98 per cent of the people accepted the transfer, nothing has been done. We’re dealing with the report. The quorum report is a very sensitive issue. We have to downgrade the percentage in some areas.
So you see a lot of voter apathy?
So you are actually looking at changing the quorums?
Changing the quorums, we have certainly suggested that to the Crees and the Naskapis. They have supported that. The GCCQ and the Naskapi Band have supported that and insisted that we raise that with the proper authorities at a certain level. We recognize that, we have seen that in previous reports, but now it is time to act.
When you’re talking mandate, do you see that as a need to expand the CNC’s mandate?
Obviously we are working with an old mandate dating back to 1988. This was recognized by the inquiry into the commission in 1990 that the CNC should be granted the opportunity on mediation with the unfulfilled obligations or any other problem.
It’s quick. We are doing that for other matters at Superior Court. Why shouldn’t we recognize that in the Cree Naskapi Act in order to give a really good legal standing to the Commission?
One of the other things that you talked about is the need for changes in self-government?
We are concerned about the amendments. We are very concerned about the amendments to the Indian Act. What impacts will be felt by Cree self-government because of these amendments? The Cree self-government is the first in Canada and we have to protect that. We are supported by that in the preliminary findings of the Royal Commission. At the Commission we want to be sure that the Cree self-government will not be downgraded by any amendments to other acts. We are warning the parties we will be looking very closely at any amendments that might downgrade self-government for the Crees.
What areas is the CNC worried about?
I’m worried about the territory. First of all, in the self-government issue the traditional way of life is very important for the Crees and the Naskapis. Now with the harvesting rights and other rights that are given to non-Native people within the territory, there is a danger that the traditional way of life might be put in jeopardy. We are looking very closely at that. The Crees have brought the harvesting issue up to us very clearly. The Crees are working very hard to protect their traditional territory. We have to be very careful what is given to the non-Native people within the traditional territories. That is why we are raising questions. It’s in order to assure the people that we are monitoring the situation and if anything happens we will react promptly.
I know one of the issues was the moose harvesting. Are you doing something about that?
No, we are reporting on that. As you know we are a federal board and obviously we cannot officially deal with the province of Quebec based on our mandate. We do keep in contact with the government of Quebec and if the Crees ask us to intervene, we will. Based on the recent decisions by Adams and Coté in the Superior Court I think the Crees have a good standing.
What did those decisions mean?
Adams and Coté said mainly that provincial regulations were mainly regarding fishing and that the Mohawks did not need permits. The law was not applicable to them because if they were fishing for food it was a traditional right not attached to any part of land. If they occupied the territory and hunted and fished for food, then they are still entitled to that. The issuing of a provincial fishing permit was discretionary in the hands of the Minister of Fish and Game in Quebec, and the Supreme Court said no.
If there’s a conservation issue then the laws might be applicable to Native people. If the government fails to prove that they need to protect the survival of the particular species, then the Natives are allowed to fish without permits or limitation. On the other hand if there is a need for conservation legislation, then the first ones entitled to hunt and fish for food are the Natives in their traditional territory and not the non-Native sportsman.
So that’s an important decision from the Court and it’s a great victory for Native people in Canada. Of course, when I rendered my decision I was bound by the decisions of other courts in 1985. We did not have at that time the enlightened views of the Supreme Court to guide us (laughter)… It was only handed down last week.
That’s why the Mohawks lost before me. I must say very clearly I had to apply the law, but I knew that the Supreme Court, with the Charter of Rights especially, could deal with that under Section 35 (Recognition of existing aboriginal and treaty rights). Now we cannot say any more that Section 35 is an empty nutshell. The decision was a great victory for Natives in my view.
What powers does the Commission have to force the government to live up to its obligations?
We can only make recommendations. But of course in a capacity of mediator, I have a moral authority and the parties would think twice before disregarding any recommendations from my part. Unless I’m totally out of bounds. If it’s reasonable and secondly I feel that it’s just a question of fairness to grant something to these people.
Up to now we have been very successful in our mediation. Think about the O&M Transfer Agreement. The question of the interest rates regarding the Ouje-Bougoumou Agreement. All these mediation issues have been dealt with very successfully and quickly. The major problem is it’s informal. It’s an informal process without the decorum of the court, lawyers and objections, etc. We tried to reach the same target at a swift speed, that’s the best way.
I must say that my Cree and Naskapi friends really like that because we sit around and discuss. I may intervene if it gets a little bumpy to calm people down and get them a cup of coffee, go out and speak to some individuals in the back room and come back to the table. It’s a very flexible process and we found out at the court it’s preferable. Most of the cases dealing with Native affairs, the judges have said mediation is the way to get out of this. With all the experts you have to listen through the day and then you finally say, “What are we trying to prove?” (laughter)…
In mediation we go to the important issue. For example, in our report you will see that we, on purpose, raised the question of the Chisasibi airport. Every year they encounter a major problem with the spring thaw. Planes cannot land or take off two to three weeks. The Cree Regional Hospital is located in Chisasibi.
I was a victim of the airport myself so I understand the problem. I landed at the airstrip and the person who was going to pick me up was delayed. There was no airport building and it was around minus 30 or 40, I think at the time. There were two rusted tanks in the vicinity so I was huddled between the two trying to avoid the wind.
So I can say you need a building there and Chisasibi desperately needs a proper airstrip. I know it’s in Block D and belongs to the SDBJ, but nevertheless this problem should be solved and solved very quickly. I don’t care who is responsible for that. That’s the way I feel and how I think the Crees feel in general. Lives are at stake. I’ve said to the government, “Hey wake up, it’s about time we upgrade that and have a proper facility in Chisasibi.”
Now some people will say in Radission you have an airstrip and it’s a proper facility. Well, in the case of an emergency you have a lot of planes going to Chisasibi. In an emergency Air Creebec can move very quickly to Chisasibi and bring the patient to a hospital anywhere. The ride between Radission and Chisasibi during the wintertime is not an easy one. People might think it might take you an hour, but I’ve driven in the winter-time and I know what I’m talking about. Those are the things that should be dealt with by mediation as soon as possible.
Would you consider housing to be one of those things also?
This is not just a Cree/Naskapi problem. This is a national problem. Native people are in desperate need of proper shelter. Their is a growing boom in the Cree communities and we have to face that. Based on the figures we have, I think we have to double the number of houses in the territory in order to face the baby-boom. I saw some people living 12 to 14 in the same house.
That’s clear-cut nonsense when you’re a young couple trying to start a family. You have to get them the proper shelter with the proper facilities.
The situation is unacceptable by any standards. Southern standards or northern standards.
Say the Commission comes up with a way to bring the Crees/Naskapi up to southern standards, will it have an effect on other Native bands across Canada?
Yes. A lot of Native bands and I’ve been getting calls from across the country asking me what’s going on in the Cree communities. This is because the Crees have a modern treaty. The others don’t except for the Sechelt band. They are saying, Should we go that way of the modern treaty if we get back to square one and don’t get the proper facilities?
So the Crees are setting a precedent every time they do something based on the obligations in the JBNQA. It’s very important that we settle according to that agreement all the outstanding problems. The housing problem is a major issue. It has been raised many times and we reflect that in our report.
So what do you tell those other communities? That it will take them away from square one?
Well, I think that a lot of good things have happened. The Crees, as you well know, were in front of a fait accompli they were forced to fight. They were forced to fight because they did not get anything because the bulldozers were already there. Face it, we cannot revise history.
The leaders at that time, Billy Diamond, Robert Kanatewat and others really did a tremendous job under duress to a great extent. The younger generation tends to forget that. These guys were outstanding based on the tools they had at their disposal at that time. Let me tell you it was to the determent of their health and families. I would like to see the Agreement fulfilled by the 20th century.
We can criticize that but I don’t think we should criticize that because they were the best under the circumstances. But now it’s time to look at the Agreement and to a certain extent modernize it. After 20 years we need to bring that up to contemporary standards. We have to look at the contractual obligations and say they are obligations. Some are dubious but some are very clear and we have to settle them. The best way to settle them in my opinion is through mediation. If you go the route of litigation you’ll see each other until the year 2006. That’ll be with the judgment of the Supreme Court of Canada. It takes 10 years.
One of the interesting recommendations is the change that the Commission wants concerning the infamous 10-year clause?
We want to renegotiate the 10-year clause to take into account the situation when you have compelling reasons to leave because, for example, of lack of housing, education and employment opportunities. We recommend that Cree beneficiaries not be unfairly penalized. We have had some requests from Cree beneficiaries who were in that situation and we say that it might be unfair that they lose their status and the privileges when they have good reasons to be out of the territory. We are asking the Grand Council to look at the situation very closely. Though it doesn’t happen often, we are getting more requests from outside the communities all the time. We are concerned about that because there are a lot of benefits attached to the beneficiary status.
Look at the younger generation. A lot of them will lose their status because they are studying. You are penalizing your best beneficiaries because they want to be professionals. Lawyers, doctors, etc. A doctor takes 10 to 12 years to be a specialist. So what will happen? For them to lose their status, that’s nonsense, let’s face it.
Another recommendation deals with development and you refer to the 400 new jobs being required for the Crees every year. What is the Commission looking at?
In the report we emphasize resource-sharing. I’m pushing for the joint ventures in the communities. There should be positive discrimination where the Crees get first choice of the jobs in the communities and the territory. It’s very important that the Crees receive first-class treatment when there is a joint venture with the communities. That way we can create the 400 jobs a year. .
But we have to attack that as soon as possible, otherwise you get all kinds of companies going to the Cree traditional territories. Look at something like forestry. They are taking out the resources of the territory with non-Native workers. There isn’t very much left for the Crees in that scenario. I’m pushing towards joint ventures in order to create jobs for the Crees. A lot of young people have phoned and talked about that. I think they would be an asset for any company because they know the territory and the way of life, etc. They would be very good workers. We have to think about that or we would be missing the point.
You can have a fantastic agreement, but if your people are starving then you haven’t really accomplished much.
The development that is happening now, is it in accordance with the JBNQA. Is the government following its obligations?
Well, it’s not clear. At they time of the signing there were a lot of pious vows, I think, and it was vague to a certain extent. But we have to look at what’s going on right now. Resources within the territory should be looked at by the Crees and they should push for both governments to maintain rights, especially on Category III lands. If you cut the wood you are cutting the traditional life of the Crees.
One of the ways to deal with that is to have an agreement like the Barrière Lake Agreement. You have sound resource management with a surveillance committee by the Algonquins. It’s in order to protect the territory, but they also get revenues from that. Of course, they have other problems in the community, but these can be dealt with if they agree on the leadership.
In the Cree territory, I am concerned despite the 2.1 clause (Surrender of Rights). If we want to protect the territory and the way of life, we have to think of that. You have to go back to specific sections in the JBNQA. Crees were allocated Category I and II but Category III is also part of the traditional lands.
So if we want to protect the way of life, we have to protect the territory the same way. That’s why the Crees have to develop and exploit the resources in the territory so that it will be under the control of the Crees to a certain extent. Then you’ll see the Cree manpower at work.
Another problem is environmental assessment and in most cases this doesn’t happen.
Yes, this is a major issue.
This is part of the JBNQA and there is a disagreement about it. What’s your position on it?
This isn’t brand new, but I do think in the JBNQA the environmental section should apply because it’s a modern treaty. It supersedes the Environment Act in my point of view. I’ve told this to the government. They may just say it’s Judge Paul’s point of view, but I think that the government would have a bumpy ride to convince a judge that a treaty has no precedence over the laws of general applicability in the province.
The report talks about changes to the firearms laws…
That was raised by the Grand Council of the Crees. We think that the Council should be involved in the drafting of the regulations because there is a danger in these regulations. I am a hunter myself and these regulations are difficult to abide with.
If you’re living in the Cree territory like your ancestors, there should be accommodations. That’s what we say to the Grand Council and the Department of Justice, the Crees should be involved. It will help out the other Native communities also but the fact remains that the Cree have a modern treaty. We have to protect the traditional way of life and firearms are at stake obviously.
The Crees have been in negotiations with Quebec for over a year now. What in your view have they accomplished?
Well, I’m not updated on the provincial level. It’s totally separate from my mediation roles. I know Chief Billy Diamond is involved in that. There’s also the Vena process at the federal level.
This is a personal view, but I find the Crees tend to divide their mediation issues. There is a danger that too much is too much. We should have a central table to determine priorities with lesser priorities, etc. We can determine the highest as we go along. If you have three or four processes, you may lose in the end.
With a central table and a mediator both parties will stick to the agenda. That’s a personal view and it’s up to the Crees to decide what political or legal route they should adapt.
Finally, I must say that we are in their hands. We are there to help. We did so in the past and we are anxious to do so in the future.