If the Cree people had read the James Bay Agreement of 1975, translated word for word into written Cree, it is “highly doubtful” they would have ratified it, says Matthew Mukash, chief of Whapmagoostui. “We weren’t given enough time to have the text of the Agreement translated into own language using Cree syllabics, so our people could effectively comprehend its contents,” he said in an interview with The Nation about the issue of extinguishment and surrender of aboriginal rights.
It was only years later that Mukash actually read the James Bay Agreement. That’s when he found out the agreement “extinguished” Cree aboriginal rights. Mukash said extinguishment is part of a centuries-old scheme “to take and consolidate control over our lands” by the government. “The lives of aboriginal peoples in this hemisphere have been carefully manipulated and smashed from day one by foreign forces,” he said. “They were masters of conquest.”
Mukash, whose community will be most affected by the planned Great Whale project, issued a call to the Cree Nation for unity and for a concerted effort to fight back. “The Crees must sit down and have very serious discussions among themselves.”
The Nation: Chief Mukash, many Crees, especially our youth, are discussing the James Bay and Northern Quebec Agreement. I wanted to get your opinion of two sections of the James Bay and Northern Quebec Agreement of 1975.
In section 2.1, Crees and Inuit agreed to “cede, release, surrender and convey all their Native Claims, rights, titles and interests, whatever they may be, in and to land in the Territory and in Quebec, and Quebec and Canada accept such surrender.” In section 2.6, Crees and Inuit agreed to federal legislation that extinguishes all their “native claims, rights, title and interests.”
Mukash: There are certainly many opinions regarding these clauses. I am not a lawyer. I can only give you my opinion based on my personal research.
In order to understand what has happened to our lives as aboriginal peoples—not only in relation to James Bay project, but since our first encounter with Europeans—a brief history of Canada is essential. Each aboriginal nation had a system of self-government based on the traditional values and beliefs of its members.
While we had no trouble surviving without foreign intrusions, in a matter of centuries since the arrival of the Europeans we are barely surviving as peoples.
Over time, the Europeans who landed on this side of the Atlantic gradually increased in numbers, imposing their laws and systems of governments, and outlawing ours. All this had one goal—to take and consolidate control over our lands, the land they now call Canada.
Interestingly, an English king issued a proclamation in 1763, the famous Royal Proclamation. This imperial legislation recognized the presence of aboriginal peoples in Canada and stated that we were not to be disturbed or molested, and that our lands were not to be taken from us.
What are the concepts of surrender and extinguishment?
The intent is to take our lands—all of them. But they were faced with the “moral” problem, being “fair English and French-
men”: How do you do that when these lands clearly belong to the natives? Well, you dream up some concepts to make it all “legal”—a concept that aboriginal peoples are savages and don’t have concepts of government or land tenure, and just use the land like the deer. Or a concept that lands are empty.
The governments then dreamed up a concept called “surrender and extinguishment.” They used it hundreds of times elsewhere in Canada before they used it on the Crees in the 1970s. This concept says that if you get the native people whose land you want to sign a piece of paper saying they have surrendered all their lands, then the Crown has extinguished those rights and that’s that. No matter if the native people concerned are tricked, defrauded, don’t speak English or French, or don’t understand what’s happening. No problem, the land is yours!
The fact is also that Canada and Quebec would never have signed an Agreement with the Crees without such clauses, because they had not fulfilled the requirements of the 1912 Quebec Boundaries Extensions Act.
What is the Quebec Boundaries Extensions Act?
What is Quebec today and a portion of Ontario were in the last century called Rupert’s Land. King Charles, who had never been there, gave it as a present to his cousin Prince Rupert. During French rule and later during the English rule, Quebec was just a narrow strip of land—actually Iroquois and Abenaki and Atiquamek and Montagnais lands along the St-Lawrence River.
In 1898 and again in 1912, Inuit, Cree and Algonquin lands in what is known today as Northern Quebec were granted to Quebec without our knowledge. Canada placed a condition on this “grant”—that Quebec must first negotiate a surrender of aboriginal rights over this territory before exploiting the resources there. Canada may have wanted a voluntary surrender of those rights so as to get around the terms of the 1763 Royal Proclamation regarding aboriginal rights.
The interesting thing is all these so-called claims and transfers to the Crown, to Prince Rupert, to Quebec, took place without our being told!
So the 1912 Act paved the way for the surrender and extinguishment in the James Bay Agreement?
Yes. Quebec politicians were reluctant to accept the restriction on development in the 1912 Act. In the early 1970s, Quebec built a major highway into the heart of Cree traditional hunting territory, Eeyou Astchee, without consulting the Crees who lived and survived off the land for thousands and thousands of years. Without warning, Quebec began building hydro-electric installations on Cree ancestral homeland, impounding rivers and the very heart of Cree culture and survival.
Only as a result of pressure from the Crees opposing the James Bay project did Quebec eventually agree to enter into an agreement. Quebec felt it had to comply with the 1912 Act because the general public was aware of the issue as a result of lobby efforts of the Crees.
[Premier Robert] Bourassa’s tactic was to spend as much money as possible and get manpower and equipment to the territory, so it would be difficult to reverse his government efforts to develop the north. In my opinion, the “balance of convenience” was a predetermined argument in favour of the Quebec government.
By this argument, the judges justified to themselves with nice language the stealing of our lands and the damaging of our rights and our way of live. Everything was very well planned to ensure that Quebec’s goal to take control of the resources in the north would come about.
Do you think the Crees were misled into believing they had no other option except to sign the Agreement?
There are certainly many schools of thought on this one. It is important to remember the government of Canada is founded under the same principles as the European system of governments. They were masters of conquest. The psychological tactics used by governments to conquer aboriginal and other peoples around the world obviously had been long-developed by the time the Crees had to deal with the Canadian federal and Quebec governments.
Instead of using the military to conquer us, the government used bulldozers, our isolation and our ignorance of these devices and questionable “legal”—but totally illegitimate—concepts.
When analyzing the events that have taken place since Columbus landed in America, it is easy to see that the lives of aboriginal peoples in this hemisphere have been carefully manipulated and smashed from day one by foreign forces. The Crees were no different. We tend to regard ourselves as inferior to other societies because of the forced dependence on modem tools and medicine, the impact of diseases, welfare, income security and other factors. We have become defeatists. Such are the results of the psychological tactics of governments.
We have to overcome these attitudes. We must remember it was the aboriginal peoples who helped the first Europeans survive when they arrived. During the fur trade era, the skills of aboriginal people were exploited by the Hudson Bay Company. This is what made the company so prosperous as a business entity.
Actually, it was because of the fur trade that Canada became independent, economically and politically. Aboriginal peoples ought to be thanked for this contribution, but that never happens.
It has been said the Crees were under duress and misled in the negotiations on the James Bay Agreement. Is this true?
Given the circumstances we faced in the early 70s, I do not think anyone can deny we were forced to negotiate and had no practical alternative but to sign.
Our leaders no doubt negotiated under duress. The bulldozers were destroying our traplines as our leaders negotiated. The federal government threatened to cut our funding if we did not sign. Although we initially won in court, the judgement rendered in our favour was immediately over-turned. The Supreme Court of Canada had failed us. We were being told by two levels of government that we had no rights, that we were squatters on our lands!
Deadlines were imposed upon us. No negotiation session ever took place on Cree lands. Booze often fogged the minds of our leaders as they negotiated. They were kept off-balance by the constant demand to always fly south and north for months and then years.
The governments did not deal with us as equals. We weren’t given enough time to have the text of the Agreement translated into own language using Cree syllabics, so our people could effectively comprehend its contents.
No government representatives would ever sign an agreement on behalf of the nation they represent if it is not written in the language of that nation.
I am certain few Crees, if any, would have ratified the Agreement if the extinguishment clause had been translated literally into written Cree. Besides, the rights we supposedly gave up were not defined at all in the Agreement. The Agreement simply reads “whatever they may be,” referring to these rights.
Should our leaders have insisted on a translation?
Not really. As with the content of the Agreement, I do not think they were given much choice. Canadian law establishes that there are only two official languages in this country—French and English. If the Crees hunters and elders had read the Agreement, translated word for word into written Cree, it is highly doubtful they would have ratified it.
I am sure the governments knew this, so they imposed deadlines on us. In 1994, the impact statement of Hydro-Quebec in relation to the proposed Great Whale River Project is being translated into Cree. We were never given that chance back in 1975 in regard to the original agreement.
How was the surrender and extinguishment clause explained to you?
It wasn’t. There is no way to explain the surrender of rights in Cree. For one thing, there is no Cree word for “rights.” Rights in English refer to very specifically drafted laws. Historically, the Cree people have developed values which are well understood by everyone in Cree society. They are a natural part of our life on the land. We could never have thought that anyone would come and challenge this by splitting hairs about what it all meant.
What was your understanding of the events leading up to the signing of the Agreement?
I was at the community meeting when our advisors broke the news. They said we had no choice; the project would go ahead whether we signed the proposed agreement or not, because we had lost in court. The contents of the Agreement-in-Principle were briefly explained. There would be compensation, income security for hunters and the federal government would continue to provide the same services it did at the time.
The Crees would give up only the portion of their land that would be underwater. To me, this was bad but seemed to make sense. The rest of the Territory would be divided into three categories for different uses. There was no mention of giving up all the land in exchange for government-recognized rights. We understood the Crees were only agreeing to the construction of the La Grande Project.
I did not even know that the Great Whale and NBR projects were mentioned in the Agreement until I first read the Agreement in the early 80s. It was only then that I saw Section 2.1 and 2.6. No one I knew in 1975 ever understood or ratified these clauses. We did not even know they were there!
What exactly did the Crees surrender?
The Crees never surrendered anything, period. Surrender and extinguishment of fundamental human rights is not possible. It is illegal, illegitimate and morally wrong. You could not surrender your Creator-given rights if you tried. It’s like telling someone, “Although you have legs to walk with, you no longer can walk because you surrendered your Creator-given rights to walk.” We’re talking about fundamental human rights here, our relationship with our lands, our connection with the earth.
In the Agreement, we are asked to surrender our Creator-given rights to our land, to a nation-state which is created by Man. Instead of our Creator, Canada now controls and determines what our rights are and ought to be through its laws. The fate of those rights are then determined by the nation-state through the process of interpretation in the courts.
Aboriginal rights, therefore, could eventually be taken away anytime. For example, although we may believe that our rights to hunt, fish and trap over our Territory are protected under the Agreement, the right to practice these rights diminish as more land is developed. The strategy of governments is to eventually assimilate all aboriginal peoples into the “mainstream society.” We must not allow this to happen.
It is easy to see then, that the Crees were misled.
Well, our advisers sure could have done a better job at advising us property. For instance, a band election was due in June 1974 in Whapmagoostui. A new Chief and two Councillors were elected.
I was one of the two Councillors. The Cree Nation advisers apparently said it was better to have the same people in the Council because they had a better understanding of the issues currently discussed.
The people of Whapmagoostui were never advised to ratify the continuation of the Band Council’s term, which ended in June 1974. So the results of the 1974 Band Elections were forgotten. Just a little over a year later, the chief whose term should have ended in 1974 signed the James Bay Agreement.
Did the Crees give up too much under the Agreement?
I would say yes and no. “No,” because the duress, the lies and our ignorance meant we were forced, tricked and had no choice. This was a plan started hundreds of years ago. It was all made to look as though our leaders made choices, but really, in the end, they had no choices.
“Yes,” because it’s easy to say, 15 years later, our leaders “gave up too much.” Perhaps they did. The Quebec government claims all the resources including the subsurface resource rights on Cree lands. Because of this claim, the rights of Crees to hunt, trap and fish over the Territory can be taken away as the need to exploit subsurface and other resources increases. We have to remember that we lost a court case against the governments under the “balance of convenience” theory, which favours the members of the mainstream society whose numbers are greater than the native peoples in the north. Unless we stop them, the governments will continue to use this argument.
Under the Agreement, the Cree and Inuit aboriginal nations are given only municipal-type powers. We can never expect to get a share of royalties because Quebec claims that this, too, was extinguished in another clause in the Agreement. Compensation is in the form of one-time funding. The government still has to approve by-laws enacted by the community leaders. Governments still have the right of expropriation of all categories of lands, including Category IA lands. This hardly fulfils the aboriginal peoples’ concept of self-government. The Agreement grants not self-government powers, but self-administration powers.
But our leaders can never be blamed for this. They did their best under the prevailing circumstances. We must blame those who are really responsible—the governments.
Some Cree leaders say the Agreement has brought prosperity to the Cree Nation in economic terms and in terms of control of the entities created under the Agreement.
What the Agreement simply did was coincide with the delivery of services already guaranteed under Canada’s Charter of Rights and Freedoms. Health, education, housing, welfare and other programs were already in place prior to the signing of the Agreement, however inadequate. The Quebec Indians and Inuit Association was already in place representing the Crees in negotiations to get proper housing, more effective health, education and other programs.
If you had been a lawyer back in the 1971 representing the Crees, what would you have done?
It’s easy to have perfect hindsight. Cree clients had never given up their rights over their ancestral lands or signed a treaty with any government; existing international law had already established that “all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
So I would have asked my clients to make a declaration as a people under existing international law. This would have forced the other side to prove my clients are not a people under international law. For thousands of years, the Crees were an independent people, economically and politically.
But more importantly, I would never have advised my clients to sign an agreement that contains an extinguishment clause.
Would the Crees be better off if they didn’t sign the Agreement in 1975?
It may have been better to wait and allow later generations to deal with the issue. But we can hardly blame our leaders, given the situation of our people at the time. The impacts of the government’s brainwashing policies had taken their toll. We had adapted to the welfare mentality developed with the welfare offices present in each community. We had been hit hard with foreign diseases disabling many of our people from continuing their traditional way of life, and that only modem medicine could heal. Alcohol had taken its effect. It was perfect timing for the governments to come in with much pressure and offer seemingly large sums of money. The governments were capitalizing on our weaknesses and ignorance. Did we have any choice? I don’t think so. Did we know or understand what was happening? No. Did we ratify the Agreement with a full knowledge of its contents and its implications? Of course not!
Do you think the complementary agreements which amended the Agreement further legitimized the surrender and extinguishment clauses?
Sometimes it is said that because Hydro-Quebec comes to the Crees for a signature each time they needed a new project or a project change, this has preserved the principle of Cree consent to further development. I don’t buy this at all.
As time goes on, if we keep signing agreements, it will be argued in 1994 or 1996 that we accepted extinguishment for once and for all. I don’t accept that, but it will be argued.
The fact is, “surrender and extinguishment” is mentioned in the Agreement. We have to deal with that. But more importantly, the Agreement is not cast in stone. Neither are the complementary agreements. If a constitution of a nation-state can be changed or modified under the process of law as the Canadian constitution was changed in 1982, the same can be at any time to the James Bay Agreement. Nobody is telling Quebec the constitution can’t ever be changed because what they signed in 1876 no longer meets their aspirations. What was Meech and Charlottetown all about?
The parties to the Agreement must come together and study the events surrounding its formulation and propose the necessary changes to correct the wrongs. If this is not done, the human and economic costs will be enormous, and there will never be social peace in Quebec.
The complementary agreements are a sign that the original Agreement did not establish the kind of relationship that we thought we got with the governments of Quebec and Canada. They are also a sign that the governments did not fulfil their obligations under the Agreement.
They promised they would provide us with the essential services our communities need, and yet in 1994, Chisasibi, the most impacted community by hydroelectric development, is still without proper sanitation facilities. There is still inadequate housing in the Cree communities, our economic ventures are not viable and so on. Isn’t that enough of a proof that the governments are not willing to work with us?
What is your reaction to the Inuit negotiations on the proposed Great Whale River Project?
I have deep respect for the Inuit. I am not aware of the nature of these negotiations. But I think they are only conducted for public-relations purposes in favour of Hydro-Quebec.
There are several outstanding issues that have not been resolved under the agreement between the Inuit of Kuujjuarapik and the Whapmagoostui Crees, particularly the Areas of Primary Interest above the 55th parallel. The aboriginal rights of the Whapmagoostui Crees over the area in question are still intact.
The most productive traditional Cree hunting grounds and the burial sites of our ancestors are in question. Hydro-Quebec is negotiating with the Inuit as if we do not have any rights over this area. I would assume the costs of these negotiations are budgeted under “Public Relations” at Hydro-Quebec, [laughter]…
Again, it’s a tactic by Hydro-Quebec to spend as much money as possible so that, once again, the “balance of convenience” argument can work in their favour. We can learn a lot from these negotiations about the tactics of the proponents of these projects.
If you look at the transcript of the hearing on the proposed Great Whale Project, you will see that not one single Inuit person is in favour of this project. I don’t wish to seem critical of the Inuit leadership, but I think they need to listen more to the people they represent.
How can the Crees correct the flaws of the James Bay Agreement, especially the extinguishment clause?
As I pointed out earlier, the extinguishment clause in the Agreement, and it is true for all treaties containing such clauses, is a historic tactic of the government to take possession of resources on aboriginal lands over the long-term.
“Extinguishment” has been interpreted by the courts in Canada, but only in terms of the laws made by governments which are doing the extinguishing, and of course they say it’s legal. The problem while waiting for its interpretation in light of the current understandings of human rights is that, in the meantime, developments eat away at aboriginal lands. It’s done so it eats away our soul.
And there is always the danger that the courts will interpret extinguishment in favour of the Canadian nation-state, because courts are necessarily instruments of the nation-state itself.
What’s the best way to deal with the issue of extinguishment?
Because of the way the courts are, I think aboriginal peoples have a far better chance of settling outstanding aboriginal issues through the exercise of our political power. We Crees have done it on Great Whale, in Canada and internationally. We can do it if we are unified and strong.
I also think it is critical to deal with this now. The Crees must sit down and have very serious discussions among themselves on the issue. The Crees have to someday make certain declarations on their own under Cree law and existing international instruments. Because our lands, resources and way of life are now threatened, we have to determine our own political status, as well as economic, social and cultural development.
It is important to keep in mind international awareness is increasing about the need to recognize the rights of indigenous peoples in a United Nations universal declaration. Once this has happened, it will no doubt be useful in establishing a perpetual relationship of mutual respect and understanding with the nation-state governments.
What we ought to be looking for is a meaningful relationship, a real partnership between us and the nation-state. With one dominating the other and imposing paternalistic actions, as was done on the part of the governments back in the early 70s, this is not possible. We must deal with each other as equals.