On November 13, 2014, 40 years after the signing of the Agreement in Principle leading to the James Bay and Northern Quebec Agreement (JBNQA), Chiefs of the Innu, Attikamekw Nations and certain Anishinaabe communities announced the formation of a coalition to defend the Aboriginal title and rights they claim were extinguished in the territory covered by the JBNQA.
The goal of their opposition, they state, is not to attack the JBNQA but rather to have the “extinguishment” clause declared illegal and inapplicable to them.
This opposition is not new and in 1975 was the object of representations to Canada and Quebec and court proceedings to prevent the signing of the JBNQA.
I believe it is important to set the record straight historically, to explain briefly why the Cree Nation does not agree with the coalition’s interpretation of the so-called “extinguishment” clause and to reiterate the position of the Cree Nation regarding the rights claimed by the coalition in the JBNQA territory.
In 1912, the federal and provincial statutes extending the boundaries of Quebec to Ungava Bay provided that Quebec would recognize the rights of the Indian inhabitants in the territory and obtain surrender of such rights in the same manner as the Government of Canada had done elsewhere.
By the time of the James Bay Project (1972), neither Canada nor Quebec recognized the Aboriginal rights of the Indians. After a lengthy court hearing, Justice Albert Malouf granted an interlocutory injunction halting the James Bay project on the basis of Cree and Inuit rights. This judgment was suspended shortly in appeal.
The Indians of Quebec Association (IQA) supported the Cree and Inuit in the court battle. The Innu, Attikamekw and Algonquins were part of the IQA. However, the objective of the IQA was to obtain a global settlement for all Indians of Quebec. Because of the clash between Cree and Inuit rights and the hydro project the Cree and Inuit decided to negotiate.
Canada and Quebec insisted that the JBNQA and federal legislation deal with all the portion of Quebec transferred in 1898 and 1912 (about 60% of the land within Quebec’s modern boundaries) and that the rights in and to this territory of all Indians and all Inuit would be extinguished but without prejudice to the claims for compensation of any other Indians or Inuit. This extinguishment related only to the right to the exclusive use and occupation of lands.
After the Agreement in Principle, the Crees met with the Innu of Schefferville and the Naskapis and urged them to negotiate. The Innu refused and opposed the extinguishment clause and tried to block the signing.
The Naskapi, despite the presence of the extinguishment clause in the JBNQA and in the Bill C9, entered into the Northeastern Quebec Agreement in 1978.
The Crees have taken the position that the clause did not include natural resources but only a sharing of the lands. This position was asserted in the Great Whale River and forestry proceedings and is implicitly recognized in La Paix des Braves.
Nonetheless, the Crees do not concede that their Aboriginal rights have been extinguished. Furthermore, the last 40 years have seen some 24 amendments to the JBNQA and a total of 75 agreements involving the Cree Nation and Quebec and/or Canada.
Finally, the Cree Nation has participated in meetings to attempt to accommodate the traditional activities practised by other First Nations in parts of the JBNQA territory. The Cree Nation is prepared even to consider amending the JBNQA.
However, the Cree Nation is not prepared to reopen the constitutionalized JBNQA, so recently described by the Supreme Court of Canada as an epic achievement.
