Part III: Cree Autonomy and the Aboriginal Rights Agreement
The Cree approached negotiations cautiously, despite all the effort they had put into trying to get meaningful negotiations started. They were in a difficult position as they were already experiencing the impacts of development, which had been permitted to continue while Mr. Justice Malouf's ruling was appealed.
Early in the negotiations the Cree formed their own political association, the Grand Council of the Cree (of Quebec) (GCCQ), with the chief and another leader from each community on its Board of Directors, and an executive group of four regional leaders. The Grand Council took over organization of the negotiations. However, the Cree people remained the final decision-makers as to whether to accept the results of the negotiation.
With respect to project modifications, the negotiations concluded several changes to project plans.3 The location of a main dam was changed. Funds were provided for remedial work to be undertaken as future impacts were experienced, and the negotiators described in some detail the project that could be built and agreed to authorize only a project eonforming to this description. Because the project was still being planned, this assured that any future changes would require new approvals."4
These compromises reduced the direct consequences around the village of Fort George, now relocated to Chisasibi, and assured future participation for the Cree; but they also meant very substantial impacts on the land and wildlife of the region. Despite major efforts by the Cree, no other major project modifications could be agreed upon. The government agreed to recognize the right of all Cree to hunt, fish, and trap all kinds of animals at all times, over all the lands traditionally harvested by them, on the understanding that their harvesting rights would be subject to conservation of wildlife. Conservation was an objective the Cree were pursuing on their own in any case, and they were careful to get an agreement on a definition that recognized their own needs.
In addition, it was agreed that Cree harvesting would take precedence over sport hunting and fishing by non-Natives. This priority was given effect through a series of measures, including exclusive hunting areas and species. Approximately 16 per cent of the land area of the region was set aside for exclusive Cree use, an area called Category II lands. From the government point of view the Cree recognition of the principle of conservation and of some non-Native access to wildlife made the provisions acceptable. From the Cree point of view the government recognition of their rights and of their priority of access to wildlife made the provisions acceptable.
Differences then arose over whether the governments or the Cree would have jurisdiction to implement these provisions. Whoever did would be bound by terms of the negotiations. But these provisions would have to be interpreted and applied to the changing conditions in the region each year, as game populations shifted and hunting activities varied. The Cree argued that the fact that game existed in the region today demonstrated the effectiveness of their management, and they claimed a right to manage the wildlife of the region. The representatives of Quebec and Canada argued that existing parliamentary legislation gave the responsibility to manage wildlife to the governments.
This conflict was resolved through two procedures. It was agreed that all parties would recognize the Cree system of hunting territories and that there would be a minimum of government regulation. Second, the provincial and federal governments would exercise legal authority and enforcement powers over most of the region, but only after receiving the advice of a coordinating committee composed equally of Native and government appointees. On the areas reserved exclusively for Native people, the Cree governments would act with the advice of the committee.
Both the Cree and the governments agreed that development had to be controlled. The Cree did not oppose all development, envisioning sharing the land with non-Natives, but they wanted the right to decide on whether specific projects should be permitted to go ahead, and if so under what terms and conditions. The governments argued that they had the right to final decisions authorizing future developments, and they wanted to avoid a situation in which the Cree could tie up a project in the court. The conflict over this issue was direct and not fully resolvable.
The insistence of the governments that the region be open for development limited the land base upon which the Cree could negotiate. The province took the position that land under Cree control should be limited to areas immediately around the settlements and to the ajacent hunting locations. The greatest amount of land the province would transfer to Cree control, Category I lands, was only 5,500 square kilometres, of the approximately 375,000 square kilometres region.
The Cree sought in the negotiations to reduce their dependence on governmental authority and administration and to take more control of their own affairs through increased self-government. They therefore sought regional autonomy and self-determination through the formation of distinctive, ethnically defined governments and boards, which would assure Native control and administration of their affairs under the legal provisions established in the negotiations. This pattern was generally acceptable to the governments because it transferred the Cree from federal to provincial jurisdictions, and because Quebec was also prepared at that period to accept the decentralization of responsibility to regional boards and governments.
At the community level, the Cree got agreement that there would be special legislation for a Cree-Naskapi Act, extending the powers of their band councils as new community governments and replacing the provisions of the existing Indian Act.
The Agreement in Principle, reached after eight months of negotiation, was discussed periodically in each of the Cree communities, where the provisions were outlined in detail. People did not consider the draft agreement to be fair or just, but thought it would increase their chances of maintaining their culture, society, and economy, given the alternatives. The outcome was summarized by Chief Billy Diamond of the Grand Council of the Crees, in his speech to the press, announcing that all Cree communities had accepted the Agreement in Principle:
The Cree People were very reluctant to sign an Agreement in Principle. However, after many meetings and many hours of meetings, the Grand Council of the Crees has received a mandate to sign an Agreement in Principle with the Quebec Government.... We feel, as Cree People, that by coming to an Agreement in Principle, that it is the best way to see that our rights and that our land are protected as much as possible from white man's intrusion and white man's use. We have always said that we wanted to maintain our way of life. We have always said that we want to pass the land on to our children.... We believe that even though we practised the traditional way of life, the aboriginal way of life, we believe this agreement supports and strengthens the hunting, fishing and trapping rights in/over all of the territory, and restricts non-Native activity in that area. By the proposed agreement, we feel we have removed the worst effects of the Project to our way of life and the Cree People.... I hope you can all understand our feelings, that it has been a tough fight, and our people are still very much opposed to the project, but they realize that they must share the resources. That is why we have come to a decision to sign an Agreement in Principle with the Quebec Government. (Diamond, 1977)
A definitive account of the results of the James Bay and Northern Quebec Agreement (JBNQA) cannot be made. The processes of implementing the agreement have been long and complex, and although the process has already extended over two decades, the outcome is not fully known. Nevertheless, I would emphasize four general aspects: (1) the agreement has considerably aided Cree hunting; (2) it has strengthened the Cree socially and politically; (3) government respect and support for the agreement have been mixed and uneven; (4) the Cree are more autonomous now than before the agreement, but real threats to Cree autonomy remain.
The protection and recognition of Cree hunting rights and the provision of income security payments for Cree hunters have enhanced the perceived viability of hunting as a way of life, and the participation of Cree in hunting has intensified. In 1975, about 700 families or single adults were hunting as a way of life. The number of intensive hunters increased following the agreement to approximately 900 and has since risen to about 1,200. Many of those initially taking up hunting were people who had been driven away by the difficulties of the 1960s and early 1970s. But those joining more recently are predominantly young adults, just starting careers as intensive hunters. The time spent in hunting camps has also increased, and the average number of days intensive hunters stayed in the bush hunting during a year increased by about 25 per cent after the income security program was begun. Most of these families now live seven months or more in bush camps.
The increased number of intensive hunters and the increased time they are spending in bush camps present complex challenges to the stewards of hunting territories, who want to assure these changes do not result in disrespectful over-hunting of game. In the initial year after the JBNQA, harvests of the most intensively used wildlife - geese, beaver, and moose - increased significantly. Stewards responded quickly to the dangers. They spoke widely of the problems in the villages, and re-organized their own hunting groups accordingly. By the second and third years geese and beaver harvests had returned to earlier levels. Moose and caribou harvests, which had initially increased the most (by 72 and 40 per cent, respectively), were no higher than earlier levels by the third year after the agreement. This adjustment of Cree hunting to a significant and rapid increase in the numbers of hunters and the length of time people spent in bush camps was a dramatic test and confirmation of Cree conservation practices.5
In terms of changes in social relations, several commentators anticipated that the increased cash available to both hunters and to the growing number of employed Cree might result in widespread increases in the independence of individual nuclear families and in reduction in extended social relations and reciprocity. They also thought there might be a change of hunting territories into forms of private property, as opposed to being a system of socially sanctioned stewardship of lands. These changes have not in fact occurred.
All sectors of Cree society maintain a high value and a strong preference for locally produced "bush foods." The desire for bush foods reflects the specialized knowledge, skill, and work that go into the harvesting of food animals and the recognized nutritional and health benefits of a fresh bush food diet. While hunters adjusted their harvesting effort after the agreement so as not to over-hunt intensively utilized game populations, they increased their harvests of some small game populations that would not be endangered by increased harvests. Increases in these harvests meant that the majority of families who hunt intensively not only have sufficient bush foods for their own needs, they continue to do the work necessary to make additional harvests of foods that they give to kin, friends, and those who do not hunt so intensively.
Access to hunting territories continues to be provided by invitations from hunting stewards, and the growing numbers of hunters are generally being accommodated through extended and friendship networks. Customary stewardship therefore continues to express social rcsponsibility and mutual aid despite considerably more intensive use of lands (Feit, 1991).
In a society in which animals are sacred and labour is highly valued and a source of respect, social exchanges of bush foods and access to hunting lands are highly valued. The gifts of bush foods are a sign both of the continuing value of those foods and of the value of the social bonds that motivate the distribution and are confirmed by it. The fact that such exchange is less of a material necessity today highlights its social value.
The rapid increase in the Cree population has meant that while the number of intensive hunters has stabilized in recent years, the total population continues to grow, so that now less than half- between one-quarter and one-third - of the adult resident population are intensive hunters. Almost all other Cree hunt, but on a variety of arrangements. Extensive linkages exist between families living most of the year in the settlements - and who hunt in evenings, on weekends, school breaks, and holidays, and between jobs - and those kin and friends who live most of the year in bush camps and for whom hunting is their primary activity. Those in the settlements often provide equipment and cash for those in the bush, while the latter provide access to the hunting camps and lands, advice and knowledge of hunting conditions and regular gifts of food to those who live most of the lime in the settlement. Hunting is critical to the identities and relations of nearly all Crees, and it binds together the diverse sectors of the communities.
Thus, even when much of the population works for wages and only hunts a part of the time, it is still the case that access to land and wildlife is provided through social reciprocity, not through market exchanges or individualized ownership. Hunting continues to be embedded in social and spiritual meanings and organization. Rather than cash and market conditions leading to an attenuation of social relations, hunting reciprocity continues to re-create wider social relationships, which are dominated by a desire to enhance a collective local autonomy in the face of the market forces that might otherwise transform Cree society.
Social linkages are also expressed in the growth of more formal community-based decision-making institutions. Under the agreement and the supplementary Cree-Naskapi Act, the Cree took over formal control of the many organizations that provided services in their communities, including school boards and health and social services boards. Initially, the organizations were taken over more or less in the form, and with the staff, that they already had when run by the governments. There was little time to make changes other than to transfer formal control, even though the agreement gave many boards enhanced powers.
With few Crees having the professional training to staff the service organizations in 1975, and with those Crees with experience in policymaking and governance of bureaucracies stretched to do all that was needed, it was not a surprise that changes to the policies, programs, and structures of the organizations were slow to develop. But Crees have got training on the job by doing the work alongside those with experience, and over time effective Cree control has grown and the policies and programs have become increasingly innovative (Salisbury, 1986).
At the same time, the Cree decision-making, which was initially centralized in the Cree regional government structures, has been devolving to local governments and administrations. In the villages, more and more school and health committees composed of local Cree users have started to play decisive decision-making roles. The result has empowered local people and provided them with enhanced skills and experience. Recently, various committees are beginning to ask how they should restructure the basic organizations themselves. These initiatives involve examining how distinctly Cree ways of working and relating can be structured into large organizations.
These processes have not been smooth or easy, and numerous mistakes have been made along the way. Nevertheless, the overall process has showed how an effective self-government can be established, even under difficult circumstances, where there was no time for advanced planning or proper preparation.
This process has also had important benefits for Cree community economies. The Cree takeover and expansion of the administrative services and programs have considerably increased employment opportunities in the communities. The thirty or so Cree who were fully employed as administrators before the agreement have been expanded to some 800 administrators and supposing employees. As more Cree develop the professional skills to replace additional non-Native teachers, nurses, and administrators, this number will grow.
It is clear, however, that the number of administrative positions will be insufficient to employ fully all those Cree in the rapidly growing population who do not hunt as a way of life. The Cree have therefore recently begun to emphasize the creation of Cree economic enterprises, especially in the communities. Such enterprises must be planned carefully, and they will develop slowly, partly because of systematic obstacles to their full participation in the regional resource-based economy from governments and large corporations. The structures the Cree are developing in this process frequently combine elements of modern business practices with structures adapted from Cree hunting society.
The economic development provisions of the agreement have not to date greatly benefited the Cree. Nor has the hydroelectric project contributed systematically to community-level economic development within the Cree villages. The economic benefits of the project have been directed to southern urban centres, and even the benefits for non-Cree inhabitants of northern Quebec have been less than expected. As a result there is a continuing high level of unemployment and underemployment in Cree villages.
Indeed, nearly all of the monetary provisions of the agreement have suffered negligence on the part of governments, and in some cases explicit subversion.6 When the first major parliamentary review of the implementation of the agreement was conducted, five years after the signing in 1981, it was clear that the federal government had neither budgeted any special funds to meet its new obligations under the agreement, nor had established any agency with responsibility for overseeing its role in the implementation processes. As a result of this review several initiative were undertaken In 1984, after three additional years of negotiation, the Cree-Naskapi Act was signed and passed into law, establishing local self-government for Cree (and adjacent Naskapi) communities, thereby fulfilling one of the obligations from the 1975 agreement.
As part of this supplementary negotiation a separate funding agreement was to be signed. It was a five-year accord that specified the basic annual financial obligations of Canada toward Cree governments, and set out arrangements for annual adjustments over succeeding years based on inflation and costing experience. The signing of the Cree-Naskapi Act provisions and the funding agreement (or Statement of Understanding, as it was called) were formally concluded at a Cree Annual General Assembly in the village at Eastmain in 1984. At the signing, questions about the federal government's commitments were raised by Chief Billy Diamond, who was wary of the failure of both th Canada and Quebec governments to meet earlier obligations. Before signing he said to the Minister of Indian Affairs and Northern Development, Douglas Frith:
"I just wanted to make - to ask - one final point.... There was supposed to be five year block funding for the Cree-Naskapi Act.... and the Deputy Minister has refused to sign the Statement of Understanding in respect to the funding. Will the Minister now sign that Statement of Understanding and commit the federal government to those figures that were negotiated and arrived at; or will the Minister direct his Deputy Minister to sign on it? If they will not sign, will the Minister sign before September 1 st, so that at least we are guaranteed continued funding for the next four years? . . ."
The Minister responded, "I was prepared for this Chief Diamond, and show me the piece of paper and I will sign."7
Then the agreements were signed and the Minister handed over to the Crees the initial cheques for the cost of the first year of operations of the new Cree governments.
Despite this accord, strong disagreements arose over the funding for succeeding years. These differences centred on whether or not the agreement was binding on the government of Canada.8 The Cree believe the agreement provisions are binding. The Department of Indian Affair and Northern Development representatives stated at public hearings in October, 1986, that the government of Canada "does not recognize [the Statement of Understanding] as a fully binding undertaking."
The disagreement was reviewed by the Cree-Naskapi Commission, the independent organization set up to report every two years to Parliament on the implementation of the Act. They reported:
Having carefully considered the above facts and evidence, the Commission is of the opinion that the Statement of Understanding is both a moral and a legal obligation of Canada. Moreover, the Commission considers that Statement the principal fiscal arrangement which ties both Canada and the Cree and Naskapi nations to their financial obligations. The evidence is substantial and convincing....Similar attitudes and actions prevail in governments with respect to the exploitation of the natural resources of the territory. The governments of Quebec and Canada have repeatedly tried to avoid the obligations they have toward the Cree, and to the wider public, in the interests of facilitating large-scale projects that primarily meet the interests of private and public corporations.
It is difficult to believe that a federal department responsible for negotiating and implementing self-government arrangements with Indian nations, and charged with improving their conditions, could persistently misinterpret a negotiated arrangement of this nature. The Department's attempt to circumvent clear obligations . . . is - unjust, and must not be allowed to continue. Such actions cannot be dismissed as merely an honest difference of opinion. (Cree-NaskapiCommission, 1986)
Two major phases of hydroelectric exploitation are still planned in the James Bay region, tile Great Whale River (GWR) project, and the Nottaway-Broadback-Rupert rivers (NBR) project (McCutcheon, 1991). The Cree continue actively to oppose both, with increased sophistication and with some surprisingly effective results.
The former project is at the stage during which environmental and social impact assessment is being conducted prior to the decision on whether authorization will be given to Hydro-Quebec to proceed. The initial position of Quebec and Canada was that the government of Canada did not have to conduct an environmental social assessment of the project before authorizing those aspects under federal jurisdiction, a view that explicitly abrogated provisions in the agreement as well as other federal legislation. The Cree took Canada and Quebec to court, and in 1991 the Federal Court of Canada ruled that the governments were attempting to circumvent and "free themselves from [their] duties and responsibilities." In another ruling by the Federal Court of Appeal the judge reminded governments that the JBNQA "was signed in good faith for the protection of the Cree . . ., not to deprive them of their rights" (quoted in Orkin and Hazell, 1991).
Unfortunately, these are not the only cases of governments unilaterally abrogating their obligations, and the Cree have been to courts on numerous occasions to try to force either Quebec or Canada to meet specific commitments or mutual understandings. The court processes are extremely limc-consuming and costly, and therefore the outcomes are not fully successful.
But the pattern of government subversion of agreements, while not universal, is sufficiently widespread that it is a significant feature of the implementation process. One must assume that the governments have repeatedly chosen this type of action because they believe that the issues are so complex, and the processes are sufficiently drawn out, that public outrage will be muted and the public will forget.
Thus the struggles for public support are continuing to be fought in diverse arenas, ranging from Quebec City and Ottawa to New York and The Hague. At the same time, the proposed expansions of hydroelectric development have already begun to affect the Cree dramatically. For example, because the NBR project was initially expected to be built in the 1990s, and because there was a serious over-utilization of forests and wildlife further south in Quebec, an acceleration of the commercial cutting of forests and of the sport hunters' harvests of wildlife in the areas that would have been flooded was allowed and encouraged by Quebec, despite Cree opposition. Once the activities were established, the overexploitation then spread throughout the James Bay region, even though the NBR project has been delayed by at least a couple of decades. These levels of resource use in northern Quebec are not sustainable, and they can only delay for Quebec as a whole the crisis caused by such exploitation. But the destructiveness of the ongoing exploitation of the region is being suffered now by the Cree.
Under the agreement forestry development was to be reviewed through Cree input to Quebec government forestry management plans. ln practice, Cree input has not been sought at critical stages of the planning, and long discussions have not resulted in any significant modification to forestry practices or plans in the region. As a consequence of Quebec denials that forestry clear-cutting has a significant impact on the Cree, it has permitted forestry companies to cut without regard to the Cree hunting territory system. The scale of this exploitation now threatens some of the Cree traplines as effective hunting and conservation units. Several hunting territories have already been cut by over 40 per cent, and the cut on one trapline is already 80 per cent of the formerly commercially forested land (Beaulieu, 1993). This crisis continues to accelerate with the years. The rapid forestry development, as well as significant increases in non-Cree harvests of wildlife,9 directly threatens the Cree use of lands and the fabric of Cree society and economy.
Therefore, even the gains made by the Cree with the JBNQA are constantly under threat. While many of the most important provisions of the agreement have been respected by governments, the erosion that has occurred is significant, and the threats to the Cree are unabated.
The autonomy of the Cree communities has clearly been enhanced by the strengthening of the hunting economy and society, by the greater control of Cree government, services, and resources, and by their ability to initiate political, legal, and administrative action.
The need to continue the struggle for autonomy - and to enhance that autonomy in the face of government attempts to erode Cree power and rights - is also clear. The Cree now face several major threats. For one, the cash and natural resources available to the Cree under the agreement have proven inadequate. The Cree find they cannot invest funds for future generations and have sufficient incomes to meet the administrative, social, and economic development needs of the population. What looked like large sums are very modest in relation to the costs of social and economic development and self-government. The need for increased local economic development is urgent.
In addition, the large-scale resource exploitation projects are continuing on Cree lands. Future phases of hydroelectric development have been delayed but not abandoned, and forestry is having a massive impact. The limited regulation of resource development, known to be a problem when the agreement was signed, is becoming a major future threat to the revitalized hunting sector.
While the Cree have clearly come through the events of the last two decades a united people, more autonomous and better able to achieve their goals, it is also clear that their relationship to the governments and project developers is an ongoing problem. The process has strengthened the Cree ability to confront the problems that threaten them, but it has not fundamentally resolved those problems or provided a mutually acceptable new relationship between the Cree and the governments. The Cree hunters have hoped for a new relationship with Euro-Canadians, based on mutual respect for each other's needs, or a reciprocal and responsible sharing of the land and resources, and on a real process of communication and understanding. They are still waiting.
Recommended Reading and Additional References Cited