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Editors --- "Agreement in Principle Between Le Government Du Québec and the Crees Of Québec - Case Summary" [2002] AUIndigLawRpr 15; (2002) 7(1) Australian Indigenous Law Reporter 71

Agreements, Treaties and Settlements – Canada

Agreement in Principle Between Le Gouvernement Du Québec and the Crees Of Québec

Le Gouvernement Du Québec and the Crees Of Québec

Waskaganish

23 October 2001

On 23 October 2001, the Québec Crees or properly the Cree Nation of Eeyou Istchee, the 13,000 people of the eastern side of James and southern Hudson Bays in Canada, surprised the world by signing a comprehensive Agreement in Principle on future relations with the Government of Québec following a ratification vote in their communities. This followed 30 years of tense and often confrontational relations between a previously isolated and remote hunter-gatherer people and the furiously modernising and ambitious political community of French speaking Québec bent on developing the Cree region’s hydro-electric power potential as the centrepiece of industrial and export strategies. The Agreement, which followed in full in February 2002, is also now online at: <www.mce.gouv. qc.ca/w/html/ w2057004.html>.

However, the Agreement in Principle, reproduced below, clearly reveals the structure of principle in the project. It is significant in full geopolitical terms: crudely put, the refusal of Crees (and Inuit farther north) to accept the legitimacy of Québec political ambitions and socioeconomic imperative has been a major obstacle and potential flashpoint in Québec’s longterm aspiration of separating from Canada to become a fully sovereign entity itself. The Cree and Inuit territories were transferred or given to Québec by the Federal Government early in the 20th Century — could the peoples who are their very longterm inhabitants, and/or the giving government in Ottawa, signify their insistence on staying with Canada in the event of Québec separation from the Canadian federation? Cynics will see the Agreement, and other arrangements between Québec and the Inuit of Nunavik, as simply a ploy by a ruthless provincial government to remove a cloud over sovereignty to half its total expanse.

The first round of conflict between the Crees and Inuit with Québec resulted in Canada’s first modern treaty or regional agreement in 1975, the James Bay and Northern Québec Agreement. That was supposed to provide a complete framework for Indigenous-Québec and Indigenous-Canada relations, but lack of experience among all the parties to the agreement, unforeseen problems, and a new era of Canadian Indigenous politics and politics which the 1975 Agreement had helped to bring into being, has seen a series of battles consume front pages over the years. Perhaps the most important lesson is that while some in Canada (and Australia) see native title issues as a simple once-and-for-all land transaction, it is really an ongoing political accommodation and ‘reconciliation’ of peoples and cultures within legal and administrative frameworks no less than in popular attitudes.

A useful reading of the Québec Cree situation in Australian comparative context is Colin Scott’s Political spoils or political largesse? Regional development in northern Québec, Canada and Australia’s Northern Territory (Discussion Paper No 27, Centre for Aboriginal Economic Policy Research, Australian National University, Canberra, 1992). Scott has also edited a new collection of studies, Aboriginal Autonomy and Development in Northern Québec and Labrador (UBC Press, Vancouver, 2000). For the explosive issue of the Great Whale River hydro-electric phase of Québec’s projects in Cree country, highlighted by a successful Cree campaign in the USA against American power purchases from Québec, Monica Mulrennan’s cool and brief summary in her book of Canadian environmental case studies may be the clearest account, ‘Great Whale: Lessons from a Power Struggle’ (A Casebook of Environmental Issues in Canada, John Wiley & Sons, New York, 1998, pp 15–31).

Because the politics and legal issues of separation are unprecedented and, to many, unthinkable in Canada, it is impossible to say how the Cree and Inuit political relations — and the temper of their grass roots — will play out in an actual scenario of Québec separation. It is ironic that the first modern Canadian land claims settlement, much feared 30 years ago as being ‘separatist’, has become seen as a device for keeping Québec and its territory within Canada. One may be tempted to see the readiness of Crees and Inuit to deal now with Québec as recognition of the writing on the wall, that they acknowledge that they will remain part of Québec, whatever that region’s political destiny and whatever the reassurances given by Indigenous and non-Indigenous leaders that such issues for the future are not being now pre-empted.

Agreement in Principle

Between

The Government of Québec, represented here by the Prime Minister of Québec, Mr Bernard Landry, the Minister for Native Affairs, Mr Guy Chevrette and the Minister of Natural Resources, Mr Jacques Brassard. Herein designated ‘Québec’.

And

The Crees of Québec acting through the Grand Council of the Crees (Eeyou Istchee) and the Cree Regional Authority, represented here by Mr Ted Moses, Grand Chief and President respectively, and by Mr Edward Gilpin, Chief of the Band Council of Eastmain and by Mr Paul Gull, Chief of the Band Council of Waswanipi. Hereinafter referred to as ‘The Crees’.

WHEREAS the parties wish to enter into a nation-to-nation agreement which will strengthen political, economic and social relations between Québec and the Crees, and which will be characterized by cooperation, partnership and mutual respect, while remaining based on the respective commitments of the parties under the James Bay and Northern Québec Agreement (JBNQA);

WHEREAS this agreement, concerning a global approach in favor of greater autonomy and greater responsibility on the part of the Crees for their development, will make possible an active and on-going participation by the Crees in economic development activities on the James Bay territory;

WHEREAS this agreement will be based on a development model which relies on the principles of sustainable development, partnership and respect for the traditional way of life of the Crees, as well as on a long-term economic development strategy, principles which are in conformity with the provisions of the JBNQA;

WHEREAS this agreement will promote the emergence of a Cree expertise in the field of economic development, job creation, and economic spin-offs for the Crees and the population of Québec in general;

WHEREAS this agreement does not contemplate and does not affect the obligations of Canada towards the Crees stipulated, among other, in the JBNQA;

WHEREAS the parties agree that the schedules and preamble form an integral part of this agreement.

The parties agree to the following:

1. Context

Both the Cree Nation and the Québec Nation agree to place emphasis in their relations on those aspects that unite them as well as on their common desire to continue the development of Northern Québec and the self-fulfillment of the Cree nation. The Cree Nation must continue to benefit from its rich cultural heritage, its language and its traditional way of life in a context of growing modernization.

This agreement makes it possible to mark an important stage in a new nation-to-nation relationship, one that is open, respectful of the other community and that promotes a greater responsibility on the part of the Cree Nation for its own development within the context of greater autonomy.

2. Purposes of the agreement

This agreement has the following purposes:

The establishment of a new nation-to-nation relationship, based on the common will of the parties to continue the development of the James Bay territory and to seek the flourishing of the Crees within a context of growing modernization.

• The assumption of greater responsibility on the part of the Cree Nation in relation to its economic and community development and, in so doing, the achievement of increased autonomy with a greater capacity to respond, in partnership with Québec, to the needs of the Cree population.
• The settlement, with discharges identified in the agreement, for the period of the application of the agreement, of all the questions pertaining to the responsibilities of Québec in the agreement concerning:

  - the development of mining, forestry and hydroelectric resources on the James Bay territory;
  - the provisions pertaining to the economic and community development of the Crees found in the JBNQA and in the complementary agreements, including those dealing with the nature, scope and implementation of Québec’s commitments in this respect.

• The definitive settlement or withdrawal of the legal proceedings opposing the Crees and Québec in accordance with the provisions of the present agreement.
• The consent of the Crees to the carrying out of the Eastmain hydroelectric project and the Rupert River diversion project.

3. Development of natural resources

3.1 Forestry

• The parties agree to apply on the territory stipulated in Section 22 of the JBNQA (section 133 of the Environment Quality Act, RSQ, c Q–2), the Québec forestry regime in a manner that allows:

  - adaptations to better take into account the Cree traditional way of life;
  - greater integration of concerns relating to sustainable development;
  - participation, in the form of consultation, by the Crees in the various forestry operations planning and management processes.

• These adaptations, this integration and this participation are described in greater detail in Schedule A.
• The parties agree to create a Cree–Québec Forestry Board in order to allow close consultations with the Cree at the various planning and management stages of forestry operations.

3.2 Hydroelectricity and mines

• Hydroelectric and mining development projects will continue to be subject to the applicable environmental legislation and to the environmental and social protection regime stipulated in Section 22 of the JBNQA according to the terms of that section.
• Québec will facilitate and encourage that specific hydroelectric and mining development projects be the subject of agreements with the Crees in relation to remedial measures, employment and contracts.
• In the specific cases of the Eastmain hydroelectric project and the diversion of the Rupert River, the May 2001 proposal of Hydro-Québec concerning remedial works, employment and contracts will apply as the projects are carried out. Moreover, Hydro-Québec will assume the costs of all the remedial works required under government authorizations for these projects.

4. Economic and community development

• The provisions relating to Québec in the sections, sub-sections and paragraphs of the JBNQA and ensuing from existing agreements which concern the economic and community development of the Crees will be assumed by the Crees, and funded and implemented in accordance with the provisions of the final agreement.
• Thus, effective April 1, 2002, the commitments of Québec, Hydro-Québec, the James Bay Energy Corporation and the James Bay Development Corporation with respect to the Crees which pertain to economic and community development and which ensue from the following provisions of the JBNQA, will be assumed by the Crees: (The list of provisions must be reviewed and completed marginally)

  - Economic development:

• 28.5 and 24.3.24: Cree Trappers’ Association (operation and programs);

• 28.6: Cree Outfitting and Tourism Association (operation);

• 28.7: Cree Native Arts and Crafts Association (operation and programs);

• 28.11.2 a): one economic development agent per community;

• 28.12: assistance to Cree entrepreneurs.

- Community development:

• 8.7: permanent water supply at Eastmain (JBEC) (subject to the final acceptance of the existing water supply system by Eastmain);

• 8.8.2: supply of electricity to isolated northern communities (Hydro-Québec) (Waskaganish and Whapmagoostui) subject to the maintaining of current arrangements as to the supply of electricity and subject to the connection to the Hydro-Québec network of Waskaganish within five (5) years and of Whapmagoostui as soon as possible;

• 8.14.2: encouragement of training programs for the Crees (JBEC and HQ);

• 8.14.3: study of the implementation of a training program for the Crees (JBEC and HQ);

• 28.9.1, 28.9.2, 28.9.5: training programs or facilities, offices, job recruitment and placement services;

• 28.11.1 a): community centre in each Cree community;

• 28.11.1 b): essential sanitation services in communities;

• 28.11.1 c): fire protection including training, equipment and facilities;

• 28.11.2 b): community affairs services;

• 28.14: assistance for friendship centres outside communities;

• 28.16: construction of access roads for Eastmain, Wemindji and Waskaganish (but not the maintainance of these roads).

• The negotiation protocol of May 23, 1995 and the Implementation agreement of March 27, 1998, including the ensuing funding agreements, will be completed, as agreed upon between the parties, with respect to components 1 (economic and community development projects) and 2 (programs and services for the elderly or disabled persons). This component will be implemented within the framework of discussions under way between the MSSS and the Crees. Components 3 (application of economic development programs), 4 (natural resources) and 5 (regional institutions) are repealed.
• The other provisions of the JBNQA and the existing agreements and the existing financial arrangements will continue to apply in the absence of indications to the contrary in this agreement. Thus, Québec will continue to fund for the Crees, pursuant to the provisions of the JBNQA, its share of the services and fixed assets stipulated in the JBNQA, including:

  - health care and social services;
  - education services;
  - income security programs, including the income security program for Cree hunters and trappers;
  - public security and administration of justice;
  - the Hunting, Fishing and Trapping Coordinating Committee and environmental committees.

• • The parties agree to allow the definitive settlement of the transfer of lands between Oujé-Bougoumou and Mistissini and of the ‘Abel Bosum’ proceedings in regard to Québec. To this end, a sum of $40 million will, in accordance with past discussions, be earmarked by Québec for the settlement of this matter. In particular, the parties will have to resolve the Abel Bosum proceedings in regard to Québec, the transfer of lands between Oujé-Bougoumou and Mistissini as well as the MOU of 1989 in favor of Mistissini which was related to this matter, and the Oujé-Bougoumou agreements of 1989 and 1994.

5. Respective commitments of the parties

5.1 The commitments of Québec

Financial commitments

• Québec will provide the Crees with an annual contribution for the duration of the agreement so that they can entirely assume, for the duration of the agreement, Québec’s responsibilities concerning the Crees under the JBNQA in the field of economic and community development.
• The annual contribution will evolve in the following way for the first three years:

2002–2003: $23 million
2003–2004: $46 million
2004–2005: $70 million

• For the subsequent years, the $70 million contribution will be indexed according to a formula that will reflect the evolution of activity in the James Bay territory in the hydroelectricity, forestry and mining sectors. This formula is summarily described in Schedule B and will be detailed in the final agreement.
• The annual contribution will be paid by Québec for a period of fifty (50) years beginning on April 1, 2002, and will not be subject to any form of taxation or levy by Québec. This annual contribution will be paid to the legal entities which will be identified by the Crees in the final agreement .
• For these purposes, the territory referred to will be that defined in subparagraph 22.1.6 of the JBNQA and the territories of the Mistissini and Whapmagoustui trapping areas located north of the 55th parallel as described in Schedule 1 of Section 24 of the JBNQA

Creation of the Cree Development Corporation

• A Cree Development Corporation (hereinafter referred to as ‘CDC’) will be created and will have the following characteristics:

  - autonomous corporation managed by a board of directors made up in the majority of Cree representatives;
  - corporation dedicated to the economic and community development of the Crees.

• The CDC will make it possible to provide the Crees with a modern development organization capable:

  - of supporting the long-term development of each Cree community;
  - of developing an original Cree expertise in the field of economic development and the management of development funds;
  - of promoting and accelerating job creation for the Crees on the James Bay territory;
  - of making the Crees active partners of Québec in the economic development of the James Bay territory.

• The CDC will facilitate the establishment of partnerships between the Crees and Québec as well as with private enterprises in the carrying out of development activities on the James Bay territory.
• Nature of CDC initiatives:

  - making of investments on a business basis (SGF or FTQ models);
  - possibility of offering financial products deemed appropriate according to the projects (loans with or without guarantees, acquisitions of a financial interest, grants, etc.);
  - possibility of earmarking a portion of its capital for the carrying out of social or community development projects such as housing (loans or grants).

• The funding of the CDC will be ensured from the financial contribution of Québec in a proportion and for a duration determined by the Crees, as well as progressively, by the financial yields resulting from CDC activities.

Other commitments

• Québec will maintain for the Crees access to regular programs, subject to the usual application criteria of these programs as provided for in paragraph 2.12 of the JBNQA.
• Québec will instruct Hydro-Québec to proceed with the signing of the Agreement concerning employment for the Crees according to the terms already agreed upon between Hydro-Québec and the Crees.
• Québec will instruct Hydro-Québec to renew the Agreement on Mercury and to set up a table with the Crees in order to resolve as soon as possible the disputes with the Crees concerning the implementation of past agreements with Hydro-Québec.
• Québec will transfer to Chisasibi the lands designated as ‘block D’ according to the terms to be agreed upon between the parties. These terms should in principle, be agreed between now and the signing of the final agreement.

5.2 The commitments of the Crees

• The Crees undertake to use the annual contribution paid by Québec for their economic and community development in accordance with the priorities and means that they will deem appropriate, including the possibility of creating a ‘Heritage Fund’ and to support their traditional activities.
• The Crees consent to the carrying out of the Eastmain hydroelectric project and the diversion of the Rupert River currently under study by Hydro-Québec.
• Upon the signing of the final agreement, the Crees will give Québec a full and complete discharge, for the period of the agreement and of the funding provided hereunder, with respect to the implementation by Québec of the provisions of the JBNQA described in the second paragraph of section 4 of this agreement.
• The Crees will henceforth assume for the duration of this agreement all the obligations of Québec described in the second paragraph of section 4 of this agreement in accordance with the applicable legislative and regulatory frameworks.
• The provisions of Section 28 of the JBNQA concerning SODAB will be repealed, discharged and replaced by the relevant provisions of the final agreement. The assets will be transferred to the Cree Development Corporation.
• Effective April 1, 2002, the Crees will assume an equal share with Québec of the operating costs of the provincial environmental committees set out in the JBNQA, and this for the duration of this agreement and in accordance with financial arrangements to be agreed to from time to time.
• Effective April 1, 2002, the funding of local Cree beneficiary registration services and of local environmental services under Québec’s responsibility will be assumed by the Crees for the duration of the agreement.

5.3 Joint commitments

• Subject to the paragraphs that follow, upon the signing of the final agreement the Crees shall proceed with the discontinuance as against Québec, without costs for either party, of the elements of their proceedings dealing with the implementation of the JBNQA by Québec and concerning the proceedings ‘Abel Bosum’ pertaining to natural resources development. The Crees will also undertake not to institute other legal recourses against Québec with respect to the past implementation of the JBNQA by Québec.
• With respect to the elements of their legal proceedings concerning the implementation by Québec of Sections 11B, 14, 18 and 19 of the JBNQA, (to be completed marginally), these proceedings will be suspended by the Crees and Québec for a three-year period to allow the parties to settle these disputes within the framework of the standing liaison committee or, where applicable, the dispute resolution mechanism provided for in the agreement.
• Specifically with respect to the legal proceedings concerning forestry, the Crees will offer the other parties involved in these proceedings a discontinuance of the proceedings without costs for any party. Québec agrees to facilitate such a discontinuance of proceedings without costs. Should a third party refuse a discontinuance of proceedings without costs, Québec and the Crees will jointly petition the court to declare these proceedings settled with respect to all parties, without costs for any of the parties.
• The Crees will withdraw their appeal before the Supreme Court of Canada concerning the so-called ‘Tawich’ case and will assume the resulting past fiscal financial liability.
• The so-called ‘SOPFEU’ proceedings will be settled as follows: all past monetary claims will be withdrawn and abandoned without legal costs for either party and the concerned Cree communities will contribute to the Sopfeu for their Category IB lands beginning as of April 1, 2002.
• Québec will not appeal before the Supreme Court of Canada the so-called ‘Cree School Board’ case and will not intervene in this case should Canada appeal it. The parties agree that the general funding framework of Cree education entitled ‘Funding Rules for Operations and Investments Grants: Terms of Reference for Purposes of the Approval of the Cree School Board Budget’ will continue to be established according to the budgetary rules currently agreed to between them subject to the already agreed to discussions on the future funding of adult education.
• The provisions of this agreement shall not affect the rights and recourses of the Crees and shall in no way affect the recourses of Cree individuals resulting from contaminants (such as mercury or other metals and substances) arising from the development of the James Bay territory.

6. Implementation details

6.1 Tabling of annual reports

• The legal entities to which annual contributions from Québec will be paid will have to submit to Québec, on an annual basis, in the six months following the close of each fiscal year ending on March 31st, an annual report and audited financial statements, describing their activities and the use of the funds. If these reports and financial statements are not submitted, Québec reserves the right to suspend subsequent payments, which however will be re-instituted retroactively, without interest, as soon as these reports and financial statements have been submitted.

6.2 Creation of a standing liaison committee

• The parties agree to create a standing liaison committee, made up of an equal number of representatives designated by each party, to ensure harmonious implementation of and efficient follow-up to the final agreement and to resolve other questions pertaining to the implementation of the JBNQA. The precise details concerning the composition, the mandate and the frequency of the meetings of the standing liaison committee will be agreed upon within the framework of the agreement.

6.3 Settlement of disputes

• Generally, the parties will endeavor to avoid recourse to the judicial system for the purposes of the interpretation and implementation of the final agreement as well as the implementation of the JBNQA.. To this end, the parties agree to put in place a dispute resolution mechanism to ensure that recourse to courts or other forums only occurs as a last resort.

6.4 Responsibilities of the Federal Government

• The parties agree that this agreement does not contemplate and does not affect the obligations of Canada towards the Crees stipulated, among other, in the JBNQA.

6.5 Complementary agreement

• The parties undertake by this agreement to prepare a complementary agreement to the JBNQA that will make it possible to ensure compatibility between the JBNQA and the final agreement. The laws of general or specific application will also be amended to ensure their coherency with the final agreement and the complementary agreement in those cases where it will be necessary to do so.

7. Creation of an exchange table responsible for drafting a final agreement by the end of 2001

• The parties agree to set up an exchange table made up of representatives of both parties and responsible for clarifying the principles established, agreeing on the modalities of application and drawing up for signature a draft final agreement, including its schedules, by the end of 2001.
• The parties agree to set up an exchange table made up of representatives of both parties and responsible for clarifying the principles established, agreeing on the modalities of application and drawing up for signature a draft final agreement, including its schedules, by the end of 2001.
• The final agreement will replace the agreement in principle.