Ally or colonizer?: The federal state, the Cree nation and the James Bay Agreement

The James Bay Agreement is the only "comprehensive land claim" that has an implementation history and also covers an area where provincial governments control lands and resources. As such it represents an important test-case for evaluating government pledges on Aboriginal rights. This paper reviews

selected aspects of the implementation of the Agreement, providing an update on earlier works. The discussion is limited to the James Bay Crees and deals primarily with the federal state. The analysis reviews the government record while also attempting to account for the resistance to recognizing Cree rights. It is argued that the role and priorities of the state in Canadian capitalist society must be emphasized: treaty obligations which restrain capitalist development or which establish expensive precedents are chronically ignored. Aboriginal rights are generally subordinate to other public policy priorities, and as a result distinct cultures are threatened

La Convention de la Baie James est la seine << revendication territoriale integrale >> qui ait un historique de mise en oeuvre et qui couvre une zone ou les gouvernements provinciaux controlent les terres et les ressources. En cette qualite, elle represente une cause type permettant d'evaluer les engagements du gouvernement face aux droits autochtones. Le present article relive certains aspects de la mise en oeuvre de cette convention, et offre une mise A jour sur quelques efforts anterieurs. La discussion se limite aux Cris de la Baie James et traite surtout de l'Etat federal. L'analyse examine le dossier gouvememental tout en tentant de rendre compte de sa resistance A reconnaitre les droits des Cris. On avance que Fort doit insister sur le role et les priorites de I'etat dans la societe capitaliste canadienne : sont en effet ignorees de fagon chronique les obligations, en vertu des traites, qui restreignent le developpement capitaliste ou qui etablissent des precedents onereux. Les droits autochtones sont habituellement subordonnes A d'autres priorites en matiere de politiques publiques, ce qui a pour resultat de menacer les cultures distinctes.

I. Introduction

Speaking at a conference at McGill University in January 1997, Cree Grand Chief Matthew Coon Come affirmed the conclusions of the Report of the Royal Commission on Aboriginal Peoples (RCAP), calling its recommendations "urgent and imperative." But he was also moved to characterize a comparison of the Crees to the east of James Bay with those to the west as "odious." The comparison is made in a highlighted box in the summary of the report, and suggests that the "eastern Cree [signatories to the James Bay and Northern Quebec Agreement (JBNQA or James Bay Agreement)] have more land, more access to resources and more capital than their western neighbours. Although the eastern Cree have disputes with Quebec about the full extent of their rights, the western Cree would love to have their problems" (RCAP, People to People, 42). Coon Come explained that the comparison is odious because the Crees on both sides of the bay have in common "high rates of suicide, unemployment, alcoholism, and extinguishment of our fundamental rights" (Coon Come).

This paper concurs that the RCAP report comparison is indeed deeply disturbing and argues that the existence of modest success stories must not obscure the reality that current public policies on Aboriginal rights may be insufficient to help ensure that First Nations can thrive as distinct peoples. There are widespread fears that many distinct First Nations cultures will soon disappear, and the evidence suggests that the manner in which governments have interpreted and implemented the James Bay Agreement poses a very real threat to the viability and distinctiveness of the eastern Cree Nation. In turn, this situation is rooted in a deeply entrenched historical pattern of federal evasion of the constitutional and moral obligations owed to First Nations. Finally, it is argued that to best understand this situation public policy needs to be analyzed in light of the Canadian state's chronic subservience to the needs of powerful social interests and the exigencies of the market economy.

The history of the James Bay Agreement is also particularly instructive since it remains the only modern treaty with a First Nation in any province of Canada.1 So, following a brief historical introduction, section III will look at the content of the James Bay Agreement and section IV will examine the federal government's poor record on agreement implementation, building on and updating older assessments. The concluding section will consider the history of the agreement in light of the complexities of federalism and the context of a capitalist economy. Two qualifications are in order: first, the Inuit of Northern Quebec (Nunavik) are, of course, partners in the James Bay Agreement, but I do not comment on their unique experience with the treaty here (see Peters, "Native People," and her bibliography); and second, the focus is primarily on the record of the federal government partly for reasons of manageability, partly because its actions are of general significance for First Nations and for all Canadians across the country, and also because I make extensive use of Alan Penn's important analysis (Penn, "JBNQA"), which emphasizes the province-Cree relationship. Finally, Aboriginal lands and treaties are federal matters under the constitution.

II. The Historical Setting for the James Bay Agreement

Background

The Crees to the east of James Bay have been trading furs with the Hudson Bay Company since the early seventeenth century, and missionaries have been active in the region since the mid-nineteenth century. The charter granted by King Charles II of England to the Hudson Bay Company in 1670 covered a vast territory, including the Cree portion of what is now northern Quebec or Eeyou Istchee (the Cree traditional lands). In 1871 the company sold its chartered territories, Rupert's Land, to Canada, but an 1870 Imperial order-in-council stipulated that "the Indian title" still had to be obtained by the government of Canada. In 1898 Canada transferred much of the present Cree territory to Quebec, with the rest of present-day northern Quebec being transferred in 1912.

The 1912 transfer - the Quebec Boundaries Extension Act - explicitly reiterated the requirement to negotiate treaties: "... the Province of Quebec will recognize the rights of the Indian inhabitants...and will obtain surrenders of such rights...." (as quoted in Diamond, "Aboriginal Rights" 273-4). In a sense, then, Canada transferred lands that were not its own, since they had never been ceded by the Crees. The stipulation to negotiate treaties provided an eventual legal basis for clear and "unburdened" provincial ownership (west of James Bay Treaty 9 had been "negotiated" in 1905 and 1929). The transfer also involved an attempt to avoid, perhaps unconstitutionally, the federal government's obligations, given that section 91(24) of the Constitution Act of 1867 declares "Indians, and Lands reserved for the Indians" to be federal jurisdiction (Dupuis and McNeil 29-33). In contrast, in the numbered treaties covering northern Ontario and most of Manitoba, Saskatchewan and Alberta, federally appointed treaty commissioners representing the crown conducted the negotiations. So the transfer of the requirement to negotiate treaties in northern Quebec (which was absent Native consent) was an early federal off loading of responsibilities, not unlike more recent betrayals of the Crees. This understanding of the transfer is also in keeping with a view of the Canadian state that sees both its policies and the evolving shape of its federalism as results of its chronic need to rank the priorities of capitalist accumulation ahead of other concerns and interests, such as the rights and well-being of First Nations: after 1912 in Quebec it was now the province - the government that had the most direct interest in giving lands or resource rights to capitalists or settler interests - that was now responsible for rights relating to Indian title.

Although the Hudson Bay Company and the missionaries fulfilled some government functions, it was not until the 1930s that either the province or the federal government established a limited presence in Eeyou Istchee. And the provincial presence was confined to the regulation of some hunting and trapping in the extreme south of the territory - populations of beaver had collapsed, almost certainly because of a recent influx of non-Native trappers. In the late 1930s the federal department of Indian Affairs began to draw up band lists amongst the Crees and to create, or in most cases to recognize, band councils headed by chiefs (Felt, "Hunting" 198). There was no consultation or negotiation about the political implications of the government's new presence and the modified Cree institutions. Indian Affairs came to control the political affairs of the Crees under the Indian Act, and minimal social services such as pensions became available to many. Residential schools were also established as church and state cooperated in a misguided attempt to educate and socialize, sometimes with horrifying consequences. All these federal programs and policies were roughly in keeping with those in the rest of the Canadian mid-north, and were rooted in the constitutional jurisdiction over "Indians."

After 1945, as part of the pan-Canadian use of northern resources to fuel the postwar economy, mining enterprises and some forestry spread into the southern extreme of Eeyou Istchee. Yet although these are provincially regulated industries, it was only in the 1960s that the provincial government began to be a significant presence in most of the Cree territories and in the communities. Prior to the hydro projects, then, the Quebec state lacked a physical presence, in terms of institutions and personnel, in most of Eeyou Istchee, thus underscoring the importance of the federal role and what could have been the basis for a more vigorous defense of Cree rights in the face of sudden massive hydro undertakings.

At the beginning of the 1970s, the Crees continued to live as a distinct people in their traditional homeland even if distant "white" men made most of the major decisions affecting the politics and development of their communities and created a great deal of frustration, hardship and inefficiency. The Crees were also increasing their contacts with the mainstream Canadian economy through wage labour, especially in seasonal jobs with mining and forestry companies but also in guiding and with the Hudson Bay Company. But the wage work of many Crees did not alter the fact that in 1971 the Cree "economy" consisted mostly of traditional trapping, hunting and fishing. The Cree language, culture and identity were being constantly renewed through traditional practices in ancient patterns - supplemented rather than replaced or threatened by wage work and some federal transfers. For most Crees such income was used to outfit a family for hunting and not to provide an alternative source of subsistence (Salisbury, Homeland 5-6, 20-23). The strength and relative autonomy of the traditional way of life were reflected in the stability of the Cree system of regulating hunting by dividing the land into traplines and hunting territories overseen by tallymen or stewards. Each tallyman controlled the use of and access to the wildlife in "his" territory, but under cultural and community pressures to be socially generous and ecologically responsible (Feit, "Legitimation").

Resistance and negotiation

The story of the James Bay project and the James Bay Agreement has been told in several books, and only the barest outline can be offered here.2 Quebec Premier Robert Bourassa announced the James Bay project in April of 1971 without bothering to consult the Crees and without considering their rights and title. A handful of young Cree leaders, fluent in English, enlisted community support and began to fight the project. With construction moving quickly ahead without Native consent, Cree and Inuit leaders went to court and won an injunction that stopped the entire project after a remarkable trial with 71 days of testimony from Cree and Inuit hunters. Justice Albert Malouf ruled that some sort of Aboriginal title and other rights were unextinguished and relevant, and that the hydro project posed a serious threat to the indigenous peoples and their cultures. However, within only ten days the project was back on track as the injunction was lifted in a very disturbing example of judicial complicity with government and corporate interests (Richardson 301). Still, Malouf's ruling surprised observers at the time, and the resulting legal uncertainty prompted the province to favour a negotiated solution. Bourassa wanted the James Bay project to proceed, and he submitted an offer to settle to the Native representatives in November 1973 - after the Malouf judgement had stopped construction, but before it was overturned. The deal eventually reached, the JBNQA was signed in November 1975.

The Cree decision to negotiate has been analyzed by others in some detail, but it amounted to a recognition that they had very little choice (Feit, "Negotiating Recognition" and Diamond, "Aboriginal Rights" esp. 277). Two important rulings made further court support for the Cree position seem extremely unlikely (and even if it were to come it would not likely be on the scene before the essentials of the hydro project were nearly finished): in December 1973 the Supreme Court refused to overturn the suspension of the injunction against construction, and in November 1974 the Quebec Court of Appeal permanently overturned the suspended injunction (Malouf's sympathetic ruling). The Cree side saw their bargaining power undermined as the negotiations proceeded and as the project became unstoppable. There are other reasons, too, for concluding that the Crees were ultimately under duress during the negotiations, including the perception within political elites that Aboriginal rights were vague, anachronistic and probably limited to certain hunting and fishing rights. In addition, before 1982 Parliament could unilaterally use legislation to extinguish Aboriginal rights, including title, and the Cree leaders were aware of this possibility, which operated as a sort of "background" threat.3 Many basic provisions and the wording of the final agreement must be read in light of the lack of options and bargaining power on the Cree side.

III. Selected Provisions of the James Bay Agreement

The land regime

This summary is necessarily selective, with an emphasis on treaty provisions discussed in the concluding sections. The JBNQA is more than 450 pages and it now includes ten supplementary agreements.4 It confirms an area of just a little more than 1,000,000 square kilometres of land as Quebec land, most of which is the Inuit region of Nunavik, north of the 55th parallel (a boundary of administrative convenience for Quebec), and the southern half of the region includes almost all of the approximately 363,000 square kilometres of Eeyou Istchee, although the Agreement does fail to recognize significant Cree land use to the west on the ice and islands of James Bay (Feit, "Negotiating Recognition" 159). But determining the amount of Cree land surrendered is especially complicated given that the agreement confirms varying degrees of Cree rights in the whole region.

Most of the region became category III lands - public lands available for use and development by all Quebecers (although regulated by other sections of the agreement). All the land and resources in category III belong to Quebec. But even on these lands the Crees retained exclusive rights to some species of fish and animals and significant rights to continue all of their wildlife harvesting activities under a regime set up by the agreement. Moreover, the provisions for environmental protection were designed to give the Crees a say in the development of these lands, and the Crees are also supposed to enjoy preferential treatment in the development of outfitting enterprises in category III lands.

Category II lands are defined by the exclusive rights of Native harvesters to hunt, trap and fish - there is no legal non-Native competition here. The Cree portion of these lands is about 65,000 square kilometres, or 18% of the traditional hunting lands (s.5.2.1). However, beyond wildlife the Crees do not own any of the natural resources in these lands, which also became Quebec lands, nor do they control the development that takes place therein, although again there are some provisions for Cree participation in land use.

Finally, category I lands are more under Native control, although even here Aboriginal title is not recognized, and Quebec has subsurface (mineral) rights and other specific development rights. But Cree band councils can pass a wide range of by-laws enforceable on these lands, and all the Cree communities are in category I lands. However, Cree category I lands total only 5,600 square kilometres, or about 1.5% of the land the Crees use, as they always have, as their material and cultural base (s.5.1). In contrast, about 10,500 square kilometres have been flooded by the La Grande hydro development alone (the phase of James Bay development the agreement approved). It must also be emphasized that the Crees faced substantial restrictions concerning which lands could be claimed as category I and II lands. Quebec and its crown corporations effectively asserted priorities of hydroelectric and natural resource development as pre-existing plans were insisted upon.5

Extinguishing Aboriginal rights

A central component of the treaty is its infamous extinguishment clause, which was presented by Canada and Quebec as absolutely non-negotiable. JBNQA section 2.1 reads:

In consideration of the rights and benefits herein set forth in favour of the James Bay Crees and the Inuit of Quebec, the James Bay Crees and the Inuit of Quebec hereby cede, release, surrender and convey all their Native claims, rights, titles and interests, whatever they may be, in and to land in the territory.

The surrender is said to be in exchange for all the rights and benefits that are spelled out in the rest of the agreement, in the belief that the agreement then becomes a final and exhaustive list of rights - rights that were Aboriginal but have become treaty rights. This clause revived a nineteenth-century policy of using treaties to ensure that business interests and the state would never again have to deal with the issue of Aboriginal "rights, titles and interests ... in and to land," except to the extent that such rights are explicit in the treaty text. The JBNQA's land regime is therefore effectively frozen even though it reflects, primarily, the interests of the crown corporations and the province and even though it was negotiated under duress in the context of an early 1970s understanding of Aboriginal rights.

The JBNQA also contains a section devoted to "technical aspects" where the details of the La Grande complex and a variety of other remedial and possible future projects are spelled out. One clause is particularly disturbing in that it explicitly prevents the Native communities from referring to "sociological factors or impacts" in opposing any future developments (JBNQA 8.1.3). In other words, the clause suggests that the crown corporations and governments involved are not interested in the human and cultural effects of their resource projects. And the intent of this clause has become even more disturbing since we know that Hydro's development of the La Grande complex did in fact have unanticipated and extremely serious impacts of a sociological nature. Chisasibi is the Cree community most directly affected by the hydro projects because of its location on the La Grande river. Due to an alteration in the river's natural flow, the community was relocated. Then it was discovered that many of the residents of Chisasibi - the largest Cree community - were suffering from mercury exposure. The mercury was accumulating in fish, a staple of the traditional Cree diet, as a direct but unanticipated consequence of the flooding required by the hydro developments. The sudden concentration of people in a new village, which had new road access to the south was also a problem, as was the loss of a great deal of hunting territory (Niezen; Horing).

Wildlife harvesting rights and environmental protection

Section 24 of the Agreement outlines the wide range of wildlife harvesting rights and a regime to protect and manage those rights. The Agreement creates a Hunting, Fishing and Trapping Coordinating Committee that has equal Quebec-Cree representation and a rotating chair. Section 24 sets up a land regime, with areas of exclusive Cree harvesting rights; it also provides for the priority of Cree harvesting. ("Priority" is relative to non-Cree hunters, especially in times of low game populations; JBNQA 24.6.2.) Section 24 is meant to work alongside sections 22 and 30, the environmental and the income-support sections, to ensure traditional Cree land use for the long term. For the most part, section 24 deems that wildlife regulation in the territory is ultimately the responsibility of the provincial government, but through the Coordinating Committee and other means there are significant mechanisms designed to give the Crees more than minimal consultative status. Section 30 describes the income supplement scheme for Cree trappers. It requires that individual or family "units" stay out on the land for a specified number of days per year in order to qualify, but if they do qualify they are then guaranteed a modest annual income.

Section 22 of the Agreement provides for environmental protection south of the 55th parallel. It is meant to ensure that development does not undermine traditional land use, but it specifies that final authority rests with the federal or provincial governments, depending on the particular issue, although the range of committees and other vehicles for Cree participation are intended to give the Crees a substantial say in the nature of developments in the territory. If the governments were so disposed, they could put into practice a regime of shared management (Cree, federal and provincial), without necessarily having to re-open the Agreement.

Other provisions

The education provisions of the treaty are also very important. A Cree school board has been created and is funded by federal (75%) and provincial transfers. The provisions combine a high degree of Cree participation in elementary and secondary education, with final decision-making and legislative power resting in Quebec. Section 16.0.27 states that the "budget of the Cree School Board shall take into account the unique characteristics of the Cree School Board's geographical location and of its student population."

In section 28 the Agreement specifies a wide range of mechanisms and projects for economic development and infrastructure development. These commit Canada and Quebec to assist the Crees in building adequate essential services and employment opportunities. Cree enterprises are to be given support and contracts, for example. However, virtually all of these provisions were worded, as the government negotiators insisted, to minimize legally binding obligations (Moses, "Address" 18). In the provisions on health, justice and social services there is a significant shift, since these programs become the responsibilities of the relevant provincial ministries. In each case, though, Cree participation in administration is to be increased.

Also, there are the compensation payments, with the Crees receiving $137 million and the Inuit $88 million ($33 million of the total came from the federal government; all the rest was provincial). The money was to be paid out over 25 years, and most of it had to be invested. Supplementary agreements have resulted in additional compensation payments.

Finally, given the pressures for a quick settlement, self-government was left out of the JBNQA except for a general clause committing the parties to future negotiations and spelling out some of the limits of the coming governance powers. But the agreement did involve a significant array of administrative responsibilities that were to be taken over by new Cree entities, such as the school board, the health board and the trappers' association. And certain aspects of regional administration were to be the job of the Cree Regional Authority, an organization closely linked to the more political Grand Council of the Crees, which has retained the role of representing the Cree nation to other governments. Overall, then, the Cree negotiators achieved eventual escape from the Indian Act, and to a lesser extent from the Department of Indian Affairs.

What the parties achieved in the JBNQA

As noted, the mix of circumstances, threats, policies and court rulings did not give the Cree side many real options, and the agreement finally ratified had some surprisingly promising provisions. The Cree nation received some compensation and protection from a project they would not have been able to stop in any event, and they bargained for, amongst other things, a whole range of commitments for new services and programs and for increased Cree participation in administration. But most important the Crees also achieved wildlife-harvesting provisions, to help maintain and renew their traditional economy and way of life. Taken together, these sections of the agreement overshadowed money and other considerations in importance during the negotiations in the eyes of the majority of Crees.6 And for those Crees who would or could no longer make a living in the traditional manner, the agreement also contained the section 28 promises to help them better integrate into the wider Canadian economy.

The agreement held considerable benefits for the provincial government, although it still met with significant resistance in cabinet from those who seemed to deny the existence of any Aboriginal rights at all (MacGregor 129). Quebec's negotiator and cabinet minister, John Ciaccia, sold the agreement largely by playing up its nation-building implications, which he also stressed in presenting it to the Quebec National Assembly:

The land these people inhabited was in Quebec, after 1912, and yet Quebec's title was not properly defined. This Agreement will remove any grounds for further doubt or misunderstanding. jurisdiction will be established in a precise and definitive manner.... [The North offers] possibilities of unprecedented economic development that will benefit the entire population of Quebec as long as we grasp the opportunity to ensure that it is planned and orderly developed, with a human dimension.7

Quebec gained a legal and constitutional basis - however tainted by coercion - for its claims to the region, just as the hydro project itself and the array of services and programs promised in the agreement meant that the provincial presence in the region would be drastically expanded. And all this was achieved at a cost that was a mere fraction of what would be invested in the construction of the project and eventually returned in electricity and other resource revenues. Tellingly, when announcing the project in 1971, Bourassa had talked of "conquer[ing] James Bay," and he later wrote, after a flight over Eeyou Istchee, that it "is impossible not to be moved, not to marvel, before such a sight. What an extraordinary reserve of economic power!"8

Ottawa's role in the formation of the Agreement is intriguing. Federal officials knew that the treaty-making conditions of the territory transfer agreements had not been met, yet when the hydro project was announced the federal government did not oppose Quebec's unqualified assumption of jurisdiction and ownership. However, the Department of Indian Affairs had little choice but to fund some of the Crees' legal battles and the costs of negotiating, given the prevailing understandings of its constitutional obligations. In fact, in January 1974, Indian Affairs minister Jean Chretien threatened to cut off such funding in order to force the Crees to accept Bourassa's original offer of a settlement. According to MacGregor, editorial and public opinion forced Chretien to back down on the threat when it was made public.9 The threatened cut-off accurately illustrates how the federal policy of "alert neutrality" (apparently a federal bureaucrat's description) actually meant a drastic minimization, but without total abandonment, of legal and political obligations towards the Crees. In actual negotiations the federal position was generally a hands-off approach largely limited to attempting to ensure that the agreement did not significantly add to or subtract from its jurisdiction. "The government of Canada was represented but not active during most of the negotiations" (from Feit, "Negotiating Recognition" 166-67; and see also Larusic et al, "Negotiating" 6, 18-19, and GCC, Never Without Consent, 121).

But alert neutrality involved very little that was actually neutral, in that the federal negotiators did not attempt to offset the massive imbalance in bargaining power as the Cree representatives sat down with the province and the crown development corporations. In fact, important provisions of the agreement demonstrate federal cooperation with the province rather than a defense of Cree interests: consider (as outlined above) the extinguishment clause, the future development provisions such as 8.1.3, the land regime, the ambiguous wording of many of the economic development provisions, and the transfer of responsibility for some vital programs to the province. In this sense, the federal strategy of alert neutrality should be understood as a failure to defend Cree interests and rights in the face of provincial and industrial expansion. Such a policy is consistent with the pattern established in the 1912 attempted transfer of responsibilities.

The wider context of federal-Indian relations was also relevant. The government had been forced to abandon - in public statements, at least - its 1969 policy paper, which had proposed an acceleration of the assimilation of Indians and denied the legitimacy of the concept of distinct and ongoing Aboriginal rights. And in the summer of 1973 the federal government had announced that they would consider negotiating Aboriginal title claims - a response to the Supreme Court's decision in the Calder case, in which three of the six judges who addressed the question argued that Nisga'a Nation's title to their homelands remained valid and unextinguished. The new policy only committed the government to a cash-for-land approach, an attempt to clear away Aboriginal title by buying it out, since any agreement under the new policy was to include statements extinguishing title in the same manner as the numbered treaties of the nineteenth century.10

In sum, as the federal government apparently saw things, its role was to foster, not to undermine, economic development and capitalist investment, and this in turn required the elimination of the legal uncertainty created by Aboriginal land rights. In the case of James Bay, this broad goal did not conflict with that of trying to manage Quebec nationalism by co-operating with the Quebec Liberals," and it is probably impossible and unnecessary to say which objective was dominant, since both could be achieved through acting on minimal constitutional obligations to the Crees. It is less clear, however, that the federal government was successful in its attempts to contain its obligations to the Crees.

Federal jurisdiction in light of the JBNQA

Federal negotiators and officials in the departments of Indian Affairs and Justice tried to maintain the status quo in terms of jurisdiction. But the question of jurisdiction is quite complex given that several key provisions, such as those dealing with health, education and justice, shift responsibility for delivering and administering services and programs to the province. The agreement text is vague about what remains of federal responsibilities in these areas (see JBN`QA sections 14 and 18), although the education section, 16, commits the federal government to a clear funding role. The federal jurisdiction in all of these areas was based on section 91(24) of the constitution, so the negotiators believed that nothing prevented the assignment of some duties to provide services to the province as long as the constitutional division of powers was not altered (LaRusic et al 18-19 and Feit, "Negotiating Recognition" 166). But it has also been pointed out that the devolution in these areas was in keeping with the supposedly abandoned 1969 white paper (Penn, "JBNQA"); and in practical terms there was a shift to the province in the authority to run programs in spite of the passive federal negotiating stance - suggesting that there was more federal vigilance directed towards resisting new obligations than to lessening those already established, again fitting within the pattern of the 1912 transfer of the treaty-making role. However, in other ways the negotiations added to federal responsibilities, although an assessment is complicated because of quickly (by 1978) diverging interpretations of what many of the other provisions in the agreement actually entailed.

The agreement does maintain a substantial federal presence in northern Quebec in a number of ways, most obviously by stating that most Cree category I lands, encompassing all of the Cree communities and the local band councils, were to remain areas of federal jurisdiction (JBNQA 5.1.2), unlike any Inuit lands. As well, the Crees retained eligibility for all Indian Affairs programs, such as those for housing (2.11). Similarly, the federal government committed to providing core funding to the Cree Regional Authority, the administrative body responsible for the Cree role in programs and services for the communities taken together as a region. It was also true that the environmental regime in section 22 envisioned a major role for the federal government in all the lands covered by the agreement, since it provides for federal participation in committees reviewing areas of federal jurisdiction, including migratory birds, fish (inland and coastal) and navigable waters. In fact, federal JBNQA negotiators insisted on a federal role in environmental assessment for the perfectly sensible reason that it was understood that comprehensive reviews would require federal and provincial cooperation, given the constitutional division of powers and the new federal Environmental Assessment Review Process (with which the federal negotiators insisted that the JBNQA be compatible).12 As well, many of the community infrastructure and economic development provisions of the agreement, especially section 28, are responsibilities shared between the federal and provincial governments.

Perhaps most important, though, the trust relationship of the federal government was explicitly retained in the settlement legislation, with the preamble stating, "AND WHEREAS Parliament and the Government of Canada recognize and affirm a special responsibility for the said Crees and Inuit. 1113 Since then the Supreme Court has affirmed that the government's (primarily federal) contemporary relationship with Aboriginal peoples is to be "trust-like, rather than adversarial." So, while the precise nature of the federal fiduciary obligations are not always clear in specific situations, it is well established that the government must strive to defend rather than oppose Cree interests.14

IV. Implementation of the JBNQA

Delay, negligence and review in the initial phase of implementation

Several authors have reviewed the early years of JBNQA implementation, necessitating only a brief summary here. Neither level of government was ready to live up to the obligations agreed to in the treaty once it was signed. The main piece of federal enacting legislation was delayed for two years and only passed, just before the deadline, after the Crees pressed for action. Neither the financial nor the organizational resources necessary for implementation were made available in the years immediately following the signing, although work with Quebec on the harvesting regime in particular seems to have proceeded reasonably well.

It seems that the federal government was trying to proceed with a businessas-usual approach even though the JBNQA had codified and clarified many of its obligations to the Crees. Perhaps the most important event highlighting government negligence happened about five years after the treaty was signed. A gastroenteritis epidemic in several Cree communities killed several children and made others extremely ill. The deaths were the direct result of poorly planned and halffinished sewers built by the Department of Indian Affairs. Provision 28.11.1(1b) of the agreement states that funding and technical assistance are to be provided for "essential sanitation services in each Cree community," subject to government funding capabilities. Yet initial Cree complaints about the situation were not acted upon until international pressure was applied. After such pressure, and after Cree and Inuit representatives testified before the House Standing Committee on Indian Affairs, the government ordered an internal review of its implementation of the treaty (Moss; Peters, "Federal and Provincial").

The review, which looked at a variety of issues, unconvincingly argued that the government had not broken legal obligations - exaggerating the ambiguity of clauses like the sanitation clause while downplaying the government's fiduciary obligations on the advice of Department of Justice lawyers - but it still made clear that the government had violated the "spirit and intent" of the JBNQA. In general the report emphasizes what it sees as the ambiguity of most of the obligations in the agreement, and says the federal government was not prepared to implement the spirit and intent of the agreement whenever that required special or additional programs and structures (The Tait Review, especially 32-33, 68-69). Evelyn Peters reviewed a wide range of treaty issues and disputes. She concludes that "... it seems clear that provincial and federal governments were not prepared either for the costs of implementing the agreement, or to create structures and mechanisms to ensure that its provisions were carried out" (Peters, "Federal and Provincial" 175).

In sum, there was substantial federal resistance to meeting those JBNQA obligations that could not be met within regular programs and expenditures - that is Indian Affairs programs applicable to status Indians - and/or that lacked fixed costs because they depended on assessing needs. Moreover, as will be shown, this early pattern has remained in place and is a fundamental cause of Cree-federal disagreement.

It is worth stressing that the restricted federal reading of the treaty does not stand up to close scrutiny, as is illustrated by the sewers example. More generally, the negotiators agreed that the government would not substitute normal programs for treaty promises. In the "general provisions" section, 2.11 reads:

Nothing contained in this Agreement shall prejudice the rights of the Native people as Canadian citizens of Quebec, and they shall continue to be entitled to all of the rights and benefits of all other citizens as well as those resulting from the Indian Act (as applicable) and from any other legislation applicable to them from time to time.

This clause does not unambiguously prevent governments from fulfilling treaty promises using normal programs, but it does clearly distinguish what is "contained in this Agreement" from programs of general application to Indians and Canadians, and such a distinction would be nonsensical or fraudulent unless it means that the treaty's provisions remain obligations even when normal programs are inadequate to meet the specified provisions. In spite of this, as will be shown, senior government officials have taken the clause to mean that "so long as there are federal programs for Indians in place then we need not deal with related provisions of the JBNQA."

Warren Allmand, who was minister of Indian Affairs when the Agreement was confirmed into law by legislation, told the Standing Committee on Indian Affairs that he had the same understanding of this issue as did the Crees, and he explicitly endorsed Grand Chief Billy Diamond's submission to the committee, which stated that it:

was crystal clear in the minds of the Crees at the time of the signing that all federal programs, services and benefits would continue, and would be in addition to, and without prejudice to, all the rights, benefits and privileges which the Crees would receive under the ... Agreement.15

Inuit testimony has independently expressed precisely the same understandings of the text of the agreement and of its intent as stated by the negotiators (The Tait Review 20-22). Therefore, although many specific clauses are somewhat ambiguous and sometimes lack binding language, the principle that the treaty committed both Canada and Quebec to recognize, fund and provide both normal programs and additional treaty rights and programs was firmly established - a reasonable enough principle if treaties are to be aimed at reconciliation and renewal.

Allmand's testimony came to light in the wake of the gastro-enteritis epidemics, as did the implementation review. This public attention to the treaty resulted in the establishment of an implementation office to oversee the JBNQA. Some genuine progress seems to have been made in the next couple of years as the government began to work with and fund the Cree Regional Authority and the councils of the Cree communities (Moses, "Address" 10). Federal and provincial funds began to help build up the array of Cree organizations and institutions, such as the school board and the health centres, which provided a significant number of young Crees with secure and meaningful employment.

Self-government for the Crees?

The JBNQA, in section 9, had set out guidelines for negotiations on Cree control of local affairs and service delivery, although such powers were to be delegated by legislation. Yet it was not until 1984, and after considerable lobbying efforts by the Cree leaders, that the Cree-Naskapi Act was passed. This piece of federal legislation replaced the Indian Act for the Crees and Naskapis, and recognized significant powers of local governance, although limited to matters typically given to cities and municipalities elsewhere in Canada, such as local taxation and the regulation of business activities, public works and land use. But another major limitation is that the Cree-Naskapi Act only applies on the small parcels of category I lands, so that the decisions made by the band councils are made in the context of the relative isolation of the Cree communities from the Quebec economy. This means that there is a lack of an adequate tax base as well as a significant absence of Cree authority over 98.5% of their traditional territories J.P. Rostaing as cited in Peters, "Federal and Provincial" 181). The Cree-Naskapi Act also involved the creation of the Cree-- Naskapi Commission, which reflected the frustration with treaty implementation. The Commission is a panel with equal Cree and federal representation and has usually been chaired by a judge from Quebec.

The JBNQA and the neo-liberal state: federal funding

By 1986 Cree-federal relations had soured again as the new Mulroney government made spending cuts a major priority. One particular set of events is extremely important.16 In the last months of Liberal government Douglas Frith, who had replaced Munro as minister of Indian Affairs, signed a statement of understanding with the Crees that committed the government to unconditional grant funding for the local Cree governments and to a formula for determining the level of this funding. But under the new Conservative government the Liberal commitments were seen as too expensive, and the deputy minister went on the record saying that the previous minister's signature was not binding. The Crees took the matter to court in 1987 and the dispute soured negotiations for nearly 10 years. More recently a mediator has been used, although the underlying issue of appropriate federal obligations for operations and maintenance funds remain unresolved.

In its 1991 report the Cree-Naskapi Commission reviewed Cree-government disagreements over electricity and education funding. At issue was precisely the question of whether the JBNQA committed the government to capital funding separate from normal Indian Affairs funds: the government was reasserting its determination to meet most treaty obligations with regular programs even when these programs were inadequate. After examining the submissions from the Crees and from the government on these issues the Commission concluded that the federal government was violating the spirit and intent of the treaty in general and of the specific clauses relevant to the disputes. The report states that "the federal government's position that it is not obliged to pay electricity and education funding over and above normal program funding is untenable" and that the government "interprets the Agreement too narrowly" and without due regard for relevant rulings in the courts about how to interpret treaties and about the meaning of the government's fiduciary obligations (The Cree-Naskapi Commission, 1991, 53, 47).

One result of the federal funding practices has been that the Crees have had to use some of the compensation moneys for the provision of basic services and infrastructure such as housing. This has been a chronic problem since the signing, and while it does not involve a technical breach of the treaty text, it unequivocally violates the spirit and intent as understood by the Crees and by Warren Allmand (Moss 690-1).

One of the government's annual reports is quite revealing about the pattern of avoiding obligations: JBNQA implementation negotiations started in 1986 were completed with the Inuit and Naskapis in September of 1990 and resulted in onetime payments that "released the federal government from certain obligations under the JBNQA and the NEQA" (INAC, "1995 Report" 12). In other words, the promises of 1975 were deemed unaffordable. No corresponding agreement with the Crees was reached.

In the annual reports the government measures its own performance in terms of expenditures to Crees by government departments, mostly Indian Affairs, but without making any attempt to distinguish treaty obligations from normal programs. For example, in spite of the numerous provisions committing the government to specific economic development projects (especially section 28), funding and preferential treatment in contracts, the 1995 report states that the Agreement "specifies" only that the Crees "continue to benefit from economic development programs offered," and "in the same way as other Native people" (INAC, "1995 Report" 10). This neglect of the treaty is especially significant because the intent of the economic development provisions was to assist those Crees who would be unable or unwilling to make a living off the land in light of the growing population, environmental effects of the developments and increasing contact with Canadian society. Such an approach to implementation also implies that the Crees gave up much of their lands and consented to the La Grande project in exchange for inclusion in government programs for which they were already eligible.

It is vitally important to note that the Chretien government did not significantly alter the Tory approach to the treaty. Implementation negotiations under Indian Affairs minister Ron Irwin achieved little but a promise to keep talking and did not come close to addressing the broader issues relating to the weaknesses of the treaty or violations of its spirit and intent. The government side continued to seek sign-offs to limit what it owed and to avoid an opening-the-floodgates effect, which it fears would result from agreements favourable to the Crees, since other First Nations would then have a stronger case in disputing funding decisions. This is in spite of the fact that, as the Cree-Naskapi commission has stressed, treaty entitlements must take precedence over such considerations.17 Chretien's first government adopted a business-as-usual approach to the treaty in spite of public pledges to honour treaties and to implement the inherent right of self-government.

Another significant example of treaty breaking is a 1996 deal between Canada and Quebec over Cree education funding. The Crees contend that the deal violates JBNQA rights. They say the treaty unambiguously states that the Cree School Board must be involved in the process and decisions setting the funding formula (16.0.23 and 16.0.25). The federal-provincial deal, however, after a decade of disagreement about the funding, agreed on a formula without any Cree involvement at all (the federal government had been unilaterally limiting its expenditures). The judge agreed with the Cree interpretation of the deal, noting that the interpretations of the JBNQA by Canada and Quebec were "illusory" and "that the Crees were right to contest and to ask that this document not be made enforceable against them."18

The case is also significant because both the federal and provincial sides submitted that the JBNQA is not a constitutionally protected treaty even though 35(3) of the Constitution Act of 1982 (amended in 1983) clarifies that constitutionally protected treaty rights include "rights that now exist by way of land claims agreements." The Cree lawyers were able to produce transcripts of the federal justice minister explaining to a Senate committee in 1983 that the addition of 35(3) to the constitution would in fact give the JBNQA constitutional protection. Again the judge rejected the federal and provincial arguments and confirmed earlier rulings that the James Bay Agreement is a constitutionally protected treaty (Cree Regional Authority v. Robinson 84-106, and Dupuis and McNeil).

New Cree-federal negotiations are now under way. There are some reasons for optimism: the government agreed to a broad review of its role and has involved relevant ministries beyond Indian Affairs in the talks. A recent agreement on training and manpower is encouraging too. However, it is far too early to tell if these negotiations will lead to a new relationship with the Crees.

Provincial implementation

From the beginning, provincial implementation of the JBNQA was aided by the fact that acting on its provisions was also part of the extension of provincial jurisdiction in the north, since a whole range of programs and services in the agreement involve Cree consultation and participation, but with ultimate authority and jurisdiction resting in the province. For Peters and others there seemed to be fewer problems in Cree-Quebec relations than in Cree-federal relations, at least by about the mid-1980s. However, it is also true that on a variety of fronts the problem of government minimization or neglect of treaty obligations was prominent in Quebec's policies (Moss; Peters, "Federal and Provincial" 175, 210-11).

By the early 1990s, though, Cree-Quebec relations were generally tense and largely counterproductive, with the struggle over the proposed Great Whale River hydro project overshadowing other issues. Hydro-Quebec wanted to dam the river and flood its headwaters even though the Cree and Inuit communities at the mouth of the river were overwhelmingly opposed to the project.19 The perception is widespread amongst Crees that the government retaliated against the Crees for publicly opposing them, with a policy of non-cooperation and poor treaty implementation.20 The perception is likely accurate, given that the provincial government recently announced it was suspending implementation of a 1995 memorandum of understanding - committing the government to a variety of projects in the Cree communities - in response to Cree legal actions against Quebec forestry practices. This time the policy of retaliation for Cree attempts to protect their rights was made in writing.21 Another low point in Cree-Quebec relations was reached when the Cree referendum in 1995 revealed that 96%rb of Cree voters rejected separation from Canada without their consent. Current Cree-Quebec relations are strained, and provincial treaty implementation is disappointing.22

Federal and provincial implementation concerning the environment

The issues of wildlife management and environmental protection are central to the hunting traditions section 24 attempts to preserve, as well as to the long-term economic sustainability of natural-resources industries. And yet neither level of government has adhered to the treaty in these key areas.

The main committee set up to give the Crees real input into environmental protection is the James Bay Advisory Committee on the Environment (JBACE), established in section 22, although different structures and procedures come into play for different issues depending on whether federal jurisdiction is relevant to the land or land use affected by a proposed development. The committee was clearly intended to ensure that the environmental impact procedures were working and to provide for regular policy review - and hence for meaningful Native participation in management issues. It has equal Cree and federal and provincial representation, but its decisions are not binding on the governments.

The preamble to the federal legislation giving effect to the JBNQA illustrates the goal of sharing the management of the region:

AND WHEREAS the Agreement provides ... [for] the establishment in the Territory of regional and local governments to ensure the full and active participation of the Crees and Inuit in the administration of the Territory ... [and for] the establishment of laws, regulations and procedures to manage and protect the environment in the Territory ... (lames Bay Settlement Act 279).

The importance of these management and environmental provisions is enhanced by their explicit interdependence with the treaty's harvesting rights. Wording in the harvesting rights section refers to the "protection by and in accordance with Section 22"(JBNQA 24.11.1). In sum, there was a clear intent that the Crees would be able to influence decisions about the pace, nature and destructiveness of the developments in almost all of their traditional lands. The text is unambiguous that the environmental provisions are applicable to all of the agreement's land categories (see JBNQA 22.2.2 and 22.1.6).

In practice, however, the committee has not been effective, since neither government has put significant resources or effort into making it work (Penn "JBNQA" and GCC, "Annual Report 1995-6," 28). Diamond reports that from 1982 to 1984, the federal government began to address its section 22 obligations and to participate in the relevant committees. This was in the wake of the implementation review of 1981. But after 1984 the federal role in environmental protection in the region declined decisively, excepting the review of some projects in the Cree communities on category I land. Penn confirms Diamond's claims and emphasizes the difficult relations between Parti Quebecois and federal governments. The situation did not improve significantly after Bourassa's re-election (Diamond, "Villages" 28; also Penn, "JBNQA").

In recent years the committee has barely functioned, largely because the federal and Quebec representatives have little or no support for their participation and no influence in decision-making circles. In 23 years "no environmental regulations, laws, or policies have ever been implemented by either government, Quebec or Canada, pursuant to this agreement. They don't exist."23

For example, Cree representatives report that there has been a progressive decline of the involvement of the federal departments of Environment and Fisheries since 1978, even though the Agreement and the Cree and federal negotiators anticipated and provided for a long-term working relationship. "What we have seen is essentially a pattern of absence of the federal government" (Penn, to the Senate Committee at 1550-1555). Federal involvement is crucial. The Quebec government is not well placed to review the effects of development in the territory, since either its own crown corporations are the proponents of the projects, or the provincial government is relying on resource corporations to provide jobs in a region of high unemployment (compare Harrison 149-66). Cree input into managing their territory has become nearly meaningless. Even with respect to mercury contamination, which was harming human health, the federal government has not honoured its treaty and constitutional obligations. And the situation has worsened rather than improved; the federal government has recently suspended its role in any type of environmental assessment under the Agreement, even in those category 1 lands that are under federal jurisdiction (Penn, to the Senate Committee at 1640-1700).

Another example of federal and provincial treaty breaking is the handling of environmental assessment for the proposed Great Whale River hydro-electric development. In the fall of 1990 the federal government abandoned its commitment to conduct its own environmental review of the project. The Crees went to court. The case, Cree Regional Authority v. Robinson, was decided in September 1991, and Posluns has brought the significance of justice Rouleau's decision to public attention (Posluns 179-218). An agreement had been signed between officials from Ottawa and Quebec to delegate the federal responsibility for environmental review to the province. This is in direct violation of the treaty, which requires separate federal and provincial reviews unless the Crees agree to a combined review. The judgement strongly supported the Crees' claims that their rights were violated and plainly ordered the government to comply with the treaty requirements for a federal review of the Great Whale development. Justice Rouleau was succinct: "... if one accepts the federal government's argument that it is willing to comply with its obligations towards the Native people of this country, one is at a loss to understand its refusal to fulfil that original contractual obligation [to conduct its own review under] the JBNQ Agreement."24

However, a decision by the same court issued a few months after Rouleau's ruling came to different conclusions on some important questions. In Eastmain Band v. Canada Justice Decary decided against the Crees on the status of a project to construct a new power station in the Eastmain River watershed. The main issue in the case was whether or not the new project was an addition to the La Grande complex, which would affect its status within the regime established by the JBNQA. The judge decided to answer other indirectly related questions in the case, although neither his motives for doing so nor the logic of his analysis is clear. He chided the Cree leaders for going to court too often; he dismissed the relevance of the inequalities in bargaining power apparent in 1975; and he insisted that it is perfectly reasonably to conduct an environmental assessment of the construction of a project without regard for the consequences of the operation of the project. Most importantly, Justice Decary argued that the JBNQA's provisions for shared federal-provincial jurisdiction are not relevant to projects that are primarily provincial in nature - in spite of the clear wording of the treaty and in spite of the well established constitutional principle that many policy areas not assigned to either level of government in 1867, such as environmental protection, are in fact areas of shared jurisdiction (Eastmain Band v. Canada, 65, 61, 71-5). His decision has the same legal status as Rouleau's in Cree Regional Authority, in so far as both were Federal Court of Appeal rulings, and in both, leave to appeal to the Supreme Court of Canada was denied. So the fact that federal policy has relied on the Eastmain decision (in avoiding involvement in forestry and hydro developments) and mostly ignored Cree Regional Authority is not a legal matter; rather, it reflects the fact that the latter decision directly challenged the established policy pattern, while the former provided a justification for the status quo - a fact reinforced by the reality that the pattern of federal absence was in place long before the Eastmain ruling.

More recently, forestry has become a dominant issue. The northern Cree communities are unaffected by forestry, but five of the nine communities covered by the agreement have suffered a substantial attack on their lands in the form of clearcutting. The questionable sustainability of clear-cutting is frequently brought to public attention. In Eeyou Istchee, concerns are magnified by the fragility and low fertility of the northern boreal forests, where clear-cutting has no track record. About 500 square kilometres are clear-cut each year, and whatever the long-term implications of the cutting, the short-term impact on hunting and trapping has been dramatic. The numbers of many valuable animals have dropped drastically. For example, in 1995 the moose population on family hunting territories that had been heavily logged was calculated to be one third of its 1985 level.25

In terms of political and ethical obligations the issue is straightforward: current logging practices in Northern Quebec are resulting in a demonstrable and substantial negative impact on the harvesting rights of the Crees. Yet the various JBNQA provisions for Cree input into the management of development were explicitly designed so that such impacts could be avoided. Specifically, section

22.2.2 states that the section provides for:

a) A procedure whereby environmental and social laws and regulations and land use regulations may from time to time be adopted if necessary to minimize the negative impact of development in or affecting the Territory upon the Native people and the wildlife resources of the Territory ...

e) The protection of the Cree people, their economies and the wildlife resources upon which they depend.

To invoke the spirit and intent of the treaty in defense of Cree claims that logging needs to be better controlled is not to evade the written word of the treaty. Instead it is an attempt to favour the expressed goals and general provisions of the treaty over some narrow and specific sections that can be interpreted to undermine those goals and provisions. There are many specific violations of the agreement's goal of shared management, such as the avoidance of environmental assessments for forestry roads, and the neglect of the ongoing effects of logging on harvesting rights. On forestry, the Quebec government has effectively bypassed the JBNQA in general, and the shared advisory-committee and environmental-assessment processes in particular. The JBACE has continued to meet and has dealt with forestry, but it has had no influence on regulatory decisions, and it has not been given adequate resources or complete and timely information (GCC, "Annual Report 1995-96" 31; GCC and the Forestry Working Group, "Crew and Trees," 4041; and see GCC to the Subcommittee on the Boreal Forest).

Forestry within the JBNQA region is in some important respects a federal concern. As outlined in JBNQA section 22, federal environmental reviews of bridges over waterways and of the effects of forestry on fish and migratory birds are required but have not taken place. But probably more important is the issue of federal inaction in light of Quebec's JBNQA violations. The federal responsibility is partly due to its fiduciary position concerning Aboriginal peoples. This is reinforced by its responsibilities as a signatory to the treaty, and by the fact that the treaty-based wildlife harvesting rights that are threatened are now constitutionally protected rights.27 According to legal scholars Dupuis and McNeil,

any treaty rights of the Aboriginal peoples of Quebec, including rights under the James Bay and Northern Quebec Agreement and the Northeastern Quebec Agreement, are constitutionally protected and arguably cannot be infringed legislatively, even by federal legislation that meets the justificatory test set out in Sparrow. Quebec does not have the constitutional authority to infringe those rights. Moreover, the fiduciary obligations that Canada owes to the Aboriginal peoples of Quebec may impose an active duty on Canada to protect them against infringements of their Aboriginal and treaty rights by Quebec. In practical terms, this could mean that the government of Canada has an obligation to put political pressure on the Quebec government, and other provincial governments as well, to prevent any such infringements. In the event that political pressure failed, the government of Canada might be obliged to undertake or finance legal action challenging the constitutional validity of any attempted infringements. (from Part 1, "the Constitution Act, 1982," 41-46)

However, rather than pressure Quebec on the issue, the federal government has been silent. The forestry question has ended up before the courts. Disturbingly, federal and provincial lawyers were able to have the judge removed from the case after an initial finding in favour of the Cree claims in December 1999.28

JBNQA implementation and the policy of extinguishing land rights

The evidence suggests that the federal government has consistently interpreted the JBNQA so as to minimize or circumvent Cree rights. This can been seen in the range of complex funding obligations and the various devices for giving the Crees control over their homeland, including the ability to protect the environment.29

This emphasis on the problems of JBNQA implementation is not meant to deny or obscure the ways in which the treaty has been successful. By most accounts the agreement's hunting regime has helped maintain hunting and trapping as a cornerstone of Cree material and cultural life, and it is sometimes used as a model in talks involving other Aboriginal Peoples. Perhaps most important, the income support program for trapping and hunting has helped ensure that many families have been able to continue living in the traditional way, with about one in four Crees benefiting from the program (Cree Hunters and Trappers Income Security Board 27).

The country food brought into the communities by these hunters is typically widely shared in relationships of reciprocity that are integral to the uniqueness of Cree culture (Felt, "Hunting"). Cree is the language of instruction in the lower grades in most of the Cree elementary schools, and many working-age Crees have been able to find meaningful and secure employment in one of the various Cree boards or entities delivering services or dealing with regional administration.

But it is also true that expansion of federal and provincial programs already was set to increase dramatically by the mid-1970s, and this makes it extremely difficult to assess the agreement in terms of employment and services. More important, it is in precisely the areas of apparent success, in employment and in traditional land use, that federal and provincial interpretation and implementation of the agreement are most at odds with Cree rights, needs and aspirations. The problem is that the natural-resource-based industries - hydroelectric energy, mining and forestry - are all being carried on to the general exclusion of the Cree communities, an exclusion coincident with the end of the 1980s expansion in administrative jobs and with an explosion in the part of the population turning working age. Forestry in particular is undermining what is left of the traditional subsistence and fur economies in many parts of the region (Penn "JBNQA" and see s.IV below).

One useful way of summarizing government policies on implementation is to see the extinguishment clause of the treaty (JBNQA 2.1) as the basis for an ongoing policy of extinguishment.30 Governments continue to rely on the agreements' land regime, which permanently transferred almost all the traditional Cree land and resources to Quebec. This policy involves federal and provincial neglect of the parts of the treaty meant to compensate for, and to replace, the loss of ownership of lands and resources: the harvesting regime, the environmental-management and regional-management provisions inseparable to the harvesting regime, and the promises to support alternative employment opportunities.

Notwithstanding its public statements endorsing the "inherent right of selfgovernment," the federal government has consistently undermined Cree nationhood. In particular, rights to self-determination - usually related to nationhood and encompassing both self-governance and control over natural resources in traditional territories - are being denied by continuing with extinguishment and JBNQA non-implementation.31 As a starting point, such recognition requires the full implementation of the spirit and intent of the JBNQA, but the coercive provisions of the JBNQA should eventually be renegotiated.32

V. The Canadian State and Cree Nationhood

Explaining the poor record of JBNQA implementation

One explanation for the poor record of federal implementation is fiscal priorities and constraints (Moss 688). Spending decisions in cabinet, the Department of Finance and Treasury Board have repeatedly put pressure on federal officials to contain spending with respect to the JBNQA. But it is not at all clear to what extent such policies and decisions reflect actual fiscal capacities. Are they rather an absence of political will?

Within the department of Indian Affairs it seems these two factors are closely entwined. From the position of a middle-level bureaucrat with a fixed amount of money to dispense, there may well be a logic and fairness about treating all recipients equally and without reference to special rights, such as James Bay agreement entitlements. For example, when the Cree-Naskapi commission reviewed the capital-funding disagreements, the federal representatives told the commission that they felt obligated to give the Crees only their fair share of normal Indian Affairs program funding so they could avoid treating other Indians unequally. The commission correctly concludes, "this implies that government funding is decided upon by policy and not in legal accordance with an agreement" (Cree-Naskapi Commission, 1991, 50). Attempts to meet JBNQA obligations with regular programs have been a dominant theme in federal policies since 1975. But this approach has serious implications. It is natural for those who agree that special programs and expenditures are not justified to survive and thrive within the department - after all one can only swim against the current for so long - thus reinforcing the barrier to treaty implementation, a barrier that is simultaneously ideological and structural. A common problem is that good relationships between the Crees and federal negotiators or middle-level bureaucrats are often short-lived, since the government officials are overruled by senior officials, constrained by program criteria or shifted to other jobs.33 It may be that there is an established practice of not promoting and rewarding officials and negotiators deemed too generous or conciliatory with First Nations. There is certainly circumstantial evidence supporting this proposition, but there is also a high turnover in the government, and much normal bureaucratic rigidity and resistance to establishing new and expensive precedents.34

There is some ambiguity about the precise nature of the resistance to meeting treaty obligations within Indian Affairs, but it is also true that this merely mirrors the ambiguity about political will closer to the centres of power. Governments have the ability to raise the necessary funds through taxes, subject to an overtly political feasibility. A reference to fiscal constraints as an explanation of poor treaty implementation can only be a partial answer, given the underlying complexities of the political priorities and struggles that largely determine fiscal capabilities. But fiscal concerns, whatever their origins, have consistently militated against a fair implementation of a legally binding treaty. The Ambassador of the Crees has made the point succinctly, noting that there is such a poor record of treaty implementation simply "because it is cheaper to pay civil servants to fight Indians than it is to meet treaty obligations" (Moses, "Address" 6).

Another explanation for poor implementation might be organizational. The government in general is not prepared to restructure operations to meet the new obligations taken on in the treaty (Peters, "Federal and Provincial"), and it also has failed to coordinate properly the various departments and agencies relevant to specific programs or treaty provisions. This problem has been apparent in relations with the Crees, and the latter aspect was noted by the Grand Chief in his presentation to the Royal Commission.35

However, it is now more than 25 years since the agreement was signed, and such organizational factors seem unconvincing as general explanations for poor policies. They also suffer from the ambiguity that they may be merely the face of a deeper problem of political will. Would not a government committed to honouring treaties develop the appropriate structures reasonably quickly?

Organizational and fiscal explanations of poor treaty implementation are not enough. The federal breach of its environmental assessment obligations is not likely rooted in fiscal or organizational concerns, since the required reviews and decisionmaking process are not particularly expensive relative to program spending and income transfers. And they can easily involve personnel from different relevant departments, as was envisioned when the agreement was negotiated.

A related problem is an alleged liberal bias against "special" Aboriginal rights. Special rights are said to challenge ideals of universal citizenship. But such an explanation fails to address the complexity and the deep roots of the problem. The main weakness with the liberal-bias explanation is that such a bias should encourage massive expenditures on integrative policies such as education, health care and business development, programs that promote Aboriginal participation in the dominant society. But this has not been the case with the JBNQA, where the economic development and training provisions, for example, have been among the most thoroughly ignored provisions of the treaty.36 Even road building and hockey facilities have required prolonged Cree struggles, whereas they would be obviously attractive priorities to a government committed to blending Aboriginal communities with the general population.

Another distinct yet central factor in federal non-implementation is a concern to avoid conflicts with governments of Quebec, as much as possible, in order to check the separatist movement. Several commentators have shown how the Crees have seen the priority attached to their federal relationship subordinated to the general concerns of national unity.37 This pattern was evident in the original federal negotiating strategy of alert neutrality. And it has remained dominant in cases such as the federal attempt to escape reviewing the Great Whale River hydro project and in the current federal inaction on forestry.

It is plausible to argue that federal violations of the JBNQA are exceptional and unique to the context of the ongoing national unity crisis. This argument could be tested by comparing the federal approach to the Crees with its approach to other First Nations outside Quebec yet south of the 60th parallel, where provincial powers are relevant. Such a test is clearly beyond the scope of this paper. Yet in light of the findings of the Royal Commission on Aboriginal Peoples it seems unlikely that the federal government would score significantly better elsewhere. Roughly contemporary with JBNQA, for example, there was the Northern Flood Agreement negotiated with Cree communities in northern Manitoba, also in response to massive hydro-electric development. This agreement contained a similar broad range of federal commitments in compensation for the project, and it, too, has a history of non-implementation, including the ignoring of rulings from arbitration panels (Larcombe). In Labrador, the federal government has avoided confronting corporations and the province of Newfoundland. A massive mining project at Voisey's Bay and a $12 billion hydro project on the Churchill River are moving forward even though the land is unceded Innu Nation land and there are treaty negotiations under way.38

Moreover, it is not clear that the federal government has been vigorously defending Cree rights up until the point of conflict with unity concerns. For example, a Privy Council Office document outlining a possible policy on the JBNQA in the event of Quebec succession was leaked to the press in 1995. It was dismissive of Aboriginal claims to internationally valid rights to self-determination, and it proposed that, in the event of a declaration of independence by Quebec, Canada could be relieved of its responsibilities under the JBNQA after bilateral talks with Quebec - thus illustrating a federal interest in being rid of JBNQA obligations. The PCO document ignored the fact that the treaty is constitutionally protected and can only be modified with Cree consent (Moses, "Abandoning the Quebec Crees").

A number of factors are relevant in causing the history of poor treaty implementation, and while each is insufficiently explanatory, the alternative explanations are also not mutually exclusive. And while it may be difficult to weigh their relative importance, taken together they reveal an entrenched resistance to acting on the full range of obligations taken on in the JBNQA, a resistance that has spanned nearly 25 years and run through numerous governments and cabinets. The treaty-breaking can be seen as a contemporary version of the long-standing historical pattern of minimizing or denying Aboriginal rights. In James Bay this involved, amongst other policies, devolving the responsibility for treaty-making in 1912 and then evading fiduciary obligations during the construction of the La Grande hydro complex and during the negotiation of the James Bay Agreement (the federal position of alert neutrality). Once the recent policies of non-implementation are placed in this historical context, the need for a more comprehensive account of the resistance to recognizing Cree rights becomes apparent.

Federalism, capitalism and Cree land rights

It is useful to recall the beneficiaries of a policy of non-implementation. The JBNQA commits the federal government to confront certain powerful interests, most obviously the government of Quebec and Hydro-Quebec, but also various corporate interests, like the forestry and mining companies, who directly benefit from the denial of Aboriginal rights by gaining easier and cheaper access to natural resources. More generally, wealthy individual and corporate taxpayers, whose wealth could ease the fiscal pressures on the state, also benefit in a less immediate way from the minimization of treaty obligations. The unwillingness to fundamentally restructure the relationship between the state and First Nations is very likely rooted in the limited capacity of, and the lack of incentive for, the federal state to compel all the interests who benefit from the status quo to behave differently.

The evaluation of public policies affecting the Crees is bound up with the complexities of Canadian federalism. The James Bay hydro developments and the other ongoing resource industries may be the most immediate and profound threats to the well-being of Cree communities, but they are provincial undertakings. It is in fact accurate to speak of a provincial colonization of the Eeyou Istchee, especially since there was such a notable absence of the provincial state from the region before expansion of the hydro projects. And Bourassa and Ciaccia, as noted above, made it clear that their policies were aimed at supporting the economic health of the province by extending provincial jurisdiction and the related industrial activity onto the Cree lands.39

Yet the federal jurisdiction over "Indians and lands reserved for Indians" means that provincial exploitation of the resources of James Bay could take place only with the cooperation of federal policies, even if the policies amounted to little more than an abrogation of responsibilities and the relatively passive negotiating stance of alert neutrality. Keeping in mind that what was involved was a modern capitalist state and economy dramatically and suddenly imposing itself on a society of 5,000 hunters, absent consent. (The current population is more than 13,000.) The federal policy most obviously implicated here is the JBNQA's extinguishment clause, which, given the peculiarities of our constitutional traditions, immediately and decisively "cleared" the provincial ownership of lands and resources - excepting the limited and defined treaty rights of the JBNQA - from the "burden" of Aboriginal rights and title, to use the phrasing of the dominant legal system. Moreover, although the jurisprudence was not so well developed in the 1970s, the Supreme Court has recently clarified that only the federal government can extinguish Aboriginal title,40 thus reinforcing the dependence of provincial resourcebased industries on federal policies that minimize Aboriginal land rights.

Since the JBNQA entails the codification of both significant treaty rights and of a related continuing role for the federal government in the region, the exploitation of the region's resources by province and the state continues to depend in large part on compatible federal policies. And the non-implementation of the environmental assessment provisions and the non-interference with Quebec's abuse of Cree rights are precisely the types of policies that facilitate the exploitation of the resources of Eeyou Istchee without significant benefit to the Crees, just as they fit easily into the historical pattern of minimizing or denying Aboriginal rights in most parts of the country.

The centrality of the particulars of Canadian federalism to this situation are well illustrated with the help of Garth Stevenson's work. According to Stevenson, Canada has become one of the most decentralized federations in the world, primarily because the economy is distinctly regional, so pan-Canadian regulation of the economy has been notoriously difficult. The result has been the effective use of provincial governments by regionally based capitalist interests who want to develop the appropriate public policies from the business point of view (Stevenson 79-102). This tendency has combined with the constitution's provincialization of lands and resources to give Canada a resource capitalists' dream constitution, since the limited role of the federal government in the natural-resources economy means that corporations work with provincial governments, governments that have less capacity to oppose corporate interests and are more dependent on the employment-generating development resulting from investments in resource-based industries. Stevenson's analysis is confirmed by the politics of federalism in northern Quebec, where the expansion of the provincial state and economy followed a pattern seen in other provinces, particularly in the prairie provinces after 1945. HydroQuebec's status as a crown corporation is consistent with patterns established elsewhere, since the role of the state was pronounced in virtually all provinces. Only very rarely was state intervention perceived to be in opposition to the interests of capital. The size and pre-dominance of Hydro-Quebec in Eeyou Istchee reflects the heightened nationalism central to Quebec's Quiet Revolution: hydro's growth was to be a symbol of Quebec's potential and a vehicle for making French the language of work in Quebec. Never was Hydro-Quebec conceived of, by the state, as a threat to capitalism in Quebec. Bourassa emphasized this with respect to the James Bay Project (Bourassa 41, 71-2). Hydro-Quebec has benefited manufacturers in southern Quebec, and mining and forestry industries in the north. This is quite unexceptional to the Canadian norm of economic development characterized by "private enterprise at public expense" (Whitaker 43).

The crucial implication of this understanding of the preponderance of provincial states in the Canadian economy is that the federal government's reluctance to act on its obligations concerning the Crees and the natural environment fit an established national pattern and they match the historical pattern of relations with the Crees of James Bay. Traditionally and currently the federal state has been structured, and its interests have been interpreted, so that it will not challenge or undermine the coincidence of interests between provincial states and capital. The federal government has consistently avoided interference in the hydro and resource industries in northern Quebec, which it gratuitously, given the JBNQA and fiduciary obligations, regards as purely provincial matters.

Yet the specifics of Canadian federalism are only a partial explanation of the tendency for governments to minimize Aboriginal rights. At a deeper level the state-economy relationship of capitalism is structured so that governments face overwhelming pressure to allow for the continued plundering of lands and resources by capitalist interests. In Canada these pressures can take on the form of provincial "rights." In Quebec this compounds the unity crisis. But the essential result of such inter-governmental conflict is a weakening of the capacity of the state to regulate resource economies in ways that oppose the interests of capital. This means that First Nations must sign treaties with state representatives, but in doing so they sign with only one component of the power structure with which they are dealing. Private capitalist interests - including crown corporations like HydroQuebec which may be arms of the state yet are designed and managed to act like corporations - pressure the state to ignore treaty and Aboriginal rights. Such pressure is rooted in corporate monopolization of the investment of the society's productive capacities. The control of major investment decisions determines how the natural and human resources are to be employed, and thus creates the public and state dependency on the so-called "private" sector; both employment and state revenues depend on the accumulation of capital. The dependency produces continuous pressures to provide cheap and easy capitalist access to natural resources and thus largely explains the tendency to minimize Aboriginal rights.

The separation of social power and authority into public/state and private/economic spheres also gives capitalism its ability to grow: economic activity is fueled by competition and the market without being sufficiently subjected to rational or democratic public control. Given this type of competitiveness, the nature of the accumulation of capital tends to be predatory.41 In fact it is a striking illustration of the genius of capitalism - from the point of view of the capitalist - that a unity crisis can throw a wrench into the political workings of the country without substantially affecting the processes of capital accumulation.

It is useful to consider some general estimates that can partly quantify and illustrate the situation in Eeyou Istchee. Cree reports estimate that electricity revenues from Eeyou Istchee are about $5 billion per year, and about $1 billion worth of lumber is cut annually from Cree traditional territories. In 1996-97 the federal government reports having spent $216 million on the Crees, Inuit and Naskapis, ($145 million from Indian Affairs and the rest from twelve other departments). These numbers exclude personal transfer payments - but it must be noted that the Cree band councils do not receive normal municipal transfers and are trying to cope with immense pressures from the legacy of colonial neglect, the social dislocation of the resource projects and all the problems of youth unemployment and disaffection on the margins of the Quebec economy. The Cree portion of the annual federal expenditures is probably a little over half of the $216 million, while provincially owned corporations and the so-called private sector reap revenues of $6 billion from water and forestry resources on Cree lands. Of course considerable tax revenues then flow back to the governments; about $250 million goes to the federal government from the GST collected on hydro sales alone.42 And while substantial, such revenues are probably overshadowed by the political benefits of the jobs and profits created. Combined with the near-exclusion of Crees from this economic activity, the numbers also illustrate the chronic difficulty created by a system that uses scarce public resources to address the social dislocation caused by nearly unaccountable private economic activity - there is never enough to meet legitimate needs.

The government's inability and unwillingness to implement fully the James Bay Agreement sheds light on a central fact of the Canadian political economy: the much discussed financial dependency of the First Nations on the Canadian state is the direct result of the often over-looked dependency of capital on the resources of First Nations' land. This is the contradictory context within which the state-First Nations relationship ought to be understood. However much the Minister and the Department of Indian Affairs try to meet the needs of the dispossessed First Nations, they are part of a state that, together with the dominant interpretations of the national interest, is structured to serve first the needs of those who benefit from the dispossession.

Implications of rights denied

It is important not to appropriate or misrepresent Cree experiences in confronting Canadian society, but we (here I mean all other Canadians) are obligated to listen, and Cree leaders have made public statements about Canada's inability to honour its treaties while being quite able to plunder the land's resources. This essay is an attempt to make sense of this state of affairs, and it is informed by a number of statements by Crees who have emphasized the predatory nature of economic developments in their lands. For example, Robbie Dick, former chief of Whapmagoostui, described what the Crees had encountered as "the bulldozer way of being."" Grand Chief Matthew Coon Come, referring to the plans to dam the Great Whale River, said that examining the reasons for the lack of a proper comprehensive and unbiased environmental review "questions the whole way that the dominant society does things."44 Recent Cree testimony before the Senate Subcommittee on the boreal forests pointed out that "it is our opinion that the [forestry] companies are making decisions for Quebec" (Jack Blacksmith in GCC, To the Subcommittee on the Boreal Forest).

The consequences of JBNQA non-implementation are many and are extremely serious. Most are also of general concern to all Canadians. For example, federal and provincial polices undermine the search for alternative types of economic development, since Cree communities have little access to resources and no effective way to ensure that sound environmental assessments take place. At least as troubling are the implications of chronic violations of the principles of rule of law and constitutionalism.45 And with respect to public policies affecting Aboriginal peoples, the JBNQA record reveals that fundamental changes are necessary before treaties can become instruments for a fair reconciliation (one of the central recommendations of the RCAP).

More specifically, for the Crees east of James Bay the Agreement has meant that the development of the territory has proceeded in a manner not approved of by its residents. Nor has it given them a rightful share in economic benefits. Unemployment and poverty rates remain above the national average, as is the case in most other First Nations communities, and houses are tiny and overcrowded. The need for federal transfers is maintained and exaggerated by the JBNQA and public policies that deny Cree communities revenues and employment from the resources on their traditional lands. Hydro-Quebec, for example, has fewer than 20 Crees on its payroll while it continuously transfers hundreds of employees from Southern Quebec and back.46 In general,

From the perspective of the Crees, it is not difficult to understand that there is a widespread sense of frustration.... In many ways, Cree society finds itself in an increasingly marginal, enclaved position in northwestern Quebec, increasingly dependent, and increasingly disturbed by socially and culturally limited prospects for the future ... it has become apparent that the mechanisms in the Agreement have done very little to expand the economic and social prospects for the Cree communities.... (Penn, "JBNQA") Penn's observations are strikingly apparent in places such as Eastmain. The community sits on the banks of what remains of a river that was diverted to help power the La Grande hydro complex. The diverted river continues to fuel the provincial economy by filling the reservoirs, and mining companies are prospecting throughout the Eastmain territories, but the residents continue to be marginalized by that same economy, finding work almost exclusively in the limited fields of band or regional administration. Southern Cree communities like Waswanipi and Ouje-- Bougoumou (a village relocated seven times in the twentieth century for the convenience of mining interests, Goddard 73) are surrounded by dear-cuts even though forestry should be their most logical source of new and sustainable employment.41

There are widespread fears about the strength and distinctiveness of Cree culture. For example, anthropologist Harvey Feit has emphasized the centrality of hunting to Cree culture and the seriousness of the threat to hunting posed by logging. He concludes that "rapid forestry development, as well as significant increases in non-Cree harvests of wildlife, directly threatens the Cree use of lands and the fabric of Cree society and economy" (Feit, "Hunting" 218). The former Deputy Grand Chief of the Crees, Kenny Blacksmith, put it this way:

the arrogant assumption of all of the jurisdiction by the governments of Canada and Quebec, and their exclusion of the Cree people from both the determination of the regimes concerned and the implementation of the measures required, is a major threat to our society. I would say that, in tandem with megaprojects and forestry development, failure of the regulation of the management of wildlife resources is the major threat to our society, driving our culture towards extinction.48

The roots of these problems are deep and complex, but arguably they cannot be explained sufficiently by reference to factors such as fiscal constraints, national unity concerns or administrative organization. I think the evidence suggests it is hardly a coincidence that the public policies threatening Cree culture are policies so well tailored to the needs of corporations.

Notes

At the time of the final revisions of this essay a major agreement-in-principle between the Grand Council of the Crees and the government of Quebec was announced. It commits Quebec to funding a Cree Development Corporation and to revised forestry practices with Cree input into forestry management. In exchange the Crees have agreed to a new hydro undertaking and to drop several legal actions. The agreement is not yet ratified, but it appears to be a significant breakthrough in Cree-Quebec relations. However, it is also, in part, a response to the ongoing court proceedings over breaches of JBNQA and to the public campaign in the US against provincial forestry practices. See Kevin Dougherty, "Crees get $3.5 billion," Montreal Gazette, 24 October 2001.

Abbreviations used below:

GCC = Grand Council of the Crees (of Eeyou Istchee/Quebec) JBNQA = James Bay and Northern Quebec Agreement RCAP = Royal Commission on Aboriginal Peoples

FOOTNOTE

For their generous help I am deeply indebted to Brian Craik, Ken Gilpin, Alan Penn, Michael Posluns and Michelle Sweet.

FOOTNOTE

1. The Nisga'a Final Agreement from northern British Columbia is the second modem treaty - or "comprehensive claim," a settlement dealing with unceded lands - south of the 60th parallel, but it is too new to assess its implementation. The Northeastern Quebec Agreement was signed in 1978, but it is closely modeled on the JBNQA and is not reviewed here.

2. See in particular Richardson and the chronology of events in LE. LaRusic et al, ii-iv. Also see MacGregor.

FOOTNOTE

3. This was the view of the Dorion Commission, which had been appointed by Quebec. The commission's report (released in 1971) helped shape the provincial view that Cree and Inuit rights were real, but extremely limited in scope; see LaRusic et al, 3. For elaboration on the theme of duress see: GCC (Grand Council of the Crees), Never Without Consent 120-26; and Diamond, "Aboriginal Rights" 279.

4. Some of the complexity reflects the presence of three crown development corporations as negotiators and signatories, and the fact that the agreement is part treaty and part out-of-court settlement over a specific project. The Agreement was ratified in assemblies in the Cree and Inuit villages. Evelyn J. Peters has provided a more comprehensive review of the basic provisions in "Federal and Provincial."

5. See Penn, "JBNQA." Some commentators, including the RCAP report, have seriously erred in reporting that each Cree community has 5,600 kmI when this amount actually represents the national Cree total. There is also a complex division of Category I lands

FOOTNOTE

into LA (federal) and LB. (provincial) lands, which is ignored in this paper, and there are some boundaries which remain unclear and some lands which have not yet been transferred to Cree control. For elaboration see Penn.

6. On this there is unanimous agreement in the published accounts on which this paper draws.

FOOTNOTE

7. From John Ciaccia's speech to the National Assembly, attached to most copies of the Janes Bay Agreement.

8. Bourassa 10, and see 15-16. The Project was expected to cost about $10 billion, and it eventually cost $12-15 billion. The provincial share of compensation payments to the Natives was about $190 million, or about 2% of the expected cost of the project.

9. McGregor 115-16. The province had offered extremely restricted hunting and trapping rights and small reserves with no control over non-reserve lands. According to MacGregor, Chretien called Billy Diamond and pressured him to take the offer, describing it as "the best offer any Indian in Canada ever got"; 113-114 (hardly the role of a trustee!).

10. Angus 69. That these broad policy goals meshed well with the federal and provincial positions on James Bay meant that the new policy did not so much shape the James Bay Agreement as the Agreement itself came to be a model. There is an important sense in which the agreement was made without either side having the benefit of modern precedents or a detailed mandate - and by 1981 federal policy was trying to avoid the broad range of commitments agreed to in the JBNQA.

11. A leaked federal energy, mines and resources memo certainly emphasised the importance of a good relationship with Bourassa and the Quebec Liberals, but this concern also reinforced a more "economic" federal interest in projects promising energy from non-oil sources, given the problems in world oil supply in 1973: see MacGregor 107-8.

12. Penn (to the Senate Committee) 1555. Federal concerns even included maintaining responsibility for such specifics as the species of fish which migrate between fresh water and the salt water of Hudson Bay.

13. James Bay Settlement Act, c.32. The legislation gives legal force to the Agreement, gives its various boards and institutions real legal status, makes the agreement binding on third parties, and allows for federal funding. Peters, "Federal and Provincial" provides a full listing of all the relevant federal and provincial legislation.

14. The phrase "trust-like" is from the Sparrow decision, which is discussed in Dupuis and McNeil who also detail various other sources of federal fiduciary obligations owed to Aboriginal peoples in Quebec. They stress the importance of the constitutional division of powers (91 [241) of the Constitution Act, 1867) and of the JBNQA itself (see part II of their study) as legal sources for contemporary fiduciary obligations.

15. House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Indian Affairs and Northern Development (Respecting: Main Estimates 1980-81, Vote 1 under Indian Affairs and Northern Development, Issue No. 23:45, 1700-1735), Thursday, 26 March 1981. Thanks to Michael Posluns for directing me to these minutes.

16. My treatment here is brief, though, since others have looked at the dispute: Felt, "Hunting" 215-6, Peters, "Federal and Provincial" 182, and The Cree-Naskapi Commission, 1986.

FOOTNOTE

17. Interview with Ted Moses, Val d'Or, Quebec, 7 July 1997. There are even reports that both Canada and Quebec agreed to exchange treaty implementation for Cree consent to the Great Whale River project, suggesting further that obligations are deemed to be discretionary: GCC, Presentation to the RCAP, at 912. In 1995 another agreement for operations and maintenance funding was signed, but again it did not reflect an adequate understanding of treaty obligations as they have been outlined here; GCC, "Annual Report 1994-95," 12-13.

18. From an unofficial translation of the decision released in January 1998: Quebec Superior Court, No. 500-05-020496-962. Jean-Jacques Croteau was the justice in the case. The decision was upheld on an appeal. For updates see www.gcc.ca.

19. The project was eventually canceled, partly due to Cree and international objections. The Cree resistance is the subject of Posluns, Odeyak. The JBNQA only allows for the construction of the La Grande complex and stipulates only that new projects are subject to the agreement's environmental regime (8.1) and doesn't otherwise discuss Cree consent.

20. Interviews with Paul Wertman, Ouje-Bougou