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We, as members of the Cree Nation Government, being at least 18 years of age and members of one of the sovereign Cree First Nations of Eeyou Istchee, object to the approval of the draft Agreement on Cree Nation Governance and the draft Constitution of the Cree Nation of Eeyou Istchee as currently written. We respectfully ask that the members of the CNG Council vote not to approve the draft Government Agreement and draft Constitution.

We share one or more of the following concerns about these draft documents:

1. The draft Constitution does not reflect the direction given to the Cree Nation Governance Working Group (2008-2012) by the Cree people that the Constitution should establish a new form of government that reflects the unique values, customs and traditions of the Cree. It is instead a “cut and paste” of the Cree-Naskapi (of Quebec) Act.

2. The community meetings organized by the CNG executive to present these documents do not amount to meaningful consultation. There needs to be an opportunity for CNG members to digest the information provided and give informed comments, good faith consideration of feedback received, and revision of the documents to address community concerns.

3. The ratification and amendment process must include an opportunity for a vote by the members of the Cree Nation Government.

4. Despite express assurances that the proposed Governance Agreement and Constitution do not amend the James Bay and Northern Quebec Agreement, they do in fact modify the JBNQA. The grant of legislative authority over Category IA lands to the CNG is in itself an amendment to Section 9.0.1 and Section 11A.0.5 of the JBNQA, which set out the powers of the Cree First Nation governments and the CNG predecessor, the Cree Regional Authority.

5. These documents must be amended to ensure that the primary authority of Cree First Nations to govern their Category IA lands and their members is preserved and protected. The following issues need to be addressed:

a. The CNG Council’s law-making authority over Category IA lands is not expressly limited to the subject matters identified in the draft Governance Agreement. Currently, the “objects” of the CNG are so broadly defined that the CNG’s jurisdiction can be interpreted as overlapping the jurisdiction of the Cree First Nations. This poses a real threat to the authority of Cree First Nations because CNG laws trump Cree First Nations’ laws under the proposed Governance Agreement and Constitution.

b. The CNG’s objects and subject matter jurisdiction are set out in the Governance Agreement rather than the Constitution and therefore cannot be changed by constitutional amendment.

c. Under the proposed Constitution, CNG laws do not require approval of CNG members or even Cree First Nations Councils. Given the potential limiting effect of CNG laws on the exercise of self-governance by Cree First Nations, all CNG laws should be subject to ratification by a consensus or super majority vote of the Councils of each Cree First Nation and CNG laws of particular significance should be subject to ratification by the members of the CNG at a special meeting or referendum.

d. There is no requirement for public notice of CNG legislative proposals or opportunity for public comment before they become law. To ensure greater transparency and accountability, the Constitution should include a process that allows CNG members to receive advance notice of proposed CNG laws and an opportunity to provide comments on such proposals before a draft law is presented for approval.

e. Without any mention in the summary materials provided by the CNG executive, the Governance Agreement requires that Cree First Nations to be bound by the Canadian Charter of Rights and Freedoms for the first time. Whether First Nations government actions are subject to the Charter is an issue of ongoing debate among legal scholars and the courts. The implications of this commitment need to be explored carefully by the Cree First Nations and their members.

f. The supremacy clause of the Constitution makes the Constitution subordinate to Quebec’s An Act respecting the Cree Nation Government. This is problematic because that Act addresses the operation of the CNG in regards to Category II lands; it was not drafted to accommodate the fact that Cree First Nations have primary authority for self-governance on Category IA lands. In addition, provincial law may be amended by the Quebec legislature without the consent of Cree First Nations or CNG members.

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