Court affirms education rights

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In what could be a landmark decision in Indians versus the establishment, a majority Quebec Court of Appeal judgement on Sept. 5 held that Quebec and Canada violated Cree rights pertaining to education, language and culture as set out in the James Bay and Northern Quebec Agreement.

The Crees went to court because Quebec and Canada made a deal in May 1996 that excluded them from having a say in budgetary decisions concerning the government money they receive for education.

The Superior Court found the bilateral agreement was inapplicable to the Crees and its decision was upheld on appeal.

The judgement states that the rights, benefits and privileges surrounding education set out in the James Bay agreement are essential to the preservation and transmission of the Crees' language, culture and identity.

Grand Chief Ted Moses said the victory is important because both courts "have recognized the importance of protecting education rights, the Cree culture and the Cree language and that these protections shall be materialized in the form of positive actions from the governments."

"The Court has vindicated the Cree position that Canada and Quebec cannot act unilaterally in the execution of their obligations and undertakings pursuant to the James Bay and Northern Quebec Agreement," said Cree School Board chairwoman Mabel Herodier. "This decision is important in that it confirms the Crees as full participants with Canada and Quebec in decisions affecting their education rights."

Robert Mainville, one of the Crees' lawyers, said the decision was remarkable because it is "clearly providing for-and I think it is the first in Canada- providing for the treatment of an Aboriginal group on an equal footing as both governments in terms of establishing actual funding rules and in fact discussing budgetary parameters for Aboriginal education purposes."

Bill Namagoose, executive director for the Grand Council of the Crees in Quebec, which administers the Cree School Board, said the board negotiates education matters on behalf of the Crees and gets approximately $60 million to operate schools.

The reason the provincial minister of education is involved in Cree education, unlike some other jurisdictions, is because provincial education standards are "much higher" than within the Department of Indian Affairs. The Crees have noted that Aboriginal students often get a substandard education and they are trying to ensure their students meet provincial standards.

In the 1980s Namagoose said, Cree education was chronically underfunded. Lengthy negotiations with the province led to funding being increased substantially, "without the participation of the federal government." Namagoose said the remoteness of their communities from schools is a big factor in the higher education costs that were factored into their agreement.

"The federal government's role in education is to reimburse 75 per cent of the costs to the Quebec government; the Quebec government picks up 25 per cent of the tab," Namagoose added.

Namagoose said Canada argued in court that "the supremacy of Parliament to decide the expenditures of the federal government cannot be taken away by any group. . . . Plus, they wanted to reduce the expenditures on Cree education to the same level as the Department of Indian Affairs across Canada."

He said this is all part of the bigger federal agenda to "take down the James Bay and Northern Quebec Agreement." He said in all their negotiations with Canada, the government is trying to get the Crees to sign off that the James Bay agreement has been "fulfilled." Every matter involving Indian Affairs now also involves the Department of Justice, he said, which inevitably argues that the Crees have extinguished their rights.

Mainville explained the education dispute arose when the federal government withheld its share of the funding and the province was forced to pick up the tab. Quebec went after Canada for $135 million to cover its expendtures for Cree and Inuit education costs for several years. Canada finally said it would pay the bill, but attached conditions that amounted to circumventing the treaty.

"The government of Canada . . . is the one that has taken an arrogant and somewhat aloof position in regard to Cree education funding, and their arrogance and aloofness led to somewhat of mutual disgust on the part of both the Crees and Quebec towards the federal government's attitude, leaving Quebec and the Crees to settle among themselves the appropriate funding levels for the education of the Crees and the implementation of the treaty of the Crees. So in fact, for the past 10 years there has been a very large degree of consensus between at least the provincial government and the Crees relating to this, what is an adequate level of funding." Mainville said he was personally involved in all those negotiations. "Canada simply walked out of this process. Do what you want, we're not going to pay, it's as simple as that."

The federal government, Mainville said, claimed that although the Crees had signed a treaty providing for special education rights, "they were not going to get anything special and that they were going to get their fair share of the national education allocation, notwithstanding the fact that the treaty had provided special allocations for them."

When Canada finally agreed, under political pressure, to pay back Quebec, the federal stance was "OK, we'll pay, but we don't want to talk to the Crees, and we'll talk to the Quebec government, but the condition we pay the Quebec government is Quebec stops talking to the Crees. . . . So Quebec decided to basically take the cheque and sign the deal."

Mainville added that after the Superior Court annulled the deal, the Crees negotiated a new set of funding rules with Quebec, which are in force for another three to four years.

He also said he expects Canada will appeal to the Supreme Court of Canada because it will not agree to deal with Aboriinal people on an equal basis.

"The attitude of the Department of Indian Affairs has been, in this file, simply to ignore the treaty."

Namagoose agreed.

"I think the Indian fighters in Ottawa will have their day."