In essence, First Nations fear that the Parti Québécois government is operating within a narrow colonial paradigm that would effectively erase all gains that have been hard won with the Federal Government and the Courts in the past hundred years.

The key document underpinning the sovereigntist project is Bill 1, A Bill Respecting the Future of Quebec ("Bill 1"). Bill 1 is composed of a six page folkloric preamble, 27 articles and a schedule, which contains the text of an agreement between the Parti Québécois, the Bloc Québécois and the Action democratique du Quebec.

Aboriginal groups have justifiably objected to the version of history expressed in the preamble which forms the basis for the articles dealing with First Nations.

The Preamble to Bill 1 begins:

     At the dawn of the 17th century, the pioneers of what would become a nations
     and then a people rooted themselves in the soil of Quebec. Having come from
     a great civilization, they were enriched by that of the First Nations, they forged
     new alliances and maintained the heritage of France...

     "Because we inhabit the territories delimited by our ancestors, from Abitibi to
     the Iles-de-la-Madeleine, from Ungava to the American borders, because for
     four hundred years we have cleared, ploughed, paced, surveyed, dug, fished,
     built, started anew, discussed, protected, and loved this land that is cut across
     and watered by the St. Lawrence River;

The history of the First Nations in Quebec reveals the undeniable use and occupation of most of Quebec for at least 5000 years prior to the arrival of the French in the early 17th century. First Nations see themselves as the founding peoples of North America and the only true people who can call North America a homeland.

The characterization of the French as a "founding people" and the marginalization of First Nations as simply "enriching" the "great civilization" is viewed, at best, as wishful thinking.

Furthermore, the above paragraph taken from the preamble is inaccurate in that it describes the French territory as stretching from Ungava to the American border. In fact, most of Northern Quebec, formerly known as rupert's Land, in which the vast territory of the Cree lies, was only transferred to Quebec in 1912, and Quebec only began to administer these lands in 1963.

In short, there have been only 30 years of occupation in a large part of Quebec rather than 400 years of occupation and the territory referred to is largely owned and occupied by aboriginal peoples.

The specific provision of Bill 1 in relation to First Nations are Articles 8 and 21:

     8.   The new constitution shall affirm the rule of law, and shall include a charter of
     human rights and freedoms. It shall also affirm that citizens have responsibilities
     towards their fellow citizens.

     The new constitution shall guarantee the English-speaking community that its identity
     and institutions will be preserved. It shall also recognize the right of the aboriginal
     nations to self-government on lands over which they have full ownership and their
     right to participate in the development of Quebec; in addition, the existing
     constitutional rights of the aboriginal nations shall be recognized in the constitution.
     Such guarantee and such recognition shall be exercised in a manner consistent with
     the territorial integrity of Quebec.

     Representatives of the english-speaking community and of each of the aboriginal
     nations must be invited by the constituent commission to take part in the proceedings
     devoted to defining their rights. Such rights shall not be modified otherwise than in
     accordance with a specific procedure.

     21.  Agreements and contracts entered into before October 30, 1995 by the
     Government of Canada or its agencies or organizations that are in force in Quebec on
     the date on which Quebec becomes a sovereign country shall be maintained, with the
     Government of Quebec substituted, where required, for the Canadian party. Those
     entered into on or after October 30, 1995 shall also be maintained, with the
     Government of Quebec substituted, where required, for the Canadian party, unless
     they are denounced by the Government within one month following the date on which
     Quebec becomes a sovereign country.

The content of Bill 1 was met with contempt and outrage by Native leaders and legal scholars in Quebec.

There are several troubling aspects to articles 8 and 21. The first problem is the reference in article 8 to the right of aboriginal nations to self-government on lands over which they have full ownership. At present, Federal law does not recognize full-Indian ownership of any lands.

This statement effectively excludes almost all Native territory in quebec with the exception of the lands covered by the James Bay and Northern Quebec Agreement and the North Eastern Quebec Agreement. These modern day treaties signed by Canada, Quebec, and the Cree, Naskapi and Inuit do include references to different types of land tenure.

Of the 400,000 square miles of territory covered by the James Bay and Northern Quebec Agreement and the North Eastern Quebec Agreement, only 3226 square miles of lands held by the individual aboriginal nations would be characterized as held in "full ownership".

In the alternative, if the Parti Québécois intends to grant full ownership to First Nations over their lands, it may be intending to begin including aboriginal lands within the provincial land tenure system and collecting all taxes and other duties that apply outside of reserve lands.

The second problem with Article 8 is that there is no confirmation that the Native right to self-government is an inherent right rather than a delegated right. The principle of inherency has been accepted and confirmed by the federal government.

Thirdly, Articles 8 and 21 do not appear to recognize a Nation to Nation relationship between First Nations and the Quebec Government. This suspicion is confirmed in the last sentence of the second paragraph of Article 8, which states:

     Such guarantee and such recognition shall be exercised in a manner consistent
     with the territorial integrity of Quebec.

This sentence appears to leave open the possibility for the Quebec government to pick and choose which rights and guarantees presently held by First Nations are "consistent with the territoriality of Quebec". This wording is open enough to allow for a wholesale revision of each Nation's current status and rights.

Article 21 appears to be oversimplification of a complex problem. Quebec is assuming it can simply unilaterally take over all treaty obligations concluded with Canada. How can Quebec's unilateral assertion possibly absolve Canada of its fiduciary ditues and its treaty obligations to First Nations? How can Quebec's unilateral assertion wipe out First Nations' guarantees found in the Canadian constitution?

The two largest and strongest First Nations in Quebec are the James Bay Cree and the Mohawk communities of Kahnawake, Kanesatake and Akwesasne.

Both First Nations have strong historical connections to their lands and have treaty instruments which would apparently be subject to section 8 and 21.

The Mohawks signed Nation to Nation treaties of co-existence with all the settlers who arrived on the shores of their lands including the French, the English and the Dutch. The treaties, known as the Two-Row Wampum, confirm political principles which the Mohawk respect to this day: the co-signatory governs his institutions, culture and society, and agrees not to interfere with Mohawk government, institutions, culture and society, and the Mohawks do likewise. The two-Row Wampum treaties form the basis on which the Mohawk presently interact with all other Nations. The Two-Row Wampum treaties have never been repudiated and the Mohawks have never been conquered.

As the Cree territories were far more isolated from French or English presence, it was not until 1975, and under the duress of bulldozers that the James Bay Cree signed a modern day treaty with the Government of Quebec and the Government of Canada; the James Bay and Northern Quebec Agreement.

The Agreement states that it can only be amended with the consent of all of the parties, including Canada and the Cree. The Agreement also states that the Cree have all the rights of Canadian citizens in Quebec, and have the same access to all federal benefits, programs and services as do other First Nations in Canada.

The Agreement provides for ongoing federal involvement in Northern Quebec in areas such as the environment, education and justice. The Agreement is permanent as there is no provision in it for its termination.

The James Bay and Northern Quebec Agreement was ratified by laws passed by the Parliament of Canada and the National Assembly of Quebec. The James Bay and Northern Quebec Agreement is built on a balance of powers between three orders of government in a federal system: federal, provincial, and aboriginal. The Cree have access to the Supreme Court of Canada, and a fiduciary relationship with the Federal Crown.

The Mohawk Two-Row Wampum and the Cree James Bay and Northern Quebec Agreement are both treaty rights enshrined under section 35 of the Constitution Act, 1982. It is difficult to conceive how the simple authority of sections 8 and 21 can deal with these complex obligations.

Prior to the referendum, Matthew Coon-Come, Grand Chief of the Grand Council of the Crees of Quebec stated categorically: "There will be no annexation of ourselves or our territory to an independent Quebec without our consent" (Guest Essay, Akwesasne Notes Volume 1 no. 2 at p.6).

Grand Chief Coon-Come argued that if Quebec had the right to leave Canada, then the Cree people had the right to keep their territory in Canada. He stated: "We cannot simply be traded from country to country, as though we are livestock in a field".

As a result, on October 24, 1995, the James Bay Cree voted in their own referendum on whether or not their territory should remain a part of Canada. Over 96% of the Cree voted in favour of retaining the relationship with Canada. Jacques Parizeau, then leader of the Parti QuÇbÇcois, responded by saying the Cree referendum was not legitimate because only governments could hold referendums.

The Mohawks, adhering to the principles of the Two-Row Wampum treaty, declined to comment during the Referendum process, and declined to participate in the Referendum vote. The Mohawks maintain the position that they existed within the borders of what is know known as Quebec for thousands of years before the French or English arrived and they will continue to exist their regardless of what transpires politically between Quebec and Canada.

On the day following the Quebec Referendum, the Mohawk Council of Kahnawake stated that "the agenda and priorities of the Mohawks of Kahnawake have not changed. Kahnawake Mohawks will continue to exercise our inherent right to self-determination in the areas of political, economic, territorial and cultural jurisdiction".

The Mohawk also confirmed that "The referendum exercise caused the Parti Québécois government to table Bill 1 which clearly states the intention of a sovereign Quebec to colonize First Nations and First Nation lands. This position is unacceptable to and rejected by the Mohawks of Kahnawake".

First Nations also object to the double standard applied to First Nations governments and their aspirations of self-determination.

If French Quebecers can be considered the founders of a homeland with an alleged occupation of 400 years (although they were resoundingly conquered by the British in 1760); then First Nations who have lived in what is know known as Quebec since the Ice Age, have a stronger claim to the homeland.

If French Quebecers can claim to be a "distinct people" entitled to self-determination as distinct from citizens of other Canadian provinces then First Nations in Quebec, with their distinct political, cultural, social organizations, religious beliefs and languages, should be considered "distinct people", and entitled to self-determination.

If French Quebecers can assert a claim to the territorial integrity of Quebec - "because for four hundred years we have cleared, ploughed, paced, surveyed, dug, fished, built, started anew, discussed, protected and loved this land" then First Nations who used and occupied the land for over 5000 years have a better claim to the land.

In the writer's opinion, the Parti Québécois have overextended themselves intellectually to ensure that the past and present history of the First Nations be redefined, minimized, and controlled.

Diane Sokolyk is a lawyer for the Mohawk Council of Kahnawake, Kahnawake, Quebec.