V. | The Implications of the Government’s Failure to Provide the Innu with Treatment Equal to That of Other First Nations for the Period 1949 to 2001 |
The Terms of Reference require us to "review the situation of Canada’s obligation to the Innu in light of its failure to provide treatment equal to that of other First Nations for the period 1949 to 2001." In 1993, the complaint of the Innu to the Canadian Human Rights Commission had included the request that they be compensated for the failure of the Government to recognize their status since 1949. The 1993 Report had indicated that while the payment of compensation would be appropriate, it would not remedy the wrong that had been suffered by the Innu as a result of the failure of the Government to carry out its fiduciary obligations. Instead, the Report stated that a real remedy in this case would be for the Government to address the problems faced by the Innu today and noted that the remedy had to be one that "ensures that the Innu are able to be in the economic, social and spiritual situation they would have been in if governmental responsibilities had been properly exercised and appropriate human rights standards met."50 Measured by that test, although the Government has now engaged in a relationship with the Innu that will lead to their being treated in the same way as other First Nations in Canada, it is a long way from remedying or even addressing issues that are key to the economic, social and spiritual future of the Innu. Indeed, as far as Innu culture is concerned, on key issues such as education in language and culture, and the preservation of unique cultural programs such as the outposts program, there are major deficiencies. The Innu make further specific complaints. Without claiming that they should be compensated for precisely the amounts they would have received had they been properly recognized by the Government in 1949, they claim that even if they were to receive equivalent funding today, this would not recognize the disadvantage they have suffered from not receiving equivalent funding in the past. The Innu take the position that the federal claim of "general fairness in funding"51 can only be a reference to recent years and ignores the inequity of the past. Thus, in their view, funding to the Innu from the Government should include an appropriate amount of "catch-up funding." The Innu claim that this is necessary to enable them to get to the level of programs and services that other First Nations have achieved, and to provide for the healing that is necessary after so many years of neglect. Back to top In addition, on the issue of taxation, the Innu point out that they have been paying HST on goods and services. As non-profit organizations, the band councils are entitled to a remission of half of that amount, but that is not available for individuals. Once the registration and status processes have concluded, and reserves have been created, the problem will be solved as far as the future is concerned. But what of the past? There seems to be no debate that the Innu have been financially disadvantaged in comparison to other First Nations by having to pay HST.52 The Government is apparently considering an order under section 23 of the Financial Administration Act to remit those taxes for the Innu going back to November 2000, the time at which a commitment was made to register the Innu as status Indians. It is not clear, however, why this date is the appropriate date for the remission order. In the 1994 Statement of Political Commitments the Government began the process of recognizing the Innu as Indians within the meaning of the Indian Act. That date seems more appropriate for a remission order. A remission order constitutes recognition that entitlement occurred at an earlier date than the date on which the Innu will obtain future taxation exemption. It could even be argued that entitlement to any benefit that would have flowed from recognition of the Innu as Indians within the meaning of the Indian Act should go back to 1949. However, even the Innu accept that there would be major practical difficulties in making taxation benefits retroactive to 1949. In our view, the most appropriate date for the remission order is the date of the 1993 Report, 18 August 1993. That was the date when the Government was put formally on notice of what it in reality knew all along — that the Innu were Indians within the meaning of the Indian Act for whom the Government had fiduciary responsibilities. Any delays since that time in granting the Innu the benefits that flow from that fiduciary responsibility are delays attributable to the Government. Those delays should not disadvantage the Innu. Moreover, in providing funding to the Innu, the Government cannot ignore the fact that it had a 50-year "holiday" from its obligations in respect of the Innu. This has to be taken into account in future funding provided to the Innu. Funding the Innu today on the basis of equivalency, without reference to the needs that result from the fact that equivalency was not provided in the past, does not constitute the remedy contemplated in the 1993 Report of ensuring that the Innu are put in the position they would have been in had government responsibilities been exercised properly in the past. | CONCLUSION 11 Funding to the Innu should take account of the fact that they have been disadvantaged by the failure of the Government to exercise its fiduciary obligation to the Innu, and any remission order in respect of taxes should be dated from 18 August 1993. |
Back to top The Terms of Reference invite us to "make such recommendations as are appropriate" on the basis of our findings. Our findings and conclusions are set out under each of the preceding sections. We now draw some more general conclusions and make certain recommendations. | A. | Recognition, Registration and Self-Government |
At the time of the 1993 Report, the Government had not accepted that it had constitutional responsibility for the Innu as Indians within section 91(24) of the Constitution Act, 1867. That has now changed. The Government has acknowledged its constitutional responsibility and is acting accordingly. The real question, however, is whether this has made any practical difference to the situation of the Innu. The first issue relates to the question of equivalency. In reality, this has always been the issue. If in 1949 the Innu had been treated like other Indians in Canada, they would have been treated in the same way as Indians for whom the Government had constitutional responsibility. They would, no doubt, have been granted status and reserves would have been created for them. The Innu would have been funded in the same way that other Indians in Canada are funded. This was the original intention of the Canadian and Newfoundland negotiators in establishing the Terms of Union but, as the 1993 Report pointed out, the relevant provisions were "pencilled out." Even today that equivalency has yet to be achieved. Although the Government initially seemed prepared to grant equivalency without going through the process of registration, in the end it insisted on a registration process before granting full equivalency, notwithstanding the fact that many, both inside and outside of the Government, considered registration a retrograde step. Within the Government, it appears that the precedent of granting tax benefits to people who were not registered was ultimately regarded as worse than the precedent created by registration. Back to top For the Innu, it seemed that registration was the only option that the Government was prepared to offer to grant them equivalency. In the end, the Innu decided to take that option. While many Innu recognize that there are advantages and disadvantages to being placed under the Indian Act, some take the view that registration will allow them to decide on advantages and disadvantages themselves, which they would have been able to do had the Government fulfilled its responsibilities to them in 1949. In short, they are simply getting to where they should have been 50 years ago. The registration issue appears to be a result of inflexibility and failed imagination. The Government could have taken the administrative, regulatory and (if necessary) legislative steps to grant the Innu equivalency without registration. It chose not to do so. Instead, it has required the Innu to embark on a process that simply postpones the granting of equivalency and that has had the effect of placing negotiations on self-government on indefinite hold. There are, of course, issues such as reserve creation and band council powers that will be regularized through registration. But these matters could have been dealt with separately through self-government negotiations. That would appear to have been the position contemplated in the 24 November 1999 Agreement in Principle. A lack of flexibility has placed the Innu on a track that pushes self-government even further into the future. In short, the opportunity to recoup the time that was lost to the Innu during 50 years of federal failure to accept responsibility for the Innu has not been taken. In terms of giving effect to the recommendations of the 1993 Report, although the Government has not yet granted to the Innu the programs, benefits and services to which status on-reserve Indian people are entitled, there is now a process in place that will result in their getting that equivalency. The cost of doing this is postponement of self-government. Back to top Furthermore, it is not clear that the federal or provincial governments see self-government for the Innu in the foreseeable future. There is a strong sense among some officials that the Innu do not have the capacity to engage in self-government or to manage education or health services. Some consider that a period of operating under the Indian Act will be a valuable "capacity-developing" experience for the Innu. Under this view, self-government is postponed even further into the future, perhaps indefinitely. The move to self-government was a principal recommendation of the 1993 Report. Self-government was recognized by the Royal Commission on Aboriginal Peoples to be a step of vital importance to Aboriginal peoples more generally. Rapid action by the Government towards Innu self-government was a way in which the Government could have made up for its past failure in its fiduciary duty. Unfortunately, this opportunity of forging a new and more creative relationship with the Innu has not been taken. The pace of self-government negotiations has simply been too slow. Nine years after the release of the 1993 Report, one might have assumed that the process would be complete, or at the very least close to completion. Instead, negotiations have halted and no resolution is in sight. There is no justification for letting another eight years trickle by without results. In our view, a strict time-line is overdue. Given the eight years that have elapsed so far, and that some progress has been made already, a period of five more years would seem more than reasonable to complete self-government negotiations. RECOMMENDATION 1 That the Government immediately resume self-government negotiations with the Innu, and that it complete such negotiations within the next five years. |
In doing this, the Government should not abandon registration, which is now well underway. Rather, it should adapt the registration process into a self-government process in order to avoid creating institutions for governance under the Indian Act that will have to be changed, altered or abolished as a result of self-government. Back to top | 
Printable Version
Email This Page
