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I.  Implementation of the 1993 Recommendations by the Government of Canada

A. The Formal Acknowledgement of the Government’s Constitutional Responsibility

The 1993 Report recommended that the Government "formally acknowledge its constitutional responsibility to the Innu."

Despite initial indications that acknowledgement would be forthcoming, in fact the Government has never made a single acknowledgement of its constitutional responsibility to the Innu people. Instead, it has made separate acknowledgements about the status of the Mushuau Innu and the Sheshatshiu Innu.

On 25 February 1994, a Statement of Political Commitments was signed by four federal Cabinet Ministers (the Ministers of Indian Affairs and Northern Development, of Health and of Justice, and the Solicitor General) and the Mushuau Innu. The document included the following statement in its preamble: "Whereas the Government of Canada recognizes Innu as being Indians within the meaning of sub-section 91(24) of the Constitution Act, 1867."²² Since the Sheshatshiu Innu were not a party to the Statement of Political Commitments, this was presumably a statement about the Mushuau Innu.

A similar statement about the Mushuau Innu was made in November 1996, when the Government (as represented by the Minister of Indian Affairs and Northern Development) and the Province (as represented by the Premier) signed the Mushuau Innu Relocation Agreement with the Mushuau Innu Band Council. The preamble included the following statement: "Whereas Canada and Newfoundland and Labrador recognize the Mushuau Innu people are Indians within the meaning of section 91(24) of the Constitution Act, 1867."

Finally, on 19 March 1997 federal constitutional responsibility in respect of the Sheshatshiu Innu was acknowledged. An Order in Council that provided authority to treat both Mushuau and Sheshatshiu Innu as status Indians on reserve provided as follows:

Whereas the Government of Canada considers that the Sheshatshiu Innu people are Indians within the meaning of class 24 of section 91 of the Constitution Act, 1867...²³

Thus, although one might question the time it took for acknowledgement of federal constitutional responsibility for the Innu, and the rather contingent and episodic way in which it occurred, no one today — the Innu, the Province or the Government — doubts that the Government has in fact acknowledged its constitutional responsibility in respect of the Innu. Further evidence of the commitment of the Government to dealing directly with the Innu was the appointment by the Government, in April 2000, of Eric Maldoff, a lawyer with the firm of Heenan Blaikie in Montreal, as Chief Federal Negotiator for Labrador Innu Files. As Chief Negotiator Mr. Maldoff has overall responsibility for land claims negotiations, registration and all other issues concerning the Government’s relationship with the Innu.
  

CONCLUSION 1 The Government has implemented the first recommendation of the 1993 Report that it formally acknowledge its constitutional responsibility to the Innu.

B. The Abrogation of Funding Arrangements with Newfoundland and Labrador, and the Commencement of Direct Arrangements with the Innu

The 1993 Report recommended that the Government:

abrogate its funding arrangements with the Government of Newfoundland and Labrador in respect of the Innu communities of Sheshatshiu and Davis Inlet and enter into direct arrangements with the Innu as Aboriginal people in Canada. Such arrangements should ensure that the Innu have access to all federal funding, programs and services that are available to status, on-reserve Indian people in Canada while preserving the unique aspects of existing arrangements such as the outposts program.

The 1993 Report had found that, although the Government had refused to accept constitutional responsibility for the Innu in the past, it had agreed to pay some of the costs incurred by the Province in respect of Aboriginal people. Agreements to give effect to this were signed (or renewed) by the Government and the Province in 1954, 1964, 1970, 1976 and 1981, and annually thereafter. During the 1980s, the Government also began to make a number of ad hoc arrangements directly with the Innu, including provision for some post-secondary education costs, and funding for alcohol and drug abuse programs, economic development and health services.²⁴ The 1993 Report also found that the Innu historically had not received the level of benefits received by status Indians elsewhere in Canada.

The Canada–Newfoundland Native Agreement, the most recent in the series of Canada–Newfoundland agreements relating to the Innu, was terminated in 1997, and the Government began to enter into direct funding agreements with the band councils in Sheshatshiu and Davis Inlet.

CONCLUSION 2 The Government has implemented the first part of the second recommendation in the 1993 Report, that it enter into direct funding arrangements with the Innu.

However, the recommendation in 1993 was that the Innu were to have access to all federal funding, programs and services that were available to status, on-reserve Indian people in Canada. Furthermore, the 1993 Report had made clear that this should be accomplished without requiring the Innu to be registered under the Indian Act. To require the Innu to be so registered, the Report said, would be "nothing more than a symbolic act of subordination."²⁵

It appears that the Government may initially have been prepared to carry out this recommendation. The 1997 Order in Council provided as follows:

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development and the Treasury Board, hereby authorizes the Minister of Indian Affairs and Northern Development and other Ministers, as appropriate, to consider the Innu People at the communities of Sheshatshiu and Davis Inlet as if they were Status Indians on reserve land, for the purpose of providing them with programs and services.

However, the reality is much more complicated. There are three matters to be considered. The first relates to the continuing role of the Province. The second is that, contrary to the terms of the 1997 Order in Council, the Government has required that the Innu be registered and on reserve before they can fully receive the benefits to which status Indians on reserve are entitled. The third relates to the actual funding situation.

The Continuing Role of the Province

Although the Canada–Newfoundland Agreement was abrogated, the Province did not disappear from the picture. Nor, in fact, could it. Until the courts determine otherwise, the Government cannot transfer land within the Province without its consent. The Province is involved in the provision of education, health and social services to the Innu, and it funds these at the same level it funds all such services in Newfoundland and Labrador. The Government "tops up" such funding to bring it to a level comparable to that provided to status Indians on reserve. Until the Innu change their status, or attain self-government, such a provincial role has to continue. Moreover, in the meantime, all negotiations affecting these matters also involve the Province.

Even after registration is complete, the Province will continue to be involved. The Government views the Province as continuing to provide education, and possibly other services, with a transfer of federal funds to cover the costs. The Government takes the position that the Innu have yet to develop the capacity to administer such programs on their own. Federal officials claim that substantial "capacity development" is required before the Government will move towards the devolution of such programs directly to the Innu. The long-term goal, concedes the Government, is to have the Innu assume control, but in the interim programs and services have to be provided to them. The Government has begun negotiations with the Province about the post-registration provision of those services. Federal officials advised us that there are parallel negotiations going on: one set of negotiations with the Province about the delivery of services to the Innu and another set of negotiations with the Innu on how services are being delivered and on "capacity development." This latter set of negotiations appears to be in a very preliminary stage. The Innu have expressed concern that they have been excluded from discussions with the Province.

There is a further way in which a provincial role continues. This relates to the provision of funds. At the time of the abrogation of the federal-provincial funding arrangement, a commitment was made by the then-Premier of Newfoundland and Labrador, Brian Tobin, that the money the Province had historically allocated to the Innu would remain for the benefit of the Innu and not revert to provincial coffers. This money is generally referred to as the money that has been "left on the table." This commitment was apparently seen by the Province as necessary to get the Government to agree to end the funding arrangements and take on its constitutional responsibility for the Innu. It was the only way to get the Government to bring an end to its "53-year holiday from its fiduciary responsibilities."

There is no clear agreement between the Province, the Government and the Innu over how this money is to be spent. The Government would like to see the money used to underwrite some of its costs and the Innu themselves would like to control its expenditure. For its part, the Province takes the view that the money is to be allocated by it for such matters as infrastructure costs, and it has made allocations on a case-by-case basis.

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