Treaties and Land Claims: Current Problems

NL


September 24, 2021


Duty to Consult/FPIC

Muskrat Falls Mitigation Plan lawsuit

NL Government – The Parties have requested the Court defer releasing a decision on the injunction application to provide an opportunity for discussions to take place. The Parties will not be commenting further at this time.


August 12, 2021


Duty to Consult/FPIC

Muskrat Falls Mitigation Plan lawsuit

The Independent – Innu in Labrador are suing Canada and the Government of Newfoundland and Labrador over a financial agreement they say violates their rights as Indigenous people. Leaders from Sheshatshiu and Natuashish filed the lawsuit at the Supreme Court of Newfoundland and Labrador in St. John’s against the settler colonial governments over the recently announced Muskrat Falls rate mitigation plan.

The litigation is “based on the fact that Canada and the Province took direct, deliberate and decisive action to extinguish the financial benefits that the Innu people were promised in return for their consent that Muskrat Falls could be built,” a news release from Innu Nation issued Tuesday afternoon explains.

Together the Innu Nation, Sheshatshiu Innu First Nation, and Mushuau Innu First Nation say the federal and provincial governments “violated their duties to the Innu” as outlined in the Lower Churchill Impacts and Benefits Agreement (IBA) and the Agreement-in-Principle (AIP) that effectively paved the way for the construction of the controversial Muskrat Falls hydro project.

The plaintiffs allege Canada and Newfoundland and Labrador’s new Muskrat Falls deal “breaches the Crown’s fiduciary duties to the Innu, breaches the duty to consult and accommodate, and breaches the honor of the Crown.”

In their statement of claim the Innu say they consented to the Lower Churchill Projects based on the agreed financial benefits they would receive in exchange for permitting hydroelectric development on the unceded lands where they have asserted Aboriginal rights and title.

The claim also states the province “promised that Innu financial interests would be held harmless throughout the Rate Mitigation Negotiations,” and that Premier Andrew Furey “specifically and explicitly confirmed that Innu Nation would be consulted before any rate mitigation agreement was announced.”

The Innu are seeking a declaration from the courts that the provincial and federal governments have a fiduciary obligation to disclose to Innu Nation any details of the rate mitigation negotiations that would affect the amount and timing of benefits the Innu would receive via the Lower Churchill IBA. They also want a declaration that the governments have a duty to consult the Innu, and that the province has a legal obligation to the Innu “to avoid self dealing and other conflicts of interest in allocating financial benefits received from Canada with respect to the Rate Mitigation Negotiations.”

On the latter point, the court filing says that Canada’s diversion of revenues from the Hibernia offshore oil project toward rate mitigation for Muskrat Falls—without formalizing this part of the deal in any final agreement—would be “an unjustifiable attempt to exclude [the Innu] from a share of those revenues and an example of self-dealing” by the province. The Innu want compensation for the colonial governments’ breaches of their legal obligations of an amount to be determined at trial. They are also asking the court for an injunction to prohibit Canada and the province from finalizing a rate mitigation deal until these issues are resolved.


August 9, 2021


Land Claims

Stalled Modern Treaty Negotiations

Canadian Human Rights Commission – This report is the second follow up study after the original 1993 investigation and the 2002 follow-up. The authors were asked to consider the status of the implementation of the 1993 and 2002 Reports and to look at more recent developments and their implications for the human rights of the Innu Nation.

Given these developments, it is particularly striking, and indeed disappointing, that in many respects the Innu situation has changed so little since the 2002 Report. Although progress has been made in the Modern Treaty negotiation, there is still no final agreement. The authors concur with the Innu Nation that the problems largely stem from a series of federal negotiating positions, examined in Section IV below. These negotiating positions are not only an obstacle to the just and timely resolution required of Canada they are, in some instances, fundamentally incompatible with Canada’s human rights obligations. In the authors’ view, the federal government has lost sight of the ultimate conclusion of the 1993 Report, which was reinforced in the 2002 report, that the Innu are owed a debt of justice for decades-long denial of their human rights.

This report also details significant ongoing concerns over the quality, appropriateness and accessibility of social services available to the Innu, including health, education and policing. The circumstances endured by the Innu would be shocking to most Canadians and are inconsistent with Canada’s commitments to ensuring substantive equality for all. The Innu have developed their own detailed strategies and plans to address these concerns, based on their own values and priorities, but have been repeatedly blocked by the reluctance of federal and provincial authorities to devolve authority to the Innu or to provide adequate funding to ensure the success of such initiatives.

A central problem has been specific federal government policies relating to Modern Treaty negotiations such as:

  • Extinguishment
  • Infringement
  • Contingent Rights
  • Fiscal Policy
  • Taxation

The report finds that systemic barriers are entrenched:

  1. First, the longstanding underfunding of infrastructure, services, and benefits relative to other First Nations and in relation to the real needs of their communities.
  2. Second is the resistance of the federal and provincial governments to fully break with their long history of imposing decisions on the Innu people without adequate knowledge of their culture and needs.
  3. Third is the failure to conclude a Modern Treaty settlement that would formalize recognition of Innu powers of self-government and fully restore control of the design and delivery of services to the Innu people.

The report examines specific barriers in:

  • Racism and Discrimination
  • Health Care
  • Child and Family Services
  • Education
  • Language and Culture
  • Housing
  • Policing and the Justice System
  • Economic Well-Being

Based on the above analysis, we make the following recommendations:

 

  1. The federal government should make a new commitment to the conclusion of the Modern Treaty negotiations with the Innu in accordance with its human rights obligations.
    • Such a commitment must ensure that the negotiations will result in remedying the wrong done to the Innu by the failure of the federal government to exercise its constitutional responsibilities to them for a period of 50 years.
    • This commitment must include abandoning the negotiating positions on issues such as: own source revenue, section 87 taxation benefits, extinguishment and non-contingent rights of self-government that currently stand in the way of a just resolution of the Modern Treaty negotiations.
    • In respect to the future fiscal relationship between Canada and the Innu, Canada should put into Treaty form a clear commitment to achieving substantive equality in areas such as child and family services, protection from violence, healthcare, housing, education, policing and the justice system, language and culture, and economic well-being.
    • Canada should aim to resolve negotiations for the conclusion of a Modern Treaty within three years of this Report.
  2. Pending resolution of the Modern Treaty negotiations, the federal government should take immediate action in collaboration with the Innu to resolve critical gaps in services. Such action must be consistent with its obligation to ensure substantive equality.
    • The federal government should resolve the Innu complaint now before the Canadian Human Rights Commission by agreeing to fully fund, at actual costs, those preventative measures deemed necessary and appropriate by Innu child and family service providers.
    • The federal government should work with Mamu Tshishkutamashutau, the Innu school board, to determine appropriate comparators that will enable the federal government to live up to its commitment to provide funding that is, at a minimum, comparable to that provided to provincially-funded schools in Newfoundland and Labrador
    • The federal and provincial governments should move quickly to address the immediate and critical needs identified by the Innu Round Table Secretariat, including those related to health, violence against Innu women and girls, housing, language and culture, policing and the justice system.
  3. The federal government should move quickly to complete negotiations on the decommissioning of the old village site on Iluikoyak Island, including the appointment of a project manager and providing adequate funding to allow the site to be adapted by the Innu according to their own priorities and values. This should be achieved with one year of this Report.
  4. The federal government should support anti-racism measures to address the systemic racism facing the Innu. The province of Newfoundland and Labrador should give high priority to advancing the work of the anti-racism working group.
  5. The provincial and federal governments must act to ensure the timely launch of the promised inquiry into the treatment of Innu children in provincial care.

 

https://www.chrc-ccdp.gc.ca/sites/default/files/2021-08/2766704-CHRC%20Innu%20Follow-up%20Report%202020-21.pdf