On October 15, 1988, after decades of fruitless efforts to achieve recognition of their unextinguished aboriginal land rights, the Cree people of Lubicon Lake established blockades on roads leading into their traditional territory. A couple of weeks earlier they'd declared their intention to enforce their jurisdiction over their traditional territory, including control of access and regulation of development activity.
Nine days before establishment of the blockades the Lubicon people had formally withdrawn from all legal proceedings before the Canadian courts, making clear that they never accepted the jurisdiction of the Canadian courts over their traditional territory in any case, and, after 14 years of experience with the Canadian courts, that they'd lost all confidence in the ability or inclination of the Canadian courts to compel Canadian Government to obey its own laws.
After five days of blockade scores of heavily armed RCMP backed by helicopters and attack dogs forcibly dismantled Lubicon barricades and arrested 27 people. Two days later, with people from across the country pouring into the Lubicon area to support Lubicon assertion of jurisdiction, Lubicon Chief Bernard Ominayak met with Alberta Provincial Premier Don Getty and agreed on establishment of a 246 square kilometre reserve, conditional upon Federal Government concurrence.
Following the meeting with Premier Getty the Lubicons turned their attention to Canadian Prime Minister Brian Mulroney, who was at the time in the midst of a re-election campaign. Faced with the prospect of significant Lubicon demonstrations along the campaign trail during his re-election campaign, on November 3, 1988, Mr. Mulroney met with Chief Ominayak and agreed to negotiations.
Negotiations with the Federal Government commenced on November 29, 1988, and collapsed on January 24, 1989 -- after Mr. Mulroney's successful election campaign. Negotiations collapsed when the Federal Government tabled a final "take-it-or-leave-it" settlement offer which Federal negotiators knew in advance would be rejected, since it contained no provision for the Lubicon people to once again become economically self-sufficient.
Immediately upon collapse of negotiations the Mulroney Government launched a major propaganda campaign designed to subvert Lubicon leadership and discredit the Lubicon cause. The propaganda campaign was coordinated with on-the-ground efforts to politically overthrow the duly elected leadership of the Lubicon people. At the time of this writing the Lubicon people are continuing their struggle to survive with dignity.
There's a widespread myth in Canada and around the world, fostered by successive Canadian Governments, that Canada is a place where aboriginal rights and human rights generally are respected. This myth is maintained partly because many Canadians truly believe that it's the case -- despite abundant evidence to the contrary -- and partly because it serves Canada's interests internationally to have people believe it. The truth is quite different, as the Lubicon experience makes clear.
The Lubicon people withdrew from all Canadian court proceedings in October of 1988 after 14 painful years of trying to get the Canadian courts to compel the Canadian Government to obey its own laws.
During those 14 years our unceded traditional lands were invaded by dozens of Government directed oil companies, our traditional economy and way of life was systematically destroyed by massive exploitation of our natural resources, our people increasingly suffered what the World Council of Churches accurately described as the "
Unable to achieve any kind of effective redress within Canadian legal and political institutions, we took our case to the United Nations Committee on Human Rights, which, after three years of considering the evidence agreed that we couldn't achieve effective legal or political redress within Canada, and therefore instructed Canada to do no further irreparable damage to our traditional lands and way of life pending a hearing of charges that Canada has violated our rights under the International Protocol on Civil and Political Rights. The Government of Canada has ignored the UN instruction to do no further irreparable damage to our traditional society; oil company activity in our traditional area has continued unabated; and, last year, the Provincial Government dramatically escalated plans to exploit our natural resources by announcing that they'd sold the trees from a huge area completely covering our traditional territory to a huge new Japanese pulp mill.
In asserting jurisdiction over our traditional lands we were not, as has been suggested by various Canadian politicians, "taking the law into our own hands". Rather we were merely enforcing jurisdiction which we'd never ceded to anybody in any legally or historically recognized way. Moreover we started enforcing our legitimate jurisdiction over our unceded traditional lands only after years of trying unsuccessfully to resolve the jurisdictional dispute between ourselves and Canada through negotiations. Trying to resolve the jurisdictional dispute between ourselves and Canada through negotiations didn't work, because while we tried to talk the other side was literally driving bulldozers through what we were trying to talk about, systematically destroying everything we had and valued as a people, and in the process, of course, effectively subverting our unceded aboriginal land rights.
The Alberta Provincial Government claims to have received the ownership rights to our traditional area from the Canadian Federal Government through the land transfer act of 1930, which transferred vast tracts of unpatented Federal Crown land to Provincial Government jurisdiction. The Canadian Federal Government in turn claims to have obtained the ownership rights to our traditional lands through negotiation of treaty with its original aboriginal owners in 1899. However we're the original aboriginal owners of our traditional area, and the Canadian Federal Government never negotiated any treaty with us, never properly obtained the rights to our traditional lands, and, therefore, has never been in a position to transfer those rights to the Province of Alberta or anybody else.
We first started trying to negotiate a settlement of our aboriginal land rights in the early 1930's, after hearing that victims of the great depression were moving into the bush to try and live-off the land. Under such circumstances we decided that we'd better try to negotiate a treaty with the Government of Canada protecting our aboriginal land rights, as we understood other aboriginal people in the surrounding area had done. We therefore sent emissaries to the surrounding aboriginal communities in an effort to initiate negotiation of our aboriginal land rights with the Government of Canada. Representatives of the Canadian Government with whom we managed to make contact responded to our initiatives by giving each of our emissaries a 5 dollar annuity payment and putting their names on the membership lists of the other aboriginal societies where our people had gone to try and make contact.
It was not until 1939 that officials of the Indian Affairs Department actually visited our traditional area and confirmed that we are indeed a separate and distinct aboriginal people retaining aboriginal land rights. At that time Government representatives were well aware that many of our people were scattered throughout our large traditional area and weren't immediately available to be registered as recognized members of our Nation. Explicit provision was therefore made to calculate the amount of our traditional lands which we would be allowed to retain for reserve purposes based on the number of our people actually meeting with Canadian Government representatives at that time, and then to increase the membership list, and thus the amount of land which we would be allowed to retain for reserve purposes, as so-called "absentees" came in from the bush and were added to our membership list.
An initial amount of reserve land based on the number of our people meeting with Canadian Government representatives in 1939 was selected and approved by both levels of Canadian Government pending formal survey. However Federal officials said that it wasn't possible to have our reserve surveyed right away, so Provincial officials agreed to set the land aside until a proper survey could be conducted.
In 1942 an official of the Federal Department of Indian Affairs named Malcolm McCrimmon unilaterally removed a number of Indians in northern Alberta from the lists of recognized, registered Indians.
McCrimmon had decided that the only people entitled to registered as Indians were those who'd signed Treaty in 1899 or "shortly thereafter". The cut-off date he used to determine who was and wasn't entitled to be registered as an Indian was January 1, 1912.
Most of our people, of course, had no opportunity to be registered before January 1, 1912. Most of those who were registered hadn't been registered until after January 1, 1912. And more than half of our people still weren't registered in 1942 and remain unregistered to this day.
Under these circumstances McCrimmon's registration criteria decimated our recognized membership list. Those who hadn't been recognized were deemed by the Government to be no longer eligible. Over half of those who'd been recognized were removed from the list of recognized Indians.
Mr. McCrimmon of course knew exactly what he was doing and the effect it would have on our aboriginal land rights. In a letter to the Departmental Superintendent of Reserves and Trusts, arguing that establishment of a reserve at Lubicon Lake should be held in abeyance until the membership question raised by his removals was resolved, he wrote:
"If my recommendation is approved by the Minister, the number of Indians remaining on the membership list at Lubicon Lake would hardly warrant the establishment of a reserve at this point".
McCrimmon's removals created considerable controversy in Northern Alberta. Responding to the resulting political pressures, the Minister of Indian Affairs appointed a Judge named McKeen to review the removals. Judge McKeen's report to the Minister, dated June 30, 1943 reads as follows:
"...Your instructions to me...say that the facts are relatively simple and will not require any argument of those who are protesting against the removals...This may be the opinion of the Department but it is not mine, after reading the Indian Act and Treaty No. 8, then a book `Treaty of Canada with the Indians' by Morris (who was at the time Lt. Governor of Manitoba and one of the Treaty 8 Commissioners), the Domestic Relations Act of Alberta and the Criminal Code...Mr. McCrimmon has...followed the (McCrimmon authored) principles governing ineligibility... signed by Deputy Minister Charles Campsell...however... with all due respect...I cannot concur (with the removals) when I study Treaty No. 8 and previous commitments made by various Commissioners appointed by Canada and acting for Canada".
Judge McKeen's report was received by the Minister, referred to McCrimmon, rejected by McCrimmon and quietly shelved. The controversy thus continued until 1944 when a formal Judicial Inquiry was ordered. The Judge conducting the Inquiry, Judge McDonald, arrived at basically the same conclusions as Judge McKeen, recommending the reinstatement of nearly 90% of the cases he heard.
The recommendations of the McDonald Inquiry were referred to the Department of Indian Affairs where they were referred to McCrimmon, reviewed by McCrimmon and then largely ignored. Of the 90 Lubicon people removed, for example, Judge McDonald heard 49 appeals, recommended the reinstatement of 43, and recommended that "special consideration" be given the remaining 6. McCrimmon agreed to the reinstatement of only 18.
Later McCrimmon argued that those who didn't appeal accepted his removals. He was wrong. Lubicon people at the time lived scattered throughout a large, largely inaccessible area without roads, phones, radios or newspapers. They neither spoke English nor knew how to read or write. Many didn't know what was going on; others knew but simply decided not to participate in something basically irrelevant to their lives. They lived in the bush, on their own, with little outside contact and even less inclination to spend their time debating with McCrimmon or anybody else whether or not the Canadian Government considered them to be Indians.
On April 17, 1952, the Director of the Technical Division of Provincial Lands and Forests wrote the Department of Indian Affairs as follows:
"Due to the fact that there are considerable inquiries regarding the minerals in the (Lubicon) area, and also the fact that there is a request to establish a mission at this point, we are naturally anxious to clear our records of this provisional reserve (set aside in 1939) if the land is not required by this Band of Indians".
Officials of the Federal Department of Indian Affairs had in the meantime forgotten about us and were consequently caught off-guard by this Provincial letter. The then Departmental Supervisor of Reserves and Trusts therefore wrote the Alberta Regional Supervisor of Indian Affairs as follows:
"You will recall that in 1946 C.D. Brown surveyed six parcels of land...for purposes of Indian Reserves...On his program for the same year was a survey at Lubicon Lake but it is our understanding that he was not able to undertake this survey during the field season and it was left over until another year. In so far as we can tell from our records, this proposed reserve seems to have been forgotten since then and our attention has (now) been drawn to it...I shall be pleased if...you can advise whether you consider there is (still) a need of a reserve at this point, for if so, we will give consideration to having it surveyed, possibly this year, and if not, certainly the following year".
The Alberta Regional Supervisor consulted the local Indian Agent, who reviewed the situation and recommended against proceeding with establishment of a reserve at Lubicon Lake. The local Indian Agent said the Lubicon Lake site was too isolated and inaccessible. He said that a reserve at Lubicon Lake would be "inconvenient" to administer.
The Alberta Regional Supervisor therefore instructed the local Indian Agent to meet with us about the selection of a more "administratively convenient" site, closer to the beaten path -- outside of our traditional area. When the local Indian Agent was unable to get us to agree to an alternative site outside of our traditional area, the Alberta Regional Supervisor instructed him to meet with us again. The Alberta Regional Supervisor was not, however, really interested in consulting us about site selection, as his written instructions to the local Indian Agent made clear.
Those instructions read:
"Regardless of the result of such a meeting, I certainly recommend the procuring of land (at a more convenient site)."
Regarding the question of our ownership of potentially valuable mineral rights, the Alberta Regional Supervisor -- agent of a Federal Government constitutionally responsible for insuring that the interests of aboriginal people in Canada are protected, was equally explicit. He wrote:
"It is recommended that the twenty-four sections of land set aside for a reserve at Lubicon Lake be exchanged for (a more convenient site)...I interviewed the Deputy Minister of (Provincial) Lands and Forests...and...he stated that he did not have any objections to the transfer though there was no assurance that the mineral rights would be included with (the more convenient site)...If this reserve (at Lubicon Lake) is retained, the Band would have the mineral rights...I would recommend the exchange even it the mineral rights cannot be guaranteed (at the more convenient site)."
The local Indian Agent met with us again on June 4, 1953. His written description of that meeting is as follows:
"I explained to Band members present that it would be impossible to administer a reserve at Lubicon Lake because of the lack of transportation, but the members continued to ask for the reserve which has been set aside for them by the Province of Alberta."
On October 22, 1953, the Director of the Technical Division of Provincial Lands and Forests wrote the Federal Government as follows:
"It is some years since (the Lubicon Lake site was provisionally reserved)...(and)...it would be appreciated if you would confirm that the proposal to establish this reservation has been abandoned. If no reply is received within 30 days, it would be assumed that the reservation has been struck from the records."
Federal officials considered the letter from the Province to be an ultimatum and deliberately decided not to respond, believing that the Provincial Government would simply assert Provincial jurisdiction over the land, making it unavailable for reserve purposes. The attitude of Federal officials was clearly spelled out in a letter dated February 25, 1954, from the Alberta Regional Supervisor of Indian Affairs to the local Indian Agent. The letter reads:
"As you are no doubt aware, the Deputy Minister (of Provincial Lands and Forests) has from time to time asked when our Department was likely to make a decision as the whether to not to take up this reserve. There were so many inquiries from oil companies to explore the area that it was becoming embarrassing to state that it could not be entered. That situation existed when our Branch was advised that unless the Department gave a definite answer before the end of 1953 the Provincial authorities were disposed to cancel the reservation and return it to Crown lands which could be explored.
"This was discussed when I was in Ottawa last October. I was of the opinion that our Branch had taken no action and that the block (of land) would automatically return to Provincial Crown lands. Apparently this is not the case.
"In approaching the subject (of a more accessible site) with the Indians, I think it would be well to keep in mind that the mineral rights may be much more valuable than anything else, and if the Indians were deprived of these rights, they could make it very unpleasant for Branch officials. If this block (of land at Lubicon Lake) was given up, then it is very unlikely that mineral rights would be made available with the surface rights of any other reserve that might be picked up. You are fully familiar with the situation and the Indians and their habits."
After several more unsuccessful attempts to talk us into a more "administratively convenient" alternative site, attempts during which the Indian Agent carefully avoided any mention of potentially valuable mineral rights, Federal officials settled on a new strategy. Unable to talk us into a reserve location outside of our traditional area but which suited their administrative convenience, they decided to try and wipe us off the books as an officially recognized Indian Nation. They questioned the validity of our separate existence as a people, which they'd explicitly investigated and confirmed in 1939. They tried to bribe our people into allowing their names to be transferred to the membership lists of other recognized aboriginal societies, promising them educational and other benefits which they supposedly wouldn't have to leave our traditional area to receive, but which Federal officials said couldn't be provided unless our people allowed their names to be transferred. They sought, through deliberate deceit and deception to trick our people into voluntarily relinquishing their aboriginal rights by means of a process called enfranchisement, telling them, falsely, that they could always be put back on the list of officially recognized Indians if they didn't like the supposed advantages of "living like a white man" -- like being legally able to buy alcoholic beverages. And they transferred the names of some of our members to the lists of other recognized aboriginal societies -- without even their knowledge or permission.
On the question of enfranchisement the Alberta Regional Supervisor wrote:
"It is quite possible that the seven families (who'd expressed interest in enfranchisement) will make application for enfranchisement in the near future... should they do so I would recommend that enfranchisement be granted...the remaining members of the Band could no doubt be absorbed into some other Band."
On the question of transferring our members to the membership lists of other recognized aboriginal societies, he wrote:
"The Whitefish Lake Band have no objection to (the Lubicon people) being transferred...and I am suggesting to (the local Indian Agent) to contact those members (of the Lubicon Lake Band) who are at present residing at Whitefish Lake and Grouard and ascertain if they wish to file applications for transfer. If they all wish to transfer it would reduce the (officially recognized) Lubicon Lake Band membership to approximately thirty and if the remainder cannot be persuaded to transfer, their land requirements would be much less than the present membership would be entitled to."
And regarding our recognition as a separate and distinct aboriginal society, the Alberta Regional Supervisor sought the assistance of the Departmental Superintendent of Reserves and Trusts. At the request of the Alberta Regional Supervisor, the Departmental Superintendent of Reserves and Trusts instructed his staff as follows:
"...consult the appropriate files and advise whether action was taken by the Department to officially establish (the Lubicon Lake Band) as a Band, for at this time any such action appears rather short-sighted, and if this group was never established as an official Band, it will serve our purpose very well at the present time".
All of these various strategies to wipe us off the books as an officially recognized Indian Nation ultimately failed, and in 1973 our existence as a separate and distinct aboriginal society was re-affirmed by Order-in-Council. However these strategies were not totally without effect. Some of our people have never been included on the list of our members recognized as Indians by the Government; others were removed and never reinstated. Some of our people were enfranchised through deceit and fraud; still others remain erroneously on the membership lists of other Aboriginal Nations. In addition, of course, and this has obviously been the real name of the game all along -- there's never been a negotiated settlement of our unextinguished aboriginal land rights.
Until about ten years ago questions of land ownership, membership, mineral rights and aboriginal rights were essentially academic to us. Our traditional territory was isolated and inaccessible. We had little contact with outsiders, including Government officials. There were no roads into our area, no phones, no electric power, no television, no newspapers, no radios. We built log houses for shelter and spoke Cree. We hunted moose for food and trapped fur bearing animals to trade for basic goods from outside like tea and flour. We used dog sleds and horse drawn wagons for transportation. And we lived on our traditional lands pretty much as countless generations of our people before us.
In 1971 the Alberta Provincial Government started to build an all-weather road into our traditional territory as part of a plan to open up northern Alberta for resource exploitation. Once again faced with the prospect of an influx of outsiders into our traditional area, and unsure how to proceed given our previously bad and limited experience with Canadian Government, we contacted the Indian Association of Alberta and asked for advise and assistance. The Indian Association contacted the Federal Government on our behalf about the possibility of initiating negotiations regarding our unceded aboriginal land rights.
Federal Government officials refused to even consider negotiations regarding our unceded aboriginal land rights, taking the position that we were "merely squatters on Provincial Crown land with no land rights to negotiate, not even the rights to our own homes". Indian Association lawyers therefore advised us to file a caveat with the Alberta Land Registration Office, at least putting everyone on notice that title to our traditional lands was contested.
Such a caveat has no force in law and can't make anybody do anything. It's rather only a procedural matter. You fill out the prescribed forms and notice is posted that title to the land is contested. However we hoped that such notice would be worrisome to potential developers, increasing pressure to resolve the outstanding ownership and jurisdictional issues prior to proceeding with planned development activity. Instead of worrying potential developers, however, the end result of our caveat was an eye-opening lesson for us in lack of Canadian Government respect for its own laws.
The Provincial Government refused to accept and file our caveat as Provincial law at the time prescribed. We therefore took the Provincial Government to court, asking the courts to order the Provincial Government to obey Provincial law.
Since we had no money for court action, and since the Federal Government is constitutionally responsible for ensuring that aboriginal rights in Canada are respected and enforced, we sought Federal Government support and assistance in prosecuting our case against the Provincial Government.
At first we were given the impression that the Federal Government, in its capacity as "trustee" of Indian interests in Canada, would help us with our legal proceedings against the Provincial Government. Later we were amazed to learn that the Federal Government -- constitutionally responsible for protection of our rights -- would be entering the case on behalf of the Provincial Government. As Chief Billy Diamond of the James Bay Cree would later observe, "the trustee is the enemy" of aboriginal people in Canada.
Provincial Government lawyers asked the courts to postpone the hearing of our caveat case pending the outcome of a similar case in the Northwest Territories called the Paulette case. The Paulette case went against the Indians, but the decision read that the Court would have held for the Indians, and ordered the Government to file the Caveat, had the land registration law in the Territories been written the same as Alberta and Saskatchewan.
Following the Paulette decision the Province went back to court and asked for another postponement of the hearing of the case, during which time they re-wrote the relevant legislation, making the effect of their re-written legislation retroactive to before the time we tried to file our caveat. Given the re-written, retroactive Provincial legislation, the judge dismissed our case as no longer having any basis in law.
The Provincial Government's new all-weather road into our area was completed in 1978. Shortly thereafter the Provincial Government and dozens of multi-national oil companies invaded our traditional area in force. They made no effort to seek an equitable for fair or just settlement of our unceded aboriginal land rights. Instead they deliberately sought to undermine our traditional hunting and trapping economy, to subvert our unceded aboriginal land rights under Canadian law, and to destroy our will and ability to resist Provincial Government and oil company exploitation of our traditional territory.
With long feared development activity proceeding all about us, rapidly destroying our traditional lands and way of life, we returned to court, this time asking the court to either affirm the existence of our unceded aboriginal land rights, or, if the court found that Lubicon land rights had been somehow extinguished, for substantial financial compensation. Since Indians and Indian lands are a matter of exclusive Federal Government jurisdiction under the Canadian Constitution, we filed this second legal action with the Federal courts.
We also approached the Federal Department of Indian Affairs again about the possibility of financial assistance to support our second legal action, and/or about the possibility of negotiations. After lengthy discussions the Federal Indian Affairs Minister agreed to appoint a Federal Claims Commissioner to work with us on resolving the jurisdictional dispute, and he also agreed in writing to provide us with financial assistance required to support our work with the Federal Claims Commissioner. Neither the financial assistance nor the Federal Claims Commissioner promised by the Minister at that time were ever forthcoming. Rather we were simply told later that the Government wouldn't be honouring the written promises made by its Minister, because, we were told, the Minister had "exceeded his authority".
The Alberta Provincial Government and the oil companies responded to our second legal action as they have consistently responded to all of our efforts to seek legal redress through the Canadian court system, with procedural arguments designed to preclude judicial determination of the ownership question until we're no longer able to fight for our rights -- in which case, of course, they win by default. This time they argued that we were before the wrong court and should instead be suing in the Alberta Provincial Courts.
We argued the question of the jurisdiction of the Federal court to hear our case to the Federal Court of Appeal, which held that we could sue the Federal Government and Federally-owned oil company PetroCanada in the Federal Court, but that we had to sue the Alberta Government and other offending oil companies in Provincial Court. We therefore commenced parallel legal actions, one against the Federal Government and PetroCanada in Federal Court, and another against the Provincial Government and other offending oil companies in Provincial Court.
Both of these parallel legal actions carried on until the fall of 1986, when the Supreme Court of Canada rendered our Federal court action moot with a decision to the effect that you can't sue the Federal Government in Federal court regarding aboriginal land rights within Provincial borders, because, supposedly, aboriginal land rights within Provincial borders involve Provincial land rights and must therefore must be adjudicated before the Provincial courts.
In light of the Supreme Court decision that you can't sue the Federal Government in Federal court over aboriginal land rights within Provincial borders, we moved to add the Federal Government to our Provincial court action. Federal Government lawyers opposed adding the Federal Government to the Provincial court action, arguing that the Federal Government retained no interest in traditional Lubicon land since the land was transferred to the Province by virtue of the 1930 land transfer agreement. This Federal Government argument ignored both the fact that the land transfer agreement specifically provides that the land was being transferred from Federal to Provincial Government jurisdiction "subject to...any interest other than that of the (Federal) Crown in the same" -- namely the aboriginal interest -- and also that responsibility for negotiating aboriginal land rights is a matter of exclusive Federal Government jurisdiction under the Canadian Constitution.
The Provincial court judge hearing the case agreed with Federal Government lawyers that the Federal Government shouldn't be added to our Provincial court action, with the result that, at the time we asserted jurisdiction over our traditional territory, there was not a single court in Canada prepared to hear our aboriginal land rights case against the Federal Government, even though responsibility for settling aboriginal land rights is a matter of exclusive Federal Government jurisdiction under the Canadian Constitution.
The Federal Government lawyer arguing that the Federal Government shouldn't be added to the Provincial Government action was the same man who'd earlier intervened for the Federal Government on the side of the Province when we tried to file our caveat. The Judge who agreed with him, a man named Moore, was also known to us. Judge Moore had earlier appointed an ex-oil company head lawyer to hear our application for an injunction to freeze development activity in our traditional area pending determination of our land rights, an injunction which, to no one's great surprise, was denied after years of procedural wrangling. Judge Moore would later take only minutes to grant the Provincial Government an "ex-parte" injunction to tear down our barricades, without any procedural wrangling at all, since we weren't even notified that the Province had applied for an injunction.
During the summer of 1981, while we were still naively seeking redress through the Canadian courts, the Provincial Government unilaterally declared our community to be a Provincial Government Hamlet, surveyed it, divided it up into little 2-acre plots and tried to force our people into either leasing these plots or accepting them as "gifts" from the Province. People who agreed to lease the plots or accept them as gifts were promised a variety of programs and services; people who refused to go along were threatened with everything from no programs and services to literally having their homes bulldozed as "unauthorized improvements to Provincial Crown land".
Fearing that acceptance of the Provincial Hamlet and Land Tenure Program would jeopardize our aboriginal land rights by in effect agreeing that our traditional lands were the Province's to give, we asked the Province to delay implementation of their program until its effect on our land rights could be determined. Provincial officials refused, stating that they'd already checked the legal implications of the program and been assured that there was "no relationship between land claims and land tenure."
When we refused to cooperate with the Provincial Hamlet and Land Tenure Program, Provincial officials tried to trick our people into becoming involved. One old woman, who can neither read nor write, was told to make her mark on a piece of paper in exchange for free firewood. That piece of paper was in fact an application for a two acre plot. Another signed a land tenure application form after being told that she was signing for a free Alberta Housing trailer. A third signed a land tenure application form after being told that she was signing a required census form.
When we protested Provincial Government efforts to try and trick our people into jeopardizing their aboriginal land rights, Provincial officials claimed that "a majority" of our people had requested and supported their Hamlet and Land Tenure Program.
When we circulated and submitted a petition proving beyond any doubt that a majority of our people opposed their program, Provincial officials took the position that they wouldn't "deny the benefits of land tenure to even a minority."
When we asked again that the Province delay implementation of their Land Tenure Program pending determination of its possible effects on our aboriginal land rights, Provincial Officials again refused, this time claiming that a delay was "unnecessary", because, they said, participation in their program was "purely voluntary".
When it became clear that we weren't getting anywhere with Provincial officials because they specifically intended to use the Provincial Hamlet and Land Tenure Program to subvert our aboriginal land rights, we again appealed to the Federal Minister of Indian Affairs for support and assistance. The Federal Minister responded by sending the Province a telex requesting a six-month delay in implementation of the Provincial Hamlet and Land Tenure Program, during which time, he said, he hoped to be able to resolve the question of our aboriginal land rights.
The Provincial Minister of Municipal Affairs replied to the Federal Ministers telex with a letter, questioning our existence as a separate and distinct aboriginal nation, and stating that our community couldn't be part of a land settlement anyway, because, he said -- completely contradicting his earlier assurances that there was "no relationship between land claims and land tenure" -- our community was now an official Provincial Government Hamlet and therefore no longer available for purposes of establishing an Indian reserve.
As our increasingly serious problems with the Alberta Provincial Government clearly wouldn't be resolved until the basic question of land ownership was settled, and since negotiation of aboriginal land rights in Canada is constitutionally a matter of exclusive Federal Government jurisdiction, we continued pressing the Federal Government to commence negotiations regarding our aboriginal land rights. Late in 1981 officials of the Federal Office of Native Claims and Federal Justice Department agreed, without prejudice to their legal position, that we indeed had land and sub-surface rights in the area originally selected. In addition they indicated that they were prepared to discuss special hunting and trapping rights, membership problems and special "catch-up" programs.
Taking the position that there was now sufficient common ground between the Federal Government and the Lubicon people to commence negotiations, Federal officials decided that it was time to involve the Provincial Government in our discussions. A meeting between Federal and Provincial officials was therefore arranged early in 1982.
During the meeting between Federal and Provincial officials, Provincial officials rejected out of hand most if not all of the points of supposed common ground discussed by representatives of Federal Government and the Lubicon people. Provincial officials refused to consider the question of our land rights until they were first satisfied that we had any land rights. They refused to spell out a timetable or procedure for determining whether or not we had any land rights. They refused to consider the land which had been originally selected. They refused to consider any compensation or sub-surface rights. And they refused to meet with any Lubicon representatives.
Basically Provincial officials told Federal officials to provide them with all of the information which the Federal Government had used to determine that we had any land rights, and, they said, they'd get back to the Federal Government at some unspecified time in the future with a reaction. In the meantime, of course, Provincial officials were proceeding with implementation of their Hamlet and Land Tenure Program, clearly intended to subvert our aboriginal rights, and with development of our traditional lands, which not only jeopardized our aboriginal land rights in the legal sense, but literally threatened our traditional way of life and ability to feed our families.
It should be understood that our traditional lands and way of life were not being destroyed merely as the result of unfortunate but unavoidable contact between a modern industrial society and a traditional hunting and trapping society. Our traditional lands and way of life were being deliberately destroyed as part of a legal strategy on the part of the Alberta Provincial Government to steal our lands and resources. The Canadian courts have held that those who would assert aboriginal land rights must be able to show that they continue to pursue a traditional way of life. Our traditional economy and way of life were being deliberately destroyed by the Alberta Provincial Government, and our people forced onto welfare in order to survive, so that Provincial Government lawyers could go to court and argue, as they then did, that we no longer enjoy aboriginal land rights over our traditional lands, because we no longer pursue a traditional way of life but rather subsist on welfare.
Between 1979 and 1982 over 400 oil wells were drilled within a 15 mile radius of our community. The number of moose we killed for food dropped from 219 in 1979 to 19 by 1983. Average income from trapping during the same period dropped from over $5,000 per trapper to less that $400. Dependence on welfare increased from under 10% to 95%. Social and medical problems of all kinds proliferated, including family break-down, still-born and prematurely born babies, suicide and alcohol-related violent death.
Our traditional lands and way of life were rapidly being destroyed and our lawyers advised us that our parallel legal actions before the Canadian courts would take ten or more years to adjudicate. It was obvious that there wouldn't be anything left to talk about if the other side was allowed to proceed unhindered for another ten years. It was also obvious that the other side understood this point as well as we did. We therefore commenced a fourth legal proceeding, this time asking the courts to freeze development activity in our traditional area pending settlement of the land rights question.
Provincial Government and the oil company lawyers responded to this fourth legal action predictably, by arguing procedural points designed to prevent a judicial determination of the land rights question. They argued that our application for an emergency injunction to stop the oil companies from doing irreparable damage to our traditional lands and way of life shouldn't even be heard, because, they said, the Provincial Government enjoyed "immunity" from injunctive relief. They argued that we couldn't sue the oil companies either, because, they said, the oil companies, including Federally-owned PetroCanada, were merely agents of the Provincial Government in the extraction of the oil resource and were therefore covered by Provincial Government "immunity". They argued that the court shouldn't even hear the case because, they said, the damages weren't irreparable -- the trees would grow back. They argued that the court shouldn't hear the case even if the damages were irreparable, because, they said, even irreparable damages could be compensated with money. They argued that the court shouldn't hear the case even if the damages were irreparable and couldn't be compensated with money, because, they said, too much was economically at stake for Canadian society as a whole. And they argued that the court shouldn't even hear the case, because, they said, we would never be able to pay back the Province and the oil companies for the money lost in the interim if we were to later lose our main or aboriginal rights action.
Concluding arguments on the procedural objections raised by Provincial Government and oil company lawyers were heard on December 2, 1982. In Alberta such procedural points are typically decided from the Bench and never take more than a day or two to decide. However in our case a decision was not brought down by the ex-oil company head lawyer turned Provincial court judge until March 2, 1983, exactly three months to the day from the time concluding arguments were heard. These three months coincided with the oil companies winter development season, which is of course the period of most intense development activity in our part of the world since the ground at this time of the year is frozen allowing for the relatively easy transport of heavy equipment. In other words, while the ex-oil company head lawyer turned Provincial court judge was considering the procedural points raised by Provincial and oil company lawyers, the Province and the oil companies were proceeding to do the very things which we were seeking to stop with our emergency injunction.
Our application for an emergency injunction was then heard for a full month the following fall. All of the evidence was by way of sworn affidavits. We submitted the sworn statements of our Elders and a number of relevant non-Indian experts describing and assessing the effects of development activity upon our traditional lands and way of life. Provincial Government and oil company lawyers submitted no affidavits at all on traditional way of life. They simply asserted that "any aboriginal way of life has already been unalterably affected by the encroachment of modern life", and that there was therefore nothing left to destroy, while, they said, Provincial Government and oil company revenues would be adversely affected if an injunction were granted.
The ex-oil company head lawyer turned Provincial court judge hearing our application for an emergency injunction agreed with Provincial Government and oil company lawyers, finding, despite uncontested evidence regarding destruction of our traditional way of life, that "the evidence simply does not establish a way of life by the Applicants which is being destroyed by the Respondents". Moreover, he concluded, "I am more than satisfied that the Respondents would suffer large and significant (money) damages if injunctive relief in any of the forms sought by the Applicants were granted".
The ex-oil company head lawyer turned Provincial court judge then went on to assess court costs against us for the procedural points which we won, as well as for the cost of Provincial Government and oil company lawyers in an amount four times greater than the largest amount shown on the standard court tariff sheet governing such calculations, as well as for "costs in any case". "Costs in any case" means that we're liable for all of the costs of our efforts to protect our traditional lands and way of life even if another court later agreed that we retained continuing aboriginal title to our traditional lands. In such an event the Provincial Government and the oil companies would be legally declared to be trespassers on our land, but we would still have to pay the costs of trying to stop them from trespassing and destroying our way of life.
We appealed the decision of the ex-oil company head lawyer turned Provincial Court judge to the Alberta Court of Appeal, where the Chief Justice of the Alberta Court of Appeal, a man named McGillivray, put himself at the head of a three man panel selected to hear our appeal. Before becoming a Provincial Court Judge Mr. McGillivray had been the family lawyer for Alberta Provincial Premier Peter Lougheed. He was well known to be a close personal friend of Mr. Lougheed. He'd given Mr. Lougheed his first job in the Calgary law firm of Fenerty, McGillivray and Robertson. Robertson is Jack Robertson -- the senior oil company lawyer on the case.
Mr. McGillivray died before hearing our appeal and was publicly eulogized by his close personal friends and associates -- Peter Lougheed and Jack Robertson. His legacy, however, carried on. He was replaced as Chairman of the three judge panel by a man who'd formerly been President of the governing political party in Alberta, and who is generally given credit for convincing Premier Lougheed to run for leader of that political party.
On January 11, 1985, the Alberta Court of Appeal upheld the decision of the ex-oil company head lawyer turned Provincial court judge, varying the rationale for that decision in a way which provided additional insight into the minds of those responsible for the deaths of our unborn babies. The Alberta Court of Appeal found that we didn't need an emergency injunction to protect our traditional lands and way of life, because, they said, we could "restore the wilderness" with money damages if we were ever able to prove that we owned the land.
The notion of "restoring the wilderness" with money damages is of course ridiculous. No one really believes that it will ever be possible to remove all of the oil company roads, seismic lines, pipelines, battery stations and pump jacks. No one really believes that it will ever be possible to replace all of the trees and animals. And even if it were possible to replace and restore these things -- which it clearly is not -- no one really believes we will ever be able to return to the valued way of life which we enjoyed before our traditional territory was invaded and devastated by development activity. Talking about "restoring the wilderness" with money damages in this context is like talking about restoring with money damages the innocence of a little girl who has been brutally raped -- some things simply can't be fixed or prettied up with money, no matter what the learned Judges of the Alberta Court of Appeal might think.
We therefore appealed the decision of the Alberta Court of Appeal to the Supreme Court of Canada, who declined to hear our appeal without bothering to say why. The Supreme Court decision not to hear our appeal was also made by a panel of three judges, one of whom was an ex-oil company lawyer who's since retired from the bench and been appointed to the Board of Directors of a large petro-chemical conglomerate in Alberta with significant interests in our traditional area.
As we became more experienced with Canadian legal and political institutions, we realized that our appeals to truth, justice, honour, fairness, integrity and the rule of law were falling on deaf ears. We therefore began increasingly addressing our appeals for redress to our aboriginal brothers and sisters, to human rights organizations, to the churches, to organized labour, to international organizations concerned with civil and political rights, and to individual human beings across the country and around the world concerned with oppression and injustice. Over time our message was heard by a growing number of concerned groups and individuals and together we began having an impact on both levels of Canadian Government.
In October of 1983 the World Council of Churches wrote then Canadian Prime Minister Pierre Trudeau charging the Alberta Provincial Government and dozens of multi-national oil companies with "actions which could have
Faced with growing national and international attention and concern, on November 26, 1984, the newly appointed Federal Indian Affairs Minister David Crombie agreed to appoint an "special envoy" to try and resolve the question of our outstanding aboriginal land rights. He said, "I think it's time to make a deal." He also agreed to provide us with desperately needed financial assistance to help cover the legal and other costs which we'd incurred over the previous five years in our struggle to survive -- including a bank loan which was rapidly coming due.
On January 21, 1985, we received a telephone call from Mr. Crombie's office asking for our reaction to the possibility of the Hon. E. Davie Fulton being appointed "special Lubicon negotiator". We checked Mr. Fulton's credentials and reputation. We learned that Mr. Fulton is a former Federal Justice Minister and Supreme Court Judge in British Columbia with a reputation for fairness, independence and commitment to the rule of law. We didn't think that we'd do better with a non-aboriginal person. We therefore advised the people in Mr. Crombie's office that we'd welcome Mr. Fulton's appointment as "special Lubicon negotiator".
On January 27th Mr. Crombie's Chief of Staff announced the appointment of Mr. Fulton "as a special negotiator to help settle the Lubicon Lake native land dispute." He said that Mr. Fulton "will do a fact-finding report for (Mr. Crombie) to suggest ways that the Lubicon Lake dispute could be resolved."
Our first meeting with Mr. Fulton occurred the evening of April 9, 1985, after which he spent the night in our community staying with one of our old men. The next morning he flew over our traditional territory in a helicopter, ate lunch with us and then attended a community meeting. His presence overnight in our community was a new experience for us. No other representative of either level of Canadian Government, before or since, has ever spent the night in our community.
Mr. Fulton explained that he would be conducting an independent inquiry into our situation. He made clear, much to our initial dismay, that he "represented" neither the Minister nor the Federal Government. Rather, he said, he hoped to be able to clearly delineate the positions of both levels of Canadian Government and the Lubicon people; to discuss and obtain the reactions of each of the three parties to the positions of the other two; to prepare a "discussion paper" identifying common ground and including his own comments and reactions; to share and review his discussion paper with each of the three parties, hopefully in the context of meetings attended by all three of the parties; and to then prepare a final report with recommendations for the Minister. He said that he hoped it would be possible to find a solution acceptable to all of the parties. However if a mutually acceptable solution wasn't possible, he said, then "somebody is going to have to make a decision and take action".
Mr. Fulton's approach was not at all what we'd expected. We'd expected a representative of the Federal Government with whom we could negotiate a settlement of our aboriginal land rights -- not another inquiry. Moreover after our experience with the Canadian Courts we really didn't believe that there was any such thing as an independent Canadian Government inquiry. We didn't see how Mr. Fulton could be appointed by the Federal Minister of Indian Affairs and still represent neither the Minister nor the Federal Government. And we frankly questioned the value of the exercise Mr. Fulton was proposing.
Mr. Fulton told us he wasn't an authority in the area of Indian land rights, but that he did have "a deep sense of what is just, what is fair." He said he didn't yet know the full details of the Lubicon situation, but that he did knew enough to know that part of his job was going to be one of "building trust", and that trust would have to be "earned".
We listened to Mr. Fulton and decided to work with his proposed inquiry, partly because we didn't have many options, and partly, despite our growing cynicism about representatives of both levels of Canadian Government, Mr. Fulton impressed us as a man of honour and integrity. During the course of the next year we had many tough discussions with Mr. Fulton, and disagreed with him on many things, but he never once gave us reason to doubt his integrity or his sincerity. He earned our respect and our trust.
Moreover we came more and more to appreciate the wisdom of Mr. Fulton's independent inquiry approach. Instead of merely reflecting the continually changing but always adversarial position of the Government, Mr. Fulton effectively put himself in a position to take testimony equally from both levels of Canadian Government and the Lubicon people, to assess the factual accuracy of that testimony, to apply appropriate legal and other tests, and then to argue an independent settlement position based in the facts, based in the law and based in his firmly held views of justice and equity.
We asked Mr. Fulton about Mr. Crombie's commitment to provide us with desperately needed financial assistance, which we'd been told by the people in Mr. Crombie's office to discuss with Mr. Fulton. Mr. Fulton said that he knew nothing about Mr. Crombie's commitment to provide us with financial assistance, and he also made clear that he thought follow-up on this item should rather be the responsibility of Departmental officials. However, given the urgency of our financial plight, and especially our outstanding bank loan, Mr. Fulton agreed to check into the situation, which he then did, ultimately making an "interim report" to the Minister on July 12, 1985, recommending "a payment in advance of anticipated compensation sufficient to retire all outstanding Band debts, or at least adequate to cover the Band's bank loan."
A couple of weeks after making his "interim report" to the Minister, Mr. Fulton reported that his recommendation to provide a payment in advance of anticipated compensation had the support of Departmental officials, and the Minister, and that it was being processed for submission to Treasury Board and the Cabinet Committee on Social Services. Six weeks later, however, we learned that Mr. Fulton's recommendation still hadn't left the Department.
We checked to find out why Mr. Fulton's recommendation had yet to leave the Department and learned that Federal Justice Department lawyer Ivan Whitehall, the same Justice Department lawyer who'd intervened for the Federal Government on behalf of the Province during the caveat case, and who more recently had been providing Provincial Government and oil company lawyers with advice and assistance as to how to defeat our application for an emergency injunction, "got to the Minister". Mr. Whitehall, we were advised, opposed the Fulton Inquiry, took the position that we should "go to court" if we thought we had any rights, and argued that providing us with any money would only increase our ability "to cause trouble."
On Friday, December 6, 1985, Mr. Fulton delivered the first draft of his "Discussion Paper", which basically affirmed the existence of our rights, confirmed the nature of the circumstances to which we were being subjected, and outlined Mr. Fulton's considered proposals regarding the various settlement issues. Mr. Fulton's next step, mutually agreed by all three parties prior to commencement of his Inquiry, called for Mr. Fulton to review his "Discussion Paper" with each of the parties, hopefully in the context of meetings attended by all three parties, and then to prepare a final report with recommendations for the Minister.
Four days later, however, on Tuesday, December 10, 1985, Provincial Native Affairs Minister Milt Pahl called a "major press conference" to announce that the Alberta Government had "settled" Lubicon land rights with an offer to transfer less than a third of the reserve lands recommended by Mr. Fulton in his Discussion Paper -- an offer which Mr. Pahl claimed had been accepted by Mr. Crombie -- an offer which Mr. Crombie said that he'd rejected. Regarding Mr. Fulton, Mr. Pahl said:
"Mr. Fulton has done a good job in crystallizing the issues, but events have now gone beyond Fulton. From the Province's point of view Mr. Fulton's job is now done, his involvement over. The Province plans no further meetings with Mr. Fulton".
With Provincial officials refusing any further meetings with Mr. Fulton, the Fulton Inquiry was effectively over. On December 20, 1985, Federal Indian Affairs Deputy Minister Bruce Rawson told us that he'd already discussed "dropping" Mr. Fulton with Alberta Government officials. He said that it was now time "to move beyond Fulton to a negotiator with a full Cabinet mandate". He made clear that the new negotiator would be someone "other than Fulton".
We told Mr. Rawson that the Federal Government of course had the right to appoint whomever it pleased, but that we weren't prepared to start all over just because Mr. Fulton hadn't concluded that we had no rights. We told Mr. Rawson that we'd been working with Mr. Fulton for nearly a year and would expect that anyone who replaced Mr. Fulton would start where Mr. Fulton left off.
Mr. Rawson agreed that negotiations would start with Mr. Fulton's Discussion Paper. We learned later that Mr. Rawson made a similar agreement with Mr. Fulton.
In order to make the premature termination of the Fulton Inquiry more politically palatable, Federal officials also approved Mr. Fulton's recommendation to provide us the money needed to pay off some of our debts, primarily our bank loan. Since then Federal officials have implied all kinds of demonstrably untrue things about the intended purpose, actual use and accounting for this money, which was in fact expended exactly as we said it would be.
The new Federal negotiator was named Roger Tasse. Predictably Mr. Tasse's credentials and experience were quite different than Mr. Fulton's. While Mr. Fulton is a former Justice Minister and Judge with a reputation for independence and fairness, Mr. Tasse is a former Federal civil servant clearly accustomed to following whatever orders he's given without qualm or question, and who has a long-term and continuing relationship with the Canadian Security Service. (Mr. Tasse is the man to whom the old Canadian Security Service (SS) reported during the period when it was charged with all kinds of political dirty tricks, including the burning down of the offices of a rival political party in Quebec. Tasse then retired from the civil service and the old SS was replaced with the new Canadian Security and Intelligence Service (CSIS), after the old SS came under increasingly heavy criticism for having "a police mentality and being unable to distinguish between legitimate dissent and political subversion". When Tasse resigned as Lubicon negotiator after being charged with conflict of interest for supposedly negotiating with Mr. Rawson on behalf of some Indians while at the same time reporting to Mr. Rawson regarding negotiations with others, he was given another Security Services appointment by the Canadian Government -- this time to study the recommendations of a Security Intelligence Review Committee which had in the meantime taken a look at the operation of the new CSIS and concluded that it suffers from basically the same problems as the old SS).
Originally negotiations with Mr. Tasse were scheduled to commence on March 1, 1986, with the Provincial Government involved as an observer. However developments with both levels of Canadian Government caused those plans to be changed.
Two weeks before negotiations were scheduled to begin, the Provincial Government commenced a Province-wide propaganda campaign intended to subvert our aboriginal position in those negotiations. Provincial Native Affairs Minister Milt Pahl wrote letters to the editors of various newspapers around the Province falsely claiming that our aboriginal rights "were satisfied by treaty". Provincial officials took out paid political advertisements dressed up to look like public information notices claiming falsely that the Alberta Government has the right to determine whether or not "there is sufficient basis for an entitlement based on the facts presented". And, on February 26th, Mr. Rawson phoned and asked that the start of negotiations be put off until March 17th.
Having heard nothing from Mr. Rawson by March 19th, we phoned his office and asked what was happening. We were told that Mr. Rawson was planning to call "a protocol meeting" involving all three parties for March 24th.
We replied that Mr. Rawson's concern for "protocol" hadn't been much in evidence a couple of days earlier, when we were supposed to start negotiations and didn't even receive the courtesy of a phone call advising us of yet another delay. As for the involvement of the Provincial Government, we said, we weren't prepared to accept the involvement of a Provincial observer while Provincial Government officials were actively seeking to subvert the negotiations.
A short while later an indignant Mr. Rawson phoned Lubicon lawyer James O'Reilly and charged that we were breaking the agreement to allow a Provincial Government observer. Mr. O'Reilly told Mr. Rawson that agreement to allow a Provincial Government observer was based on the notion that involvement of the Provincial Government would facilitate negotiations between the Lubicons and the Federal Government. Current Provincial Government efforts to subvert those negotiations, Mr. O'Reilly said, made clear that Provincial Government involvement wouldn't be helpful.
After a number of phone calls back and forth between Mr. Rawson and Mr. O'Reilly, we agreed to a meeting in Ottawa on March 27th to discuss the Lubicon position on the involvement of a Provincial Government observer. The meeting was held in Ottawa because Mr. Rawson was too busy to meet us in Edmonton. However Mr. Rawson had to leave the meeting in Ottawa early in order to catch a plane for Edmonton, where he was to spend the Easter weekend with his family, who live in Edmonton.
During the meeting on March 27th Mr. Rawson again charged that we were breaking the agreement to allow the involvement of a Provincial Government observer. We pointed out to Mr. Rawson that Provincial officials were actively seeking to subvert negotiations with their public propaganda campaign.
Mr. Rawson said that the Province would have to agree to "a publicity moratorium" in order to attend negotiations as an "observer". We pointed out to Mr. Rawson that the Provincial Government had a similar "publicity moratorium" agreement with Mr. Fulton when Mr. Pahl called his December 10th press conference, and that they supposedly also had a similar "publicity moratorium" agreement with him when they started their current propaganda campaign.
Mr. Rawson said, "We're offering to sit down and negotiate with a Provincial observer". We told Mr. Rawson that we weren't prepared to give Provincial officials access to negotiations, in which technically they had no role to play, and which they were actively seeking to subvert.
Mr. Rawson told us that we had to either agree to the involvement of a Provincial observer "or go to the end of the line" as far as negotiations with the Federal Government were concerned. We told Mr. Rawson that we'd either be negotiating or we'd be doing something else. We assured him that we wouldn't simply be waiting for the Federal Government to solve the problems which it had created for us by not meeting its constitutional responsibilities.
Mr. Rawson said, "The meeting is a nullity" and walked out. One week later we announced our boycott of the 1988 Calgary Olympic Games, which ultimately included a nation-wide protest along the entire route of the Olympic Torch Relay -- sponsored by PetroCanada -- and museums from around the world refusing to loan artifacts to the main Olympic cultural event -- a Shell Oil sponsored exhibit of North American Indian artifacts.
Initial Canadian Government reaction to announcement of our Olympic boycott was one of amused disdain. Within two weeks, however, there were two major statements of support clearly indicating the seriousness our boycott. On April 12th aboriginal rights organizations from across Europe announced their support. And on April 13th Churches from across Canada and the United States announced their support.
On June 3, 1986, two weeks before we were to appear before the Parliamentary Standing Committee on Aboriginal Affairs and Northern Development to discuss lack of negotiations, a more conciliatory Mr. Rawson agreed that negotiations could proceed without the involvement of a Provincial Government observer. While suspicious about the timing of Mr. Rawson's change of mind, we still hoped that it would be possible to engage in productive negotiations with the Government of Canada. We therefore asked the Standing Committee to postpone our scheduled appearance until we had a chance to meet with Mr. Tasse.
During our first negotiating meeting with Mr. Tasse on June 20th we made clear that we weren't prepared to retain less reserve land than other aboriginal people who signed treaty, as determined by the same criteria. Given historic precedent, we said, we were talking about more than 90 square miles of reserve land.
Mr. Tasse refused to agree with our position, saying that "The Government has the right to change the basis for determining land quantum". He said that he was prepared to talk about "some amount in excess of 25.4 square miles (set aside in 1939), but the amount of additional land will have to be discussed".
We pointed out to Mr. Tasse that we weren't dickering over the price of a used car. We told him that we were talking about basic principles of justice, fairness and equity which should guide our negotiations. We reminded him that the 25.4 square mile area was recognized to be only a partial settlement even in 1939. And we told him that Government unilaterally changing the rules at this stage couldn't possibly be considered fair, just or equitable.
Mr. Tasse said that he didn't want to talk about what was just, fair or equitable. If we wanted to talk about justice, fairness and equity, he said, "go to court".
Mr. Tasse said that he rather wanted to talk about what was "practical". He said "The Province will never agree to 90 square miles and the Band will have to go to court". "If these negotiations fail," he said, "the Band will be in court for ten years".
We told Mr. Tasse that the negotiations would certainly fail if we couldn't at least agree that the negotiations should be guided by the principles of justice, fairness and equity. As for Mr. Tasse's statement that our only alternative was to spend the next ten years in court, we told him what we told Mr. Rawson when Mr. Rawson told us to either knuckle under or "go to the end of the line". We told Mr. Tasse that we'd either be negotiating or we'd be doing something else. And we assured him that we wouldn't simply be relying upon the Canadian courts to ensure our survival.
A couple of days later we were advised by one of Mr. Tasse's associates that Mr. Tasse didn't want to commit himself to the principle of equity during our meeting on June 20th "because he just didn't know the implications of such an agreement". We were also told that Mr. Tasse "knows that he will have to address the question of equity at the next meeting".
The next meeting with Roger Tasse occurred in our traditional community of Little Buffalo Lake on July 8th. At that meeting Mr. Tasse tabled a written settlement offer from the Federal Government which said that the Federal Government was only willing to talk to those Lubicon people recognized as Indians by the Federal Government prior to the passage of C-31 revisions to the Indian Act, or, in other words, the basic list established by the Federal Government following the 1942 McCrimmon removals, plus the direct, legitimate descendants of the people on that list. Regarding this partial list of our members, Mr. Tasse said that the Government was prepared to agree to the same amount of land per person as was retained by the aboriginal people who signed treaty. "In that sense," Mr. Tasse said, "the Band is being treated the same as other Bands."
We told Mr. Tasse that he had a perverse sense of what was fair, just and equitable. We pointed out that his position on membership would effectively disenfranchise more that half of our people of their aboriginal land rights. We pointed out that the aboriginal peoples who'd signed treaty had determined their own membership, using their own historic criteria -- not had their membership determined by Federal bureaucrats using arbitrary and ever-changing criteria which literally split up families and tore aboriginal societies apart. We told him that he was proposing to apply the old Indian Act to us retroactively, after the Federal Government had been forced by international pressure to change that Act as completely unjust, unfair and discriminatory. And we told him that he was in breach of our pre-negotiation agreement that Mr. Fulton's Discussion Paper would be used as the starting point for negotiations, since Mr. Fulton had recommended that C-31 be used as the policy of the day to determine membership.
In spite of constitutional recognition of the aboriginal rights of all aboriginal people, Mr. Tasse said, "The Federal Government is not prepared to accept that non-status and Metis people have any aboriginal rights". He said, "A different approach to different groups is the way around this". He said, "We are prepared to identify an amount of land that could be transferred based on the status people". Regarding the people not on the Federal Government's "status list", he said, "we will not ask them for a release as to any rights they might have". He said, "If they can go to court and prove that they have any rights, then we might be able to provide more land for them".
We told Mr. Tasse that the Lubicon people are all aboriginal people related by family ties and historic ties to our traditional area. We told him that there was nothing more fundamental to us than the fact that we are one people, and that we weren't prepared to let the Federal Government split us up into arbitrary, artificial, Governmentally determined groups with different rights and responsibilities. Therefore, we told him, we'd welcome him back to our community for further negotiations if and when he had a proper mandate to deal with us as a people.
Mr. Tasse spent the next few minutes going from person to person asking them if they knew what they were "giving up for these non- status people". He approached one man who's a member of our negotiating team and asked him if he knew what he was "giving up". The man told Mr. Tasse, "You jackass, don't you realize that I'm one of the non-status people you're talking about?"
Following our brief exchange Mr. Tasse returned to Edmonton, called a press conference and commenced what was clearly a pre-planned propaganda campaign designed to paint our position on land and membership as both unreasonable and unrealistic. He charged that we were trying to use recent C-31 revisions to the Indian Act "to jack-up (our) membership numbers and obtain more land than (we're) entitled to." He said, "The Band, in its wisdom, had decided that it would allow a lot of non-Indians...to be Band members" and that we were now demanding that "Government should give them land as well". He said that C-31 allows for the addition of new members, including "non-Indians", but that it "does not create any land entitlement". And he said that our position on membership had caused negotiations to break-down, because, he said, "the Federal Government is in no position to negotiate a land settlement based on a head count of non-Indians".
In fact, of course, our position on land and membership pre-dates C-31, in no way depends upon C-31, has remained unchanged over the years and is consistent with the way land and membership has historically been determined in Canada. Our people are all aboriginal people linked by family ties and historic ties to our traditional area, whether or not the Federal Government considers all of us to be "Indians" -- by whatever criteria Federal officials happen to be using at the moment. Moreover it's not the Lubicon people but Canadian Government which is seeking to take land that rightfully belongs to somebody else. It's not the Lubicon people but Canadian Government which is trying to manipulate membership numbers in order to effect reserve land size. And it's not the Lubicon people who caused negotiations to break-down by adding so-called "non-Indians" to our membership list, but the Canadian Government who caused negotiations to break-down with a position on membership which would literally require parents to disenfranchise their own children merely to be able to talk to representatives of Canadian Government about settlement of our unextinguished aboriginal land rights.
Ordinarily one would expect a negotiator to be negotiating, trying to negotiate or at least not doing things which would adversely affect his ability to negotiate. After July 8th, however, Mr. Tasse showed little interest in talking to us about negotiations or anything else, and rather spent the next year, until he was forced to resign over conflict of interest charges, trying to sell the Government's artfully conceived propaganda line on our situation. The way he handled this propaganda campaign provides insight into the true nature of the job he been hired by the Federal Government to do.
On October 20th, for example, Mr. Tasse met with an interchurch coalition called Project North to discuss our situation. The report we received from Project North regarding that meeting was typical of reports we received from others meeting with Mr. Tasse.
Despite independent confirmation from a number of qualified observers, Mr. Tasse denied that our traditional economy and way of life was being destroyed by development activity. He claimed that the moose hadn't disappeared from our traditional area because of development activity at all, but rather because we'd killed off all the game. He claimed that massive development activity was actually good for the moose population because, he said, it cleared away old vegetation and allowed for new growth. And he claimed that the miles and miles of new development roads made hunting and trapping easier for us, by providing access to otherwise remote and inaccessible areas.
Regarding charges of
Regarding the break-down in negotiations, Mr. Tasse repeated charges that we'd "added new members to (our) Band list under C-31 to try and obtain more land than (we're) entitled to". Moreover he claimed that we'd "adhered to Treaty 8 and therefore only had an outstanding land entitlement under Treaty 8, not unextinguished aboriginal land rights". He described the Government's position that we've adhered to Treaty 8 as "not negotiable". (Adhering to treaty is a formal process not unlike the signing of treaty, involving the signing of an actual adhesion document. We never signed any such adhesion document, as both levels of Government well know. In fact the signing of an adhesion document is one of the things which both levels of Canadian Government have since indicated that they will require as part of any settlement agreement.)
Regarding the re-commencement of negotiations, Mr. Tasse repeated that we could never win legal recognition of our land rights in court, because, he said, "a legal determination would take too long". Contradicting his earlier comment that the very nature of our land rights was "not negotiable", he said that the Federal Government's position on the issues is flexible, and that the Federal Government is prepared to enter into negotiations at any time, but that the Lubicon people were refusing to negotiate. He charged that we were "more interested in European travel than negotiating", referring to our work with European Support Groups.
Lastly Mr. Tasse told the representatives of Project North that "for some reason the Lubicon people are after (his) blood, even though (he's) only trying to do (his) job and what's best for the Band".
Fortunately Mr. Tasse looks like what he is and so few people believed him. Our only other contact with him after the meeting in Little Buffalo on July 8th was in the form of an exchange of letters occurring at the end of July, 1986.
On July 21st Mr. Tasse wrote us a letter, obviously for the record, which concluded:
"I would like to reiterate that my offer remains on the table for discussion. I would be pleased to know if any of the elements of the proposal are within the realm of what you hope to achieve and whether talks could resume on that basis. Alternatively, I would be pleased to consider, as a basis for discussion, a detailed proposal from you which sets out your aims."
We responded to Tasse's July 21st letter on July 25th with a letter he never bothered to acknowledge. Our letter concluded:
"You say that you would be pleased to consider, as a basis for discussion, a detailed proposal from us. You already have it, in the form of Mr. Fulton's revised Discussion Paper, which you've repeatedly said was your starting point anyway. Start with Mr. Fulton's revised Discussion Paper and we're prepared to talk. But don't expect us to agree to negotiations based on terms which would, by definition, deny us our rights before we even begin".
Contacted by the press following the July 8th meeting, Mr. Fulton expressed "disappointment" over the break-down in negotiations. He also expressed "surprise" that his Discussion Paper wasn't being used as the starting point for negotiations, because, he said, he'd been told by Federal officials that it would be.
In January of 1986 Mr. Rawson had asked Mr. Fulton to include a recommendation in his final report to the Minister that there be a Provincial Government "observer" at bi-lateral negotiations between the Federal Government and the Lubicon people. Mr. Fulton told reporters that he'd instead recommended no Provincial Government involvement until agreement had been achieved between the Lubicon people and the Federal Government. Should negotiations between the Federal Government and the Lubicon people break-down, Mr. Fulton said, he'd recommended "a direct reference to the Supreme Court on the question do the Lubicon people retain continuing native title". He explained that a direct reference to the Supreme Court would circumvent years of procedural and other delays which would be unavoidable following the normal route. If the highest court in the land ruled that we never ceded our aboriginal land rights, Mr. Fulton said, "the claim would be settled and the Band would be entitled to enormous compensation".
Provincial Attorney General Jim Horsman, whose Government had of course for years used every imaginable legal and political tactic to delay, frustrate and forestall settlement of our aboriginal land rights -- including overt subversion of Mr. Fulton's efforts to seek a negotiated settlement -- reacted to Mr. Fulton's direct reference recommendation by saying, incredibly, that a direct reference would take too long to achieve settlement. He said:
"It (the direct reference) would drag on and on and on, and we would like to see it resolved much more quickly".
Federal negotiator Tasse, who'd earlier argued that we had no choice but to negotiate a settlement since a judicial determination would take too long, responded to Mr. Fulton's direct reference recommendation by making clear that the Federal Government would make a direct reference technically impossible, by denying and/or refusing to admit the basic facts of our situation, such as whether or not we constitute a separate and distinct aboriginal society. He said:
"The Lubicon case will not lend itself to a reference to the Supreme Court because there are still too many facts in dispute".
On November 17, 1986, we received a letter from the newly appointed Federal Minister of Indian Affairs Bill McKnight urging us "to return to the negotiating table to further explore the (Tasse) offer". We responded the same day with a letter indicating that we were ready to proceed with negotiations any time that the Federal Government was prepared to honour the pre-negotiation agreement to use the Fulton Discussion Paper as the starting point for negotiations.
Our June 19th appearance before the Parliamentary Standing Committee on Aboriginal Affairs, which had been postponed when Mr. Rawson agreed to negotiations without Provincial Government involvement, had been re-scheduled for February 11, 1987. The purpose of our February 11th appearance was to discuss the break-down in negotiations. Mr. Fulton had also been asked by the Committee to appear and had agreed to do so.
On February 9th, two days before the scheduled Standing Committee meeting, Lubicon lawyer O'Reilly received a hand-delivered letter from Mr. McKnight. The letter claimed that the Federal Government was honouring the agreement to use the Fulton Discussion Paper as the starting point for negotiations but that there was more than one way to interpret the Fulton Discussion Paper. The letter therefore proposed a meeting between the Lubicon people and Mr. Tasse to talk about different possible interpretations of the Fulton Discussion Paper.
Rather than again postpone our scheduled appearance before the Standing Committee while we tried to assess Federal Government intentions, as we'd done when Mr. Rawson contacted us immediately before our last scheduled Standing Committee appearance, we decided to use our Committee appearance to issue Mr. McKnight a public challenge. We therefore up-dated the Committee on developments since the premature termination of the Fulton Inquiry and then made the following public proposal to Mr. McKnight:
Asked by the Committee for his views, Mr. Fulton offered that he thought the term "mediator" was better than "arbitrator". Otherwise, he said, he was prepared to support the Lubicon proposal and work in the way suggested.
On May 5th, two days before we were scheduled to participate in a conference of European Support Groups to discuss the Lubicon situation, we received a hand-delivered letter from Mr. McKnight supposedly responding to our February 12th proposals. By this point the timing and intent of Federal Government moves had gone beyond being suspicious to being obvious. The only time we heard from the Canadian Government was immediately before some major public occasion when they were trying to deflect or defuse our efforts to respond to their steady barrage of deceitful propaganda.
Mr. Rawson, for example, walked out of the meeting on Provincial Government involvement on March 27th and nothing further happened until July 3rd -- over two months later but only two weeks before we were scheduled to appear before the Parliamentary Standing Committee to discuss lack of negotiations. We wrote Mr. Tasse on July 25th regarding our position on use of the Fulton Discussion Paper as the starting point for negotiations and heard nothing back until February 9 -- nearly 7 months later but only two days before we were again to appear before the Parliamentary Standing Committee to discuss the break-down in negotiations. We tabled our proposal regarding the reinvolvement of Mr. Fulton before the Standing Committee on February 11th and received no response until May 5th -- nearly three months later but only two days before we were scheduled to discuss the Lubicon situation at a conference of European Support Groups.
Mr. McKnight's May 5th letter indicated that he had "some flexibility on the initial (membership) proposal tabled (by Tasse) last July", but he rejected our proposals to re-involve Mr. Fulton and publicly release the Fulton Discussion Paper. His stated reason for rejecting the re-involvement of Mr. Fulton contradicted earlier Federal Government insistence on involving the Provincial Government in negotiations, and his stated reason for not publicly releasing the Fulton Discussion Paper was immediately contradicted by officials of the Provincial Government.
Regarding his refusal to re-involve Mr. Fulton, Mr. McKnight said:
"The Lubicon Lake Band's land claim is a matter which must be addressed between us and, if sufficient agreement can be secured, subsequently with the Province of Alberta. As a result, I am not prepared to entertain any third parties at the negotiating table".
Regarding his refusal to publicly release the Fulton Discussion Paper, Mr. McKnight said:
"...the Province of Alberta has advised my department of its understanding that its submissions to Mr. Fulton were made on a confidential and without prejudice basis and that, as a result, Mr. Fulton's paper would not be released without the prior consent of your Band, Canada, and the Province. The Province has also explicitly refused my department's request for its consent to release the paper. Consequently, I regret that I am not prepared to release the paper."
Asked by reporters about Provincial Government refusal to release the Fulton Discussion Paper, Provincial Native Affairs Minister Milt Pahl told reporters "the document was commissioned by the Federal Government, it's Federal Government property and it's up to the Federal Government to release it".
We wrote back to Mr. McKnight on May 18th expressing interest in further discussions on the membership question, pointing out we were not proposing that Mr. Fulton be a "third party" to the negotiations but rather a mediator, advising Mr. McKnight of statements by Provincial officials that it was up to the Federal Government to either release or not release the Fulton Discussion Paper, and therefore asking Mr. McKnight to reconsider his position regarding Mr. Fulton's re-involvement and public release of the Fulton Discussion Paper.
Tasse's resignation over conflict of interest charges was publicly confirmed by Federal officials on July 8, 1987. A month later, on August 6th, we received a letter from Mr. McKnight acknowledging our letter of May 18th, indicating that he was "encouraged" by our willingness to discuss the membership question, formally advising us of Mr. Tasse's resignation, ignoring our request that he reconsider Mr. Fulton's re-involvement, ignoring our request that he reconsider public release of the Fulton Discussion Paper, and informing us that "Mr. Tasse's decision (to resign) will lead to a delay in renewing negotiations while a replacement negotiator is sought".
We responded to Mr. McKnight's August 6th letter the same day, reiterating our willingness to hear what he had to say on the question of membership, but also reminding him of our earlier proposal to re-involve Mr. Fulton and publicly release the Fulton Discussion Paper.
On the same day that we were acknowledging his letter telling us that the Federal Government wouldn't be able to resume negotiations until a new Lubicon negotiator had been appointed, Mr. McKnight was in Calgary telling reporters that we were refusing to negotiate. He said:
"Ottawa has offered to sit down with the Alberta Band and negotiate a settlement but until the Band agrees, there's nothing the Federal Government can do... You can't force a people to negotiate."
On August 26, 1987, Provincial Government officials confirmed that nearly a third of our people were suffering from tuberculosis, compared to only one out of 100,000 Canadians. Provincial medical personnel acknowledged that a tuberculosis epidemic of this magnitude was likely caused by low resistance to infectious disease related to destruction of our traditional economy and way of life.
The next day, facing renewed charges of
"In regard to your requests for a third party at the negotiating table and for the public release of the Revised Discussion Paper prepared by Mr. Fulton, I must reiterate the position I outlined to you in my letter of May 1, 1987. You will recall at that time I firmly stated my belief that this issue must be addressed, in the first instance, between ourselves through the previously agreed upon bilateral framework which has seen the successful resolution of other land claims. At that time I also stated that I was not prepared to unilaterally breach the confidentiality and privilege the Province of Alberta attaches to Mr. Fulton's paper..."
On October 5, 1987 Mr. McKnight announced the appointment of a Calgary lawyer named Brian Malone as the new Lubicon negotiator. Asked about the Lubicon proposal that Mr. Fulton be reinvolved as an independent mediator responsible to the Parliamentary Standing Committee, Mr. McKnight said, "Fulton's too busy".
Contacted by reporters about Mr. McKnight's remark that he was "too busy", Mr. Fulton reconfirmed his continuing commitment "to do anything to help, whether as negotiator, arbitrator or mediator". Moreover, Mr. Fulton said, he'd recently written Mr. McKnight reconfirming his continuing commitment and availability.
Contacted by reporters about his new appointment as Lubicon negotiator, Mr. Malone announced that one of his first moves would be to get "in touch with the Province", since, according to Mr. Malone, "it's Provincial land that the Band is claiming".
On October 10, 1987, Mr. Malone met with Lubicon lawyer O'Reilly. Mr. O'Reilly told Mr. Malone that Mr. McKnight had begged the question of Mr. Fulton's reinvolvement with the position that there were different ways to interpret the Fulton Discussion Paper, and that Mr. McKnight's stated reasons for not reinvolving Mr. Fulton simply weren't tenable. As for Mr. Malone's public statement that "it's Provincial land that the Band is claiming", Mr. O'Reilly told Mr. Malone that the Lubicon people rejected Provincial Government claims to unceded Lubicon land.
Mr. Malone apologized for his depiction of Lubicon land as belonging to the Provincial Government, agreeing that he shouldn't have taken a position on an arguable legal issue. He admitted that he wasn't familiar with the intricacies of Indian law nor the constitutional aspects of the land transfer agreement. Regarding Lubicon proposals to reinvolve Mr. Fulton and publicly release the Fulton Discussion Paper, Mr. Malone said that he'd consult with Mr. Fulton and get back to Mr. O'Reilly.
On October 22nd Mr. Malone phoned Mr. O'Reilly and told Mr. O'Reilly that he had a growing appreciation of the complexities of the situation. He said that he wanted to study the issues and consult the parties before deciding on an approach. He said that he'd already met with Mr. McKnight and Mr. Tasse. He said that he had a meeting scheduled with Mr. Fulton for October 27th and Provincial officials for October 29th. He asked to meet with Mr. O'Reilly again on November 2nd. He promised Mr. O'Reilly that he wouldn't make any decisions about how to proceed until after he'd spoken to Mr. Fulton and met with Mr. O'Reilly on November 2nd.
On October 26th, prior to speaking with Mr. Fulton and getting back to Mr. O'Reilly, Mr. Malone announced that he'd decided "to invite Fulton to sit in on negotiations as a conciliator and chairman" -- but reporting to no one. Regarding earlier agreement to use the Fulton Discussion Paper as the starting point for negotiations, Mr. Malone denied that he was "required" to use Mr. Fulton's "suggestions" as the starting point. He said that Mr. Fulton's "suggestions" were only "guidelines" and "not binding".
Mr. Malone also announced, contrary to Mr. McKnight's supposedly firm refusal "to entertain any third parties at the negotiating table", that he'd "decided to invite the Provincial Government to join the negotiations as an equal". He said that "Provincial Government involvement is necessary because", according to Mr. Malone, "the Provincial Government is responsible for wildlife management, environmental protection and the land where the Lubicons want a reserve". "If the Lubicons are serious about wanting the deal", Mr. Malone said, "then stop the nonsense -- let the Province come".
Thus in one stroke Mr. Malone broke his agreement with Mr. O'Reilly to talk to Mr. Fulton and get back to Mr. O'Reilly before deciding how to proceed, proposed to emasculate Mr. Fulton's role in negotiations, reneged on the agreement made at the time the Fulton Inquiry was prematurely terminated to use the Fulton Discussion Paper as the starting point for negotiations, and gave the Provincial Government an effective veto, based in neither law nor history, over the Federal Government's ability to negotiate a settlement of our aboriginal land rights.
Two days later, on October 28th, Provincial Attorney General Jim Horsman issued a press statement announcing the appointment of a Provincial Lubicon negotiator and calling for the public release of the Fulton Discussion Paper. A spokesman for Mr. Horsman told reporters that the Province was prepared to accept the membership list agreed upon between the Federal Government and the Lubicon people and transfer land on that basis. The spokesman also said that the Province was prepared to join the negotiations or negotiate with Ottawa after agreement had been reached between the Lubicons and the Federal Government.
The Provincial statement generated some very optimistic news coverage predicting early settlement, since it appeared that the Province no longer intended to block settlement, but was rather prepared to meet its obligations under the land transfer agreement in the way such obligations had always been met in the past; namely, by simply transferring back to Federal jurisdiction the land which the Federal Government required to settle aboriginal land rights. This positive press coverage was then circulated widely among museums supporting our Olympic boycott, urging them to reconsider, since settlement was supposedly imminent. Based on this positive press coverage some European museums in fact reconsidered their support for our boycott and agreed to loan artifacts.
The next day, October 29th, Mr. Horsman told reporters that his spokesman had been misquoted. He denied that the Provincial Government was willing to transfer the amount of land agreed between the Federal Government and the Lubicon people. He said:
"We still must be convinced the proper numbers of members of the band are accounted for before we turn over the land as required under (the land transfer agreement)".
Regarding proposed release of the Fulton Discussion Paper, the Provincial spokesman said:
"It's out there anyway, so we might as well release it".
The corrected Provincial Government position was then of course also reported in the press, making clear that settlement was not so imminent after all. This less optimistic news coverage was not shared with the European museums, however, although it was available at the time the more optimistic press coverage was being used to support the argument that artifacts should be loaned because settlement was supposedly imminent.
On November 2nd Mr. O'Reilly told Mr. Malone that Mr. Malone's proposal to reinvolve Mr. Fulton as a conciliator and chairman responsible to no one wasn't acceptable. He told Mr. Malone that the Federal Government should either agree to the reinvolvement of Mr. Fulton as a mediator responsible to the Standing Committee or be prepared to spell out publicly their reasons for not doing so. He pointed out Mr. Fulton's excellent credentials and unmatched experience. He pointed out that Mr. Fulton had been appointed by the Federal Government to conduct an inquiry into the Lubicon situation and had spent nearly a full year conducting that inquiry. He pointed out that the Standing Committee was an official Parliamentary Committee charged with oversight of aboriginal affairs in Canada. He asked Mr. Malone what Mr. Malone was afraid of.
Mr. Malone told Mr. O'Reilly that he had questions about Mr. Fulton's objectivity and didn't see any reason why there should be a report to the Standing Committee. He said that Mr. Fulton "looking over everybody's shoulder" might make the Band look good but would constrain negotiations and wouldn't necessarily lead to concessions and a negotiated settlement. If negotiations break-down after a very short period, Mr. Malone said, the Band will be criticizing both levels of Canadian Government anyway, and he didn't see the "usefulness" of a report to the Standing Committee or even why the Band would "need" Mr. Fulton to criticize the Government. He said that the Band had demonstrated ability to effectively criticize Canadian Government without any help from Mr. Fulton. He also expressed concern that we'd send a copy of any report filed with the Standing Committee to the UN Human Rights Committee.
Mr. O'Reilly told Mr. Malone that there was no reason for concern if the Federal Government was sincere about negotiations. If negotiations weren't successful, Mr. O'Reilly said, a report to the Standing Committee would simply ensure that the public had a credible, independent assessment of the reasons for the break-down, rather than just conflicting versions from each side regarding what went wrong.
Mr. Malone concluded the discussion by telling Mr. O'Reilly that he'd have to talk to his "principals" about the possible reinvolvement of Mr. Fulton. Given the Lubicon position on reinvolvement of Mr. Fulton, he said, he'd also have to obtain a decision from Mr. McKnight as to whether or not Mr. McKnight wished him to continue trying to get negotiations going.
On December 9, 1987, Mr. Malone told reporters that the Federal and Provincial Governments were negotiating a settlement of Lubicon land rights without involving the Lubicon people. He said that he'd been negotiating with Provincial Lubicon negotiator John McCarthy for 5 weeks and that things were going "swimmingly".
Mr. Malone said Mr. McKnight and Mr. Horsman would be meeting the following week in Ottawa and that he expected them to agree on the size of the Lubicon reserve. He said, "We'll announce what the agreement is before Christmas and then (the Lubicons) will have to decide what to do".
Mr. Malone said that Treaty 8 gave the Minister the power to appoint someone to determine and establish the reserve. He said that Mr. McKnight had appointed him and that he therefore had the power. He said, "The Band has realized that I can make a deal with the Province and they (the Lubicons) are going to be left holding the bag".
One reporter pointed out to Mr. Malone that we hadn't signed Treaty 8 and that Treaty 8 specifically said that reserve lands are determined and established only "after consulting with the Indians concerned..."
Mr. Malone replied that he had "consulted" with the Lubicon Indians. He said "I talked with O'Reilly twice".
Mr. Malone admitted that Mr. O'Reilly had refused to discuss reserve lands until the question of Mr. Fulton's reinvolvement had been settled. However, he said, he knew generally what lands were involved, since the Lubicon people had indicated publicly that they intended to retain the lands set aside in 1939, plus they'd talked generally to Mr. Fulton about what other lands would be involved. "That selection by the Band", he said, "will be taken into account in my negotiations with the Province of Alberta..."
Regarding the complete lack of any negotiations with the Lubicon people, Mr. Malone said, "I talked to people involved who were prepared to talk to me". He claimed that he'd been forced to proceed in this way, because, he said, "the Lubicon people have built a wall around themselves".
The wall which we'd built around ourselves, according to Mr. Malone, was our demand that Mr. Fulton be reinvolved as an independent mediator responsible to the Parliamentary Standing Committee on Aboriginal Affairs. By making that demand, Mr. Malone said, "They've put me in an impossible situation".
"It's not Mr. Fulton being involved", Mr. Malone said, "it's Mr. Fulton reporting to the Standing Committee that's the killer". He claimed to have a legal opinion that a report to the Standing Committee would have the effect of waiving normal "without prejudice" protection. "Without prejudice" simply means that offers and proposals made in the context of negotiations can't be used to support allegations of liability in court.
The argument that Mr. Fulton reporting to the Standing Committee would have the effect the effect of waiving normal "without prejudice" protection is of course nonsense. There's no reason why a report to the Standing Committee on "without prejudice" negotiations would in any way jeopardize the "without prejudice" nature of such negotiations. Rather what Mr. Malone was doing was responding to Mr. O'Reilly's challenge to publicly spell out some supposedly credible reason why Mr. Fulton shouldn't be involved as an independent mediator responsible to the Standing Committee. He chose a so-called "legal" reason both to bamboozle people not familiar with the legal concept involved, and because legal opinions on such matters can almost always be argued endlessly.
On December 17, 1987, after due consideration and in light of the continuing debate over the Lubicon proposal to reinvolve Mr. Fulton as an independent mediator responsible to the Parliamentary Standing Committee on Aboriginal Affairs, members of the Standing Committee, representing all three major political parties in Canada, voted unanimously to have Mr. Fulton "report to the Committee on matters affecting the land rights, negotiations, and the conduct of such negotiations regarding the Lubicon Lake Band".
Mr. Malone responded to the Committee decision by telling reporters that "The Standing Committee decision on reinvolving Mr. Fulton makes no difference". He said that neither level of Canadian Government were willing to give Mr. Fulton public reporting power, because, he said, that would mean that anything the Governments said in negotiations could be used against them in court. He said that he intended to keep talking to the Province without the involvement of either Mr. Fulton or the Lubicon people and expected to be announcing a settlement offer shortly. If the Lubicon people refused to accept the offer, he said, he'd recommend that the whole matter be referred back to the Provincial Courts for a court imposed settlement under our old friend Judge Moore.
Mr. McKnight publicly supported the position taken by Mr. Malone and refused to consider Mr. Fulton's reinvolvement, because, he said, "Mr. Fulton has already outlined his point of view in his Discussion Paper". "If the Lubicons do not wish to negotiate", Mr. McKnight said, "then I am sure that the only alternative is to have no settlement or to have a settlement imposed by the court".
Asked by reporters for his view of Government rejection of the Standing Committee decision, Mr. Fulton denied that he lacked "objectivity" or had become "a Lubicon advocate or champion". He said that the only thing he was advocating was a fair and just settlement of an acknowledged long-term injustice.
Mr. Fulton said he couldn't understand Mr. Malone's argument that his reporting to the Committee would waive normal "without prejudice" protection. As a former Federal Justice Minister, former BC Supreme Court Judge and prominent Canadian jurist Mr. Fulton said, "I don't think their grounds for rejection carry much weight". If there were any justification for the Government's position, he said, their concerns should have been alleviated by an offer he'd made to report to the Committee in-camera. However, he said, Mr. Malone had also rejected his offer to report to the Committee in-camera.
If Mr. Malone thought he could announce a settlement of Lubicon land rights without talking to us and then see what we were going to do about it, we decided that we could announce a settlement of our aboriginal land rights without talking to the Government of Canada and then see what Mr. Malone was going to do about that. On December 21, 1987, therefore, we publicly announced the terms of our settlement offer, including no less reserve land than was retained by the aboriginal people in the surrounding area who signed treaty; sub-surface rights to reserve lands like all other reserves in Alberta; wildlife management and environmental protection rights over our entire remaining traditional area similar to those typically sought by aboriginal people negotiating settlement of aboriginal land rights; establishment of a trapper's support program for those Lubicon people wishing to continue trapping as a way of life but who are no longer able to make a living at it because of the effects of gas and oil development activity; the right of first refusal regarding jobs and contracts resulting from development of our traditional lands; housing and community facilities comparable to other northern communities; development of reserve lands for agricultural purposes; the right of self-government; on-going programs and services like other recognized Indians in Canada; compensation for the extensive destruction and exploitation of traditional Lubicon lands, and reimbursement for costs incurred in our struggle to achieve recognition and settlement of our aboriginal land rights.
In January of 1988 we started receiving copies of a "background paper" on the Lubicon situation being distributed in Canada by the Canadian Government and abroad by Canadian Embassies. The document was clearly an effort to counter growing international concern over our plight, especially in light of the up-coming Calgary Winter Olympics and our Olympic boycott. It was also yet another dramatic illustration of how little respect the Canadian Government has for the truth.
The so-called "background paper" said, for example, that "After the signing of Treaty 8 (in 1899), some Indian Bands chose to remain nomadic and delay their acceptance of reserve land to later dates, as in the case of the indigenous population in and around Lubicon Lake". In fact it's an indisputable fact of history that Treaty 8 Commissioners never entered our traditional territory, and that we never signed Treaty 8 nor any other treaty with the Canadian Government.
It said "in 1940 the Government of Canada agreed in principle to the request for reserve lands in respect of the 127 Indians living at Lubicon Lake...(and that)...this territory was to have become a reserve in accordance with the provisions of Treaty 8...(but)... because the transfer of land (from Provincial to Federal jurisdiction) did not occur...the reserve was not established, and in the 1950s the land ceased to be set aside for the purposes of the Band". In fact the 127 people who met with Government officials in 1930-40 were known at the time to be only a delegation of the total Lubicon population, the transfer of land didn't occur because the Federal Government failed to conduct the required land survey, and the reason why reserve lands weren't recognized in the 1950s is that Federal Government officials simply decided that it would be "administratively inconvenient" for a reserve to be located in an area they considered to be too isolated and inaccessible.
It said that charges of
It said that negotiations between the Government of Canada and the Lubicon people were "interrupted" by the Lubicon people in 1986, that the Government of Canada made "repeated offers to return to the negotiating table", and that the "Canadian proposal conveyed to the Band at the time of the break-down in negotiations includes a variety of provisions of potential long-term benefit to the Band". In fact the Federal Government caused negotiations to break-down with a proposal which would have required us to agree to the disenfranchisement of more than half of our people before negotiations even began, and we responded to this so-called Federal "proposal" with a counter proposal which the Federal negotiator never even bothered to acknowledge.
It said instead of agreeing to engage in productive negotiations, "The Band has devoted much of the past four years to a variety of national and international public relations activities designed to call attention to its grievances, and...(to)...legal actions..." In fact we'd spent the previous 50 years seeking recognition of our aboriginal land rights through normal Canadian political channels, and only started seeking redress outside of normal Canadian legal and political channels after it became unavoidably clear that there was no redress possible through normal Canadian legal and political channels. In this regard it should be pointed out that representatives of 18 independent countries sitting on the Human Rights Committee of the United Nations, after studying our situation for three years, agreed that we had no hope of effective redress through normal Canadian legal and political channels.
It said that we'd "called for a boycott of the 1988 Calgary Winter Olympics and a related cultural exhibition at the Glenbow Museum...(even though)...there is no inherent linkage between the Band's grievances and these two events". In fact the people behind both the Calgary Winter Olympics and the Glenbow exhibit were demonstrably the same as those seeking to wipe us off the face of the earth so that they could steal our lands and resources.
On January 18, 1988, and with the Calgary Winter Olympics only a month away, Federal negotiator Malone hand-delivered a letter from Mr. McKnight. The letter advised us that the Federal and Provincial Governments had failed to agree on a settlement of Lubicon land rights, and it threatened to call an inquiry under the Federal Inquiries Act to determine Lubicon membership unless we agreed by January 29th to provide the Provincial Government with Lubicon genealogical information, and also to allow full Provincial Government participation in Lubicon land negotiations.
We responded to Mr. McKnight's January 18th letter on January 21st. We reminded him that negotiation of aboriginal land rights in Canada is a matter of exclusive Federal Government responsibility under the Canadian Constitution. We charged that his insistence on giving the Alberta Provincial Government an effective veto over settlement of our aboriginal land rights was a transparent attempt on his part to blur responsibility for lack of settlement. We pointed out that the membership question had already been reviewed in detail with Federal officials and submitted that an "inquiry" on the matter would only be a redundant waste of time designed to shift the focus of the debate from the relatively clear question of whether or not the Federal Government has exclusive constitutional responsibility for settling aboriginal land rights in Canada, to an endlessly complicated series of questions about hundreds of individual genealogies and all of the possible criteria which might conceivably be used to assess the significance of different historical facts and various genealogical relationships. We reiterated our proposal to commence bilateral negotiations between the Federal Government and the Lubicon people with Mr. Fulton as an independent mediator responsible to the Parliamentary Standing Committee on Aboriginal Affairs. And we warned that the only kind of settlement agreement which would be acceptable and workable would be one which took into account the way that aboriginal land rights have been traditionally negotiated in Canada.
Mr. McKnight again rejected reinvolvement of Mr. Fulton, because, he said, "Fulton presented a Discussion Paper in which he expressed personal opinions and therefore cannot be considered independent". He addition, he said, he had legal advice that "the reporting mechanism cannot be done without prejudice to the court".
Regarding next steps, Mr. McKnight said, "Canada has two choices". He said "We can either negotiate or we can settle through a third party". "If the Band agrees by January 29th to release Lubicon genealogical information to the Province and allows full Provincial Government participation in negotiations", he said, "we'll make a commitment not to settle out of court with Alberta".
We told Mr. McKnight that our rapidly worsening situation on the ground left us with only two choices as well -- serious negotiations or enforcement of our jurisdiction on the ground. We told him that our proposal to reinvolve Mr. Fulton was an effort on our part to insure negotiations were serious and not merely another Federal Government tactic to buy time and defuse criticism while our people went down the drain. If the Federal Government was serious about negotiating a settlement of Lubicon land rights, we told Mr. McKnight, then he should reinvolve Mr. Fulton as an independent mediator responsible to the Parliamentary Standing Committee on Aboriginal Affairs. If not, we told him, we would be forced to assert our jurisdiction on the ground and defend ourselves and our interests as best we could.
On February 1st Mr. McKnight announced that his January 29th deadline had passed, that he'd given the Lubicon people "ample time to come to the table", and that he'd therefore "either call a Federal inquiry or take the Provincial Government to court in the near future to settle the claim". The purpose of taking the Provincial Government to court would of course be effectively the same as calling a Federal inquiry; namely, Lubicon genealogical information would be subpoenaed and thereby made officially available to the Alberta Provincial Government, shifting the focus of the public debate from the relatively simple question of who has exclusive constitutional responsibility for settling aboriginal land rights in Canada -- which is clearly the Federal Government -- to a hopelessly complex and deliberately unending debate over individual genealogies, historical facts and the criteria which might possibly be used in determining the significance of the genealogical data and historical facts.
On February 4th Federal negotiator Malone announced that the Federal Government had formally requested the Provincial Government to transfer an unspecified amount of land for use as a Lubicon reserve. If the Provincial Government refused to transfer the requested land, Mr. Malone said, the Federal Government would take the Provincial Government to court to settle Lubicon land rights. Provincial Attorney General Horsman understandably reacted to the supposed threat of court action like Brer Rabbit being threatened with the briar patch. Mr. Horsman said, "...it may be the only way that (the Alberta Government) can get access to the genealogical records..."
The objective for both levels of Canadian Government at this point was clear; namely, to get the Lubicon debate out of the political arena, where they were facing increasingly severe criticism for their handling of the Lubicon issue, and back into the courts -- so that they could duck the issue politically, drag out the debate forever, and conduct the debate by rules over which they exercised greater control. Once the issue was before the courts, Federal and Provincial lawyers could endlessly debate history, genealogies and legal issues. Federal and Provincial politicians could refuse all comment, taking the position that they couldn't comment on a case before the courts. And critics of Federal and Provincial politicians could be chastised and even censored for commenting on a case before the courts.
On February 8, 1988, less than a week before the scheduled opening of the Calgary Winter Olympics, the Provincial Government announced construction of a huge new pulp mill just to the west of our traditional territory. The new pulp mill was to be built by a "giant" Japanese forestry company called Daishowa at an estimated cost of 500 million dollars -- including 75 million in Federal and Provincial Government grants. Nine and one half million of the 75 million in government subsidies was being provided by our "trustee", Mr. McKnight, in his capacity as Minister responsible for a multi-million dollar political slush fund called the Western Diversification Fund, which had been recently established by the Federal Government to try and prop-up flagging Federal Government political fortunes in western Canada.
The new Daishowa pulp mill was described as the largest hardwood pulp mill in Canada, "producing" 1,000 metric tons of pulp a day, 340,000 tons to pulp a year -- 80% of which is to be shipped directly to paper mills in Japan. It will consume trees at the rate of about 11,000 a day, over 4 million a year. The trees to feed this new Japanese pulp mill, we learned to our dismay, are to come from a 29,000 square kilometre, 11,000 square mile timber lease completely covering our entire traditional area.
Provincial Forestry Minister LeRoy Fjordbotten attempted to defend the lease of Lubicon lands and sale of Lubicon trees to a Japanese forestry company by arguing that it was a question of jobs versus the rights of Indians. In doing so he played fast and loose with the facts. It didn't work. By this point too many people knew the facts. Moreover Mr. Fjordbotten's basic political calculation was wrong. People simply weren't prepared to write off an entire aboriginal society for a few hundred jobs.
Mr. McKnight was equally unconvincing in his response to criticism of the Daishowa project. Publicly charged with conflict of interest for simultaneously being constitutionally responsible for protecting Indian rights in his capacity as Indian Affairs Minister, and for encouraging development on unceded Indian lands in his capacity as Minister responsible for the Western Diversification Fund, Mr. McKnight claimed that his dual role enabled him to better protect Lubicon rights. In a statement worthy of Alice in Wonderland Mr. McKnight claimed that he was protecting Lubicon rights by asking the Provincial Government to exclude the 25 square miles set aside in 1939 from the Daishowa timber lease, and that the Lubicon people would benefit economically from the new mill by working for Daishowa as loggers, and/or by selling the trees from that last little pitiful 25 square mile piece of our 4,000 square mile traditional area to Daishowa.
The firestorm of critical reaction to the Daishowa announcement only 5 days before the scheduled opening of the Calgary Winter Olympics was nearly overwhelming. Even people not particularly sympathetic to aboriginal rights reacted with outrage at the stupidity and arrogance of such a move made while the whole world was watching. The media were full of critical editorials, comments, letters to the editor and political cartoons. And perhaps most important of all, Daishowa was being publicly criticized, both in Canada and Japan.
By the end of February we were receiving reports of Daishowa threatening to back out of the pulp mill project. On March 2nd we received phone calls asking for meetings from both newly elected Alberta Premier Don Getty, and from Daishowa Vice President and General Manager Koichi Kitagawa. Meetings were agreed with Premier Getty in Edmonton on March 4th and with Mr. Kitagawa in Vancouver on March 7th.
On March 3rd Mr. McKnight and Mr. Horsman issued a joint press release announcing that they'd reached agreement on transferring from Provincial to Federal jurisdiction the 25.4 square miles set aside in 1939. The statement said that "this transfer of land would be without prejudice to the positions of the parties...and would not affect the right of the Band to seek additional lands through negotiation or court action". It said, "As soon as the transfer is completed, Canada will set aside the land as a reserve...(and)... Band members will begin building a community and identifying economic development opportunities". It said, "Both Governments are pleased that a significant step has been taken as a result of negotiations to-date and are committed to continuing this process".
The negotiating process referred to in the joint press statement of course didn't include the Lubicon people, who learned about the agreement from the media. Acceptance of the 25.4 square miles under such circumstances of course wouldn't be without prejudice to the rights of the Lubicon people at all, since it would effectively constitute Lubicon acceptance of a process for determining Lubicon land and membership rights in which the Lubicon people weren't involved. As for seeking additional land through negotiations, Mr. McKnight made clear that this would mean convincing the Alberta Government that more land was "justified" -- not much of an option when the Alberta Government had consistently taken the position that not even the 25.4 was "justified". Seeking additional land through court action didn't represent much of an option either, given our experience with the Canadian courts. And the notion that the Lubicon people "will begin building a community" on the 25.4 square miles presumed that we'd accept a number of things which we'd never accept, including Federal and Provincial determination of Lubicon land and membership rights, less than a third of the reserve land retained by similar aboriginal societies in northern Alberta, and housing and other benefits for less than half of our people -- effectively splitting our society and tearing our families asunder.
Following release of the joint press statement Mr. Horsman told reporters that Premier Getty would be "offering" us the 25.4 square mile area during our scheduled meeting on March 4th. Shortly thereafter, in an obviously staged performance in the House of Commons complete with planted question and orchestrated applause from Government members, Mr. McKnight triumphantly announced that "negotiations (between the Lubicon people and the Federal Government) will begin soon on housing, a hospital and other services..."
During our meeting with Premier Getty on March 4th Premier Getty asked if it would be "helpful" to transfer the 25.4 square mile area from Provincial to Federal jurisdiction. He said that he was prepared to do so if it would be "helpful".
We told Premier Getty that any interim transfer of land would have to be discussed in the context of bilateral negotiations between the Federal Government and the Lubicon people, bilateral negotiations sincerely intended to achieve a full and complete settlement of Lubicon land rights, bilateral negotiations with Mr. Fulton as an independent mediator responsible to the Standing Committee. If the Premier really wanted to be helpful, we told him, he should encourage the Federal Government to engage in bilateral negotiations with the Lubicon people and reinvolve Mr. Fulton as an independent mediator responsible to the Standing Committee.
Premier Getty said that he was prepared to encourage the Federal Government to engage in bilateral negotiations with the Lubicon people but couldn't "sell" Mr. Fulton as an independent mediator responsible to the Standing Committee. He therefore made a counter proposal. He proposed that an independent tribunal be established to resolve any disputes that couldn't be resolved through bilateral negotiations between the Lubicon people and the Federal Government. He said that the tribunal would consist of Mr. Fulton, one person appointed by the Federal Government and a third person appointed jointly by Mr. Fulton and the Federal Government's appointee. If we agreed, Premier Getty said, he was prepared to discuss the tribunal proposal with his Provincial Cabinet and then with Prime Minister Mulroney.
We agreed to accept Premier Getty's tribunal proposal as an workable alternative to our proposal to reinvolve Mr. Fulton as an independent mediator responsible to the Standing Committee. And we then responded to Premier Getty's initiative with a proposal of our own. While continuing to insist on bilateral negotiations between the Federal Government and the Lubicon people regarding settlement of Lubicon land and membership rights, we proposed to enter into parallel bilateral negotiations with the Provincial Government regarding non-land and membership issues like wildlife management and environmental protection.
Informed about Lubicon acceptance of Premier Getty's tribunal proposal, Mr. McKnight acted as though it had nothing to do with the Federal Government. He said that he was "pleased Mr. Getty is prepared to assist in settling the claim because the majority of the claim involves land which belongs to the Province of Alberta". He suggested that any additional reserve land "depends mainly on Provincial willingness to negotiate with the Band on the size of the reserve". And he reiterated Federal Government willingness to negotiate "non-land" issues with the Lubicon people, like roads, housing, a school and a health centre.
Our March 7th meeting with Mr. Kitagawa took place in Daishowa's Vancouver offices with people protesting Daishowa's proposed pulp mill demonstrating outside. During that meeting Mr. Kitagawa and his colleagues made clear that they wanted no part of the Lubicon controversy. They said that they'd earlier asked Provincial officials about consulting us and been told that any effort on their part to deal with us directly would "jeopardize delicate negotiations".
A week and a half later, on March 17th, Lubicon representatives were in Ottawa for meetings and heard that Mr. McKnight was scheduled to appear before the Standing Committee to talk about C-31 revisions to the Indian Act. Having a few hours free between meetings, we decided to attend the Standing Committee meeting and watch Mr. McKnight's performance.
Standing Committee agendas are agreed in advance so that members can properly prepare. Those appearing before the Committee are of course expected to confine themselves to pre-agreed agenda items, for the same reason. What Mr. McKnight did, however, was table statements on both C-31 and Lubicon Lake and then read a nine page prepared statement on Lubicon Lake.
Mr. McKnight's March 17th statement before the Standing Committee provided a brief, highly selective, typically self-serving and deliberately deceptive historical overview going back to September of 1987, when Mr. McKnight had appointed Mr. Malone to replace the discredited Mr. Tasse. While seeking to present Federal Government conduct in the best possible light, the McKnight statement also presented a thinly disguised recitation of Federal Government moves to roll back progress toward settlement made under the Fulton Inquiry. It repeated Mr. McKnight's refusal to enter into negotiations with the Lubicon people unless we agreed to full Provincial Government involvement. It again rejected Mr. Fulton as an independent mediator responsible to the Standing Committee. It insisted that we drop our aboriginal rights position and agree to negotiate an outstanding land entitlement under Treaty 8 -- effectively giving up our basic aboriginal right to determine our own membership. And in a letter from Mr. Malone to Provincial negotiator McCarthy attached to the prepared statement, Mr. McKnight rejected Premier Getty's proposed tribunal, arguing, of all things, that "a Minister of the Crown cannot delegate his statutory duty to a third party". (Mr. McKnight didn't explain how Premier Getty's tribunal proposal was different in this regard than McKnight's own proposals to call a Federal Government inquiry or refer the matter to the courts, either of which, of course, would be easier for the Federal Government to control).
Following Mr. McKnight's Standing Committee appearance we checked with Premier Getty. Premier Getty said that he intended to pursue his tribunal proposal with Prime Minister Mulroney in spite of Mr. McKnight's public rejection of it.
A couple of days later Mr. McKnight told reporters "that Mr. Getty can take the tribunal proposal up with Mr. Mulroney but that's not going to accomplish anything". Regardless of whether Mr. Mulroney or Mr. Getty get involved, he said, the Federal Government will continue to negotiate with Alberta to reach a settlement. "If we cannot agree with Alberta", he said, "then maybe we'll have to go to the courts to settle".
On March 30th Premier Getty told us that he'd received a proposed settlement agreement from Mr. McKnight, negotiated between Federal and Provincial Government negotiators without our involvement, which Mr. McKnight wanted the Province to sign. Premier Getty said that the proposed settlement agreement provided 45 square miles based on a recognized Lubicon population of 225 people. He asked that we study the proposed settlement agreement and react to it.
We told Premier Getty that the proposed settlement agreement would split the Lubicon people and tear Lubicon families asunder, something which we'd never accept.
We therefore agreed with Premier Getty to continue working toward establishment of the independent tribunal which he'd earlier proposed, excepting only that he now advised us that we'd have to drop our aboriginal rights legal action if we wanted the decisions of the proposed tribunal to be binding, or, alternatively, to settle for a tribunal which was only advisory.
We told Premier Getty that we weren't prepared to drop our aboriginal rights legal action but were prepared to work with a tribunal which was only advisory. Initially Mr. McKnight gave reporters the impression that the Federal Government would also be prepared to work with an advisory tribunal, triggering news stories that he'd agreed. The more Mr. McKnight talked, however, the more clear it became that he'd not agreed at all, but was rather only seeking to confuse the issue and thereby avoid public responsibility for effectively blocking commencement of negotiations. Confused reporters struggled to make sense out of Mr. McKnight's convoluted mumbo jumbo until a spokesman for Mr. McKnight made clear that Mr. McKnight still rejected the proposed Getty tribunal, and that he was still waiting for a response from the Provincial Government regarding the request for reserve land publicly announced by Mr. Malone on February 4th.
On May 17, 1988, Mr. McKnight announced that the Federal Government had initiated legal action asking the Provincial Court of Queen's Bench to impose a settlement of Lubicon land rights upon both the Lubicon people and the Alberta Provincial Government. The action asked the Court to "declare" the following four things:
that the Alberta Provincial Government is in breach of the 1930 land transfer agreement by refusing to support Mr. McKnight's unilateral determination of Lubicon land rights.
The next day, May 18th, Federal Liberal Party Indian Affairs Critic Keith Penner asked Mr. McKnight why Mr. McKnight had decided to refer the Lubicon situation to the courts, instead of seeking a negotiated settlement. Mr. McKnight responded by repeating earlier discredited claims that we'd insisted upon "unacceptable conditions", and by saying that the Alberta Provincial Government had refused to transfer reserve land in an amount unilaterally determined by Mr. McKnight.
Mr. Penner then specifically asked Mr. McKnight why Mr. McKnight had not agreed to negotiate under the advisory tribunal proposed by Premier Getty and accepted by the Lubicon people. With his usual clarity of thought and speech, Mr. McKnight replied:
"It would seem strange that Alberta would need a tribunal to assign land which is already the property of Alberta to the Lubicon Lake people. It would seem strange that Chief Ominayak would not agree to a binding decision of the tribunal if he wished the tribunal to work. It also seems strange that I have not had any contact with the Government of Alberta in any pro forma way that would allow me to understand the tribunal put forward.
"I find the actions we have taken are consistent with Canada's commitment and obligations to fulfil entitlement to the Lubicon Lake Band to the best of our ability. The only avenue left to Canada, after attempting to negotiate since 1984 on a claim which has been outstanding since 1940, was to ask the court for assistance in this matter". (The reference to 1984 presumably pertained to the appointment of Mr. Fulton, whose efforts were of course prematurely terminated by the Federal Government when Federal officials didn't like his settlement recommendations.)
On June 1, 1988, Provincial New Democrat Indian Affairs Critic Bob Hawkesworth asked Alberta Premier Don Getty if the Premier had discussed his advisory tribunal proposal with Canadian Prime Minister Brian Mulroney, or if the Premier was "content to allow (Mr. McKnight) to trash negotiations." Premier Getty responded by saying that he'd "discussed the matter with the Prime Minister, (that Provincial Attorney General and Intergovernmental Affairs Minister Horsman) is discussing the matter with the Federal Government's Ministers, and (that) there are also negotiators representing the Federal Government and the Provincial Government who are having discussions as well".
Contacted by reporters about Premier Getty's remarks, Mr. McKnight denied that Provincial officials had ever discussed the proposed advisory tribunal with anyone from the Federal Government. He said, "The Premier had discussions with Chief Ominayak and the supposed mediation tribunal was never communicated to me." He said that Provincial Attorney General and Intergovernmental Affairs Minister Horsman "has never imparted to me what took place at the meetings (between Premier Getty and Chief Ominayak) or how the tribunal would have been established". He said, "I have not received any information on the make-up of the tribunal, its actions, or its supposed goals except from what I have seen in the media". But, he said, judging from what he'd seen in the media, he didn't think that the proposed "mediation tribunal" would work anyway, since, he said, "independent mediation usually occurs when the law is clear, which isn't the case in the Lubicon situation".
For the next few days opposition members and the media focused on the contradictory remarks made by Premier Getty and Mr. McKnight without resolving the question of who was lying. However there were several pretty good reasons for holding Mr. McKnight responsible for the impasse. First of all, on the record, Mr. McKnight had publicly rejected a possibly workable framework for negotiations without knowing anything about it -- hardly an acceptable position for a supposedly responsible Minister of Government. Second responsibility for settling Lubicon land rights clearly rests squarely with Mr. McKnight and the Federal Government, not with Premier Getty and the Provincial Government. And third, given Mr. McKnight's oft- repeated desire to negotiate rather than litigate Lubicon land rights, one might at least expect him to inquire about the details of a proposal for negotiations found acceptable by the two parties whom Mr. McKnight was suing, because, supposedly, negotiations with these two parties had proven impossible.
After almost a decade of unrestrained development activity in our traditional destroying nearly everything we owned and valued as a people, and with absolutely no prospects for ever achieving recognition of our unextinguished aboriginal land rights through the Canadian Courts or Canadian political process, in early August, 1988, we made clear our firm intention to enforce our jurisdiction over our traditional lands. We made clear that it was not a question of "taking the law into our own hands" or "seizing control", but rather of enforcing sovereignty which we'd never relinquished. As of October 15, 1988, we said, anyone wishing to operate in our traditional territory would be expected to obtain appropriate authorization from us and obey our laws.
On August 19, 1988, we received a letter from Mr. McKnight expressing concern about both pending Lubicon assertion of jurisdiction and also "the time it may now take a court to decide". As an alternative to legal action and Lubicon assertion of jurisdiction, he proposed suspension of the Federal Government's legal action and the establishment of "a forum for addressing the Band's grievances" -- including the appointment of a mutually acceptable independent mediator. We wrote back a couple of days later, indicating that we were "prepared to talk...just as long as such talks are sincerely intended to achieve a fair and equitable settlement, instead of just being another empty propaganda exercise designed to create the illusion of Federal Government reasonableness going into a Federal election and/or confrontation on the ground".
On August 24th lawyers for both sides discussed establishment of Mr. McKnight's "forum for addressing the Band's grievances". Mr. Malone said that Mr. McKnight had one candidate to suggest for mediator, that of a former Supreme Court Judge known for both fairness and independence. Submission of this man's name by Mr. McKnight gave us hope that the Federal Government might finally be interested in negotiating a fair and equitable settlement, since such a person would be too dangerous a mediator for the Federal Government if the Federal Government wasn't sincere about negotiating a fair and equitable settlement. After we'd officially accepted this man as an independent mediator, however, Mr. Malone withdrew his name as a candidate for mediator, supposedly because of "some negative vibrations from higher up".
During the next few weeks other similarly credible candidates for the independent mediator role were also submitted by the Federal Government, only to be withdrawn after being accepted by the Lubicon people -- suggesting, of course, that the Federal Government wasn't serious about submitting these names in the first place. Rather it seems clear in retrospect that these names were only submitted to create the illusion of Federal Government seriousness about negotiations. If the Lubicon people rejected such obviously well qualified candidates, Mr. McKnight could charge, as he has in the past, that we weren't interested in a negotiated settlement but only confrontation for confrontation's sake. On the other hand, if we accepted such obviously well qualified candidates, their names always could be quietly withdrawn by Federal officials without giving specific reasons, which was of course exactly what was happening. The obvious objective of all of this non-productive fooling around was clearly to create the false impression that the Federal Government was doing everything possible to reach a negotiated settlement, and that the Lubicon people were therefore not justified in asserting jurisdiction over our traditional lands during the Federal election.
For the next month key Lubicon personnel spent most of their time researching mediator candidates -- at the expense of essential work required to support assertion of jurisdiction. Ken Colby, a professional propagandist hired by the Federal Government on contract to be their "official Lubicon spokesman", told the media that the Federal Government and the Lubicon people had simply been unable to agree on a mediator, that Lubicon candidates had been unacceptable to the Federal Government, but that Federal candidates had also been unacceptable to the Lubicon people. The truth was a little more sinister. While the Federal Government had rejected all of the highly qualified candidates put forward by the Lubicon people, we had in fact accepted four candidates put forward by the Federal Government, only to have the Federal Government then withdraw three of these four candidates and advise us that the fourth was unfortunately unavailable.
On September 22, 1988, we moved to bring this interminable mediator selection process to an end with a short list of four candidates, two of whom had originally been submitted by the Federal Government, two of whom had originally been submitted by the Lubicon people. Three of the four candidates on our short list were western Canadians. Two were former Presidents of the Canadian Bar Association. One was Dean of a western Canadian law school. All had indicated immediate availability. If one of these highly qualified candidates wasn't acceptable to the Canadian Government, we figured that the Canadian Government wasn't serious about negotiations but only wanted to use talk of negotiations to try and politically defuse the Lubicon issue -- especially during the Federal election.
Federal negotiator Malone reacted to our short list by proposing to add a couple of additional names, one of whom we agreed to add but the Federal Government later withdrew due to reported unavailability.
On September 27th Mr. Malone proposed the addition of yet another candidate for independent mediator to the Lubicon short list. We refused to consider the addition of any more names, telling Mr. Malone that the whole idea of the Lubicon short list was to bring the mediator selection process to an end.
On September 28th Mr. Malone advised that he still hadn't received a requested Provincial Government reaction to the Lubicon short list.
On October 4th professional Federal Government propagandist Colby accused the Provincial Government of "dragging its heels in choosing a mediator from the Lubicon short list".
On October 5th newly appointed Provincial Attorney General Ken Rostad denied that the Provincial Government was dragging its heels in choosing a mediator. He said that the Provincial Government had in fact agreed to "several names" acceptable to the Lubicon people, and that all the Federal Government had to do was pick one of them.
On October 6th we were scheduled to appear before the Alberta Court of Appeal to continue the eight year long debate over whether any court in Canada has jurisdiction over the Federal Government with regard to the question of aboriginal land rights within Provincial Government borders, and, therefore, whether any court in Canada was even prepared to hear an action against the Federal Government regarding a matter of exclusive Federal Government responsibility under the Canadian Constitution. Instead of continuing this obviously endless and futile legal farce, however, we rather withdrew from all legal actions before Canadian Courts, making clear that we didn't recognize the jurisdiction of the Canadian Courts to make decisions regarding Lubicon land in any case, making clear that our only purpose in appearing before Canadian Courts had been to try and make Canadian Government obey Canadian law, and making clear also that we now saw no alternative but to enforce our jurisdiction over our traditional territory, effective October 15th, and to then defend our vital interests on the ground as best we could.
Mr. McKnight responded by saying that our withdrawal from the Canadian Court and assertion of jurisdiction "precludes any opportunity for negotiations or discussion". He said that the Government of Canada "cannot negotiate because of the pre-conditions that (the Lubicons) are now a sovereign nation".
Typically Mr. McKnight again had it backwards. We weren't insisting that the Government of Canada recognize our sovereign status as a prerequisite to talks. Rather Mr. McKnight was insisting that we cede our sovereign status as a prerequisite to talks. We were, and always had been, prepared to negotiate without either side ceding anything in advance.
Mr. McKnight didn't spell out what alternative he saw tonegotiations or discussion.
On October 7th Mr. McKnight told a nation-wide television audience, "At noon today, we had set a deadline that the three parties would attempt to agree on a mediator from the four names put forward by the Lubicon people". "The action (the Lubicon people) took yesterday -- declaring themselves a sovereign nation -- made that progress meaningless".
To say that Mr. McKnight lied to the whole country when he made these remarks may not be quite right -- perhaps he'd agreed to such a deadline with Provincial officials or somebody else -- but he certainly wasn't talking about any "deadline" which Federal officials had ever discussed with us. The last information we'd received from the Federal Government about the Lubicon short list was on September 28th, when Mr. Malone told us that the Federal Government was still waiting for a reaction to our short list from the Provincial Government. "That's the best I can do", Mr. Malone told us at that time.
Asked for his views of the looming confrontation, Mr. Fulton declined to "pass judgment" on our assertion of jurisdiction. He said, "They've been driven to extremes". He said, "I fully sympathize with the position in which they find themselves". He said, "I hope that (the blockade) will (make) the Department of Indian Affairs realize that the time for position-taking without real negotiations is over".
By October 11th supporters and representatives of the media from across the country and Europe had begun arriving in our area, the RCMP had issued a statement urging the "general public to avoid the (Lubicon) area unless on an absolute need basis", and the oil companies began making arrangements to shut down their operations and vacate the area rather than recognize our jurisdiction.
On October 12th Premier Getty phoned and asked for a meeting to discuss planned assertion of jurisdiction. We then met with Premier Getty the morning of October 13th and agreed to immediately commence negotiations in the hope that it would be possible to reach an agreement which could then be presented to the Federal Government for approval.
As talks were about to start Premier Getty warned that negotiations would cease "if Alberta laws are broken". In reply we told the Premier that Lubicon assertion of jurisdiction would proceed as planned at 1 p.m. on October 15th unless "substantial progress towards resolution of our aboriginal land rights is achieved".
Negotiations with the Province broke-down late in the evening on October 14th over the amount of reserve lands which we would be able to retain for reserve purposes. The oil companies shut down their operations and vacated our traditional area by noon the following day. On Saturday, October 15th at 1 p.m. we established "passport control points" at all main points of entry into our unceded traditional territory and began enforcing our jurisdiction.
On October 17th Premier Getty told reporters that we might have been able to agree on reserve land if negotiations had continued. However, he said, he was not prepared to talk while our "passport control points" were in operation. "Take down the barricades", he said, "there's no discussions while the barricades are up".
On October 18th we offered to suspend the operation of our "passport control points" while our respective negotiators tried once more to achieve agreement on reserve land size. We said, "If the Premier is serious about an amount of reserve land at least equal to that retained by the aboriginal people in the surrounding area who signed treaty, as determined by the same historic criteria, then we're prepared to temporarily suspend the operation of our passport control points while we talk". "However if talks collapse", we said, "the barricades will immediately go back up".
Premier Getty rejected our offer to temporarily suspend the operation of our "passport control points", repeating his demand that we "remove the roadblocks". He said, "I want to make it clear that I'm not quibbling on this issue".
On October 19th Federal Justice Department lawyer Ivan Whitehall announced his intention to ask our old friend Judge Moore to impose a settlement upon us without our attendance in court. The following day Judge Moore agreed to proceed as Mr. Whitehall suggested, indicating that he'd ensure our interests were protected by appointing "a friend of the court" to represent us. Judge Moore was the same man who'd earlier protected our interests by appointing an ex-oil company head lawyer to hear our application for an emergency injunction to freeze development activity in our traditional area pending determination of our aboriginal land rights. He's the same Judge who'd earlier protected our interests by refusing to add the Federal Government to our Provincial court action with the result that at the time we asserted jurisdiction there wasn't a single court in Canada prepared to even hear an action against the Federal Government regarding a matter of exclusive Federal Government responsibility under the Canadian Constitution. And, as we were later to learn, Judge Moore was the same Judge who a day earlier had looked after our interests by granting the Provincial Government an "ex parte" injunction to dismantle our passport control points without even advising us that such an injunction was being sought.
Early in the morning of October 20th scores of heavily armed RCMP backed by helicopters and attack dogs mounted a coordinated assault on our four passport control points, arresting 27 of our people and supporters, including a 14 year old boy, a 71 year old grandmother, two Quaker supporters, two west German supporters, our lawyer and one of our key advisors. Critical reaction to the arrests was immediate. Telegrams, cheques, telephone calls and people poured in from around the world. Aboriginal groups from across the country vowed to replace everyone arrested at Lubicon check points for as long as necessary. The World Council of Churches donated $5,000 to show support and help cover costs. A couple of hundred protesters set up camp in front of the Provincial Legislature. Church, labour and aboriginal leaders issued statements of support. The Grand Council of the Cree of Quebec sent an urgent telegram to the Secretary General of the United Nations charging "gross violations of our human rights" and asking for an UN investigation.
Immediately following the arrests Premier Getty phoned and asked for a meeting to try and work out the differences between the Lubicon people and the Alberta Provincial Government. We refused to meet until our people were released from jail. The 27 people were then released from jail late that same night and the next day we spoke with Premier Getty again, this time agreeing to meet on October 22nd at a mutually agreed "neutral site". The "neutral site" selected for the October 22nd meeting was a little northern Alberta town called Grimshaw. Our meeting with Premier Getty on October 22nd has since been called the "Grimshaw Summit".
On October 22nd we hammered out an agreement with Premier Getty which provided for the Provincial Government to transfer 79 square miles of land to the Federal Government for purposes of establishing a Lubicon reserve, plus to "sell" the Federal Government another 16 square miles "for use by the Lubicon Band". The 79 square miles included full surface and sub-surface rights, as do all other Indian reserves in Alberta. The 16 square miles included only surface rights but our agreement with Premier Getty provided that no development activity could occur on this 16 square mile area without Lubicon consent. Taken together the two pieces of land totalled 95 square miles of reserve land, or about 128 acres per Lubicon. One hundred and twenty eight acres per person is the amount of reserve land which the Indians who signed Treaty in the surrounding area were allowed to retain.
The reason for the distinction between the 79 and 16 square mile areas was that the Provincial Government was only prepared to admit to an obligation of 79 square miles, but agreed to "sell" the other 16 square miles in order to make the deal. Such arrangements had been made before with other aboriginal people; however, for such arrangements to serve the intended purpose, the 16 square mile area had also to be formally established as tax-free, inalienable reserve land under Federal Government jurisdiction. Otherwise the 16 square mile area would be subject to expropriation and/or might in other ways be lost to future generations of Lubicon people. The status of the 16 square mile area, we agreed with Premier Getty, would have to be worked out with the Federal Government.
Another provision of the agreement negotiated with Premier Getty on October 22nd was that the Federal Government "will be responsible for the compensation of all third party interests, surface and sub-surface, within the 79 square mile area...(as well as)...for the compensation of all third party surface interests within the 16 square mile area". Needless to say this was a provision in the agreement which would have to be worked out between the two levels of Canadian Government. There was no known precedent of such compensation being paid by the Federal Government. However the idea of such compensation originally came from Federal Inquiry Officer E. Davie Fulton, who recommended that the Federal Government compensate the Province for the value of any land over and above the 25.4 square miles set aside in 1939, because, Mr. Fulton said, "It's entirely the fault of Canada that the matter was not disposed of (at that time)".
Our October 22nd agreement with Premier Getty of course didn't settle Lubicon land rights. Not only were there a number of other remaining issues to be resolved between the Lubicon people and both levels of Canadian Government, the Federal Government is the only level of Government in Canada Constitutionally able to negotiate a settlement of aboriginal land rights. What our agreement with Premier Getty did do, however, was clearly take the Alberta Government out of the key membership debate, thus squarely placing primary responsibility for settlement or lack of settlement on the Federal Government. From this point onward the Federal Government could no longer claim that the Provincial Government was blocking settlement over the membership issue.
A few days later Mr. McKnight spelled out his first reactions to what he called "The Lubicon Lake Agreement-In-Principle". He said that he was prepared to accept and start servicing the 79 square mile area just as soon as the land was transferred by the Provincial Government; however, he said, he was still only prepared to provide services to those people he considered to be Indians. While he refused to say how many Lubicon people he considered to be Indians, one of his officials told reporters that the Federal Government was prepared to recognize only about 235 out of a total of approximately 500 Lubicon people. In other words, irrespective of the question of reserve land size, which had been basically solved by the Grimshaw Agreement, Mr. McKnight was still insisting on applying unilaterally determined Federal Government membership criteria which would have the effect of splitting our society and tearing our families asunder.
Reiterating the position taken by Mr. Tasse a couple of years earlier, Mr. McKnight claimed that C-31 revisions to the Indian Act allowed the Lubicon people to put whomever they pleased on their membership list, but, he said, the Federal Government could not provide services to people "who are not Indian". To illustrate his point Mr. McKnight told one reporter that we could put Lennarson and O'Reilly on our membership list. He told another reporter that we could put "you and me on their membership list". These public statements by Mr. McKnight were not only demonstrably untrue, they were deliberately deceitful.
Lubicon membership criteria, agreed in writing by Mr. McKnight's predecessor and well known by Federal officials, are basically fourfold. All of our people are people of aboriginal ancestry ordinarily resident in our traditional area and linked by family and historic ties. This is the way we've always determined our membership. One only has to contemplate the significance of these four criteria to appreciate not only who does and doesn't qualify as a Lubicon, but also to understand the implications of splitting a people so defined into at least two distinct groups with completely different rights and responsibilities.
Explaining to reporters that the Federal Government's position on membership wasn't as big a deal as we were making it out to be, professional Federal Government propagandist Colby told reporters, "I think that membership is an issue that really doesn't count for much". He said, "You aren't going to have a policeman behind every (on-reserve) water tap to make sure that nobody who isn't a status Indian drinks a glass of water". However, he admitted, whether all of the Lubicon people would qualify for key programs and services like housing, education and medical benefits is "a more difficult problem".
Regarding the 16 square mile area which the Alberta Government was prepared to sell to the Federal Government "for use by the Lubicon Band", Mr. McKnight said, "The 16 square mile parcel outside the reserve will also need a little work". He said that the Federal Government "cannot accept or hold lands except as a reserve". And he proposed that the Lubicon people could "perhaps...establish a corporation, with the Province giving the lands to the corporation in much the same way as Canada gave the lands to the Province".
Again Mr. McKnight was being deliberately deceptive and deceitful. He knew full well that there was absolutely no intention on our part or Mr. Getty's part for the 16 square mile area to be "outside the reserve". He knew full well that the Federal Government had the power to formally establish the 16 square mile area as part of the Lubicon reserve. And he knew full well that neither level of Canadian Government would ever agree to transferring the 16 square mile area from Provincial to Lubicon jurisdiction "in much the same way as Canada gave the lands to the Province".
What Mr. McKnight was really saying that he didn't like the Grimshaw deal, didn't like the idea of conceding a 79 square mile reserve, and was flatly refusing to agree to a 95 square mile reserve. He was therefore taking the position that the Lubicon people could "own" the 16 square mile area like any other private land owner under Provincial Government jurisdiction, subject to Provincial Government taxes, alienation, expropriation, etc.
On November 1, 1988 -- two days before Canadian Prime Minister Brian Mulroney was scheduled to make a campaign appearance in Alberta where Lubicon supporters were known to be planning major demonstrations -- we received the by now expected contact from representatives of the Federal Government. A Federal Indian Affairs official by the name of Jobin contacted Lubicon advisor Lennarson and told Lennarson that he'd been asked to hand-deliver a letter from Mr. Malone. The Malone letter asked about the possibility of talks regarding provisions of the Grimshaw Agreement. It soon became clear, however, that Jobin had been asked to do more than simply hand-deliver a letter from Malone.
Jobin asked Lennarson how many Lubicon people could be registered as Indians under the C-31 revisions to the Federal Indian Act. Lennarson told Jobin that it didn't matter because the Lubicon people intended to determine their own membership in any case -- as had all other aboriginal people who'd made treaty with the Canadian Government.
Jobin told Lennarson that Federal officials figured all but 20 or 30 of our people could be registered as Indians under the revised Indian Act and that "the rest can be accommodated somehow". Lennarson told Jobin that the Indian Act wasn't relevant until at least after a treaty or adhesion to treaty had been negotiated between the Lubicon people and the Canadian Government.
Jobin said that the Federal Government was prepared to negotiate an adhesion to Treaty 8 but that agreement still had to be reached as to which criteria would be used to determine membership. Lennarson suggested that the Federal Government simply agree to use the same membership criteria as those used a couple of months earlier in an "agreement-in-principle" signed between the Federal Government and the Dene/Metis of the Northwest Territories; namely, Canadian citizenship, lineal descent, residency and community acceptance. Lennarson said all of the Lubicon people qualified by definition under the first three of those criteria, leaving only the criteria of "community acceptance", or, in other words, Lubicon determination of Lubicon membership.
Jobin said that the people in the NWT retained unextinguished aboriginal land rights while the Lubicon people only had an unfulfilled land entitlement under Treaty 8. Lennarson told Jobin that Jobin knew better. Lennarson also pointed out that Jobin had only a moment before indicated that the Federal Government was prepared to negotiate an adhesion to Treaty 8 -- which obviously didn't make sense with someone supposedly already a party to Treaty 8.
"Whether or not the Lubicon people signed treaty", Jobin said, "northern Alberta is covered by Treaty 8". Lennarson pointed out to Jobin that the NWT was covered by Treaties 8 and 11. He said that the Federal Government was still negotiating aboriginal land rights with the people in the NWT, according to the words of a recent Federal Government press release, "in order to maintain equality of treatment among northern natives (who'd signed and hadn't signed treaty), and because the land entitlement under the treaties was virtually unfulfilled". He reminded Jobin that the Lubicon people hadn't signed treaty and didn't have recognized reserve lands.
Jobin told Lennarson that Federal officials were worried about non-status and Metis people from across the country demanding Federal Government programs and services if the Federal Government agreed to allow the Lubicon people to determine their own membership. Lennarson told Jobin that each case would have to assessed on its own merits -- that people either had rights or they didn't. He pointed out that the Metis of the NWT were included in the proposed NWT settlement and that nobody seemed particularly concerned about precedent.
Moreover, Lennarson told Jobin, they both knew that it wasn't a question of precedent in any case, since it was clear neither level of Canadian Government had any respect for precedent or the rule of law. He said that aboriginal people in Canada without the power to enforce respect for their rights wouldn't be helped by precedent. He said that aboriginal people in Canada with the power to enforce respect for their rights would establish their own precedent.
Jobin said that he was sure it would be possible to settle if only there could be talks between the Federal Government and the Lubicon people. Lennarson told Jobin that McKnight would have to stop insisting on splitting the Lubicon people as a pre-condition to talks.
Jobin asked how the Lubicon people wanted "to handle the 16 square miles". Lennarson told Jobin that the 16 square miles would have to formally established as tax free, inalienable reserve lands under Federal jurisdiction -- as had been done in other cases.
Jobin asked Lennarson if the Lubicon people were prepared to compromise on any of the outstanding issues. Lennarson told Jobin that the Lubicon people were prepared to compromise on money issues, but that we were not prepared to compromise members of our families, or the principle of equal treatment.
Jobin asked if the Lubicon people were waiting to see who won the Federal election before agreeing to talk. Lennarson told Jobin that we were prepared to talk with any Federal Government sincerely interested in settling our aboriginal land rights rather than trying to outsmart, outmanoeuvre and outlast us.
On November 2nd Mr. Lennarson responded to Mr. Malone's letter of November 1st, telling Mr. Malone that we were prepared to discuss the Grimshaw Agreement but wanted first to resolve the key issue of membership. Malone said "We think that we should start with the joint (Lubicon/Provincial land) proposal and see if we can solve it".
Lennarson told Malone that we considered membership to be the key issue with the Federal Government at the moment and weren't prepared to discuss other issues until we'd solved membership.
The following morning we received a phone call from Mr. Mulroney asking for a meeting when he was in Edmonton that coming evening.
Asked if Mr. Mulroney's intervention represented a slight to Mr. McKnight, professional Federal Government propagandist Colby said:
"No, I don't think he's pulling rank at all. The Lubicons have been assembling a fairly impressive demonstration for Edmonton tonight. They've been bussing Indians in from all over Western Canada. I think the Prime Minister felt that it would be a reasonable thing to do".
During our meeting Mr. Mulroney mentioned with pride the Dene/Metis Comprehensive Land Claim Agreement-In-Principle which he'd personally signed only a couple of months before. We told him that our long-standing disagreement over the membership issue would be immediately solved if the Federal Government used the same approach to membership in our case as with the Dene/Metis.
Mr. Mulroney declined to discuss matters of substance, indicating that he would prefer to talk about a way to get negotiations started. In this regard, he said, he was prepared to have his personal Chief of Staff, a man named Derek Burney, "expedite settlement of the Lubicon dispute".
Mr. Burney was described as Mr. Mulroney's "top problem solver". We hoped that the problem which Mr. Mulroney had asked Mr. Burney to solve was the problem of unresolved Lubicon land rights, instead of only the problem of political embarrassment during the Federal election. In retrospect it's clear that Mr. Mulroney had no intention of negotiating a fair and equitable settlement of Lubicon land rights, and that he had something far more sinister in mind than just avoiding politically embarrassing encounters along the campaign trail. It's now clear that Mr. Mulroney's real objective from the very beginning was to use the pretence of serious negotiations as part of a deliberate and concerted effort to try and publicly discredit the Lubicon people, not because of the legal precedent which an equitable Lubicon settlement would establish for other aboriginal people in Canada with unrecognized rights -- which doesn't concern a Federal Government with no respect for the rule of law in any case -- but because of the political example we were setting for other aboriginal people in Canada struggling for recognition of their rights, and also because of the international attention which we were drawing to the plight of aboriginal people in Canada.
A week after our meeting with Mr. Mulroney, on November 8th, we received a phone call from Mr. Burney asking for a meeting between Federal Lubicon negotiator Brian Malone and Lubicon representatives "to clear up any misunderstandings about what the Lubicon people are trying to achieve". We agreed to the proposed meeting but also offered to send Mr. Burney materials on the Lubicon position directly, so that he wouldn't have to rely solely upon Mr. Malone for information on our position. Mr. Burney said that he'd be pleased to receive information on the Lubicon position directly from us. A Lubicon briefing package providing information on all aspects of our position -- including compensation and socio-economic development -- was sent to Mr. Burney the next day.
On November 9th Mr. Malone phoned and asked for "a one-on-one meeting" with Lubicon advisor Lennarson to discuss agenda and schedule for negotiation of Lubicon land rights. Mr. Malone said that he was phoning and asking for the meeting as "the personal representative of Derek Burney". He said that he'd "be reporting back directly to Mr. Burney". (Normally we don't agree to "one- on-one" meetings with representatives of the Federal Government, because they've so often in the past publicly misrepresented what took place at such meetings to serve their own political purposes. This time, however, we instructed Mr. Lennarson to agree to a "one-on-one" meeting with Mr. Malone, so as to not in any way impede or adversely affect the possibility of hopefully productive negotiations with the Federal Government.)
The meeting between Messrs. Lennarson and Malone to discuss agenda and schedule for Lubicon land negotiations took place on November 10th. Immediately prior to the scheduled meeting Mr. Lennarson asked colleagues with whom he was working to excuse him so that he could meet with Mr. Malone alone, as Mr. Malone had requested. Mr. Malone, however, arrived for the meeting in the company of professional Federal Government propagandist Colby. Mr. Lennarson objected to Mr. Colby's attendance at the meeting, not only because it was clear from previous experience what Mr. Colby was and did for a living, but because Mr. Malone had specifically requested a "one-on-one" meeting. Mr. Malone responded to Mr. Lennarson's objection by telling Mr. Lennarson that the Lubicon people never allow anyone to tell us who we can bring to meetings. Mr. Lennarson reminded Mr. Malone that Mr. Malone had specifically requested a "one-on-one" meeting and told him that the Lubicon people had more honour and integrity than to bring other people to a meeting which they had specifically asked be a "one-on-one".
Ignoring Mr. Lennarson's explicit objection to Mr. Colby attending the meeting, Mr. Malone said that he wanted to discuss negotiation agenda and schedule, and that he also "needed" copies of the current Lubicon membership list and self-government paper. Rather than refusing to meet Mr. Malone with Mr. Colby in attendance, and perhaps delaying commencement of hopefully productive negotiations between the Lubicon people and the Government of Canada, Mr. Lennarson decided to proceed with the meeting. In retrospect we would have been wiser to set the tone of our talks with Federal representatives by insisting that they start honouring their agreements.
Mr. Lennarson told Mr. Malone that the Lubicon self-government paper requested by Mr. Malone had been tabled with Federal officials during the Fulton Inquiry. He said that Mr. Fulton had reviewed the Lubicon self-government paper at some length in the Fulton Discussion Paper. He suggested that Mr. Malone might do well to take the time to at least read the Fulton Discussion Paper and supporting documentation. He then agreed to provide Mr. Malone with the requested materials and to discuss agenda and schedule for proposed Lubicon land negotiations.
The agenda mutually agreed between Messrs. Lennarson and Malone during their meeting on November 10th was as follows:
compensation and costs.
Regarding schedule for the proposed negotiations, Mr. Malone said that he'd be meeting with Provincial Lubicon negotiator John McCarthy the following Monday. He said that he'd be flying to Ottawa Monday night for meetings with Mr. Burney on Tuesday and Wednesday. He said that he had some unspecified "university commitment" on Thursday. He said that he'd be meeting with oil company lawyers on Friday. He said that the following week would be the week of the Federal election, "when nothing much else will be happening". He said that "Burney will be off at the end of December for Washington (to become the new Canadian Ambassador to the United States) and (Malone) would like (Burney) to see negotiations through". He said, "I'd like to target the week of November 28th or the following week for 5 full days of intense negotiations". He said, "If we can't get it done in 5 days, then I don't think we'll ever get it done". (For all of Mr. Malone's fast, slick, used-car salesman type talk, it didn't escape us that Mr. Malone's proposed negotiation schedule didn't start until safely after the Federal election.)
On November 18th Mr. Burney wrote "to confirm...the Federal Government's understanding of the agenda for negotiations as agreed to by Mr. Lennarson and Mr. Malone". Mr. Burney's letter projected a schedule for negotiations from November 29th through December 15th and specifically included compensation as a pre-agreed agenda item but failed to mention either socio-economic development or funding of on-going programs and services. Mr. Burney wrote:
"If these discussions are to bear fruit, I think it would be useful for both sides to refrain from any media briefings on substance, either before or during the talks...I would therefore propose instead that, once talks begin, public statements should be limited to those agreed to by both sides at the end of each session."
Of course aware that "refraining from any media briefings on substance before the talks" meant that the Lubicon issue would effectively be put on the shelf until after the Federal election, but not wanting to do anything which would adversely affect the possibility of productive negotiations with the Federal Government, on November 21st we responded to Mr. Burney's letter of November 18th, agreeing to Mr. Burney's proposed schedule for negotiations, but pointing out that he'd failed to include the pre-agreed items of socio-economic development and funding for on-going programs and services. Regarding Mr. Burney's proposed "handling" of the media during the proposed talks, we wrote:
"Your proposed arrangements on the handling of the media are acceptable, presuming that Ken Colby isn't involved in the discussions as an official representative of the Federal Government. Mr. Colby's only conceivable role in the discussions is that of a paid professional propagandist in the employ of the Federal Government, and his only conceivable contribution would be to generate contrived and inaccurate stories, rumours and statements which our people will then have to spend time and energy countering. If you want Mr. Colby to attend the discussions, we would propose to open the discussions to the media, so that representatives of the media would be able to independently assess Mr. Colby's continuing disinformation campaign (Underlining added)".
On November 22nd, Mr. Burney responded to our letter of November 21st, proposing an amended agenda which still included compensation as an explicit agenda item, but also now including both socio- economic development and funding of on-going programs and services. Regarding our position on Mr. Colby and the "handling" of the media, Mr. Burney wrote:
"As far as out respective delegations are concerned I will leave it to you to determine your team and will reserve myself the same privilege for the Federal team...I intend to respect the guidelines proposed in my (November 18th) letter regarding media briefings and would hope that you will do the same."
We accepted Mr. Burney's revised agenda for proposed Lubicon land negotiations on November 24th. Regarding his position on the possible involvement of Mr. Colby, we wrote:
"Your position on (determining) the composition of our respective negotiating teams is of course also acceptable. We'll be constituting our team of people chosen for their ability to make a positive contribution to achieving settlement and presume that you'll be doing the same".
By advising Mr. Burney that the Lubicon negotiating team would be selected for their ability to make a positive contribution to achieving settlement, we were of course telling Mr. Burney, without challenging his obvious right to constitute the Federal negotiating team as he saw fit, that including a professional propagandist with no credentials relevant to negotiating aboriginal land rights would raise serious questions about Federal Government intentions. For an experienced diplomat like Mr. Burney to then jeopardize the success of the negotiations by including Mr. Colby as a member of the Federal Government's negotiating team, as he did, suggested once again that the Federal Government was more interested in seeking political advantage than negotiating an equitable settlement.
Lubicon land negotiations therefore commenced on November 29th, under a news blackout insisted upon by the Federal Government, but with the Federal Government's professional propagandist in attendance as a supposed member of the Federal Government's negotiating team. During the entire 6 week duration of those negotiations Mr. Colby made not one single substantive comment. His sole purpose in attending the negotiating sessions, undoubtedly at considerable expense to the Canadian taxpayer, was so that he would be better able to conduct a pre-conceived Federal propaganda campaign once negotiations collapsed. He had deliberately deceitful press materials describing the collapse of negotiations prepared and ready to be released before Federal officials tabled the final "take-it-or-leave-it" settlement offer which caused negotiations to collapse. He had a deliberately deceitful Federal Government propaganda campaign designed and ready to launch before Federal officials tabled the final "take-it-or-leave-it" settlement offer which caused negotiations to collapse. And, literally within minutes of the collapse of negotiations, he was issuing prepared press statements on the collapse of negotiations, arranging media interviews on the collapse of negotiations, granting media interviews on the collapse of negotiations, and disseminating the catchy media phrases which he'd designed to distort and discredit Lubicon positions like calling Lubicon settlement objectives a "wish list", describing Lubicon settlement motives as "greed not need", and suggesting that we'd publicly misrepresented our settlement goals and "should come clean".
Negotiations during the period from November 29th through December 15th concentrated on land, membership, Lubicon self-government and construction of housing and community facilities. While apparent progress was made in each of these areas during this two week period, final agreement wasn't achieved with regard to any of them, plus other items, like socio-economic development and compensation weren't discussed at all. It was therefore mutually agreed by the Federal and Lubicon negotiating teams to continue the talks into the following week.
On December 21st Lubicon representatives met with Mr. Burney and Mr. McKnight to review negotiations and make decisions about next steps. At this point a "framework agreement" on Lubicon self-government had been successfully negotiated, but there was still no agreement on land or membership, there was still no agreement on a number of basic community facilities like a health unit or community hall, and there had still been no discussion at all on socio-economic development or compensation.
Mr. Burney and Mr. McKnight assured us that they'd have the membership problem solved by the following morning. They said that resolution of the land problem would have to wait until after Christmas when Provincial Lubicon negotiator McCarthy returned from holidays. Regarding still outstanding community facilities and socio-economic development projects, Mr. Burney proposed to involve officials from other Federal Departments to see what they could contribute (only officials from the Federal Department of Indian Affairs had been involved to that point). And on the question of compensation, Mr. Burney proposed to cover all of the other items on our mutually agreed agenda but ask the courts to decide compensation.
We agreed to continue meetings in January but made clear that compensation would have to be an integral part of any settlement agreement.
The membership problem wasn't solved the next morning, as promised by Messrs. Burney and McKnight, and resolution of the membership issue was therefore also carried over until after Christmas. On December 30 we received a letter from Mr. Burney proposing the following:
"1.) During the week of January 3, 1989, that Mr. Whitehall and Mr. Lennarson deal with the sundry details of membership by telephone or fax.
"2.) That during the week of January 3 and January 9, 1989, that Mr. Malone deal with surface leaseholder problems, the development of a substitute oil and gas lease (to the satisfaction of Alberta and the Band) and discuss with Alberta their involvement in a socio-economic package.
"3.) Canada, the Band and Alberta establish a team to finalize arrangements to explore ways and means to obtain for the Band a socio-economic package.
"4.) During the week of January 16, 1989, that our negotiators attempt to conclude on behalf of their principals any necessary details dealing with the implementation of the Getty-Ominayak (land) proposal, membership, Alternative Funding Arrangements (for funding of on-going programs and services), reserve construction, hunting and trapping compensation, and the framework agreement on self-government.
"5.) On January 23, negotiators meet to reassess progress and the possibility of signing a final agreement."
Noting that Mr. Burney's December 30th letter failed to mention the compensation issue, we wrote him back the same day, agreeing to his proposals for continuing work on land and membership, but reiterating our position on compensation and socio-economic development. Our letter read, in part:
"While Mr. Malone might want to talk to Mr. McCarthy about Provincial Government participation in a socio-economic (compensation) fund as early as January 9th (when Mr. McCarthy returns from holiday), we would want to meet with representatives of the possibly relevant Federal Departments discussed on December 21st before meeting and/or involving their Provincial Government counterparts. Although the Provincial Government does owe compensation for damages and resources extracted from unceded Lubicon land, and although Provincial Government programs and services may ultimately prove to be of some help in meeting our on-reserve socio-economic objectives, on-reserve socio-economic development clearly remains the constitutional responsibility of the Federal Government. We would therefore propose to talk to representatives of possibly relevant Federal Departments much as we talked (before Christmas) to representatives of the various programs of the Department of Indian Affairs, about both what's possible given their respective program budgets and authorities, and also about ways to meet on-reserve socio-economic objectives which might fall outside of their normal program budgets and authorities (including, perhaps, Provincial Government participation)."
Regarding Mr. Burney's suggested timetable for the signing of a final agreement, our December 30 letter read:
"It should be possible to conclude agreements on land, membership and the Trapper's Support Program during the week of January 16th. It should also be possible to conclude `framework' agreements on the related issues of self-government and Alternative Funding Arrangements, where we can jointly subscribe to the implementation of certain pre-agreed principles, although we do not think that a `framework agreement' approach will work equally well in the areas of reserve construction and on-reserve socio-economic development, where all we can really do is agree to the establishment of a defined mechanism for pursuing hopefully productive talks. We therefore believe that the progress we're able to make towards agreements on reserve construction and a socio-economic package will depend upon meetings with representatives of the possibly relevant Federal Departments we discussed on December 21st, and upon discussions regarding compensation or establishment of a socio- economic development (compensation) fund (Underlining added)."
Lubicon negotiators returned to Ottawa the evening of January 15th, participated in meetings on the still unresolved membership issue on January 16th, and then received a document from Federal officials the evening of January 16th entitled "A Special Development Plan for the Lubicon Lake Indian Band". The Federal Government's "Special Development Plan for the Lubicon Lake Indian Band" was intended by the Federal Government to cover all remaining areas including significant short-falls in required community facilities like a community hall, construction of required community commercial enterprises like a community store, and essential economic development projects like the clearing of reserve land for agricultural purposes.
Basically the Federal Government's "Special Development Plan for the Lubicon Lake Indian Band" consisted of "A $5 Million Development Fund to be used as seed capital to lever funding from the private sector and on-going government programs". The operative paragraph in the Federal Government's "Special Development Plan for the Lubicon Lake Indian Band" reads as follows:
"The Government has conducted an analysis of 19 projects, already funded by on-going (Federal Government) programs, which are similar to those proposed by the Lubicon Lake Band. Band or individual equity in these projects accounted for 16 per cent of total project financing. Based on this experience, a $5 million development fund, if fully dedicated to economic development, should be able to lever additional amounts potentially in the order of $26 million in public and private financing".
The following morning Lubicon representatives rejected the Federal Government's "Special Development Plan for the Lubicon Lake Indian Band" as a completely inadequate and unacceptable offer to settle Lubicon land rights, and a completely inadequate and unacceptable response to detailed Lubicon proposals for once again achieving social and economic self-sufficiency.
We pointed out that the Federal Government's "Special Development Plan for the Lubicon Lake Indian Band" consisted of little more than telling the Lubicon people to apply to the endless succession of typically inadequate and unsuccessful Federal Government programs which, in most instances, Federal officials had already admitted had "no capacity" to respond to our proposals -- and/or to go to the bank and borrow the necessary money to try and re-build our shattered society. We made clear that any acceptable settlement package would at the very least have to provide the Lubicon people with the basic tools we need to try and re-build our shattered society without, on top of everything else, incurring an immense debt load.
We described the Federal Government's "Special Development Plan for the Lubicon Lake Indian Band" as tantamount to the most blatant form of unbridled colonialism, in which a colonial power deliberately and systematically destroys the institutions and economy of a less powerful people, plunders the valuable natural resources of that less powerful people, replaces the institutions and economy of that less powerful people with a regime of subsistence programs and services designed by the invading colonial power to maintain those less powerful people in a position of continuing dependence and subservience, and then further exploits that less powerful people by loaning them money required to buy essential goods and services from the invading colonial power.
Federal officials responded to our rejection of their "Special Development Plan for the Lubicon Lake Indian Band" by calling for a break to consider whether or not it would "serve any useful purpose to continue with negotiations". Following that break Federal officials indicated that they were prepared to proceed with pre-agreed meetings involving representatives of hopefully relevant Federal Departments, supposedly to see what items might be covered by such Departments under existing program authorities with already allocated funds.
Meetings were then held that same afternoon and evening with representatives of other possibly relevant Federal Government Departments, including the Department of Industry, Science and Technology (DIST), the Department of Agriculture and the Canada Employment and Immigration Commission (CEIC). These meetings proved to be little more than information sharing sessions during which representatives of involved Federal Departments described their programs and services, and Lubicon representatives spelled out and answered questions about our socio-economic development proposals.
On January 18th Mr. Malone announced that the Federal Government had prepared a revised proposal supposedly dealing with all outstanding matters entitled "Lubicon Lake Band Framework Agreement for Socio- Economic Development". In presenting this so-called "framework agreement", Mr. Malone said, "All of my cards are now face-up on the table". He said, "I have nothing left to offer". He said, "That's the full extent of my mandate".
The socio-economic development "framework agreement" which Mr. Malone then tabled included the 5 million dollar fund offered earlier "to ensure that the Band has ongoing seed capital to lever project funding from public and private sources". It made provision for training programs but provided no facility in which to conduct that vocational training. It offered to "seek ministerial approval in principle for (up to 80%) funding (of required community commercial enterprises like a community store)" but made no commitment to fund such enterprises. And it offered to set-up and fund a "joint (Federal/Lubicon) team" to study Lubicon agricultural proposals but made no commitment to fund Lubicon agricultural proposals.
On January 19th Lubicon negotiators reacted to "the cards" which Mr. Malone had placed "face-up on the table" by telling him that there were cards missing -- that he wasn't playing with a full deck. We pointed out that a number of basic community facilities like a community hall and old people's home still weren't covered, that there was still no facility in which to conduct essential vocational training, that there was still no commitment to fund required community commercial enterprises like a community store, that there was still no commitment to develop reserve land for agricultural purposes and that compensation still hadn't even been discussed. Until all of these matters had been resolved, we told Mr. Malone, there'd be no settlement agreement.
Mr. Malone said that he'd need to consult with his "principals" before talking further. He said, "Tomorrow's not a Lubicon day", meaning that he had other commitments. He said that he had to return to Alberta for the week-end and wouldn't be returning to Ottawa until the following Monday. He said that he'd have to consult with his Federal Government colleagues on Monday. He therefore proposed that the next meeting of the two negotiating teams be scheduled for the following Tuesday, January 24th. He said that he'd have someone phone our representatives on Monday about time and place for the proposed Tuesday meeting.
Having heard nothing from Malone and Co. by 5 pm Monday afternoon, and being concerned that representatives of the Federal Government all seem to vanish about that time of day not to reappear until the next morning, we phoned Mr. Malone's contact person in the Department of Indian Affairs, a man named Coulter, and asked about time and place for the proposed Tuesday meeting.
Mr. Coulter told us that a meeting had been scheduled for the following morning at 10 am. He said that the Provincial negotiating team was in town and wanted to meet with us first to discuss some "land related issues". He said that the Federal negotiating team would then be arriving about 11 am. (This was our first notice that the Provincial negotiating team was in town and would be joining us the following day. We learned later that Mr. Malone had invited the Provincial negotiating team specifically to witness the tabling of the Federal Government's final "take-it-or-leave-it" settlement offer, which Federal officials were so sure would be rejected that they literally had press materials prepared in advance describing that rejection.)
Malone and Co. arrived at 11:30 am. After making some brief remarks about a proposed community satellite dish and transmitter, Mr. Malone announced that he'd consulted with his "principals" over the week-end and had "obtained permission to present a formal, written settlement offer". He said that this "formal, written settlement offer" was based on two principles:
"1.) That the offer was fair to the Lubicon people, other native people and taxpayers;
"2.) That the offer provide a land base and equal treatment for the Lubicon people, which", he said, "is what the Lubicon people say they want."
Mr. Malone said that the "formal, written settlement offer" which he was tabling had been read by Indian Affairs Minister McKnight and by Stanley Hartt (Mr. Burney's replacement as Prime Minister Mulroney's Chief of Staff). He said that Mr. McKnight was prepared to recommend the settlement offer to the Federal Cabinet. He said, "I want to emphasize that this is a final, `take-it-or-leave-it' settlement offer".
Mr. Malone said that the Federal Government's final "take-it-or- leave-it" settlement offer contained "two additions" to what the Federal Government had offered previously. First, he said, the Federal Government was prepared to establish a $500,000 trust fund, which, he said, invested at the rate of ten per cent per year would generate $50,000 per year to support the proposed Trappers Support Program. Second, he said, "the offer contains a guarantee of fairness". He said that "the Federal Government can see no grounds for compensation". "However", he said, "in order to guarantee fairness, we're prepared to proceed with all aspects of settlement without prejudice to the legal rights of the Band (to sue for compensation), as long as it's understood that the things provided (in the settlement agreement) will be offset against any award by the court".
Mr. Malone said, "We now have two options". He said, "We can agree to proceed (to work out the details of the final "take-it-or- leave-it" settlement offer) and maintain the news blackout, or", he said, "we can report back to our principals for instruction as to whether or not to continue the news blackout".
Our representatives told Mr. Malone that they'd have to review the Federal Government's final "take-it-or-leave-it" settlement offer and consult with Lubicon leaders in Little Buffalo Lake before responding. The meeting was therefore adjourned until 3 pm that afternoon.
After faxing copies of the Federal Government's final "take-it-or- leave-it" settlement offer to our office in Little Buffalo Lake, and to Lubicon lawyer O'Reilly in Montreal, Lubicon negotiators reviewed the so-called offer and consulted by phone with both the people in Little Buffalo Lake and with Mr. O'Reilly. A review of the Federal Government's final "take-it-or-leave-it" settlement offer made clear that the offer still didn't cover a number of basic community facilities like a community hall and old peoples home, still made no provision for a facility to conduct essential vocational training, still made no commitment to fund community commercial enterprises like a community store, and still made no commitment to development reserve lands for agricultural purposes. In other words, what the Federal Government's final "take-it-or-leave-it" settlement offer provided was houses in which our people could live on welfare -- hopelessly dependent upon the outside world for everything from feeding our children to caring for our old people -- but it provided absolutely none of the things which we would need to once again become socially and economically self-sufficient in a vastly changed world.
Moreover, contrary to what Mr. Malone said when he tabled the Federal Government's final "take-it-or-leave-it" settlement offer, the so-called offer was definitely not without prejudice to Lubicon rights to seek compensation through the courts. Rather it contained as full and final a release of all of our legal rights as could be devised by Federal Justice Department lawyers, reading, in part:
"8.7 In consideration of the rights and benefits provided by this offer, the Band and such persons who are entitled to adhere to Treaty No. 8, through the Chief and Council of the Band:
(a) will cede, release and surrender to Her Majesty in Right of Canada
(i) all their aboriginal claims, rights, titles and interest, if any, in and to lands and waters anywhere within Canada, and;
(ii) all their claims, rights or causes of (legal) action whether collective or individual which they ever had, now have, or may hereafter have, or arising out of or by reason of Treaty 8, save as hereafter specifically provided;
(iii) all their claims, rights or causes of (legal) action whether collective or individual which they ever had or now have as alleged in (legal actions filed by the Lubicon people);
(iv) all their claims, rights or causes of (legal) action which they ever had, now have or may hereafter have under, or arising out of or by reason of any Imperial or Canadian legislation or Order-in- Council or other action of the Governor-in-Council or Canada in relation to Metis or half-breed scrip or money for scrip;
(b) will agree, on their behalf, and on behalf of their heirs, descendants and successors not to assert any cause of (legal) action, action for a declaration, claim or demand of whatever kind or nature which they ever had, may have or may hereafter have against Her Majesty in Right of Canada or any province, the government of any territory or any person based on any claim, right, title or interest described in (a)."
Asked by reporters about the obvious contradiction between the full and final release contained in the Federal Government's final "take-it-or-leave-it" settlement offer, and public claims by various Federal Government representatives that the offer was made without prejudice to Lubicon rights to go to court and sue for compensation, professional Federal Government propagandist Colby said Mr. Malone had offered to re-write this section of the offer but that Lubicon negotiators had rejected that offer. Mr. Colby's a liar. Although we had earlier rejected verbal proposals to settle other issues but refer the question of compensation to the courts, Mr. Malone made no offer to re-write any section of the Federal Government's final "take-it-or-leave-it" settlement offer. On the contrary, Mr. Malone made clear that the content of the Federal Government's final "take-it-or-leave-it" settlement offer was not open for discussion. Moreover, and specifically regarding verbal remarks which Mr. Malone did make when he presented the Federal Government's final "take-it- or-leave-it" settlement offer, section 8.14 of that so-called offer speaks directly to the value of such verbal statements. Section 8.14 of the Federal Government's final "take-it-or-leave-it" settlement offer reads as follows:
"8.14 This written offer is the entire offer and there is no representation, warranty, collateral agreement or condition affecting this offer, except as expressed within."
Given the clear-cut and easily understandable content of the Federal Government's final "take-it-or-leave-it" settlement offer, and the demonstrable fact that it made no commitments in areas absolutely essential for the Lubicon people to once again become socially and economically self-sufficient, Lubicon negotiators were instructed to reject the offer. Consequently, when the meeting reconvened at 3 pm, Lubicon negotiators told Mr. Malone that the Federal Government's final "take-it-or-leave-it" settlement offer was unacceptable.
Mr. Malone responded to Lubicon rejection of the Federal Government's final "take-it-or-leave-it" settlement offer by asking Lubicon negotiators, "Perhaps you can tell me, and perhaps you can tell (Provincial negotiator) Mr. McCarthy (whom Mr. Malone had arranged to have in attendance for presentation of a final "take-it-or-leave-it" settlement offer which Mr. Malone knew in advance would be rejected), what the Lubicon people want". Mr. Malone said, "We've been talking for 6 weeks and we still don't know what you want".
Lubicon advisor Lennarson told Mr. Malone that the Lubicon people had spelled out their position of the issues repeatedly and in detail and Mr. Malone knew it. Mr. Lennarson said that he couldn't imagine why Mr. Malone would make such demonstrably untrue remarks unless perhaps he was making them for the benefit of Provincial negotiators, whom Mr. Malone had obviously arranged to have in attendance to hear those remarks.
Mr. Malone said, "Tell me and tell (Provincial negotiator) McCarthy what your bottom line is on compensation". He said, "We've been talking for 6 weeks and you still haven't stated your position on compensation".
Mr. Lennarson told Mr. Malone that the Lubicon people had tabled a detailed position of compensation with the Federal Government as long ago as 1985 during the Fulton Inquiry. He said that Mr. Fulton had reviewed the Lubicon position on compensation in some detail in the Fulton Discussion Paper, which he again recommended that Mr. Malone read.
Mr. Lennarson told Mr. Malone that they both knew the Lubicon people had been prepared to negotiate compensation all along but that Federal officials had deliberately manoeuvred to avoid discussing compensation. He said that the Lubicon people remained willing to discuss compensation but had no intention of tabling a "bottom line" on compensation without benefit of any discussions or negotiations, because, he said, such an approach would immediately transform that so-called bottom line into the starting point for compensation negotiations. Similarly, Mr. Lennarson said, the Lubicon people had tabled a position on compensation with the Provincial Government as long ago as October 14, 1988, which Provincial officials had also avoided discussing.
Provincial negotiator McCarthy said that the Provincial Government was "prepared to participate in compensation in a secondary role but want to hear what the Federal Government is prepared to do before making any commitments".
Mr. Malone repeated that the Federal Government didn't think that the Lubicon people had any compensation coming, but, he said, "in order to guarantee fairness", the Federal Government's final "take- it-or-leave-it" settlement offer was without prejudice to Lubicon rights to go to court and sue for compensation.
Mr. Lennarson told Mr. Malone that the Federal Government's final "take-it-or-leave-it" settlement offer was clearly not without prejudice. He compared Mr. Malone's approach to that of Government treaty negotiators in earlier times; namely making verbal promises which were then not reflected in the written documents. Moreover, Mr. Lennarson said, if the Federal Government was really serious about "guaranteeing fairness", the question of Lubicon compensation shouldn't be argued before courts established by the Canadian Government, before judges appointed by the Canadian Government and within the context of a body of law created by the Canadian Government, but should rather be argued before Lubicon courts and Lubicon judges within the context of Lubicon laws -- or, at the very least, before the kind of independent three person tribunal proposed earlier by Premier Getty, where each side would appoint one judge who would then jointly appoint the third.
Mr. Malone repeated that the Federal Government's written offer was final and wouldn't be changed. Lubicon negotiators told Mr. Malone that the Federal Governments final written offer wasn't acceptable.
By the time our negotiators had arrived at the Ottawa airport to return to Alberta, about an hour and a half later, professional Federal Government propagandist Colby had already issued prepared statements to the press including a one page summary on the Federal Government's "take-it-or-leave-it" settlement offer which claimed that the so-called offer included things which in fact it didn't include (like a community hall and medical centre); a two page press release on the collapse of negotiations which claimed falsely that we'd agreed on land, membership, community construction and delivery of programs and services but walked out over the issue of cash compensation; and a four page "Ministerial Statement" on the so-called offer and collapse of negotiations which basically repeated the same lies told in the first two documents, adding only introductory and concluding paragraphs expressing Mr. McKnight's supposed regret that we'd not accepted an offer which he falsely claimed "directly addresses the Band's priorities", "insures that training, employment and other benefits of construction would accrue to the Band", and "compares favorably with other recent settlements". Anyone familiar with the drafting of such statements knows that these three statements weren't drafted and approved for release during the hour and a half between the time negotiations collapsed and the time our people arrived at the Ottawa airport. Immediately following release of these three obviously pre-prepared public statements, Mr. Colby started calling reporters around the country, feeding them the Federal Government's artfully crafted propaganda line on the collapse of negotiations, arranging for and granting interviews, asking for and holding meetings with editorial boards, arranging to appear on telephone talk shows and calling press conferences for himself in selected places like the Alberta Provincial Legislature. Again anyone familiar with media campaigns of this sort knows that all of this activity on Mr. Colby's part wasn't simply the result of Mr. Colby spontaneously responding to media inquiries about the collapse of negotiations, but rather involved considerable pre-planning and preparation.
Two days later the Federal Government's basic three piece disinformation package on the collapse of negotiations was being mailed out to people across North America and Europe who'd in the past written the Canadian Government expressing concern about the Lubicon situation -- another major effort inconceivable without considerable pre-planning and preparation.
One week later the Canadian Government completed a submission to the UN Human Rights Committee asking that the Committee dismiss the Lubicon complaint, because, it said, the Federal Government's final "take-it-or-leave-it" settlement offer supposedly proved "that effective domestic remedies have not been exhausted". The Canadian UN submission included the same deliberate lies about the Federal Government's so-called offer as were being publicly disseminated by Mr. Colby, and as were also being mailed out to people who'd written the Federal Government over the years asking about Lubicon Lake. Needless to say such UN submissions aren't thrown together overnight either.
On February 10th, two weeks after the collapse of negotiations, agents of the Canadian Government started a series of meetings with aboriginal people in non-aboriginal communities surrounding our traditional area to try and organize the overthrow of the duly elected Lubicon Government. They apparently started with one Lubicon Band member who'd earlier expressed interest in pursuing a seldom invoked clause in Treaty 8 which provides separate reserve land (land in severalty) "for such families or individual Indians as may prefer to live apart from Band reserves", and they then used this individual to help identify others potentially interested in making their own private deals. They told these individuals that the Federal Government was prepared to provide them with a variety of programs, benefits and services but couldn't do so unless the Lubicon people as a society accepted the Federal Government's final "take-it-or-leave-it" settlement offer. They told these individuals that the current leadership of the Lubicon people would never accept the Federal Government's "take-it-or-leave-it" settlement offer and would therefore have to be overthrown if these programs, benefits and services were to be provided. They told these individuals that current Lubicon leadership was up for re-election in the fall and offered to provide them with technical, legal, financial and other types of advice and assistance so that they could become registered as Lubicon Indians and "have their views represented" in the up- coming Lubicon election. And they told reporters, "if (these individuals) don't like the Chief they can always vote him out", and "if these guys follow through, they could have a tremendous impact on this community".
We challenged the Federal Government to make public the list of supposed dissenters so that we could assess it and properly respond but they declined, saying that the names were "confidential". Such selective use of confidentiality -- effectively undermining Lubicon leadership by talking publicly about a supposedly significant dissident group but refusing to provide names -- is of course an old tactic used by people with no ethics, enabling them to suggest whatever they please without ever having to back it up. More specifically it's the kind of tactic which we've come to expect from the Government of Canadian Prime Minister Brian Mulroney.
Faced with a nameless, faceless challenge to the mandate of our elected leadership at a time when we're under seige and literally fighting for our very survival as a people, we responded in the only way available to us -- by calling an early election. Responding to our early election call, professional Federal Government propagandist Colby told reporters "It really doesn't matter how the election turns out". "Even if the Chief is re-elected with a lot of support", he said, "the Federal Government still has an obligation to continue negotiating with any dissident group".
Our electoral rules provide that there must be at least 20 clear days between the calling and holding of an election. We called our early election on May 1st and held it on May 31st. It was conducted at our request by a prominent Indian leader from outside of our area to ensure that all legitimate Lubicon people would be treated equally. It was covered by representatives of both the National and Provincial media who attended the election and observed the proceedings. The so-called dissident group neither ran candidates nor participated in the election. Current Lubicon leadership was unopposed and re-elected unanimously, including the four members of our negotiating team.
Once their newly organized aboriginal society has served its purpose Federal officials can of course simply let it fall apart, since it doesn't exist independently of meetings which are organized, financed and led by agents of the Federal Government.
All of these various efforts by the Canadian Government to discredit our cause and subvert our duly elected Government have kept us largely on the defensive since the collapse of negotiations on January 24th. With the mandate of Lubicon leaders now clearly re-affirmed, however, we can't afford and don't intend to forever remain on the defensive. If we're not involved in serious negotiations by the winter development season of 1989-90, we'll be again left with no choice but to take action on the ground to protect our vital interests. The form that action will take is as yet not finally determined, but the objective will be the same as the objective of our actions last October -- enforcement of our legitimate jurisdiction over our unceded traditional lands. In preparation for the struggle ahead we've started working with our aboriginal brothers and sisters across the country and around the world to develop an international system of mutual support and assistance. This international system of mutual support and assistance is based in the realization that we share a common plight with other aboriginal people, and that none of our relatively small-scale traditional societies have sufficient resources on our own to forever withstand the determined efforts of large and powerful industrial societies to destroy us so that they can steal our valuable aboriginal lands. We intend to pursue this effort even if we manage to successfully negotiate a settlement of our aboriginal land rights, since we've learned from our aboriginal brothers and sisters who've negotiated settlement agreements that getting non-aboriginal Governments to honour their obligations under such agreements is no easier than negotiating them in the first place.
As a first step toward developing an international system of mutual support and assistance we've begun negotiating a Treaty Alliance of North American Aboriginal Nations. The Treaty Alliance of North American Aboriginal Nations has been called the "Native NATO", because it relies on the same international law concepts as the North Atlantic Treaty which created NATO.
While affirming our "desire to live in peace with all peoples and governments", our Treaty Alliance also declares our "determination to protect and preserve our peoples, lands, resources, heritage and culture". It provides that the signatories "will consult whenever, in the opinion of any of them, the territorial integrity, political independence, security or other fundamental rights of any of (them) is threatened". It provides that the signatories "agree that a threat against any one of them shall be considered a threat against them all; and consequently agree, if such threat occurs, each of them, in exercise of the internationally recognized right of individual or collective self-defense, will assist the party or parties so threatened by taking forthwith, individually and/or in concert with the other party or parties, such action as it deems necessary to restore and maintain the security of the involved party or parties". And most important of all, it establishes a "Defense Committee" to plan and recommend specific ways for the signatories "to join their efforts at self-help and self-defense through mutual aid and assistance".
A number of key aboriginal nations across the country have already signed the Treaty Alliance; others have indicated their intention to do so. We hope that it will be possible to organize the first meeting of the signatories to the Treaty Alliance by the fall of 1989 and have Defense Committee recommendations ready for consideration shortly thereafter. Once considered Defense Committee recommendations have been approved and put in place, we hope to have the capability to give non-aboriginal Governments reason to take aboriginal people and our rights a little more seriously.