Assertion of Lubicon Jurisdiction and The Grimshaw Accord

From: fol@tao.ca

The following is an excerpt from a Historical Overview document dated June 1989 from Lubicon Nation dealing with the events surrounding the assertion of Lubicon jurisdiction throughout their traditonal territory and the landmark Grimshaw Accord subsequently negotiated between Chief Bernard Ominayak and Alberta Premier Don Getty.

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.