By Paul Barnsley
Windspeaker Staff Writer
After years of quiet, diligent work at the negotiating table, the leaders of the Lubicon Cree Nation and their supporters are making some noise again.
The years of silence was a condition imposed by federal negotiators who would only consent to participate in talks if the Lubicons did not "negotiate in the media."
Negotiations came to a halt late in 2003 and, after a series of unsuccessful attempts to get talks re-started were unsuccessful, the Lubicon leadership has decided to re-ignite public interest in their long struggle. There is a lot to talk about.
At the provincial level, the Lubicons have objected to an application by Surge Global Energy to drill for oil on their territory and are preparing for a fight before the Alberta Energy and Utilities Board, the body that grants licenses for oil and gas exploration in the province.
Federally, Chief Bernard Ominayak has authorized the release of internal documents that show the federal negotiating tactics the Lubicons have been faced with over many years. Ominayak's not talking to the press. He has however, given his blessing to Fred Lennarson, the chief's long-time and trusted advisor, to discuss the latest developments.
A series of letters released by Ominayak show that the Lubicon chief has been engaged in an increasingly rancorous exchange with Indian Affairs Minister Andy Scott.
After receiving a letter from Scott dated June 23 this year in response to a letter he wrote to former Indian Affairs Minister Andy Mitchell on March 22, 2004, Ominayak was in no mood to play nice.
He had asked Mitchell to appoint a new federal negotiator with a mandate to deal with financial compensation and self-government issues after the former federal negotiator, University of Ottawa law professor Brad Morse, had stated his mandate limited him to only discussing a federal position the Lubicons had already rejected.
Scott responded by suggesting that the Lubicons should wait for the outcome of a negotiations' roundtable established by Prime Minister Paul Martin after the April 19, 2004 meeting of Aboriginal leaders and federal ministers in Ottawa.
Scott said the negotiations roundtable "may result in recommendations for changes to the inherent right policy that could possibly address the concerns you have expressed regarding self-government."
In his June 23 letter, Scott said the Lubicons could either continue talks under the current federal mandate or "jointly agree to close this round of negotiations" until after the roundtable work was completed. The minister warned that recommendations that arose from the negotiations roundtable process would have to go to cabinet for approval and that could take "at least a year."
The Lubicon chief was not impressed with that response. He chastised Scott for taking 15 months to respond to his letter and reminded him that Prime Minister Martin had stated publicly that the settlement of Lubicon land rights "has been a priority of the government of Canada."
He then attacked the minister's letter. Saying that it will take "at least a year" to explore "the possibility" that the negotiations roundtable "may result in recommendations" to the inherent rights policy that "could possibly address the concerns" of the Lubicon people was a highly qualified and highly suspect response.
"Given past history and numerous failed past attempts to re-structure the relationship between the government of Canada and Aboriginal people in Canada, [your response] is obviously optimistic in terms of both timetable and likelihood of success," Ominayak wrote. "Current talks with the [Assembly of First Nations] cannot be used as a tactic for the federal government to duck responsibility for a federal government position on Lubicon land negotiations based on flagrant misrepresentation of outstanding Lubicon settlement issues . . . ."
Of the two major outstanding issues for the Lubicon compensation and self-government Lennarson said the self-government issue is the most problematic for the federal government.
"What they said is they were only prepared to talk about talking about self-government post settlement. They were not prepared to talk about self-government as a part of settlement," he said. "They are not prepared to agree that the Lubicons have the right to self-government as part of the settlement. They're not prepared to agree to anything other than they will talk about it after settlement. After the Lubicons have ceded their land rights, only then will they talk about self-government. The Lubicons at that point will have lost all their leverage."
The Lubicon Cree Nation was missed by treaty negotiators who travelled Western Canada at the turn of the century seeking land surrenders from the Indigenous peoples across the Prairies. The Lubicon negotiators believe they are in a unique position and have the leverage under Canadian law to push the government to go where it has not gone before when it comes to self-determination. Since the Lubicons never surrendered their lands, they have a strong claim for Aboriginal title, if not outright sovereignty.
Lennarson said the government is trying to force them into the cookie cutter of its inherent rights policy, a policy that has not been updated since 1986 and has not been adjusted to come into agreement with a number of court decisions that have strengthened Aboriginal title claims.
"There's a big long complicated process. We were told, 'If you want to negotiate self-government this is the way you do it.' It was presented to the Lubicons a number of times. Brad Morse said the way Aboriginal groups who aspire to be self-governing do this is that they apply to the inherent rights program and then this letter of intent, letter of understanding, letter of agreement and all of these various stages to go through," he said. "The Lubicon said, 'Whoa. We're not here applying for some government program. We're negotiating a settlement of Lubicon land rights and recognition of our right to manage our own affairs has got to be part of it. So we're not talking about normal government programs and services.'"
The last three Indian Affairs ministers have heard the same message from Chief Ominayak: Please appoint a negotiator with the mandate to work on the outstanding issues.
But Lennarson said the request was modified once the Lubicon obtained a copy of the federal negotiator guidelines.
The guidelines appear to show that negotiators are schooled by the Justice department in how to negotiate non-binding agreements by using inexact and misleading language and other legal trickery, Lennarson told Windspeaker.
The guidelines go into great detail as to how to word clauses in agreements, warning away from words that a court would see as a sign the government is recognizing the inherent right of a specific First Nation. The idea put forward is that the government recognized there is a general inherent right to self-government that all First Nations possess in theory, but few, if any, possess in practice.
General recognition of the inherent right is preferred by the Justice lawyers because it means no specific right is recognized.
"Under this approach, recognition of the inherent right is explicit, but we remain agnostic as to which groups actually have such a right," the document states.
"It got complicated when we got the guidelines because not only did they not have a mandate to negotiate but they had express, explicit instructions to negotiate in bad faith. So Bernard's position became please appoint a negotiator with a mandate to negotiate outstanding issues in good faith. That's been on the table since Jan. of 2004. And there's been a lot of hemming and hawing and the minister saying, 'What a terrible thing to say, that the government might negotiate in bad faith. The government never negotiates in bad faith and I'm studying it and I'm reviewing and I'll get back to you.'"
But Fred Lennarson said when Andy Scott did review the file and respond 15 months later, the answer was basically take what you've already got or wait a year or more and see what the future brings. Lennarson said the Lubicon can't allow the government to drag things out any longer. "We've got big problems here. We cannot sit here for an indeterminate period of time waiting for [the government] to maybe solve the problem. Bernard's saying the government has taken a highly qualified position; there's no assurance of anything. What we need is for the government to come to the table and negotiate outstanding issues in good faith," he said.
It's not just the Lubicons who are questioning the government's tactics in negotiation. The United Nations Human Rights Committee in its "List of Issues to be Taken Up in Connection with the Consideration of the Fifth Periodic Report of Canada," released July 25, asked a question relating to the Lubicon situation, which has attracted worldwide attention over the last 20 years or more.
"According to various sources of information, the land of the Lubicon Lake Band continues to be compromised by logging and large-scale oil and gas extraction, while no comprehensive agreement on this issue has been reached with the federal government," the committee states before asking Canada for an explanation.
A Lubicon delegation will be in Geneva in October when the report on Canada is discussed and Canada responds to the committee.
fol-request at masses.tao.ca