Rebuttal to federal government's preposterous arguments for refusing to negotiate with the Lubicons

Friends of the Lubicon
PO Box 444 Stn D,
Etobicoke ON M9A 4X4
Tel: (416) 763-7500
Email: fol (at) tao (dot) ca
www.lubicon.ca

August 24, 2006

Attached for your information are copies of a letter to Canadian Indian Affairs Minister Jim Prentice from a Belgian support group, a copy of Mr. Prentice’s July 28th reply; and a copy of the Belgian group’s reaction to the letter they received from Mr. Prentice. Mr. Prentice’s letter to the Belgian support group is similar to letters currently being sent to Lubicon supporters across Canada and around the world.

Notably the Minister's letters to Lubicon supporters are little more than the latest variant on the government's preposterous argument - that refusal to negotiate recognition of the Lubicon right of self-government as part of a settlement of Lubicon land rights is somehow not refusal to negotiate recognition of the Lubicon right of self-government as part of a settlement of Lubicon land rights, and that effectively tabling take-it-or-leave-it offers which you then refuse to negotiate is somehow not refusal to negotiate.

Since this disingenuous government line pre-dates the current government, these letters again raise the question of what the Minister is being told by his bureaucrats and whether he knows the truth. Not knowing the truth does not absolve the Minister from responsibility for signing his name to letters containing demonstrable untruth, however, since it’s his job to straighten these things out, not simply to sign whatever’s put before him.

Prentice has no excuse if he’s being bamboozled by the bureaucrats. Lubicon representatives have been hand-delivering correct information to his personal staff in both Calgary and Ottawa starting last January 24th a week before his anticipated appointment as Minister was announced. A copy of the letter the Lubicons hand-delivered to his personal staff in Calgary and Ottawa the week before his anticipated announcement as Minister is attached below. (Not all of the attachments to that letter are attached because they are too voluminous to email but they are listed at the end of the letter and can be provided upon request.)

The author of the July 28th Prentice letter is playing word games when they say "At no time have the federal negotiators taken the position that they have no mandate to negotiate issues of self-government and compensation". In fact federal representatives have taken that position repeatedly while repeatedly denying it’s their position. They say they "have no mandate to negotiate self-government as part of a settlement of Lubicon land rights". They say they’ve "reached the extent of (their) mandate with respect to financial compensation". They say that they have no mandate to negotiate anything else. Then they deny that they’re making a "take-it-or-leave-it" offer or refusing to negotiate.

Regarding the issue of financial compensation the Prentice letter says:

"In fact, in the fall of 2003, Canada made a compensation offer to the Lubicon that was fair to the Lubicon, to other First Nations in Treaty 8 that have settled similar claims and to all Canadians. Canada’s offer is significantly more generous than the 1889 [he means 1989] offer to the Lubicon, which was found by the United Nations Rights Committee in 1990 to be ‘appropriate to rectify the situation’."

Prentice is misrepresenting other Treaty 8 settlement agreements. He’s misrepresenting what happened at the Lubicon negotiating table. And he’s both misquoting and misrepresenting the 1990 UN Human Rights Committee decision.

Moreover, taken together with the last paragraph of the Prentice letter, it is very clear that the compensation offer made by Canadian government negotiators in the fall of 2003 was made effectively on a "take-it-or-leave-it" basis which federal negotiators then refused to negotiate.

The last paragraph of Prentice’s July, 28th letter to the Belgian support group says:

"The impasse, which began in November of 2003, was the result of the Lubicons not accepting Canada’s offers on self-government and compensation".

It then says:

"I believe you will agree that this is quite different from your statement that Canada’s negotiator does not have a mandate".

How is it different? Making a "take-it-or-leave-it" offer that you unilaterally deem to be "fair" and then refuse to negotiate -- thereby creating an "impasse" in negotiations -- isn’t negotiating. It’s in fact refusing to negotiate. Moreover one doesn’t have to be analytical or interpretative about this situation. Canadian negotiators have expressly taken the position on a number of occasions that they have "reached the extent of (their) mandate with regard to financial compensation" and "have no mandate to negotiate self-government as part of a settlement of Lubicon land rights".

There are no "other First Nations in Treaty 8 that have settled similar claims". There are some First Nations that have settled long-standing treaty land entitlement claims not involving cession of vast tracts of valuable unceded traditional Territory. There are a couple of settlement agreements that government selected and paid lawyers have negotiated on behalf of new government created Indian Bands who either had no traditional territory to cede and/or for whatever reason were prepared to accept whatever the government was prepared to offer. The Lubicons are in fact the only historically recognized First Nation in the Treaty 8 area negotiating aboriginal land rights over a vast, resource-rich unceded traditional Territory.

What the 1990 UN Human Rights Committee decision in fact says is:

"Historical inequities, to which the State party refers, and certain more recent developments, threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 as long as they continue. The State party proposes to rectify the situation with a remedy that the Committee deems appropriate under article 2 of the Covenant". [The Covenant referred to is the International Covenant on Civil and Political Rights. Article 2 of that Covenant basically provides that each party to the Covenant undertakes to respect and ensure the rights of all people living with its territory. "Historical inequities" refers to the fact that the Lubicons were missed when treaty was negotiated with other aboriginal societies in the surrounding area. The "more recent developments" mentioned in the decision are massive resource exploitation activities in the unceded Lubicon Territory.]

UNHRC staff made very clear at the time that the Committee decision did not mean that the Committee found Canada’s 1989 "take-it-or-leave-it" offer to be "appropriate to rectify the situation". As Mr. Prentice should know, if only if it has been repeatedly pointed out in a variety of contexts, Committee members were talking about Canada’s publicly announced commitment to negotiate a mutually acceptable settlement of Lubicon land rights with the Lubicons, not about Canada’s 1989 "take-it-or-leave-it" offer. They were saying that they deemed negotiation of a mutually acceptable settlement of Lubicon land rights to be an appropriate remedy, not that the Committee found Canada’s 1989 "take-it-or-leave-it" offer to be "appropriate to remedy the situation". In fact one Committee official was specifically quoted in the Canadian media as saying that the Committee was "telling both sides to continue negotiating in good faith".

Last October that same UN Human Rights Committee reviewed the situation with Lubicon land negotiations and concluded:

"The Committee is concerned that land claim negotiations between the Government of Canada and the Lubicon Lake Band are currently at an impasse. It is also concerned about information that the land of the Band continues to be compromised by logging and large-scale oil and gas extraction, and regrets that the State party (Canada) has not provided information on this specific issue.

"The State party should make every effort to resume negotiations with the Lubicon Lake Band, with a view to finding a solution which represents the rights of the Band under the Covenant, as already found by the Committee. It should consult with the Band before granting licences for economic exploitation of the disputed land, and ensure that in no case such exploitation jeopardizes the rights recognized under the Covenant".

This October 2005 conclusion by the UNHRC was followed in May of this year with a second decision by a second UN committee under a second major international human rights covenant. It is well notable that this second decision was rendered after the current Canadian government came to power and Mr. Prentice had been appointed federal Minister of Indian Affairs. He is absolutely aware of this second UN committee decision because he has spoken publicly about it, albeit again inaccurately.

In May of this year the UN Committee on Economic, Social and Cultural Rights reviewed the situation with Lubicon land negotiations and concluded:

"The Committee strongly recommends that the State party [Canada] resume negotiations with the Lubicon Lake Band, with a view to finding a solution to the claims of the Band that ensures the enjoyment of their rights under the [International Covenant on Economic, Social and Cultural Rights]. The Committee also strongly recommends that the State party conduct effective consultation with the Band prior to the grant of licences for economic purposes in the disputed land, and to ensure that such activities do not jeopardize the rights recognized under the Covenant".

In neither of these recent UN decisions did the United Nations accept the Canadian government claim that the 1989 "take-it-or-leave-it" offer, or the supposedly "significantly more generous" 2003 "take-it-or-leave-it" offer, is "appropriate to rectify the situation".

The situation with regard to the issue of financial compensation is as follows.

Prior to 1984 the Lubicon position on financial compensation was based on a number of recognized legal categories including loss of use, damages and illicit expropriation of valuable natural resources taken from unceded Lubicon land. The dollar value of this approach to financial compensation was calculated by Lubicon lawyers in 1979 at a billion dollars.

In 1984 the federal Minister of Indian Affairs appointed the Hon. E. Davie Fulton to conduct an inquiry into the Lubicon situation and make recommendations regarding settlement of Lubicon land rights. Mr. Fulton recommended that financial compensation from the federal government be based on the value of lost programs, benefits and services which the Lubicons should have been receiving from the time of the signing of Treaty 8 in 1899 but hadn’t received. The resulting calculation, based on actual government figures, was $165 million in 1984 dollars. The Lubicons accepted the approach to calculating financial compensation owing from the federal government recommended by Mr. Fulton. Canada did not accept the recommendation of its own ministerially appointed Inquiry Officer.

In 1988 Alberta asked for a figure or formula for calculating what they called Alberta’s "exposure" with regard to financial compensation owing the Lubicons from Alberta for illicit exploitation of valuable natural resources taken from unceded Lubicon lands. The Lubicons tabled a formula of 10% of the 20% of the value of natural resources received by Alberta in royalties from resource companies for natural resources illicitly extracted from unceded Lubicon Territory -- effectively two cents on the dollar. Then Alberta Premier Getty said publicly that the resulting figure would be "in excess of $100 million" (meaning at that point the province had received something in excess of a billion dollars in royalty payments and the oil companies had extracted natural resources valued at something in excess of 5 billion dollars). Alberta did not accept the Lubicon proposal.

In 1988 there were thus two financial compensation figures on the table for negotiation, $165 million from the federal government for loss of programs, benefits and services using an approach suggested by federal Inquiry Officer E. Davie Fulton, and "in excess of $100 million" from the Alberta government calculated at the rate of 10% of the 20% of the value of natural resources paid to the province by the oil companies in royalties for natural resources illicitly extracted from unceded Lubicon Territory valued in excess of 5 billion dollars. (Currently the value of natural resources illicitly extracted from unceded Lubicon Territory is conservatively estimated at over $13 billion.)

In 1988 the governments of Canada and Alberta brought negotiation of financial compensation to an end by asking for "a bottom line figure" that the Lubicons would accept in financial compensation from both levels of Canadian government. The Lubicons tabled a bottom line figure of $100 million in 1988 dollars from both levels of Canadian government ($151,473,477 in 2005 dollars.) Neither level of Canadian government responded to the bottom line they had requested from the Lubicons.

In 1993, leading up to a provincial election, then Provincial Aboriginal Affairs Minister Mike Cardinal offered the Lubicons $6 million a year for a period of 10 years if the federal government would match it (for a total of $120 million over a period of 10 years from both levels of Canadian government). The Lubicons accepted Mr. Cardinal’s offer. The federal government did not respond to Mr. Cardinal’s proposal.

In 2003 federal negotiators offered the Lubicons $20 million in financial compensation and the province offered the Lubicons an additional $2 million. Federal negotiators insisted on treating the requested Lubicon bottom line of $100 million as the opening Lubicon position and proposed to negotiate some amount between $22 million and $100 million. This $22 million dollar figure is the offer to which Prentice refers in his July 28th letter.

The Lubicons refused to allow federal negotiators to define the requested bottom line figure as the Lubicons starting position and proposed different approaches to achieving the Lubicon goal of generating an adjusted $3-4 million dollars in independent revenue a year for the Lubicon Nation in exchange for ceding rights to valuable natural resources worth billions of dollars. Federal negotiators refused to seriously discuss other approaches for achieving the Lubicon objective of $3-4 million a year in independent revenues, insisted that the Lubicons negotiate some amount between the $20 million and the $100 million Lubicon bottom line, argued facetiously that they could "not negotiate with themselves", and, when pressed to get serious about negotiating financial compensation, took the position that $20 million was "the extent of (their) mandate" and that they had no mandate to negotiate anything more or different.

If this federal government position appears internally inconsistent and nonsensical it’s because it is. It’s another example of federal negotiators saying both that they have no mandate to negotiate any more or anything different but that they are prepared to negotiate. This is the way Chief federal negotiator Brad Morse tried to avoid the charge that the federal government was making a "take-it-or-leave-it" offer like the one made by the Conservative government in 1989. The Conservatives openly called the 1989 offer a "take-it-or-leave-it" offer and were criticized for such a high-handed and autocratic approach. Mr. Morse denied that the federal government was making a similarly high-handed and autocratic "take-it-or-leave-it" offer while at the same time taking the position that he had no mandate to negotiate anything more or different. (Provincial negotiators took the simpler, more straightforward but no more acceptable position that $2 million dollars was all they were prepared to provide or discuss.)

That’s where discussion of financial compensation ended at the end of 2003 -- with what amounted to a "take-it-or-leave-it" offer of $22 million total from both levels of Canadian government and both levels of government refusing to discuss anything more or different.

The situation with regard to self-government is as follows.

Lubicon self-government has been on the table in writing since 1984 and has been on the agenda of every subsequent round of Lubicon settlement negotiations as an essential element of any Lubicon settlement agreement. At the commencement of the last round of Lubicon settlement negotiations in July of 1988, Lubicon self-government proposals were given to Chief Federal Negotiator Brad Morse in writing as part of a package of essential items which had to be resolved for there to be a settlement of Lubicon land rights.

In July of 2003 Mr. Morse claimed that he had not earlier understood that the Lubicons considered self-government an essential element of any settlement of Lubicon land rights -- despite the fact that self-government had regularly come up at the negotiating table as an item that had to be settled for there to be a settlement of Lubicon land rights. Between July of 2003 and November of 2003 federal negotiators variously sought to either avoid negotiating self-government as part of a settlement of Lubicon land rights or to negotiate self-government provisions which would not be legally binding on the government of Canada. A letter which Chief Ominayak wrote to then Indian Affairs Minister Nault on October 24, 2003 describing those negotiations in some detail is available here.

In November of 2003 all pretense of negotiating self-government collapsed when Mr. Morse advised the Lubicons that he had no mandate to negotiate recognition of Lubicon self-government as part of a settlement of Lubicon land rights. Although spun in his July 28th letter to make it sound like something else happened, Prentice is not really saying anything different.

Prentice says "Canada’s negotiator also has a mandate to negotiate, as part of the land claim settlement, a [non-binding] Framework Agreement on Self-Government with the Lubicon people". "When the Lubicon rejected Canada’s offer to enter into negotiations on a Framework Agreement", he says, "Canada offered to put a clause in the land claim settlement that stated that self-government negotiations would begin following the successful ratification of the land claim settlement".

In point of fact neither of these so-called Canadian government "offers" would provide recognition of the right of the Lubicon people to be self-governing as part of a settlement of Lubicon land rights, and both of them would in fact require the Lubicons to cede valuable traditional Lubicon lands and resources prior to trying to negotiate binding recognition of Lubicon self-government with the government of Canada. A non-binding "Framework Agreement on Self-Government" is no more than agreement on what is to be negotiated post-settlement of Lubicon land rights; similarly an "offer to put a clause in the land claim settlement that stated that self-government negotiations would begin following the successful ratification of the land claim settlement".

In December of 2003 the Lubicons obtained a copy of secret Canadian Justice Department Guidelines for Federal Self-Government Negotiators instructing federal self-government negotiators how to negotiate agreements that would not be legally binding on the Canadian government, or, in effect, how to negotiate self-government agreements in bad faith. A copy of these secret Justice Department Guidelines is available here.

The Lubicons have been asking ever since that Canada appoint a negotiator with a mandate to negotiate all outstanding settlement issues in good faith, including financial compensation and self-government.

In June of 2005 then federal Indian Affairs Minister Scott proposed that the Lubicons either return to the table under what he called "the current mandate", or wait an indeterminate period of time while the federal government explored "The possibility that [talks between the previous federal government and the Assembly of First Nations] may result in recommendations for changes to the [federal government’s] Inherent Rights Policy that could possibly address the concerns the Lubicon people have expressed". (The "current mandate" of course limits financial compensation from the federal government to $20 million and doesn’t include negotiation of Lubicon self-government as part of a settlement of Lubicon land rights. Talks between the previous government and the Assembly of First Nations did not result in recommendations for changes to the Inherent Rights Policy. The current government is not pursuing those talks. And the onerous federal Justice Department Guidelines to federal self-government negotiators on how to negotiate self-government in bad faith are part of the federal government’s unchanged and still operative Inherent Rights Policy.)

The Lubicons responded to Minister Scott’s proposal to either return to the negotiating table under the current mandate, or to wait for a possible change in Canadian government policy respecting negotiation of the constitutionally recognized right of aboriginal people to be self-governing, by reiterating the Lubicon request that the federal government meet its constitutional responsibility to the Lubicon people by appointing a negotiator with a mandate to negotiate all outstanding Lubicon settlement issues in good faith. A copy of the letter containing Minister Scott's proposal is here and Chief Ominayak’s response is here.

What the Lubicons seek at a minimum with respect to self-government in any settlement of Lubicon land rights is recognition of the right of the Lubicon people to be self-governing and provision for post-settlement negotiation of arrangements whereby the governments of Canada, Alberta and the Lubicons can exercise their respective jurisdictions in a manner that is complimentary, uncontested and effective. Such an arrangement is wholly consistent with the way the federal and provincial levels of government operate in Canada with constitutional recognition of areas of jurisdiction as between the federal and provincial governments and on-going discussions between the different levels of government in Canada regarding how their constitutionally recognized respective jurisdictions can be exercised in a manner that is complimentary, uncontested and effective.

Basically all the Lubicons are asking is that their government be treated like other governments in Canada. With the inherent right of Aboriginal people to be self-governing also recognized in the Canadian constitution, one would think agreement on Lubicon self-government proposals would only be a technical matter of reaching agreement on how to proceed.

Although there may be other problems reaching agreement with Alberta, recognition of the right of the Lubicon people to be self-governing is likely the biggest barrier to achieving a settlement of Lubicon land rights with the government of Canada. One cannot understand the nature of the problem by simply reading Lubicon self-government proposals because on their face they seem straightforward and reasonable, as, for example, ex-federal Justice Minister and respected senior Canadian jurist the Hon. E. Davie Fulton found them to be.

In order to understand Canada’s negative reaction to Lubicon self-government proposals one has to read the secret Justice Department Guidelines for federal self-government negotiators. When one reads the Guidelines one can readily understand the problem; the nature of the truly despicable mentality giving rise to the problem; and the reason why those associated with the Guidelines want to both retain them and to keep them secret and confidential.

The last Lubicon self-government proposal for inclusion in a Lubicon land settlement agreement is as follows. The federal government has been given this proposal in writing and refuses to discuss it.

 

Proposed Lubicon self-government section and related schedule for inclusion in the Lubicon land settlement agreement.

"The Lubicon Lake Indian Nation asserts that it is a distinct Aboriginal society with a distinct Territory which it has historically used and occupied.

"The Lubicon Lake Indian Nation asserts that it has an inherent right of self-government and inherent self-government powers which it has the right to exercise in governance of its members.

"Canada recognizes the inherent right of self-government as an existing Aboriginal right under Section 35 of the Constitution Act, 1982 (The secret Justice Department Guidelines to federal self-government negotiators say that the Canadian constitution may recognize that Aboriginal people have the inherent right of self-government but the Canadian government doesn’t necessarily recognize that any particular Aboriginal society has the right of self-government.)

"The members of the Lubicon Lake Indian Nation are Aboriginal people within the meaning of Section 35 of the Constitution Act, 1982.

"Canada and the Lubicon Lake Indian Nation acknowledge that they might have different views on the scope and content of the inherent Aboriginal right of self-government but nevertheless agree to set aside possible legal differences in order to negotiate implementation of Lubicon self-government arrangements.

"Canada, Alberta and the Lubicon Lake Indian Nation acknowledge that Alberta’s role in Lubicon self-government negotiations will pertain only to developing a complimentary working relationship between Alberta and the Lubicon Lake Indian Nation in certain specific governmental areas and not to the issue of Lubicon self-government per se. (The reason for this clause is that Indians and lands reserved for Indians are a matter of exclusive federal jurisdiction under the Canadian constitution but operational arrangements still have to be made between Alberta and the Lubicons because Lubicons lands are located within Alberta provincial boundaries.)

"Canada, Alberta and the Lubicon Lake Indian Nation recognize that there is a lack of agreement about the respective jurisdiction of the three governments in a number of areas that must be resolved through negotiation for the three governments to exercise their respective jurisdictions in a complimentary, uncontested and effective manner.

"Canada, Alberta and the Lubicon Lake Indian Nation agree to enter into negotiations regarding the exercise of Lubicon self-government powers in accordance with the attached Lubicon self-government negotiation Schedule.

"The purpose of Lubicon self-government negotiations is to implement recognition of Lubicon self-government powers consistent with the principle that the inherent right of self-government is an existing Aboriginal right under Section 35 of the Constitution Act, 1982.

"This agreement to enter into Lubicon self-government negotiations is without prejudice to the parties respective views as to the scope and content of the inherent right of self-government.

"Noting in this Agreement to enter into Lubicon self-government negotiations shall be construed so as to abrogate or derogate from any Aboriginal or Treaty Right of the Lubicon Lake Indian Nation or its members, including the inherent right of self-government recognized and affirmed by Section 35 of the Constitution Act, 1982.

"Nothing in this Agreement to enter into Lubicon self-government negotiations shall affect the ability of the Lubicon Lake Indian Nation or its members to enjoy or exercise any existing or future constitutional rights of the Aboriginal peoples of Canada, or to benefit from any other arrangements or Agreements that may be applicable to the Lubicon Lake Indian Nation or its members.

"Proposed Lubicon Self-Government Schedule for attachment to the Lubicon Settlement Agreement

"1.)?Following ratification of the Final Settlement Agreement, Lubicon self-government negotiations shall commence between Canada and the Lubicon Lake Indian Nation within 60 days of the Lubicon Lake Indian Nation notifying Canada that the Lubicon Lake Indian Nation wishes Lubicon self-government negotiations to begin.

"2).?With the notification that the Lubicon people wish self-government negotiations to commence, the Lubicon Lake Indian Nation will submit a budget to Canada respecting the cost of Lubicon participation in Lubicon self-government negotiations and Canada shall pay the cost of Lubicon participation in self-government negotiations in an amount consistent with the cost of self-government negotiations between Canada and other First Nations in Canada. (Here the Lubicons are talking about a cost comparable to the cost of negotiations under the Inherent Rights Policy described in Chief Ominayak’s October 24, 2003 letter to Minister Nault.)

"3.)?Lubicon self-government negotiations shall be concluded within five (5) years of commencement unless the five (5) year time frame is expressly extended by the mutual consent of Canada and the Lubicon Lake Indian Nation.

"4.)?It is Canada’s position that the participation of Alberta may be necessary to conclude negotiations on selected self-government issues.

"5.)?The three governments acknowledge that there may be lack of agreement between the parties respecting the exercise of governmental powers until mutually satisfactory ongoing operational arrangements have been agreed.

"6).?Any issues pertaining to the exercise of governmental powers by the three parties which cannot be resolved through negotiation will be referred to the independent dispute resolution tribunal for non-binding arbitration.

"7.)?The independent dispute resolution tribunal shall consist of either three (3) or five (5) persons with one tribunal member chosen by each level of Canadian government involved in the dispute, one (1) tribunal member chosen by the Lubicon Lake Indian Nation for each member chosen by either level of Canadian government, and a chair either appointed jointly by the involved governments or by a Selection Committee jointly appointed by the involved governments prior to execution of the Final Settlement Agreement. ?

"8.)?Failure to successfully conclude a Lubicon self-government agreement constitutes a breach of the Final Settlement Agreement."


Jim Prentice was the Minister of Indian Affairs when the above was written, the new minister is

The Hon. Chuck Strahl
Minister of Indian and Northern Affairs
Government of Canada
Ottawa, ON K1A 0H4
Canada
Fax: (613) 944-9376
Email: strahl.c@parl.gc.ca


LETTER SENT BY BELGIAN SUPPORT GROUP TO MINISTER PRENTICE:


KWIA
Supportgroup for indigenous peoples
Martina Roels
Gorinchemstraat 52
B-9100 St.Niklaas
Belgium

10th June 2006

to

The Hon Jim Prentice
Minister of Indian Affairs and Northern Affairs
Government of Canada
Ottawa, ON K1A OH4
Canada

Your Honourable,

In your letter dated 31st may, 2006, you write : "it's my hope that all parties to the negotiations will recognize the significance of this progress and return to the negotiation table to build on it, with the goal of achieving a final settlement".

With this mail, KWIA, supportgroup for indigenous peoples, refers to the fact that there have been no Lubicon land negotiations since November of 2003 when federal negotiators took the position that they had no mandate to negotiate long-outstanding Lubicon settlement issues including self-government and financial compensation.

According to the findings of the UN Human Rights Committee in 2005, failing in negotiations makes your government accountable for human rights violations against the Lubicon Cree.

Therefore, KWIA asks that the Harper government appoints a negotiator with a full mandate to negotiate outstanding issues of self-government and financial compensation in good faith.

Sincerely,

 

Martina Roels
For KWIA

 


 

ANSWER RECEIVED FROM JIM PRENTICE:

 

Dear Ms.Roels:

This is in response to your letter of June 10,2006. Once again, I thank you for sharing your concerns with me; however, it seems that you have been misinformed. At no time have the federal negotiators taken the position that they have no mandate to negotiate issues of self-government and compensation. In fact, in the fall of 2003, Canada made a compensation offer to the Lubicon that was fair to the Lubicon, to other First Nations in Treaty 8 that have settled similar claims and to all Canadians. Canada's offer is significantly more generous than the 1889 offer to the Lubicon, which was found by the United Nations Rights Committee in 1990 to be "appropriate to rectify the situation".

In relation to self-government, Canada's negotiator also has a mandate to negotiate, as part of the land claim settlement, a Framework Agreement on Self-government with the Lubicon people. As you may know, a Framework Agreement is the first step in most negotiation processes. When the Lubicon rejected Canada's offer to enter info negotiations on a Framework Agreement, Canada offered to put a clause in the land claim settlement agreement that stated that self-government negoatiations would begin following the successful ratification of the land claim agreement, at a time when the Lubicon indicated their readiness to begin.

The impasse which began in November 2003, was the result of the Lubicon not accepting Canada's offers on self-government and compensation. I believe you will agree that this is quite different from your statement that Canada's negotiator does not have a mandate.

Sincerely,

The Honourable Jim Prentice, PC, QC, MP


LETTER TO MINISTER PRENTICE:

KWIA
Supportgroup for indigenous peoples
Martina Roels
Gorinchemstraat 52
B-9100 St.Niklaas
Belgium

10th August 2006

The Hon. Jim Prentice
Minister of Indian Affairs and Northern Affairs
Government of Canada
Ottawa, ON K1A OH4
Canada

Dear Mr. Prentice:

Thank you for your letter of July 28, 2006 responding to KWIA, supportgroup for indigenous peoples letter of June 10, 2006. With respect, Mr. Prentice, we are not misinformed about the Lubicon situation. You’re misinformed.

KWIA did read the documents, including a letter from your predecessor Mr. Scott, that make quite clear the limits of the federal negotiator’s mandate. That’s why we wrote you the letter we did asking that you appoint a negotiator with a mandate to negotiate all outstanding settlement issues in good faith.

People across Europe have read these documents as well. That’s why they write you the letters they do.

People at the United Nations have read these documents. That’s why they make the decisions they do holding Canada in violation of international human rights covenants.

You should read these documents too, Mr. Prentice, starting with the package of materials that Lubicon representatives hand-delivered to your personal staff the week before your appointment of Minister was announced, so that you do not, at least unknowingly, put yourself in the position of signing your name to letters that say things so many people know to be untrue.

Such letters do not serve your interests or the interests of your government. They only serve the interests of those whose bungling and wrong-headed decisions have perpetuated and exacerbated this disgraceful situation.

You have a choice. You can try to defend what others have done, and end up with blame for it, or you can act to bring this tragedy to an end by appointing a negotiator with a full mandate to negotiate all out standing settlement issues in good faith. For Canada’s sake, as well as for the sake of the Lubicon people, KWIA, supportgroup for indigenous peoples, joins with many others in hoping that you have the decency and good sense to choose the latter course.

Sincerely,

ORIGINAL SIGNED BY


Roels Martina
For KWIA, supportgroup for indigenous peoples

cc. Lubicon Lake Indian Nation
Friends of the Lubicon

 


LETTER FROM CHIEF OMINAYAK TO MINISTER PRENTICE

January 24, 2006:

Jim Prentice

Member of Parliament for Calgary Centre North
Suite 105
1318 Centre Street. NE
Calgary, Alberta T2E 2R7

Dear Mr. Prentice;

I am writing in anticipation that you will be Mr. Harper’s Indian Affairs Minister or at the very least will be briefing whoever is. I am writing to you at your Calgary Constituency Office at the suggestion of Dave Koop in an effort to have the attached materials delivered directly to you for your personal review, and/or the review of people on your personal staff, rather than having them automatically referred by government bureaucracy to departmental officials responsible for the Lubicon file. I am using this unorthodox approach because I have found that Ministers often don’t see such unedited materials but only briefing notes, recommendations and draft letters of response prepared by Departmental officials. I have found moreover that the materials prepared by Department officials frequently reflect their own predilections more accurately than they reflect the reality politicians are asked to make decisions about.

There have been no Lubicon land negotiations since November of 2003 when federal negotiators took the position that they had no mandate to negotiate long-outstanding Lubicon settlement issues including self-government and financial compensation. We told federal negotiators to go get a mandate to negotiate long-outstanding Lubicon settlement issues. Rather than dealing with the resulting impasse the incoming Martin government effectively put Lubicon settlement negotiations on hold.

Part of the reason the Martin government put Lubicon land negotiations on hold was apparently a tactical decision to avoid taking potentially controversial action on issues facing the country while they tried to improve their standing in the polls. As you know, many pressing issues were referred to so-called "Roundtables" for discussion rather than being addressed. Lack of a Lubicon settlement is not only a pressing problem for the Lubicon people. As resource company officials will tell you, lack of a Lubicon settlement makes everything vastly more complicated and difficult for everybody with interests in north central Alberta.

Another reason Lubicon settlement negotiations were put on hold was clearly related to federal bureaucrats misleading federal Cabinet Ministers about Lubicon settlement positions and issues at the negotiating table. In July of 2002, for example, then Minister Nault told us he’d been advised that the Lubicons were demanding "a blank check for ten years" to cover possible community construction cost overruns. The issue was in fact how to handle the possibility of construction cost overruns due to anticipated changes in construction codes and standards. It was first raised by then Chief Federal Negotiator Bradford Morse in a kind of meandering, conversational, absent-minded way.

The Lubicon people responded to Professor Morse’s ramblings about the possible cost implications of anticipated changes in construction codes and standards by proposing carefully qualified clauses on how to deal with possible construction cost increases due to anticipated changes in construction codes and standards. The proposed Lubicon clauses dealt in particular with changes in construction codes and standards necessitated by health and safety concerns. These clauses were clearly required to ensure completion of community buildings and facilities under the proposed settlement agreement but expressly specified that no additional money would be involved unless anticipated changes to construction codes and standards significantly increased community construction costs. Following a meeting with Mr. Nault the proposed Lubicon clauses were agreed.

More recently, in February of 2004, current Chief Federal Negotiator Sharman Glynn sent Minister Mitchell a Briefing Note saying "the Lubicons have refused to move from their opening position on compensation". In September of 2004 Ms. Glynn sent Minister Scott another Briefing Note saying the Lubicons have "never once consider(ed) a review of its own (position on financial compensation) which", she claimed, "has been in place since the 1980s".

In fact, in 1989, federal negotiators effectively ended negotiation of financial compensation based on substantive categories of loss and damages with a request for a bottom line. They then refused to discuss the substantive basis for financial compensation insisting instead that we negotiate financial compensation back and forth starting simply with the requested bottom line, without reference to the substantial basis for financial compensation -- as though we were dickering over the price of a used truck instead of trying to negotiate an equitable settlement of valuable Lubicon land rights which would allow the Lubicon people to once again become self-sufficient.

It was this transparent negotiating slight of hand the Lubicons refused to go along with. We did not refuse to "move from (our) opening position on compensation". We moved first when Federal Inquiry Officer the Hon. E. Davie Fulton proposed that we base financial compensation from the federal government on loss of programs, benefits and services rather than the much higher figure associated with loss of aboriginal lands and destruction of our traditional way of life. We moved again when we agreed to effectively forego negotiation of financial compensation and to table the again much lower bottom line figure we would be prepared to accept. Moreover we have suggested a number of other possible approaches to financial compensation, such as revenue generating equity participation in major resource projects, all of which federal negotiators have refused to seriously consider insisting instead that we simply dicker back and forth starting with the bottom line they had requested.

Subversion and manipulation of political decision-making by federal bureaucrats for their own intents and purposes is of course not a new problem for Indians or for federal Cabinet Ministers. Mr. Nault became aware that he was receiving inaccurate and misleading information from federal negotiators on Lubicon land negotiations and sought to grapple with the problem by establishing direct communication with us. We proposed similar direct communication with Martin government Ministers Mitchell and Scott but they didn’t respond, choosing instead to simply rely on demonstrably inaccurate briefing notes provided by federal negotiators.

Basically what federal officials told Ministers Mitchell and Scott was that the reason Lubicon land negotiations have been going nowhere for years is not because federal negotiators have badly bungled negotiations but because the Lubicons are impossible to deal with. Such a characterization of course provides politicians little motivation to become involved, serves to create a kind of self-fulfilling prophecy and effectively lets bungling federal officials off the hook. A broad range of credible independent observers have found otherwise, however -- including the Hon. E. Davie Fulton -- and have said so in writing. Lubicon settlement positions are also in writing, and are attached, so you can read them and judge for yourself.

Simply relying on demonstrably inaccurate information from federal bureaucrats has not served Canadians well and has resulted in, among other things, a recent United Nations Human Rights Committee decision critical of Canada’s handling of the Lubicon situation. The Committee reaffirmed its 1990 decision finding Canada in violation of the International Covenant on Civil and Political Rights over abuse of Lubicon human and aboriginal land rights. It urged Canada to "make every effort to resume negotiations with the Lubicon Lake Indian Band with a view to finding a solution which respects the rights of the Band under the Covenant". It said -- implicitly portending the myriad of serious practical problems created for everybody by lack of a Lubicon settlement -- Canada "should consult with the Band before granting licences for economic exploitation of the disputed land, and ensure that in no case such exploitation jeopardizes the rights recognized under the Covenant".

This situation is well documented in the attached materials. If this letter with attachments is simply referred to the bureaucracy for assessment and response, however, the new Minister will receive only the bureaucrats’ defensive, self-serving, factually inaccurate and misleading "mantra" regarding the Lubicon situation. Contrary to what those officials will predictably tell the new Minister, this material is not so complicated, technical and politically tricky that you need them to tell you what it all means, what should be done about it and how the sky will fall if you don’t accept their advice on how it should be handled. Before accepting the bureaucrats’ purposefully canted version of things, I urge you to personally review these materials, and/or to have people on your personal staff review them, and to discuss any questions or concerns that you or they might have with us.

Basically what we ask is that the Harper government is simple and straightforward. We ask that the Harper government appoint a negotiator with a full mandate to negotiate outstanding settlement issues in good faith. We ask that the Harper government expressly reject the secret 1996 Justice Department Guidelines to Federal Government Self-Government Negotiators on how to negotiate self-government in bad faith. And we ask that the Harper government provide us with financial assistance to cover the cost of work we’ve been doing and need to do in order to participate effectively in negotiations.

As the attached summary of Lubicon settlement items and issues spells out, all of the involved issues have been repeatedly vetted. Much has already been agreed. Most of the necessary technical work is done. Given a sincere will to settle I am convinced -- as are others familiar with the file -- that a settlement of Lubicon land rights can be achieved in the first months of a new Harper government. The Lubicon people are prepared to start immediately and to work full time until a mutually satisfactory settlement agreement is accomplished.

Sincerely,

ORIGINAL SIGNED BY

 

Bernard Ominayak

Chief, Lubicon Lake Indian Nation

Attach:Final Report of the Lubicon Settlement Commission of Review
October 24, 2003 letter to Minister Nault
March 22, 2004 letter to Minister Mitchell
August 24, 2004 letter to Minister Scott
October 15, 2004 letter from Minister Scott with November 24, 2004 response
February 08, 2005 letter to Minister Scott with attachment
June 23, 2005 letter from Minister Scott with July 03, 2005 response
November 03, 2005 Edmonton Journal article with November 03, 2005 response
November 03, 2005 Edmonton Sun article with November 03, 2005 response
November 26, 2005 Memorandum of Intent with November 27, 2005 response
December 21 2005 Edmonton Sun article with December 21, 2005 response
December 22, 2005 Edmonton Sun article with December 22, 2005 response
December 27, 2005 Record-Gazette article with December 30, 2005 response
January 10, 2006 Edmonton Sun article
January 16, 2006 Edmonton Sun article
January 17, 2006 Record-Gazette article
 


To receive timely e-mail updates on the Lubicon situation, please send an e-mail with the word subscribe in the subject line to
fol-request at masses.tao.ca