May 10, 2007
Attached please find an article from Edmonton's Vue Weekly concerning the Lubicon situation. The article helps document the evolving federal government position vis a vis the Lubicon Lake Indian Nation. Sadly, it appears the federal position is evolving further and further away from reality.
The article quotes Indian Affairs official Chris Wilson denying that the United Nations Human Rights Committee has issued any statements on the Lubicon -- even though the UNHRC has issued three decisions on the Lubicon situation and has clearly condemned Canada's treatment of the Lubicon people as a violation of the International Covenant on Civil and Political Rights. Further, the United Nations Committee on Economic, Social and Cultural rights has reiterated the UNHRC's findings.
The article quotes Indian Affairs official Chris Wilson saying "[The Lubicon] were missed at the time the treaty commissioners went into that territory, so Treaty 8 does in law extinguish title to the land," adding that "The title to the entire area of Treaty 8 was transferred to the crown when the treaty was signed by the majority of aboriginal groups in the territory."
It would be a sad day for the rule of law if Chris Wilson was right. Fortunately, like the other comments attributed to Indian Affairs officials in this article, it's just not true. Under Canadian law one First Nation's aboriginal title to its land can't be signed away by other, separate aboriginal groups, no more than your neighbours down the street can legally sign away the title to your house. Under Canadian law, the federal government must sign a treaty with the specific aboriginal owners of a particular territory prior to assuming title to that area.
The article quotes Indian Affairs official Chris Wilson saying "If a company were to try to develop in that area, the Lubicon have rights, just like anybody else to the Energy and Utilities Board (EUB) process. If they feel that they have some interest thats going to be compromised by development, they have every right to go to the EUB and raise that issue and seek some avenue of redress, and actually theyve done that quite successfully."
Lubicon supporters may wonder what success on which planet Wilson is referring to. The Alberta Energy and Utilities Board has approved every one of the more than 2000 oil and gas wells on Lubicon territory despite the unresolved nature of Lubicon land rights. They have yet to rule in favour of the Lubicon Nation on any oil and gas project. Any limited success in stopping or altering oil and gas projects on Lubicon territory has come through protracted, bitter struggle on the part of the Lubicon and their supporters.
Lastly, the article quotes Indian Affairs official Glen Luff saying "For some reason or other, we havent been able to negotiate a land claim with the Lubicon. So our question is why havent we been able to negotiate with the Lubicon, when we have sat down at the table in good faith, as we have with all other First Nations, using the same mandates and the same frameworks of negotiation? I have to throw that back at the Lubicon, and I think you should ask them the same question."
Glen Luff and Chris Wilson have answered their own question. When Indian Affairs officials can't even tell the truth about easily verifiable matters like those cited above, it's not hard to imagine why sincere, good faith negotiations with those same people have been so elusive.
Thursday, May 10, 2007
For the Lubicon Lake Indian Nation, a First Nations band living in and around the small community of Little Buffalo near the Town of Peace River in northwestern Alberta, the boom in Albertan black gold has not meant an opportunity for better living.
Almost a year after Canada responded to the United Nations (UN) for what the Lubicons have called a violation of human rights abuses in an ongoing struggle between the band and the government of Canada, there is no evidence of any change or forthcoming solution for the Lubicon.
This is, however, nothing new for the band of 500, with last years complaint to the UN marking their fourth such attempt at voicing mistreatment, after a 1987 UN decision, the 1990 finding of the 38th session of the UN Human Rights Committee (UNHRC), and most recently at the 85th session of the UNHRC / 36th session of the UN Covenant on Economic, Social and Cultural Rights (UNCESCR) in 2006.
The Lubicons complaint hinges on the idea that they have been treated inequitably by the Canadian government, as they state in submissions to the UNHRC.
"Canadas continuing abuse of the human rights of the Lubicon people is also in violation of the International Convention on the Elimination of All Forms of Racial Discrimination, and in particular Section 5 of General Recommendation number 23 of the Committee on the Elimination of Racial Discrimination," according to the Lubicons 2006 submission to the UN.
The federal government, on the other hand, sees things differently. Chris Wilson, the negotiations support unit manager with the Canadian governments Ministry of Indian and Northern Affairs (INAC), refutes any allegations of human rights violations.
"Im not sure that the Canadian governments read [is] that we were in violation of anything," Wilson said. "The Lubicon filed something, weve responded, and the Lubicon have responded to our response, but the committee [UNHRC] itself has not issued any [recent] statement on the reports issued by the parties. We dont accept that allegation."
Fred Lennarson, an advisor to the Lubicon Lake Indian Nation, disagrees.
"There have been three human rights decisions pertaining to the Lubicon situation, holding Canada in violation of two international human rights covenants," Lennarson said. "Canada ignores them."
His explanation for this neglect points to larger problems as he illustrates the disparity between the actual and the perceived.
"There is a myth about the kind of country that Canada is and the kind of people that live here, and then there is the reality," he said. "Canada has been negotiating an indigenous charter of rights for 20 years with a bunch of other countries at the level of the United Nations, and at the end, voted against it saying they were afraid they were going to jeopardize rights that indigenous people in Canada already have.
"Its a transparent sham," Lennarson continued, audibly frustrated, "but they said they were concerned that it left undefined land rights."
So far, the UN has not yet responded to the Lubicons most recent submission. And with negotiations at a complete standstill, tension persists between the federal government and the Lubicon.
According to director of communications for the INAC, Glenn Luff, the two parties have halted talks for a couple of reasons.
"We havent had a main table negotiation since November of 2003," Luff said. "There are two issues which are the major stumbling blocks: one is the issue of self-governance and the other is us agreeing on an appropriate level of compensation for the number of years that the Lubicon Lake Indian Nation has been without a land base and has benefited from that land base."
But the issues of self-governance and land rights are not so easily separated, Lennarson says.
"The government wants the Lubicon to cede the right to these lands and resources and agree to talk about self-government post settlement, and the Lubicons refuse to do that," he explained. "The Lubicons have said that recognition of their right to be self-governing has got to be part of any settlement of Lubicon land rights."
Land and the rights associated with it have been a longstanding matter for the Lubicon.
In 1899, when treaty commissioners with the Canadian government were attempting to group aboriginal peoples under various treaties, the Lubicons were passed over due partly to their location and the size of their population. Without a treaty, the Lubicon Lake Indian Nation stands out as a First Nations band that has comparatively little power over lands that they inhabit, which is unusual as negotiation of a treaty is the method for the taking of aboriginal land under Canadian law.
Not surprisingly, the Lubicons and the government of Canada disagree about the issue of control over the contested lands.
According to Luff, from the federal governments point of view, concern over land is at the heart of the confusion.
"When were talking about the Lubicon [and] their traditional territory, which covers a considerably larger expanse of land, what youre really talking about here is provincial crown land," he said.
Wilson explained how the Lubicon were stripped of any title they might have had to territorial lands.
"[The Lubicon] were missed at the time the treaty commissioners went into that territory, so Treaty 8 does in law extinguish title to the land," he explained. "Thats not a position that the Lubicon accept, but its the position of the government of Canada and the province of Alberta.
"The title to the entire area of Treaty 8 was transferred to the crown when the treaty was signed by the majority of aboriginal groups in the territory," Wilson added.
Essentially, the Lubicon have had their rights to the land taken from them without ever having signed a treaty with the Canadian government, according to negotiator Kevin Thomas. While Thomas agrees that the Lubicons situation is complex, he cuts through to a key point in the conflict.
"Because of the long history, theres lots of events, but the underlying issue is quite simple," Thomas said. "Canada and Alberta have taken lands and resources that dont belong to them, and theyve neverby their own lawssigned a treaty to get access to those lands and resources. Theyre in violation of the Canadian constitution until they come to the table and negotiate a treaty."
Thomas explained that the land that the Lubicon historically used and occupied was a 10 000-square-kilometre territory, based on community sites, grave sites, trails, hunting areas and trap lines. In his mind, the small bands demands were not unreasonable.
"What theyre talking about at the table is not to hold on to all the land and resources. Theyre talking about setting up a reserve of about 246 square kilometres or 95 square miles." Thomas said.
"So compare 4 000 square miles [10 000 km2] down to 95 that theyre willing to set up as a reserve community. And on that reserve try to have some kind of economy to replace the hunting and trapping economy they had in the larger territory. And in turn also have some kind of resource base for their community to succeed economically in the futuresomething that replaces all the lands and resources theyre giving up. Thats, I think, eminently reasonable when you look at the 10 000 square kilometres and whats been given to Canada and Alberta from that land."
However, both INAC spokesmen disagree with Thomass rationalization of the Lubicon position.
"Self-governance was an area where we had very different views and [havent] come to an agreement, but we would like to," Wilson said. "The final one is compensation, and weve got a mandate that we feel is reasonable and fair with other settlements that weve achieved in Alberta, and the Lubicon have a different position.
"With respect to the lands that the Lubicon have asked for in the negotiations, we have holding reservations. The province has put in place holding reservations so that no development occurs on those lands," he added. "Now, with respect to the larger area referred to, its just massivewere talking about 900 000 hectares of land. Thats roughly the size of the state of Maine, or the country of Prague [sic]these are huge tracts of land."
The negotiations manager added that the Lubicon do have a platform for appeal.
"If a company were to try to develop in that area, the Lubicon have rights, just like anybody else to the Energy and Utilities Board (EUB) process," Wilson said. "If they feel that they have some interest thats going to be compromised by development, they have every right to go to the EUB and raise that issue and seek some avenue of redress, and actually theyve done that quite successfully."
Without a settlement, the Lubicon see their land being eroded by corporate interest in the resource rich area, Thomas said, pointing to a massive disparity between what the Lubicons have been provided with and what has been extracted in terms of resources.
"Weve calculated at minimum $13 billion in oil and gas resources that have come out of there. [There are] well over 2 000 oil wells drilled up there," he explained. "Theyre just now starting to get into oil sands, forestry; theyre looking for diamonds up in that area, were talkingI want to say gold mine, but thats the only kind of mine there isnt there yet."
Despite this, engaging in bureaucratic process is not the only concern for the Lubicon. The federal government has provided the band with a "comprehensive agreement" (signed in Apr 2006), a yearly package of approximately $3 million that goes towards services and programs.
Lennarson breaks down the numbers of the financial package that the Lubicon receive for government programs and services. He notes that half of the $3 million goes to a school in Little Buffalo, $800 000 of it goes to welfare at the rate of $235 a month per individual, and $140 000 of it is for housing for a community of 500 people95 per cent of whom are on welfare.
"When you look at what it consists of, the Lubicons are essentially being given enough to maintain themselves in welfare dependence on subsistence," Lennarson said.
With minimal assistance, the Lubicon community struggles to meet their needs, according to both Thomas and Lennarson.
"I dont know if anyone else in Alberta is able to do very much with $140 000 in construction these days," Thomas said. "Its pretty damn hard to supply a community with decent housing with that amount of funding. So the reality is they have terrible housing, they have no running water, which is an issuethey have to drive an hour to Peace River to get water. They have had problems with things like tuberculosis, which has re-emerged in the last year."
While the Lubicon continue to appeal to larger groups like the UN, both sides continue to avoid the negotiating table. There is, however, hope that the stalemate is not a permanent fixture in Canadian and First Nations relations.
Thomas hints at the possibility of a new round of negotiations.
"Theres been sort of murmurs of trying to get back to the table. I think the current Indian Affairs Minister [Jim Prentice], when he was in opposition, was quite clear that negotiations should restart," Thomas explained. "The circumstances havent changed since he became minister, but he hasnt begun negotiating yet. I am hopeful that hes making some moves in that direction. We can only hope that they come to their senses and get this taken care of."
Luff says that the government is optimistic about resolving matters with the Lubicon, adding that there is a precedent of success in dealings with First Nations.
"For some reason or other, we havent been able to negotiate a land claim with the Lubicon. So our question is why havent we been able to negotiate with the Lubicon, when we have sat down at the table in good faith, as we have with all other First Nations, using the same mandates and the same frameworks of negotiation," Luff said. "I have to throw that back at the Lubicon, and I think you should ask them the same question."
Unfortunately, Vue wasnt able to directly ask the Lubicon that question. Numerous attempts at contacting Chief Bernard Ominayak were unsuccessful.
Lennarson, an advisor to the Lubicon, mentioned that dealing with reporters is not necessarily a priority for the Lubicons.
"I was involved with trying to facilitate media communication with the Lubicons, but there were lots of problems on both ends, so I dont do it anymore," Lennarson said. "Frankly, Id be pleased if the Lubicons were free with reporter interviews, but they arent always."
Regardless, the Lubicons situation marks an enduring lack of ability or desire to find solutions. At their base level, the problems associated with the case are deeper moral and ethical issues, according to Lennarson.
"Its a terrible situation," he admitted. "I think any decent human being would like to see it resolved in a way that enables the Lubicon people to survive and try and live their lives, raise their children, meet their responsibility, but certainly theres no indication for me that the Canadian government are prepared to meet their constitutional responsibilities, that are moral and ethical responsibilities or anything else."
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