Chief rebuts Prentice's latest upside-down backwards interpretation of Canadian history, law and justice

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

June 6, 2007

Indian Affairs Minister Jim Prentice is responding to letters from Lubicon supporters with a new form letter purporting to provide "information on Canada’s policy on fulfilling treaty rights and, more specifically, the efforts Canada has made in trying to fulfil the Lubicon’s outstanding treaty rights."

Right off the bat, Lubicon supporters will know that the Lubicon people have never signed a treaty with Canada and therefore retain unextinguished aboriginal title to their lands and resources. Trying to characterize Lubicon rights as treaty rights is a long-standing government ploy intended to limit their responsibility to provide a just settlement for the Lubicon Nation.

Attached for your information is Mr. Prentice’s letter to a Lubicon supporter, as well as a letter to the same supporter from Lubicon Chief Bernard Ominayak. Both are instructive.

Mr. Prentice’s letter is indicative of the latest approach to denying Lubicon land rights -- and aboriginal rights in general -- taken by the Canadian government. Mr. Prentice writes that "Due to the isolated location of the Lubicon people, ancestors of the Lubicon Lake Indian Nation did not directly sign Treaty 8 when it was negotiated with the Aboriginal peoples of Northern Alberta in 1899; however, it is Canada’s position that Aboriginal title to the land covered by Treaty 8 was extinguished in exchange for the right to adhere to treaty."

"The idea that an indigenous nation loses its aboriginal rights and title and ends up with only ‘the right to adhere to treaty’ simply by being located in an area unilaterally defined by Canada as a treaty area is novel in Canadian history and law," Chief Ominayak responds. "For there to be a treaty under Canadian law, it must be shown that the Crown and the indigenous nation both intended to make treaty. Where intentions are not clear on the written record, the actions of the parties are taken to infer intentions. It is clear that a treaty cannot exist without an exchange between the parties."

There has been no treaty between the Lubicon Nation and Canada.

Whether there will be a treaty between the Lubicon Nation and Canada depends on whether the Lubicon Nation and their supporters can successfully reverse the backwards, upside-down interpretation of law, history and justice presented in Mr. Prentice’s latest letter to Lubicon supporters.

 


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 From Mr. Prentice To Lubicon Supporter:

March 20, 2007

Dear Ms. ---:

This is in response to your correspondence dated January 15, 2007. Thank you for taking the time to express your concerns to me about the Lubicon Lake Indian Nation. I would be pleased to share with you some information on Canada’s policy on fulfilling treaty rights and, more specifically, the efforts Canada has made in trying to fulfil the Lubicon’s outstanding treaty rights.

During the last century, Aboriginal leaders signed treaties whereby they exchanged certain Aboriginal rights for specified rights and benefits set out in these treaties. In the case of the Lubicon, they reside within the boundaries established by Treaty 8, which was entered into with the Cree and other Indians of the area in 1899. Due to the isolated location of the Lubicon people, ancestors of the Lubicon Lake Indian Nation did not directly sign Treaty 8 when it was negotiated with the Aboriginal peoples of Northern Alberta in 1899; however, it is Canada’s position that Aboriginal title to the land covered by Treaty 8 was extinguished in exchange for the right to adhere to treaty. This position was supported by the Supreme Court of Canada in the Bear Island case in 1991. The Court recognized that Canada has an obligation to provide the benefits of the Treaty.

At issue here is the fact that the Lubicon Lake Indian Nation has not received the collective benefits owing pursuant to Treaty 8 such as land and some ancillary benefits. There is evidence in the Department’s records that individual members of the Lubicon Band have received their individual benefits such as ammunition and twine.

The Canadian government acknowledges that the Lubicon Lake Indian Nation has a valid claim to benefits under Treaty 8. The goal of the negotiations with the Lubicon during the past 25 years has been to reach a settlement on those collective treaty benefits. Treaty 8 is the basis of offers made by the Canadian and Alberta governments to the Lubicon Lake Indian Nation.

During the latest round of negotiations, which ran from 1998 to 2003, both Alberta and Canada agreed to honour the Grimshaw Accord. The Grimshaw Accord was an agreement struck by Chief Ominayak and Premier Don Getty at the little town of Grimshaw in 1989, in which Alberta agreed to provide 95 square miles of reserve land to the Lubicon people. This land quantum is based on the Treaty 8 formula and it is the only land to which the Lubicon are entitled. The Treaty extinguished any rights the Lubicon may have had to any other land prior to 1899.

Following the agreement on land in 2002, the Lubicon Lake Indian Nation selected 247 square kilometres of land (95 square miles) for three reserves. Alberta has taken special measures to ensure that lumbering and oil extraction do not occur within this area and Canada and Alberta have jointly purchased most of the third party interests.

The 10,000 square miles of land (referred to as the teardrop) that the Lubicon claim as their traditional territory and from which they claim economic losses is also claimed by several other Aboriginal communities. All of these Aboriginal communities have the right to use this land for their traditional activities until the land is taken up by the province.

Canada and the Lubicon also agreed on the membership/beneficiaries issue, and all the details related to the construction of a new community at Lubicon Lake, the original home of the Lubicon people. Alberta and Canada also made individual financial offers to the Lubicon to fully support a number of economic development proposals put forward by the Lubicon to enable the Lubicon people to be self-sufficient after the land claim settlement. In addition, a fair and reasonable compensation offer based on Canada’s lawful obligations, was also made to the Lubicon.

Canada has a full mandate to negotiate a settlement of the Lubicon Lake Indian Nation treaty rights pursuant to Treaty 8. In addition, although not obligated by law, Canada’s mandate includes, on a strictly policy basis, the authority to negotiate the construction of a new community for the Lubicon people at Lubicon Lake, where they originally resided.

While I too am concerned about the lack of a settlement of this long standing claim, I cannot force the Lubicon to return to the negotiation table, nor can I force them to accept Canada’s settlement offer. I can assure you that Canada has invested a significant amount of time, energy, and resources toward achieving our goal of a settlement that is fair and reasonable to all parties. Canada has provided millions of dollars to the Lubicon to support its participation in the negotiation process as well as assigning extremely capable senior public servants and Chief Negotiators, chosen from outside the Public Service, to represent Canada over the past 25 years.

Since 1973, Canada has settled 275 Specific Claims nationally as of September 30, 2006. In Alberta, 40 claims have been resolved, which includes settlements of 11 Treaty Land Entitlement Claims and two Adhesion Claims that are similar to that of the Lubicon. At present, there are approximately 123 Specific Claims in negotiation and Canada is committed to resolving these outstanding grievances to the benefit of First Nations and all Canadians. The settlement of the Lubicon Lake claim remains a priority for the Government of Canada; however, there is more involved in reaching a settlement than the desire for one. All parties must be prepared to compromise and Canada must negotiate within the parameters in place for the negotiation of land claims which ensure that settlements are fair to all parties, including other First Nations and Canadian taxpayers.

Thank you once again for sharing your concerns with me.

Sincerely,

Original signed by

a signé l’original

The Honourable Jim Prentice, PC, QC, MP

c.c.: The Honourable Stephen Harper, PC, MP
Jean Crowder, MP
Keith Martin, MP
Anita Neville, MP
Mr. Phil Fontaine
Chief Bernard Ominayak
Kairos Canada

 

* * * * * * *

Letter From Chief Ominayak To Lubicon Supporter:

May 22, 2007

Dear ---,

Thank you for sending me a copy of the March 20, 2007 letter you received from Mr. Prentice. My reactions are as follows.

Although Mr. Prentice’s March 20th letter is personally addressed and presented as a personal response to a letter he received from you, it is in fact a form letter that is being sent to people who write Mr. Prentice about the Lubicon situation. Copies of exactly the same letter are known to have been received by a number of others.

Mr. Prentice’s March 20th letter is part of an evolving Federal Government campaign to try and convince people that the federal government dealt properly with Lubicon land rights before allegedly transferring Lubicon lands and resources to the Province in 1930; that Lubicon lands and resources are now properly under Provincial jurisdiction; that resource company leases and licenses in Lubicon Territory are valid and the valuable natural resources they are extracting are being legally taken; and that Lubicon rights are limited to the Federal Government’s questionable interpretation of the provisions of a treaty to which the Lubicon people are not a party.(The Treaty Commissioner’s cover letter to Treaty 8, for example, provides a quite different description of what was agreed with regard to hunting and trapping rights than the significantly more limiting text of the Treaty upon which the Canadian Government chooses to base its so-called "legal obligation".)

The first paragraph of the March 20th Prentice letter indicates that Mr. Prentice is "pleased to share...some information on Canada’s policy on fulfilling treaty rights and, more specifically, the efforts Canada has made to fulfil (sic) the Lubicon’s outstanding treaty rights". In fact the Lubicons did not sign Treaty 8. We are not a party to Treaty 8. And we assert continuing aboriginal rights and title over our entire traditional Territory.

By agreement between Canada and the Lubicons, all Lubicon land negotiations going back to 1984 have been without prejudice to the different positions of Canada and the Lubicons regarding the nature of Lubicon land rights. This agreement has been regularly reaffirmed during all Lubicon land negotiations.

Canada’s proposal at the negotiating table with respect to determining the nature of Lubicon land rights -- not agreed by the Lubicons but considered to be a possibility -- is that the Lubicons will sign an adhesion to Treaty 8, joining Treaty 8, if agreement can be reached on all of the other elements of a settlement of Lubicon land rights.

Historically the facts are clear although Canada keeps coming up with different versions to try and support their tenuous position that the Lubicons are covered by a treaty to which the Lubicons are not a party. In 1899, with no actual knowledge of the inaccessible hinterland north of Lesser Slave Lake, Treaty Commissioners estimated that "about 500" Indians lived in the area and speculated that "most, if not all, of this number belong to bands that have already joined in the treaty...(so)...the Indian title to the tract it covers can fairly regarded as being extinguished". During the 1930s, prior to first contact between Canada and the Lubicons in 1939 that confirmed that the Lubicons are a separate and distinct indigenous nation, the Canadian position was that the Lubicons were members of Bands that had signed treaty and who had "wandered off into the bush". In the mid-1980s, at the time of the Fulton Inquiry and much to Mr. Fulton’s discomfort when he reviewed relevant history and law, the Canadian position was that the Lubicons lost our aboriginal rights and title in 1930 through "an act of sovereignty" when Canada transferred vast tracts of land, allegedly including Lubicon Territory, from Federal jurisdiction to provincial jurisdiction.

Now Mr. Prentice acknowledges that the Lubicons are not a party to treaty saying "Due to the isolated location of the Lubicon people, ancestors of the Lubicon Lake Indian Nation did not directly sign Treaty 8 when it was negotiated with the Aboriginal people of Northern Alberta in 1899..." "However", Mr. Prentice continues in the Government’s latest version of how the Lubicons are covered by a treaty we didn’t sign, "it is Canada’s position that aboriginal title to the land covered by Treaty 8 was extinguished in exchange for the right to adhere to Treaty".

The idea that an indigenous nation loses its aboriginal rights and title and ends up with only "the right to adhere to treaty" simply by being located in an area unilaterally defined by Canada as a treaty area is novel in Canadian history and law. For there to be a treaty under Canadian law, it must be shown that the Crown and the indigenous nation both intended to make treaty. Where intentions are not clear on the written record, the actions of the parties are taken to infer intentions. It is clear that a treaty cannot exist without an exchange between the parties.

Mr. Prentice claims "This position (that aboriginal title to the area covered by Treaty 8 is ceded in exchange for the right to adhere to Treaty) was supported by the Supreme Court of Canada in the Bear Island Case in 1991". He says "The Court recognized that Canada has an obligation to provide the benefits of the Treaty".

Leaving aside the question of whether the Canadian courts have ever found that aboriginal rights and title can simply be expropriated unilaterally by Canada "in exchange for the right to adhere to Treaty", the facts of the Bear Island case are readily distinguishable from the Lubicon case and the Bear Island decision is clearly not applicable to the Lubicon situation. Of particular note in the Bear Island decision is the finding by the Court that the Bear Island people and the Crown both intended to enter into treaty and did enter into treaty.

In the Bear Island case the Court found that (1) the Crown was aware of the existence of Bear Island society at the time of treaty; that (2) the Crown intended to include the Bear Island people in the treaty; that (3) a prominent Indian represented the Bear Island people in treaty negotiations and secured a reserve intended for the Bear Island people; that (4) the Bear Island people sought and accepted benefits of treaty in addition to reserve lands; that (5) the Bear Island people made no effort to repudiate their inclusion in the treaty, and that (6) there was a formal adherence to treaty when the Bear Island people successfully petitioned to be added to the list of signatories to treaty. Based on these findings, the Court held that the aboriginal rights of the Bear Island people were "surrendered, whatever the situation on the signing of the Robinson-Huron Treaty, by arrangements subsequent to the treaty by which the Indians adhered to the treaty in exchange for treaty annuities and a reserve".

None of these findings of fact apply to the Lubicon situation. The Treaty Commissioners that negotiated Treaty 8 with the indigenous nations in the area surrounding Lubicon Territory made clear in their cover letter to the Treaty that they did not enter the inaccessible hinterland north of Lesser Slave Lake where Lubicon Territory is located; that they did not contact the indigenous nations located in the inaccessible hinterland north of Lesser Slave Lake; and that they were not aware that separate and distinct indigenous nations existed in the inaccessible hinterland north of Lesser Slave Lake.

Moreover Mr. Prentice now acknowledges in his March 20th letter that the "ancestors of the Lubicon Lake Indian Nation did not directly sign Treaty 8 when it was negotiated with the Aboriginal people of Northern Alberta in 1899". He acknowledges that "the Lubicon Lake Indian Nation has not received the collective benefits owing pursuant to Treaty 8, such as (reserve) land and some ancillary benefits". And Canada effectively admits that the Lubicons have never adhered to Treaty 8 by insisting that the Lubicons sign a formal adhesion to Treaty 8 as part of any settlement of Lubicon land rights.

Mr. Prentice says "There is evidence in the Department’s records that individual members of the Lubicon Band have received individual benefits such as ammunition and twine". Even if true it does not follow that the collective aboriginal rights and title of the Lubicon Lake Indian Nation were ceded by individual Lubicons accepting, independent of the Lubicon Indian Nation signing or adhering to treaty, what would amount to little more than a gift of ammunition or twine. (In fact some individual Lubicons were put on the membership lists of bands in the surrounding area where they’d gone to try and negotiate treaty with the government of Canada. Those neighboring bands allegedly received ammunition and twine on behalf of those individual Lubicons. It is not clear that ammunition and twine was ever received by the individual Lubicons).

There is also evidence that some individual Lubicons received $5 annuity payments when they were put on the membership lists of neighboring bands, or after Canada formally recognized the Lubicons as a separate and distinct band under the Indian Act in 1939. However collectively held aboriginal rights and title cannot be extinguished under Canadian law simply by giving $5 to some individuals any more than aboriginal land rights can be extinguished by simply drawing treaty boundaries on a map and then unilaterally decreeing that all aboriginal societies with traditional territories located within those treaty boundaries have thereby lost their aboriginal rights and land title.

Mr. Prentice says "The Government of Canada acknowledges that the Lubicon Lake Indian Nation has a valid claim to benefits under Treaty 8". He claims "The goal of the negotiations with the Lubicon during the past 25 years has been to reach a settlement on those collective treaty benefits".

In fact, as indicated earlier, the Lubicons assert continuing aboriginal rights and title over Lubicon Territory that have never been ceded or extinguished by treaty or in any other legally or historically recognized way. All land negotiations between Canada and the Lubicons have been expressly without prejudice to the different positions of the parties on the nature of Lubicon land rights.

The goal of Canadian government in on-again off-again negotiations between 1984 and 2003 -- to the extent that Canadian government settlement efforts can be considered to have been sincere -- was to legitimize Canadian government and resource company claims to valuable Lubicon lands and resources, not to reach agreement on "collective treaty benefits". So-called "treaty benefits" were only some of the terms of a possible agreement to legitimize Canadian government and resource company claims to valuable Lubicon lands and resources, not the purpose of the agreement.

Neither has it been the goal of the Lubicons in those negotiations to reach agreement on "collective treaty benefits". The goal of the Lubicons in those negotiations has been to try and reach an agreement with Canada that would allow the Lubicon people to survive the onslaught of government-authorized resource exploitation activity in our unceded traditional Territory that has devastated our traditional hunting and trapping economy; to rebuild our once self-sufficient economy in a vastly changed world; to protect and preserve our Territory and way of life to the extent possible; and to repair the serious damage to our society caused by resource exploitation activity and the efforts of both levels of Canadian Government to undermine and subvert our aboriginal rights and title.

Mr. Prentice says "During the last round of negotiations...both Alberta and Canada agreed to honour the Grimshaw Accord...in which Alberta agreed to provide 95 square miles of reserve land to the Lubicon people". He claims "This land quantum is based on the Treaty 8 formula and it is the only land to which the Lubicon are entitled". He claims "The Treaty extinguished any rights the Lubicon may have had to any other land prior to 1899".

In fact, as pointed out earlier, the Lubicons are not a party to Treaty 8 and we have not ceded our aboriginal rights and title to our 10,000 square kilometer traditional Territory in any historically or legally recognized way. Moreover the Grimshaw Accord does not "provide 95 square miles of reserve land to the Lubicon people" but rather provides that Alberta will transfer back to federal jurisdiction up to a maximum of 95 square miles of land if the federal government requests it for purposes of creating a Lubicon reserve as part of a settlement of Lubicon land rights.

Although the amount of reserve land agreed at Grimshaw is equivalent to the amount of land that the Lubicons would retain for reserve purposes under the Treaty 8 population formula, it was not based on the Treaty 8 population formula but, at the suggestion of then Alberta Premier Don Getty in order to finesse earlier disagreement between the Lubicons and the Province over the population issue, on the amount of land that the Premier and I "as two honorable men considered fair". As an honorable man Mr. Getty has subsequently confirmed publicly that this was the basis of the amount of reserve land agreed at Grimshaw, not the Treaty 8 population formula.

In addition the amount of land the province is prepared to transfer back to federal jurisdiction for purposes of creating a Lubicon reserve was only one of the things agreed at Grimshaw. Also agreed at Grimshaw was that the Lubicons would retain wildlife management and environmental protection rights over our entire 10,000 square kilometer traditional Territory. A written agreement, designed to come into effect at the point of a settlement of Lubicon land rights -- and including the express provision that it could "only be amended by the mutual agreement of Alberta and the Band" -- was subsequently negotiated between Alberta and the Lubicons.

Mr. Prentice says "Following the agreement on land in 2002, the Lubicon Lake Indian Nation selected 247 square kilometers (95 square miles) for three reserves". In fact, while minor adjustments to reserve boundaries were still being discussed at the negotiating table when negotiations broke down in November of 2003, and both levels of Canadian Government have at one point or another proposed to renege on the Grimshaw Accord, the basic boundaries of the area to be retained by the Lubicons for reserve purposes post-settlement of Lubicon land rights were agreed by the Lubicons and both levels of Canadian government in 1988.

Mr. Prentice says "The 10,000 square miles (sic) of land that the Lubicon claim as their traditional territory and from which it claims economic losses is also claimed by several other Aboriginal communities...(which allegedly)...have the right to use this land for its traditional activities until the land is taken up by the Province".

In fact the indigenous nations located in the area now known as northern Alberta historically each occupied their own distinct geographic territory, recognized and respected by other indigenous nations. The boundaries of these historically distinct traditional territories have only recently been challenged as part of well-documented efforts on the part of both levels of Canadian government to try and subvert indigenous land rights under Canadian law.

In addition to other negotiated settlement issues such as membership, reserve construction and economic development, Mr. Prentice says "a fair and reasonable compensation offer based on Canada’s lawful obligations was also made to the Lubicons".

In fact Federal negotiators tabled a compensation amount that they said was left over in their unspecified mandate after they’d compensated companies for leases and permits sold to the resource companies by the province in the proposed 247 square kilometer Lubicon reserve area -- which is of course only a tiny fraction of the 10,000 square kilometer unceded Lubicon Territory, and which is tantamount to reimbursing the companies with Lubicon compensation money for leases and permits in unceded Lubicon Territory that the companies purchased from the Alberta Government. When the Lubicons refused to simply accept what Federal negotiators said was left over in their unspecified mandate after they’d reimbursed companies for leases and permits in the proposed 247 square kilometer Lubicon reserve area, and proposed alternative ways of meeting the Lubicon goal of providing an on-going source of independent revenue for Lubicon society in exchange for rights to valuable land and resources in Lubicon Territory, Federal negotiators took the position that they had no mandate to discuss anything more or different than they’d tabled.

Mr. Prentice says "Canada has a full mandate to negotiate a settlement of the Lubicon Lake Indian Nation treaty rights pursuant to Treaty 8". "In addition", he says, "although not obligated by law, Canada’s mandate includes, on a strictly policy basis, the authority to negotiate the construction of a new community for the Lubicon people at Lubicon Lake, where they originally resided".

In fact, as indicated earlier, we have not at any point been negotiating "a settlement of the Lubicon Lake Indian Nation treaty rights pursuant to Treaty 8". We have, by mutual agreement since 1984, been negotiating a final settlement of Lubicon land rights without prejudice to the different positions of the parties on the nature of Lubicon land rights.

Lubicon land negotiations broke down in November of 2003 when Federal negotiators took the position that they had no mandate to negotiate long-standing Lubicon settlement issues pre-agreed for negotiation since 1984, and reaffirmed in writing with the Prime Minister’s Chief of Staff in 1988, including financial compensation and self-government.

The Federal Government’s take-it-or-leave-it financial compensation offer is described above. With regard to self-government, Federal negotiators told us they had no mandate to negotiate self-government as a part of a settlement of Lubicon land rights but were prepared "to enter into negotiations on a (non-binding) Self-Government Framework Agreement pursuant to Canada’s Inherent Right Policy" -- independent of Lubicon land settlement negotiations -- "or to include legally binding clauses in the Land Claim Settlement Agreement, agreeing to enter into self-government negotiations after the successful ratification of the Land Claim Agreement". In both cases Canadian negotiators flatly refused to negotiate recognition of the right of the Lubicon people to be self-governing as part of a settlement of Lubicon land rights. In both cases Canadian negotiators insisted that we cede rights to our valuable lands and resources independent of talking about recognition of our right to be self-governing. In neither case was Canada prepared to agree to do anything but talk about recognition of Lubicon self-government post settlement of Lubicon land rights.

Mr. Prentice says "Since 1973, Canada has settled 275 Specific Claims nationally as of September 30, 2006". "In Alberta", he says, "40 claims have been resolved, which includes settlements of 11 Treaty Land Entitlement Claims and two Adhesion Claims that are similar to that of the Lubicon".

These numbers are irrelevant to settlement of Lubicon land rights in that they include a broad range of typically small treaty related claims including ammunition claims, agricultural provision claims, livestock claims, wrongful alienation of minerals claims, claims of mismanagement of sale of farm lands, claims that on-reserve facilities have been improperly maintained and managed, claims of wrongful alienation or transfer of reserve lands, claims of invalid surrender of reserve lands, claims of a shortfall in reserve lands and so on.

The only "Specific Claims" on Mr. Prentice’s list that are in any way related to the Lubicon situation are the two so-called "Adhesion Claims" involving the new Woodland Cree Band and the Loon River Band. These two so-called "Adhesion Claims" do not demonstrate Canada’s commitment to achieving a settlement of Lubicon land rights that is, in Mr. Prentice’s words, "fair and reasonable to all parties".

Following a break-down in Lubicon land negotiations in 1989, caused by an earlier Government "take-it-or-leave-it" settlement offer that even Premier Getty admitted made no real provision for the Lubicon people to once again achieve economic self-sufficiency, agents of the Government of Canada -- the same people Mr. Prentice now refers to as "extremely capable senior public servants and Chief Negotiators chosen from outside the Public Service" -- used the Lubicon membership list they had been provided by the Lubicons during negotiations as a recruitment list in their efforts to try and organize the political overthrow of duly elected Lubicon leadership. They offered people all kinds of incentives to work with them to try and overthrow Lubicon leadership including legal and financial assistance in obtaining Indian status, housing, medical benefits, education benefits, hunting rights and off-road bush machines.

Unable to recruit a sufficient number of Lubicons to overthrow Lubicon leadership in a Lubicon election, Government officials and the Chief Federal Negotiator also contacted a number of other aboriginal people -- many of whom had been improperly removed from the membership lists of other Bands in 1942 by a notorious Indian Affairs agent named Malcolm McCrimmon and had ended up poor and on welfare in non-indigenous northern Alberta communities -- and offered them similar incentives to work with Government officials in the effort to overthrow duly elected Lubicon leadership.

These non-Lubicon individuals were initially reinstated to the membership lists of the Bands from which they were removed. They were then, without Lubicon knowledge, transferred to the Government-held Lubicon membership list.

The entire section of Indian Affairs charged with reinstating people who’d been improperly removed from Indian status was put to work on building up the Lubicon membership list with people who’d agreed to work with Canadian officials in the effort to try and overthrow Lubicon leadership. People were being reinstated to the membership list of the Band from which they’d been removed and then transferred to the membership list of the Lubicon Band in as little as one week when normal applications for reinstatement were taking 5 years and longer to process.

When this hodgepodge of disparate individuals pulled together by Canada failed to overthrow Lubicon leadership in a Lubicon election, Canada cobbled them together into the so-called "Woodland Cree Band" under section 17 of the Indian Act. Section 17 of the Indian Act reads as follows:

"17.(1)(b)?The Minister may, whenever he considers it desirable (underlining added), constitute new Bands and establish new Band lists with respect thereto from existing Band lists, or from the Indian Register, if requested to do so by (an unspecified number) of persons proposing to form the new Bands.

"17.(2)?Where pursuant to subsection (1) a new Band has been established from an existing Band or any part thereof, such portion of the reserve lands and funds of the existing Band as the Minister (in his sole discretion) determines (underling added) shall be held for the use and benefit of the new Band.

"17.(3)?No protest may be made (underlining added) under section 14.2 ( the section of the Indian Act that provides for the making of protests) in respect to the deletion from or the addition to a Band list consequent on the exercise of the Minister of any of his powers under subsection (1)".

Section 17 of the Indian Act thus gives the Canadian Indian Affairs Minister the absolute power -- if he doesn’t like the attitude of the duly elected leadership of an indigenous nation -- to simply take that indigenous nation apart, and to then distribute the land and resources properly belonging to that indigenous nation as he sees fit. He could, for example, decide to give 95% of the land and other resources belonging to an indigenous nation of 500 people -- with whom Canada disagrees for whatever reason -- to 5 dissident members of that indigenous nation who are willing to do Canada’s bidding -- as members of the new Woodland Cree Band publicly indicated they were prepared to do. All the Minister needs to proceed in this way is a request from some unspecified number of individuals, clearly solicited in this case by agents of the Canadian government, who are "proposing to form the new Band".

Subsequent to formation of the new Woodland Cree Band, Government selected, hired and paid lawyers negotiated an "Adhesion Claim" on behalf of the new Band. Canada then took the position that the Lubicons no longer retain unceded aboriginal rights and title to Lubicon Territory because those rights and title had supposedly been ceded by others with an allegedly "equal right" to Lubicon Territory. Canadian officials also started taking the position Mr. Prentice refers to in his March 20th letter when he claims that Lubicon Territory "is also claimed by several other Aboriginal communities".

The new Woodland Cree Band, cobbled together by the Government of Canada in 1989 out of disparate individuals from a half-a dozen aboriginal societies, is one of those "several other Aboriginal communities...that (supposedly) have the right to use (Lubicon) land for its traditional activities until the land is taken up by the Province".

The details of the creation of the Woodland Cree Band are described in the attached article entitled "A Helping Hand" published in the December 1991 edition of Saturday Night magazine. (available at: http://www.tao.ca/~fol/pa/negp/sn9112.htm)

Following organization of the group that Federal officials would later form into the new Woodland Cree Band, Provincial negotiators -- arguing that they needed to know who they were dealing with even though membership was no longer an issue since agreement to transfer land back to Federal jurisdiction for reserve land purposes had not been based on population but on what Premier Getty and I considered to be fair -- requested a copy of the Lubicon membership list. In a show of good faith we provided Provincial negotiators with a copy of the Lubicon membership list.

Provincial genealogists identified some individuals on the Lubicon membership list that they considered to be members of the neighboring indigenous nation of Loon Lake -- which has its own membership and historically recognized traditional Territory but with whom there is some intermarriage and family relationships with the Lubicons. The Loon Lake people have a history not unlike that of the Lubicons with the exception that they had never been recognized as a band under the Indian Act by Canada and were considered by both Alberta and Canada to be non-status Metis people rather then status Indians.

Within a matter of days the same lawyers who’d been selected, hired and paid by Canadian Government to fabricate the Woodland Cree Band were in Loon Lake -- working hand in glove with Provincial genealogists -- proposing to help the non-status people from the previously unrecognized indigenous community of Loon Lake to negotiate a settlement of the unceded land rights of the Loon Lake people. Shortly thereafter a second sweetheart "Adhesion Claim" was negotiated by Government selected, hired and paid lawyers on behalf of the Loon Lake people and Canada was claiming that a second group of Lubicons had supposedly broken away from the Lubicon Lake Indian Nation -- allegedly leaving only a few Lubicons remaining.

Working with these same lawyers, and with Provincial Cabinet Ministers who encouraged the Loon Lake people to assert rights in Lubicon Territory and to demand jobs from resource companies proposing to do work in Lubicon Territory, a succession of maps were drawn up purporting to show the traditional Territory of the Loon Lake people -- each bigger than the last -- until the claimed traditional Territory of the Loon Lake people overlapped significantly with the Territory of the Lubicon Lake people.

Loon Lake thus became another of those "Aboriginal communities" that Mr. Prentice now claims share and have equal rights to historic Lubicon Territory.

Mr. Prentice says "there are approximately 123 Specific Claims in negotiation and Canada is committed to resolving these outstanding grievances to the benefit of First Nations and all Canadians". He says "The settlement of the Lubicon Lake Claim remains a priority for the Government of Canada; however there is more involved in reaching a settlement than a desire for one".

Mr. Prentice is right that "there is more involved in reaching a settlement than a desire for one". One of the things required is that there be negotiations. There are no Lubicon land negotiations and 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-standing, pre-agreed settlement issues including self-government and financial compensation.

Moreover, as was pointed out to the Chief Federal Negotiator in 1998, settlement of Lubicon land rights could be achieved within a matter of weeks if both levels of Government would only honor agreements already made on settlement issues including self-government, which was basically agreed with E. Davie Fulton in 1985, and financial compensation, which only required the Federal Government to match a 1993 Provincial Government offer to be settled.

The Chief Federal Negotiator’s response to our suggestion that we start by honoring agreements already made was that the Federal Government had "a very short corporate memory and there’s no record of what was previously agreed". He was told that the Lubicons could provide him with details and supporting documentation on what had been previously agreed. He then took the position that things had changed over the years and insisted on starting over from scratch ending up 5 tortuous years later taking the position that he had no mandate to negotiate financial compensation or self-government as a part of a settlement of Lubicon land rights.

Another of the things it will take to reach a settlement of Lubicon land rights is for both levels of Canadian government to honor the agreements they make.

Lastly Mr. Prentice expresses concern over lack of settlement but says "I cannot force the Lubicon to return to the negotiating table, nor can I force them to accept Canada’s settlement offer". He says "All parties must be prepared to compromise and Canada must negotiate within the parameters in place for the negotiations of land claims which ensure that all settlements are fair to all parties, including other First Nations and Canadian taxpayers".

That’s Canada’s concept of negotiations. Canada tables an offer within "parameters" for negotiations unilaterally determined by Canada to be "fair and reasonable to all parties" and the Lubicons either accept it or negotiations end.

As I have repeatedly indicated to Mr. Prentice, negotiations between Canada and the Lubicons did not end because the Lubicons left the negotiating table. The Lubicons did not leave the negotiating table.

Negotiations ended because Federal negotiators said they did not have a mandate to negotiate long-standing, pre-agreed settlement issues, including self-government and financial compensation. All that is required for those negotiations to proceed is for Canada to send negotiators back to the table with a mandate to negotiate all outstanding settlement issues in good faith.

Thank you again for sharing the letter you received from Mr. Prentice. Hopefully the information contained in my reply will be useful in responding to Mr. Prentice’s letter.

Sincerely,

ORIGINAL SIGNED BY

Bernard Ominayak

Chief, Lubicon Lake Indian Nation

cc:Prime Minister Stephen Harper
AFN National Chief Phil Fontaine
Jean Crowder, NDP Aboriginal Affairs Critic
Anita Neville, Liberal Indian Affairs Critic
Keith Martin, MP, Esquimalt-Juan Fuca
Ed Bianchi, KAIROS Canada

 


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