September 30, 2007
A new form letter is being sent out by the Indian Affairs Minister in response to queries about the Lubicon Lake Indian Nation. As usual, the letter contains distortions, misrepresentations, and contradictions intended to excuse this governments lack of action to resolve the long-standing Lubicon land rights dispute.
Lubicon Chief Bernard Ominayak has issued a full response to all the issues raised in the form letter, along with supporting documentation.
Both letters are now available below.
If you have received a similar letter from the Indian Affairs Minister, Chief Ominayaks letter will provide you with the background on the issues to enable you to reply in full.
août 9 2007
This is in response to your correspondence dated June 18, 2007, concerning the Lubicon Cree.
I too am concerned about the lack of a settlement of the long-standing Lubicon claim; however, I cannot force the Lubicon to return to the negotiating table, nor can I force them to accept Canadas settlement offer. The Lubicon have indicated that they will return to the negotiating table only when "the government of Canada sends negotiators back to the table with a full mandate to negotiate all outstanding issues in good faith." I can assure you that Canada has a full mandate to negotiate all aspects of the Lubicon claim. I have reviewed Canadas 2003 offer to the Lubicon, and find it to be fair and reasonable. The Lubicon Nation rejected that offer which was significantly more than the 1989 offer, which was found by the United Nations Human Rights Committee in 1990 to be appropriate to rectify the situation. The Lubicon continue to insist that Canada provide a new mandate that will meet their demands. The Government has a responsibility to enter into settlement agreements that are fair, not only to the First Nation settling its claim, but also to other First Nations that have settled similar claims.
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.
As you indicate, the United Nations Committee in the latest 2005 report stated that Canada should make every effort to resume negotiations with a view to finding a solution. Since the impasse in 2003, Canada has made numerous offers to return to the table. In August 2006, I wrote to Chief Ominayak suggesting that we focus on the positive aspects of the last round of negotiations and return to the table to continue negotiating the outstanding elements of a final settlement agreement. This led to a face to face meeting with the Chief and me to discuss options for breaking the impasse. Our discussions continued and we initiated a process that would have reestablished discussions. The Chief did not accept my proposal. I met with the Chief again several months ago to discuss options for breaking the impasse; however, I have nothing new to share at this time. It should be noted that prior to the impasse, agreement had been reached on the land quantum and virtually all related land selections, membership, and all the details for the construction of a completely new community. The proposed agreement for the new community is comprehensive and would have provided for all the amenities that would be found in any typical Canadian community including new homes for members, a water treatment plant, sewage lagoon, and piped distribution systems for water and waste.
With respect to the issues you raise regarding the funds that Canada has offered to install water and sewer systems for elders, departmental officials in the Alberta Region met with the Chief on April 11, 2007, to continue discussions on the proposal that the band submitted in relation to this matter.
You note that Canada has offered $250,000 toward this initiative and I would like to clarify that to date we have offered $800,000 toward the Bands proposal. This includes $430,000 toward water and sewer service upgrades, and an additional $370,000 to purchase a water truck and a sewer for the Band. Unfortunately, we still have not found an approach that deals with all of the Bands concerns. However, we remain committed to finding a means of concluding an arrangement that is acceptable to all parties. To this end, the Band requested $7,000 to hire a consultant to update their original cost estimates for the water and sewer proposal. We have provided these funds and are waiting to hear back from the Band on this matter.
Since 1973, Canada has settled 275 Specific Claims nationally (as of September 30, 2006). In Alberta, 43 claims have been resolved, which includes the settlement of 10 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.
I trust that this response is of assistance.
Original signed by
a signé loriginal
The Honourable Jim Prentice, PC, QC, MP
c.c.: The Right Honourable Stephen Harper, PC, MP
The Honourable Stéphane Dion, MP
The Honourable Jack Layton, MP
Rahim Jaffer, MP
The Honourable Ed Stelmach, MLA
Raj Pannu, MLA
September 18, 2007
Thank you for sending us a copy of the August 9th letter that you received by email from then Canadian Indian Affairs Minister Jim Prentice on August 15th. Canadian government representatives make things up all the time and the only way we can respond is if people let us know what Canadian representatives are saying.
Mandate to negotiate
Mr. Prentice says "I can assure you that Canada has a full mandate to negotiate all outstanding issues in good faith". He says he "cannot force the Lubicon to return to the negotiating table". "Nor", he says, "can I force (the Lubicons) to accept Canadas settlement offer".
Mr. Prentice then goes on to say "I have reviewed Canadas 2003 offer to the Lubicon and find it to be fair and reasonable". However, he says, "The Lubicon continue to insist that Canada provide a new mandate that will meet their demands".
If Canadian negotiators have a full mandate to negotiate all outstanding issues in good faith, then why is a new mandate for federal negotiators even an issue? Why cant negotiations simply proceed? And what point is Mr. Prentice trying to make when he says he cant "force" the Lubicon people to accept Canadas settlement offer?
In fact the Lubicons have never insisted "that Canada provide a new mandate that will meet (our) demands" -- only that federal negotiators come to the table with a full mandate to negotiate all outstanding settlement issues. Thats why a new mandate is an issue. One cannot negotiate with people who do not have a mandate to negotiate outstanding issues. One either accepts their position or does not.
Lubicon land negotiations broke down in November of 2003 because federal negotiators took the position that they had no mandate to negotiate long-standing settlement issues -- agreed for negotiation in writing repeatedly since 1985 -- including financial compensation and self-government as a part of settlement of Lubicon land rights. Federal negotiators simply tabled positions on these issues and in effect told the Lubicon people to take-it-or-leave-it, although, engaging in the same kind of frustrating doublespeak Canada uses in submissions to the United Nations and Mr. Prentice used in his letter to you, they denied that their position was take-it-or-leave-it saying that they were prepared to discuss their position -- just that they had no mandate to negotiate it.
Canadian government representatives, including Mr. Prentice, have reiterated differently packaged versions of this same basic, non-negotiable position ever since. On August 18, 2006, for example -- in belated response to unanswered letters Id written Mr. Prentice on January 24th, February 6th, March 2nd and March 27th proposing to return to the negotiating table to negotiate all outstanding settlement issues -- Mr. Prentice wrote me reiterating "Canadas offer to enter into negotiations on a (non-binding) Self-Government Framework Agreement pursuant to Canadas Inherent Right Policy (independent of Lubicon land negotiations), or to include legally binding clauses in the Land Claim Settlement agreement, agreeing to enter into self-government negotiations after (underlining added) the successful ratification of the Land Claim Agreement". ("Legally binding clauses...agreeing to enter into self-government negotiations after successful ratification of the Land Claim Agreement" of course doesnt legally bind Canada to do anything but talk about self-government after the Lubicons have already ceded valuable rights to our traditional Territory.)
This Canadian government position is obviously nothing more than a wordy version of Canadas refusal to negotiate self-government as a part of a settlement of Lubicon land rights. In both cases Canada effectively refuses to negotiate recognition of the right of the Lubicon people to be self-governing as a part of a settlement of Lubicon land rights. In neither case is Canada prepared to agree to do anything other than talk about recognition of Lubicon self-government independent of a settlement of Lubicon land rights.
Regarding this Canadian government position Mr. Prentice wrote, as he does in his letter to you, "I find Canadas offer to be fair and reasonable". He said he finds that Canadas position "provides the Lubicon people with a means to realize their self-government objectives". And, he said, he was "prepared to honour the offer that is currently on the table...and to resume negotiations, under the current mandate". (The problem is that we dont agree that the governments offer is "fair and reasonable" -- or that it provides us with a realistic expectation that we will be able to achieve respect for our right to manage our own affairs following settlement of our land rights -- and the current federal mandate does not include authority for federal negotiators to negotiate long standing, pre-agreed settlement issues including financial compensation or self-government as a part of a settlement of Lubicon land rights.)
That, in a nutshell and in Mr. Prentices own words, is Canadas concept of negotiations. Canada tables a non-negotiable position that Canada unilaterally deems to be "fair and reasonable", and the Lubicons either accept the Canadian position or negotiations end and there is what Canada called in a recent submission to the UN "failure to complete a settlement".
Inherent Rights Policy
The so-called "Inherent Rights Policy" to which Mr. Prentice refers provides for a complicated, multi-phase, multi-year process for negotiating self-government that involves a number of non-binding "protocols" including non-binding letters of intent, non-binding letters of instruction, non-binding letters of understanding, non-binding letters of agreement, non-binding framework agreements, non-binding agreements-in-principle and then, if Canadian policy hasnt changed in the meantime, negotiation of an agreement effectively delegating authority to exercise prescribed federal or provincial governmental powers under specified conditions -- followed by negotiation of an implementation funding agreement. Putting aside the question of whether exercising delegated powers is really self-government, it has taken years for other First Nations -- attempting to negotiate self-government with Canada under the so-called Inherent Rights Policy independent of land settlement negotiations -- to merely get to the stage of talking about a non-binding Framework Agreement.
Treaty 8 First Nations, for example -- negotiating self-government under Canadas "Inherent Rights Policy" independent of land rights negotiations -- completed negotiation of a non-binding "Declaration of Intent" in 1998, followed by a non-binding "Joint Letter of Instruction" in 1999, followed by a non-binding "Preliminary Framework Agreement" in 2003 after which they commenced negotiation on a non-binding "Comprehensive Framework Agreement" which is still being negotiated and at last report is now scheduled for completion in 2009. (The Lubicon position on self-government is that settlement of Lubicon land rights should include recognition that the Lubicon people retain the constitutionally affirmed "inherent right" of self-government, and should also spell out a post-settlement procedure for negotiating over time how implementation of Lubicon jurisdiction can be exercised in a way that is complimentary and not in conflict with the exercise of jurisdiction by other governments in Canada -- much in the same way that different levels of Canadian government currently negotiate implementation of their constitutionally recognized respective jurisdiction all the time.)
Moreover integral to Canadas "Inherent Rights Policy" are secret Justice Department "Guidelines for Federal Self Government-Justice Department Negotiators" instructing Canadian self-government negotiators how to negotiate self-government agreements that will not be binding on Canada, or, in effect, how to negotiate self-government agreements in bad faith. These secret Justice Department Guidelines say, among other things, that although the Canadian Constitution recognizes that self-government is an inherent aboriginal right, the Canadian Government does not recognize that any particular aboriginal society in Canada has the right of self-government a piece of legal trickery that makes a mockery of the Constitutions protection of the inherent right.
The Lubicon people obtained a copy of these secret Justice Department Guidelines to federal self-government negotiators in December of 2003 and asked then federal Indian Affairs Minister Andy Mitchell to renounce them as the basis for negotiating recognition of the right of the Lubicon people to be self-governing. Mr. Mitchell ignored our request and successive Ministers of Indian Affairs, including Mr. Prentice, have since refused to acknowledge the existence of these Guidelines. (Canadian Justice Department officials, falsely and presumably illegally, responded to an Access to Information Act request by the CBC for a copy of the Guidelines by denying that the Guidelines even exist.)
Openly dismayed that the Lubicons provided a copy of these secret Justice Department Guidelines to the Human Rights Committee of the United Nations, Canada reluctantly acknowledged the existence of the Guidelines -- to the UN if not to the Lubicons, the CBC or to Canadians -- and took the following revealing position in a 2006 submission to the UN Human Rights Committee:
-"self-government is an aspect of Aboriginal Rights within S. 35 of the Constitution Act, 1982,"
-"Canadas approach does not require proof of the existence or scope of (the supposedly inherent) right of self-government of the particular Aboriginal group before engaging in self-government negotiations, nor does Canada acknowledge, through the negotiations, an Aboriginal right to self-government for any specific group". (underlining added.)
-the Guidelines are "a privileged document prepared by the Government of Canada as instructions for its negotiators dealing with the self-government issue...which included privileged legal advice on the meaning of possible language to be included in final agreements". (In fact these Guidelines provide carefully crafted language for Canadian Government negotiators to use in negotiating agreements so that the negotiated self-government agreements wont be legally binding on Canada.)
Decision of the UN Human Rights Committee
Mr. Prentice says "The Lubicon Nation rejected that (2003) offer which (Mr. Prentice claims) was significantly more than (a 1989 "take-it-or-leave-it" settlement offer), which (he claims) was found by the United Nations Human Rights Committee in 1990 to be appropriate to rectify the situation". In fact the UN Human Rights Committee found no such thing and Canadian officials know it.
The 1990 UNHRC decision says "historical inequities...and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band and constitute a violation of article 27 (of the International Covenant on Civil and Political Rights) for as long as they continue".
However, taking at face value Canadian government assurances that Canada was seeking a negotiated settlement of Lubicon land rights that would respect Lubicon rights -- as supposedly evidenced by the 1989 offer that Canada did not tell the Committee had been tabled on a "take-it-or-leave-it" basis -- the Committee also found that Canada "proposes to rectify the situation with a remedy that the Committee deems appropriate within the meaning of article 2 of the Covenant". (Article 2 of the Covenant basically says that signatories to the Covenant agree to respect the human rights of people living within their borders).
Commenting on how to interpret a decision that holds Canada in violation of the Covenant so long as the situation continues, but also finds that Canada proposes to rectify the situation with a remedy that the Committee deems appropriate within the meaning of article 2 of the Covenant, a Committee official was publicly quoted in the Canadian media as saying that the Committee "is telling both sides to continue negotiating in good faith" -- that in fact the appropriate remedy the UN Human Rights Committee is talking about is a negotiated settlement, not that the governments "take-it-or-leave-it" offer is the appropriate remedy.
Consistent with the interpretation that a negotiated settlement is the appropriate remedy for abuse of the human rights of the Lubicon people under the International Covenant on Civil and Political Rights, the UN Human Rights Committee reviewed the Lubicon situation again in 2005 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...The State Party (Canada) should make every effort to resume negotiations with the Lubicon Lake Band, with a view to finding a solution which respects the rights under the (International Covenant on Civil and Political Rights), as already found by the Committee." (Underlining added)
In 2006 a second UN human rights Committee reviewed the Lubicon situation under a second human rights covenant. Responding to questions about the Lubicon situation by members of the UN Committee on Economic, Social and Cultural Rights, Canadian officials told Committee members:
"There was back in the 1990s an offer to settle with the Lubicons. The UN felt the offer was appropriate. That offer has since been enriched. It was rejected by the Lubicons.
"Canada had a proposal to deal with self-government. The Lubicons refused to negotiate without wholesale change to the federal mandate on self-government and compensation." (The "wholesale change" requested by the Lubicons was for Canada to send federal negotiators back to the table with a full mandate to negotiate all outstanding settlement issues in good faith including financial compensation and self-government as a part of settlement of Lubicon land rights.)
"We look for an offer thats fair to all sides. We cant make the Lubicons negotiate."
On May 19, 2006, after reviewing submissions from both the Lubicons and the government of Canada -- and again consistent with the 1990 finding by the UN Human Rights Committee that a negotiated settlement is the appropriate remedy -- the UN Committee on Economic, Social and Cultural Rights found as follows:
"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 (Canada) conduct effective consultation with the Band prior to the grant of licences for economic purposes in the disputed land (underlining added), and to ensure that such activities do not jeopardize the rights recognized under the (International Covenant on Economic, Social and Cultural Rights)."
On August 15, 2006, Canada filed a "follow-up response" to the 2005 UN Human Rights Committee decision in which Canada claimed, among other things, that "The Government of Canada is negotiating in good faith and is making every effort to reach a settlement with the Lubicon Lake Cree; it continues to work toward a fair resolution of the claims of the Lubicon Lake Cree." Then, in the very next sentence and again employing the same kind of doublespeak used in the Ministers letter to you, the Canadian submission says, "The Government of Canada does not wish to jeopardize the chance that negotiations with the Lubicon Lake Cree may resume at some point in the future."
In fact there are no settlement negotiations between Canada and the Lubicons and there have been none since November of 2003 when federal negotiators took the position that they had no mandate to negotiate long-standing, pre-agreed settlement issues including financial compensation and self-government as a part of settlement of Lubicon land rights.
The Canadian "follow-up response" then goes on to say a number of other noteworthy things including:
"In 1989 following a number of years of thorough negotiations regarding the Lubicon Lake Cree, the Government of Canada presented a formal offer to the Lubicon Lake Cree with a view to satisfying Canadas obligations pursuant to Treaty 8. (There were two rounds of negotiations prior to 1989; one in 1984-86 conducted by the Honorable E. David Fulton whose settlement recommendations Canada refused to even discuss; and a second round that commenced at the end of November 1988 and ended with the surprise tabling of the "take-it-or-leave-it" offer in January of 1989.)
"The Human Rights Committee found in 1990 that this (1989) offer was appropriate to rectify the threat to their rights under Article 27 of the Covenant that the Lubicon Lake Cree perceived from proposed resource development in and around their traditional hunting and fishing areas." (The threat was of course not merely "perceived" and the activity not merely "proposed". Destruction of the traditional Lubicon hunting and trapping economy and way of life by resource exploitation activity is well documented and was in fact the basis for both the 1990 decision of the UN Human Rights Committee and the 2006 decision of the UN Committee on Economic, Social and Cultural Rights.)
"Negotiators for the Government of Canada have a mandate from the federal Cabinet to settle, pursuant to Treaty 8, all aspects of the Lubicon Lake Cree claim. (Treaty 8 was negotiated with other Indian societies in the surrounding area over a hundred years ago and, to the frustration to the First Nations that are party to Treaty 8, does not even say what the cover letter to it says was agreed. Moreover the Lubicons were missed when Treaty 8 was signed; did not participate in negotiation of Treaty 8; did not sign Treaty 8 and are not a party to Treaty 8.)
"The parties failed to complete a settlement in 2003 because of two aspects of the negotiations. Negotiators for the Lubicon Lake Cree did not accept the increased amount of settlement money on offer and rejected the Governments approach to the self-government aspect of the claim.
"The negotiation of the final agreement setting out the practical arrangements for self-government would be carried out in further self-government negotiations if the Lubicon Lake Cree pursued that process after (underlining added) the land claim negotiations.
"From the perspective of the Government of Canada, the (Canadian) offer was fair both in respect of the Lubicon Lake Cree and in light of settlements with other First Nations that are parties to Treaty 8 and that have settled similar claims. The financial aspect of the offer was not acceptable to the Lubicon Lake Cree and agreement could not be reached on the self-government aspect of the Lubicon Lake Cree claim, leading to a failure to reach a settlement in 2003. The difference in approach to self-government between the Government of Canada and the Lubicon Lake Cree has led to the refusal by the negotiators for the Lubicon Lake Cree to continue any negotiations. (In fact the Lubicons are not a party to Treaty 8; Lubicon land rights are therefore not similar and the Lubicons have never refused to negotiate but only asked that Canada send negotiators to the table with a mandate to negotiate all outstanding settlement issues in good faith, including financial compensation and self-government as part of a settlement of Lubicon land rights.)
In July of 2007 the Human Rights Committee of the United Nations reviewed the Canadian "follow-up response" and a related Lubicon reply. The Committee then effectively reaffirmed the 1990 decision holding Canada in violation of the International Covenant on Civil and Political Rights as long as the situation continues, and again urged Canada to return to the negotiating table "without further delay". In unmistakable terms, and contrary to Mr. Prentices subsequent claim that the Committee found Canadas 1989 "take-it-or-leave-it" offer "appropriate to rectify the situation", the 2007 decision of the UN Human Rights Committee reads as follows:
"While noting the complexities of the issues raised by both sides, the Committee observes that they are still not in agreement on an appropriate remedy and urges the State party (Canada) to resume, without further delay (underlining added), negotiations with a view to finding a solution to (Lubicon) claims in conformity with the Covenant".
Canadian Efforts to Return to the Negotiating Table
Mr. Prentice claims:
"Canada has made numerous offers to return to the table. In August 2006, I wrote to Chief Ominayak suggesting that we focus on the positive aspects of the last round of negotiations and return to the table to continue negotiating the outstanding elements of a final settlement agreement". (This is the August 18th letter mentioned earlier in which Mr. Prentice reiterated Canadas offer to proceed on the basis of a "current mandate" that does not include outstanding settlement issues including negotiation of financial compensation or self-government as a part of a settlement of Lubicon land rights.)
Mr. Prentice continues:
"This led to a face to face meeting with the Chief and me to discuss options for breaking the impasse. Our discussions continued and we initiated a process that would have reestablished negotiations. The Chief did not accept my proposal. I met with the Chief again several months ago to discuss options for breaking the impasse; however, I have nothing new to share at this time."
These statements make it sound as though Mr. Prentice has been diligently pursuing recommencement of negotiations. The problem is that what Mr. Prentice says is not true. The only face-to-face meeting I have had with Mr. Prentice took place on February 2nd of this year. I have not met with him twice and there have been no continuing discussions regarding options for breaking the impasse in negotiations. (Mr. Prentice may have been misled by his officials with regard to some of the things claimed in his letter but he knows that we have not had two meetings and that there have been no continuing discussions regarding options to break the impasse in negotiations.)
During the meeting on February 2nd Mr. Prentice mentioned the names of 4 people he was considering appointing as federal negotiator and asked for my reaction. The names of the 4 people mentioned by Mr. Prentice were Alberta Provincial Judge and ex-provincial Lubicon negotiator John McCarthy; ex-Assistant Deputy Minister of Aboriginal Affairs for the Alberta government Ken Boutillier; current Assistant Deputy Minister of Aboriginal Affairs for the Alberta government Neil Reddekopp; and an Edmonton lawyer closely associated with provincial Aboriginal Affairs named Jerome Slavik.
I told Mr. Prentice that the Lubicon people are prepared to negotiate with whomever he appoints just as long as his negotiator comes to the table with a full mandate to negotiate all outstanding settlement issues including financial compensation and self-government as a part of a settlement of Lubicon land rights.
Mr. Prentice told me that he doesnt believe in mandates. Instead he proposed to appoint "a negotiator both parties could trust"; to see what kind of agreement could be reached and then, assuming agreement could be reached, to recommend it to Cabinet.
Mr. Prentice said that hed talk to his proposed candidates for federal negotiator over the weekend and phone me back first thing the following week about proceeding with negotiations. He didnt do so. Instead I received a phone call from his top staff person in the Alberta Regional Office of Indian Affairs, George Arcand, with Mr. Prentices apologies for not calling as promised. Mr. Arcand explained that Mr. Prentice had been unable to reach everybody to whom Mr. Prentice wanted to talk.
Over two months later, on April 18, 2007, I received a letter from Mr. Prentice dated March 30th. It pertained to our meeting on February 2nd but did not accurately reflect what we had discussed. Mr. Prentices March 30th letter reads as follows:
"This is further to our meeting on February 2, 2007, in which we discussed the possibility of breaking the current impasse in negotiations of the Lubicon Lake claim.
"As I agreed in our meeting, I have contacted the two gentlemen whose names you put forward as possible candidates for the position of Chief Federal Negotiator. Mr. Ken Boutillier has agreed to participate in the file. I am prepared to offer Mr. Boutillier a contract to take on the role of Federal Representative for a period of 45 days. His mandate would be to meet with representatives of the main parties to the negotiations to determine the chances of a settlement. "At the end of the 45-day period, or earlier, he would provide me with a report, including recommendations on how to proceed...
"I believe this is in keeping with what we discussed. In order for such a process to succeed, we need the full cooperation of all the relevant parties. Please let me know if you are in agreement with my appointment of Mr. Boutillier as Federal Representative, and whether you will participate in the process outlined above."
I wrote back to Mr. Prentice on April 25 as follows:
"I did not put forward the names of possible candidates for Federal Negotiator during out meeting on February 2, 2007. You mentioned the names of four possible candidates and asked for my reaction. The names you mentioned were Alberta Provincial Judge and ex-provincial Lubicon negotiator John McCarthy; ex-Assistant Deputy Minister of Aboriginal Affairs for the Alberta government Ken Boutillier; current Assistant Deputy Minister of Aboriginal Affairs Neil Reddekopp; and Edmonton lawyer Jerome Slavik.
"Although these people are all familiar to the Lubicons and we have views on them, I told you the Lubicon people are prepared to negotiate with whomever you appoint just as long as your negotiator has a mandate to negotiate all outstanding settlement issues including self-government and financial compensation.
"You told me you dont believe in mandates and proposed to appoint a negotiator both parties could trust; to see what kind of agreement could be reached and then, assuming agreement can be reached, to recommend it to Cabinet. You said youd talk to your proposed candidates about their availability and phone me the next week about proceeding. (Alberta Regional Director of Indian Affairs) George Arcand phoned me the following week with your apologies for not calling saying that you had not yet been able to reach everybody you wanted to talk to.
"You now propose to offer Mr. Boutillier a contract to take on the role of Federal Representative for a period of 45 days...(with a)...mandate to meet with the representatives of the (unspecified) main parties to the negotiations to determine the chances of settlement. This is a different proposal than we discussed on February 2nd.
"The Lubicon people dont accept that negotiating a settlement of Lubicon land rights is a matter of choice for the federal government while the Alberta government and the resource companies do as they please in Lubicon Territory. If that is your position, and your position is further that settlement is not possible unless the Lubicons simply accept the settlement offer made by the government of Canada on a take-it-or-leave-it basis, then nothing has changed and we dont need a Federal Representative to determine the chances of settlement.
"Similarly, while we dont question your right to appoint whomever you please to represent the federal government in Lubicon land negotiations, and we are prepared to meet with Mr. Boutillier as your representative, we dont accept Mr. Boutillier as an unbiased independent expert upon whom all parties can rely to produce an unbiased independent assessment of the chances of settlement. Mr. Boutillier has had a close, well-known, long-term involvement in a senior capacity with the Lubicon issue on behalf of the Alberta government and is not an unbiased independent expert.
"As I indicated when we met on February 2nd, the Lubicon people are prepared to meet with whomever you appoint to represent you in Lubicon settlement negotiations. But neither Canada nor the Lubicons have the option of not seeking a settlement of Lubicon land rights. Canada has a constitutional obligation to resolve the issue of aboriginal title in Lubicon Territory and to ensure that the aboriginal land rights of the Lubicon people are respected. We trust, therefore, that your representative will be prepared to explore how, not if, a settlement of Lubicon land rights can be achieved."
Mr. Prentice never replied to my letter of April 25, 2007.
Water and Sewer Services
Regarding the provision of water and sewer services to the families of ten Lubicon Elders, Mr. Prentice says:
"...Departmental officials met with the Chief on April 11, 2007, to continue discussions on the proposal that the band submitted in relation to this matter.
"You note that Canada offered $250,000 toward this initiative and I would like to clarify that to date we have offered $800,000 toward the Bands proposal. This includes $430,000 toward water and sewer upgrades, and an additional $370,000 to purchase a water truck and a sewer (sic) for the Band.
"Unfortunately, we still have not found an approach that deals with all of the Bands concerns. However we remain committed to finding a means of concluding an arrangement that is acceptable to all parties.
"To this end, the Band requested $7,000 to hire a consultant to update their original cost estimates for the water and sewer proposal. We have provided these funds and are waiting to hear back from the Band on this matter."
The truth is as follows:
The current Lubicon water and sewer proposal was requested by Departmental officials on May 10, 2005 after three years of non-productive discussions that started on July 11, 2002 when then Indian Affairs Minister Robert Nault told the Lubicons that he wanted his Alberta Regional Office officials, represented at the meeting by then Associate Regional Director General George Arcand, to develop ways and means to provide the Lubicon people with the same kind of basic services provided other status Indians in Canada even while Lubicon land negotiations were proceeding.
In subsequent meetings with Mr. Arcand a proposal was developed for installation of a small water purification plant in the Lubicon area that would both serve as a pilot project required as a step towards building a main water purification plant for a Lubicon reserve post-settlement of Lubicon land rights, as well as provide the households of ten Lubicon Elders with a local source of potable water in the interim.
Mr. Arcand left to study French and Regional Office officials, while confirming Lubicon cost estimates and expressing support for the proposal, were not prepared to proceed with the project although there were on-again off-again discussions about the need to provide water and sewer service for new housing construction related to federal environmental requirements -- which posed a kind of catch 22 situation for the Lubicon people since we were told that we could not proceed with construction of badly needed new housing unless provision is made to provide water and sewer service for the new houses, and we could not build the badly needed new housing if we spent limited housing money providing the new houses with water and sewer service.
This history was reviewed with Regional Office officials in a meeting on May 10, 2005 during which Regional Office officials requested that the Lubicons prepare yet another proposal to provide water and sewer service for the households of ten of our elderly people. It is this proposal, dated June 22, 2005, to which Mr. Prentice refers in his August 9th letter as the "original cost estimates for the water and sewer proposal".
The June 22, 2005 Lubicon water and sewer proposal spells out the equipment and related infrastructure required to provide water and sewer service to the households of ten Lubicon Elders at a cost that is competitive with the cost of providing water and sewer service to people in surrounding communities -- and which would also provide infrastructure adequate to support provision of water and sewer service to a limited number of other Lubicon households in subsequent years. Total estimated cost of providing the equipment and related infrastructure was either $1.2 million or $2.5 million depending upon whether a known but untested water source close to existing roads could be used, or if we had to use an already tested water source that required construction of a longer access road.
Again Departmental reaction to the June 22, 2005 Lubicon water and sewer proposal was positive but Departmental officials were not prepared to proceed. They did not say what the problem was. They just kept telling us that they had recommended the proposal.
The new Harper government came to power in January of 2006. Mr. Prentice was appointed Indian Affairs Minister in February of 2006. Within weeks Mr. Prentice announced a major new federal government initiative to deal with the problem of unsafe water on Indian reserves. "As long as Im Minister", Mr. Prentice was quoted publicly as saying, "I intend to do everything in my power to try to make sure that we identify situations where communities are at risk, and that we take action".
Mr. Prentice announced his new water and sewer initiative on March 1, 2006. I wrote Mr. Prentice on March 2, 2006 as follows:
"The Lubicon people are pleased to read your declaration that Aboriginal people are not going to live at risk as long as you are Minister. We are pleased to read that you intend to do everything in your power to make sure that your government identifies Indian communities at risk and to take appropriate remedial action.
"We agree with your priority of insuring that aboriginal communities are provided with the basic human necessity of safe drinking water. We agree that top priority should be given to those communities most at risk.
"However we are concerned that your independent departmental consultants have failed you when the criteria they use to identify communities at greatest risk pertain only to the source of the water problem, the nature of the water treatment system, the extent to which the water treatment system is current or out-of-date, the ability of operators, etc. Are you aware, Mr. Minister, that all of our traditional Lubicon sources of water have been contaminated by resource exploitation activity and not drinkable for over 18 years; and that we have no water or sewer system at all?
"We read that the Department was criticized for buying bottled water only for the oldest and youngest members of the Kashechewan community after dangerous levels of E. Coli bacteria were found in the water. Are you aware, Mr. Minister, that no bottled water has ever been provided for any of our people and that we, despite the fact that many of our people have been forced onto welfare by destruction of our traditional hunting and trapping economy and dont own vehicles, have to somehow arrange to go over 100 kilometers one way in order to buy our own bottled drinking water?
"We read that the Kashechewan people had to be temporarily evacuated because of various skin ailments and other serious medical problems. Thats terrible. But are you aware, Mr. Minister, that the Lubicon people have been facing serious medical problems since the mid-1980s including widespread asthma and skin rashes among our children so severe that they cause permanent scarring; a tuberculosis epidemic affecting a third of our people; near-epidemic respiratory and stomach problems; cancers of all kinds and reproduction problems which during one 18 month period resulted in 19 still born Lubicon babies out of 21 pregnancies?
"We read that the federal government flew a ten-tonne reverse osmosis water purification plant into the Kashechewan community capable of purifying 50,000 litres of water a day from almost any source. Are you aware, Mr. Minister, that 50,000 litres of water a day would more than meet the potable water requirements of the 500 Lubicon people?
"We watched, Mr. Minister, how it took only eight days of growing public outrage for the federal government to agree to undertake a temporary evacuation of the Kashechewan people, reportedly costing $300 million, and to commit to building a whole new community for the Kashechewan people, reportedly costing another $600 million and including 50 new houses a year; a new school; significantly increased health and welfare services; a new community health centre complete with three times as many nurses, new x-ray equipment and a full array of immunizations. Are you aware, Mr. Minister, that the Lubicon people live in third world housing conditions with as many as three or four generations living in a small, inadequately insulated 900 square foot bungalow with no running water or indoor toilet facilities; that we had no health services at all until we suffered a well publicized tuberculosis epidemic in 1987; that our health services have never at any point consisted of more than a public health trailer and one nurse; that the one nurse we did have has been gone since last March when he was given the option by the federal government of working part-time in our community or full-time some place else; that we have been talking unsuccessfully to Departmental officials for over three years about the possibility of providing basic water and sewer services for ten of our Elders who find it particularly difficult to obtain bottled water and to get to an outhouse unassisted, especially during the cold winter months; and that the last round of Lubicon land negotiations -- intended to try and redress these problems and rebuild our shattered community and economy -- meandered around without focus or conclusion for five years, frequently meeting only a day or two a month, and that there have been no negotiation of Lubicon land rights at all since the end of 2003?
"Are you aware, Mr. Minister, that Lubicon land rights could be settled, including financial compensation, for less than the reported cost of temporarily evacuating the Kashechewan people, and that the Lubicon people could then start rebuilding our shattered community and economy on an established Lubicon reserve complete with a proper water and sewer system, residential housing that meets minimum Canadian health and safety standards, and the kind of community infrastructure, institutions, services and facilities that most Canadians take for granted?
"We read that Departmental officials located the ill-conceived Kashechewan water treatment facility on a flood plain down stream from the Kashechewan sewage lagoon, contrary to the expressed concerns of the Kashechewan people, and that the people responsible for operating the Kashechewan water system were not properly trained. Are your aware, Mr. Minister, that Lubicon settlement proposals include a professionally designed water treatment plant and sewage disposal system complete with a training program to train certified community operators?
"We read the concerns of some people that building a new $600 million Kashechewan community on higher ground but still located in an economically depressed area wont solve the many social and other problems that flow from 87% unemployment. Are you aware, Mr. Minister, that the Lubicon people live right in the middle of one of the most resource-rich areas in the country, currently experiencing a major, long-term economic boom, and that at one point federal officials questioned Lubicon economic development plans complaining that our plans might actually generate more jobs than the Lubicon people would be able to fill?
"None of this, Mr. Minister, is intended to suggest that the Lubicon people are in any way critical of Canadian government efforts to finally redress the problems being faced by the Kashechewan people or any other Aboriginal people. Like you, we were appalled by what we learned about the situation at Kashechewan. We are happy that something is finally being done to deal with the problems of the Kashechewan people. We would be happy for anything done to deal with the problems faced by Aboriginal people anywhere. We just want to point out that a focus on inadequate water and sewer systems, and training to operate those systems, is insufficient when some people dont have any water or sewer system at all, and lack the kind of basic community infrastructure, institutions, facilities and services taken for granted by most Canadians.
"As I indicated in the cover letter to the Lubicon briefing package we hand-delivered to Mr. Koop in your Calgary Constituency Office on January 27th, and subsequently to Mr. Cousineau in your Ottawa office, there is nothing on the Lubicon negotiating table that cannot be settled in short order, including financial compensation and self-government, if only a federal negotiator returns to the table with a mandate and instructions to negotiate all outstanding Lubicon issues in good faith. However, as increasingly frustrated representatives of concerned resource companies regularly point out, a negotiated settlement of Lubicon land rights cannot be achieved if there are no negotiations.
"I would again like to invite you to visit our community of Little Buffalo Lake at your earliest possible convenience, so you can meet the Lubicon people, and so together we can start the process of finally achieving a fair and just settlement of Lubicon land rights.
Mr. Prentice never responded to my letter of March 2, 2006.
On August 30, 2006 we received a fax from a Public Works Project Manager associated with Indian Affairs named Hersh Hvatum. The fax asked that the Lubicon people, "at (our) earliest convenience provide the supporting information for the installation of water and sewer servicing to 10 elders housing units as per the attached information". The "attached information", entitled "WATER AND SEWER SERVICES PROPOSAL", read as follows:
"On June 22, 2005, a proposal was submitted by Kevin Thomas on behalf of the Lubicon Cree, requesting water and sewer services for ten elders housing units. An estimate for the work was included with the proposal and a hard copy is provided.
"As a result, Alberta Region officials visited Little Buffalo and conducted a site visit. The Capital Program (of Indian Affairs) had recommended proceeding with the request, but were instructed not to proceed following discussions with (Acting Alberta Assistant Regional Director General Jim Sisson). This was due to the outstanding claims issue. (Note these instructions were contrary to Minister Naults instructions that he wanted Regional Office officials to provide the Lubicon people with basic services even while Lubicon land negotiations were proceeding).
"In June, the Alberta Region Regional Director General directed that 2006-07 Budget 2005 Indian Affairs Lot Servicing funds of $250,000 be allocated to the Lubicon Lake Indian Nation. These funds would be utilized to develop private sewerage disposal and private water systems for 10 housing units occupied by elders. This information was not communicated to Lubicon due to the claims issue. (underlining added)
"A feasibility study was completed by the Northern Sunrise County (NSC) for a regional water system to service the rural areas and Cadotte Lake including the Woodland Cree. The population of the (Lubicon community) of Little Buffalo has been factored in to the scope of work to include a (16 kilometer long) water line extension from Cadotte Lake to Little Buffalo (presumably to link up with a proposed but not yet constructed 105 kilometer long provincial water pipeline from the Peace River to Cadotte Lake).
"The scope of the work does not include a water distribution system. This cost is currently the responsibility of the Province of Alberta and has been factored in to the project cost estimates. The Lubicon are aware of the study but have not been an active participant. Regular meetings are held monthly with NSC and regional partners and the project is proceeding with preliminary stages. At this time, there has been no funding commitment from the Province of Alberta or Indian Affairs in support of this project.
"Proceed with provision of funding for the purpose of providing water and sewer services to elders at the Lubicon Lake Indian Nation, as requested by the Nation."
This fax was discussed with Indian Affairs officials in a meeting on November 10, 2006. They were suspiciously vague about exactly what they were proposing but in the end suggested a "piecemeal" approach to funding our June 22nd water and sewer proposal starting with the proffered $250,000.
I cautiously responded to the Indian Affairs proposal on November 15, 2006 as follows:
"The Lubicon water and sewer proposal, which we put together over the last three years in consultation with Departmental officials including George Arcand, totals either $1.2 million or $2.5 million depending upon which source of water proves most suitable. Your officials have checked and confirmed the numbers.
"You tell us that you have so far identified $250,000 and that you are optimistic that you will be able to find another $160,000 which, taken together with the $250,000 currently identified, should cover sinks and toilets, the installation of water and sewer tanks and the upgrading of driveways necessary to deliver water and haul away sewage. However you are so far unable to say where the money will come from to provide the water and dispose of the sewage.
"It wouldnt make sense or be responsible for either of us to upgrade driveways and install sinks, toilets, and water and sewer tanks until we know where the water is going to come from, how the sewage is going to be disposed of and how all of this is going to be paid for.
"Neither does it make sense for the Lubicon people to proceed with badly needed provision of water and sewer services to our elderly people in a way that jeopardizes the land rights upon which the future of all Lubicon people depends. The Lubicons have to be concerned not only about the delivery of badly needed water and sewer services to our old people, but also the vital heritage of our children and grandchildren. Consequently, as we have consistently indicated, we do not see the proposed 65-mile long Sunrise County pipeline (from the Peace River to Cadotte Lake), which by your own calculation wont be built for at least 4 or 5 years, as a viable source of potable water for our people.
"It is also very clear from the cost estimates that hiring outsiders to deliver the water to our community and haul away the sewage, even on an interim basis, would be prohibitively expensive and cost more in one year than it would cost for the Lubicon people to build our own water treatment facility and sewage lagoon, plus of course employ our own people and provide our own water and sewer service under our own duly elected government. From any reasonable perspective, our goal must therefore be full implementation of the water and sewer proposal that weve developed jointly with Departmental officials over the last three-year period.
"In this context the Lubicon people are prepared to implement our June 22, 2005 water and sewer proposal piecemeal, as you suggested in our meeting of November 10, 2006, provided that we have written agreement in advance as to where the water is going to come from, how the sewage is going to be disposed of and how all of this is going to be paid for. Our jointly prepared proposal spells out how this objective can be accomplished technically. I suggest we turn our attention to the type of agreement required to responsibly proceed with proposed piecemeal implementation.
"I see no good reason why you cannot designate the currently identified $250,000 for the first phase of full implementation of the June 22nd proposal so it wont be lost (which Indian Affairs officials were threatening if the Lubicons did not immediately agree to their vaguely defined proposal). Expenditure of the funds wouldnt be possible immediately in any case and you will need to identify the source of the additional $160,000 for us to proceed with the first phase of the work youve proposed.
On January 17, 2007 Lubicon advisor Fred Lennarson received a phone call from a Regional Office official named Jim Wincherauk asking about Lubicon reaction to a letter which Mr. Wincherauk said had been sent "before Christmas" by another Regional Office official named Dan Kumpf. Mr. Wincherauk said "We came up with $410,000". He said "$250,000 can be carried forward (into the next fiscal year)". He said "$160,000 has to be used this year".
Fred Lennarson told Jim Wincherauk that he was unaware of any such letter. Jim Wincherauk offered to fax Fred Lennarson a copy. Fred Lennarson told Jim Wincherauk that he would make sure that the Kumpf letter was immediately brought to my attention.
The Kumpf letter arrived shortly thereafter. It was dated December 22, 2006. It read as follows:
"Thank you for your letter of November 15, 2006 following up from our meeting of November 10, 2006 where we discussed Housing Budget 2005. The intent of this funding is to address lot servicing for housing developments.
"The Alberta Region has distributed this funding between all the First Nations within the province. As I had indicated in our meeting the Alberta Region has set aside $250,000 from Housing Budget 2005 for the Lubicon Lake Indian Nation. Given this is targeted funding, any proposal to access these funds must meet the criteria of the program; it has been determined that $410,000 of your $1.2 proposal would indeed be eligible for this funding. I have subsequently been able to confirm that another $160,000 has been secured to meet the $410,000 portion of this project. I will instruct my staff to immediately begin discussions with your staff to complete the necessary paperwork to flow these funds.
"Indian and Northern Affairs Canada (INAC) agrees that the provision of water and sewer services to the elders of Lubicon Lake Indian Nation is an important goal. I will suggest that the technical representatives from both INAC and the Lubicon Lake Indian Nation engage in further discussions to determine how your proposal can be fully phased and implemented."
I responded to Mr. Kumpfs letter immediately as follows:
"I apologize for not responding earlier to your letter dated December 22, 2006. It never arrived in my office and I did not see it until a couple of days ago after Jim Wincherauk faxed a copy to Fred Lennarson and Fred Lennarson faxed a copy to me.
"The Lubicon position remains the same as I indicated in my November 15, 2006 letter to you to which you did not respond but which you acknowledge in your December 22nd letter you received. Another copy of my November 15th letter is attached for your convenience.
"The Lubicon people are prepared to implement our jointly developed June 22, 2005 water and sewer proposal in phases, as you proposed in our meeting of November 10, 2005, including construction of a local Lubicon water treatment facility and expansion of the local Northlands School sewage lagoon. As you know a Lubicon water treatment facility can be constructed and the Northlands sewage lagoon expanded for less cost than the cost of contracting out the hauling in of water from the outside and the hauling out of sewage for only one year. Your officials have checked and confirmed the numbers.
"I have asked Fred Lennarson to meet with your staff to discuss the necessary paperwork to release the first $410,000 and to how the June 22, 2005 water and sewer proposal can be fully implemented."
On January 24, 2007 Fred Lennarson received a phone call from Dan Kumpf proposing a meeting to discuss release of the $410,000. Mr. Kumpf said "I want to key up a meeting to see how we can work on this proposal to get the $410K". A meeting was agreed for January 30th.
Indian Affairs was represented at the January 30th meeting by Dan Kumpf, Jim Wincherauk, Hersh Hvatum and a departmental "Capital Officer" named Leon Gosselin. During the course of the meeting it became clear that federal officials were seeking to use the prospect of providing badly needed water and sewer services for Lubicon Elders to pressure Lubicon leaders to agree to arrangements that would result in further assertion of provincial jurisdiction and to undercut agreements made in Lubicon land negotiations.
After talking at considerable length about where the $410,000 would come from and how the money could be transferred, Mr. Kumpf said "We looked at the (proposed Lubicon) water treatment plant". "If were going to be doing that", he said, "its going to take time for design and construction".
Leon Gosselin interjected "It will cost at least $6 to $7 million and take at least 4 or 5 years to design and build the water treatment plant".
Fred Lennarson said that he didnt think Leon Gosselins information is correct. He said his understanding is that the water source is known; necessary treatment is known; the kind of plant required to do the treatment is known and the pilot plant is just something you buy and set up on site.
Leon Gosselin said "It will take a couple of weeks to update the study".
Fred Lennarson it may well take a couple of weeks to update the study but a couple of weeks to update the study dont translate into 4 or 5 years to have a fully functioning water treatment plant in place.
Dan Kumpf said "Were still looking at a multi-year process". "If we buy the stuff now", he said, "its going to sit there for a couple of years". He said "We think it will be cheaper in the short term to purchase trucks".
Fred Lennarson said he did not understand why it would take years to set up a working water and sewer system. He said trucks will be required in any case but the cost of hauling in water from the outside and hauling out sewage -- as distinct from hauling water from a local source and disposing sewage in a local lagoon -- will cost more in three years than it would cost to buy and set up the pilot plant and expand the existing Northlands school sewage lagoon in Little Buffalo.
Leon Gosselin said "Your truck numbers are too low". He said "I think its $370,000 total (instead of $285,000) -- $170,000 (for the water truck instead of $125,000) and $200,000 (for the sewage truck instead of $160,000".
Fred Lennarson said he was sure Leon Gosselin was right. He said the Lubicon numbers were based on actual quotes from suppliers when the Lubicon proposal was developed but that was in June of 2005 and the numbers had undoubtedly gone up.
Leon Gosselin said "Weve also got a problem with the Northlands lagoon". He said "Everybody knows theres a leak in the lagoon". He said "The location is illegal".
Fred Lennarson acknowledged that theres a problem with the lagoon. However, Fred Lennarson pointed out, the problem with the lagoon is going to have to be fixed either as part as developing a water and sewer system for the Lubicons or in addition to developing a water and sewer system for the Lubicons.
Fred Lennarson said the leak can be fixed when the lagoon is being expanded, and that the setback requirements can be met post settlement by moving the school, teacherages and residential housing -- all of which is contemplated as part of settlement in any case.
Leon Gosselin said "We cant put money into the lagoon because it doesnt meet environmental requirements"
Fred Lennarson repeated the lagoon is going to have to be fixed either as part of developing the water and sewer system or in addition to developing the water and sewer system. He asked if Indian Affairs is prepared for the school to be shut down or for a serious public health problem if the lagoon is not fixed.
Leon Gosselin said "Its going to take a minimum of 2 years for feasibility and water treatment design".
Fred Lennarson said thats not his understanding but the amount of time that would be required to put the Lubicon pilot plant in operation is a technical question that can easily be checked.
Hersh Hvatum said "You can do the work in two years maximum". He said "The problem is with flowing the cash".
"If the problem is cash flow rather than technical", Fred Lennarson, "we need to look at the cost of trucking in the water from outside and hauling out the sewage". He said the cost of hauling in water from the outside and hauling out the sewage is considerably more than developing a local Lubicon water source and sewage disposal capacity.
Leon Gosselin said "Theres excess capacity in the Woodland lagoon". He said "You can get the water from the current provincial source (in the neighboring Woodland Band community of Cadotte Lake)".
Fred Lennarson said the Woodland lagoon might be acceptable to the Lubicons as a temporary, short-term sewage disposal solution until they have their own facilities in place. However, he said, the water from Cadotte Lake is no good. He said the Woodlanders arent prepared to drink it either -- that it cant even be used for bathing because it causes skin rashes. He pointed out that unacceptable water at Cadotte Lake is part of the rationale for the Northern Sunrise County pipeline.
Jim Wincherauk said he knew at one point that the Woodlanders wouldnt even wash their cars with the Cadotte Lake water. He said "I think it meets standards but people dont like it".
Fred Lennarson pointed out that drinkability and usability are standards that have to be met by a water system as well a coliform counts. If people wont drink or use the water, he said -- like in the case of the heavily chlorinated Woodland water -- you havent solved the problem and something else has to be done.
Leon Gosselin said "The questions for your engineers are time frame for feasibility, time frame for design and time frame for construction."
Fred Lennarson said hed check time frames but he repeated his understanding that most of the technical work has been done and the proposal is to purchase a pilot plant and set it up on a known water source.
Leon Gosselin said "Even buying a plant would take 6 months".
Fred Lennarson pointed out that 6 months is not 4 or 5 years and that short-term arrangements could undoubtedly be made if a local water treatment plant can be operational in 6 months.
Dan Kumpf said "People will have to be found to operate the plant".
Fred Lennarson said the Lubicons intend to have local people trained to operate the plant.
Leon Gosselin said the government pays 80% for water and sewer truck Operation and Maintenance. He said water truck O & M is $37,600 a year for both the operator and maintenance and that sewer truck O & M is $37,506 for both the operator and maintenance.
At the mutually agreed truck operating cost of $125 an hour, Fred Lennarson said, those numbers wouldnt keep a truck operational for two hours a day, 5 days a week underscoring the need for a local water source and sewage lagoon. Assuming 3,300 gal water cisterns, he said, a 3,500 water truck would have to make two trips a day just to service 10 households. He pointed out that a round trip to Red Earth -- the closest possible outside source of potable water -- takes more than two hours.
Dan Kumpf asked how long it would take to check with Lubicon civil engineers. He expressed concern about flowing money before the end of the fiscal year.
Fred Lennarson said he could would check with the civil engineers and get back to Dan Kumpf as quickly as possible.
I raised the water and sewer issue with Mr. Prentice when we met on February 2nd. He told me to discuss it with George Arcand who had attended the meeting with Mr. Prentice.
On my instructions Fred Lennarson phoned George Arcand on February 7th to discuss the water and sewer issue. George Arcand said that hed discuss the matter with Dan Kumpf and phone Fred Lennarson back that same afternoon. He didnt do so.
Fred Lennarson phoned George Arcand again on February 9th. George Arcand was unavailable. Fred Lennarson left a message asking that George Arcand phone him back.
Later that same morning George Arcand phoned me. I was in a meeting but phoned him back when the meeting was over.
George Arcand said he was phoning for Mr. Prentice to explain why Mr. Prentice had not phoned me earlier in the week as promised about appointment of a new federal negotiator and recommencement of negotiations.
Following my conversation with George Arcand a woman in his office returned Fred Lennarsons call and told Fred Lennarson "theyve taken care of it -- George talked to the Chief".
Fred Lennarson and I later spoke about my conversation with George Arcand and I told Fred Lennarson that George Arcand and I had not discussed the water and sewer situation. Fred Lennarson therefore phoned George Arcand again.
Fred Lennarson was again told that "it has been taken care of -- that George has already spoken to the Chief". Fred Lennarson told the woman that he was phoning about a matter that George Arcand and I had not discussed.
Fred Lennarson was told that George Arcand wasnt available -- that he was "out to lunch".
Dan Kumpf phoned Fred Lennarson after lunch saying "George asked me to work with you to see if were going to be able to move the dollars".
Dan Kumpf said "I dont think you will disagree that moving the dollars is a good idea". He said "The problem is we now have cash at the end of this fiscal". He said "The rest is in the next fiscal for trucks and O & M".
"From the fiscal year perspective", Kumpf said, "if were going to try to move money in this fiscal year, we should do it now".
Fred Lennarson told Dan Kumpf the Lubicons have made very clear that they want agreement on water source and sewage disposal before they buy materials and install plumbing.
Dan Kumpf asked "Do the Lubicons understand the options?" He asked "Do these things all have to be resolved before we move the dollars?"
Fred Lennarson told Dan Kumpf the Lubicons understand very well the political games both levels of Canadian government have been playing with the Sunrise County pipeline and made clear in the meeting last November and in two subsequent letters to Dan Kumpf that the Lubicons are not prepared to trade the heritage of our children and grandchildren for indoor toilets.
Dan Kumpf said "We have a short term plan". He said "We can get money for some trucks next year and we can truck in the water". He said "O & M will be extra".
Fred Lennarson told Dan Kumpf the Woodland water isnt drinkable. He said thats part of the rationale for the Sunrise County pipeline -- to provide the Woodlanders with drinkable water. He told Dan Kumpf that trucking in water that isnt drinkable doesnt solve anything.
Dan Kumpf asked "What about the next closest source of water?"
Fred Lennarson told Dan Kumpf the next closest source of water is Red Earth but its problematic too. To obtain good water, he said, it would have to be trucked in from Peace River at a significantly greater annual cost than it would take to put in a local Lubicon water treatment facility.
Dan Kumpf said "Thats on a contract basis". He asked "How much will it cost if we buy the truck?"
Fred Lennarson told Dan Kumpf that the Lubicon numbers are not based on contracting out water and sewer service but purchasing and operating trucks. He said the O & M costs in the Lubicon proposal are based on the real hourly costs of operators running similar trucks for the Woodland and Loon River Bands. He said it would cost over $270,000 annually in 2005 numbers to truck in water from Peace River and the cost of setting up a Lubicon water treatment plant in 2005 numbers was only $200,000.
Dan Kumpf said the question is also one of what money is available.
Fred Lennarson told Dan Kumpf that water from Peace River would probably be workable on a temporary basis until money is available to put in a Lubicon water treatment facility but that he didnt want to be the one to explain to the public why the government has $270,000 a year to truck in water from Peace River but doesnt have $200,000 to put in a Lubicon water treatment facility.
Dan Kumpf asked if Fred Lennarson had a report from the civil engineers on time and cost of the proposed pilot plant. Fred Lennarson said he had.
Fred Lennarson told Dan Kumpf that the civil engineers called the suggestion that it would take 4 or 5 years and $6 to $7 million to put in the proposed pilot plant "ridiculous". He said the civil engineers said pilot plant costs would be up approximately 50% from the $200,000 budgeted in 2005, and that delivery is now an issue, but that it should still be possible to have the plant installed and operating within 6 months.
Dan Kumpf asked about testing the "feasibility" of the proposed water source.
Fred Lennarson told Dan Kumpf that the source at the western end of Lubicon Lake had already been tested and is capable of producing 8,000 gallons a day. At 100 gallons a day times 4.5 people per household times 10 households, Fred Lennarson said, 8,000 would provide water services for the families of the ten Elders, fine tune water treatment for the main Lubicon water treatment facility post settlement, have sufficient excess capacity to provide water service to a few additional families a year until settlement and full reserve construction, provide water for the families who chose to remain in Little Buffalo post settlement and serve as a back-up water source for the main water treatment facility post settlement.
Fred Lennarson said the other possible Lubicon water source is a well drilled in 1981. He said it would need to be tested to check capacity and flow rates. He said testing it would have cost $8,000 in 2005, and would cost an estimated 50% more now, but if it proved out it could represent considerable savings in access road costs. He pointed out that the cost of the 2005 Lubicon proposal was $1.2 million if the 1981 well proved out versus $2.5 million if the source at the western end of Lubicon Lake has to be used.
Dan Kumpf asked Fred Lennarson if Fred Lennarson had talked to the Lubicons about disposing of Lubicon sewage in the Woodland sewage lagoon.
Fred Lennarson said he had. If the feds are unprepared to fix and enlarge the existing Northlands sewage lagoon, Fred Lennarson said, the Lubicons want to explore the possibility of putting in a whole new sewage lagoon in Little Buffalo. Fred Lennarson said that hed talked to the civil engineers and they said the current cost of a new lagoon would be about $300,000 compared to the $150,000 in 2005 numbers budgeted in the Lubicon proposal to fix and enlarge the existing Northlands lagoon.
Dan Kumpf asked if there is a place a new lagoon could be located.
Fred Lennarson told Dan Kumpf possible sites will have to be investigated but it would be cost efficient to locate a new lagoon in proximity to proposed commercial facilities so sewage from the commercial facilities post settlement could be piped to the sewage lagoon instead of trucked.
Dan Kumpf asked about water for the commercial facilities.
Fred Lennarson told Dan Kumpf that water for the commercial facilities could be piped via a low-pressure pipeline into a water reservoir so it wouldnt have to be trucked either but that would have to await settlement and construction of the commercial facilities. Fred Lennarson said the objective is to provide water and sewer services for the Elders in a way that is consistent with and contributes to the water and sewer system contemplated in settlement negotiations rather than doing it in a way that would be obsolete post settlement.
Dan Kumpf asked "How do we proceed?" He asked "Should I send a letter spelling out the numbers?"
Fred Lennarson told Kumpf that hed reported the numbers discussed in the January 30th meeting to the Lubicons but it would be useful to have a letter from Dan Kumpf officially confirming the numbers in writing. However, Fred Lennarson repeated, the Lubicons are still going to require agreement on water source and sewage disposal before they are going to be prepared to agree on transfer of money to buy materials.
Dan Kumpf said "I will talk with the Capital guys and see what we can do". He said "I will send a draft out Monday (February 12th)".
On February 19, 2007 I received the following letter from Dan Kumpf:
"Further to your letters of November 15, 2006 and January 19, 2007 I have since had the opportunity to meet with Fred Lennarson on January 30, 2007 to discuss the implementation of the "Lubicon Water and Sewer Proposal, June 22, 2005."
"Indian and Northern Affairs Canada (INAC) has secured $430,000 towards infrastructure development for the 10 elders (up from the originally discussed $410,000 to account for some increased costs). I appreciate your concern with respect to both acquisition of water for the community as well as the disposal of sewage. As discussed with Mr. Lennarson INAC is prepared to flow further funding under the First Nation Water Management Strategy to purchase both a water truck and vacuum truck, in addition to annual O&M costs as per INAC policy.
"Water sources and sewage lagoons were also discussed in some detail. Mr. Lennarson had raised the issue of the quality of water of the existing water treatment plant at Cadotte Lake; as of February 13, 2007 Health Canada advises that there is no boil water advisory at this site. I will, however, commit to undertaking a further review to determine if the water quality issues that Mr. Lennarson raised can be quantified by Health Canada; should they occur, INAC will review their analysis to determine if conditions can be improved. INAC is committed to ensuring the Lubicon people are accessing drinkable water in accordance with federal and provincial standards.
"In addition the operation of the existing Northlands sewage lagoon was discussed. It was identified that this facility is both under-capacity (which isnt true) and in a non-conforming location.
"Therefore an upgrade to this lagoon at this time would conflict with current environmental legislation. Instead Mr. Lennarson suggested (sic) it may be possible to dump the sewage at the existing lagoon at Woodland thereby substantially reducing operating costs for the vacuum truck.
"While I am unable to commit funding at this time for a water treatment plant and sewage lagoon, I understand that these issues are to be addressed through your claims negotiation. Regardless, the two trucks would provide an interim solution to the immediate concern of the provision of water and sewer services to the elders.
"This said I have had my staff prepare the funding amendments for this fiscal year for:
"In order to flow these funds by March 15, 2007 the signed amendment will have to be returned to our office by February 28, 2007. Given these time lines, I will have my staff expedite their delivery.
"I trust this clarifies the INAC position on this matter."
I responded to Mr. Kumpfs February 19th letter the same day as follows:
"When we met last November 10th you indicated that you had identified $250,000 and were optimistic that you would be able to find another $160,000 which, taken together, would be adequate to pay for sinks and toilets for the families of ten Elders, to upgrade ten driveways (necessary to deliver water and haul away sewage), and to install ten water cisterns and sewage holding tanks. At that time you claimed not to know where the water would come from, where the sewage would go or how the actual water and sewer services would be paid for. It was a curious position to say the least.
"Your colleague Leon Gosselin proposed "to get the wheels turning (on release of the $250,000)" saying that "It might be possible to get a crack at more funds" but that the Department "cant guarantee anything". Mr. Gosselin proposed to obtain the necessary water from a 105 km long pipeline from the Peace River to Cadotte Lake being contemplated by Sunrise County and in the meantime to contract out water and sewer services. You again claimed not to know where water in the meantime would come from, the sewage would go or how contracting out provision of water and sewer services would be paid for.
"We pointed out that contracting out water and sewer services would cost more in one year than it would take to build the proposed Lubicon water treatment facility and expand an existing Northlands sewage lagoon in our community. We pointed out that completion of the proposed Sunrise County pipeline was by the Departments own accounting at least 4 to 5 years away and that a Lubicon water treatment facility could be in place in a matter of a few months.
"We pointed out that having the province provide the Lubicon people with water from the Peace River over 100 kilometers away would constitute effective provincial assertion of jurisdiction over unceded Lubicon lands, and subvert Lubicon land rights, while building a Lubicon water treatment plant and sewage lagoon would be consistent with settlement negotiations and plans, and provide the Lubicon people with employment in provision of our own services to our own people under our own duly elected government.
"We made very clear to you then and since that we are not prepared to proceed with provision of badly needed water and sewer services for our elderly people in a way that subverts the land rights upon which the future of all Lubicon people depend -- and which was clearly intended all along as a way to subvert the land rights upon which the future of all Lubicon people depend.
"As I indicated in my letters of November 15, 2006 and January 19, 2007, the Lubicon people are prepared to implement our jointly developed June 22, 2005 water and sewer proposal in phases, as you suggested during our meeting on November 10, 2006, provided that we have written agreement in advance as to where the water is going to come from, where the sewage is to go and how all of this is going to be paid for. As you know the June 22nd proposal provides for construction of a small Lubicon water treatment facility and expansion of the existing Northland sewage lagoon as the most economically viable way of providing these services consistent with Lubicon settlement negotiations and plans.
"You now indicate that you are not prepared to proceed with your own proposal to implement the June 22nd proposal in stages but that the Lubicon people should instead seek funding for a water treatment plant and sewage lagoon "through (non-existent) claims negotiations". This position clearly leads us indirectly back to the provincial pipeline intended to supplant the non-functional Cadotte Lake treatment plant, to further stonewalling on Lubicon land negotiations while the pipeline is built, to provincial assertion of jurisdiction over unceded Lubicon land and to subversion of Lubicon land rights.
"During the meeting on January 30, 2007 Mr. Gosselin told Fred Lennarson that the Department can provide $430,000 to provide water cisterns and sewer holding tanks for the families of ten Elders, to put plumbing fixtures in ten houses and to upgrade ten driveways. Mr. Gosselin proposed to provide $150,000 of this amount this fiscal year and to provide the remaining $280,000 next fiscal year.
"Mr. Gosselin indicated that the Department can provide $170,000 for a water truck and $200,000 for a sewer truck. He told Fred Lennarson "The Department pays 80% for water and sewer truck O&M". He said "Water truck O&M is $37,600 a year for the cost of both the operator and the cost of running the truck". He said "Sewer truck O&M is $37,506 a year for both the cost of the operator and the cost of maintenance". (Actual annual truck operating costs in comparable situations are in fact over twice that amount.)
"Mr. Gosselin said the Department cant spend money fixing and expanding the existing Northlands sewage lagoon because it doesnt meet federal environmental setback requirements but, he said, the Lubicons can dispose of Lubicon sewage in the Woodlands sewage lagoon located in Cadotte Lake.
"Mr. Gosselin claimed "it will take at least 4 or 5 years to design and build a (Lubicon) water treatment plant" but, he said, the Lubicons can obtain the water we need from what he euphemistically called "the current provincial source (in Cadotte Lake which the Sunrise County pipeline is notably expected to supplant in approximately the same 4-5 year time period)".
"Fred Lennarson told Mr. Gosselin that he understood from civil engineers that the proposed Lubicon water treatment plant could be put in place in a few months since the water source is already known; necessary treatment is already known and the proposed water treatment plant is something that can be purchased and basically set up on site. However, Fred Lennarson said, he would confirm his understanding with the civil engineers and report back which he subsequently did with you by phone on February 9th.
"As Fred Lennarson told you on February 9th, his earlier understanding is correct about how much time it would take to put a Lubicon water treatment plant in place and Mr. Gosselins information is not correct. The proposed Lubicon water treatment plant can be put in place within 6 months at an estimated cost of $300,000 (up from the 2005 cost of $200,000 due to inflation and the economic boom in Alberta).
"Fred Lennarson agreed to check with us as to whether dumping Lubicon sewage in the Woodlands sewage lagoon in Cadotte Lake "might be acceptable as a temporary, short-term sewage disposal solution until the Lubicons have our own sewage disposal facilities in place". However, Fred Lennarson told you, he knew the Cadotte Lake water is not acceptable to the Lubicons, to the Woodlanders or anybody else in the area whether "there is a boil water advisory" on it or not. A scum floats on the surface of it. It tastes terrible -- "like shit" -- and reeks of the chemicals that have to be used to prevent having to issue a boil water advisory on it. (Civil engineers make very clear that one of the criteria for judging water quality is drinkability. Certainly even Indian Affairs officials understand that one of the criteria of acceptable drinking water has to be that its drinkable as well as not potentially lethal.)
"As your colleague Jim Wincherauk acknowledged during the meeting on January 30th, the water from the Cadotte Lake treatment plant has never been drinkable. The plant there has been modified several times in an unsuccessful effort to make it drinkable. Although Mr. Wincherauk said he understood it was technically possible to drink water from the Cadotte Lake plant, at one point the people in Cadotte Lake were even refusing to wash their vehicles with it. Water from the Cadotte Lake plant is only used for scrubbing floors, washing dishes and doing laundry by anybody who can obtain their drinking water elsewhere. The Department put money into developing the Sunrise County pipeline project on behalf of the Woodland Band at least in part, as you and your colleagues very well know, because water from the Cadotte Lake plant isnt drinkable.
"With regard to dumping Lubicon sewage in the Woodlands sewage lagoon in Cadotte Lake, Fred Lennarson agreed to check with us as to whether the Woodland lagoon "might be acceptable to the Lubicons as a temporary, short-term sewage disposal solution until the Lubicons have their own facilities in place". He subsequently did so as he told you by phone on February 9th. As Fred Lennarson told you by phone on February 9th, if it is not possible for the Department to spend money fixing and expanding the existing Northlands sewage lagoon because of federal environmental setback requirements, we would like to explore the possibility of putting in our own sewage lagoon instead of trucking the sewage to Cadotte Lake. We have checked with the civil engineers and they advise that the current cost on a new Lubicon sewage lagoon would be about $300,000 compared to the $150,000 required to fix and expand the existing Northlands sewage lagoon. Again consistent with Lubicon settlement negotiations and plans, a new Lubicon sewage lagoon could be located in proximity to the proposed commercial facilities so sewage from the commercial facilities post settlement can be piped economically to the sewage lagoon rather than trucked -- which would be considerably more expensive.
"Lastly you presume too much when you instruct your staff to prepare funding amendments to proceed with an approach to the provision of water and sewer which isnt tenable technically, financially or politically and which we have repeatedly told you isnt acceptable. The Lubicon people are not prepared to be scammed or maneuvered into trading the heritage of our children and grandchildren for water we cant drink delivered by trucks we cant afford to operate."
That was the last we heard from Mr. Kumpf.
I raised the water and sewer situation with George Arcand again on April 10th. He said he didnt understand the problem.
We told George Arcand that the problem is that Jim Sisson instructed Regional Office officials to stop the water and sewer talks because of land negotiations, contrary to Minister Naults instructions to George Arcand to provide the Lubicons with basic services even while land negotiations were proceeding. We told him that Regional Office officials had then devised and attempted to implement a scheme to lead the Lubicons into accepting water services provided by the province as part of assertion of provincial jurisdiction, contrary to agreements made in Lubicon land negotiations and contrary to Lubicon self-government. We told him that Regional Office official Chris Wilson then added insult to injury by telling reporters that the federal government had offered the Lubicons water and sewer services and Lubicon leaders refused to accept it because, supposedly, Lubicon leaders were holding their own people hostage in order to gain sympathy from international organizations.
George Arcand said that he couldnt believe that what we were telling him was true. We told him we would be pleased to provide documentation on Jim Sisson instructing Regional Office officials not to proceed with water and sewer talks, on Chris Wilson telling reporters that Lubicon leaders were holding our own people hostage in order to gain sympathy from international organizations, and on the involvement of Regional Office officials in the scheme to have the province provide water from Peace River via a 120 km pipeline contrary to agreement at the negotiating table and at a cost several times greater than the cost of the June 22nd proposal.
George Arcand said he wanted to see what could be done to provide the Lubicons with water and sewer services locally under Lubicon self-government. He asked what it would cost to up-date the Lubicon proposal to check out local water services.
We told George Arcand that wed have to get up-dated numbers from civil engineers which would cost money we didnt have. We told him that part of the financial problem being faced by the Lubicon people is that we keep spending money we dont have doing settlement-related work agreed with federal officials.
George Arcand said he would agree to pay to have civil engineers up-date the numbers in the June 22nd proposal. He asked when we could give him an estimate of the cost of up-dating the numbers on what it would cost to check local sources of water.
We told George Arcand that wed get an estimate from the civil engineers and get back to him as soon as possible -- which we then did on April 19th. We also explained to him that we only had to check one of the two possible sources of water -- that the other local source of water had already been checked and is workable and that checking out that one source of water is only one aspect of proceeding with the June 22nd proposal.
The estimate for updating the numbers in the June 22nd proposal is $7,000. It is this $7,000 that Mr. Prentice claims in his letter dated August 9th letter to you that the Department had provided us and regarding which the Department was supposedly waiting to hear back from us.
In fact we had not received the $7,000 by August 9th, or by August 15th when Mr. Prentice emailed his August 9th letter to you, or by August 23rd when you emailed a copy of Mr. Prentices letter to us. It didnt arrive until after we phoned Indian Affairs on April 27th and asked if they knew what Mr. Prentice was talking about.
Upon receipt of the $7,000 check from Indian Affairs we immediately contacted the civil engineers and asked them to up-date the numbers on the June 22nd proposal. We hope to have those updated numbers by the end of the week and will of course immediately provide them to Indian Affairs.
We expect Indian Affairs will approve testing of local water sources. We will then find out whether the federal government is prepared to proceed with the June 22nd proposal as agreed.
Copies of all the documents and correspondence mentioned in this letter are available and can be provided.
Thank you again for your concern and your support and for providing us with a copy of Mr. Prentices letter so we can respond to the things Canada is saying.
ORIGINAL SIGNED BY?
Chief, Lubicon Lake Indian Nation
cc: Prime Minister Stephen Harper
Indian Affairs Minister Chuck Strahl
Federal Liberal Leader Stéphane Dion
Federal NDP Leader Jack Layton
MP Brian Jean
MP Chris Warkenton
MP Rahim Jaffer
Alberta Premier Ed Stelmach
Alberta Liberal Leader Kevin Taft
Alberta ND Leader Brian Mason
MLA Raj Pannu
The Hon. Chuck Strahl
Jim Prentice was the Minister of Indian Affairs when the above was written, the new minister is
Minister of Indian and Northern Affairs
Government of Canada
Ottawa, ON K1A 0H4
Fax: (613) 944-9376
The Hon. Chuck Strahl