Lubicon response to denial of standing at pipeline hearing

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

May 5, 2008

On April 21, 2008 the Lubicons received a letter from TransCanada saying that officials of TransCanada were "surprised" by Lubicon rejection of a position the Lubicons have been taking all along and that TransCanada therefore "needs to consider options available to it and requires some time to do so". The TransCanada letter said "We (TransCanada) plan to respond to the Lubicon Nation during the week of May 4th".

On April 25th, four days later, the Lubicons received a copy of the April 24th decision of the Prehearing Meeting of the Alberta Utilities Commission (AUC) asking the Lubicons to essentially provide the specifics of the Lubicon aboriginal rights case and giving the Lubicons until May 5th to submit this "additional information...if the Nation wishes to participate in the proceeding".

May 5th is of course just another way of saying the week of May 4th.

That TransCanada and the AUC are both trying to draw out, size up and deal with the Lubicons isn't surprising. That their timetables are identical -- and that TransCanada would specify the involved date 4 days before the AUC publicly announced its decision -- is at the very least suspicious and raises the specter of a supposedly independent, "quasi-judicial" provincial agency improperly conspiring with an applicant to defeat an intervenor.

It wouldn't be the first time such a thing has happened in Alberta. The AUC was established by the Alberta provincial government last December after its predecessor, the Alberta Utilities and Energy Board, got into political trouble for hiring spies to infiltrate internal meetings of intervenors and listening in on private intervenor phone conference calls. A supposedly independent, "quasi-judicial" regulatory agency is not supposed to be surreptitiously listening in on supposedly private discussions between lawyers and their clients regarding a case currently before it. Doing so throws in a cocked hat any pretence of unbiased, objective decision-making for a supposedly independent, "quasi-judicial" regulator to treat intervenors in an application as the enemy.

On the issue of the Lubicons arguing Lubicon land rights before a provincial regulatory agency charged basically with facilitating resource exploitation in Alberta, the Lubicons subjected themselves to that process before and heard an ex-senior provincial government official on contract to the involved oil company, and openly working closely with current senior provincial government officials, submit demonstrably cooked evidence denying Lubicon land rights to sympathetic regulators appointed by the provincial government. The Lubicons heard their own evidence regarding the impact resource exploitation activity upon their lives and their lands dismissed as "anecdotal" and the evidence of a soon to be discredited environmental consulting group associated with a toxic waste plant subsidized by the provincial government described as "scientific". And in the end they heard their opposition to the application dismissed, and earlier approval of the application reaffirmed, simply because, the provincial regulatory agency said, deciding jurisdiction is beyond its jurisdiction.

Approving an application in a contested area is of course by definition taking a position on jurisdiction.

Included below for your information is the text of the Lubicon response to the AUC request for "detailed information in support of (Lubicon) assertion of aboriginal rights...(including)...information about the specific aboriginal rights claimed in the vicinity of the proposed gas utility pipeline, where the rights are exercised in relation to the proposed gas utility pipeline and the manner in which those rights may be directly and adversely affected by the decision of the Commission on the Application".

For those unfamiliar with the Ipperwash situation mentioned in the Lubicon letter, it occurred in Ontario in 1995 and involved Indians demanding return of reserve land, including a burial ground, that had been turned into an Ontario provincial park after first being expropriated by the Canadian military. Then Ontario Provincial Premier Mike Harris was widely quoted in a subsequent inquiry as telling his officials "I want the fucking Indians out of the park". An Inspector in the Ontario Provincial Police was quoted as saying that the Harris government wanted to "kick ass" in dealing with the protestors. Police surveillance tapes made the day before the incident showed police officers making overtly racist remarks about Indians.

The unarmed protestors were consequently assaulted by the Ontario Provincial Police and one of the protestors was shot to death by the police. The official inquiry into the incident ruled that the Ontario Provincial Police, the provincial government of then Ontario Premier Mike Harris and the federal government of Canada all bore responsibility for the fatal shooting of an unarmed man.

In 2007 the Ontario government finally announced its intention to return the land to its rightful owners although at last notice it had still failed to do so.


Lubicon Lake Indian Nation
P.O. Box 6731
Peace River, AB T8S 1S5
Phone: 403-629-3945
Fax: 403-629-3939

May 4, 2008

Willie Grieve, Chair
Alberta Utilities Commission
Facilities Branch, Calgary Office
Fifth Avenue Place, 425 - 1st Street SW
Calgary, Alberta T2P 3L8
Fax: 403-297-6104
Email: willie.grieve@auc.ab.ca

Dear Mr. Grieve:

Re: August 24, 2008 Decision on Prehearing Meeting of the AUC
Application No. 1551990
Nova Gas Transmission Ltd. (NGTL)
North Central Corridor
(North Star Section) & (Red Earth Section)
Meikle River Compressor Station Units C3 & C4

The questions on the standing of the Lubicon Lake Indian Nation in the hearing of the above application posed in the August 24, 2008 Decision on Prehearing Meeting of the Alberta Utilities Commission are not relevant to unceded Lubicon Territory. They incorrectly assume that provincial jurisdiction applies in Lubicon Territory and are designed to deal with issues arising from the potential impact of constructing the proposed pipeline on privately titled land under provincial jurisdiction.

The Alberta Utilities Commission does not have jurisdiction to determine the existence, nature and extent of unceded Lubicon land rights. Under the Canadian Constitution these are questions that can only be decided through a negotiated agreement between the Lubicon Lake Indian Nation and the Government of Canada. All the Alberta Utilities Commission can legitimately do is require that TransCanada deal with Lubicon concerns about construction of the proposed pipeline before the Alberta Utilities Commission considers the TransCanada application.

Putting aside the misleading verbal subterfuge implicit in responding to the Lubicon submission with irrelevant questions, it should be clear to Albertans, to Canadians and to people around the world that the real question before the Alberta Utilities Commission is not how close in meters a Lubicon person lives to the proposed pipeline, and whether that person has a trapping cabin that might be directly and adversely affected by construction of the proposed pipeline, but whether the Alberta Utilities Commission is prepared to be responsible, in the manner of the Ontario Government of Mike Harris at Ipperwash, for knowingly instigating a dangerous confrontation by approving TransCanada’s application to build a giant new gas pipeline across unceded Lubicon Territory without Lubicon consent.

Sincerely,

 

Original Signed by

 

Bernard Ominayak
Chief
Lubicon Lake Indian Nation

cc: The Rt. Hon. Stephen Harper
Prime Minister of Canada
Government of Canada
Ottawa, ON K1A 0H6
Email: Harper.S@parl.gc.ca

National Chief Phil Fontaine
Assembly of First Nations
Trebla Building
473 Alberta Street
Suite 810
Ottawa, ON K1R 5B4
Email: c/o sloft@afn.ca

The Hon. Stéphane Dion
Leader of the Official Opposition of Canada
Leader of the Liberal Party of Canada
House of Commons
Ottawa, Ontario K1A 0A6
Email: DionS1@parl.gc.ca

The Hon. Jack Layton
Leader of the New Democratic Party of Canada
House of Commons
Ottawa, Ontario K1A 0A6
Email: Layton.J@parl.gc.ca

Gilles Duceppe
Leader of the Bloc Québéc
House of Commons
Ottawa, Ontario K1A 0A6
Email: Duceppe.G@parl.gc.ca

Premier Ed Stelmach
Government of Alberta
Room 307, Legislature Building
1008 - 97th Avenue
Edmonton, Alberta T5K 2B6
Email: fortsaskatchewan.vegreville@assembly.ab.ca

Dr. Kevin Taft
Leader of the Official Opposition of Alberta
Leader of the Liberal Party of Alberta
# 201 Legislative Annex
9718 107 Street
Edmonton, Alberta T5K 1E4
Email: edmonton.riverview@assembly.ab.ca

Brian Mason
Leader of the New Democrat Party of Alberta
# 501 Legislative Annex
9718 107 Street
Edmonton, Alberta T5K1E4
Email: edmonton.highlandsnorwood@assembly.ab.ca

Louise Arbour
UN High Commissioner for Human Rights
UN Office of the High Commissioner for Human Rights
Plais Wilson
52 rue des Pâquis
CH-1201 Geneva, Switzerland

S. James Anaya
UN Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples
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Email: anaya@law.arizona.edu

Miloon Kothari
UN Special Rapporteur on Adequate Housing
UN Human Rights Council
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Email: c/o bghazi@ohchr.org
UN Human Rights Council
Human Rights Council and Treaties Division
1211 Geneva 10, Switzerland
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Patrice Gillibert
Secretary of the UN Human Rights Committee
UN Human Rights Committee
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Wan-Hea Lee
Secretary of the UN Committee on Economic, Social and Cultural Rights
UN Committee on Economic, Social and Cultural Rights
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Email: WLee@ohchr.org

Nathalie Prouvez
Secretary of the UN Committee on the Elimination of Racial Discrimination
UN Committee on the Elimination of Racial Discrimination
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Email: nprouvez@ohchr.org


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