Seeing through TransCanada's slippery legalistic language

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

October 21, 2008

Included below for your information is a copy of an article on approval of the TransCanada pipeline across unceded Lubicon land. A couple of comments by TransCanada spokeswoman Cecily Dobson are worth noting.

The first comment is that "TransCanada respects the assertion of traditional land use by aboriginal peoples". This is legal language that comes from court decisions in Canada pertaining to the so-called "duty to consult" aboriginal people (but not necessarily accommodate aboriginal concerns) regarding aboriginal surface rights "to pursue the usual (aboriginal) vocations of hunting, trapping and fishing throughout the tract surrendered (by treaty) subject -- (to quote Indian treaties in Canada) -- to such regulations as may, from time to time be made by the Government of the country, acting under the authority of Her Majesty, and saving and excepting such tracts as may be required to taken up from time to time for settlement, mining, lumbering or other purposes".

As such this statement is effectively a statement that the Lubicons only have surface rights -- the right to wander around the surface of the earth surviving as best they can -- "with no more rights than the deer in the field" -- and it is an express denial that the Lubicons have land or resource rights over unceded Lubicon land.

The Lubicons have of course never signed a treaty with Canada "surrendering" their land and resource rights. Nor have they "surrendered" their rights to Lubicon Territory in any other legally or historically recognized way.

This is at the heart of the dispute between TransCanada and the Lubicons. TransCanada is prepared to talk to the Lubicons about their pipeline construction plans, and maybe even to make some minor adjustments in those plans, but -- as they have made clear with recent announcements that they "have moved several kilometers of pipe into place within 50 kilometers of the Lubicon settlement" and "will begin construction of the pipeline later this year -- they effectively reject the fact of unceded Lubicon land rights accepting, by their actions, provincial government claims that Lubicon land belongs to the Alberta government.

Recognition that the Lubicons have never ceded their rights to Lubicon Territory is of course essential to the existence of Lubicon land rights. Otherwise, to quote the Alberta government, the Lubicon people are "only squatters on provincial Crown land" with no rights -- not even the right to their own homes which the province at one point deemed "unauthorized improvements to provincial Crown land" and threatened to bulldoze.

The second comment worth noting is Ms. Dobson's statement "We are continuing to communicate with the Lubicon Nation". What Ms. Dobson means by this statement is that TransCanada periodically sends the Lubicons a message that they are prepared to say that they recognize Lubicon land rights but not to suspend their pipeline construction activities pending Lubicon agreement not to oppose construction of the pipeline. The type of slippery, legalistic language they want to discuss is clear from the comment made by Ms. Dobson about recognizing "assertion of traditional land use by aboriginal peoples".

The Lubicon position, with TransCanada and everybody else who wishes to conduct activities in unceded Lubicon Territory, is that they must obtain Lubicon agreement not to oppose an application to the Alberta government before proceeding. TransCanada ignored that requirement and applied to the province falsely claiming "extensive consultations" and no objections". However the Lubicons have made very clear that TransCanada will not be allowed to construct the pipeline across unceded Lubicon land without first recognizing Lubicon land rights and dealing with Lubicon environmental, safety, wildlife and economic development concerns.

It is not good enough for TransCanada to be prepared to talk with the Lubicons while they proceed with construction of their pipeline. The Lubicons have made very clear to TransCanada from the very beginning that they are not prepared to talk with TransCanada until TransCanada suspends their ongoing pipeline construction activities pending Lubicon agreement not to oppose pipeline construction.

Pipeline’s approval hard to swallow
Path crosses Lubicons’ unceded territory

Indian Country Today
Oct 20, 2008

Kate Harries, Today correspondent

TORONTO -- The news that the Alberta Utilities Commission had approved a 186-mile gas pipeline across the unceded territory of a beleaguered Cree nation was not unexpected, but it still was hard to take.

"It was like a kick in the head," Councilor Dwight Gladue of the Lubicon Lake Indian Nation said the day after release of the decision giving the go-ahead to TransCanada Pipelines’ $1 billion North Central Corridor pipeline.

"But there was no doubt in our mind that the approval was going to happen," said Gladue, interviewed following a community meeting in the band office at Little Buffalo, about 310 miles northwest of Edmonton.

"We definitely will do anything that we can to halt the project until they are reasonable and will sit down with us," he said, adding that he’s not at liberty to divulge the Lubicons’ plans.

"We have to stand up to these people for the sake of our children and our grandchildren."

The pipeline is to connect new gas production in British Columbia and northwest Alberta to oil sands production in the east and markets further south.

Amnesty International Canada issued a press release decrying the "blatant disregard" governments in Canada have shown for the rights of the Lubicon Cree. "This has to stop," said Secretary General Alex Neve, adding that until Canada reaches a settlement with the Lubicons, "large-scale development projects like the TransCanada pipeline should not go ahead without their agreement."

The Oct. 10 timing of the decision was not unexpected, either. Gladue noted that it fell in line with the desire expressed to the commission by TransCanada officials for an Oct. 15 start of construction.

And indeed, in the decision posted on its Web site, the commission states candidly that Nova Gas Transmission, the TransCanada subsidiary that submitted the application, "indicated that it required approval from the commission by Oct. 15, 2008, in order to commence construction in the required timeframe."

The Lubicons’ concerns are twofold: the First Nation wants to guard against further degradation of a land base that’s been devastated by rampant oil and gas extraction and to protect the rights that result from never having signed treaty or surrendered their land.

The Lubicons asked that TransCanada acknowledge the nation has unceded rights; and at one meeting, Geldue said, company officials agreed to draft an agreement to that effect. But, he said, "When we got the draft agreement: nothing, no mention of that."

In an e-mail, company spokeswoman Cecily Dobson said, "TransCanada respects the assertion of traditional use of land by aboriginal peoples" – a statement that the Lubicon find meaningless.

Dobson added that TransCanada advised the Lubicon that it does not have the authority to resolve land claims or jurisdictional issues; negotiations regarding these issues can be resolved by federal and provincial governments only.

"They said, ‘It’s not for us to say that you have land rights,’" Gladue commented. "We’re not expecting any rights from them. But we want them to be fully aware that we have land rights."

It is, generally accepted that the Lubicons never ceded their land, having by an oversight been left out of Treaty 8 in 1899. But Canada has been content to let negotiations lapse since 2003 and Alberta treats Lubicon land as Crown land, leasing it to oil and gas and lumber companies. The Friends of the Lubicon Alberta group estimates that $13 billion in resources have been extracted from the territory since 1979, with not a penny of it going to the Lubicons.

Each level of government points the finger at the other when asked to respond to a series of U.N. committee resolutions urging a halt to resource extraction until Canada settles with the Lubicons.

"We are continuing to communicate with the Lubicon nation," TransCanada’s Dobson e-mailed Oct. 15.

Gladue said it has been the company’s practice to send officials without any decision-making authority or understanding of pipeline construction to "drop by" regularly in what appears to be an attempt to build an appearance of consultation.

The company has not responded to Lubicon requests for experts able to answer their questions about impacts on wildlife, medicine plants, creek crossings and other environmental issues.

Gladue appeared before the utilities commission to challenge its right to make decisions about development on unceded territory without Lubicon consent.

But the commission, chaired by lawyer Willie Grieve, dismissed the argument. The decision states that the Lubicon Lake Indian Nation had failed to provide "detailed information in support of its allegation of aboriginal rights or to indicate the area within which its members exercised the asserted rights."

The commission was clearly focused on site-specific surface land use rights such as hunting or trapping, but steered well clear of dealing with the argument that Alberta has no right to lease land before resolving the land rights dispute.

Ed Bianchi, aboriginal rights coordinator for KAIROS, a church-based social justice group, noted that the commissioners didn’t seem to grasp the concept of unextinguished indigenous rights that apply to unceded Lubicon territory.

"They made some passing references to specific rights, as if the Lubicon are somehow under Treaty 8, which we know they’re not. I just can’t believe at this stage of the game, with everything that’s been written and everything we know about the Lubicon, that they don’t understand that distinction."

Bianchi said it’s unfortunate that both the federal and Alberta governments "play games" to shirk their responsibility to see justice done. He spoke by phone from the Edmonton airport where he and Neve were on their way to Little Buffalo to show community members a rough cut of a documentary that AI has made about the Lubicon.

Bianchi started working with the Lubicons in 1984 and helped launch an international boycott after the giant Japanese paper company Daishowa was preparing to clear-cut across their 4,000-square-mile territory.

The boycott of Daishowa paper products was successful. In 1998, the company signed an agreement with the Lubicons, agreeing to stay out of their territory until a land rights settlement is reached.

"So they still haven’t cut any trees and they still have the license," Bianchi said, adding, "Maybe that’s what we need to look at again."

Sister Mary Jeanne Davidson, a Roman Catholic nun based in Peace River, 62 miles west of Little Buffalo, said she’s witnessed the dreadful poverty and ill health that have resulted from the hundreds of oil wells drilled on Lubicon land.

Contaminated lakes, rivers and drinking water (even the snow in winter is too polluted to melt and drink, as was once the practice) and depleted wildlife have ended their subsistence lifestyle, throwing them onto welfare.

"Until the 1980s, they were self-sustaining. One mother shared with me that she had had eight miscarriages: she had no children."

Sister Davidson said she is appalled by the commission’s decision. The Lubicons will stand up for their rights, she predicted: "As a people, they will defend their land."

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