TransCanada invades Lubicon territory

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

November 17, 2008

The following is a self-explanatory letter dated November 13 from Lubicon Councilors Alphonse Ominayak, Dwight Gladue, and Larry Ominayak to TransCanada Corporation Vice Presidents Stephen Clark and Steve Schock.

The letter details conversations between the Lubicon Nation and TransCanada Corporation representatives during the past two weeks -- conversations which were marked by a complete unwillingness on the part of TransCanada to alter anything fundamental about its proposed North Central Corridor Pipeline, including the site of its 600-person contractor camp near Lubicon fisheries and traditional sites, because to alter anything might impact on its self-imposed construction timetables.

The Councilors’ letter is followed by a November 15th response from TransCanada Vice Presidents Clark and Schock which claims, amongst other things, that "TransCanada has received all necessary permits and approvals required to construct and operate the North Central Corridor pipeline project" even though they’ve received no approvals from the Aboriginal owners of the lands through which the pipeline passes and on which the company is installing a 600-person contractor camp.

Clark and Schock further claim that they cannot move the 600-person contractor camp further away from the 500-person Lubicon community and outside of Lubicon Territory (which they call the "teardrop" because of the shape of its outline on a map), and that they must begin construction of their pipeline because "TransCanada has an obligation to build this facility in a timely manner to meet the public interest".

The public oughta tell TransCanada that its interests aren’t served by steamrolling over Aboriginal communities, that its interests aren’t served by ignoring international human rights conventions, that its interests aren’t served by pretending to listen to Aboriginal people as long as there’s never any question of having to alter any of the company’s original plans or timetables, and especially that the public is sick and tired of corporate executives who pretend their pursuit of private profit has anything whatsoever to do with the "public interest".

TransCanada’s President and CEO is:

Harold Kvisle
President and Chief Executive Officer
TransCanada Pipelines Limited
450 - 1st Street SW
Calgary, Alberta T2P 5H1
Phone: 403-920-6144
Fax: 403-920-2354

His email is: hal_kvisle@transcanada.com

 


LETTER FROM LUBICON LAKE INDIAN NATION TO TRANSCANADA

NOVEMBER 13, 2008

Mr. Stephen Clark
Vice President, Commercial West

Mr. Steve Schock
Vice President, Operations and Engineering

TransCanada PipeLines Limited
450 - 1st Street S.W.
Calgary. Alberta, Canada T2P 5H1

Dear Mr. Clark and Mr. Schock;

TransCanada began clearing land for a 600-person contractor camp within Lubicon Traditional Territory last week. While TransCanada’s contractors proceeded with clearing trees on a pipeline right-of-way and the proposed camp site, TransCanada representative Perry Kocis called Chief Ominayak to request a meeting to discuss TransCanada’s already-begun pipeline construction program.

We asked Kevin Thomas to return his call on November 5. Mr. Thomas asked TransCanada to halt all construction activity within Lubicon territory, at which point we would be prepared to discuss meeting with TransCanada. Mr. Kocis agreed to "call and get it shut down". He asked Mr. Thomas if it would be possible for the Lubicon Chief and Council to meet on Friday, November 7. Mr. Thomas told him that when the work was stopped, he and Mr. Kocis could talk about meeting times. He asked Mr. Kocis to call him when the site was shut down.

On November 6, we checked and found that work on the campsite was continuing. Mr. Thomas called Mr. Kocis and told him that no meeting would happen while the work continued. He said that Mr. Kocis had not done what he had agreed to do.

Mr. Kocis claimed he misunderstood the clear instructions, and that he was waiting to halt construction until a meeting time was confirmed. Mr. Thomas told him again that we were not even prepared to talk about meeting while TransCanada continued to clear land within our Traditional Territory. He told Mr. Kocis to shut down the work immediately or forget altogether about meeting.

Mr. Kocis asked to continue construction of the contractor’s camp until Saturday, November 8, so that TransCanada could meet its own construction deadlines. He suggested meeting on Tuesday, November 11. Mr. Thomas reiterated that the work would have to shut down immediately if there were to be any meeting whatsoever.

Mr. Kocis again said he would shut it down. When he called back in half an hour, Mr. Kocis told Mr. Thomas that he had shut down construction.

Mr. Kocis asked if the Lubicons could meet either late Friday afternoon or on Saturday. Mr. Thomas consulted with us and told Mr. Kocis that we could not be available to meet on Friday or Saturday but would be available to meet on Tuesday, November 11, as he had originally proposed.

Mr. Kocis said "I can tell you now, I can’t shut down the camp for four days. We’re behind schedule already."

Mr. Thomas told him if TransCanada had dealt with the Lubicons properly from the start they wouldn’t be behind schedule at all. He said further that if they’d built the camp outside of the Lubicon territory this wouldn’t be an issue.

Mr. Kocis then told Mr. Thomas that the company’s Vice Presidents would be out of the country on Tuesday and therefore not available to meet at that time. Mr. Thomas told him that Tuesday had been Mr. Kocis’ own suggestion.

This went back and forth for some time. Mr. Kocis made some more calls, then proposed continuing with the camp site preparation until Saturday, shutting down the work Saturday night, and meeting on Tuesday.

After consulting with Chief and Council, Mr. Thomas left Mr. Kocis a message saying that construction must stop immediately, that the Lubicons expect a written answer to the letter from Councilor Alphonse Ominayak dated October 28, and that following that they would be prepared to meet on Tuesday, November 11.

On Friday, November 7, Mr. Kocis called Mr. Thomas and told him that the work was being shut down immediately (notwithstanding that he had already told us twice earlier that work had been shut down at the camp site) and that TransCanada would be available to meet on Tuesday November 11. He also agreed to fax a response to Councilor Ominayak’s letter.

Mr. Thomas agreed to the meeting time. However, when Lubicon representatives checked the site, they found the crews still working. When challenged yet again, Mr. Kocis expressed surprise, and again said the work crews would be going home right away.

On Saturday, November 8, however, TransCanada’s contractors moved housing units onto the camp site despite TransCanada’s assurances that the work had been shut down and would not continue.

On Saturday, November 8, Perry Kocis faxed Kevin Thomas a letter confirming the meeting on November 11. Kevin Thomas immediately faxed a note back to Mr. Kocis saying:

Received your fax letter of November 7, 2008 re: Tuesday's meeting. The Lubicons are still awaiting the written response to Councilor Alphonse Ominayak's letter of October 28th. As discussed, TransCanada was to provide a written response to that letter before Tuesday's meeting.

You can fax a reply to Alphonse Ominayak with a copy to me.

Councilor Ominayak did not receive a written response prior to the meeting. [During the meeting you explained that you had not seen the faxed reply from Mr. Thomas, while Mr. Kocis explained that his fax confirming the meeting time was intended to serve as a reply to Councilor Ominayak’s substantive letter].

Despite the fact that work on the campsite had not been halted when TransCanada promised to do so, and despite the fact that TransCanada had not replied to Councilor Ominayak’s letter, Lubicon Chief and Council still met with TransCanada representatives on Tuesday, November 11. Attending the meeting on behalf of TransCanada were yourselves, Pipeline Projects Manager Bruce Wells, and Perry Kocis. The entire Lubicon Council, the Chief, and a representative of the Elders Council attended the meeting, along with Lubicon Advisor Kevin Thomas.

At the meeting, TransCanada representatives presented information on the pipeline project that under any normal circumstances should have been in front of the Lubicon Nation well before any applications were made to any other governments for licenses and permits. TransCanada officials sought agreement from the Lubicon Nation that their project could proceed based on this one day’s meeting.

We asked that, prior to addressing its substantive concerns about the pipeline project, the company agree to recognize that the Lubicon Nation has unceded title to the lands through which the pipeline is expected to run. We presented the company yet again with a set of five written clauses that were drafted earlier this year by a Lubicon representative and a TransCanada representative which clarified the status of Lubicon land rights and acknowledged the company’s obligation to obtain Lubicon Nation approval for its proposed pipeline — and not merely to listen politely to our concerns and go ahead regardless.

Those five clauses were as follows:

TransCanada acknowledges and recognizes that the Lubicon Lake Indian Nation has never signed treaty with the Government of Canada ceding Lubicon rights to the Territory identified in the attached map.

TransCanada acknowledges and recognizes that the Lubicon Lake Indian Nation consequently has unsettled aboriginal land rights over part of the route for the proposed North Central Corridor Pipeline Project.

TransCanada acknowledges and recognizes that there is an on-going dispute between the Lubicon Lake Indian Nation and the Government of Alberta over who exercises rightful regulatory authority over the Territory identified in the attached map.

TransCanada acknowledges and recognizes that settlement of Lubicon land rights has been the subject of negotiation between the Lubicon Lake Indian Nation and both levels of Canadian government for many years and encourages the Governments of Canada and Alberta to return to the table and to expeditiously negotiate a settlement of Lubicon land rights with the Lubicon Lake Indian Nation resolving the dispute over rightful regulatory authority in the Territory identified in the attached map.

Pending settlement of Lubicon land rights, TransCanada is prepared to meet Lubicon regulatory requirements prior to proceeding with TransCanada’s application to the Alberta Utilities Commission.

TransCanada’s representatives told us that you were willing to acknowledge the status of Lubicon land rights as represented by the four initial paragraphs presented to you [and which you have subsequently included in your November 12 letter]. However, you told us, TransCanada was unwilling to commit to the fifth paragraph about obtaining Lubicon approval before proceeding until it was clear to the company what "Lubicon regulatory requirements" consisted of. You told us that TransCanada would like to discuss the Lubicon Nation’s specific concerns with the pipeline project and how they can be dealt with, in the hope of reaching an agreement on the pipeline project once those were addressed — after which you would determine whether TransCanada would agree to meet Lubicon requirements.

Lubicon representatives argued that while there are specific concerns regarding the pipeline project that could be addressed in the short term, there may be additional concerns which arise as the project proceeds and therefore that it is critical to the Lubicon Nation that the basis of our relationship is clearly articulated, and that there is an ongoing process for resolving disputes in which Lubicon concerns are not merely heard but accommodated.

We expressed immediate concerns over the proposed 600-person contractor camp within our lands and asked that it be moved to a site outside of our Traditional Territory. However, we were told repeatedly that it was not possible to move the camp at this stage because to do so would interfere with TransCanada’s construction schedule. We noted, however, that the company was told as early as this summer that other locations were available outside of the Lubicon territory, which the company rejected, and therefore that any problems with TransCanada’s construction schedule were of their own making.

Nevertheless, when the meeting ended, Mr. Kocis again expressed anxiety about the continued shut down of TransCanada’s camp construction project, and asked that construction be allowed to proceed while the Lubicons considered the information presented by TransCanada. He, and Stephen Clark, expressed continuing concern over their construction schedule.

We agreed to consider the information presented and respond within a couple of days as long as TransCanada continued to respect the shutdown. You agreed, in the meantime, to respond in writing to Councilor Ominayak’s October 28th letter.

On November 12, we received a written response to Councilor Ominayak’s October 28th letter. [NOTE: a full copy of the November 12 letter is attached below]. You wrote that you

hope that we will be able to find mutually acceptable ways of addressing any outstanding Lubicon issues and that we can create a positive relationship. During our meeting of November 11th, you and your councilors made it clear that the Lubicon would like a relationship with TransCanada that is based on mutual trust and respect. We can assure you that TransCanada shares this objective and also values a relationship that is based on these attributes.

Telling the truth is a fundamental part of building a respectful relationship. So is the willingness to accommodate concerns even when they run counter to previously held beliefs or plans.

It is for this reason that we have felt compelled to set out these exchanges between us here in this letter. From the exchanges with Mr. Kocis, it appears to us that even while we made efforts to work with TransCanada to see if we could resolve the dispute that currently confronts us, the company put its own immediate, short term interests ahead of building the foundation for a new relationship with our people by continuing camp construction even after being asked to stop, and then misrepresenting the status of camp construction in conversations with Mr. Thomas.

Then, when we met, it became abundantly clear that accommodating our concerns could only be considered if it involves no inconvenience or change in the company’s existing plans and schedules.

If we are to proceed with building a new relationship between us, this won’t do. Instead, we need TransCanada officials to tell the truth. And, we need evidence that TransCanada is willing to address our concerns even if they entail changes to its existing plans.

Since we met, we have carefully considered the information presented by you, as well as the letter you sent on November 12.

We are not prepared to issue approval for the entire pipeline project within two days, based on the information presented to date.

Rather, we agree with TransCanada’s proposal to engage in a comprehensive discussion with the Lubicon Nation with the express goal of developing a written agreement "that describes how both the Lubicon Lake Indian Nation and TransCanada will work together during the construction and operation of the pipeline" and that "would include the description of a process that would be used to effectively resolve potential disputes that may arise in the future."

This is the core of the Lubicon regulatory process we have asked TransCanada to respect.

However, in order for us to enter into discussions with TransCanada towards such an agreement, we will need prior assurances from TransCanada that Lubicon concerns will be accommodated, not merely heard and then ignored if they conflict with already-made plans and schedules.

For further clarity, we need assurance from TransCanada that they will obtain the agreement of the Lubicon Lake Indian Nation not to oppose any proposed project within our Territory by meeting the following Lubicon requirements:

1.) answering Lubicon health and safety questions about activities proposed in Lubicon Territory;

2.) accommodating Lubicon social, cultural, environmental and wildlife concerns arising from activities proposed in unceded Lubicon Territory;

And, if the first two points can be addressed to the satisfaction of the Lubicon Nation, by

3.) providing the Lubicon people — through agreement with the duly elected Lubicon government — with economic opportunities resulting from proposed activities in unceded Lubicon Territory.

Lastly, until a comprehensive agreement can be developed, we ask that TransCanada end this winter’s pipeline construction program at its proposed compressor station at 06-08-91-16-W5M, just inside the boundaries of the Lubicon territory. We ask that TransCanada refrain from any further trespass on Lubicon Territory without prior authorization from the Lubicon Nation. And we also ask that the contractor camp, currently being built at SW-11-91-16 W5M be moved outside of the Lubicon Territory to one of the sites originally proposed in discussions with the Alberta government.

Sincerely,

Alphonse Ominayak
Councilor, Lubicon Lake Indian Nation

Dwight Gladue
Councilor, Lubicon Lake Indian Nation

Larry Ominayak
Councilor, Lubicon Lake Indian Nation


RESPONSE LETTER FROM TRANSCANADA CORPORATION:

November 15,2008

Chief Bernard Ominayak
Lubicon Lake Indian Nation
P.O. Box 6731
Peace River, Alberta

Dear Chief Ominayak,

We would like to respond to the letter we received on November 13, 2008 signed by Lubicon Nation Councilors A. Ominayak, D. Gladue and L. Ominayak following our meeting on November 11, 2008. In light of what we perceived as a positive meeting leading to long-term collaboration with the Lubicon Nation, we are disappointed with certain aspects of the letter.

Since February 2007, TransCanada has attempted to gain a better understanding of the Lubicon Nation's interests and concerns related to the potential impacts (both positive and negative) of the North Central Corridor pipeline project. Over the past 18 months, TransCanada has done the following:

* Repeated visits by TransCanada representatives including vice-presidents, managers and numerous project team members with you and your councilors to address project scope and potential project related impacts;

* Provided information to you on safety, environment and construction matters related to the operation of the existing TransCanada facilities within the teardrop as well as the planning, construction and operation of the North Central Corridor pipeline project;

* In July of 2007, project team members participated in a field visit with one of your councilors and were shown areas of concern. TransCanada incorporated this site-specific information into the planning process and relocated a section of the pipeline in proximity to Haig Lake to avoid potential adverse impacts;

* Proposed to offer economic benefits to Lubicon people in relation to the construction of this project.

However, since TransCanada filed its application with the Alberta Utilities Commission ("AUC", formerly the Alberta Energy and Utilities Board) on November 20, 2007, and despite numerous opportunities, the Lubicon Nation has consistently refused to discuss project related matters unless TransCanada agreed to suspend the application process and, once the AUC permit was issued, suspend all construction in the teardrop until we obtained an unfettered non-objection from the Lubicon Nation.

As you requested, TransCanada agreed to suspend construction in the teardrop so that a meeting could occur on November 11, 2008. All construction activities were suspended on Friday November 7, 2008 except for the delivery of trailers already in transit and a garbage bin that was supposed to arrive Friday but was delayed until Saturday. Other than necessary ongoing site security, clearing and other construction activities within the teardrop were suspended and continue to be suspended as we write this letter on Saturday November 15, 2008.

TransCanada continues to believe that a long-term relationship with the Lubicon Nation, which includes economic opportunities for your community, would be beneficial and remains open to hear and address project specific matters related to the North Central Corridor pipeline project. TransCanada also continues to support the resolution of the Lubicon Nation issues with the provincial and the federal governments.

As a public utility, TransCanada has an obligation to build this facility in a timely manner to meet the public interest and is therefore unable to further suspend its activities in the teardrop or to relocate the camp out of the teardrop. TransCanada has received all necessary permits and approvals required to construct and operate the North Central Corridor pipeline project. We therefore notify you that we plan to re-commence suspended project activities on Monday, November 17, 2008.

Stephen Clark
Vice President, Commercial West
Canadian and N.E. U. S. Pipelines

Steve Schock
Vice President, Operations and Engineering
Project Management


EARLIER LETTER FROM TRANSCANADA CORPORATION
NOVEMBER 12, 2008

November 12, 2008

Chief Bernard Ominayak
Lubicon Lake Indian Nation
P.O. Box 673 1
Peace River, Alberta
T5S 1S5

Dear Chief Ominayak,

Thank you for meeting with us yesterday. We appreciate the time that you and your Councilors made available as well as the October 28, 2008 letter from Mr. Alphonse Ominayak.

The purpose of this letter is to respond to Mr. Ominayak's letter and to address matters that we discussed during yesterday's meeting.

As you are aware, on Friday November 7th, TransCanada suspended its pipeline construction activities within the Lubicon traditional territory. TransCanada took this step to address the request contained in Mr. Ominayak's letter so that we might meet to discuss Lubicon interests with the North Central Comdor Pipeline (NCC) project and the future relationship between TransCanada and the Lubicon Lake Indian Nation, We hope that we will be able to find mutually acceptable ways of addressing any outstanding Lubicon issues and that we can create a positive relationship.

During our meeting of November 11th, you and your councilors made it clear that the Lubicon would like a relationship with TransCanada that is based on mutual trust and respect. We can assure you that TransCanada shares this objective and also values a relationship that is based on these attributes.

To demonstrate TransCanada's recognition of Lubicon issues we would like to affirm that:

TransCanada acknowledges and recognizes that the Lubicon Lake Indian Nation has never signed a treaty with the Government of Canada ceding Lubicon rights to the Territory identified in the attached map.

TransCanada acknowledges and recognizes that the Lubicon Lake Indian Nation consequently has unsettled aboriginal land rights over part of the route for the NCC.

TransCanada acknowledges and recognizes that there is an on-going dispute between the Lubicon Lake Indian Nation and the Government of Alberta over who exercises rightful regulatory authority over the Territory identified in the attached map.

TransCanada acknowledges and recognizes that settlement of Lubicon land rights has been the subject of negotiation between the Lubicon Lake Indian Nation and both levels of Canadian government for many years and encourages the Governments of Canada and Alberta to return to the table and to expeditiously negotiate a settlement of Lubicon land rights with the Lubicon Lake Indian Nation resolving the dispute over rightful regulatory authority in the Territory identified in the attached map.

During the course of the November 11th meeting, you and your councilors noted a number of areas of potential concern with the NCC construction project including:

* Construction Camp

* Environment - including wildlife and vegetation

* Safety

* Security

* Integrity of the pipeline

* Economic development

We would like to discuss these and any other concerns in greater detail at your earliest convenience. We understand that Kevin Thomas will provide TransCanada with a summary of project-related issues shortly.

We request that we initially focus our discussions on concerns associated with the camp. As we mentioned during the meeting, we will be unable to meet our winter schedule if we relocate the camp, therefore we would like to find a way to address issues with the camp in its current location.

We are also committed to promptly working with the Lubicon on a written agreement that describes how both the Lubicon Lake Indian Nation and TransCanada will work together during the construction and operation of the pipeline. This agreement would include the description of a process that would be used to effectively resolve potential disputes that may arise in the future.

TransCanada proposes that our project team representatives, who can best address your questions, meet with you and your Councilors on Thursday November 13" or Friday November 14th Please advise if this is an acceptable date.

We look forward to further dialogue regarding outstanding issues that the Lubicon Lake Indian Nation has with the NCC project and in creating a positive, long-term relationship that creates benefits for both of us.

Yours truly,

Stephen Clark
Vice President, Commercial West
Canadian and N.E. U. S. Pipelines

Steve Schock
Vice President, Operations and Engineering
Project Management

C.C. Kevin Thomas


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