Transcript of Lubicon Settlement Commission of Review Public Hearing, June 02, 1992 Commission Members Present Jacques Johnson Jennifer Klimek Michael Asch Sandy Day Menno Wiebe Don Aitken John MacMillan Commission Members Absent Wilfred Barranoik Regena Crowchild Normand Boucher Theresa McBean Lubicon Representatives Present Chief Bernard Ominayak Community Members John Simon Auger and Walter Whitehead Elders Edward Laboucan, Josephine Laboucan, Bella Ominayak and George Ominayak Advisors Fred Lennarson and Bob Sachs Father Jacques Johnson: We are beginning our second day of the Lubicon Settlement Commission of Review hearings. I'd like to welcome all of you here again today. We're very grateful that you came in even greater numbers than yesterday, that the youth component has been added. We hope that it'll be a good day even though it's raining outside. I think it's good for the land and it's nice and warm inside and dry. I thought of sharing with you a very old prayer, it's probably around 1,400 years old and I think it's a beautiful prayer that sometimes we use at meetings. We stand before you God conscious of our sinfulness but aware that we gather in Your name. Come to us. Remain with us and enlighten our hearts. Give us light and strength to know You well. To make it our own and to live it in our lives. Guide us by Your wisdom. Support us by Your power, for You are God. You desire justice for all. Enable us to uphold the rights of others. Do not allow us to be misled by ignorance or corrupt us by fear or favor. Unite us to Yourself in the bond of love and keep us faithful to all that is true. As we gather in Your name may we temper justice with love so that all decisions may be pleasing to You and earn the reward promised to good and faithful servants. Amen. Jennifer Klimek: I'd like to welcome the Lubicon people and the audience here today. What I'd like to start out with is asking if the Lubicon people or any of the other representatives have anything to add to anything that was said yesterday that they want to clarify on or elaborate on or anything? Bernard Ominayak: I guess I'd like to start off by thanking you people for the welcome and also Father Johnson for the prayer that he said. As far as going back to yesterday and what was discussed, I don't think we at this point have anything further to add. But I guess basically we welcome any kind of question that may arise from yesterday from the Commission. I'm sure we'll be going back to some of the items that were discussed yesterday through the other areas that we'll be looking at this morning. Jennifer Klimek: Thank you. Jacques outlined sort of the agenda we had today and we would like to point out if there's anything you want to add in addition to that, by all means, let us know because we certainly want to hear your position. We had anticipated that we'd probably go to lunch, and unless there was anything that needed to be done after lunch, we'd probably adjourn then. We'll see how it goes. We'd like to start out with the compensation issue and John MacMillan would like to address that issue. John MacMillan: I would like the Commission to understand the quality of the people we're talking to here. Bernard you talked about welfare yesterday, but any time there was work to be done your people did it and did it well. There's a winter work force of over 4,000 people in the north in our area in exploration. After the winter was over they all went on unemployment in the spring. And Walter Whitehead, how many years were you a foreman for the government building secondary roads with heavy equipment and a workforce between 12 and 14 men? Would I be wrong in saying over 12 years? And John Auger, the last 4 years he had a workforce of 24-30 men running power saws, is that about right John? Was there not the best fire fighting unit of men in Alberta -- Alberta Forestry used to fly them in and out of Little Buffalo and Cadotte for different fires all over Alberta? Am I wrong in saying that? Is that right, Walter, that there was one of the finest fire units in Alberta that came out of that area? I could go on with many names of the people from the area that are not here today that are foremen and are working good jobs. And I know that these people could make this thing work. That's what I'm trying to get across to the Commission, that there's the brain power to make this proposal you're seeing on your farming, there are different people I know that can make it work. Bernard, I would hope the Commission will make you feel that there is a will to try and make this thing work for you. I hope you believe that there is a will here. Another thing that I want to mention is the cooperation between the Lubicon people and the oil companies that work in that area and the lumber companies. There is probably the best of cooperation in the last 2 or 3 years, when they came and laid their plans out in front of the people of the Lubicons. I'm sure that is probably the truth. Is it not, Bernard? So I think I could go on with all the different foremen that originated out of that country, but I'll leave that be now. And then there's different things that may come up. I think they want to get into the compensation, the $100 million that you people are asking for. The farmer in this area, in all of Alberta, every time a seismic line crosses their field they are compensated -- I can confirm this figure -- they are compensated between $8-1,000 a kilometre. Every time they use that line. There is not anything in your proposal asking for compensation on the travel of these lines. If you take your map and look, multiply the kilometres that are done in your area and multiply it by 8 to 10 times, up to 20 times that they've used it since 1950, there's quite a dollar value in there. But you've never even asked compensation on that. So I think Fred would be able to maybe do some talk on the compensation from the oil people, you know, that have extracted the oil from that area. I think maybe Fred you could take that on. Fred Lennarson: Sure John. I think maybe a little bit of history on this compensation question would be helpful. When the Lubicon people first looked at the question of compensation, what they were interested in accomplishing and what they remain interested in accomplishing is an investment fund which will generate interest revenues for their people in perpetuity. So that's their target. I make that point in relation to my comments yesterday about the integrated plan, every element of this thing has got an important role to play in the Lubicon plans to once again become economically, politically and socially self-sufficient. They looked at the question of compensation other places, and they looked at things like per capita distribution, which is just the handing out of money to individuals. And they rejected it. They rejected it explicitly. One Lubicon elder by the name of John Felix Laboucan said "If we're going to get into that kind of thing they might as well just line us up against the wall now and shoot us". So we're not talking in this fund about any distribution of money to individuals. We're talking about an interest generating fund, which as I said yesterday, if it generates interest at the same rate as funds like the Heritage Trust Fund and a similar fund in Alaska, after inflation it will be about 4 1/2% a year. The money then would be money that the Lubicons would have independent of government or any other sources that they could use to help set their young people up in their own businesses, to help finance community improvement projects that they might need, and so on. So it's a community fund that can only be spent with the agreement of the community and only the interest can be spent. Historically, when the Lubicons first looked at that issue, the lawyers had a great long list of damages. Damages for loss of way of life, damages for this, damages for that, I don't remember how many of them there were, but there must have been 15 or 20 of them. When E. Davie Fulton was appointed by then Federal Indian Affairs Minister David Crombie to look into this question, he said to the Lubicons: "These are very complicated and hard to quality and hard to quantify and I suggest therefore that we simplify it and instead of talking about all of these different legal categories, let's just talk about one thing. Let's talk about the value of programs, services and benefits which the Lubicon people should have been receiving going back to 1899 when the treaty was signed with people in the surrounding area but not the Lubicons." The Lubicons initially rejected that proposal. They said, "No, we're not a signatory to treaty and we don't make any claim to these kind of treaty benefits". And Mr. Fulton argued that these are not just treaty benefits, that we're talking about monies appropriated by the government of Canada for aboriginal people in Canada and that people in the Territories, who are not a signatory to treaty and people in British Columbia and the Maritimes who are not signatories to treaty have for years been receiving various kinds of program monies. So on that basis, the Lubicons agreed to look at this approach to compensation. It was Mr. Fulton's recommended approach in 1985. What we did was we talked to people in Ottawa with whom we work and we had them go to the archives of Canada and look up the amount of money that the government of Canada had appropriated every year going back to 1899. We looked up in the archives the number of aboriginal people the government was counting when they allocated that money. We divided one by the other and arrived at a per capita. We called the Bank of Canada and we asked about interest rates over the years. We called Stats Canada and we talked about inflation rates over the years. We then identified all the money the Lubicon people had in fact received from the government, going back primarily to about 1980-81 when they first started receiving money from the government for things like housing. We put this all in the computer and the number that came out with a population base of 500 Lubicons was $167 million. So this number was tabled with Mr. Fulton along with the back-up documentation which we can provide the Commission if anybody is interested in looking at all these endless pages of computer printouts. But that's where the numbers came from. Mr. Fulton looked at the thing and as an ex-Justice Minister and lawyer and ex-B.C. Supreme Court judge said, "I think this is a reasonable way to proceed and I understand it. But it's an awful lot of money. Can we, instead of talking about going back to 1899 can we talk about going back to 1939 for purposes of calculating this amount?" The Lubicon negotiating team argued the point and said they didn't see why the Lubicons should lose 40 years in compensation because of something the government didn't do, it wasn't the Lubicons' fault. And if this was the approach the Lubicons were going to use, they thought the calculations should go back to 1899. That was the discussion that was going on with Mr. Fulton in 1985, and it was a serious discussion with Mr. Fulton. He took this issue quite seriously and said so in his discussion paper and publicly. But unfortunately, Mr. Fulton, when he delivered this discussion paper including this and other items and his thoughts about these things, his mandate was terminated by the government. First the province refused to talk with him further and then the federal government replaced him with a negotiator whose mandate was clearly to try and push things back to before the time Mr. Fulton had been appointed. But that left one position on the table; namely, $167 million from the federal government for the value of lost programs, services and benefits calculated as I've described. In 1988, here in Edmonton, October 14th, the night before the Lubicons felt obligated to establish passport control points in their territory and try to defend themselves on the ground after a history which some of you I think know and others will be learning more about as a result of this exercise, there were Lubicon negotiators and provincial negotiators meeting here in Edmonton discussing this matter, trying to head off assertion of jurisdiction scheduled for the next day. Provincial negotiators -- John McCarthy -- asked the Lubicon negotiators what the Lubicons were seeking by way of compensation from the province as distinct from the federal government. Lubicon negotiators said frankly we didn't have numbers, what we want to do is sit down and look at the value of resources that had been extracted and negotiate something that everybody can live with. That was the way we were proposing to go. But McCarthy said that's not good enough. He said, "We've got to have a number or a formula right now. We want to deal with it here tonight." The Lubicons did have some information. The media has reported on a number of occasions that the province receives about 20% of the value of the resources in royalties. And secondly in 1981-82 the provincial government had filed an affidavit in the Alberta Court of Queen's Bench in which they were arguing that an injunction shouldn't be granted because so much was at stake, and in that affidavit they said that approximately $500 million a year was then being extracted in resources from the traditional Lubicon territory. So using those two numbers, and under pressure from John McCarthy to table a formula or number, the Lubicons tabled for discussion 10% of the province's 20%, frankly not knowing where that would end up. We had some guesses but we didn't have access to the value of the resources and the royalties. So now we had two positions. One tabled with the feds, the value of lost programs and services calculated as I've indicated and totalling $167 million. And a second position on compensation tabled with the provincial government at their behest which was 10% of the 20% of the royalties the Province has received on the resources. The following week while the blockades were up, Premier Getty made a public statement ...in which he said that the Lubicons had tabled a formula for compensation which would produce in excess of $100 million in compensation. Now of course the Premier got some of his facts wrong there. He said $100 million in taxpayers' money and that clearly isn't what we were talking about. Given the Premier's numbers, if the Lubicons would receive in excess of $100 million with a formula of 10% of the Province's 20%, that meant that the Province had received in excess of $1 billion in royalties from Lubicon resources and that the oil companies had extracted in excess of $5 billion. At any rate, that left two positions on the table: one with the feds, one with the province. During negotiations in December of 1988 and following the break-down in negotiations in January 1989, federal and provincial negotiators repeatedly asked the Lubicon people to table a bottom-line position on compensation. And following the break-down in negotiations they charged that the Lubicons were variously claiming $110 to 275 million and they didn't know what they were doing and so on. The $110 million would have been taking Fulton's proposal to go back to 1939. The $275 million would have been a combination of the two positions. At any rate, the Lubicons -- and I'd have to check my dates -- I think in December of 1989 and in response to repeated demands by the governments that the Lubicons table a bottom-line on compensation, the Lubicons tabled a figure of $100 million 1988 dollars from all sources, and their target as I indicated is they'd like to generate interest revenues after inflation of $4 1/2 million plus or minus for their people in perpetuity so that they have a source of independent revenues to meet the responsibilities of the society. When we put together the Lubicon draft settlement agreement, the way compensation was presented was in the form of $60 million from each level of government, which of course is $120 million instead of $100 million. The reason for that is that there's an approach in here which has the province providing their $60 million over a four-year period and the feds over a six- year period and when you factor in the impact of inflation on this thing it would come out to $100 million in 1988 dollars. The 1988 dollar thing is a benchmark for all the Lubicon proposals as we indicated yesterday because that's when the Lubicons actually got their quotes. That's when the tractor salesmen and everybody else gave them quotes on the things for the draft settlement agreement. Anyway, that's the history of the thing...the Lubicons have lost far more than they'll ever hope to recoup financially. Most of these things you can't even put a dollar number on. But what the Lubicons are seeking to do rather than even seek what would be fair and equitable compensation in normal terms, the kinds of terms one might expect in a legal action from somebody who had been paralysed as a result of an automobile accident and the like, is to establish an investment fund as part of this overall integrated scheme to...once again achieve social, economic and political self-sufficiency. I don't know if that answers John but that's the best kind of answer I can provide. John MacMillan: I believe that's about everything I had in mind. Is there any other member that would want to add to compensation while we're on it? Jennifer Klimek: Fred, I'd like to know, have you got any response from the government as to any compensation? What have they done with this since you've given them the offer of $100 million? Fred Lennarson: When the Lubicons went into negotiations with the federal government in December of 1988 there was a pre-agreed agenda, agreed in writing, with the Prime Minister's personal Chief of Staff Mr. Derek Burney. Compensation was one of the items on the list. A copy of this letter is provided in the materials you have on the federal government's offer. Because of the way that the negotiations proceeded that discussion on compensation got put off, did not occur on the dates that were agreed. On, I think it was December 23rd, it was a couple of days before Christmas at any rate, they asked Bernard to come to Ottawa. He met with then-federal Indian Affairs Minister Bill McKnight and then-Prime Minister Mulroney's Chief of Staff Derek Burney and at that time McKnight and Burney denied that there was any compensation owing, refused to discuss it. And said simply if the Lubicons thought they had any compensation owing they should go to court. They then proposed in their "take-it-or-leave-it" offer, their verbal presentation, that the "take-it-or-leave-it" offer was without prejudice to the Band's ability to go to the Canadian courts and seek compensation, that they wanted to settle before and have the Band go to court afterwards. But the "take-it-or-leave- it" offer, a copy of which you also have, explicitly prohibits doing just that. There's a very complete release clause in there and it even goes so far at one point as to say that no verbal understandings have any force or effect, which sadly is the kind of experience we've had with these people more than once. They do things like this all the time. There have been discussions ever since and this has been a recurring issue...with the Province and the Feds both. One of the proposals, for example, pertaining not only to this issue but to other issues which could not be resolved through negotiations -- Premier Getty proposed that a 3-person independent tribunal be established to resolve questions that couldn't be resolved through negotiations, compensation being one such issue. The Lubicons agreed to that. The proposal was that the Feds would appoint one person, Fulton would be the second, and the two of them would appoint a 3rd. And the Lubicons agreed to that. The Feds rejected it, refused to do it. What happened then was the Feds after a while made a counter-proposal that instead of a 3-person tribunal, one independent mutually agreed mediator be selected. The Lubicons agreed to that. The Feds put forward a number of names, four of which the Lubicons accepted, agreed to. The minute the Lubicons accepted a name put forward by the Feds, the Feds withdrew it and the person was no longer acceptable to the Feds. The Feds accepted none of the Lubicon candidates, although they included people like ex-Supreme Court Justices and heads of law schools and so on. So that went on for six weeks or so and then collapsed without any resolution. When negotiations between the Lubicons and province broke down, the province again proposed the 3-person tribunal, the Feds again rejected it and then again proposed a mutually agreed mediator. No agreement was possible on that. And most recently they have been talking about compensation with regard to only failure of the government to make the 25.4 square miles set aside in 1939 into a reserve under Treaty 8, which of course the Lubicons didn't sign. What that means at the bottom line is that the Lubicons would essentially give up the basis for compensation before the question of compensation went to arbitration. So that's what's on the table currently. Bob appeared to have something he wanted to add to that so I'll pass the mike to him. Bob Sachs: Compensation has been more or less defined presently in three areas: aboriginal rights and title; what is generally called treaty entitlement -- that is to say, had the Band signed the treaty in 1899 or in 1939-40, what would the Band have been entitled to for that period of time, which Fred has already spoken to you about; and lastly a breach of fiduciary duty in their failure attempt to come to a treaty arrangement with the Lubicon as early as 1899 or again later in 1939-40. The federal government's present position is that we can once again go to mediation with them separate and apart from Alberta, but only with respect to the treaty entitlement aspect of a compensation claim...(change tapes) ...their position is that the Lubicon people must essentially give up any claim to aboriginal rights or aboriginal title. I think it goes without saying that that sort of scheme of things is totally unacceptable. The Province -- their present position as we understand it is that there is no such thing as aboriginal rights and there is no such thing as aboriginal title, that their oh-so-generous offer in their words of giving the Lubicon their own land, giving them 95 square miles is sufficient in their view in all of the circumstances of the case. Needless to say, that's rather unacceptable. Essentially that's the position of the two governments. There were talks with respect to -- the Lubicon position as put forward to the federal government in an attempt to try to get some sort of an agreement with respect to the compensation issue, was to propose a combination mediation/arbitration procedure. That would be that -- without defining necessarily what is aboriginal title or what are aboriginal rights because the state of the law is such that they are presently undefined -- was that to take to first mediation, to attempt to come to a figure, a mediation procedure that would go over about a 3-month period of time. If there would be no agreement then it would go on to an arbitration situation. But essentially the proposal was that a mediator or arbitrator would not pass on the question of what is aboriginal title. Is it a land right, is it a use right, all those sorts of questions would not be answered. The question in the end result, the penultimate question for the mediator would be what is a fair and equitable sum of money to compensate the Lubicon for what has transpired over the last how many ever years, be it 1899 or 1939 to the present, given the scheme of what the Lubicons have endured and what they propose doing with their future. That scenario was placed before them approximately 3 1/2 weeks ago and their response to that so far has been much the same as it was in the past -- that is to say, if you want to mediate, give up aboriginal rights and we once again proposed this arbitration/mediation scheme and there has been no answer. That's where we stand now. Michael Asch: Just a question on the -- since you brought up the negotiation issue and their status right now -- we would of course like the opportunity to hear what the federal government has to say on these and other matters. I don't feel that necessarily we need to be privileged to be the vehicle by which this happens, so I guess it's more of a comment but maybe a question too. I have on occasion seen a situation, even at a very close moment to a deadline, in which negotiations on very, very delicate issues regarding self- government, regarding extinguishment, were carried on between the federal government and first nations. Not only in public -- but they were in public - - but not only in public, but carried on the radio on the native radio station throughout wherever it went in the NWT. I'm just wondering whether having a public negotiation in which the public might see what the various positions are and how they're developed and how the cases are put might be useful and certainly in other cases, there have been suggestions that maybe negotiations should be held in the communities affected. I'm just wondering whether you have proposed any of these things or whether in fact you think that they might be reasonable things to do and whether you've proposed any of them and whether you've had any response? Bernard Ominayak: In the past -- for example in 1988 when we first set up negotiations -- let's pretend negotiations took place -- at that point in time they put all kinds of conditions and restrictions on our people. One of the things they wanted was that there would be a black-out on the media and that negotiations would be behind closed doors. Once you agree to something like that then you're confined. So we're learning as we go through this process. That's something that we'd never agree to again, where you have a news black- out while they had their PR guys sit right at the table right through the whole negotiations, preparing and gearing up for failure. Our guys knew the PR guy was there and asked what he was doing there and there was no explanation. They ended up appointing him as some kind of assistant to the negotiators once it got out in the news. But from our side of the table, we'd certainly welcome any kind of opportunity that arose to have negotiations take place in the community and in public. We've got nothing to hide. But that's not to say that the other parties would be prepared to do that. At this point, I don't think they'd be prepared to do it. I would like to make a few comments on the other issue that John brought out in regards to compensation. It is true that in the last 2-3 years or so we've been able to work with some in the oil development in the areas of restoration, for example. Earlier on, in the early 80s, late 1979, there was a lot of problems with the oil development and there was a lot of friction between the oil people out in the field and our people where their traplines and everything were being destroyed and we were taking them to court to try and put a stop to the destruction before it got to the stage that it did. So there was a lot of friction. We weren't able to deal with those guys, but over time we've dealt with one and then from there started going on to the others. We've been able to develop some kind of a working relationship involving line clean-up and re-seeding the areas that they've wrecked -- those kinds of things. And that has turned out okay. We've been able to do the kinds of jobs we took on for them and most of them have been satisfied. Also in the area of fires, as John put it is it true that a lot of our guys get involved especially if there's a fire within our area. But again there is a lot of problems with, for example, forestry and fish and wildlife. Even though our guys try and do the work, the forestry, because of the political problems that exist, we have problems within that set-up. Our guys won't get picked up unless there's really an emergency situation and they're short of guys. These kinds of little piddly stuff we're always faced with. A lot of our traplines burnt up very early on because of one ranger that didn't allow our guys to use the equipment that was there on site. It was a very small fire at that point. But they wouldn't let our guys put it out. So the fire went on for days and weeks and burnt a lot of our trappers' equipment, traplines and so on. There was another fire that took place close to our community where an oil company was burning brush along the right-of-way. There again, our guys were prepared to put it out and they weren't allowed to put that one out either because the guy that was head of the operation there had to wait for the forest ranger and that fire took off too. So while on one hand we try and work with these guys to the best of our ability in certain areas, we don't believe in helping them to destroy our land and the environment. At the same time, we look at the areas where we may be of help to try and bring back some of it and those are the areas that we've concentrated on. I just wanted to point out those few things in that area. I think Mr. Aitken would be familiar with the kinds of negotiations that take place with governments...They pretend that they're negotiating while they're gearing up to finish the other side off. This is what we've been seeing all through this process. We would certainly welcome an opportunity to negotiate in public, for people to see what is taking place so we don't have to go back for six months or a year to try and correct all the misinformation that takes place during and after negotiations once they're broken down by governments. Fred Lennarson: I'd like to just make a quick add-on to that. We've in fact proposed open public negotiations to the government any number of times and they've rejected them every time. But not only have they done that, they have asked -- going into the negotiations in '88 for example to work on the agenda, federal negotiator Brian Malone asked for a personal one-on-one meeting with me to work on the agenda. I was representing Bernard and he was representing the Prime Minister's Chief of Staff Derek Burney. Malone brought his own public relations man to the thing. And they put you in the position where if you refuse to deal with them because they've broken their own meeting condition -- he insisted on that, it certainly wasn't my idea -- if you refuse to deal with them on that basis, then maybe you miss an opportunity to get this thing resolved. On the other hand, you're sitting there with him having broken the condition that he himself put forward and with a guy whose sole purpose is to try and figure out creative ways to describe this thing in a way which makes it appear that the government is being reasonable when in fact is isn't. Most recently -- and there have been lots of examples of this -- but most recently last November Bernard received a call from an Assistant to Member of Parliament Albert Cooper saying that Albert Cooper was trying to arrange for a meeting with federal Indian Affairs Minister Tom Siddon when Mr. Siddon was in Edmonton. Bernard was told that Siddon wanted the meeting private, confidential, one-on-one, behind closed doors, media not involved, media not informed. And after all of these experiences Bernard reluctantly agreed to that. The meeting was to take place at 1:30, early afternoon at any rate. And at the noon hour we received a call from reporters with the Edmonton Journal because Mr. Siddon had met with the Editorial Board of the Edmonton Journal that morning before he was to meet with Bernard. He had told them he was going to be meeting with Bernard. He had implied...that Bernard had requested the meeting. He had told them that the "take-it-or-leave-it" offer would not be changed except to be reduced to take into account the Woodland Cree. And he said a number of other things and the reporters were calling and asking for comments. So Bernard then goes to the meeting with Mr. Siddon and that's what introduced the latest round. And that's the history of this thing. It's very, very difficult to try and deal with people who don't honor any of their own conditions-- they insist upon these things and if you agree and honor those conditions they break them. And that's happened time after time, as I say most recently last November 1st at the meeting that kicked off this current round of supposed negotiations. Bob Sachs: In a classic sense, Michael, I think back to the late 19th century when these original treaties were first discussed and the commissioners would go out in the communities and the discussions with respect to treaties were held within the community. Obviously that's changed a good deal in the last 90-some odd years. I think it goes also without saying -- Bernard has already indicated it -- that he would welcome both the federal government and the provincial government to come before you to try and explain their position, if it's explainable. The most recent indication about their willingness to conduct in public scrutiny negotiations with the Lubicon people occurred last Friday when I met the Deputy Minister of Indian Affairs, Harry Swain, here in Edmonton. We are given to understand that there are further attempts now to muzzle Bernard in speaking, particularly to the media. And I think it goes without saying that his appearance here before you is causing them great consternation. Essentially on Friday the threat which I was to pass along to the Chief and the people was that if Bernard continued to indicate to the public what the Band's overall claim was about, his perception of how negotiations were going on, or any like talk to the media, and I would suggest parenthetically to this Commission, that they would in their words, "pull the plug" on this current round of negotiations. I just moments ago indicated to Bernard that I was to receive a phone call yesterday from Mr. Swain with respect to our response to this threat and in going through my messages last night and again this morning, I haven't received such a call. So it may well be that the plug has been pulled. Michael Asch: I certainly appreciate and take note of what you've said, Fred, and what you've said, Bob. I still would really like to hear what the federal government has to say on it. I'd like to -- it may seem kind of like a far- fetched question and if you feel Bob that it is, please just say so -- but I'm thinking back on the Royal Proclamation of 1763 and in particular I'm thinking about the way in which the Crown said discussions with respect to lands that were to be brought under -- I'm not exactly sure the verb to use -- but brought into conjunction, that's the safest word to use, with the Crown, were to be dealt with. As I recall it, there was something about the manner in which such negotiations should take place. So I'm asking you if you have any recollection about that? I don't want to put you on the spot. Bob Sachs: I think you're right and I'm just trying to recall the exact words that are used in that Royal Proclamation. Interestingly enough, the latest word with respect to the Royal Proclamation is that which is contained in the Gitskan case and essentially what the case stands for, at least the way I perceive it, is, "Golly gee, British Columbia wasn't a part of Canada in 1763 so essentially the Royal Proclamation doesn't apply to all of these ancestral peoples in British Columbia". That is the same sort of response that you often get if you ever mention the Royal Proclamation to the federal government. Or the provincial government for that matter. "Well, Alberta didn't become a province until the 1900s." Michael Asch: Let me just try to put it a slightly different way. I'd like to hear what the federal government would say about an interpretation that says that the Royal Proclamation says that whenever lands are to be exchanged, I don't care where we're talking about, there will be a public meeting where there will be representatives of the Crown and representatives of the First Nation and it shall all be done in public. Is that the basis, as far as I can see, for the entire treaty making process on the Prairies, including Alberta - - whether we're on the Prairies or not is another subject, that's about the Senate -- but it seems to me that that sets the entire foundation for the way in which treaties were supposed to be addressed. I would like to understand, since this is an adhesion to a treaty that we're talking about -- and Fred I know you're likely to make a comment about that, I want to hear what they have to say about it with due respect. I'd like to know what their point of view is as to why this is different. Fred Lennarson: I would too, Michael, I was just going to add that I have a little up-date on what Bob said, and that is, Joe Clark is writing letters to people, copies of which we have, in which he claims the Royal Proclamation has been superseded by the Confederation Act 1867 and subsequent legislation and all of the principles of the Royal Proclamation in this regard have been negated and so on. I can provide a copy of... Michael Asch: It's in the Constitution. Fred Lennarson: I know it's in the Constitution, I'm just giving you an up- dated bit of information and I can provide you with copies of the letter in which Joe Clark is making these statements. Bob Sachs: One additional important aspect of the Royal Proclamation aside from the fact that it should be conducted at an open and public meeting is that it is also conducted Nation-to-Nation. And that's a very important aspect of everything that we're talking about. Jacques Johnson: I would like to have a question to Chief Bernard. I'd like to come back to the nitty grittiness of numbers. In dealing with a request, as I read in your presentation, of $120 million -- that is $60 from the province and $60 from the feds -- I understand that it has been upped by $20 million probably because of the inflation rate. That's my understanding anyway. My question is in view of the fact that you are asking a certain amount for infrastructure and community development, agricultural lands and so on, and this latter totals about $18 million -- supposing that the governments would grant you the $120 million that you're asking in compensation and this would generate revenues of some $4.5-5 million a year in revenue, revenue that would be used as I understand it, to generate work, industry, it wouldn't be given to individuals -- could some of that money be applied for instance to the agricultural development or some of the other amenities that you're asking for in order to bring down somehow the total numbers that you are asking for? And I am asking this not to question the right that you have of asking for compensation but in view of the fact that the government is very hesitant, and I think that the public would see these numbers -- say $170 million or whatever -- as a very important sum of monies. Would the Chief tell us if he would be flexible in any way to compromise these numbers somewhat? Bernard Ominayak: Father Johnson, when we speak of compromising I don't think we can go any further. We've been compromising, compromising, and waiting, waiting for many, many years and trying to arrive at an agreement and also taking into consideration the livelihood of all peoples that have been in our area -- for example, the oil development. During the blockade when we blocked those roads and stopped the oil development from coming in, they were all crying that their kids were going hungry and that we were taking bread and butter off their table. They never once considered the fact that they were taking everything away from us. And we, from our side, had tried to look at that whereby we knew that it was the politics of this whole situation and greed that was prevailing, that the local people weren't necessarily the people making the decisions. But at the same time when the local people were kept away from their work for a couple of days they were all crying that they were going to starve at the very moment. The reason I bring that up is that when you speak of compromising, I don't think we've got any more ways to compromise. And to your initial question as far as utilizing the interest of any monies that may arise or we may receive through compensation, there's been a lot of discussions in that regard as to what may be possible and how we may use that money. The big thing is if we went into any of the agricultural ideas that we have most of anything that we get by way of an agreement would be on behalf of the community, while a lot of the individual people wouldn't be getting directly any monies. But if we were to get any kind of independent monies -- for example, the interest off of say $100 million, for example -- we would be able to hopefully assist somebody that wanted to get on his own and try to get involved, whether it be road construction or maybe raising cattle as a family. These kinds of ideas then we would be looking at. But again, that's just one set of the ideas that we have spoken of. I think Fred's pointed out that we aren't getting into a per capita distribution because we keep our eyes and ears open as to what happens in the other Indian First Nations right across Canada. We've seen where there've been per capita distributions and the latest one was -- to a degree -- when the Woodland got $1,000 to vote if they voted right -- that was quite a mess there for a week or so. We certainly don't need that. I don't know if I've satisfactorily answered your question. I would also like to comment on Mr. Asch's concern. It's not so much a question, but I really question whether if there's going to be any way that either government is going to be as willing to appear before you as the Lubicon people have been. I hope that they do but we get a lot of feedback from a lot of different people who are saying that it's NDP or it's a lot of this and that. But I think, while we speak and while the Lubicon people provided whatever information may be...(change tapes)...the federal government's proposals and so on. At least you've got that before you and also to some degree the provincial government's stance. I guess that's all now. Bob Sachs: I just want to put these sort of numbers in perspective if you look at what most recently has happened in this province with money. The province is perfectly prepared -- and Fred may correct me with respect to these number, but my recollection with respect to Daishowa -- is that the provincial government has loan guarantees to Daishowa in the $60 million range to prop up a business which hired, my understanding is, around 300 people from Peace River and additional people from other parts of the country who have been brought in to work there. We're talking about $167 million to restore a peoples' way of life and to provide for their future indefinitely for 500 people. So you look at those numbers and you have to wonder where the priorities are with this government. Of course, last week we see $566 million going down the toilet with NovaTel. So that better puts the sort of numbers that we're talking about in perspective. Jacques Johnson: When we had the AlPac hearings I remember some figures that were thrown in terms of the provincial government's investment that per job creation it amounted to almost half a million dollars. Those were figures that were mentioned there. Fred Lennarson: On this Daishowa thing, Bob's point I think is well taken although the numbers are higher. They're not loan guarantees. They are infrastructure grants. But there's another point...Daishowa not only received over $65 million in grants from the provincial government. They received a grant, as I recall $9.5 million, from the Feds. The federal grant was given by the Minister who was responsible for the Western Diversification Fund, Bill McKnight, who was the same time the Minister of Indian Affairs. So while he had constitutional responsibility as Minister of Indian Affairs specifically, explicitly for looking out for the interests and the lands of Indian people, he was granting money to construct a $500 million pulp mill with leases to cut down the trees in an area that completely blanketed the entire traditional Lubicon area which is in dispute and before him for negotiation. That's just to underscore the kind of problem that the Lubicon people face in working this thing through. Michael Asch: I appreciate greatly the fact that we have the information on your proposal and on the federal proposals, and I do think that we have enough information to really begin to see what the differences between the proposals. It would just be very helpful to us if we could hear what their points of view are. Jennifer Klimek: Chief Ominayak, I'd just like to make one response to one comment you made. We certainly heard the same things saying we're appointed by the NDP and that. I'd like to reconfirm that we are non-partisan and we certainly are not answerable to any political party and what we say here will be an independent decision by us. I just want to reaffirm that for you and the audience as well. I have one last question for Bob. Maybe he call help on this. I notice in some of the proposals there's some reference to litigation matters and I'm just wondering, are they still on-going and are they with respect to compensation and what's happening with those? Are they in abeyance or on- going? Bob Sachs: Essentially they're in limbo. There was a decision made by the Lubicon people in August of 1988 that the litigation that was at that time going on was consuming so much time and effort and resources of the people involved and the Lubicon people, and the sorts of treatment that the Lubicon people have received from the courts, a decision was made to withdraw from court action. Bernard can give you a better perspective on how the Lubicon people view the courts of this country. Bernard Ominayak: I'd just like to clarify what I said earlier. It's not me that's saying that this is heavily involved with the NDP. To me, we've tried to work with people who are prepared to work with us, regardless of whatever party or whoever they are involved with. Whether it be aboriginal people or non-aboriginal people. We've always stated that in the past. So to me whether it's the NDP or PC or Liberal -- if they're prepared to work with us then we don't consider those kinds of factors. I also know that there's other parties involved and it's not an NDP Commission per se. So with that, there's a lot of feedback on that from a lot of different people. The other thing that maybe was not clarified was that I'm not saying that I hope that they don't appear. What I'm saying is I certainly hope that they do so you guys get first-hand experience as to what kind of bull shit that we people go through. So I think for you people to clearly see that, you need to deal with those kind of guys. Thank you. I'll get Lennarson maybe just to speak a bit about the court situation. Fred Lennarson: I'd like to also point out that I don't take this charge of partisanship all that seriously, because the fact of the matter is when the United Nations, representatives of 18 different countries meeting in the context of the U.N. Human Rights Committee, find Canada in violation of the International Covenant of Civil and Political Rights the government's position publicly, the Federal Minister of Indian Affairs says publicly that the Lubicon complaint was found completely without substance. When they appoint prominent Progressive Conservative Statesman E. Davie Fulton to look into this and he concludes that Lubicon rights have been abused, they fire him and say they don't want him around because he's biased in favor of the Lubicons. So it's not only this Commission they look for reasons to dismiss. It's anybody that takes a fair and objective look at this. When the World Council of Churches looked at this question and looked at over 10,000 pages of court documentation and sent a delegation of prominent church leaders up to Little Buffalo in 1984 and concluded that what was going on up there could have genocidal consequences, they were dismissed. So there will always be a reason for these people to dismiss the truth which has been clearly seen by the United Nations, by the World Council of Churches, by E. Davie Fulton, by wave after wave of reporters who get into this thing not knowing about it and learn about it. And in every case, the government takes the position that there's some reason that all of this is somehow not right. On the question of the courts, there's a history here which I think needs to be presented to the Commission. It's a history which I personally consider shameful and it's to some extent the reason why I'm sitting here before you today. You know that the Lubicons didn't sign treaty in 1899 and that they had their first meeting with the government in 1939 and have been trying to resolve this outstanding jurisdictional dispute ever since. When the government of Peter Lougheed came to power, as part of his development plans he started building a road into this territory. The Lubicons and six other isolated aboriginal societies back in this hinterland area, collectively called the isolated communities, attempted to initiate discussions with the federal government to try and resolve this outstanding jurisdictional dispute. They knew that with that road outsiders would be coming into their area and the area would be opened up for development and they wanted to get their rights defined. They wanted to get this matter resolved. Both levels of government refused to talk to them and said they were merely squatters on provincial Crown land with no rights. They said this in court. They said that the Lubicon people don't even have rights to the homes, that their homes are merely "unauthorized improvements to Crown land", and they've literally threatened to bulldoze these homes out from under the Lubicon people if the Lubicon people didn't accept provincial government jurisdiction. In the middle 70s, on legal advice and with the road being built, the Lubicons and the other isolated communities sought the advice of then Indian Association President Harold Cardinal. He involved legal counsel who advised the Lubicons and these other communities to file a caveat under provincial law putting the parties on notice that title to the land was contested. Such a caveat had no force in law but it is just simply notice that title to the land is contested. It was notice to potential developers to be cautious, be aware. Of course the strategy was to try and bring this thing to a resolution. The government refused to accept and file the caveat as provincial law at the time provided. The Indians therefore went to court. They asked the courts to order the government to obey provincial law. The provincial government asked for a postponement of the hearing of this case until a similar case in the Territories called the Paulette case was decided. The Paulette case went against the aboriginal people in the Territories but the judgement read, "Had the law been written in the Territories as it was in Alberta and Saskatchewan the court would have found for the Indians and ordered the government to file the caveat". The Alberta Provincial Government, under Peter Lougheed, went back to court, asked for another postponement during which time they rewrote the law and made the re-written law retroactive to before the time the Indians sought to file the caveat. The case was then dismissed as no longer having any basis in law. That was the first round before the Canadian courts. The road came in in 1978-79. Development companies came in by the dozens. Between '79-'82 over 400 oil wells were drilled within a 15 mile radius of the community. Traplines were bulldozed. Edward here would set his traps, spend all week doing it and they'd be bulldozed. He'd go out and mark his traps with these red plastic markers and they'd be bulldozed and the sticks with the red plastic on them marking his traps would be used as road markers for the new roads. We would find bulldozers who'd bulldoze a trapline and then back up several miles and then go bulldoze another trapline. We had a provincial probation officer operating out of Peace River call us in distress and tell us that parolees under his charge had been instructed to bulldoze Lubicon traplines. He described it as almost a competition. We sought to get an affidavit signed by this man but he in the meantime he had told his boss what he thought about it and he was transferred out of there and nothing came of it. But this has all been part of the history. In 1980 the Lubicons went to the federal court -- because under the Canadian constitution aboriginal land rights are a matter of exclusive federal government jurisdiction -- and asked the court to affirm that the Lubicons own this land, that they retain aboriginal title to this land. They'd never ceded it in any legally or historically way. Or to provide them with substantial compensation if their land rights had somehow been taken from them. The governments and the oil companies argued procedurally, as they typically do. They don't argue the substance of the matter, they argue procedurally because then they can tie you up in court forever and they've got lawyers on payroll that can do this and they know damn well that these little aboriginal societies can't survive for ten years in these big complicated, expensive legal actions. They argued that the Lubicons were before the wrong court. The federal court agreed, at least as with regard to the province and the private oil companies. They said that the Lubicons could sue the federal government and PetroCanada in the federal court but they had to sue the province and the oil companies in the provincial court. So the Lubicons pursued parallel legal actions: one in the provincial court against the province and the private oil companies; and one in the federal court against the federal government and Petro Canada. But lawyers for all sides said that this thing would take at least 10 years to adjudicate and millions of dollars which the Lubicon people didn't have. And in the meantime, which we indicated yesterday, moose kill had gone from 219 in 1979 to 110 in '81 to 37 in '82, to 19 in '83. In 1981 when they first started administering welfare in their community fewer then 10% were on welfare, by 1983 that number had skyrocketed to more than 90%. Income from trapping, with an average of a little more than $5,000 per trapper when this started in '79, by 1983 had dropped to under $400, and that was for master trappers, for people like Edward Laboucan sitting behind me. It was thus clear that the Lubicons would not survive 10 years before the courts on this thing. So they filed an interlocutory injunction before the provincial court. An interlocutory injunction is an emergency action. It asks the court to hear this thing right away because there are interests at stake which are in jeopardy and which will not survive the normal legal process. The oil companies and the province again argued procedurally. They argued first that the court shouldn't even hear the case because, they said, the Crown is immune from injunctive relief. You couldn't sue them. They argued secondly that the oil companies are merely agents of the Crown in extraction of the resources and therefore they're covered by Crown immunity and you can't sue them either. They said that the court shouldn't even hear the case because the damages weren't irreparable, the trees would grow back. They said even if the damages were irreparable the court shouldn't hear the case because the damages could be compensated in money. Now on the Lubicon side of the claim, of course, we're talking about still born babies and suicides and a lot of things which from the Lubicon point of view aren't reparable by any amount of money. They said even if the damages were irreparable and couldn't be compensated in money the court still shouldn't hear the case because of a legal principle called the "balance of convenience", which is basically that the rest of Canadian society has such a great stake in development of these lands that Lubicon land rights shouldn't be allowed to interfere. And finally they argued that the court shouldn't even hear the case because if the Lubicons are ever unable to prove they own the land the government and the oil companies would have lost so much money in the interim that the Lubicons would never be able to pay them back for the money that they lost. The judge hearing this case pondered that question for a full three months, from the fall through the winter development season. In the north, as some of you know, development activity in newer areas occurs in winter months when the ground is frozen and you can get into this country. So while the judge thought about it the oil companies proceeded to do a fair amount of what the Lubicons were seeking to enjoin. At the end of this time he decided that the case could go ahead but he put off hearing it until the next fall. All the evidence was by way of sworn affidavits. The Lubicons submitted affidavits of wildlife biologists, anthropologists, environmentalists and their own elders on what was happening to their traditional way of life and their lands. The provincial government and the oil companies submitted no evidence at all on what was happening to the traditional way of life. They simply argued that it was the 20th century and any traditional way of life which may have existed was long since gone; therefore there was nothing left to protect -- where on the other hand the province and the oil companies would lose a lot of money if an injunction were granted. The provincial judge hearing this case agreed and declined to grant the injunction. His name's Gregory Forsyth. Before he was a provincial judge he was the head lawyer for the Nova Corporation. The Nova Corporation's a large petrochemical conglomerate in Alberta, among other things at that point owning controlling shares in Husky Oil which was a major player in the Lubicon territory. This case was appealed to the Alberta Court of Appeal where the then Chief Justice of the Alberta Court of Appeal, a man named McGillivrary, put himself at the end of a three man panel to hear this case. Before it came to court he died, but he put himself at the end of a three man panel to hear this case. Before he was a provincial court judge he was the family lawyer for Peter Lougheed. He was the guy that gave Peter Lougheed his first job in the Calgary law firm of McGillivray, Fennerty and Robertson. Jack Robertson is the head oil company lawyer on the case. The Alberta Court of Appeal declined to hear the case finding that the Lubicons didn't need an injunction because they said if the Lubicons can ever prove that they own the land, they would be compensated in such a great amount that they would be able to, in the worlds of the judgement, "restore the wilderness with money damages". "Restore the wilderness with money damages" -- we're talking about still born babies, tuberculosis epidemics, suicides and so on. This case was then appealed to the Supreme Court of Canada where the presiding judge, a man named Estey declined to hear the case, provided no explanation why. There was then a subsequent decision involving a similar fact situation at Meares Island in B.C. where an injunction was in fact granted so it looked like we had two conflicting decisions at the provincial level. The Lubicon injunction application was therefore appealed a second time and the Supreme Court declined to hear it a second time. Estey, before he was a Supreme Court judge, was also an oil company lawyer. He has since resigned from the bench and been appointed to the Board of the Nova Corporation. Now in the meantime the two other actions -- the main aboriginal actions were proceeding. In 1986 there was a case out of Newfoundland called the Joe case which found basically that you can't sue the federal government in federal court over aboriginal land rights within provincial boundaries because it involves provincial land rights. That rendered moot the Lubicons' federal action, the action in the federal court against the federal government and PetroCanada. So the Lubicons moved to add the federal government and PetroCanada to the Provincial action. Those were the only two options -- you either go to the federal court or the provincial court. The federal government argued that the provincial court doesn't have jurisdiction over them with regard to these matters for a number of reasons. But at any rate that was basically their argument. And the judge agreed. His name is Moore. He's the guy that appointed Forsyth to hear the first case and not too much later, when the Lubicons had up their blockades in desperation trying to protect what little they had left, Moore granted the government an expartite injunction to take down the barricades. It took him about 2 minutes behind closed doors. They didn't even let the Lubicons know they were doing it. At any rate, when the Lubicons asserted jurisdiction in October of '88 as a result of this history, and as a result of these decisions, there was not a single court in Canada that was even prepared to hear a legal action on the part of the Lubicon people against the federal government of Canada even though under the Canadian constitution aboriginal lands and aboriginal people are the exclusive jurisdiction of the federal government. I'll add only -- and there's a lot more than can be said about this -- but I'll add only that the Lubicons in 1984, facing this kind of experience with Canadian politicians and Canadian courts both, appealed to the U.N. Human Rights Committee. Canada's first response was to argue that the Human Rights Committee should not hear this case because the Lubicons had not exhausted all domestic recourse, that they first had to go through the courts in Canada. And they argued other things which people need to know. These decisions should be read for people to know how the government of Canada is representing their position internationally. The Lubicons said they were being denied self-determination as a people in their complaint. Canada responded that the Lubicons are not a people, they are "merely members of a thinly scattered minority group living in the midst of a more numerous population grouping". That's the wording of the Canadian government submission to the international community on aboriginal people in Canada. At any rate, after hearing arguments from both sides for a period of 3 years, the representatives of 18 separate independent countries serving on the UN Human Rights Committee concluded that the Lubicons could not achieve effective legal or political recourse in Canada. That decision's a part of the record. It's not only the Lubicon people who have concluded that they were not receiving any consideration by the Canadian courts, but the international community as well. Bernard Ominayak: Fred, could you let the Commission know about the federal government's response to that particular U.N. decision. Jennifer Klimek: Maybe we should take a short break and address that after, if it's okay. We'll come back at about quarter after 11. Sandy Day: Our goal as a Commission is to try and get negotiations with the government going again. I think it's important to try to brainstorm ways of making this happen. You certainly seem to be the experts on what hasn't worked, but I think it's also important to try to have a vision of how to make it work. One thought on the compensation settlement -- if the government looked at it as an investment in future savings, by settling now there could be significant savings for the government in money ow being spent to help support your people through welfare. My question is, has the program cost of this been done? Bernard Ominayak: I don't know if I clearly understand your question, but it seems to be that you're suggesting that -- how much would it be saving the government by way of welfare if they were to settle with us? Sandy Day: That's correct. Bernard Ominayak: No, we haven't really looked at it from that angle. I certainly can't speak for the government as to what they may be thinking. But I think as we present the problems as we see them and through our experience in trying to deal with governments, we can only present you with the facts through our experience at this point. I certainly hope that the governments will be able to do likewise, arguing their stance as to why they aren't prepared to come to a fair and just settlement with our people. As we look back a lot of times through the process that we've gone through and wonder why, like many people, as to why this is going on and has gone on for a long time, we certainly don't have the answer for that. But it seems like the government is more interested in the valuable resources that our lands contain, and that's where their focus has been. At the same time they don't like to see Native people stand up and fight back. That's one of the things that they would like to defeat us rather than settle with us, because then they figure they're losing face. I don't think, as a person I don't think that's a viable reason for not settling. But I guess people are different. In so far as your question, we really haven't looked at that angle as to what kind of monies is actually spent by way of welfare and if there would be any kind of saving on the part of the government. But when we're talking welfare, we're certainly talking about a taxpayer's dollar. While on the other hand, we're talking about resources and monies that are rightfully ours and we're asking for a very small percentage of what monies have been extracted by way of our resources, to come back to the people to try and build a different lifestyle altogether from what we're accustomed to. To a large degree, you know, we hear of inherent rights and so on through a lot of these constitutional discussions that have taken place between the Native peoples and the federal government and also to a degree with the Premiers of Canada. I think in a lot of these instances -- for example with the Lubicon people, I think we were giving up a certain way of life. There must be a reason why the Creator put us in the area that we're in. So I guess from that perspective the onus is on us to try and protect the earth, the environment and the wildlife as much as possible. There are different religions and we certainly try and retain ours. I think there was a question yesterday in so far as the spiritual connection. It's certainly there. There's a lot of fundamentalists groups around that believe all you have to do is get on your knees and the Creator will look after everything. We certainly don't have that attitude. I guess we've learned through experience from that aspect of it too that the onus is on us to try and protect as much as possible. But when you have people who are more interested in our resources, who are greedy and want to take everything and leave nothing behind, this is the kind of problem that we face, that the Lubicon people face, where everything is destroyed and there's nothing left. I don't think the world in general can any longer just continue destroying everything and hope to have something left. I guess that's a little out of context, but to try and bring everything into perspective, it certainly should be a concern for all peoples, not only aboriginal peoples, with the kind of destruction that's taking place. We certainly see the kinds of actions and destruction that takes place when you have greed prevail, whether it be people or the land or the environment or the wildlife -- that's exactly what our people have faced for the last 12-15 years. (Continued in next message)