Transcript of Lubicon Settlement Commission of Review Public Hearing, June 29, 1992 Commission Members Present Jacques Johnson Jennifer Klimek Michael Asch Sandy Day Menno Wiebe Don Aitken Commission Members Absent Wilfred Barranoik Theresa McBean John MacMillan Regena Crowchild Colleen McCrory Jennifer Klimek: ...provincial offers. An invitation had been extended to both Mr. Siddon and Mr. Fowler and their departments to appear. That has been declined, so our objective today is to look at their written materials and to make some observations and list our concerns or questions we may have about them. You (the public) are more than welcome to attend for this part. We're going to just have an open discussion among the Commissioners which you are more than welcome to observe. Now I'd like to open it up to the Commissioners. I guess maybe the best way is to just sort of go around the table a couple of times so everybody gets to address their concerns until we think we've addressed everything that needs to be done. So maybe I'll start at that end. Do you want to start Don, or do you want to start Michael? Sandy? Sandy's got a few. Sandy Day: Thank you. I guess my first question would be I'd like to know what happened in 1939 that a reserve was not established for the Lubicon people. It seems to me from my reading that everything was in place to proceed and then it didn't happen. I would like to know if there's any background or if anyone has any information that can clarify this point for me. Jacques Johnson: I have some concerns regarding what is agreed between the Lubicons and the federal and provincial governments and what is still a stumbling block from the point of view of the governments in regards to the final settlement. I read a Communique dated January 24, 1989, shortly after the Lubicon and government break-down of negotiations. This Communique is signed Ken Colby, Federal Spokesperson in which he claims the following: "Negotiations towards settlement of the land claim by the Lubicon Lake Indian Band have broken off, after the band rejected Canada's offer of $45 million in addition to the 95 square mile reserve the Band wanted. "The Band is demanding additional compensation of between $114 and $275 million." This seems to contradict what the Lubicons have told us three weeks ago when they stated that they wanted a total of $170 million, not only compensation but infrastructure and so on. The Federal Communique continues: "During 8 weeks of negotiations, concensus was reached among government and band negotiators on the key issues of membership, reserve size, community construction and delivery of programs and services. However, the negotiators were unable to reach agreement on the issue of cash compensation." So I understand from this that according to the federal government the only stumbling block would be the issue of cash compensation. And this is really in conflict with what the Lubicons have told us...Just as an example, if we look at the new medical centre and what the federal government is offering -- I refer back to the text, page 22, of the 1989 (Government) offer -- it's tab #1 in your red book -- it says here under clause #2.10 entitled "Community Health Unit": "It is recommended that the Band discuss funding with NH&W" -- I believe that is National Health and Welfare -- "Preliminary information indicates that National Health and Welfare may fund $350,000." "May fund" -- it seems that there are many government programs that could be (approached) by the Lubicon people...but the government says "is being funded". There are statements that explicitly state, for instance, that there's a sum of $4 million available for different Lubicon development programs. But when we look in the fine print, different programs to which the Lubicons may apply, and if they qualify, the government "may" fund it. It seems to me that this is far from being a very solid commitment on the part of the federal government. It's not remotely close to being cold cash or to being a secure commitment. They could be just as easily turned down. So I have some questions to the federal government on how they would explain to us how they view this variety of different programs as being part of a final settlement, when nothing is remotely close to being final. I have other questions, but I'll pass. Jennifer Klimek: Are there any comments on any of the questions that Jacques or Sandy had just before we move on? I think we should address their concerns if we can. Michael Asch: I know a little bit about what happened in 1939. Most of it comes from reading secondary literature and the rest of it comes from talking to individuals. I'm not certain of that I speak with authority, that this is the answer, but the ballpark within which that answer lies has to do with dropping the priority for actually doing a survey of the lands for the Lubicon in the period after 1939 due to, at least in some people's opinions, the pressing urgency of the war effort, so that it was not in fact surveyed. The reserve was not in fact surveyed. Then after the war, according to what I've read, the federal government asked the provincial government -- I'm sorry, the provincial government asked the federal government about doing the survey and the federal government did not do it and ultimately the provincial government went ahead and did development on those lands. Sandy Day: Thank you. I have just a couple of comments just to add to what Jacques has said. The key item for me is that Native people tend to think in a circle. I had such a strong feeling after the last set of hearings that all the items they're asking for become a part of the whole. And if you take something out, such as the vocational school, it leaves a gaping hole in the whole circle of what they want. The gaping hole in that case is that the young people cannot stay on the reserve. They cannot train there to fix their own equipment, to build (roof) trusses for the homes that they want to build. By not having a place for their elderly on their reserve, if that is not included in the settlement, that takes that vital element of their society out from them. So that the elderly people are not included or are not a part of, are not there to teach the young people. I think this is such a key issue in the whole process. It's as if there are two different languages being spoken. I would really like the federal people to try to listen with their hearts to this kind of language that goes in a circle and that in order to do that, I think they have to look closely at the proposal that is put before them from the Lubicon people, and to look at it and see that it incorporates their whole sense of community as a Native people. I would like to include that to ask for a response from the federal government regarding that. Jennifer Klimek: Are there any other comments on what either Sandy's or Jacques' questions and comments? One concern I would like to address to the federal government -- or maybe someone here can address it -- is the fact of, just going back to basics, having listened to the Lubicons, my understanding is they don't view themselves as being part of Treaty 8, that they're looking for a comprehensive settlement. I'd like to know whether government sees that. From what I've read and in discussions with people they view these people as being part of Treaty 8, they should get no more or no less, they should get what was there. I'd like to find out how they're approaching this on, I guess, a philosophical (basis) or a basis for that -- what they're coming to the table with. If they're seeing it as Treaty 8, then are they ignoring everything else or are they willing to look at that or how do they view it. I don't know if anyone here has any comment on that but it's certainly a question for me. Michael Asch: I'll address a little bit of that when I get to my questions. Menno Wiebe: A preliminary response to the question -- I thought we heard the Lubicon representatives advocate for a comprehensive settlement which would mean outside and beyond Treaty 8, but then there are some ingredients in the negotiations which indicate some willingness to stay within the scope of Treaty 8. The Grimshaw Agreement is really based on the 128 acres per person. So the Lubicon Cree also have to live with the other friends and relatives and whole other bands in the surrounding area. So as not to alienate themselves from them or to do one better, they have stayed within that frame of land area. To me it looks like considerable discipline has been exercised here. So it doesn't come through as clean-cut to me so far. The comprehensive claim commitment is manifest in their insistence that their aboriginal rights may not be extinguished within the negotiations, so we may have some homework to do on that. I would like to identify some of my own questions based on the federal proposals. One might be a take-off on what Michael Asch tabled last time when he asked the Chief whether a partial settlement might be possible and I think he referred particularly to the aboriginal rights packet. Having sat in on some of the Royal Commission gatherings in Winnipeg, I heard them reiterate several times that the longevity of the Royal Commission -- that is, their three year sitting -- should not stop any negotiations from proceedings. In other words, nobody should sit and wait until they make a ruling on aboriginal rights. Having said that formally, one realizes that's not necessarily how it's going to be. If the federal government is now going to hold the whole show up saying it can't make any judgement on aboriginal rights because it's in process by the Royal Commission, then we could see a long, dry period of non-happenings here. I think we should identify that as a concern. Bernard seemed to say if the aboriginal rights questions could be put on the shelf without prejudice -- that's how my notes have it from the last meeting - - then they would be willing to consider that. But the information we have, I think via Fred Lennarson, is that both the feds and the province are insistent that the negotiations be final on all points. So this Commission may want to come in between those two and come up with an alternative. We may have to come somewhere between the two positions. I would like to identify that as one point. I hope I'm not misrepresenting you Michael, but I did quite a bit of thinking about your question last time. I would like to identify a second one. On the compensation there, which Jacques has already addressed, not so much to the exact amounts but on the basis of it, so far I have heard and read 4 criteria for developing a sum or sums of the compensation. And they aren't all consistent. Some are on the verge of cancelling each other out, or at least something has to be done. The first one was compensation on the basis of damages. We heard quite a bit about that -- the loss of hunting economy would be an example. The second thing we heard was the loss of resources -- that 24-hour a day pumping of oil from Lubicon lands is a veritable loss of resources, so some compensation there. The third item I heard was that there should be compensation for services not rendered because the reserve status wasn't granted in 1939. And here comes the somewhat, for me, conflicting one -- the fourth point would be services granted by DIAND for status Indians elsewhere -- that is, the non- treaty people, or the ones that don't have reserves, e.g., the Northwest Territories or Labrador or B.C.. There have been many funds expended on the strength of they were status Indian people. So these four have to me, as I have heard them, are identified as the basis for compensation. There may be more. What that means for us, I'm not sure. I'd like to identify another point coming out of the federal proposal and that is that the preoccupation with providing monies for secondary or tertiary expenditures, such as a band hall or roads and services, can very easily mask the deeper economy, what I would call the primary economy. I would like to suggest while we're here that we give consideration to primary economic development rather than secondary or tertiary. So while a laundromats and health units and recreation halls and swimming pools are needed for a community life, that community has to be there for a basic economic reason. Hunting and gathering and fishing was that reason for being there. We should look at the other alternative, basic economic things, give priority to the primary economic, over secondary or tertiary. Maybe that's enough for now. I do want to identify one other one, and that is the negotiation process. I'm not sure whether I'm within the mandate of this Commission now, but it seems to me that we should give attention to the granting of leases, to giving permission for further harvesting of resources, while the negotiations are taking place. If somewhere in our margins towards the end we could have a recommendation to the effect (of freezing further development activity) -- it seems extremely...undercutting and highly prejudicial to keep on granting leases for harvesting of forests or fossil fuels while the negotiations proceed...And that is enough now. Don Aitken: I guess there's a couple of points that I'd like to get clarified. One is the Section 17 of the Indian Act which recognizes Indian Bands and can re-organize them as the federal government wishes. When they have a problem, they find it a way to divide and conquer. In having recognized the Woodland Cree, and talking now about the possibility of others, has the federal government ever officially recognized the Lubicon Lake Band as a Band? If that's the case, do they have a right to peel them off. And if they haven't recognized them as a Band, perhaps that should be a priority, that we should be sure that they are recognized as a legitimate entity to work with. I guess the next step, I think, is an acknowledgement by both the federal and provincial governments officially that there has been an injustice done and that there will be a resolve to it. It seems that while they're talking about resolve, they're not necessarily, and they often want to deny there's a problem. I think that perhaps there has to be those two stages. One, recognize who you're talking to, recognize what you're talking about. And I guess that's recognition of the injustices done, the loss of the economics and the way of life and in particular the exploitation of their land, the fact there was much profit made off it at the expense of these people not to mention the erosion of their livelihood due to the geographical and structural changes. I guess another question I'd like to ask is -- are there reasons for the government not achieving a result? It seems that this has been going on back to 1899. Do you they have a hidden agenda? If they do, then perhaps that needs to be talked about. Because it just seems that negotiations don't normally go on forever and yet that seems to be the case here. So I think those questions have to be asked of the government. Is there a reason why they haven't gotten it resolved? Perhaps what we should be doing is encouraging a penalty for not meeting a deadline, not just as we're talking in 1988 dollars, constant dollars, but we should be talking about that there is interest accruing, if necessary an extraordinary level -- in other words there should be some incentive to resolve this thing. Right now there is no incentive, or there's doesn't appear to be an incentive on behalf of one half or two thirds of the negotiating (parties). If you are going to find your resolve to a problem, the problem has to be for both sides. And right now the problem is only on one side, the side of the Lubicons, because neither the federal nor the provincial government...necessarily view this as a problem. It's something that they do, but if it's never resolved it's not really going to bother them. It won't bother them particularly. In any set of negotiations, there's got to be two or three winners, and not just one loser, which is the way it is. So I think somehow or another we've got to get negotiations on the basis that there can be a win-win, or lose-lose -- both sides lose instead of one. So I think that's an important thing to do. As was mentioned by the Lubicons when we heard them, Bernard talked about how he felt there should be open negotiations, basically as the treaties were formed in the first place, where there were open discussions with the people who were involved and that they should in fact be not done behind closed doors, because doing it behind closed doors keeps it out of the public eye and of course unless it's brought up again, people may in fact think that it's resolved. So I think that it's important for both sides that they -- certainly for the voters in Canada and Alberta who have the government representing them, or supposedly representing them, that they should be accountable to the people. By doing it behind closed doors, this is not accountability. I think we're witnessing that now when governments are not willing to come forward and explain their positions. Also I'd like to reiterate the questions that were asked by Menno and by Michael about is there some movement, are there some things that can be done immediately? These people are not -- this is not a business deal between two companies, about one buying out the other and if it doesn't business goes on as usual. There isn't business going on as usual. It's deteriorating and it's at the expense of an awful lot of human beings, an awful lot of the very future of those people. So I think that there has to be some urgency brought to the issues and there has to be some immediate action taken, and some of those basics I think should be done without prejudice initially. If it can be dealt with, as I understood it in the presentation of the Lubicons, some of the really basic needs were met immediately, then I think people could expect the fact that maybe the governments were sincere about this. But the fact is that "take-it-or-leave-it" is not a reasonable way to deal with any peoples, let alone people who have been denied for 100 years. So those are the points that I'd like to make. I think perhaps some of those questions could be answered or at least put to both the federal and provincial governments in our later attempts to communicate with them...(change tapes)... Michael Asch: I find myself swinging between two poles when thinking about Lubicon, which are probably as extreme as they can be. The first one is yes this can be settled and we can do something to make a difference. The other is no, this will not be settled no matter what we do. So we talk about two very, very polarized points of view about ourselves and our role here. I do that because I'm wondering about a few things. Rather than saying things in statement form -- I'd like to address some questions as I did to Chief Bernard when he was here. Try to get some answers from the federal and provincial side. On the provincial side, I'm not really as concerned about policy issues as I am about responsibility issues, because I really think that the fundamental policy question is in the hands of the federal government, although as we are speaking right now, the Ministers are meeting with the Prime Minister presumably over lunch and even though they promised they wouldn't be discussing aboriginal issues, I'm not so sure that that won't happen. I'm pretty sure I know what position the province of Alberta will take on the subject. So what I'd like to ask of the province is a question about how much has been extracted from these lands. The only information that we have comes from an extrapolation that came from a court document that the province brought forward, and that's where we get this billions of dollars from, it was an extrapolation I saw in the Goddard book. And I'd like to have some firmer foundation for the amount that's been extracted. And the second thing I'd like to ask the province -- what is it now, about 15 years later anyway -- whether the province still feels strongly that the retroactive legislation which they passed, which was the legal lever that the Isolated Communities and the Lubicons in particular had, and which at the time Premier Lougheed said was merely house-cleaning and had nothing to do at all with prejudice to the on-going negotiations with the Isolated Communities -- whether they still maintain that position, and to try to flush out with them how that seems to square with the problems that the Lubicons seem to be having now, are having, they're not getting any leverage to, as Don Aitken points out, produce a possible lose on the government's side that would drive them to try to settle this thing. That legal lever was an important possible lose on the government's side that they took away through retroactive legislation. I'd like to ask them if they still see it in the same way. I'd like to ask -- well, I won't mention any names, because I'm sure we'll have to deal with whoever was the current occupant at the time -- but there are historical issues here that would be helpful that we'll discuss later, and some individuals from the past might be helpful to clarify some of it. On the federal side, I think that it's becoming clearer to me that the Lubicon issue is not a bizarre single incident. I was never sure whether it was or it wasn't, I must say, until I looked at the proposals and I heard Chief Bernard. The Lubicon in the dimension of assertion of their political rights are standing on the same ground, as I see it right now, as the Dene and as others in B.C. with whom the federal government has not felt drawn to complete negotiations. So when I asked that question of Chief Bernard about the without prejudice, I asked it in light of seeing what the Dene/Metis final agreement looked like in April of 1990, because it had a clause like that, and while it was never actually voted on specifically I can say from my general knowledge, that that clause was not satisfactory to the Dene. The Dene felt as much as this was a negotiation about economics, it was even more a negotiation about political relationship, and that just to say we'll negotiate the political relationship tomorrow, was not satisfactory to concluding the settlement to signing. I would like to know from the federal government's side whether they would be prepared to make the same offer to the Lubicons. I'm not sure how the Lubicons would answer, but I'd be interested in knowing whether they'd be prepared to make the offer, because there are some things in the Lubicon position which I know conflicts strongly with fundamental government policy -- whether or not I accept that policy, I know if conflicts strongly with it. For example, I'm using these because these are essentially -- Title 13, self- government in the Lubicon proposals, says the Lubicon Lake Nation is acknowledged by Canada and Alberta to have the right of self-determination and the right to exercise and maintain self-government on the reserve. I don't believe that the government of Canada has accepted that any First Nation has the right to self-determination. That's one of their fundamental points, and in fact (the Government of Canada) made that argument in Europe and Geneva. They've made this argument over and over again, that while indigenous people have individual rights, they do not have collective rights other than their rights as citizens in Canada. So I would imagine that would be a stumbling block to the federal government to accept that clause. They also have a clause -- there's a number of them, 13.4, 13.5, which says in the case of any conflict or inconsistency, the laws enacted by the Lubicon Lake Nation in respect to the reserve shall prevail over any laws and regulations of Canada or Alberta. Now, if we didn't have clause 13.1, and if this wasn't a constitutional document -- I hate to get technical but we're going to have to a little bit. If you don't understand it and you want me to explain it I will. That clause would not be a problem. That clause exists right now in the Sechelt Legislation, for example, which is the legislation of self-government for a Band in British Columbia. It says in the case of any conflict or inconsistency the laws enacted by the Sechelt Nation shall prevail over laws and regulations of Canada or British Columbia. However, the Sechelt Legislation is a normal act of Parliament and therefore the trump that the federal government has is to pass a law in the next Parliament which would annul this deal. It can do it unilaterally. There's nothing in the document that says that the Sechelt have any right to object. But if this document is a Constitutional document, then by accepting this clause, the government of Canada has accepted forever the laws of the Lubicon Lake Nation will prevail over the laws and regulations of Canada or Alberta. And in some respect within certain jurisdictions that's true, but these are not spelled out expect in 13.4. I don't want to deal with what the jurisdictions are so much as the principle. This is something that Canada has objected to and in fact this round of constitutional negotiations has been all tied up in how to untangle the knot of a sovereign power saying that another potential sovereign doesn't have the right to co-exist, and sort of accepting that yes it does have such a right, but how do the two get together to form some sort of mutuality for governments. That's really what a lot of the discussions in this constitutional round's been about. So I can imagine that the federal government could find sections 13.1 and 13.5 to be impossible to accept. So then the question becomes would they be prepared to say that they would sign a deal that would say we'll live to discuss self-government issues tomorrow, but we'll settle this other stuff right now. And would the Lubicons be prepared to accept such a proposal if it was put on the table? As I say, in certain other jurisdictions the answer has been no. In certain cases the answer has been yes. This is something that is not pre-ordained. So I guess to step back, I'd like to ask the federal government that kind of question. But to step back, what I'd like the federal government to -- and this really gets also to what Jennifer and Menno were talking about -- is to lay out for us what their policy is with respect to negotiations in general, and how this applies to the Lubicon case in particular, so that we can have clear from their point of view -- not tilted by my interpretation or anyone else's interpretation -- where they see the policy differences between their position and what the Lubicons are proposing in their offer. I think that would be fair. Then we could make a much better judgement of where things are going, and the public would have a much better understanding of where things are at right now. Jennifer Klimek: Michael, I just have one point that maybe you could address, out of what you said. We've been advised by someone in Vancouver that they could not settle this because of the legalities, even if the Lubicons said they thought that was a good proposal, because the courts wouldn't allow them to do that. Do you think that plays into -- and I can't explain anymore because that's said... Michael Asch: Would you mind repeating it then? Jennifer Klimek: When he was advising us, when we phoned to see if he was coming, was that they are precluded by the courts from accepting this. They would have to go get a court approval, which he doubted they could get, to accept this proposal as it stood. Michael Asch: Who is this? Jennifer Klimek: Doug Hoover, who is the Alberta representative for Indian Affairs. I'm just wondering if you have any knowledge of that, because that's something I would like to know. Why does he say that? It seems to me they've negotiated other deals. He has told us that, without going to court, because he thought it was to their benefit to negotiate. But then in the next breath he says, "This couldn't be accepted, we'd have to get court approval". I'm just wondering if you had any insight into that, and if so, that's what I'd like to address. Michael Asch: I have no idea what he's talking about. Which document couldn't they look at without court approval? Jennifer Klimek: It's my understanding, and maybe Jacques could confirm this because it was a conference call we had with him, was that if the Lubicon proposal as it stood now could not be accepted even if they wanted to without court approval. Michael Asch: Well, reading between the lines and doing a lot of interpretation, I think what he's saying is that if you take a look at the recent Supreme Court decisions with respect to what aboriginal and treaty rights are, they don't go as far as the Lubicons are saying in this document, so he'd wait to get a court case which said that yes, this was right on the money, before he would accept this as a document. That would be my interpretation. I'm not sure he's right. Jennifer Klimek: That would certainly be a question I'd want to put to them if someone were to show up. Shall we start with you again Sandy? Do you have any more questions? Sandy Day: A question I would like to ask of the federal government is that in the mid-80s they appointed E. Davie Fulton to look into the Lubicon settlement. At that time it was agreed to use Fulton's paper as a starting point for negotiations. What happened was that the paper was completed and it was not disclosed. I would like to ask what happened to the paper, how come discussions did not continue, and why was it not used for its intended purpose. Jennifer Klimek: Sandy, I think this is just an add-on to what you said. I have a lot of concerns about what has happened in the past as well. Have they actually looked at the Lubicon proposal? Have they addressed it? As well, there was a time when there were suggested arbitrators, names were put forward then they were withdrawn once they were accepted. I'd like to get some of the federal responses to why that happened. I guess first of all, did it in fact happen and why? What were they trying to achieve by this? If they haven't done that, why not try that? Sandy Day: On thing to add to what you said, Jennifer, is that Tom Siddon, when he was at Little Buffalo, said he didn't realize they were to make a response to the Lubicon proposal. He agreed to do that. I believe Bouvette - - I'm not sure I'm pronouncing that correctly -- is to be looking at that. I would like to ask them how that is going, when they hope to come back with a response to that.