Lubicon Lake Indian Nation Little Buffalo Lake, AB 403-629-3945 Fax: 403-629-3939 Mailing address: 3536 - 106 Street Edmonton, AB T6J 1A4 403-436-5652 Fax: 403-437-0719 March 19, 1993 Enclosed for your information is a copy of the long awaited final report* of the Lubicon Settlement Commission of Review along with related media coverage. * * * * * (Due to the limitations of text written in ASCII those parts of the report, that in the original text were either underlined, italicized, bolded, enlarged, or otherwise emphasized in the regular text will appear as upper case in this electronic version. I apologize for any errors that may have occurred during the transcription. R.L.) THE LUBICON SETTLEMENT COMMISSION OF REVIEW FINAL REPORT Edmonton, Alberta March 1993 We thank the Association Canadienne Francaise de l'Alberta; Dr. Roger Motut; Aboriginal Rights Coalition (Project North); Edmonton Interfaith Committee for Aboriginal Rights; St. Joseph's Basilica; Peace River Traveller's Motor Hotel; Mennonite Central Committee Canada, Winnipeg; Missionary Oblates. CONTENTS Introduction........................................i List of Commission Members..........................ii Activities of the Commission....................... iii List of Written Submissions Received............... iv Brief History of Events to June, 1992...............1 Findings............................................3 Recommendations.....................................5 A Comparison of Approaches......................... 7 The People Speak................................... 11 The Commissioners...................................21 Mandate and Establishment of Commission.............29 Appendix 1: Letter to Prime Minister Trudeau from the World Council of Churches, 1983 Appendix 2: Fulton Discussion Paper, 1986 Appendix 3: Transcripts of Commission Hearings (NOTE: The appendices are not attached to the electronic version. R.L.) Appendices and additional copies of this Report are available at cost from: The Aboriginal Rights Coalition (Project North) 151 Laurier Avenue East Ottawa, Ontario K1N 6N8 Phone: 613-235-9956 Fax: 613-235-1302 INTRODUCTION "We are an independent and non-partisan group who are self-sustaining. That is, we pay our own expenses. Nobody's supporting us. We want to be involved in this way because we would like to see the negotiations that have been stalled for some time between the Lubicon and the two levels of government to move again. Our mandate or terms of reference are to investigate, compare, assess and report on the presentation of the Lubicons and of the two levels of government, and to report to the three parties, but also to the public." - Fr. Jacques Johnson From the Transcript of the Lubicon Settlement Commission of Review . Public hearing June 1, 1992 COMMISSION MEMBERS: FATHER JACQUES JOHNSON Co-chair Provincial Superior, Missionary Oblates, Edmonton, AB MS JENNIFER KLIMEK Co-chair Lawyer, Edmonton, AB MR. DON AITKEN President, Alberta Federation of Labour, Edmonton, AB DR. MICHAEL ASCH Professor, Department of Anthropology, University of Alberta, Edmonton, AB MR. WILF BARRANOIK Entrepreneur, Sherwood Park, AB and former chair, Alberta Chamber of Commerce MR. NORM BOUCHER Forestry contractor, Peace River, AB MS REGENA CROWCHILD President, Indian Association of Alberta MS SANDY DAY Entrepreneur/environmentalist, High River, AB MR. JOHN MACMILLAN Entrepreneur, Peace River, AB MS THERESA MCBEAN Engineer, Calgary, AB (resigned due to child birth) MS COLLEEN MCCRORY Environmentalist, New Denver, BC REVEREND MENNO WIEBE Director of Native Concerns, Mennonite Central Committee Canada, Winnipeg, MB ACTIVITIES OF THE COMMISSION 1. Public Hearing June 1, 1992 in Edmonton, Alberta Presenters: Chief Bernard Ominayak; Elder Edward Laboucan; Advisors Fred Lennarson and Bob Sachs. 2. Public Hearing June 2, 1992 in Edmonton, Alberta Presenters: Chief Bernard Ominayak; Elder Edward Laboucan; Adrian Houle from Saddle Lake Band; Advisors Fred Lennarson and Bob Sachs. 3. Public Hearing June 29, 1992 in Edmonton, Alberta Presenters: Rev. Bill Phipps, Executive Secretary of Alberta and Northwest Conference, United Church of Canada; John Stellingwerff, Chairperson of the Edmonton Interfaith Committee for Aboriginal Rights. 4. Public Hearing August 6, 1992 in Little Buffalo, Alberta Presenters: Chief Bernard Ominayak; Elder Edward Laboucan; Violet Rose Ominayak; Dawn Hill Mohawk Six Nations; Advisor Fred Lennarson; Grade 9 student Crystal Gladue. 5. Public Hearing August 7, 1992 in Peace River, Alberta Presenters: Dr. Heinz Lippuner, Organization of Incomindios, Switzerland; Mayor Michael Proctor of Peace River; Ian Gardiner, President of the Peace River Board of Trade; Ed Bianchi, Friends of the Lubicon, Toronto. 6. Public Hearing November 2, 1992 in Edmonton, Alberta Presenters: The Hon. E. Davie Fulton; Chief Bernard Ominayak. 7. Public Hearing November 3, 1992 in Edmonton, Alberta Presenters: Montreal journalist and author of The Last Stand of the Lubicon Cree John Goddard; Advisor Fred Lennarson; Bruce Koliger, of Koliger Schmidt Architects and Engineers,; John Krebes of Butler, Krebes and Associates. 8. Public Hearing January 29, 1993 in Edmonton, Alberta Presenter: Sharon Venne * Invited, but declining to make presentations or written submissions: Tom Siddon, Federal Minister of Indian and Northern Affairs, Dick Fowler, Alberta Minister of Native Affairs. Representatives from the federal and provincial governments were invited to appear, but declined. * S. Venne was unable to attend previous hearings and asked to address the Commission in January. WRITTEN SUBMISSIONS RECEIVED Rev Ray Hodgson, Chairperson, Taskforce on Churches and Corporate Responsibility, Toronto, ON Bill Janzen, Executive Director, Mennonite Central Committee, AB Mennonite Centre for Newcomers, Edmonton, AB Dionys Zink, Board Member, Big Mountain Action Group GERMANY The Lubicon Lake Nation Women, Little Buffalo, AB Western Canada Wilderness Committee, Edmonton, AB Delia Ayers, Oxford, ENGLAND A.J. Pollorte, Oxford, ENGLAND Friends of the Lubicon, Toronto, ON Frank H. Stuckert, Bright, Vic., AUSTRALIA Turtle Island Support Group, Toronto, ON Rosemarie Herrell, Don Mills, ON Helen E. Coleman, Thornhill, ON Vah Hori, Toronto, ON Bruce Tombs for Friends of Aboriginal People, United Church of Canada, Salford, ON Elizabeth May for Cultural Survival, Ottawa, ON John Hamer, Red Deer, AB Alva I. Cox Jr. A summer resident and payer of Canadian taxes, Connecticut, USA Pedro Ceinos, Madrid, SPAIN The Mimir Corporation, Edmonton AB Louise A. Stanley, Bath, ME Mennonite Central Committee, Winnipeg, MB Chief Ernest Sundown for Joseph Bighead Reserve No. 124, Pierceland, SK Eighth European Meeting of Native American Support Groups, Genova, ITALY Timothy Gladue and Crystal Gladue, Lubicon Nation Youth, Little Buffalo, AB Samson Cree Nation, Hobemma, AB Dawn J. Hill, MOHAWK NATION Mona Duckett for Social Justice Commission, Archdiocese of Edmonton, AB Martina Roels (KWIA), BELGIUM J. Williams, Oxford, ENGLAND. BRIEF HISTORY OF EVENTS TO JUNE, 1992 It is well established that the Lubicon Cree were in legitimate occupation of their territory prior to first contact with Europeans. When Treaty 8 was signed in 1899, the Lubicon were missed. At various times during the 1920s and 1930s Lubicon who wanted to become part of Treaty 8 contacted the government. In 1933, they formally petitioned Ottawa to recognize their rights. In 1939 the federal government recognized the Lubicon as a separate band, but no treaty was made. By 1942 a government official had removed the names of many people belonging to the interior bands in order to "cut down expenses." In the 1970s sizable oil and gas reserves were discovered on Lubicon land. In 1973 a federal Order-in-Council was passed which legally recognized the Lubicon Lake Indians as a band. In 1975 the Lubicon, with six other isolated communities, submitted a caveat to serve notice of their unextinguished Aboriginal Rights. The provincial government responded by retroactively passing Bill 29, which changed the law and thus made the Lubicon case (with the other applicants on the caveat) without basis. Resource development began in earnest in 1979. The ability of the Lubicon to continue their self-sufficient lifestyle was arrested by this development. By 1983, the number of moose killed annually had decreased from 200 to 19. That year, the World Council of Churches investigated the situation at Little Buffalo and in a personal letter to the prime minister, warned of impending "genocidal consequences". From 1979 to 1989, the number of Lubicon on welfare changed from 10 per cent to 90 per cent. It was estimated that the 400 oil wells pumped $1 million worth of oil daily; none of this revenue benefited the Lubicon. In 1985 D. Crombie, Minister for Indian Affairs, appointed E. Davie Fulton to study the situation. The Lubicon and the federal government agreed to use the Fulton Discussion Paper as a starting point for negotiations. Fulton examined the major issues including land, band membership, wildlife management, self- government and cash compensation. He suggested ways of accommodating the interests of the Lubicon and both governments. The Paper was never made public and the government took a position in negotiations inconsistent with the (1986) Fulton Paper. In February 1988, the province announced the establishment of the Daishowa pulp mill near Peace River, along with a timber lease of 11000 square miles, including 4000 square miles of traditional Lubicon land. In October the band set up road blockades to their traditional territory. The RCMP took down the barricades and arrested 27 Lubicon and supporters. Later that month Premier Getty and Chief Ominayak signed "The Grimshaw Accord" granting the band 79 square miles of land including full subsurface rights and a further 16 square miles with only surface rights. In January 1989 the federal government tabled a settlement offer. It was rejected on the grounds that it did not ensure social or economic self- sufficiency. The United Nations Committee on Human Rights released their report concerning the Lubicon in March, 1990. Their conclusion was without precedent in the western world. They acted on the belief that the Lubicon had exhausted all other options for internal remedies to their situation. The Committee issued an order against Canada to stop any action that would further hinder the status of the Lubicon. They condemned Canada in the strongest possible language. The Committee concluded that, "Recent developments threaten the way of life and culture of the Lubicon Lake band and constitute a violation of Article 27 (of the Human Rights Convention) so long as they continue." In addition they stated, "The Lubicon could not achieve effective legal redress within Canada." Lubicon negotiators presented a draft settlement agreement to provincial negotiators June 1, 1990. Negotiations with the provincial government broke down at the end of the month. In the fall, despite verbal understanding to the contrary, Daishowa confirmed that four companies would log in the disputed territory. In November some logging equipment was torched on Lubicon traditional territory. Seventeen Lubicon were arrested. Trial was set for January 1993. The United Nations Human Rights Committee took a second unprecedented action in May 1991 by appointing a rapporteur to monitor the Lubicon situation and report to the Committee. In July the newly formed "Woodland Cree Band," some of whom had been listed as members of the Lubicon Band, accepted a settlement package offered by the federal government. In December the Indian Affairs Minister announced the creation of a second new band, the Loon River Band. In 1992 negotiations started again between the Lubicon and federal government. The federal package offered appeared to the Lubicon to be a repeat of the 1989 offer. Despite a few meetings, nothing substantial was accomplished. In June The Lubicon Settlement Commission of Review began hearings. FINDINGS Our principle finding is that governments have not acted in good faith. They have: A) PASSED RETROACTIVE LEGISLATION TO UNDERMINE LEGAL CLAIMS, B) APPROPRIATED ROYALTIES THAT, HAD A RESERVE BEEN ESTABLISHED AT AN APPROPRIATE TIME, WOULD HAVE BEEN IN LUBICON HANDS, AND C) BEEN IN CONFLICT OF INTEREST BECAUSE THEY ACT AS INTERESTED PARTY, BENEFICIARY OF ROYALTIES, AND PRESUMED JUDGE OF THE VALIDITY OF LUBICON CLAIMS. Similar findings have been made by the United Nations, E. Davie Fulton, the World Council of Churches, individuals from Canada and overseas, and witnesses to this Commission. We also noted the inequality among the negotiating parties. The Lubicons have had extremely limited resources.The governments' unlimited resources in terms of finances and personnel also led to abuse of power. We heard no indication that the federal government was acting in the interest of the Lubicon Cree, despite the mandate of the Department of Indian Affairs and Northern Development. Instead, they took an adversarial stance. The government has the responsibility to act not as an adversary, but as a partner with the Lubicon people. We feel that there is an in-built conflict of interest within the mandate of the Minister of Indian and Northern Affairs. On the one hand he is to protect the interests of the Indian people; on the other hand he is put in a situation where he is to make decisions regarding development on contested lands, decisions with negative consequences for Indian peoples. A case in point: Minister Bill McKnight, responsible for Western Diversification Funding, allowed funds for development by Daishowa on disputed Lubicon lands. We found that the Lubicon have acted in good faith in negotiations. Having heard Chief Ominayak's report regarding deliberate avoidance of oil wells in the selection of their land, Commission members acknowledge the Lubicons' sincere efforts to facilitate resolution. The Lubicon want open and public negotiations, and have responded to invitations from the governments to negotiate. They have presented a well thought-out plan for a settlement, to which they still await an adequate government response. They have also agreed to a process of mediation. We found that the Lubicon proposal, based on the need for community viability, represents a fairer basis for settlement than the proposals of the federal government based on fear of setting a precedent that varies from existing policy. We agree with E. Davie Fulton who said: "...I CANNOT SEE THIS BEING A PRECEDENT BECAUSE THIS IS AN ENTIRELY UNIQUE SET OF CIRCUMSTANCES. Never before in our history -- and let's hope never again -- has a situation existed where a Band was promised over 50 years ago, a settlement and a reserve that would have given them a livelihood, set them up in that way so that they wouldn't have suffered so dreadfully from the loss of their other forms of livelihood and they would have had other benefits follow from it -- promises which have not been fulfilled, which have been stymied, which have been met with obfuscation and difficulties by the very people responsible for implementing the promise....SO A GENEROUS SETTLEMENT RECOGNIZING THE EQUITY OF THE SITUATION COULD NOT POSSIBLY SERVE AS A PRECEDENT FOR OTHER SETTLEMENTS, BECAUSE THERE'S NO OTHER SUCH SITUATION." A further crucial finding is that the situation is urgent. The alternative to a just settlement is to see the Lubicon continue the downward spiral of despair and self-destruction already begun by a few years on welfare subsistence. Hundreds of thousands of tax dollars are being spent for welfare alone, not to mention health and human costs. A major concern is the on-going personal tragedies and sense of helplessness. The devastation of the community resulting from intrusive development causes severe hardship to the internal organization of the Lubicon people, to its economic basis, and to its moral fibre. Canada has many ways of resolving issues, through various governments, through the courts, and through negotiation. Since 1939, all of these avenues have been tried by the Lubicon. We have based our findings and recommendations on testimony presented to us. We are disappointed that representatives from the federal and provincial governments refused to appear before the Commission. We were, therefore, not afforded the opportunity to hear the rationale for their offer or reasons for shelving the Fulton Discussion Paper, for example. We hope that the parties will adopt the following recommendations and that this will result in a mutually satisfactory resolution. Our recommendations are made in order to create conditions under which the federal government is compelled to act fairly. ULTIMATELY, IF THESE FAIL, WE RECOMMEND TURNING THE PROCESS OF NEGOTIATIONS TO A THIRD PARTY, PERHAPS IN THE INTERNATIONAL COMMUNITY. RECOMMENDATIONS WE RECOMMEND: 1. THAT given the urgency and time constraints of the situation, and also the on-going frustrations of Lubicon leaders having to negotiate with government officials who have no decision-making power, THE FEDERAL GOVERNMENT DELEGATION BE LED BY THE MINISTER OF INDIAN AND NORTHERN AFFAIRS OR THE PRIME MINISTER, AND THAT THE PROVINCIAL DELEGATION BE LED BY THE PREMIER OR THE MINISTER FOR NATIVE AFFAIRS. 2.THAT THE FULTON DISCUSSION PAPER BE USED AS A BASIS FOR RENEWED NEGOTIATION BY THE THREE PARTIES. Mr. Fulton spent more than a year studying the Lubicon claims. He clearly identified nine areas of dispute, including land, membership, environmental management, self-government, compensation. He analyzed the nature of each. He stated the position of the Lubicon, of the federal and provincial governments. Finally he identified areas of agreement, suggested areas of compromise or possible settlement where there was no agreement. Unfortunately the Paper was shelved soon after it was presented. (We note that this is recommended as A workable basis, not necessarily THE basis.) 3. In issues where no resolution can be found among the parties, THAT THE FEDERAL GOVERNMENT AND LUBICON EACH APPOINT AN INDEPENDENT MEDIATOR, AND WITH A THIRD PERSON AGREED UPON BY BOTH PARTIES, CREATE A TRIBUNAL. Where the provincial government is involved, it should also be a party to this, but in no case should the decision be made wherein each government has one vote, and the Lubicon have one vote. 4. THAT NEGOTIATIONS BE MADE IN PUBLIC. It is clear from the Royal Proclamation of 1763 that the Crown must be committed to public negotiations. We urge that the government of Canada follow this policy so that the public can understand how negotiations are proceeding. We understand from their testimony that the Lubicon have already agreed to this. 5. THAT BEGINNING IMMEDIATELY, ALL ROYALTIES BE HELD IN TRUST. This is to develop an incentive to conclude negotiations quickly. Further, that there be no additional permits or leases granted on traditional Lubicon lands without Lubicon approval. 6. THAT THE LAND ALLOCATION OF 95 SQUARE MILES AS IDENTIFIED AND AGREED UPON IN THE GRIMSHAW ACCORD, BE FINALIZED AND IMPLEMENTED IMMEDIATELY, without prejudice to the rest of the negotiations. 7. THAT IMPLEMENTATION OF THE LUBICON PROPOSAL TO DEVELOP AGRICULTURE, WILD RICE HARVESTING, WILDLIFE MANAGEMENT, COMMERCIAL DEVELOPMENT, SUSTAINABLE TIMBER INDUSTRY, REFORESTATION, ROAD CONSTRUCTION AND RANCHING, AMONG OTHER THINGS, BE HONOURED IN THE NEGOTIATIONS. According to the independent cost assessors, the costs for these appear to be reasonable. 8. THAT EXTINGUISHMENT OF ABORIGINAL RIGHTS, INCLUDING LAND RIGHTS, NOT BE A CONDITION FOR SETTLEMENT. 9. THAT THE SETTLEMENT REFLECT CULTURAL CONSIDERATIONS WHICH INCLUDE: a) That hunting and gathering not be regarded only as a past and currently irrelevant part of the economy, but as a contemporary and continuing part of the economy for the present and future; b) That language translations within the negotiations, and in the final agreement, be encouraged for the benefit of the Cree speakers; c) That cultural sustainability be held firm as an alternative to the usual assimilative philosophy. 10. THAT MEMBERSHIP ELIGIBILITY IS A PREROGATIVE OF THE LUBICON NATION. In the past when treaty commissioners negotiated on behalf of the federal government, they accepted the number of members given them by the chief or leader. They have not accepted the number of members given them by Lubicon representatives. 11. THAT THE COMPENSATION REQUESTED BY THE LUBICON BE PAID ($50 million from each government). The Lubicon have asked $100 million in compensation.. In light of the Fulton Discussion Paper, compensation is a responsibility of the federal government. However, because the province has benefited from the royalties, made possible by regrettable and unfair retroactive legislation, it would be just for them to reimburse the federal government for $50 million. This is based on uncollected revenues and uncollected benefits beginning with the promise of a reserve in 1939 and the formation of a band. Most benefits received by recognized Indian bands were not received by the Lubicon for decades, due to government neglect. Benefits from oil and gas exploitation are nonexistent. Fifty million dollars is less than 5% of the provincial government's share of royalties, gained as a result of retroactive legislation (Bill 29). 12. THAT IF NO SETTLEMENT IS SATISFACTORILY COMPLETED WITHIN SIX (6) MONTHS, THE DISPUTE BE REFERRED TO A THIRD PARTY FOR RESOLUTION. WE SUGGEST THAT, GIVEN THE ON-GOING INTEREST SHOWN BY THE UNITED NATIONS HUMAN RIGHTS COMMITTEE, IT WOULD BE AN APPROPRIATE FORUM TO DEAL WITH THIS DISPUTE. The international monitoring of this Canadian issue is a reality. The Human Rights agenda is international in character. In addition, natural resources in the Lubicon area are of substantial interest to international development corporations. The Lubicons' appeal to the international community strongly suggests the failure of the regulatory process within Canadian governmental and other networks. CANADA'S APPARENT IMAGE AS A DEFENDER OF HUMAN RIGHTS ON THE INTERNATIONAL SCENE IS SERIOUSLY UNDERMINED by the federal government's failure to deal honourably with the longstanding grievance at Little Buffalo, Alberta. A COMPARISON OF APPROACHES The offers made by the federal government and the Lubicon, although modified at various times, always show two very contrasting underlying approaches. The federal proposal(s) generally favours an approach that compares the Lubicon situation to the settlement of other "claims" by First Nations. They seem to be looking at whether or not the Lubicon settlement is "fair" with respect to their own policy and with the circumstances of others presumed to be in similar circumstances. The Lubicon, generally, are in favour of a resolution that is related specifically to their circumstances -- that is, based on their needs. THE NEEDS APPROACH: Do the proposals meet the "needs" test? This discussion is limited to one area -- economic self-sufficiency. This question is posed in the Terms of Reference: Does the settlement provide the Lubicon with the resources to "once again become economically self-sufficient"? We begin by looking at the federal offer from the perspective of "needs." As there were no government witnesses, it is impossible to know whether or not government believed that their offers provided the means for economic self- sufficiency. Clearly, the Lubicon said the proposals do not. The testimony heard indicates that the Lubicon are correct. As it emerged from testimony, the Lubicon believe that their future economic self-sufficiency must be based on changing from a reliance on hunting and trapping to agriculture. The rationale for this approach appears to be that, as the wildlife had been disturbed and to a large extent destroyed, it is reasonable to develop an agricultural base. Their proposal to the federal government was based on this assumption. Although there may be other alternatives, finding them falls outside the mandate of this Commission. A key section of the Lubicon position is the costing of their needs to develop agriculture. At the same time, they also costed needs for community construction, trapper support and commercial development. These funds, along with some dollars for compensation related to the extraction of non-renewable resources from their lands, represented the basis for the global dollar amount they presented in their offer. This amount in the Lubicon offer, according to Koliger and Schmidt (architects and engineers) was around $27 million (in 1988 dollars and without contingency provisions). The federal offer(s) also include dollars for community development, for an economic development fund (schedule D 1989), some support for agricultural development and the OPPORTUNITY TO APPLY FOR ADDITIONAL FUNDS. It really does not provide for the degree of agricultural or commercial infrastructure found in the Lubicon proposal. As well, in all cases, the dollars provided in the federal government proposals are lower than those indicated in the Lubicon proposal. Given that the federal government offer does not speak either directly or indirectly to the question of economic self-sufficiency, and does not ensure funding for infrastructure to enable self-sufficiency to take place, it is evident that the federal plan does not meet the needs of the Lubicon to shift their economy to agriculture. At the same time, it is fair to ask whether the Lubicon figures represent a reasonable estimate of the costs. Evidence was provided by Koliger and Schmidt that the global dollar amount provided by the Lubicon was significantly lower (in 1992 dollars) than what would be required to construct the infrastructure identified in their proposal. This was about $42 million (without contingency). Thus, the Lubicon proposal is perhaps unrealistic to achieve their objectives, because their figures are too low. THE FAIRNESS APPROACH Are the government proposals "fair?" It appears that governments utilized this approach in preparing their offers. Some witnesses suggested that "fairness" ought to be a crucial criterion upon which to evaluate the proposals. Fairness may be measured in various ways. It is our view, based on information extraneous to these hearings, that government sees "fairness" as an aspect of consistency with respect to existing policies, and "even-handedness" with respect to treatment. It appeared that for some witnesses, fairness related to even-handedness with respect to treatment of others, both Aboriginal and non-Aboriginal. It is far beyond the scope of this document to present a discussion of current government policy or implementation of it respecting treaty rights, "land claims" (both specific and general) and services. Generally speaking, however,the proposals advanced by the federal government fit within one or another policy. One question, which we will not address in detail, is whether the way they are combined in any given proposal represents the "fairest" way to proceed. In at least one case, it does not. In one proposal, the government MERELY PROVIDES THE OPPORTUNITY TO SEEK FUNDS FROM EXISTING PROGRAMS. The Lubicon could do this without it being in the proposal. It is inappropriate to have such a provision contained within it or to count it as a part of the settlement package. Clearly, such an approach is only consistent with policies that stand outside of the normal "land claims" approach. Even more crucial, is whether the government's idea of "fairness" as it relates to consistency and even-handedness, is in fact fair to the Lubicon. It seems not. When policies are to be "consistent" and "even-handed" with respect to certain abstract generalizations about the parties with whom one is negotiating, it seems that the whole point of the exercise is lost. One must ask specifically about the circumstances of each individual case and provide appropriate redress according to that context. How then, should the concept of "fairness" be applied to the Lubicon and the other isolated communities? We offer examples regarding relations with the federal and provincial governments as illustrations of what a contextualized use of "fairness" might imply. We begin with the federal. It is reasonably well known that the Lubicon were "missed" when Treaty 8 was signed in 1899. It is also accepted fact that the Lubicon petitioned Indian Affairs for a reserve beginning in 1933 and that, in 1939, Indian Affairs agreed they were a separate Band and that a reserve should be established for them. This reserve was to be approximately 25.4 square miles in area. It is known that no survey was done then and that the Alberta government removed any reserve on this land in 1954 when the federal government did not comply with requests for survey data to remove the land from the provincial inventory. It therefore seems appropriate to conclude that it was through no fault of their own, that the Lubicon and other isolated communities did not have a reserve by the time oil and gas were discovered on their traditional lands. It is estimated (through an extrapolation of government supplied data) that $1 million per day was extracted in energy from traditional Lubicon lands in the year 1988 alone. Had the federal government acted in a timely and appropriate manner in the 1940s and 1950s, there would have been a reserve in place by the time of this discovery. It is agreed that some, if not all, of the non- renewable energy supplies extracted would have been from that reserve and perhaps from lands set aside for other isolated communities. Given these circumstances, it seems logical that a "fair" approach would necessitate that the settlement reflect the situation that OUGHT to have existed when oil and gas were discovered and extracted from Lubicon lands. It is clear that, given existing federal policy respecting royalties to resource- rich Bands, monetary settlement based on this view of "fairness" would far exceed the Lubicon proposal which is based on need. We turn now to the question of "fairness" with respect to actions of the government of Alberta. In 1975, the people of the isolated communities (including the Lubicon) filed a caveat that served notice that, notwithstanding the existing language of Treaty 8, they still have certain unextinguished Aboriginal Rights in their traditional territories. The filing of such a caveat was important in that it would provide certain protection against their rights being alienated through third party interest. The Alberta case was based on a similar case in the Northwest Territories which was filed by the Dene in the late 1960s. The trial in the Northwest Territories produced a judgment that asserted that the Dene may well have unextinguished rights, notwithstanding the language of the same treaty. It allowed for the filing of a caveat. At the time the Lubicon case reached the courts in Alberta, the NWT case was in the Appeals Court of Alberta (which acted at that time as the Appeals Court for the NWT). During the Lubicon trial, the Appeals Court stated that, given the way the law was written in the NWT, it was not possible to file such a caveat, but that given the land legislation in Alberta, were the case to be filed here, they would have to uphold it. As a consequence, the lawyers for Alberta asked for a stay in that trial. The government of Alberta INTRODUCED LEGISLATION THAT CHANGED THE LAND TITLES ACT in Alberta in such a way that no caveat could be upheld here. What is crucial is that the government made this legislation RETROACTIVE, and as a result, the trial was rendered null and void. Thus, an important legal tool, the caveat, was taken from the Lubicon and other isolated communities. The passage of retroactive legislation is generally repugnant to English legal thought. It is especially repugnant when a consequence of this action is to deny access to legal remedy. This was done in the Lubicon case. It would thus follow that a policy based on fairness would operate within a context that assumed the existing case of the Lubicon is exempt from the impact of the legislation. Such a conclusion would have an extremely important impact on the balance of power between the parties even now and its application retroactively (which would be fair) would create a sufficient legal tangle so that governments probably would be quite willing to resolve the monetary questions on the Lubicons' premise, based on need. In sum, when the context of the Lubicon is included within the scope of "fairness", that concept would likely lead to a higher [monetary] settlement than the one based on "need." We are therefore drawn to conclude that, whether based on "fairness" or on "need," the Lubicon position represents the more appropriate settlement proposal than do any we have seen advanced by the federal government - The Commissioners (Continued in part 2)