WPC 2BPV`Courier 10cpi|x?xxx,kx6X@ɓ8;X@   Ő3' 3' 3' 3'     4 <D      " 4 <D` hp x#:x2PkCXP# ̰` hp x` hp x (#%'0*,. #:2PkCP#The Lubicon Settlement Commission of Review #:x2PkCXP# #:2PkCP#Final Report #:x2PkCXP# Edmonton, Alberta March 1993 #:2PkCP# #:d2PkCP# We thank the Association Canadienne Francaise de lAlberta; Dr. Roger Motut; Aboriginal Rights Coalition (Project North); Edmonton Interfaith Committee for Aboriginal Rights; St. Josephs Basilica; Peace River Travellers Motor Hotel; Mennonite Central Committee Canada, Winnipeg; Missionary Oblates. #:x2PkCXP##:2PkCP#Contents #:2PkCP# #:x2PkCXP# Introduction........................................................................................................i List of CommissionMembers.........................................................................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 PeopleSpeak........................................................................................... 11 The CommissionersSpeak............................................................................21 Mandate and Establishment ofCommission............................................. 29  #:d2PkCP#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 Appendices and additional copies of this Report areavailable at cost from: The Aboriginal Rights Coalition (Project North) 151 Laurier Avenue East Ottawa, Ontario K1N 6N8 Phone: 6132359956 Fax: 6132351302 #:x2PkCXP# #:2PkCP#Introduction #:x2PkCXP#  We are an independent and nonpartisan group who areselfsustaining. That is, we pay our own expenses. Nobodyssupporting us. We want to be involved in this way because wewould like to see the negotiations that have been stalled forsome time between the Lubicon and the two levels of government tomove again. Our mandate or terms of reference are to investigate,compare, assess and report on the presentation of the Lubiconsand of the two levels of government, and to report to the threeparties, but also to the public.  Fr. Jacques Johnson #:Z2PkCP#From the Transcript ofthe Lubicon Settlement Commission of Review . Public hearingJune 1, 1992 #:x2PkCXP# #:2PkCP#Commission Members: #:x2PkCXP# Father Jacques Johnson Cochair Provincial Superior, Missionary Oblates, Edmonton, AB Ms Jennifer Klimek Cochair 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, AlbertaChamber 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 #:2PkCP##:2PkCP# Activities of the Commission #:x2PkCXP#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; AdrianHoule from Saddle Lake Band; Advisors Fred Lennarson and BobSachs. 3. Public Hearing June 29, 1992 in Edmonton, Alberta Presenters: Rev. Bill Phipps, Executive Secretary of Alberta andNorthwest Conference, United Church of Canada; JohnStellingwerff, 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; VioletRose Ominayak; Dawn Hill Mohawk Six Nations; Advisor FredLennarson; 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, Friendsof 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 ofthe Lubicon Cree John Goddard; Advisor Fred Lennarson; BruceKoliger, of Koliger Schmidt Architects and Engineers,; JohnKrebes of Butler, Krebes and Associates.  8. Public Hearing January 29, 1993 in Edmonton, Alberta Presenter: Sharon Venne * Invited, but declining to make presentations or writtensubmissions: Tom Siddon, Federal Minister of Indian and NorthernAffairs, Dick Fowler, Alberta Minister of Native Affairs. Representatives from the federal and provincial governments wereinvited to appear, but declined. #:d2PkCP# * S. Venne was unable to attend previous hearings and asked toaddress the Commission in January. #:x2PkCXP# #:2PkCP# Written Submissions Received #:x2PkCXP# Rev Ray Hodgson, Chairperson, Taskforce on Churches and CorporateResponsibility, 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 ofCanada, 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, LittleBuffalo, AB Samson Cree Nation, Hobemma, AB Dawn J. Hill, MOHAWK NATION Mona Duckett for Social Justice Commission, Archdiocese ofEdmonton, AB Martina Roels (KWIA), BELGIUM J. Williams, Oxford, ENGLAND. #:2PkCP#Brief History of Events to June, 1992 #:x2PkCXP#  It is well established that the Lubicon Cree were in legitimateoccupation of their territory prior to first contact withEuropeans.#:F2PkC^P# #:x2PkCXP#When Treaty 8 was signed in 1899, the Lubicon were missed. Atvarious times during the 1920s and 1930s Lubicon who wanted tobecome part of Treaty 8 contacted the government. In 1933, theyformally petitioned Ottawa to recognize their rights. In 1939 thefederal government recognized the Lubicon as a separate band, butno treaty was made. By 1942 a government official had removed the names of manypeople belonging to the interior bands in order to cut downexpenses. In the 1970s sizable oil and gas reserves were discovered onLubicon land. In 1973 a federal OrderinCouncil was passed whichlegally recognized the Lubicon Lake Indians as a band. In 1975 the Lubicon, with six other isolated communities, submitted acaveat to serve notice of their unextinguished Aboriginal Rights.The provincial government responded by retroactively passingBill 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 theLubicon to continue their selfsufficient lifestyle was arrestedby this development. By 1983, the number of moose killed annually had decreased from 200 to 19. That year, the World Council of Churches investigatedthe situation at Little Buffalo and in a personal letter to theprime minister, warned of impending genocidal consequences. From 1979 to 1989, the number of Lubicon on welfare changed from10 per cent to 90 per cent. It was estimated that the 400 oilwells pumped $1 million worth of oil daily; none of this revenuebenefited the Lubicon. In 1985 D. Crombie, Minister for Indian Affairs, appointed E.Davie Fulton to study the situation. The Lubicon and the federalgovernment agreed to use the Fulton Discussion Paper as astarting point for negotiations. Fulton examined the major issues including land, band membership, wildlife management,selfgovernment and cash compensation. He suggested ways ofaccommodating the interests of the Lubicon and both governments.The Paper was never made public and the government took aposition in negotiations inconsistent with the (1986) FultonPaper. In February 1988, the province announced the establishment of theDaishowa pulp mill near Peace River, along with a timber lease of11000 square miles, including 4000 square miles of traditionalLubicon land. In October the band set up road blockades to their traditionalterritory. The RCMP took down the barricades and arrested 27Lubicon and supporters. Later that month Premier Getty and ChiefOminayak signed The Grimshaw Accord granting the band 79square miles of land including full subsurface rights and afurther 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 oreconomic selfsufficiency. The United Nations Committee on Human Rights released theirreport concerning the Lubicon in March, 1990. Their conclusionwas without precedent in the western world. They acted on thebelief that the Lubicon had exhausted all other options forinternal remedies to their situation. The Committee issued an order against Canada to stop any actionthat would further hinder the status of the Lubicon. Theycondemned Canada in the strongest possible language. The Committee concluded that, Recent developments threaten the wayof life and culture of the Lubicon Lake band and constitute aviolation of Article 27 (of the Human Rights Convention) so longas they continue. In addition they stated, The Lubicon couldnot achieve effective legal redress within Canada. Lubicon negotiators presented a draft settlement agreement toprovincial negotiators June 1, 1990. Negotiations with theprovincial government broke down at the end of the month. In thefall, despite verbal understanding to the contrary, Daishowaconfirmed that four companies would log in the disputed territory. In November some logging equipment was torched on Lubicontraditional territory. Seventeen Lubicon were arrested. Trial wasset for January 1993. The United Nations Human Rights Committee took a secondunprecedented action in May 1991 by appointing a rapporteur tomonitor the Lubicon situation and report to the Committee. InJuly the newly formed Woodland Cree Band, some of whom had beenlisted as members of the Lubicon Band, accepted a settlementpackage offered by the federal government. In December the IndianAffairs Minister announced the creation of a second new band, theLoon River Band. In 1992 negotiations started again between the Lubicon andfederal government. The federal package offered appeared to theLubicon to be a repeat of the 1989 offer. Despite a few meetings,nothing substantial was accomplished. In June The Lubicon Settlement Commission of Review beganhearings.  #:2PkCP# Findings #:x2PkCXP# Our principle finding is that governments have not acted in goodfaith. They have: a) passed retroactive legislationto undermine legal claims, b) appropriated royalties that, had a reserve been established at an appropriate time, would havebeen in Lubicon hands, and c) been in conflict of interest because they act asinterested party, beneficiary of royalties, andpresumed judge of the validity of Lubicon claims. Similar findings have been made by the United Nations, E. DavieFulton, the World Council of Churches, individuals from Canadaand overseas, and witnesses to this Commission. We also noted the inequality among the negotiating parties. TheLubicons have had extremely limited resources.The governmentsunlimited resources in terms of finances and personnel also ledto abuse of power. We heard no indication that the federal government was acting inthe interest of the Lubicon Cree, despite the mandate of theDepartment of Indian Affairs and Northern Development. Instead,they took an adversarial stance. The government has theresponsibility to act not as an adversary, but as a partner withthe Lubicon people. We feel that there is an inbuilt conflict of interest within themandate of the Minister of Indian and Northern Affairs. On theone hand he is to protect the interests of the Indian people; onthe other hand he is put in a situation where he is to makedecisions regarding development on contested lands, decisionswith negative consequences for Indian peoples. A case in point:Minister Bill McKnight, responsible for Western DiversificationFunding, allowed funds for development by Daishowa on disputedLubicon lands. We found that the Lubicon have acted in good faith innegotiations. Having heard Chief Ominayaks report regardingdeliberate avoidance of oil wells in the selection of their land,Commission members acknowledge the Lubicons sincere efforts to facilitate resolution. The Lubicon want openand public negotiations, and have responded to invitations fromthe governments to negotiate. They have presented a wellthoughtout plan for a settlement, to which they still await anadequate government response. They have also agreed to a processof mediation. We found that the Lubicon proposal, based on the need forcommunity viability, represents a fairer basis for settlementthan the proposals of the federal government based on fear ofsetting a precedent that varies from existing policy. We agreewith E. Davie Fulton who said: ... I cannot see this being a precedent because this is anentirely unique set of circumstances.  Never before in our history and lets hope never again has a situation existed where aBand was promised over 50 years ago, a settlement and a reservethat would have given them a livelihood, set them up in that wayso that they wouldnt have suffered so dreadfully from the lossof their other forms of livelihood and they would have had otherbenefits follow from it promises which have not been fulfilled,which have been stymied, which have been met with obfuscation anddifficulties by the very people responsible for implementing thepromise.... So a generous settlement recognizing the equity of thesituation could not possibly serve as a precedent for othersettlements, because theres no other such situation. #:d2PkCP# #:x2PkCXP# A further crucial finding is that the situation is urgent. Thealternative to a just settlement is to see the Lubicon continuethe downward spiral of despair and selfdestruction already begunby a few years on welfare subsistence. Hundreds of thousands oftax dollars are being spent for welfare alone, not to mentionhealth and human costs. A major concern is the ongoing personal tragedies and sense of helplessness. The devastation of the community resulting from intrusive development causes severehardship to the internal organization of the Lubicon people, toits economic basis, and to its moral fibre. Canada has many ways of resolving issues, through variousgovernments, through the courts, and through negotiation. Since1939, all of these avenues have been tried by the Lubicon. We have based our findings and recommendations on testimonypresented to us. We are disappointed that representatives fromthe federal and provincial governments refused to appear beforethe Commission. We were, therefore, not afforded the opportunityto hear the rationale for their offer or reasons for shelving theFulton Discussion Paper, for example. We hope that the parties will adopt the following recommendationsand that this will result in a mutually satisfactory resolution. Our recommendations are made in order to create conditions underwhich the federal government is compelled to act fairly. Ultimately, if these fail, we recommend turning the process of negotiations to athird party, perhaps in the international community.  #:2PkCP#Recommendations #:x2PkCXP# We Recommend: 1. That given the urgency and time constraints of the situation,and also the ongoing frustrations of Lubicon leaders having tonegotiate with government officials who have no decisionmakingpower, the federal government delegation be led by the Ministerof Indian and Northern Affairs or the Prime Minister, and thatthe provincial delegation be led by the Premier or the Ministerfor Native Affairs. 2. That the Fulton Discussion Paper be used as a basis for renewednegotiation by the three parties. Mr. Fulton spent more than ayear studying the Lubicon claims. He clearly identified nineareas of dispute, including land, membership, environmentalmanagement, selfgovernment, compensation. He analyzed the natureof each. He stated the position of the Lubicon, of the federaland provincial governments. Finally he identified areas ofagreement, suggested areas of compromise or possible settlementwhere there was no agreement. Unfortunately the Paper wasshelved soon after it was presented. (We note that this isrecommended 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 anindependent mediator, and with a third person agreed upon by bothparties, create a tribunal. Where the provincial government isinvolved, it should also be a party to this, but in no caseshould 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 theRoyal Proclamation of 1763 that the Crown must be committed topublic negotiations. We urge that the government of Canada followthis policy so that the public can understand how negotiationsare proceeding. We understand from their testimony that theLubicon have already agreed to this. 5 . That beginning immediately, all royalties be held in trust. This is to develop an incentive to conclude negotiationsquickly. Further, that there be no additional permits or leasesgranted on traditional Lubicon lands without Lubicon approval. 6. That the land allocation of 95 square miles as identified andagreed upon in the Grimshaw Accord, be finalized and implementedimmediately , without prejudice to the rest of the negotiations. 7. That implementation of the Lubicon proposal to developagriculture, wild rice harvesting, wildlife management,commercial development, sustainable timber industry,reforestation, road construction and ranching, among otherthings, be honoured in the negotiations. According to theindependent cost assessors, the costs for these appear to bereasonable. 8. That extinguishment of Aboriginal Rights, including land rights, not be a condition for settlement. 9. That the settlement reflect cultural considerations whichinclude: a) That hunting and gathering not be regarded only as a pastand currently irrelevant part of the economy, but as acontemporary and continuing part of the economyfor the present and future; b) That language translations within the negotiations, andin the final agreement, be encouraged for thebenefit of the Cree speakers; c) That cultural sustainability be held firm as analternative to the usual assimilativephilosophy. 10. That membership eligibility is a prerogative of the Lubiconnation. In the past when treaty commissioners negotiated onbehalf of the federal government, they accepted the number of members given them by the chief or leader. They have not acceptedthe number of members given them by Lubicon representatives. 11. That the compensation requested by the Lubicon be paid ($50million from each government). The Lubicon have asked $100 million in compensation.. In light of the Fulton DiscussionPaper, compensation is a responsibility of the federalgovernment. However, because the province has benefited from theroyalties, made possible by regrettable and unfair retroactivelegislation, it would be just for them to reimburse the federalgovernment for $50 million. This is based on uncollected revenuesand uncollected benefits beginning with the promise of a reservein 1939 and the formation of a band. Most benefits received by recognized Indian bands were notreceived by the Lubicon for decades, due to government neglect.Benefits from oil and gas exploitation are nonexistent. Fiftymillion dollars is less than 5% of the provincial governmentsshare of royalties, gained as a result of retroactivelegislation (Bill 29). 12. That if no settlement is satisfactorily completed within six(6) months, the dispute be referred to a third party forresolution. We suggest that, given the ongoing interest shown bythe United Nations Human Rights Committee, it would be anappropriate forum to deal with this dispute. The international monitoring of this Canadian issue is areality. The Human Rights agenda is international in character.In addition, natural resources in the Lubicon area are ofsubstantial interest to international development corporations. The Lubicons appeal to the international community stronglysuggests the failure of the regulatory process within Canadiangovernmental and other networks. Canadas apparent image as a defender of Human Rights on theinternational scene is seriously undermined by the federalgovernments failure to deal honourably with the longstandinggrievance at Little Buffalo, Alberta. #x\  PCXP#