Oral Intervention by Sharon Venne on Behalf of the Lubicon Cree (with attachments) at UNWGIP 12th Session '94
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DOCUMENT: LUBICN94.TXT
U N I T E D N A T I O N S
Commission on Human Rights
Sub-Commission on Prevention of
Discrimination and Protection
of Minorities
Working Group on Indigenous Peoples
Twelfth Session
Agenda item 5
ORAL INTERVENTION BY SHARON VENNE ON BEHALF
OF THE LUBICON CREE
Since the last Working Group, there has been a change in
government within the state of Canada. With the change, the
Lubicon people looked forward to working with the new
Liberal Government under the Prime Ministership of Jean
Chretien. Prior to becoming the Prime Minister, Chretien
had made some very positive statements concerning the
Lubicon case. But, alas, initial positive feelings are
giving way to the reality of the situation. On the 11th of
July, 1994, Indian Affairs Minister Ron Irwin responded to a
letter sent by Chief Bernard Ominayak. The letter came four
months after a meeting in the course of which the Minister
requested that the Lubicon people outline their position for
restarting negotiations. The speedy response gives a whole
new meaning to Chretien's motto "support a swift
resolution". Irwin's response to the Chiefs letter added a
whole new dimension to the term: negotiation. (For the
record, we are attaching Jean Chretien's, Irwin's and Chief
Ominayak's letters to this submission.)
The Chiefs letter was completely and deceitfully
misrepresented. The Lubicon have never been prepared to
discuss with the Government a settlement of the Lubicon case
based upon the notion that the Lubicon would extinguish
their land rights. The Government of Canada may have been
able to get other Indigenous Peoples to agree to the
Canadian government's extinguishment policy. This has never
been the case with the Lubicon. As Chief Bernard Ominayak
stated in his letter dated 15 July, 1994:
<>
The Lubicon Cree have been waiting for over fifty years for
the Government of Canada to come to the table in open, fair
and honest negotiations. Over time, the Lubicon discovered
that the Canadian Government is not interested in open, fair
and honest negotiations. Instead, the Government is trying
to browbeat and intimidate the Lubicon into accepting a
settlement on the basis of conditions which are
unacceptable. To accept the government's policy of
extinguishment of Aboriginal land rights as a pre-condition
for settlement would mean denying the heritage of the
children and grandchildren.
The fact that certain governments are attempting to
intimidate indigenous delegates confirms the legitimacy of
the claims voiced by these same delegates.
*****************
ATTACHMENTS
HOUSE OF COMMONS
CHAMBRE DES COMMUNES
CANADA
Leader of the Opposition
Chef de l'Opposition
Ottawa, Ontario
K1A 0A6
Dear Father Johnson:
Thank you for your letter and the copy of the report of
the Lubicon Settlement Commission of Review.
The Liberal Party understands your concern. We fully
recognize that the Lubicon have struggled for over fifty
years to secure a permanent land base and the means to
preserve their way of life. And we believe - with
negotiations suspended since 1989 - that the government has
reneged on its fiduciary responsibility to the Lubicon
People.
Time is wasting. As a start, we believe the government
should proceed with recommendation number five of the
Settlement Commission report to hold all royalties in trust
and withhold leases and permits on traditional Lubicon lands
- unless approved by the Lubicon. Moreover, future
negotiations should reflect the intent of recommendation
number eight, asserting that the extinguishment of
Aboriginal rights must not be a condition for a settlement -
a position consistent with Liberal policy.
Ethel Blondin-Andrew, Liberal Critic for Aboriginal
Affairs, has urged the government to renew negotiations with
the Lubicon and resolve this issue, once and for all. While
it is doubtful whether the current government possesses the
will to do so, you can be assured that Liberals will
continue to press the Conservatives to respond to the
recommendations of the Settlement Commission and resume
negotiations.
We support the swift resolution of all claims, and
consider the Lubicon claim to be a priority. As Leader of
the Opposition, I appreciate the time you have taken to
write.
Sincerely,
Jean Chretien
Father Jacques Johnson
Co-Chair
Lubicon Settlement Commission of Review
10336 114th Street
Edmonton, Alberta
T5K 1S3
****************
Ministre des Affaires Minister of Indian Affairs
indiennes et du Nord canadien and Northern Development
JUL 11 1994
Chief Bernard Ominayak
Lubicon Lake Indian Nation
3536 - 106 Street
EDMONTON AB T6J 1A4
Dear Chief Ominayak:
Further to your letter of May 21, 1994 and my letter to you
of May 16, 1994 I am now in a position to respond to your
proposal on how to return to negotiations on your First
Nation's claim.
In your letter of February 28, 1994 you had proposed that
Canada appoint a negotiator who will report directly to me,
and who will have the authority and competence to
effectively handle a number of procedural and substantive
matters. You then listed the issues which would need to be
addressed, such as membership, reserve lands, community
facilities, commercial development, and others. While your
objective would be to negotiate a complete settlement
package before signing any agreement, you suggested in your
letter that agreements-in-principle (AIPs) may be possible
in some of those areas while work continues in others.
I am pleased to advise you that the federal government is
prepared to proceed largely on the basis you have proposed.
Rather than continue on the basis of previous offers, we
agree that a fresh start is needed.
I and the Minister of Justice, the Honourable Allan Rock,
have therefore been authorized to jointly appoint a federal
negotiator who will have responsibility for achieving AIPs
on as many as possible of the issues which arise in the
claim of your First Nation under Treaty No. 8 or for program
benefits. Both Mr. Rock and I have decided that the federal
negotiator should be a person from outside the Government of
Canada.
Where AIPs cannot be achieved, the federal negotiator will
attempt to scope out options for subsequent consideration by
the government. Where difficulties arise, the negotiator
will have the authority, subject to the agreement of your
First Nation and (where involved) the Province of Alberta,
and with the agreement of Mr. Rock and myself, to appoint a
mediator to assist the settlement process.
To the extent possible, each of the issues which arise in
negotiations will be directed to the appropriate processes
and officials within the federal government, but under the
overall supervision of the federal negotiator, for
consideration within existing authorities and associated
funding. For example, the determination of land quantum and
economic benefits owing under Treaty No. 8 can be addressed
in light of the Specific Claims Policy authority of the
government. Settlement of those two issues would, of course,
involve the province in the usual way.
The federal negotiator will oversee the negotiation process
with regard to federal participation in all aspects of the
claim. The federal negotiator would also have full authority
to work with the province on all issues which involve the
provincial governments and to represent Canada on the claim
with any other party.
While the negotiator will be authorized to have issues go to
mediation, Canada is not prepared at this time to make a
decision on the use of binding arbitration before we have
even begun negotiations, let alone attempt mediation if
necessary. The federal government will want to receive the
negotiator's recommendations on any outstanding issues
before considering whether it is appropriate to use special
dispute resolution measures of a binding nature.
From my review of the history of this claim, I have serious
concerns about the prospect of resolving questions about
continuing Aboriginal rights or any compensation based upon
that matter through negotiations. These are fundamental
legal issues that remain in dispute which in our view are
likely only to be resolved in the courts.
I would ask for your response to this letter at your
earliest convenience. Like you, I am very anxious to have
negotiations on this claim commence as soon as possible. My
colleagues in Cabinet and caucus share my strong desire to
establish a new and positive relationship with your First
Nation and to embark upon negotiations with a completely
fresh start in an environment conducive to a mutually
successful outcome. As a first step I would ask that you
contact Mr. Brad Morse, of my office, to discuss the kind of
person whom you feel could be an effective representative of
the Government of Canada in these negotiations.
Yours truly,
Ronald A. Irwin, P.C., M.P.
c.c. Honourable Allan Rock
******************
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
July 15, 1994
The Hon. Ron Irwin
Minister, Indian and Northern Affairs
Government of Canada
Ottawa, ONT K1A 0A6
Fax 613-953-4941
Dear Sir:
The Lubicon people would be pleased to discuss appointment
of a federal negotiator or anything else with you but not on
the terms proposed in your 7-11 letter. To proceed on the
basis of the terms proposed in your 7-11 letter would be to
deny the heritage of our children and grandchildren.
You indicate in your 7-11 letter that "the federal
government is prepared to proceed largely on the basis
(proposed by the Lubicons)". However you have in fact flatly
rejected all Lubicon proposals for re-starting talks --
including both those things which we discussed during our 2-
18 meeting in Little Buffalo and those things which we
outlined to you in our letter of 2-28.
First and foremost we have never been prepared to cede our
unextinguished aboriginal land rights over our traditional
Lubicon territory as a pre-condition of settlement talks.
Nor will we ever be prepared to cede our unextinguished
aboriginal land rights as a pre-condition of settlement
talks. All previous talks have been explicitly and by prior
agreement without prejudice to our unceded aboriginal land
rights -- although it is true that representatives of the
Federal Government have often later deceitfully claimed
otherwise. (While we may have little control over the lies
which representatives of both levels of Canadian Government
frequently tell about the nature of any agreements we make
with them we have absolutely no intention of allowing these
lies to define our position or to go unchallenged.)
You quote our 2-28 letter as listing "the issues which would
need to be addressed such as membership, reserve lands,
community facilities, commercial development and others" --
all matters pertaining directly to reserve construction. You
note rightly that our "objective would be to negotiate a
complete settlement package before signing any agreement"
but then begin to cant our position by saying that we
"suggested....that agreements-in-principle (AIPs) may be
possible in some of those areas while work continues in
others". By the end of your letter you have distorted beyond
recognition our clear and explicit position on these and
other matters.
You advise that you and Mr. Rock have "been authorized to
jointly appoint a federal negotiator WHO WILL HAVE
RESPONSIBILITY FOR ACHIEVING AIPS ON AS MANS AS POSSIBLE OF
THE ISSUES WHICH ARISE IN THE CLAIM OF YOUR FIRST NATION
UNDER TREATY NO. 8 OR FOR PROGRAM BENEFITS". You say "To the
extent possible, each of the issues which arise in
negotiations WILL BE DIRECTED TO THE APPROPRIATE PROCESSES
AND OFFICIALS WITHIN THE FEDERAL GOVERNMENT, but under the
overall supervision of the federal negotiator, FOR
CONSIDERATION WITHIN EXISTING AUTHORITIES AND ASSOCIATED
FUNDING". As an example of "existing authorities and
associated funding" you say "DETERMINATION OF LAND QUANTUM
AND ECONOMIC BENEFITS OWING UNDER TREATY NO. 8 CAN BE
ADDRESSED IN LIGHT OF THE SPECIFIC CLAIMS POLICY AUTHORITY
OF THE GOVERNMENT...(INVOLVING)...THE PROVINCE IN THE USUAL
WAY" (underlining added.)[CAPS]
That may be your counter-proposal to us as how to proceed
with negotiations but it sure as hell has nothing to do with
the proposals we made to you. We have never been prepared to
negotiate a settlement of our unextinguished aboriginal land
rights under the terms of a Treaty negotiated by others
nearly 100 years ago to which we were not a party and which
is known not to even accurately reflect what was agreed by
the Aboriginal Nations who did sign it. We have never agreed
to negotiate a settlement of our unextinguished aboriginal
land rights under the long since discredited "Specific
Claims Policy authority of the government" which even the
Chretien Government has publicly criticized as "unworkable",
"out of step with the legal and political evolution of
Aboriginal and treaty rights", offensive to Aboriginal
people and in need of a "major overhaul". And we certainly
did not propose to negotiate AIPs with "appropriate
(program) officials... for consideration within existing
authorities and associated funding (which we in fact did AS
A PRE-AGREED FIRST STEP with representatives of the Mulroney
Government nearly six years ago and see no good reason to
repeat since everybody involved knows very well the details
and cost of Lubicon settlement requirements and what can be
covered out of existing government programs and services).
Specifically what we proposed in our 2-28 letter is as
follows:
"It is our intention to negotiate a complete package
before signing any agreement. If some items (such as
financial compensation) take longer to finalize it is
our intention to achieve written agreement-in-principle
with related work-program and time-table prior to
signing any interim agreement (such as agreement on an
independent, binding three person tribunal). IN ANY
EVENT IT IS OUR INTENTION TO ACHIEVE AGREEMENT ON
RESERVE CONSTRUCTION COMPLETE INCLUDING COMMERCIAL AND
AGRICULTURAL DEVELOPMENT PRIOR TO SIGNING ANY INTERIM
AGREEMENT" (underlining added). [CAPS]
"On timing we believe that it's possible, desirable and
in fact essential to achieve agreement-in-principle
(with regard to an over-all master agreement) in a
matter of days and agreement-in-fact in a matter of
weeks. THE NECESSARY TECHNICAL WORK HAS LONG SINCE BEEN
COMPLETED AND REPEATEDLY REVIEWED IN DETAIL BY ALL OF
THE INVOLVED PARTIES. ALL THAT REMAINS IS UP-DATING THE
INVOLVED NUMBERS, RE-DRAWING THE BOUNDARIES FOR THE
WILDLIFE MANAGEMENT AND ENVIRONMENTAL PROTECTION
AGREEMENT WITH THE PROVINCE, PREPARING THE TIMETABLE
AND WORK-PROGRAM FOR ANY ITEMS WHICH MIGHT REQUIRE
EXTENDED DISCUSSION OF IMPLEMENTATION (SUCH AS PERHAPS
RELATED ENABLING LEGISLATION) AND ESTABLISHMENT OF AN
INDEPENDENT TRIBUNAL IN THE EVENT THAT THERE ARE ITEMS
WHICH CANNOT BE RESOLVED THROUGH NEGOTIATIONS"
(underlining added). [CAPS]
On how to deal with issues which cannot be satisfactorily
resolved through negotiation -- presumably again in context
the related questions of continuing aboriginal land rights
and compensation -- we proposed the independent, binding
three person tribunal originally suggested by then
Conservative Alberta Premier Don Getty and supported as a
fair and equitable way to deal with such things by ex-
Federal Justice Minister and B.C. Supreme Court Judge E.
Davie Fulton, the broad-based Lubicon Settlement Commission,
organized Labour in Canada, the Churches in Canada and
people across the country and around the world. (In this
regard it is well notable that Premier Getty originally
proposed this independent three person tribunal in order to
try and bridge an earlier impasse created precisely because
Canadian Government had proven unwilling and the Canadian
Courts had proven incapable of effectively redressing the
question of continuing Lubicon aboriginal land rights -- a
conclusion shared among others by the UN Human Rights
Committee after a three year inquiry into this very
problem.)
Instead of an independent, binding three person tribunal to
fairly and equitably resolve matters which cannot be
resolved through negotiations you propose to have the
federal negotiator "appoint a mediator to assist in the
settlement process" -- which is exactly the same proposal
made by ex-Mulroney Indian Affairs Minister Bill McKnight
and Mulroney-appointed federal negotiator Brian Malone in
the fall of 1987 when Mr. McKnight was also under
considerable political pressure to agree to some form of
independent dispute resolution after the all-party
Parliamentary Standing Committee on Aboriginal Affairs
unanimously supported a Lubicon proposal to reinvolve E.
Davie Fulton as an independent mediator responsible to the
Standing Committee instead of to the Government per se. You
indicate that "Canada is not prepared at this time to make a
decision on the use of binding arbitration before we have
even begun negotiations" -- which is the same kind of catch
22 proposition which we've been hearing for years from
people like Messrs. McKnight and Federal Justice Department
lawyer Ivan Whitehall in response to calls for some kind of
independent dispute resolution mechanism necessitated by
near across-the-boards failure to satisfactorily resolve
questions pertaining to Aboriginal rights through simple
negotiations between Aboriginal people and an
institutionally all-powerful Federal Government. You
indicate that "the federal government will want to receive
the negotiator's recommendations on any outstanding issues
before considering whether it is appropriate to use special
dispute resolution measures of a binding nature" -- which is
tantamount to one side in a two party dispute unilaterally
deciding whether and how to handle matters in dispute. And
you make clear your "serious concerns about the prospect of
resolving questions about continuing Aboriginal rights or
any compensation based upon that matter through
negotiations" indicating that "these are fundamental legal
issues that remain in dispute which are...likely only to be
resolved in the (Canadian) courts" -- which is of course
only yet another rendition of the familiar Mulroney
Government refrain "go to (the Canadian Courts where legal
gangsters like Whitehall will predictably employ procedural
means to ensure that you will never be able to achieve a
fair hearing) if you think you have any compensation coming"
for the systematic destruction of your traditional society
and the outright theft of your traditional lands and
resources. (The shameful history of official Canadian
Government abuse of the lawful rights of Aboriginal people
is in fact the reason for the UN Human Rights Committee
decision that the Lubicon people cannot achieve effective
legal or political redress within Canada -- and it is also
the reason why the independent, binding three person
tribunal is needed, proposed and so widely supported.)
Lastly you should know that the Grimshaw (reserve land)
Accord was not tied to membership numbers as is now being
deceitfully claimed in various forums by representatives of
the Alberta Provincial Government and echoed abroad by
representatives of the Chretien Federal Government --
something which we will shortly be addressing in other
forums ourselves. The Grimshaw (reserve land) Accord was
proposed by then Alberta Premier Don Getty specifically to
get around the long-standing disagreement between the
Lubicons and the Alberta Government over membership numbers
-- or at least over the number of Lubicons with continuing
aboriginal land rights.
Premier Getty proposed that he and I instead agree on an
amount of reserve land which as honourable men we could both
agree was "fair" -- this was in fact the basis of the
Grimshaw (reserve land) Accord. Contrary to the deliberately
deceitful claims now being made by current Alberta
Government representatives who clearly don't share Premier
Getty's commitment to personal honour our agreement with
Premier Getty about releases pertained only to fully
absolving the Provincial Government of its constitutional
responsibility for transferring land back to Federal
jurisdiction for purposes of establishing a Lubicon reserve
-- not to determining the size of that reserve.
Subsequent to the Grimshaw Accord of course both levels of
Canadian Government participated in a coordinated and well
documented effort to dismantle the Lubicon society by
creating two new Bands -- one on either side of the
traditional Lubicon community of Little Buffalo Lake -- and
then seeking to bribe and/or variously entice members of the
Lubicon society to join one or other of these two new Bands.
While this despicable, racist and overtly colonialistic
effort on the part of both levels of Canadian Government to
dismantle the Lubicon society in order to deny us our lawful
rights was ultimately unsuccessful it did again further
complicate the already complicated Lubicon membership
situation.
Given this history, the need to fix membership numbers for
the purpose of making certain settlement calculations in
areas like housing, the fact that settlement itself will
clearly still further impact those membership numbers and
the well established legal principle that such disreputable
activity as creation of the Woodland Cree Band to try and
deny the Lubicon people our lawful rights should not be
rewarded, we propose to fix membership for the purpose of
settlement negotiations at the last time that there was
agreement all around on membership numbers; namely, at the
time of the Grimshaw Accord. We further propose to then make
any necessary adjustments in membership-related settlement
items like housing in relation to actual membership numbers
determined in process over time. (The inclusion of a
mechanism to take into account the impact of any membership
fluctuations on related capital construction items during
the reserve construction period has been part of the
discussions since negotiations in December of 1988 and
should be included in a final settlement agreement in any
case.)
Like you the Lubicon people are very anxious to have
mutually satisfactory negotiation of our unceded Aboriginal
land rights commence as soon as possible. We too have a
strong desire to establish a new and positive relationship
between your people and our people. However neither of these
objectives are conceivable based on the terms outlined in
your 7-11 letter. If your 7-11 letter doesn't accurately
reflect the position of your Government on the issues we are
prepared to talk further. However I repeat we are not
prepared to discuss appointment of a Federal negotiator or
anything else on the terms proposed in your 7-11 letter.
Sincerely,
Chief Bernard Ominayak
Lubicon Lake Indian Nation
cc: Jean Chretien
Joyce Fairbairn
Ovide Mercredi
Jacques Johnson
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