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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