Federal Government Negotiator Playing Games


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



December 01, 1991



On November 28th Federal Lubicon negotiator Brian Malone issued the attached press statement denying that the Federal Government is refusing to negotiate a fair settlement of Lubicon land rights, reiterating Federal Government claims that the UN Human Rights Committee supported the Federal Government's so-called "take-it-or-leave-it" offer and claiming that he'd "personally held six meetings with Band lawyer James O'Reilly to canvass means to re-open negotiations". "On the last occasion", Malone claimed, "(O'Reilly) advised that his instructions from Chief Ominayak were to the effect that he was not to meet with (Malone) further". "If these instructions have changed", Malone said, "I urge Mr. O'Reilly to contact me immediately".



What actually happened is as follows:



The UN Human Rights Committee decision was announced on May 3, 1990.



At the time the UN Human Rights Committee decision was announced there'd been no negotiations with the Federal Government since the tabling of the "take-it-or-leave-it" offer in January of 1989. Negotiations with the Province had been meandering non-productively since the previous August following an agreement between Chief Ominayak and Premier Getty to negotiate a draft settlement agreement which both the Lubicons and the Province could support. Provincial negotiators had been advised that the Lubicon negotiating team was unilaterally preparing a draft settlement agreement to try and pin down specific areas of agreement and non-agreement between the Province and the Lubicons. And both levels of Canadian Government were responding to news that the Lubicons were working on a detailed draft settlement agreement by proposing to talk instead about draft "agreements-in-principle" -- clearly in an effort to try and push the process backwards towards discussion of non-specific, non-productive generalities.



On May 24, 1990, Malone phoned O'Reilly and asked for a meeting. O'Reilly told Malone that Lubicon Chief Ominayak wasn't "too enthusiastic" about one-on-one meetings, given the history of Federal representatives later misrepresenting what occurred at such meetings, but that "it would be alright if Malone stopped by".



Malone typically wasn't alone when he arrived at O'Reilly's office but was accompanied by Federal Government bureaucrat Bob Coulter. Malone presented O'Reilly with a draft "agreement-in-principle" which was basically a point form summary of the Federal Government's "take-it-or-leave-it" offer. For the next day and one-half O'Reilly discussed the Federal Government's draft "agreement-in-principle" with Malone and Coulter, as well as possible means of arbitrating areas of disagreement. Malone told O'Reilly that "the Feds are now prepared to reconsider arbitration". (This meeting is presumably the first of the "personally held meetings" with O'Reilly to which Malone refers in his November 28th press release.)



The Lubicons tabled their draft settlement agreement with the Province on June 1st. Provincial Government negotiators asked for a couple of weeks to study the Lubicon draft settlement agreement before discussing it.



On June 19th Provincial Government representatives asked for another week before discussing the Lubicon draft settlement agreement. "What's taking so long", Provincial negotiators said, "is that we're trying to develop an alternate draft settlement agreement".



Also on June 19th Malone phoned O'Reilly and asked for a copy of the Lubicon draft settlement agreement so that the Feds could "participate in development of a joint counter proposal (with the Province)". O'Reilly told Malone that the Lubicons wanted to first try and identify areas of agreement and disagreement with the Province -- as per the Chief's agreement with the Premier.



Lubicon and Provincial Government negotiators then met on June 26th to discuss the Lubicon draft settlement agreement and the "alternate draft agreement" which Provincial negotiators had supposedly been working to develop. There was no discussion of the Lubicon draft settlement agreement, however, and no "alternate draft agreement" was ever produced by Provincial negotiators.



Instead Provincial negotiators simply advised Lubicon negotiators that "the parties are too far apart on the issues and we therefore have to look at some kind of mediation or arbitration of outstanding issues". They asked if the Lubicon people would be prepared to once again support the kind of independent three person tribunal originally proposed by Alberta Premier Getty in March of 1988, consisting of one person selected by the Lubicons, one person selected by the Government and a third person selected by the first two.



Lubicon negotiators indicated willingness to consider any sincere arbitration proposal but also told Provincial negotiators that discussion of an arbitration proposal was a step backward when there was a detailed draft settlement agreement on the table. A more productive approach, Lubicon negotiators said, would be for Provincial negotiators to make detailed counter proposals. Making detailed counter proposals, Lubicon negotiators pointed out, would also be more in line with the agreement between the Chief and the Premier to negotiate a draft settlement agreement which both the Province and the Lubicons could support.



Moreover, Lubicon negotiators pointed out, the Federal Government would have to be involved in any discussion of arbitration proposals and Federal representatives had in the past only used discussion of arbitration proposals to buy time and avoid dealing with the issues -- always in the end refusing to agree on necessary arbitration terms and conditions. They reminded Provincial negotiators that the Federal Government had earlier rejected the three person Getty tribunal, proposing instead the selection of "one mutually agreed mediator". They reminded Provincial negotiators that Federal officials then used agreement to select "one mutually agreed mediator" to block proposed mediation by systematically rejecting the names of suggested mediators, including even those whose names had originally been put forward by Federal officials. Under these circumstances, Lubicon negotiators said, the Lubicon people now had little choice but to conclude that efforts to achieve a negotiated settlement had failed, and that they must therefore once again start making preparations to protect vital Lubicon interests on the ground -- at least unless and/or until full agreement on the details of a mutually acceptable arbitration process had been achieved.



Thirdly, Lubicon negotiators said, after years of deliberate delay on the part of both levels of Canadian Government, during which time multi-billion dollar development activity had proceeded apace and essential Lubicon interests had been irreparably damaged, any such arbitration would now have to be conducted within a reasonable, pre-agreed time frame; would have to be binding; would have to be final and couldn't be subject to deliberately endless, fruitless appeal through the Canadian courts.



And finally, Lubicon negotiators said, in order to decide issues like compensation, any such arbitration would have to first determine whether the Lubicon people retain unextinguished aboriginal title to some 4,000 square miles of traditional Lubicon land, as the Lubicon people maintain, or only have outstanding treaty rights over some 100 square miles of reserve land as both levels of Canadian Government maintain.



Provincial negotiators asked for another couple of weeks to discuss the possibility of an independent three person tribunal with Provincial Cabinet and with representatives of the Federal Government.



On July 13th Provincial negotiator John McCarthy phoned O'Reilly and told O'Reilly that Malone had "rejected the whole process of arbitration".



On August 2nd McCarthy phoned O'Reilly again, claiming that he'd "earlier got (his) wires crossed". He said that "the Feds are prepared to consider arbitration". However, he said, "instead of a three person tribunal, the Feds want only one, mutually agreed mediator". Also, he said, "the Feds will only agree to arbitration if the Province is involved and the Province doesn't want to be involved in arbitration".



On September 4th McCarthy phoned O'Reilly a third time. This time McCarthy told O'Reilly that he'd gone back and "got new instructions from Alberta". He said that the Provincial Government was now prepared to "reconsider" its position that arbitration only be between the Feds and the Lubicons. He said that he'd been asked "to work out suitable terms of reference".



McCarthy told O'Reilly that he'd therefore contacted Malone and proposed a meeting of the three negotiating teams to discuss suitable terms of reference. He said that "Malone countered with a meeting of the legal people only". He asked if O'Reilly could meet with "the legal people only" on September 10th.



O'Reilly told McCarthy that he'd have to consult with the Lubicon people about the proposed meeting and get back to McCarthy. As earlier indicated, the Lubicon people don't like limiting participation in meetings especially with representatives of the Canadian Federal Government because Federal Government representatives have in the past later deliberately misrepresented what transpired at those meetings.



O'Reilly then checked with Lubicon representatives who flatly opposed a meeting of "the legal people only". O'Reilly was however unable to get back to McCarthy about the proposed meeting and consequently assumed that there'd be no meeting.



On September 10th a half-a-dozen members of the Federal and Provincial negotiating teams -- including both lawyers and non-lawyers -- appeared at O'Reilly's office for the proposed meeting. They appeared at O'Reilly's office without benefit of the meeting being confirmed because they had interests to pursue and calculated rightly that O'Reilly would not refuse to meet them if they just appeared at his office. Demanding that participation in the meeting be limited and then ignoring his own meeting preconditions is standard practice for Malone, who regularly uses the tactic to try and load the meeting in his favour and counts on people essentially not doing anything about it. (This meeting likely accounts for the second of the so-called "personally held meetings" with O'Reilly to which Malone refers in his November 28th press release.)



The upshot of the September 10th meeting was that Federal Justice Department lawyer Ivan Whitehall told O'Reilly that he was "prepared to recommend arbitration" but only in the form of "one mutually agreed person", and Provincial negotiator McCarthy told O'Reilly that "the Province is prepared to put into the hands of a third person whether the (take-it-or-leave-it) offer is fair or not". O'Reilly responded by asking Federal and Provincial Government representatives to put their arbitration proposals in writing.



On September 21st McCarthy sent O'Reilly a confidential "memorandum of intent" essentially proposing that the Lubicons accept unacceptable Federal and Provincial proposals and sign releases on everything but compensation which would then be determined by a single, mutually agreed arbitrator under the terms of the Commercial Arbitration Act. The McCarthy proposal was thus in fact little different than the Federal Government's so-called "take-it-or-leave-it" offer excepting only that compensation would be determined by a single, mutually agreed arbitrator under the Commercial Arbitration Act instead of the Canadian Courts.



Describing the McCarthy proposal as "quite different" than he'd expected pursuant to the September 10th meeting, O'Reilly referred the McCarthy proposal to Chief Ominayak. Chief Ominayak asked O'Reilly to have McCarthy phone him directly for reaction to McCarthy's so-called arbitration proposal.



On October 10th O'Reilly asked McCarthy to phone Chief Ominayak directly for reaction to McCarthy's so-called "arbitration proposal". McCarthy phoned Chief Ominayak. Chief Ominayak asked McCarthy for a reaction to the Lubicon draft settlement agreement.



McCarthy told Chief Ominayak that "the parties are too far apart on the numbers and consequently have to go to arbitration". Chief Ominayak told McCarthy there'd been on-again off-again talk about arbitration for two years which had gone nowhere and was going nowhere. The Chief repeated the Lubicon request for a detailed reaction to the Lubicon draft settlement agreement so that it would at least be possible to ascertain specific areas of agreement and disagreement.



McCarthy agreed to discuss the Lubicon draft settlement agreement with Malone and get back to the Chief with a detailed counter offer. To date no detailed counter offer has been received.



On October 22nd Malone "dropped by" O'Reilly's Montreal office and told O'Reilly that "the problem was the Lubicon position on aboriginal rights". Malone indicated that the Federal Government wasn't prepared to submit the key issue of the nature of Lubicon land rights to an independent arbitrator. (This informal visit by Malone to O'Reilly's office is presumably the third of the "personally held meetings" to which Malone refers in his November 28th press release.)



At the end of October Daishowa-related companies started clear-cutting unceded Lubicon territory. The Lubicons reacted by announcing that resource exploitation companies operating in the unceded Lubicon territory without Lubicon agreement would "be subject to removal at any time without further notice". In addition Chief Ominayak instructed O'Reilly to advise McCarthy that there'd be no further discussions unless Provincially-directed logging activity was stopped.



O'Reilly met with the so-called legal committee one last time in Calgary on November 8, 1990. Malone advised O'Reilly that the Feds were only prepared to have an independent arbitrator consider compensation for "breach of fiduciary responsibility under Treaty 8 related to the delay in setting aside reserve lands in 1940". What this would of course mean is that the Lubicon people would have to cede the aboriginal land rights upon which the bulk of their right to compensation depends before the question of compensation owing could even be considered. As per Chief Ominayak's instructions, O'Reilly told McCarthy that there'd be no further discussions until logging activity was stopped.



This last or fourth meeting on November 8th is likely the meeting during which Malone claims in his November 28th press release that O'Reilly advised Malone that "his instructions from Chief Ominayak were to the effect that he was not to meet with (Malone) further". How these four above indicated sessions variously involving Malone can be described as Malone "personally (holding) six meetings with Lubicon lawyer James O'Reilly to canvas means to re-open negotiations" isn't clear. Presumably Malone is exercising a little creative licence and perhaps counting the morning and afternoon sessions in an all day meeting as two meetings.


STATEMENT BY FEDERAL LUBICON LAKE LAND CLAIM NEGOTIATOR BRIAN MALONE, Q.C.



CALGARY (November 28, 1991) -- "As Canada's negotiator on the Lubicon Lake Indian land claim, I want to correct a statement made by Lubicon Lake Chief Ominayak on November 28, 1991 to the effect that the federal government is not prepared to negotiate a fair settlement. The fact is that, following the breakdown of talks in January 1989, the United Nations Human Rights Committee observed that Canada had made an offer to the Band "to rectify the situation by a remedy that the Committee deems appropriate". That remedy included land, reserve infrastructure and socio-economic funds for 450 people.



"Since that decision, I have personally held six meetings with Band lawyer James O'Reilly to canvas means to re-open negotiations. On the last occasion I was advised that his instructions from Chief Ominayak were to the effect that he was not to meet with me further. If these instructions have changed, I urge Mr. O'Reilly to contact me immediately."

-30-

Ref.: Bob Coulter

DIAND

(819) 994-1241