A Helping Hand The feds offered the Lubicons a lesson in nationbuilding: do what we want, or we'll find someone who will
When the Lubicons rejected the feds' "take-it-or-leave-it" settlement offer, Ottawa knew just what to do
by John Goddard
Confession is good for the soul, and acts of apology can be oddly soothing. No matter how bad the misdeed, saying sorry helps people feel good about themselves, which perhaps explains why the current airing of wrongs against native people engenders emotions of national self-approval rather than of agony. How bad can a country be where the clergy shows contrition for abuse in residential schools, where the Crown acknowledges breaches of fiduciary obligation, and where the prime minister appoints a royal commission on aboriginal affairs and tells native people, "We must listen carefully and respectfully to your voices"? The fessing up tends to mask an important truth, however: the colonial pattern that gave rise to injustice to natives in the first place continues undiminished. Massive resource development is still forcing native hunters and trappers from the land to live dependent, welfare lives in government-built settlements. And whether for oil, pulpwood, hydroelectricity, or airspace to test lowflying warplanes, federal and provincial governments are still going to extremes to subvert aboriginal land rights.
Nowhere is aggression against native interests more obvious than in northcentral Alberta, the rolling muskeg-and-bush country north of Lesser Slave Lake. The region is home to the Lubicon Lake Cree, about 500 shy but determined people who until 1979 lived mostly from the bush. Then oil development began. Without a single environmental or social-impact study, more than a hundred petroleum companies entered the previously isolated territory, converting it into the most active exploration and drilling field in the country. Over the next five years, crews drilled more than 400 wells within a twenty-four-kilometre radius of the Lubicon community, Little Buffalo. Wagon routes became roads busy with tractor-trailer units. "No Trespassing" signs went up. Bulldozers buried traps and blocked animal trails. Fires raged out of control: in 1980 alone, fire destroyed as much of the Lubicon hunting area as in the previous twenty years. Animal numbers plummeted. Soon, the oil companies were producing revenues of $1.3-million a day, while the Lubicon economy was for all practical purposes destroyed.
In response, Lubicon chief Bernard Ominayak asked that a reserve be established for the band, and when the Alberta government blocked such discussions he launched what he called "a public-education campaign." It began with church basement meetings, progressed to a boycott call against the 1988 Calgary Olympics, and climaxed later that year when band members and their supporters seized control of all oil wells within traditional Lubicon territory, a siege that ended with Alberta premier Don Getty's accepting virtually the entire Lubicon position.
In the public mind, the issue ended there. Federal authorities had to approve the agreement, however, and address issues of exclusive federal jurisdiction. Talks began in Ottawa. Progress was made. But in January, 1989, federal negotiators tabled what they called "a final, take-it-or-leave-it settlement offer." It proposed that a reserve and new community site be established at a cost of $34 million for roads, water, sewers, electricity, a school, and houses for up to 450 people. But the offer ignored the band's proposals to create a new local economy based on farming, small businesses. and oil-industry jobs to replace a bush economy destroyed by $5 billion worth of oil development. It also failed to address the band's claims to compensation in nine categories, claims largely endorsed by an earlier federal inquiry whose findings the government had at first tried to suppress.
Ominayak rejected the so-called final offer, a decision ratified unanimously by band members a week later. "We don't want to just build a community where people are going to have nice houses but remain on welfare," Ominayak said.
The federal people called the band's position extreme. The demand for economic aid and compensation was based on "greed not need,' they said, and refused to negotiate further - an attitude shocking to people who view Canadian society as equitable, but consistent with the colonial pattern of destroying native peoples as viable, self-sufficient, aboriginal communities.
The Government still needed a land settlement, however. The World Council of Churches had warned of "genocidal consequences" if oil work continued without an agreement. The United Nations Human Rights Committee, reviewing the matter at the band's request, was pressing federal authorities to explain themselves. Oil companies also wanted the dispute resolved. as did the Daishowa Paper Manufacturing Co. Ltd. of Japan, which had purchased timber rights to virtually the entire traditional Lubicon territory and planned to start logging in late 1991.
In response, federal authorities sought to impose the final offer against the Lubicon people's will. Almost immediately after talks ended in Ottawa, the team that had tabled the offer was reassigned to somehow implement it. The mission was led by Brian Malone, a Calgary lawyer on contract as chief federal negotiator. Working with him were: Bob Coulter, an Indian Affairs functionary in Ottawa; Fred Jobin. a senior Indian Affairs official in Edinonton; and Ken Colby, a Calgary media consultant on contract as federal spokesperson. Ivan Whitehall, a justice department lawyer, offered legal advice.
Sometimes the team's moves were hard to follow, but they began with a call to Henry Laboucan. a Lubicon member living at Lesser Slave Lake, apart from the rest of the band. During the Ottawa talks, Laboucan had tried to contact Malone to request something called "land in severalty," an obscure treaty option that allowed a person to take up reserve land elsewhere than on a reserve. At first the request was ignored. Ottawa opposed land in severalty and was fighting a number of such claims in court. "There will be no land in severalty," Whitehall, the federal lawyer, had told Lubicon negotiators. Two weeks after negotiations ended, however, federal policy appeared to change abruptly. On February 10, 1989, Malone and Jobin flew north to discuss land in severalty with Henry Laboucan. How serious the federal people were about helping Laboucan cannot be established. But their focus was to identify Lubicon members whose interests differed from the rest of the band's, then get that group working towards acceptance of the final offer. The meeting took place in High Prairie, near Lesser Slave Lake. Laboucan arrived with seven other native people, presenting them as members "not really excited" about Ominayak's leadership , and interested in taking land in severaly. When Malone questioned the seven, however, he found that only two were recognized by Ottawa as Indians. and none was on the Lubicon band list of 506 people approved by the federal players during negotiations.
Malone ploughed on. In a report to superiors, he said that Jobin gave the group information about "the registration process to become a status Indian, "and that discussions had taken place as to "the rights of qualified individuals to become [Lubicon] band members." The group was also advised, Malone wrote to Ottawa, that only after the Lubicon band signed the final offer would severalty claims be considered. Put simply, the severalty group had an interest in seeing Ominayak sign the offer. To what extent Malone spoke about organizing dissent against Ominayak is not clear; but in his report he expressed confidence about moving federal objectives forward. "It was obvious," Malone wrote, "that there may be a large number of individuals living at Little Buffalo or elsewhere that would want to take land in severalty, and that Henry Laboucan would most probably be acting as a focal point in co-ordinating these dissenting interests."
Two weeks later, two people from the meeting wrote to Indian Affairs minister Pierre Cadieux. Melvin Laboucan (a distant relation of Henry's) and Roy Letendre, both Little Buffalo residents but not band members, said they represented 182 individuals who wanted "severalty from the Lubicon band." They used the word "severalty" as though it meant "severance" or "separation." Attached to the letter was a list of names referred to as petitioners, but all the names were in Melvin Laboucan's handwriting. "We are more than willing to settle for what the government thinks is fair," the letter said.
No copy of the petition surfaced publicly for weeks, but the federal spokesperson, Ken Colby, gave dozens of interviews about it. He suggested the Lubicon band was divided. "There appears to be a faction in the community saying, ‘We want to get on with our lives here, we think the offer is reasonable and fair, we think the band ought to be pursuing it and if they're not, can we pursue it?'" He also hinted at Ominayak's possible overthrow by leaders willing to sign the final offer. "The Lubicon election is scheduled for the fall, and if these guys follow through they could have a tremendous impact on this community," Colby said.
On April 17, 1989, Cadieux again sent Malone and Jobin to High Prairie. Again they met a group of eight native people led by Henry Laboucan, but this time Malone dropped Henry from the group. Malone said the government would pay a lawyer to help people claim "severalty land" in Lubicon territory only, not at Lesser Slave Lake where Henry was claiming his. When the meeting ended, Malone invited Melvin Laboucan of Little Buffalo, and Joe P. Whitehead of Cadotte Lake, twenty kilometres east of the Lubicon community, to fly with him to Edmonton. Another Calgary lawyer, Bob Young, was waiting for them by prearrangement. Young agreed to represent the group. Indian Affairs undertook to pay his fees and expenses.
In response to the federal moves, Chief Ominayak invited rivals to show themselves, and called an election for the end of May, 1989. For the next six weeks federal authorities scrambled to get "dissidents" registered as Lubicon Indians eligible to vote. Bob Young flew to Peace River half a dozen times. Bob Coulter flew there twice from Ottawa with employees from the Indian Registrar's office. But as voting day approached, it became clear that the group was in no position to challenge Ominayak. Asked how many group members could be considered Lubicon Indians, Coulter replied, "Substantially more than twenty." Of the others, he said, some belonged to the Bigstone band to the east, some to the Whitefish band to the south, and there were "a lot who were just native people living in the area."
Federal authorities switched tactics. Two days after an overflow crowd of Lubicon members re-elected Ominayak unanimously, Bob Young flew to Ottawa with the earlier petitioners, Melvin Laboucan and Roy Letendre. They met Don Goodwin, the assistant deputy minister of lands, revenues, and trusts at Indian Affairs. Coulter and Colby were also present, as Young formally asked that his clients be granted status as a separate band with its own reserve.
On August 28, 1989 - eight months after negotiations ended in Ottawa - Indian Affairs minister Cadieux constituted the new group an official band, a vehicle designed for laying claim to Lubicon territory and signing an equivalent of the final offer. The Woodland Cree, Cadieux called the group, using the generic term for the Cree of the northern woodlands. Not since the early treaty days had a band been formally recognized so quickly - within twelve weeks of Young's application, and ahead of about seventy aboriginal societies who had been waiting for up to fifty years for band status. Woodland members newly registered as Indians had also jumped queue on thousands of native people waiting to regain Indian status lost through marriage. Registration can often take years, some of Young's clients were processed in a week.
Asked how the government could bring the new band into existence, Colby cited a little-known clause of the Indian Act called Section 17. It gives the Indian Affairs minister power to divide or amalgamate bands at will. "The Minister may, whenever he considers it desirable, constitute new Bands and establish new Band Lists... if requested to do so by persons proposing to form the new Bands," the section says. and "no protest may be made."
Who the Woodland members were remained a mystery. The band list was kept secret. Even the number of members was kept secret. "In excess of three hundred," said Colby. "Three hundred and fifty," said Young. A so-called "initial" list approved by the minister named only 110 people, however. Sixty-three of them were said to be former Lubicon Indians. The others were said to be former members of bands scattered throughout northern Alberta. Now all were members of the Woodland Cree: an amalgam sharing few close family ties, holding few common traditions, and occupying no single hunting-and-trapping territory. For the next several months, no Woodland member came forward to speak on the group's behalf nor could members agree immediately on a chief, although they did manage to choose four representatives to sit with Bob Young at negotiations with Brian Malone.
Four days after the band's creation, the government of Canada rewrote history in a submission to the UN Human Rights Committee. Instead of saying that Henry Laboucan had asked for land in severalty during the Ottawa negotiations in December, 1988, an anonymous representative stated that 350 native people had come forward during the talks to request separate band status. "In December 1988," the submission reads, "Canada was made aware of a new group within the community, who sought to resolve the rights of its members under Treaty 8, independent of the Lubicon Lake Band. This group, comprised of approximately 350 native people, sought recognition from the Government as a new band."
One year later, Woodland representatives accepted an offer from Ottawa resembling the final offer of the Lubicon negotiations - a reserve and new community for the 700 people who federal officials were now saying belonged to the Woodland group. In its detail, however, the Woodland offer was less than it might seem. Only half the members, 355 people, would be counted for land purposes, which by a treaty formula meant a reserve of seventy-one square miles. Of that area, sixteen square miles were to be sold to the federal government for fifty dollars an acre, leaving a reserve of fifty-five square miles. Normally, subsurface resources would be included, but the agreement specified that the two known oil deposits in the area were to remain exclusively with the oil companies. Another provision said that housing and infrastructure would be provided at a cost of $29-million for 450 people. How the other 250 people were to be housed and serviced was not stated. Trust funds from both federal and Alberta governments totalling $ 19-million would be established for "economic development," but no plans for such development were specified. One clause of a supporting document to the agreement stated: "There will be no severalty.
A plebiscite to ratify the new band's agreement was held last July, and the way it was conducted showed to what extremes the federal government is prepared to go to impose its will on native people. The running of the vote was officially delegated to senior people in the Edmonton office of Indian Affairs, and at the outset strict formalities were observed. Advance notice was disseminated as required by the Indian Act. Voters' lists were posted and endorsed. At the Woodland band office established in Cadotte, an aluminum box of the type used in federal elections was placed on a large table for the start of the vote, and behind the table sat Roger Cardinal, an Indian Affairs official serving as chief polling officer. With him were a second Indian Affairs employee and two band members. The first voter arrived. He gave his name, took a ballot, walked behind a cardboard screen to mark the ballot secretly, and dropped the marked ballot into the box. Then, in an act that would violate voting procedures anywhere else in the free world, the band secretary made out a cheque to the voter for fifty dollars. "For travel expenses," band leaders said.
At all four polling stations, band members were paid fifty dollars each, and the band leaders had promised each member $ 1,000 as part of the land settlement if the majority voted "yes." There were other irregularities. The number of eligible voters steadily rose during the two-day plebiscite: to 295 from 268 by the end of the first day, to 309 by the end of the second. When the ballots were counted, the chief polling officer announced an eighty-seven per cent voter turnout, ratifying the federal offer by a whopping 98.5 per cent. In Ottawa, Bob Coulter said he was "not an expert on the administration of referendums" but was satisfied the department had run the vote properly.
A few days later, word went around that the payments of first fifty dollars and then $1,000 would be deducted from welfare cheques. Slowly, the significance of the arrangement began to sink in. The payments totalled more than $700,000 for 700 people, but an estimated ninety per cent of the people were on welfare, which meant that the money they thought they were getting to settle their aboriginal birthright was going back to the government in welfare savings. "The fairness lies in that [the Woodland Cree] are being treated the same as everybody else in Canada," said Susan Williams, director-general of social development for Indian Affairs. "If you come into cash through earnings or whatever, you don't qualify for the same level of social assistance."
Two days after the vote, Brian Malone told a law symposium in Cambridge, England, that "talks have just begun with representatives... at Loon Lake, located about 40 miles northeast of Lubicon Lake." For fifty years, requests from the Loon Lake people to be recognized as status Indians with their own reserve had gone utterly ignored in Ottawa; now Malone was discussing a Woodland-type offer with them. Ward Mallabone, a Calgary lawyer who had worked with Bob Young on Woodland, had been hired to represent the Loon group, paid through arrangements made by Indian Affairs. Meetings had been held, a petition had been worked up for the minister, and Lubicon band members living at Loon Lake were under pressure to join.
By the fall of 1991, federal objectives appeared close to being achieved. The new Woodland band in Lubicon territory had accepted a version of the final offer, and the Loon Lake group nearby was being helped to do the same. The UN Human Rights Committee had accepted Ottawa's account of events, ruling ambiguously on the case and letting the government off the hook. The latest Indian Affairs minister, Tom Siddon, was presenting the Woodland deal to the public as generous - "a clear indication of the federal government's commitment to honour its obligations," he said. Lubicon society was being torn apart. About 110 members had defected to Woodland, another twenty-five to Loon Lake, seriously reducing die Lubicon people's ability to carry their case forward. Holdout Lubicon members warned that defections would compromise native rights throughout the region. But they understood that joining a new group seemed logical to some people in a world where the law is arbitrary, and where short-term gain is the only gain possible.