Transcript of Lubicon Settlement Commission of Review Public Hearing, June 02, 1992
Commission Members Present:
Commission Members Absent:
Lubicon Representatives Present:
Chief Bernard Ominayak
Community Members John Simon Auger and Walter Whitehead
Elders Edward Laboucan, Josephine Laboucan, Bella Ominayak and George Ominayak
Advisors Fred Lennarson and Bob Sachs
Father Jacques Johnson: We are beginning our second day of the Lubicon Settlement Commission of Review hearings. I'd like to welcome all of you here again today. We're very grateful that you came in even greater numbers than yesterday, that the youth component has been added. We hope that it'll be a good day even though it's raining outside. I think it's good for the land and it's nice and warm inside and dry. I thought of sharing with you a very old prayer, it's probably around 1,400 years old and I think it's a beautiful prayer that sometimes we use at meetings.
We stand before you God conscious of our sinfulness but aware that we gather in Your name. Come to us. Remain with us and enlighten our hearts. Give us light and strength to know You well. To make it our own and to live it in our lives. Guide us by Your wisdom. Support us by Your power, for You are God. You desire justice for all. Enable us to uphold the rights of others. Do not allow us to be misled by ignorance or corrupt us by fear or favor. Unite us to Yourself in the bond of love and keep us faithful to all that is true. As we gather in Your name may we temper justice with love so that all decisions may be pleasing to You and earn the reward promised to good and faithful servants. Amen.
Jennifer Klimek: I'd like to welcome the Lubicon people and the audience here today. What I'd like to start out with is asking if the Lubicon people or any of the other representatives have anything to add to anything that was said yesterday that they want to clarify on or elaborate on or anything?
Bernard Ominayak: I guess I'd like to start off by thanking you people for the welcome and also Father Johnson for the prayer that he said. As far as going back to yesterday and what was discussed, I don't think we at this point have anything further to add. But I guess basically we welcome any kind of question that may arise from yesterday from the Commission. I'm sure we'll be going back to some of the items that were discussed yesterday through the other areas that we'll be looking at this morning.
Jennifer Klimek: Thank you. Jacques outlined sort of the agenda we had today and we would like to point out if there's anything you want to add in addition to that, by all means, let us know because we certainly want to hear your position.
We had anticipated that we'd probably go to lunch, and unless there was anything that needed to be done after lunch, we'd probably adjourn then. We'll see how it goes. We'd like to start out with the compensation issue and John MacMillan would like to address that issue.
John MacMillan: I would like the Commission to understand the quality of the people we're talking to here. Bernard you talked about welfare yesterday, but any time there was work to be done your people did it and did it well. There's a winter work force of over 4,000 people in the north in our area in exploration. After the winter was over they all went on unemployment in the spring. And Walter Whitehead, how many years were you a foreman for the government building secondary roads with heavy equipment and a workforce between 12 and 14 men? Would I be wrong in saying over 12 years? And John Auger, the last 4 years he had a workforce of 24-30 men running power saws, is that about right John? Was there not the best fire fighting unit of men in Alberta -- Alberta Forestry used to fly them in and out of Little Buffalo and Cadotte for different fires all over Alberta? Am I wrong in saying that? Is that right, Walter, that there was one of the finest fire units in Alberta that came out of that area? I could go on with many names of the people from the area that are not here today that are foremen and are working good jobs. And I know that these people could make this thing work. That's what I'm trying to get across to the Commission, that there's the brain power to make this proposal you're seeing on your farming, there are different people I know that can make it work.
Bernard, I would hope the Commission will make you feel that there is a will to try and make this thing work for you. I hope you believe that there is a will here.
Another thing that I want to mention is the cooperation between the Lubicon people and the oil companies that work in that area and the lumber companies. There is probably the best of cooperation in the last 2 or 3 years, when they came and laid their plans out in front of the people of the Lubicons. I'm sure that is probably the truth. Is it not, Bernard? So I think I could go on with all the different foremen that originated out of that country, but I'll leave that be now. And then there's different things that may come up.
I think they want to get into the compensation, the $100 million that you people are asking for. The farmer in this area, in all of Alberta, every time a seismic line crosses their field they are compensated -- I can confirm this figure -- they are compensated between $8-1,000 a kilometre. Every time they use that line. There is not anything in your proposal asking for compensation on the travel of these lines. If you take your map and look, multiply the kilometres that are done in your area and multiply it by 8 to 10 times, up to 20 times that they've used it since 1950, there's quite a dollar value in there. But you've never even asked compensation on that. So I think Fred would be able to maybe do some talk on the compensation from the oil people, you know, that have extracted the oil from that area. I think maybe Fred you could take that on.
Fred Lennarson: Sure John. I think maybe a little bit of history on this compensation question would be helpful. When the Lubicon people first looked at the question of compensation, what they were interested in accomplishing and what they remain interested in accomplishing is an investment fund which will generate interest revenues for their people in perpetuity. So that's their target. I make that point in relation to my comments yesterday about the integrated plan, every element of this thing has got an important role to play in the Lubicon plans to once again become economically, politically and socially self-sufficient. They looked at the question of compensation other places, and they looked at things like per capita distribution, which is just the handing out of money to individuals. And they rejected it. They rejected it explicitly. One Lubicon elder by the name of John Felix Laboucan said "If we're going to get into that kind of thing they might as well just line us up against the wall now and shoot us". So we're not talking in this fund about any distribution of money to individuals. We're talking about an interest generating fund, which as I said yesterday, if it generates interest at the same rate as funds like the Heritage Trust Fund and a similar fund in Alaska, after inflation it will be about 4 1/2% a year. The money then would be money that the Lubicons would have independent of government or any other sources that they could use to help set their young people up in their own businesses, to help finance community improvement projects that they might need, and so on. So it's a community fund that can only be spent with the agreement of the community and only the interest can be spent. Historically, when the Lubicons first looked at that issue, the lawyers had a great long list of damages. Damages for loss of way of life, damages for this, damages for that, I don't remember how many of them there were, but there must have been 15 or 20 of them. When E. Davie Fulton was appointed by then Federal Indian Affairs Minister David Crombie to look into this question, he said to the Lubicons: "These are very complicated and hard to quality and hard to quantify and I suggest therefore that we simplify it and instead of talking about all of these different legal categories, let's just talk about one thing. Let's talk about the value of programs, services and benefits which the Lubicon people should have been receiving going back to 1899 when the treaty was signed with people in the surrounding area but not the Lubicons." The Lubicons initially rejected that proposal. They said, "No, we're not a signatory to treaty and we don't make any claim to these kind of treaty benefits". And Mr. Fulton argued that these are not just treaty benefits, that we're talking about monies appropriated by the government of Canada for aboriginal people in Canada and that people in the Territories, who are not a signatory to treaty and people in British Columbia and the Maritimes who are not signatories to treaty have for years been receiving various kinds of program monies. So on that basis, the Lubicons agreed to look at this approach to compensation. It was Mr. Fulton's recommended approach in 1985.
What we did was we talked to people in Ottawa with whom we work and we had them go to the archives of Canada and look up the amount of money that the government of Canada had appropriated every year going back to 1899. We looked up in the archives the number of aboriginal people the government was counting when they allocated that money. We divided one by the other and arrived at a per capita.
We called the Bank of Canada and we asked about interest rates over the years. We called Stats Canada and we talked about inflation rates over the years. We then identified all the money the Lubicon people had in fact received from the government, going back primarily to about 1980-81 when they first started receiving money from the government for things like housing. We put this all in the computer and the number that came out with a population base of 500 Lubicons was $167 million. So this number was tabled with Mr. Fulton along with the back- up documentation which we can provide the Commission if anybody is interested in looking at all these endless pages of computer printouts. But that's where the numbers came from.
Mr. Fulton looked at the thing and as an ex-Justice Minister and lawyer and ex- B.C. Supreme Court judge said, "I think this is a reasonable way to proceed and I understand it. But it's an awful lot of money. Can we, instead of talking about going back to 1899 can we talk about going back to 1939 for purposes of calculating this amount?" The Lubicon negotiating team argued the point and said they didn't see why the Lubicons should lose 40 years in compensation because of something the government didn't do, it wasn't the Lubicons' fault. And if this was the approach the Lubicons were going to use, they thought the calculations should go back to 1899. That was the discussion that was going on with Mr. Fulton in 1985, and it was a serious discussion with Mr. Fulton. He took this issue quite seriously and said so in his discussion paper and publicly.
But unfortunately, Mr. Fulton, when he delivered this discussion paper including this and other items and his thoughts about these things, his mandate was terminated by the government. First the province refused to talk with him further and then the federal government replaced him with a negotiator whose mandate was clearly to try and push things back to before the time Mr. Fulton had been appointed. But that left one position on the table; namely, $167 million from the federal government for the value of lost programs, services and benefits calculated as I've described.
In 1988, here in Edmonton, October 14th, the night before the Lubicons felt obligated to establish passport control points in their territory and try to defend themselves on the ground after a history which some of you I think know and others will be learning more about as a result of this exercise, there were Lubicon negotiators and provincial negotiators meeting here in Edmonton discussing this matter, trying to head off assertion of jurisdiction scheduled for the next day. Provincial negotiators -- John McCarthy -- asked the Lubicon negotiators what the Lubicons were seeking by way of compensation from the province as distinct from the federal government. Lubicon negotiators said frankly we didn't have numbers, what we want to do is sit down and look at the value of resources that had been extracted and negotiate something that everybody can live with. That was the way we were proposing to go. But McCarthy said that's not good enough. He said, "We've got to have a number or a formula right now. We want to deal with it here tonight."
The Lubicons did have some information. The media has reported on a number of occasions that the province receives about 20% of the value of the resources in royalties. And secondly in 1981-82 the provincial government had filed an affidavit in the Alberta Court of Queen's Bench in which they were arguing that an injunction shouldn't be granted because so much was at stake, and in that affidavit they said that approximately $500 million a year was then being extracted in resources from the traditional Lubicon territory. So using those two numbers, and under pressure from John McCarthy to table a formula or number, the Lubicons tabled for discussion 10% of the province's 20%, frankly not knowing where that would end up. We had some guesses but we didn't have access to the value of the resources and the royalties.
So now we had two positions. One tabled with the feds, the value of lost programs and services calculated as I've indicated and totalling $167 million. And a second position on compensation tabled with the provincial government at their behest which was 10% of the 20% of the royalties the Province has received on the resources.
The following week while the blockades were up, Premier Getty made a public statement ...in which he said that the Lubicons had tabled a formula for compensation which would produce in excess of $100 million in compensation. Now of course the Premier got some of his facts wrong there. He said $100 million in taxpayers' money and that clearly isn't what we were talking about. Given the Premier's numbers, if the Lubicons would receive in excess of $100 million with a formula of 10% of the Province's 20%, that meant that the Province had received in excess of $1 billion in royalties from Lubicon resources and that the oil companies had extracted in excess of $5 billion.
At any rate, that left two positions on the table: one with the feds, one with the province. During negotiations in December of 1988 and following the break-down in negotiations in January 1989, federal and provincial negotiators repeatedly asked the Lubicon people to table a bottom-line position on compensation. And following the break-down in negotiations they charged that the Lubicons were variously claiming $110 to 275 million and they didn't know what they were doing and so on. The $110 million would have been taking Fulton's proposal to go back to 1939. The $275 million would have been a combination of the two positions. At any rate, the Lubicons -- and I'd have to check my dates -- I think in December of 1989 and in response to repeated demands by the governments that the Lubicons table a bottom- line on compensation, the Lubicons tabled a figure of $100 million 1988 dollars from all sources, and their target as I indicated is they'd like to generate interest revenues after inflation of $4 1/2 million plus or minus for their people in perpetuity so that they have a source of independent revenues to meet the responsibilities of the society.
When we put together the Lubicon draft settlement agreement, the way compensation was presented was in the form of $60 million from each level of government, which of course is $120 million instead of $100 million. The reason for that is that there's an approach in here which has the province providing their $60 million over a four-year period and the feds over a six-year period and when you factor in the impact of inflation on this thing it would come out to $100 million in 1988 dollars. The 1988 dollar thing is a benchmark for all the Lubicon proposals as we indicated yesterday because that's when the Lubicons actually got their quotes. That's when the tractor salesmen and everybody else gave them quotes on the things for the draft settlement agreement.
Anyway, that's the history of the thing...the Lubicons have lost far more than they'll ever hope to recoup financially. Most of these things you can't even put a dollar number on. But what the Lubicons are seeking to do rather than even seek what would be fair and equitable compensation in normal terms, the kinds of terms one might expect in a legal action from somebody who had been paralysed as a result of an automobile accident and the like, is to establish an investment fund as part of this overall integrated scheme to...once again achieve social, economic and political self-sufficiency. I don't know if that answers John but that's the best kind of answer I can provide.
John MacMillan: I believe that's about everything I had in mind. Is there any other member that would want to add to compensation while we're on it?
Jennifer Klimek: Fred, I'd like to know, have you got any response from the government as to any compensation? What have they done with this since you've given them the offer of $100 million?
Fred Lennarson: When the Lubicons went into negotiations with the federal government in December of 1988 there was a pre-agreed agenda, agreed in writing, with the Prime Minister's personal Chief of Staff Mr. Derek Burney. Compensation was one of the items on the list. A copy of this letter is provided in the materials you have on the federal government's offer. Because of the way that the negotiations proceeded that discussion on compensation got put off, did not occur on the dates that were agreed. On, I think it was December 23rd, it was a couple of days before Christmas at any rate, they asked Bernard to come to Ottawa. He met with then-federal Indian Affairs Minister Bill McKnight and then-Prime Minister Mulroney's Chief of Staff Derek Burney and at that time McKnight and Burney denied that there was any compensation owing, refused to discuss it. And said simply if the Lubicons thought they had any compensation owing they should go to court. They then proposed in their "take-it-or-leave-it" offer, their verbal presentation, that the "take-it-or-leave-it" offer was without prejudice to the Band's ability to go to the Canadian courts and seek compensation, that they wanted to settle before and have the Band go to court afterwards. But the "take- it-or-leave-it" offer, a copy of which you also have, explicitly prohibits doing just that. There's a very complete release clause in there and it even goes so far at one point as to say that no verbal understandings have any force or effect, which sadly is the kind of experience we've had with these people more than once. They do things like this all the time.
There have been discussions ever since and this has been a recurring issue...with the Province and the Feds both. One of the proposals, for example, pertaining not only to this issue but to other issues which could not be resolved through negotiations -- Premier Getty proposed that a 3-person independent tribunal be established to resolve questions that couldn't be resolved through negotiations, compensation being one such issue. The Lubicons agreed to that. The proposal was that the Feds would appoint one person, Fulton would be the second, and the two of them would appoint a 3rd. And the Lubicons agreed to that. The Feds rejected it, refused to do it.
What happened then was the Feds after a while made a counter-proposal that instead of a 3-person tribunal, one independent mutually agreed mediator be selected. The Lubicons agreed to that. The Feds put forward a number of names, four of which the Lubicons accepted, agreed to. The minute the Lubicons accepted a name put forward by the Feds, the Feds withdrew it and the person was no longer acceptable to the Feds. The Feds accepted none of the Lubicon candidates, although they included people like ex-Supreme Court Justices and heads of law schools and so on. So that went on for six weeks or so and then collapsed without any resolution. When negotiations between the Lubicons and province broke down, the province again proposed the 3-person tribunal, the Feds again rejected it and then again proposed a mutually agreed mediator. No agreement was possible on that. And most recently they have been talking about compensation with regard to only failure of the government to make the 25.4 square miles set aside in 1939 into a reserve under Treaty 8, which of course the Lubicons didn't sign. What that means at the bottom line is that the Lubicons would essentially give up the basis for compensation before the question of compensation went to arbitration. So that's what's on the table currently. Bob appeared to have something he wanted to add to that so I'll pass the mike to him.
Bob Sachs: Compensation has been more or less defined presently in three areas: aboriginal rights and title; what is generally called treaty entitlement -- that is to say, had the Band signed the treaty in 1899 or in 1939-40, what would the Band have been entitled to for that period of time, which Fred has already spoken to you about; and lastly a breach of fiduciary duty in their failure attempt to come to a treaty arrangement with the Lubicon as early as 1899 or again later in 1939-40. The federal government's present position is that we can once again go to mediation with them separate and apart from Alberta, but only with respect to the treaty entitlement aspect of a compensation claim...(change tapes) ...their position is that the Lubicon people must essentially give up any claim to aboriginal rights or aboriginal title. I think it goes without saying that that sort of scheme of things is totally unacceptable.
The Province -- their present position as we understand it is that there is no such thing as aboriginal rights and there is no such thing as aboriginal title, that their oh-so-generous offer in their words of giving the Lubicon their own land, giving them 95 square miles is sufficient in their view in all of the circumstances of the case. Needless to say, that's rather unacceptable. Essentially that's the position of the two governments.
There were talks with respect to -- the Lubicon position as put forward to the federal government in an attempt to try to get some sort of an agreement with respect to the compensation issue, was to propose a combination mediation/arbitration procedure. That would be that -- without defining necessarily what is aboriginal title or what are aboriginal rights because the state of the law is such that they are presently undefined -- was that to take to first mediation, to attempt to come to a figure, a mediation procedure that would go over about a 3-month period of time. If there would be no agreement then it would go on to an arbitration situation. But essentially the proposal was that a mediator or arbitrator would not pass on the question of what is aboriginal title. Is it a land right, is it a use right, all those sorts of questions would not be answered. The question in the end result, the penultimate question for the mediator would be what is a fair and equitable sum of money to compensate the Lubicon for what has transpired over the last how many ever years, be it 1899 or 1939 to the present, given the scheme of what the Lubicons have endured and what they propose doing with their future. That scenario was placed before them approximately 3 1/2 weeks ago and their response to that so far has been much the same as it was in the past -- that is to say, if you want to mediate, give up aboriginal rights and we once again proposed this arbitration/mediation scheme and there has been no answer. That's where we stand now.
Michael Asch: Just a question on the -- since you brought up the negotiation issue and their status right now -- we would of course like the opportunity to hear what the federal government has to say on these and other matters. I don't feel that necessarily we need to be privileged to be the vehicle by which this happens, so I guess it's more of a comment but maybe a question too. I have on occasion seen a situation, even at a very close moment to a deadline, in which negotiations on very, very delicate issues regarding self-government, regarding extinguishment, were carried on between the federal government and first nations. Not only in public -- but they were in public -- but not only in public, but carried on the radio on the native radio station throughout wherever it went in the NWT. I'm just wondering whether having a public negotiation in which the public might see what the various positions are and how they're developed and how the cases are put might be useful and certainly in other cases, there have been suggestions that maybe negotiations should be held in the communities affected. I'm just wondering whether you have proposed any of these things or whether in fact you think that they might be reasonable things to do and whether you've proposed any of them and whether you've had any response?
Bernard Ominayak: In the past -- for example in 1988 when we first set up negotiations -- let's pretend negotiations took place -- at that point in time they put all kinds of conditions and restrictions on our people. One of the things they wanted was that there would be a black-out on the media and that negotiations would be behind closed doors. Once you agree to something like that then you're confined. So we're learning as we go through this process. That's something that we'd never agree to again, where you have a news black-out while they had their PR guys sit right at the table right through the whole negotiations, preparing and gearing up for failure. Our guys knew the PR guy was there and asked what he was doing there and there was no explanation. They ended up appointing him as some kind of assistant to the negotiators once it got out in the news. But from our side of the table, we'd certainly welcome any kind of opportunity that arose to have negotiations take place in the community and in public. We've got nothing to hide. But that's not to say that the other parties would be prepared to do that. At this point, I don't think they'd be prepared to do it.
I would like to make a few comments on the other issue that John brought out in regards to compensation. It is true that in the last 2-3 years or so we've been able to work with some in the oil development in the areas of restoration, for example. Earlier on, in the early 80s, late 1979, there was a lot of problems with the oil development and there was a lot of friction between the oil people out in the field and our people where their traplines and everything were being destroyed and we were taking them to court to try and put a stop to the destruction before it got to the stage that it did. So there was a lot of friction. We weren't able to deal with those guys, but over time we've dealt with one and then from there started going on to the others. We've been able to develop some kind of a working relationship involving line clean-up and re-seeding the areas that they've wrecked -- those kinds of things. And that has turned out okay. We've been able to do the kinds of jobs we took on for them and most of them have been satisfied.
Also in the area of fires, as John put it is it true that a lot of our guys get involved especially if there's a fire within our area. But again there is a lot of problems with, for example, forestry and fish and wildlife. Even though our guys try and do the work, the forestry, because of the political problems that exist, we have problems within that set-up. Our guys won't get picked up unless there's really an emergency situation and they're short of guys. These kinds of little piddly stuff we're always faced with. A lot of our traplines burnt up very early on because of one ranger that didn't allow our guys to use the equipment that was there on site. It was a very small fire at that point. But they wouldn't let our guys put it out. So the fire went on for days and weeks and burnt a lot of our trappers' equipment, traplines and so on. There was another fire that took place close to our community where an oil company was burning brush along the right-of-way. There again, our guys were prepared to put it out and they weren't allowed to put that one out either because the guy that was head of the operation there had to wait for the forest ranger and that fire took off too. So while on one hand we try and work with these guys to the best of our ability in certain areas, we don't believe in helping them to destroy our land and the environment. At the same time, we look at the areas where we may be of help to try and bring back some of it and those are the areas that we've concentrated on. I just wanted to point out those few things in that area. I think Mr. Aitken would be familiar with the kinds of negotiations that take place with governments...They pretend that they're negotiating while they're gearing up to finish the other side off. This is what we've been seeing all through this process. We would certainly welcome an opportunity to negotiate in public, for people to see what is taking place so we don't have to go back for six months or a year to try and correct all the misinformation that takes place during and after negotiations once they're broken down by governments.
Fred Lennarson: I'd like to just make a quick add-on to that. We've in fact proposed open public negotiations to the government any number of times and they've rejected them every time. But not only have they done that, they have asked -- going into the negotiations in '88 for example to work on the agenda, federal negotiator Brian Malone asked for a personal one-on-one meeting with me to work on the agenda. I was representing Bernard and he was representing the Prime Minister's Chief of Staff Derek Burney. Malone brought his own public relations man to the thing. And they put you in the position where if you refuse to deal with them because they've broken their own meeting condition -- he insisted on that, it certainly wasn't my idea -- if you refuse to deal with them on that basis, then maybe you miss an opportunity to get this thing resolved. On the other hand, you're sitting there with him having broken the condition that he himself put forward and with a guy whose sole purpose is to try and figure out creative ways to describe this thing in a way which makes it appear that the government is being reasonable when in fact is isn't. Most recently -- and there have been lots of examples of this -- but most recently last November Bernard received a call from an Assistant to Member of Parliament Albert Cooper saying that Albert Cooper was trying to arrange for a meeting with federal Indian Affairs Minister Tom Siddon when Mr. Siddon was in Edmonton. Bernard was told that Siddon wanted the meeting private, confidential, one-on-one, behind closed doors, media not involved, media not informed. And after all of these experiences Bernard reluctantly agreed to that. The meeting was to take place at 1:30, early afternoon at any rate. And at the noon hour we received a call from reporters with the Edmonton Journal because Mr. Siddon had met with the Editorial Board of the Edmonton Journal that morning before he was to meet with Bernard. He had told them he was going to be meeting with Bernard. He had implied...that Bernard had requested the meeting. He had told them that the "take-it-or-leave-it" offer would not be changed except to be reduced to take into account the Woodland Cree. And he said a number of other things and the reporters were calling and asking for comments. So Bernard then goes to the meeting with Mr. Siddon and that's what introduced the latest round. And that's the history of this thing. It's very, very difficult to try and deal with people who don't honor any of their own conditions-- they insist upon these things and if you agree and honor those conditions they break them. And that's happened time after time, as I say most recently last November 1st at the meeting that kicked off this current round of supposed negotiations.
Bob Sachs: In a classic sense, Michael, I think back to the late 19th century when these original treaties were first discussed and the commissioners would go out in the communities and the discussions with respect to treaties were held within the community. Obviously that's changed a good deal in the last 90-some odd years. I think it goes also without saying -- Bernard has already indicated it -- that he would welcome both the federal government and the provincial government to come before you to try and explain their position, if it's explainable.
The most recent indication about their willingness to conduct in public scrutiny negotiations with the Lubicon people occurred last Friday when I met the Deputy Minister of Indian Affairs, Harry Swain, here in Edmonton. We are given to understand that there are further attempts now to muzzle Bernard in speaking, particularly to the media. And I think it goes without saying that his appearance here before you is causing them great consternation. Essentially on Friday the threat which I was to pass along to the Chief and the people was that if Bernard continued to indicate to the public what the Band's overall claim was about, his perception of how negotiations were going on, or any like talk to the media, and I would suggest parenthetically to this Commission, that they would in their words, "pull the plug" on this current round of negotiations. I just moments ago indicated to Bernard that I was to receive a phone call yesterday from Mr. Swain with respect to our response to this threat and in going through my messages last night and again this morning, I haven't received such a call. So it may well be that the plug has been pulled.
Michael Asch: I certainly appreciate and take note of what you've said, Fred, and what you've said, Bob. I still would really like to hear what the federal government has to say on it. I'd like to -- it may seem kind of like a far- fetched question and if you feel Bob that it is, please just say so -- but I'm thinking back on the Royal Proclamation of 1763 and in particular I'm thinking about the way in which the Crown said discussions with respect to lands that were to be brought under -- I'm not exactly sure the verb to use -- but brought into conjunction, that's the safest word to use, with the Crown, were to be dealt with. As I recall it, there was something about the manner in which such negotiations should take place. So I'm asking you if you have any recollection about that? I don't want to put you on the spot.
Bob Sachs: I think you're right and I'm just trying to recall the exact words that are used in that Royal Proclamation. Interestingly enough, the latest word with respect to the Royal Proclamation is that which is contained in the Gitskan case and essentially what the case stands for, at least the way I perceive it, is, "Golly gee, British Columbia wasn't a part of Canada in 1763 so essentially the Royal Proclamation doesn't apply to all of these ancestral peoples in British Columbia". That is the same sort of response that you often get if you ever mention the Royal Proclamation to the federal government. Or the provincial government for that matter. "Well, Alberta didn't become a province until the 1900s."
Michael Asch: Let me just try to put it a slightly different way. I'd like to hear what the federal government would say about an interpretation that says that the Royal Proclamation says that whenever lands are to be exchanged, I don't care where we're talking about, there will be a public meeting where there will be representatives of the Crown and representatives of the First Nation and it shall all be done in public. Is that the basis, as far as I can see, for the entire treaty making process on the Prairies, including Alberta -- whether we're on the Prairies or not is another subject, that's about the Senate -- but it seems to me that that sets the entire foundation for the way in which treaties were supposed to be addressed. I would like to understand, since this is an adhesion to a treaty that we're talking about -- and Fred I know you're likely to make a comment about that, I want to hear what they have to say about it with due respect. I'd like to know what their point of view is as to why this is different.
Fred Lennarson: I would too, Michael, I was just going to add that I have a little up-date on what Bob said, and that is, Joe Clark is writing letters to people, copies of which we have, in which he claims the Royal Proclamation has been superseded by the Confederation Act 1867 and subsequent legislation and all of the principles of the Royal Proclamation in this regard have been negated and so on. I can provide a copy of...
Michael Asch: It's in the Constitution.
Fred Lennarson: I know it's in the Constitution, I'm just giving you an up-dated bit of information and I can provide you with copies of the letter in which Joe Clark is making these statements.
Bob Sachs: One additional important aspect of the Royal Proclamation aside from the fact that it should be conducted at an open and public meeting is that it is also conducted Nation-to-Nation. And that's a very important aspect of everything that we're talking about.
Jacques Johnson: I would like to have a question to Chief Bernard. I'd like to come back to the nitty grittiness of numbers. In dealing with a request, as I read in your presentation, of $120 million -- that is $60 from the province and $60 from the feds -- I understand that it has been upped by $20 million probably because of the inflation rate. That's my understanding anyway. My question is in view of the fact that you are asking a certain amount for infrastructure and community development, agricultural lands and so on, and this latter totals about $18 million -- supposing that the governments would grant you the $120 million that you're asking in compensation and this would generate revenues of some $4.5-5 million a year in revenue, revenue that would be used as I understand it, to generate work, industry, it wouldn't be given to individuals -- could some of that money be applied for instance to the agricultural development or some of the other amenities that you're asking for in order to bring down somehow the total numbers that you are asking for? And I am asking this not to question the right that you have of asking for compensation but in view of the fact that the government is very hesitant, and I think that the public would see these numbers -- say $170 million or whatever -- as a very important sum of monies. Would the Chief tell us if he would be flexible in any way to compromise these numbers somewhat?
Bernard Ominayak: Father Johnson, when we speak of compromising I don't think we can go any further. We've been compromising, compromising, and waiting, waiting for many, many years and trying to arrive at an agreement and also taking into consideration the livelihood of all peoples that have been in our area -- for example, the oil development. During the blockade when we blocked those roads and stopped the oil development from coming in, they were all crying that their kids were going hungry and that we were taking bread and butter off their table. They never once considered the fact that they were taking everything away from us. And we, from our side, had tried to look at that whereby we knew that it was the politics of this whole situation and greed that was prevailing, that the local people weren't necessarily the people making the decisions. But at the same time when the local people were kept away from their work for a couple of days they were all crying that they were going to starve at the very moment. The reason I bring that up is that when you speak of compromising, I don't think we've got any more ways to compromise. And to your initial question as far as utilizing the interest of any monies that may arise or we may receive through compensation, there's been a lot of discussions in that regard as to what may be possible and how we may use that money. The big thing is if we went into any of the agricultural ideas that we have most of anything that we get by way of an agreement would be on behalf of the community, while a lot of the individual people wouldn't be getting directly any monies. But if we were to get any kind of independent monies -- for example, the interest off of say $100 million, for example -- we would be able to hopefully assist somebody that wanted to get on his own and try to get involved, whether it be road construction or maybe raising cattle as a family. These kinds of ideas then we would be looking at. But again, that's just one set of the ideas that we have spoken of. I think Fred's pointed out that we aren't getting into a per capita distribution because we keep our eyes and ears open as to what happens in the other Indian First Nations right across Canada. We've seen where there've been per capita distributions and the latest one was -- to a degree -- when the Woodland got $1,000 to vote if they voted right -- that was quite a mess there for a week or so. We certainly don't need that. I don't know if I've satisfactorily answered your question.
I would also like to comment on Mr. Asch's concern. It's not so much a question, but I really question whether if there's going to be any way that either government is going to be as willing to appear before you as the Lubicon people have been. I hope that they do but we get a lot of feedback from a lot of different people who are saying that it's NDP or it's a lot of this and that. But I think, while we speak and while the Lubicon people provided whatever information may be...(change tapes)...the federal government's proposals and so on. At least you've got that before you and also to some degree the provincial government's stance. I guess that's all now.
Bob Sachs: I just want to put these sort of numbers in perspective if you look at what most recently has happened in this province with money. The province is perfectly prepared -- and Fred may correct me with respect to these number, but my recollection with respect to Daishowa -- is that the provincial government has loan guarantees to Daishowa in the $60 million range to prop up a business which hired, my understanding is, around 300 people from Peace River and additional people from other parts of the country who have been brought in to work there. We're talking about $167 million to restore a peoples' way of life and to provide for their future indefinitely for 500 people. So you look at those numbers and you have to wonder where the priorities are with this government. Of course, last week we see $566 million going down the toilet with NovaTel. So that better puts the sort of numbers that we're talking about in perspective.
Jacques Johnson: When we had the AlPac hearings I remember some figures that were thrown in terms of the provincial government's investment that per job creation it amounted to almost half a million dollars. Those were figures that were mentioned there.
Fred Lennarson: On this Daishowa thing, Bob's point I think is well taken although the numbers are higher. They're not loan guarantees. They are infrastructure grants. But there's another point...Daishowa not only received over $65 million in grants from the provincial government. They received a grant, as I recall $9.5 million, from the Feds. The federal grant was given by the Minister who was responsible for the Western Diversification Fund, Bill McKnight, who was the same time the Minister of Indian Affairs. So while he had constitutional responsibility as Minister of Indian Affairs specifically, explicitly for looking out for the interests and the lands of Indian people, he was granting money to construct a $500 million pulp mill with leases to cut down the trees in an area that completely blanketed the entire traditional Lubicon area which is in dispute and before him for negotiation. That's just to underscore the kind of problem that the Lubicon people face in working this thing through.
Michael Asch: I appreciate greatly the fact that we have the information on your proposal and on the federal proposals, and I do think that we have enough information to really begin to see what the differences between the proposals. It would just be very helpful to us if we could hear what their points of view are.
Jennifer Klimek: Chief Ominayak, I'd just like to make one response to one comment you made. We certainly heard the same things saying we're appointed by the NDP and that. I'd like to reconfirm that we are non-partisan and we certainly are not answerable to any political party and what we say here will be an independent decision by us. I just want to reaffirm that for you and the audience as well.
I have one last question for Bob. Maybe he call help on this. I notice in some of the proposals there's some reference to litigation matters and I'm just wondering, are they still on-going and are they with respect to compensation and what's happening with those? Are they in abeyance or on-going?
Bob Sachs: Essentially they're in limbo. There was a decision made by the Lubicon people in August of 1988 that the litigation that was at that time going on was consuming so much time and effort and resources of the people involved and the Lubicon people, and the sorts of treatment that the Lubicon people have received from the courts, a decision was made to withdraw from court action. Bernard can give you a better perspective on how the Lubicon people view the courts of this country.
Bernard Ominayak: I'd just like to clarify what I said earlier. It's not me that's saying that this is heavily involved with the NDP. To me, we've tried to work with people who are prepared to work with us, regardless of whatever party or whoever they are involved with. Whether it be aboriginal people or non-aboriginal people. We've always stated that in the past. So to me whether it's the NDP or PC or Liberal -- if they're prepared to work with us then we don't consider those kinds of factors. I also know that there's other parties involved and it's not an NDP Commission per se. So with that, there's a lot of feedback on that from a lot of different people.
The other thing that maybe was not clarified was that I'm not saying that I hope that they don't appear. What I'm saying is I certainly hope that they do so you guys get first-hand experience as to what kind of bull shit that we people go through. So I think for you people to clearly see that, you need to deal with those kind of guys.
Thank you. I'll get Lennarson maybe just to speak a bit about the court situation.
Fred Lennarson: I'd like to also point out that I don't take this charge of partisanship all that seriously, because the fact of the matter is when the United Nations, representatives of 18 different countries meeting in the context of the U.N. Human Rights Committee, find Canada in violation of the International Covenant of Civil and Political Rights the government's position publicly, the Federal Minister of Indian Affairs says publicly that the Lubicon complaint was found completely without substance. When they appoint prominent Progressive Conservative Statesman E. Davie Fulton to look into this and he concludes that Lubicon rights have been abused, they fire him and say they don't want him around because he's biased in favor of the Lubicons. So it's not only this Commission they look for reasons to dismiss. It's anybody that takes a fair and objective look at this. When the World Council of Churches looked at this question and looked at over 10,000 pages of court documentation and sent a delegation of prominent church leaders up to Little Buffalo in 1984 and concluded that what was going on up there could have genocidal consequences, they were dismissed. So there will always be a reason for these people to dismiss the truth which has been clearly seen by the United Nations, by the World Council of Churches, by E. Davie Fulton, by wave after wave of reporters who get into this thing not knowing about it and learn about it. And in every case, the government takes the position that there's some reason that all of this is somehow not right. On the question of the courts, there's a history here which I think needs to be presented to the Commission. It's a history which I personally consider shameful and it's to some extent the reason why I'm sitting here before you today. You know that the Lubicons didn't sign treaty in 1899 and that they had their first meeting with the government in 1939 and have been trying to resolve this outstanding jurisdictional dispute ever since.
When the government of Peter Lougheed came to power, as part of his development plans he started building a road into this territory. The Lubicons and six other isolated aboriginal societies back in this hinterland area, collectively called the isolated communities, attempted to initiate discussions with the federal government to try and resolve this outstanding jurisdictional dispute. They knew that with that road outsiders would be coming into their area and the area would be opened up for development and they wanted to get their rights defined. They wanted to get this matter resolved. Both levels of government refused to talk to them and said they were merely squatters on provincial Crown land with no rights. They said this in court. They said that the Lubicon people don't even have rights to the homes, that their homes are merely "unauthorized improvements to Crown land", and they've literally threatened to bulldoze these homes out from under the Lubicon people if the Lubicon people didn't accept provincial government jurisdiction.
In the middle 70s, on legal advice and with the road being built, the Lubicons and the other isolated communities sought the advice of then Indian Association President Harold Cardinal. He involved legal counsel who advised the Lubicons and these other communities to file a caveat under provincial law putting the parties on notice that title to the land was contested. Such a caveat had no force in law but it is just simply notice that title to the land is contested. It was notice to potential developers to be cautious, be aware. Of course the strategy was to try and bring this thing to a resolution.
The government refused to accept and file the caveat as provincial law at the time provided. The Indians therefore went to court. They asked the courts to order the government to obey provincial law. The provincial government asked for a postponement of the hearing of this case until a similar case in the Territories called the Paulette case was decided. The Paulette case went against the aboriginal people in the Territories but the judgement read, "Had the law been written in the Territories as it was in Alberta and Saskatchewan the court would have found for the Indians and ordered the government to file the caveat". The Alberta Provincial Government, under Peter Lougheed, went back to court, asked for another postponement during which time they rewrote the law and made the re- written law retroactive to before the time the Indians sought to file the caveat. The case was then dismissed as no longer having any basis in law. That was the first round before the Canadian courts.
The road came in in 1978-79. Development companies came in by the dozens. Between '79-'82 over 400 oil wells were drilled within a 15 mile radius of the community. Traplines were bulldozed. Edward here would set his traps, spend all week doing it and they'd be bulldozed. He'd go out and mark his traps with these red plastic markers and they'd be bulldozed and the sticks with the red plastic on them marking his traps would be used as road markers for the new roads. We would find bulldozers who'd bulldoze a trapline and then back up several miles and then go bulldoze another trapline. We had a provincial probation officer operating out of Peace River call us in distress and tell us that parolees under his charge had been instructed to bulldoze Lubicon traplines. He described it as almost a competition. We sought to get an affidavit signed by this man but he in the meantime he had told his boss what he thought about it and he was transferred out of there and nothing came of it. But this has all been part of the history. In 1980 the Lubicons went to the federal court -- because under the Canadian constitution aboriginal land rights are a matter of exclusive federal government jurisdiction -- and asked the court to affirm that the Lubicons own this land, that they retain aboriginal title to this land. They'd never ceded it in any legally or historically way. Or to provide them with substantial compensation if their land rights had somehow been taken from them. The governments and the oil companies argued procedurally, as they typically do. They don't argue the substance of the matter, they argue procedurally because then they can tie you up in court forever and they've got lawyers on payroll that can do this and they know damn well that these little aboriginal societies can't survive for ten years in these big complicated, expensive legal actions. They argued that the Lubicons were before the wrong court. The federal court agreed, at least as with regard to the province and the private oil companies. They said that the Lubicons could sue the federal government and PetroCanada in the federal court but they had to sue the province and the oil companies in the provincial court. So the Lubicons pursued parallel legal actions: one in the provincial court against the province and the private oil companies; and one in the federal court against the federal government and Petro Canada. But lawyers for all sides said that this thing would take at least 10 years to adjudicate and millions of dollars which the Lubicon people didn't have. And in the meantime, which we indicated yesterday, moose kill had gone from 219 in 1979 to 110 in '81 to 37 in '82, to 19 in '83. In 1981 when they first started administering welfare in their community fewer then 10% were on welfare, by 1983 that number had skyrocketed to more than 90%. Income from trapping, with an average of a little more than $5,000 per trapper when this started in '79, by 1983 had dropped to under $400, and that was for master trappers, for people like Edward Laboucan sitting behind me. It was thus clear that the Lubicons would not survive 10 years before the courts on this thing. So they filed an interlocutory injunction before the provincial court. An interlocutory injunction is an emergency action. It asks the court to hear this thing right away because there are interests at stake which are in jeopardy and which will not survive the normal legal process. The oil companies and the province again argued procedurally. They argued first that the court shouldn't even hear the case because, they said, the Crown is immune from injunctive relief. You couldn't sue them. They argued secondly that the oil companies are merely agents of the Crown in extraction of the resources and therefore they're covered by Crown immunity and you can't sue them either. They said that the court shouldn't even hear the case because the damages weren't irreparable, the trees would grow back. They said even if the damages were irreparable the court shouldn't hear the case because the damages could be compensated in money. Now on the Lubicon side of the claim, of course, we're talking about still born babies and suicides and a lot of things which from the Lubicon point of view aren't reparable by any amount of money. They said even if the damages were irreparable and couldn't be compensated in money the court still shouldn't hear the case because of a legal principle called the "balance of convenience", which is basically that the rest of Canadian society has such a great stake in development of these lands that Lubicon land rights shouldn't be allowed to interfere. And finally they argued that the court shouldn't even hear the case because if the Lubicons are ever unable to prove they own the land the government and the oil companies would have lost so much money in the interim that the Lubicons would never be able to pay them back for the money that they lost.
The judge hearing this case pondered that question for a full three months, from the fall through the winter development season. In the north, as some of you know, development activity in newer areas occurs in winter months when the ground is frozen and you can get into this country. So while the judge thought about it the oil companies proceeded to do a fair amount of what the Lubicons were seeking to enjoin. At the end of this time he decided that the case could go ahead but he put off hearing it until the next fall. All the evidence was by way of sworn affidavits. The Lubicons submitted affidavits of wildlife biologists, anthropologists, environmentalists and their own elders on what was happening to their traditional way of life and their lands. The provincial government and the oil companies submitted no evidence at all on what was happening to the traditional way of life. They simply argued that it was the 20th century and any traditional way of life which may have existed was long since gone; therefore there was nothing left to protect -- where on the other hand the province and the oil companies would lose a lot of money if an injunction were granted. The provincial judge hearing this case agreed and declined to grant the injunction. His name's Gregory Forsyth. Before he was a provincial judge he was the head lawyer for the Nova Corporation. The Nova Corporation's a large petrochemical conglomerate in Alberta, among other things at that point owning controlling shares in Husky Oil which was a major player in the Lubicon territory.
This case was appealed to the Alberta Court of Appeal where the then Chief Justice of the Alberta Court of Appeal, a man named McGillivrary, put himself at the end of a three man panel to hear this case. Before it came to court he died, but he put himself at the end of a three man panel to hear this case. Before he was a provincial court judge he was the family lawyer for Peter Lougheed. He was the guy that gave Peter Lougheed his first job in the Calgary law firm of McGillivray, Fennerty and Robertson. Jack Robertson is the head oil company lawyer on the case. The Alberta Court of Appeal declined to hear the case finding that the Lubicons didn't need an injunction because they said if the Lubicons can ever prove that they own the land, they would be compensated in such a great amount that they would be able to, in the worlds of the judgement, "restore the wilderness with money damages". "Restore the wilderness with money damages" -- we're talking about still born babies, tuberculosis epidemics, suicides and so on.
This case was then appealed to the Supreme Court of Canada where the presiding judge, a man named Estey declined to hear the case, provided no explanation why. There was then a subsequent decision involving a similar fact situation at Meares Island in B.C. where an injunction was in fact granted so it looked like we had two conflicting decisions at the provincial level. The Lubicon injunction application was therefore appealed a second time and the Supreme Court declined to hear it a second time. Estey, before he was a Supreme Court judge, was also an oil company lawyer. He has since resigned from the bench and been appointed to the Board of the Nova Corporation.
Now in the meantime the two other actions -- the main aboriginal actions were proceeding. In 1986 there was a case out of Newfoundland called the Joe case which found basically that you can't sue the federal government in federal court over aboriginal land rights within provincial boundaries because it involves provincial land rights. That rendered moot the Lubicons' federal action, the action in the federal court against the federal government and PetroCanada. So the Lubicons moved to add the federal government and PetroCanada to the Provincial action. Those were the only two options -- you either go to the federal court or the provincial court. The federal government argued that the provincial court doesn't have jurisdiction over them with regard to these matters for a number of reasons. But at any rate that was basically their argument. And the judge agreed. His name is Moore. He's the guy that appointed Forsyth to hear the first case and not too much later, when the Lubicons had up their blockades in desperation trying to protect what little they had left, Moore granted the government an expartite injunction to take down the barricades. It took him about 2 minutes behind closed doors. They didn't even let the Lubicons know they were doing it. At any rate, when the Lubicons asserted jurisdiction in October of '88 as a result of this history, and as a result of these decisions, there was not a single court in Canada that was even prepared to hear a legal action on the part of the Lubicon people against the federal government of Canada even though under the Canadian constitution aboriginal lands and aboriginal people are the exclusive jurisdiction of the federal government.
I'll add only -- and there's a lot more than can be said about this -- but I'll add only that the Lubicons in 1984, facing this kind of experience with Canadian politicians and Canadian courts both, appealed to the U.N. Human Rights Committee. Canada's first response was to argue that the Human Rights Committee should not hear this case because the Lubicons had not exhausted all domestic recourse, that they first had to go through the courts in Canada. And they argued other things which people need to know. These decisions should be read for people to know how the government of Canada is representing their position internationally. The Lubicons said they were being denied self-determination as a people in their complaint. Canada responded that the Lubicons are not a people, they are "merely members of a thinly scattered minority group living in the midst of a more numerous population grouping". That's the wording of the Canadian government submission to the international community on aboriginal people in Canada. At any rate, after hearing arguments from both sides for a period of 3 years, the representatives of 18 separate independent countries serving on the UN Human Rights Committee concluded that the Lubicons could not achieve effective legal or political recourse in Canada. That decision's a part of the record. It's not only the Lubicon people who have concluded that they were not receiving any consideration by the Canadian courts, but the international community as well.
Bernard Ominayak: Fred, could you let the Commission know about the federal government's response to that particular U.N. decision.
Jennifer Klimek: Maybe we should take a short break and address that after, if it's okay. We'll come back at about quarter after 11.
Sandy Day: Our goal as a Commission is to try and get negotiations with the government going again. I think it's important to try to brainstorm ways of making this happen. You certainly seem to be the experts on what hasn't worked, but I think it's also important to try to have a vision of how to make it work. One thought on the compensation settlement -- if the government looked at it as an investment in future savings, by settling now there could be significant savings for the government in money ow being spent to help support your people through welfare. My question is, has the program cost of this been done?
Bernard Ominayak: I don't know if I clearly understand your question, but it seems to be that you're suggesting that -- how much would it be saving the government by way of welfare if they were to settle with us?
Sandy Day: That's correct.
Bernard Ominayak: No, we haven't really looked at it from that angle. I certainly can't speak for the government as to what they may be thinking. But I think as we present the problems as we see them and through our experience in trying to deal with governments, we can only present you with the facts through our experience at this point. I certainly hope that the governments will be able to do likewise, arguing their stance as to why they aren't prepared to come to a fair and just settlement with our people.
As we look back a lot of times through the process that we've gone through and wonder why, like many people, as to why this is going on and has gone on for a long time, we certainly don't have the answer for that. But it seems like the government is more interested in the valuable resources that our lands contain, and that's where their focus has been. At the same time they don't like to see Native people stand up and fight back. That's one of the things that they would like to defeat us rather than settle with us, because then they figure they're losing face. I don't think, as a person I don't think that's a viable reason for not settling. But I guess people are different.
In so far as your question, we really haven't looked at that angle as to what kind of monies is actually spent by way of welfare and if there would be any kind of saving on the part of the government. But when we're talking welfare, we're certainly talking about a taxpayer's dollar. While on the other hand, we're talking about resources and monies that are rightfully ours and we're asking for a very small percentage of what monies have been extracted by way of our resources, to come back to the people to try and build a different lifestyle altogether from what we're accustomed to.
To a large degree, you know, we hear of inherent rights and so on through a lot of these constitutional discussions that have taken place between the Native peoples and the federal government and also to a degree with the Premiers of Canada. I think in a lot of these instances -- for example with the Lubicon people, I think we were giving up a certain way of life. There must be a reason why the Creator put us in the area that we're in. So I guess from that perspective the onus is on us to try and protect the earth, the environment and the wildlife as much as possible.
There are different religions and we certainly try and retain ours. I think there was a question yesterday in so far as the spiritual connection. It's certainly there. There's a lot of fundamentalists groups around that believe all you have to do is get on your knees and the Creator will look after everything. We certainly don't have that attitude.
I guess we've learned through experience from that aspect of it too that the onus is on us to try and protect as much as possible. But when you have people who are more interested in our resources, who are greedy and want to take everything and leave nothing behind, this is the kind of problem that we face, that the Lubicon people face, where everything is destroyed and there's nothing left. I don't think the world in general can any longer just continue destroying everything and hope to have something left. I guess that's a little out of context, but to try and bring everything into perspective, it certainly should be a concern for all peoples, not only aboriginal peoples, with the kind of destruction that's taking place. We certainly see the kinds of actions and destruction that takes place when you have greed prevail, whether it be people or the land or the environment or the wildlife -- that's exactly what our people have faced for the last 12-15 years.
Fred Lennarson: I have some numbers on that, not up to date numbers, but at the time of the interlocutory injunction we looked at this question, we went in and we tried to put numbers to the traditional economy -- the value of the wild hay that was cut for the horses, the berries, the game, the meat that was provided and so on. We came up with an economic base worth about $700,000 a year. That traditional economy then was replaced by another economy which the provincial government said was generating $500 million a year primarily in oil revenues, but with the benefits of course going to completely different people. What happened to the indigenous population at that time, when 90% of the population was forced onto welfare, is that the welfare roll on a monthly basis was in excess of $30,000 a month. So that kind of dislocation occurred as a result of moving in and destroying the traditional hunting, trapping and food-gathering economy and with the gas and oil development and forcing the indigenous population onto welfare. That is to me just a very small part, the dollar value of it, because as we've indicated more than one -- I don't know how you value in dollars the life of a child that's born dead and families that are destroyed and all the rest of it.
Those are costs which I don't think can be estimated in dollars whatever the learned Justices of the Alberta Court of Appeal may think.
Sandy Day: Thank you. Leading from that Bernard, your discussion with the wildlife -- yesterday you did touch on it briefly as well -- about your role in wildlife management. I'd kind of like to hear a bit more about what your hopes are, how it is set up, and to me it seems to imperative that your peoples' wisdom and knowledge be shared if possible with others, because you certainly do have expertise in this area. I'd kind of like to hear what is happening in that area or how you'd like to see it happen.
Bernard Ominayak: I guess a lot is dependent upon what kind of an agreement we can get in place, more with the provincial government at this point in regards to conservation or wildlife in general over our traditional territory. And that's a very small portion when you look at northern Alberta. I think if more people were able to get something by way of substantial say as to what transpired throughout northern Alberta, I think we would do a whole lot better. But when you're dealing with a smaller area, at least it's an effort to try and preserve what is left. As I outlined yesterday, one of the ideas that we're looking at is some years the moose may be down across northern Alberta, and this is where these kinds of ideas would really work, if say, all peoples were able to not hunt maybe for a year or two to try and bring back that certain species, for example, moose is the one I'm talking about. Because right now it doesn't work for our people to try and hold back from hunting when everybody else comes in in the fall and takes whatever we're trying to save. For example, last fall Fish and Wildlife out of Peace River were having advertisements through the local radio station out of Peace River suggesting that people from the outside come and hunt in our area because that's where all the moose were. They knew better than that. But when politics interferes with everything, then you get all kinds of problems.
The other thing that was also looked at is when, if there is logging taking place then there are certain areas where certain wildlife raise their young ones. So we'd like to try and preserve those for as long as possible so we have that species continues to survive within that area. Also, the way they log around creeks, lakes, and all these things -- they're all factors that have to be considered when logging does take place. Right now supposedly the Fish and Wildlife and the Forestry are supposed to be looking at that, but anytime you get away from the road or the main access of any of these right-of-ways and there's not very many people that are going to be seeing it, all the regulations seem to disappear. I think in Saskatchewan where I was over the weekend where they have a blockade, they're in the same predicament where we are where there's clear-cut logging taking place. Along the road you don't see any of the clear-cut logging but the minute you get behind the scenes there's a hell of a mess back in there. That holds true in a lot of these things. I think that's the same problem we faced with the oil development. It seems like the bigger the oil company, the less regulations there are, if there were ever any in the first place. Supposedly there are, but they're not followed. These are a lot of things -- for example, around those pump jacks, around those battery stations where there's a lot of oil spilled and it gets into the water stream and that stuff. The ducks get it in their feathers and then they can't fly. All the drilling mud and stuff, the toxins that are being used in the drilling, the bears, the coyotes get into that stuff and their fur starts falling off and it gets into their system and eats out their insides. So all these things have to be looked at any time any kind of development is going to take place in order to try and preserve.
Anyway, when we were trying to negotiate a committee that our people would have a full participation on to manage these things, these are the kinds of things that we were looking at. Now whether we get to the stage where we're able to pull that off or not is still a question that remains to be answered.
Fred Lennarson: I'd like to supplement with figures that again I'm not right on top of because it's been several years since we did the exercise. But several years ago when we looked at the E.R.C.B., the Energy Resources Conservation Board, which approves these projects, these energy related projects, in Alberta, in northern Alberta in particular -- they were granting something like 12,000 licenses year as I recall, and doing something like 2-3,000 inspections. Now it doesn't take very long at the rate of 2,000 inspections and 12,000 licenses a year before there are all kinds of sites which never get inspected at all. I can provide those numbers if you want them. We have the documents on them.
Menno Wiebe: Bernard, there must be a reason for us being here, or for the Creator putting us here, if I can quote your earlier statement. I would think the thinking behind that statement is expressed widely by aboriginal groups elsewhere across Canada and other parts of the Americas and the world. But a concept that isn't understood very well when it comes to seeing the land as commodities only or trees and sub-surface things as resources for dollar-making in the world that is increasingly materialistic and therefore also destructive. Yesterday we asked a question about the connections to the earth and the water and recognized the presence of other representatives from the Lubicon Band here. So we're wondering if maybe one of your Elders or more would be willing to speak to this matter of being in your area and its meaning? Life after all is not only getting money and spending it, but also the meaning of being where you are. We did obtain a translator in the person of Adrian Houle who is with us and who thinks he can handle Lubicon Cree, if that's needed. So if this would seem in place, in no way to undermine the authority that has been invested in you as chief spokesperson but also recognizing that much of your decision-making happens in community. We've seen you consult with the Elders on all the big issues. If it would be in place to have someone speak out on the meaning of living there, the spiritual connection, we would appreciate that. I think we would like to leave that up to you to designate who you want or leave it open.
Jennifer Klimek: I'd just like to make one comment. As you can see, some donuts had arrived. We had planned on going through lunch so you could be on your way rather than taking a break so if any of you want to take a break and just go get something, by all means just help yourself, as well as anyone in the audience.
Bernard Ominayak: Menno, I certainly don't have any concern in regards to any undermining. Now if you were Mr. Siddon, well I certainly wouldn't take that at face value. Nevertheless, I certainly will ask the Elders if one of them are prepared to speak and I thank Mr. Houle for making himself available to translate if required. So maybe if after people have their donut then we can get on with that.
Menno Wiebe: While we're waiting for people to get in place I wonder if it would be in order to recognize the presence of Linda Winski who's on the Aboriginal Rights Coalition from Edmonton. She's present here. Also Raymond Yakolava from Norman Wells who represents the Dene. The Dene have interests in what's going on over here. He's been kind of quiet. Maybe he's out for the moment. Film maker and party to the Dene negotiations.
Adrian Houle: Good morning everyone, my name is Adrian Houle. I'm from the Saddle Lake Band. My Cree may be just a bit different, because regionally we speak each our own dialects. I'm more or less from right at the beginning of the tree line I guess, so I may sound a little bit more like a Prairie Cree. But in the meantime, I want to thank everyone for inviting me here and I'm certainly glad to have had this opportunity now to meet the Lubicons. I've heard a lot about them and what their dilemma is. To participate first-hand at this point, I'm certainly eager to do that. (Next statement in Cree)
Edward Laboucan: (In Cree)
Adrian Houle: I'm to translate now what Mr. Edward Laboucan has spoken of. He mentions the fact that sometime a long time ago, when people first arrived at Lubicon, speaking of themselves, everything was in harmony, everything was nice there. There was lots of forests, lots of animals, lots of resources for them. It went on that way for a long time. But eventually they started to see a lot of their traplines and their forests disappear, mostly because of developers coming into the region. These developers had absolutely no regard for their existence there in that region. There would be trucks travelling night and day. Their traplines would be bulldozed. Their livelihood was being absolutely disregarded. And what they're asking for at this point is some form of compensation for all the general damage that's been going on since the existence of the developers in that area.
Edward Laboucan: (In Cree)
Adrian Houle: He also mentions the fact that the wardens that come out about the wildlife in that country, they want to know what animals that they kill and they have to be accounted for, and they're only allowed to kill 1 moose, 1 lynx and 1 fisher is all they're allowed to kill.
Edward Laboucan: (In Cree)
Adrian Houle: There also has to be a registered animal with an ear tag on it before it can be sold.
Edward Laboucan: (In Cree)
Adrian Houle: The way he understands that this land to be is they are the sole owners of this land because their fathers and their forefathers were there before them. But now it looks as though they have absolutely no rights on those lands because of the way they're being treated. Everything has to be accounted for. Their rights seem to be diminishing as time goes on. (change tapes)
Edward Laboucan: (In Cree)
Adrian Houle: He also mentions the fact they should be compensated for all that they've lost in general damages, because the resources of the land that had been passed on to them have been stripped and they have nothing to pass on to their children, their grandchildren for future livelihood. He feels that they should be helped in the form of money, in the form of land, compensation and some sort of support systems that will help them in their livelihood and that they can pass on to their children.
Edward Laboucan: (In Cree)
Adrian Houle: He's very thankful today for being a participant in this meeting...and thanks you all for listening.
Jennifer Klimek: Thank you very much. I'd like to hand it down to Don now. He'd like to ask a few questions about the Treaty 8 and some concerns you may have about that. We'd also like to thank Adrian for his assistance. Thank you very much.
Don Aitken: First of all I'd like to thank the Lubicon Lake Band for the very informative morning that we've had. Yesterday we touched on a number of issues but today I think we've really gotten in a lot deeper and I think it really is educational for myself and I'm sure for other members of the Commission.
When I hear your stories and I hear the kind of uphill fight that you've been involved in it reminds me very much, of course, of the labour movement where we have a situation where our biggest struggle is to first of all be recognized and to be recognized as a legitimate part of society. And I think that is the real struggle that the workers and the aboriginal people in this country are fighting, because I think there are a whole lot of people who would like to marginalize other people so that they can continue their power over them. I think another example of what we're hearing today to try to discredit the Commission by saying that it's a political vehicle -- I think it's important to recognize that government has a job to govern, and governance is their job and it's not to try to marginalize people or to find reasons, another excuse, why they won't do their job. I think we've heard certainly about the court cases and the situation that has just compounded things and they'll find every reason not to accomplish it. I guess the concerns that I have as a voter in this country are that we should have governments that represent people and not necessarily people that consider some a legitimate part of society and not others.
I'd like to just ask you if you see yourself as being part and parcel or included in any way in Treaty 8? Do you see yourself as being -- or would you wish to be? I guess that would be the first question that I'd like to ask and then I have one or two follow-up from that.
Bernard Ominayak: I don't know. We've really never looked at it from that perspective per se. I guess what is more important to us at this point in time is to be able to get an agreement in place that would enable our people to start building some kind of a viable future for our younger generations. Now whether we can do that under Treaty 8 or whatever kind of a treaty or agreement that we may be able to make -- but in so far as Treaty 8 is concerned, we are confined in many ways to that treaty not because we're a party to it but, because, for example as I pointed out yesterday, within Treaty 8 there was 128 acres allotted per person and we had to kind of more or less go under those guidelines even though land is probably the most important thing in this fight. We've survived off those lands for many, many generations. We would certainly like to keep as much of it as possible. But then we're having enough of a big problem in trying to obtain what...lands are available under Treaty 8, we had to try and keep in line with what was committed under Treaty 8. For example, the other one was the surface and sub-surface rights. We looked at that. The treaty provides for full surface rights and sub-surface rights under the reserve lands and there are 16 sq. miles of the lands that were set aside in 1988 don't include sub-surface rights.
Don Aitken: Thank you. I guess just one other question in respect to any settlement that you would arrive at. I'm sure it seems rather, I'm sure it is frustrating to try and arrive at a settlement and yet it appears that one is in reach when we talk about what it takes to resolve it. Would you see this as one of the major concerns of the governments involved is that this would be seen as precedent-setting and therefore they feel that if there was a resolve here that it would just snowball across the country and that they would have all kinds of other problems. I guess it's so hard for so many people to understand why there isn't justice being done here, if there is another reason why it's not being done besides the fact that they just wouldn't want to be saddled with a precedent- setting event that would snowball for them. Perhaps you could just talk a little bit about that?
Bernard Ominayak: Again, I certainly can't speak on behalf of the governments as to why they are not prepared to settle with the Lubicon people at this point in time. As we look across Canada and also the various agreements that have been made by Canada and the many different provinces through any of these land issues or land matters, I think anybody that looks at them closely, they all vary to some degree because of that concern that you speak of -- creating precedents in the different settlements. They try to keep them somewhat different from another or in situations, for example, like with the Woodland Cree there. I'm sure they'd like to get all Woodland agreements right across Canada. But not everybody's going to be prepared to sell their people as happened in the Woodland. So there's some differences...The agreements that have been made vary. The other factor in a lot of these is that ...not all of them have so much available resources. So that's another factor. From our point of view, I guess these are the bigger ones. Another thing too that I pointed out earlier is that we've tried to keep our heads up and keep fighting for what we believe is rightfully ours for as long as possible. That's another thing that they don't like, Native people standing up to them. They look at us as the enemy that has to be defeated. I guess that's somewhat in line with what you have stated -- you know, if we were to succeed then other people may say, "Hey, these guys stood up." And then other people would stand up and that may very well have a snowball effect.
But at the same time, even though things may vary somewhat, you see a lot of different aboriginal peoples...are forced into situations where they don't have any option but to take a stand, like us in 1988. Our backs were up against the wall, so we had to say, "Okay, enough is enough." We were forced to do that. We tried the courts. We tried the political aspect of it and that didn't work. So we had to do what was left and that was to try and protect our homelands the only way we could. But there again, you know, they have the army, they have the police who are more than willing to shoot aboriginal people. So these are all factors that come into play when you're forced into these situations. It's gotten to a point where a lot of people, especially myself, if we are to continue this battle and if we have to again go back to the ground, there's a serious question that I have to deal with again. And that is if I'm prepared to put my life on the line, because it's gotten to that point where we either have to be prepared to die in trying to protect my peoples' interests and my children's interests. And if I'm not prepared to do that then there's no point for me to go stand and blockade. We saw what happened last time. These guys were more than willing, very anxious to shoot our people. And that's something that I don't think anybody can just walk away from, if you're prepared to stop them. So you then, there's really serious consequences that we have to deal with in these situations.
They keep us apart too, on purpose, like in the Northwest Territories. They're fighting a battle over there. They're fighting battles in Saskatchewan. They're fighting battles in Alberta. But they try and keep us apart defining and re- defining the kinds of rights that we may be pursuing. They try and put us in little boxes to keep us apart. At this point, we don't fit into any of the little boxes that the federal government has for any kind of claim. And that's one of the things that they've been telling us, because as long as you don't fit into a box, then supposedly you're not entitled to any kind of funding that's available. When you're pursuing certain claims then they will provide some kind of funding. But if you don't fit into a box, you don't qualify. There's a lot of different things that come into play when we look at what kind of claim you make -- for example, what kind of treaty may be in the area. So all of these are factors.
Fred Lennarson: I'd like to just make a comment on that too if I may. I don't think that they worry about legal precedents because I don't think they have any respect for the rule of law. What they worry about is a political precedent as Bernard suggests. If they manage to negotiate a settlement like the Woodland Cree, they hire the lawyer, they pay the lawyer, the lawyer negotiates the agreement with them and then they pay people $1,000 per family member to accept the agreement, that's not a very good precedent for other aboriginal societies. But they try and use it as a precedent. On the other hand, if there is a better settlement, they never consider that a precedent. Every one of these struggles is a struggle on the part of the government to delimit the rights involved to the extent possible, and precedent is not of concern to them except to the extent that they can use it. If there's a bad settlement they try and use it as a precedent. If there's a settlement that they worry about like the James Bay settlement, then they have said to us in negotiations I don't know how many times, there will never be another James Bay settlement. Now the James Bay settlement is controversial. Some people think it's good and some people think it's not. But from the government's point of view there's no question in my mind, they see the James Bay settlement as providing the James Bay people with an ability as a society to continue to fight for their rights. And when they say there will never be another James Bay settlement, what they mean by that in terms of objectives is they don't want aboriginal societies to continue to be able to assert their rights in Canadian society. They want Woodland Cree settlements.
I will close by making one comment. There's a guy named Ken Colby who started out as a CBC stand-up journalist and was then hired by the oil companies and did their advertising for them for a while trading on his earlier journalistic career, and then the federal government hired him to be the official Lubicon spokesman. For a long time he was the only one who was authorized to speak on behalf of the government regarding the Lubicon situation. If you called the Minister of Indian Affairs in Ottawa you'd be referred to this PR guy in Calgary as the official Lubicon spokesman. Colby said something once which may have been the only truthful thing he ever said in his life or at least the only thing that I found credible. He said, "We could sign a check tomorrow for $170 million and settle it. It would be easy to do. But what kind of precedent would we set? If we did that, what kind of message would be sending? We'd be sending a message to all of the aboriginal societies in Canada that you shouldn't even sit down and talk to the government until you've embarrassed us internationally, blockaded roads, appealed to the United Nations, boycotted the Olympics and so on." Obviously, the Lubicons did absolutely none of those things until their they were put in a position where they were given no alternatives. It isn't as though they started out doing that. They started out trying to talk to the government about resolving the thing, and as they were increasingly put to the wall, they fought back as best they could. But that's the one truthful thing Ken Colby said, and I think it provides great insight into the way the government perceives these things. "What kind of precedent would we be setting if we did it and what kind of message would be sending to other aboriginal societies?" I am absolutely convinced that the Lubicon people are perceived by the government of Canada as serving as inspiration to other aboriginal people to stand up and fight for their rights and therefore the government seeks to crush them. I don't think they want a settlement on their terms or on anybody else's terms. I think they want to finish them. I think if the Lubicons were prepared to accept their "take-it-or-leave-it" offer or anything tomorrow, there'd be five years of negotiations talking about implementation of the agreement which would then collapse, because I don't think they want the Lubicon community to be on the face of the earth.
Jacques Johnson: Returning very briefly here, I would just like to ask the Chief...how differently are the Lubicons being treated now from the regular Treaty 8 people? Do you have all the benefits that accrue to these people? Are you still left out in limbo in terms of all the services that are being given to treaty people say in Grouard or Atikameg or wherever?
Bernard Ominayak: Father Johnson, I don't exactly know what all kinds of services are being provided to the rest of the Treaty 8 peoples. We certainly have not been receiving many of those benefits. We've received some housing since 1980-81, 4 units per year. And welfare. Now, since the TB epidemic we've had a little Medical, CHR, Community Health Worker who sets up appointments for people in Peace River and I think has a couple of bandages in the community. Through that we've got a vehicle that transports people back and forth. The other thing that I think maybe I should mention, I didn't mention yesterday. We do have one of our Elders back in the hospital. He's in serious condition. The TB has reactivated apparently, at least that's the information that we've got. Hopefully we'll be able to check in with him before we go back. Other than that, like education, we don't have a say as to what happens with education. I think most of the other Bands have their schools and so on and they play an important role as far as the curriculum is concerned. We don't have water and sewer. We don't have any money for economic development so they say that we'll be a bigger problem if they give us more money. They give us a little bit of administration money. We have a little office where we work out of. And that's basically it. Unless Fred here can...
Fred Lennarson: The situation is one where Bands with reserves qualify by formula and program for all kinds of monies. Schools are amortized over a 20 or 25 year period. There is money for road maintenance and the like. The Lubicons don't have recognized reserve land. They don't qualify for any of these things. That's what this settlement agreement is all about. It is to try and create a community where people can live and meet their responsibilities to each other and to their children and to their society. There's been, for example, a health unit in the budget projections of National Health and Welfare every year going back to at least 1984-85 that I know of. But the Lubicons have never gotten a Health Unit. They don't have a reserve.
Michael Asch: I'm going to follow up on this and move a little bit into self- government, but maybe not too much. I've been trying to think about how I would go about asking a couple of questions here. They're maybe at one level somewhat technical, but at the same time I think they will help me understand something about what the settlement is all about and where some issues might be or might not be.
I'll start with something that seems really very ABC and very arcane. The government of Canada, in the 1989 agreement, makes it clear in 8.3 that they want this not to be considered a land claims agreement. I presume that that means with respect to Section 35 implications of having this agreement as part of the constitution of Canada. There's nothing in your proposal that says one way or another whether you consider it to be a land claims agreement, that I saw. And I don't know whether this is something that's important, not important, and I'm not sure who to ask. So I ask you to give it to anyone you think you'd like to.
Bernard Ominayak: Well, first of all, Michael, we've always stated that we retain our aboriginal title and we have basically moved forward and pursued the aboriginal rights avenue. That's pertaining to the overall aspect of any agreement. But these were the kinds of issues that we had very early on put aside so that we could try and arrive at the elements of an agreement, not defining what kind of a claim per se but rather trying to arrive an agreement at which point the definition of the nature of our rights would be moot if there was a satisfactory agreement in place that would enable our people to start building a future. But at no point did we ever say we are under any kind of a specific definition of the claim, but rather we moved forward with an aboriginal rights claim and we've always maintained that direction. Just while we were trying to move things, while we were at the negotiating table, we were prepared to put that definition aside. But maybe Fred could say more about that.
Fred Lennarson: Michael, my interpretation of 8.3 is the same as yours. It's our interpretation generally and it is in our judgement an effort on the part of Canada to say that this is not a new treaty, this is not a new agreement, this is Treaty 8. At the same time that they claim the Lubicons are part of Treaty 8 they also, as part of their settlement agreement you will note, want the Lubicons to sign an adhesion to a treaty that supposedly already covers them.
Michael Asch: Exactly.
Fred Lennarson: The Lubicon position, as Bernard has indicated, is that they retain existing aboriginal rights, continuing aboriginal rights. They've never ceded their traditional lands in any legally or historically recognized way. In 1985 during the discussions with E. Davie Fulton the Lubicons said, "We want to retain control of our own affairs, we're prepared to negotiate some rights, prepared to cede some specific rights and we intend to retain other kinds of rights. We intend to retain certain rights with regard to wildlife management and environmental protection over our bigger area, for example, but we are prepared to cede some sub-surface rights and so on as part of an agreement." Mr. Fulton asked the Lubicon people if they could put in writing how they saw administering their own affairs, Lubicon government. The Lubicons prepared a Lubicon government paper and it is attached to this draft settlement agreement. What it specifies essentially is that the Lubicon people are prepared, want to manage their own affairs on reserve subject only to the Canadian constitution, and here we're talking Bill of Rights stuff basically. Mr. Fulton came back and said, "Well, what about things like criminal law and long-term incarceration." And the Lubicon people in negotiations said, "Well, look, we're not interested in maintaining institutions for long-term incarceration and so on. But we are interested in the jurisdictional question." So what the Lubicons proposed to do is adopt identical measures with regard to some things like the criminal code and then work out a cooperative relationship with Canada regarding how this thing is administered. But they'd retain their jurisdiction and right to govern their own affairs. Now what has happened since, the government tried to bring them under the government's self-government legislation and so on, and where we ended up with all of that is agreement to sit down and try to hammer out an agreement which would take into account both the government's self-government legislation and the Lubicon position on self-government. So I guess the bottom line is that it's unresolved. The government continues to try and delimit and the Lubicon position has remained consistent through this period.
Michael Asch: So is it...(change tapes)...
Bob Sachs: ...Michael, you see through their agreements. And every time we talk to them we find that we're talking a full and final settlement with releases, and they want those so desperately to cut off anything in the future, particularly this whole question of aboriginal rights and title and what that means.
Michael Asch: I'm still trying to just get a little bit of clarification. Is the position then that it would be possible to go ahead with an agreement and leave for subsequent negotiations with the federal government the jurisdictional question? Or are the jurisdictional questions fundamental to the position that's being put forward now and would need to be negotiated now before any other aspect of the agreement would be acceptable?
Fred Lennarson: I appreciate your question, Michael, and it's a really complicated area. The Lubicon position is that the jurisdictional issues are essential. But there are all kinds of issues that are essential. They've got pressing problems in terms of medical care and employment and education and all the rest of it. It's a question of how you balance it. What was attempted around the negotiating table was an agreement that certain things respecting jurisdiction would be agreed and the details would then have to be worked out over time. That's not something that any of us are very comfortable with but it is a situation that we faced -- especially at that point, and that was before some of the more recent developments -- we faced a situation of having to try and hammer out with the government an agreement in terms of the kinds of powers that the Lubicon people would be specifically exercising. So it is not an easy, simple crisp question, but those are the objectives and those are the things that we were seeking to do around the table.
Bernard Ominayak: Michael, maybe just an addition to what Fred is saying. The last time I met with the Minister in trying to get negotiations going, what we talked about was maybe the possibility of looking at a partial settlement, on a without prejudice basis, with no kind of a release whatsoever in order to try and start building the community. That was the only reason why we said okay, we'll get our people involved and see what is going to be possible, if anything. We were to leave the bigger issues like compensation aside to try and find a process for solving them whether it be arbitration or in the final analysis going to court. But that would mean again no releases until all these matters were dealt with and resolved...These are all really serious factors that we have to look at. For example, I don't know what is going to be possible, or if anything is going to be possible with all the discussions and talks that have taken place in so far as the constitution. What are the aboriginal people going to be able to get in so far as the constitution? What rights are going to be recognized by the federal government? We don't know if anything is going to change from what is actually in the constitution at this point. The other factor is that we have to look at is what has already been dealt with, or what kind of agreements have already been made. For example, in the treaties, to what degree have the aboriginal people ceded their rights? These are all factors. What are the rest of the aboriginal people going to do in that whole area? We don't know. These are all factors that we gave to take into account and maybe, depending on when we get to some serious discussions on the nitty-gritty of things by way of finalizing an agreement, these are all considerations that our people have to seriously look at, because as an aboriginal person I don't think any of the Lubicon members are prepared to just cede that right of self-government. We don't have that right to cede in the first place. So these are factors and serious considerations that our people have to look at.
Michael Asch: I understand. I just have two questions that I hope -- at least I'll address them quickly. I don't know how long it might take you to answer them. I certainly don't want you to rush. The first, this is more for my fellow Commissioners so they know how much of a hog I am, there are other agreements in which the federal government has proposed that whatever settlement is taking place with respect to land and resources is without prejudice to whatever aboriginal or treaty rights might exist with respect to governance and jurisdiction. Has that been proposed to you and have you had an opportunity to deal with it, because of course various Nations have dealt with that differently.
Bernard Ominayak: I guess that's one of the things I was trying to bring up. A lot of the different groups are making agreements. My understanding with the Northwest Territories is that again they want basically to get rid of those people as people on paper. I don't think they're prepared to do that. That is one of the factors that we have. In direct negotiations, I haven't been involved in direct negotiations. Whether those discussions surrounding those points that you brought up, I don't know, Michael, maybe Fred?
Fred Lennarson: Put the question again, Michael, because I'm not sure what you're asking. I think I know what you're asking, but I'm not sure.
Michael Asch: I do know that in other agreements when an impasse has been reached on the question on whether these agreements are going to extinguish aboriginal or treaty rights, the government has come up with wording that it will claim will give relief to the aboriginal party. And that wording will say that whatever is taking place in this claim and whatever you are signing is without prejudice to whatever rights you may have through your aboriginal or treaty rights in the area of governance and jurisdiction.
Fred Lennarson: The wording is a little different than the wording used in Lubicon negotiations which is why the question is funny to my ear. In negotiations, the Lubicons agreed to enter negotiations without prejudice to the position of both parties just to see if we could agree on anything, if we could agree on land, if we could agree on housing, is we could agree on water and sewer and economic development and compensation and the like. And we put off the whole question of what kind of rights we're talking about. The government has, throughout the process, been trying to define Lubicon rights as an outstanding treaty land entitlement and that's reflected in their documents and you can see it. Although their position is -- as in the case with most of their positions -- it's never very straight-forward -- they claim the Lubicons are covered by treaty, but they want the Lubicons to sign an adhesion to treaty and so on. We have never really gotten through the process on the elements to get to the question of the nature of the rights and how we handle it. The Lubicon position around the table has always been that when we get to that point, the Lubicon people are prepared to talk about ceding specific rights with regard to specific benefits, but are not prepared to cede, to provide a blanket cessation of their aboriginal status or aboriginal rights. We've never really gotten to the question as you put it because of the way that negotiations have proceeded.
Michael Asch: That's fair enough.
Bob Sachs: As I indicated to you earlier, that exact scenario was put to them, in fact, last Friday, that the agreement with the Ouje-Bougoumou was without prejudice to their rights to sue the federal government with respect to those sorts of questions. The response from the federal government with respect to that scenario is, because the province is taking the position that there is no such thing as aboriginal rights, then we can't enter into that sort of an agreement which is at odds with what the province is. In order words, again, they want a full and final settlement with all three parties.
Michael Asch: Well, hopefully we'll be able to...
Bob Sachs: So that's the present hang-up.
Michael Asch: I understand. Just one last thing. Has the federal government or the provincial government at any point -- because I notice nothing in any of the documentation that we have -- ever come up with any proposals on what self- government might look like in this area, or have they just been quiet on it? Is there anything that we could look at that they might have come up with? Or have they not put up anything on it?
Bob Sachs: Other than some very specific items that they are sort of willing to talk about -- one of them is policing, another one is the possibility of a court room -- but those again, Michael, are very program-specific. Overall self- government...
Fred Lennarson: What they have put forward, Michael, is their own self-government legislation and guidelines. And they have said that any powers with regard to Lubicon self-government would have to be negotiated -- many words have been used, taking into account, consistent with -- and we've debated those things They've said it's got to be in line with their guidelines, and the Lubicon position is that it has to be in line with the Lubicon position on management and self- government. So that's what's been put forward. Their self-government legislation guidelines, copies of which are attached to the materials you have and you've probably seen before, and the Lubicon's self-government position, a copy of which you also have.
Bernard Ominayak: I guess this is a lot like, for example, Treaty 8. The federal government and the provincial governments have one definition or description of Treaty 8, while, if you speak to the Elders of Alberta who are part of Treaty 8, they have a totally different version of Treaty 8 and the reason why they signed Treaty 8. And then we speak of self-government, well the federal government is talking about more limited self-government, while Native people are talking about total self-government. So that problem that's across Canada is the same problem that we have at this point. We have our own idea and definition of self- government, but that's not necessarily in line with what the government is talking about. I guess a lot is going to dependent as to again, what kind of an agreement we may be able to pull off.
Menno Wiebe: Further on self-government, we've learned of some of the difficulties with regard to health care and also education. Would you be prepared to say something about your vision of self-government with reference to school and health care?
Bernard Ominayak: Again, Menno, I guess what we would like to see in place for our people at this point is dependent upon what kind of agreements we're able to come up with. But in so far as education, what we have in the community at this point in time isn't working. We know that. We don't have any say as to what takes place at the school at this point. We don't get involved with the curriculum. We have some of our people playing aides to the teachers now, which is a step I guess in the right direction, but in so far as the school itself, we have very little input. While if we were able to get an agreement, we certainly are going to be directly involved with the school and also with the curriculum, the selection of teachers, how the school is run and the whole works will be under the peoples' guidance rather than the provincial government. One of the restrictions that the school has right now is that they are not to get involved with the leadership or with the people which they consider would be a political involvement.
Now we just had a couple of incidents -- three in fact -- with the principal there. They were told not to get involved in politics, but at the same time she's writing letters to different people like Norcen and Daishowa asking for grants from these companies to take the kids on a field trip. So Daishowa sends a couple of hundred dollar check, which we said had to go back. We finally convinced the teachers that that money would have to go back because they are one of the biggest enemies and we certainly shouldn't be getting involved in that way. So my point is that while we don't get involved with the school and have no say in it, the principal is certainly getting into politics in the wrong way. I don't know where she's getting her guidance from. There's an article apparently already in the Peace River paper saying that it's the students that suffer because Daishowa is a good corporate citizen and they are providing money to the kids to go on the field trip. And they're only talking about a couple of hundred dollars. I don't know how far the kids would have gotten with that. Anyways, she also had asked for money from Norcen, who is one of the bigger enemies again. She's been told time after time that she shouldn't be doing these things, and if she's going to be asking for money from the enemy then she should at least be checking with the leadership of the community prior to doing so. She still keeps doing it and keeps doing it. We've notified the head people at Northlands and there hasn't been a correction made to this, so it's getting to a point where a lot of the parents are saying what's the use, because even with this fight going on the teachers aren't allowed to be talking to our kids about the reasons for the fight and what the government's doing to our people. There's a book that was brought out last November that John Goddard wrote, I'm sure a lot of you would have seen it. Now that can't even be in school, the kids aren't reading that book in school. This is why this fight is on, for our younger generation. They've got a right to know what is going on, why we were fighting day and night to keep the hope that we do get something in place for them.
These are some of the things that maybe are a little out of context here, but they're part of the overall picture. We have these problems and they're totally unnecessary. One of the other reasons why I brought it up was one of the teachers said, "Well, kids need the money to go on this field trip so they could learn of other aboriginal people and what's going on." The kids are the ones that are supposedly writing letters to Daishowa and so on. So I said to them, if the teachers were doing their job, I'm sure the children wouldn't be writing letters to the enemy...
Menno Wiebe: To what extent is the Lubicon community prepared to administer their own school including the selecting of staff, curriculum and administrative procedures generally?
Bernard Ominayak: Menno, I think that's a big problem at this point in time, because we don't have the money to be hiring the teachers or running the school, even though some of our kids tuition is being paid for by Indian Affairs. That's directly between Northlands and Indian Affairs. If we were to take over then we would be able to control, for example, the tuition agreements. We would have more say as to what happened in the school. But we haven't done that and until we do take over, then we have very little say.
Fred Lennarson: I'd like to supplement Bernard's comments because I think the Commission needs a full appreciation of the dynamic involved. A couple of years ago people writing to Daishowa expressing concern about the plight of the Lubicons received letters from Daishowa attaching an article from the Peace River Record Gazette showing Lubicon kids on a tour of the Daishowa plant and the letter from the Daishowa official writing to people said: "With regard to your expressed concern about Lubicon children, the attached article shows our concern for the Lubicon children." The kids had been taken to Daishowa, their picture taken by Daishowa photographers, I'm not sure of this but very likely the article written by Daishowa people as well...and the kids were used in this way without consulting their parents. The parents were not advised of this trip. The principal was told by community leaders if she's going to be making contacts with possible outside funding agencies and outside corporations to please consult with the community leadership because this is a complicated, delicate situation and the Lubicon people don't want their children used as cannon fodder by companies like Daishowa, which was clearly the case. We have copies of the letters and we can provide them to the Commission.
The Lubicon parents turn around and this recent trip is planned and money has been solicited from Daishowa. Lubicon leaders told the principal that the community would provide the money but the principal called a meeting at the school the next day and told the kids that they couldn't go because she'd been instructed by community leadership to send the Daishowa money back. That isn't what she'd been told. What she'd been told was to send back the Daishowa money and the community will provide the money instead. As Bernard said, it was only a couple of hundred bucks.
This history goes back many years. Seven or eight years ago they came in with a proposal to build a new school and provincial officials made a request of Indian Affairs to contribute the majority of the funds which had supposedly been approved by the Chief and Council. The Chief and Council in fact hadn't been consulted. Indian Affairs was going ahead and planning to provide money on a falsified approval from the Chief and Council. When the Lubicons found out about this, they asked the Northlands School Division to please hold off on construction of the new school because these things, as I indicated earlier, are amortized over a 25 year period. If the money goes into a provincial school where the reserve is not to be built there would then be problems getting the money for an on-reserve school, and so on. They were asked to hold off. They declined to do it and indicated they were going to proceed anyway. One of the people from Northlands School Division walked into Bernard's office, threw some plans on his table and told Bernard to have the local school committee approve this. Bernard gave it to the democratically elected school committee and they requested that the School Division hold off on construction of the new school. At the time the School Division was run by a man named Fred Dumont -- they dismissed the Board because of a scandal in another community -- who announced that the democratically elected school committee didn't represent anybody and that he was going to proceed with construction of the school. So the school committee came to the community in a community meeting and asked for support. A petition was circulated to everybody in the community. 95% of the people said they wanted construction of the school postponed. Dumont then proposed to have a community meeting. He sent his people out to organize a community meeting. He sent letters to all of the parents saying that they were being irresponsible parents, that their kids wouldn't get any education, that construction of the school would provide jobs and that there'd never be a new school if the parents didn't support its construction now. And then, a day before the meeting was to be held, several pick-up trucks full of booze were brought into the community to discourage a good community meeting. The community still told Mr. Dumont that they did not want a school built with federal funds at this time and asked again that this thing be postponed. Dumont then called a second community meeting which went the same way. He again rejected community wishes. The then provincial Education Minister -- a man named King -- announced that the Lubicon people didn't have any concern for the education of their children but he had to have concern so he was going to proceed with construction of the school after all. It was at that point that national church leaders came in and international attention was focused on the situation and the government backed off. But those are the kinds of problems that have existed with the parents and the operation of this school in the community.
Sandy Day: I just wanted to make one comment on your proposal. To me it's such a fundamental difference in thinking in that in your proposal there's a well-rounded -- it works in a circle -- in that Elders are brought into the process, the young people are brought in and it is a community-wide, full range program. I did think issues like this, they're not being fully addressed because the government is thinking in a linear way and it's just separating and I think I'd like your comments on that. Also on a brief vein, why the vocational school, when the provincial government agreed to it, why it couldn't be on the Lubicon land, because then it took away the whole meaning of having it.
Bernard Ominayak: I'm sorry, could you maybe repeat your earlier question?
Sandy Day: I was just commenting on in your proposal how you -- I really respected your area on education and how it's tied in with your social-economic -- that it is well-rounded. And I said I think it's a reflection of how you're thinking in bringing in your elders and having them work with your young people, having your vocational school set up so that your young people training there will go out into the community and work. It's very much a full circle and bringing back together the community. To me, it's so different from how our government looks at it in that it's very linear, that it's separated -- like you said earlier, it's compartmentalized. I'd just like your comments on that.
Bernard Ominayak: I guess, as I spoke to it some yesterday, I pointed out that we were trying to keep our ways intact as much as possible, what has worked in the past where we had all people involved in whatever we did. There we were looking at that tradition, to try and carry it through the educational system, because we're -- on one hand, going away completely from one way of lifestyle to another. To try and adapt into that we needed the involvement of all the people -- young, old and the mixture that needs to be there. That's what we were concentrating on. Also trying to keep the family ties together which we were dependent on in the past, because in any society you have some that are good in different areas. Like we had some good hunters and a whole lot of the community was dependent on these hunters. Some were better trappers and we were dependent on those. Some women were good at different areas, like some made better hides or made better moccasins and all these different things. Even though all the women were involved in a lot of this stuff, some were better than others. So we had to try and utilize the different people throughout the process in whatever they were good at. For example, out medicine men -- there were some stronger than others, so we had to point to those resources too. So all these different things we've learned from the past and hopefully we're able to keep that intact as we make that transition from one way of life to another. I guess that was the thing that we tried to keep in mind as we tried to plan as to what may be possible and what we hoped would work. That again applies to game-ranching, you know, whether the buffalo are going to adapt and how well do they adapt, what does it take to raise them, how hard is it to keep them. These are all questions that we were looking at. Also the meat is a lot like the moose, so the taste is similar so it wouldn't be that difficult. If it would have been a goat, for example, well, maybe nobody would want to eat the meat. So these are the things that we tried to plan for, we tried to look at. There is again saskatoon berries and cranberries and all these things which are natural to the area. Hopefully, if there are hybrid saskatoons maybe there's going to be hybrid cranberries. So we keep looking and listening and hopefully we're able to make the transition when the time comes. Right now there's nothing in place and also to try and get our younger ones to start gearing up to certain goals. That's another thing that we tried to look at. But it seems like the experience that we've had in looking at all these other Indian Nations that have been dealing with the government for quite some time -- it seems like the federal government doesn't want to see Native people get on their own two feet. They would provide monies to a certain point, but if the people are doing well and they're serious, then the government seems to want to pull back. They seem to want to keep the bridle in their mouths so they can control. That's one of the bigger -- another issue that's been a factor in all...(change tapes)...
Fred Lennarson: ...for vocational training. The federal government has jurisdictional responsibility for Indians. The way that they sort this thing out is that the provincial government builds vocational training centers in places like Edmonton and Grande Prairie, and then the federal government will pay for seats for Treaty Indians. However it doesn't work very well sending northern bush Indians to Edmonton for training for things like carpentry. The drop-out rate is almost 100%...this has been something that the Lubicon people have worked on for years and years. The Lubicon people have to maintain heavy equipment and farming equipment and so on to do what they want to do, plus they are looking to a big development phase to try and rebuild their community -- roads, water, sewer, houses, community facilities and the like -- and they wanted to use this 5, 8, 9 year construction period to help their people pick up vocational training skills. But that means the vocational training has to be provided on the reserve. You can't be building houses in Little Buffalo and having your people learning carpentry in Grande Prairie. You can't put those two things together unless you have the training in the community. So the Lubicon people looked at the number of people that they had, and the kind of course offerings they wanted. They consulted with other aboriginal communities in the surrounding area and asked if this kind of facility would be of interest to them as well, so that this would be kind of an area institution for people. There was a great response to that. Other aboriginal people said that they would like to have that kind of training in a northern aboriginal community.
So that was what the Lubicons were pursuing when they sat down with the federal government in December of '88. The federal government said no vocational training center, but we have lots of programs that you can apply to for subsidies to go someplace and get training. But no facility, no building. There are provincial and federal programs both to buy seats to run the thing when you get it set up, but no capital construction money, no money to build the facility. Premier Getty and Bernard sat down and talked about the problems with the federal government offer, and this was one of the topics that was raised, and it was one of the things that was specifically identified when Premier Getty found the federal "take-it-or-leave-it" offer to be "deficient". The Premier proposed to make a provincial government contribution of $3 million which is what this facility was budgeted at. The plan for the facility, by the way, came from people in provincial Advanced Education and Manpower. We went and consulted with them about vocational training centers to provide the kind of training that we're talking about, about what would be required for space and equipment and one thing or another. That's where the numbers came from. They came from the provincial department, those are the people in the business. At any rate, Premier Getty said that he would be prepared to put $3 million into vocational training. When he and Bernard talked he knew very well that we were talking about a building here, a facility. He said, "We'll turn it over to my provincial negotiators to sort out the details of how this thing is to be done."
So it went to the provincial negotiating team and they said, "Well, this is very complicated and we'll have people look at it and look at the jurisdiction questions, because we build these things but we build them on provincial land, not on Indian land, which is federal jurisdiction. We've got to figure out how to do that. In the meantime would you be interested in thinking about the kinds of programs we offer normally. We'd like to bring in people and tell you what these programs are." So we said bring them in. We will report back to the community on what you tell us. One of the things they told us was they had a little experiment in academic up-grading in Whitecourt. They had a little trailer, computerized programs, individualized programming where individuals would sit in front of a computer and operate at their own speed. They would be given an assignment on the computer. They would perform the assignment and they'd do it as many times as they needed and then move at their own speed. It was a little thing, I don't know, with 10-15 students in it and it went up to grade 10 and most of them were in grade 10 when they started it and it was working very well and they liked it, although it was in education terms, creaming. They sure as hell weren't starting with people who couldn't read and write. But they said, "Would the Lubicons be interested in this kind of thing? We can bring this up and put it in your area and people can attend it." So the Lubicons came down and looked at the trailer in Whitecourt and figured maybe some of their high school students could benefit from this kind of normal government program initiative.
We continued to push for a reaction from the provincial government on construction of the on-reserve vocational training facility, continued to push for 6 or so months. We were talking for 18 months but not on this one item...They said the people that need to look at it are on vacation, aren't available, and there was one problem after another. Finally when we pushed them, when we tabled the draft settlement agreement in an effort to try and pin down agreement with them on something, they told us that now the proposal was to expend $2.5 million setting up the trailer off reserve, staffed with provincial government employees to provide academic up-grading for the Lubicons. And that's what happened -- it was $2.5 million to set up a trailer and operate it for five years. That's where the proposal went.
Most recently, in the federal government's proposal, federal negotiators said they were making good progress and we were going to get a vocational training center and we were advised that it would be a $3 million vocational training center like the Lubicons were projecting in their draft settlement agreement. However what is in fact in the new federal government proposals is a letter from the Regional Indian Affairs Director General to Bob Sachs informing Sachs that the province is now considering a proposal from some unknown source -- we didn't make it -- a proposal to build a little high school industrial arts shop as an attachment to the high school. It has a 2-stall automotive shop and a wood-working shop. And so this same Indian Affairs Regional Director General phoned me the other night, last week, trying to get together with me concerned about the establishment of this Commission, and he said, "I understand you've got some problems". I said "Yeah, we don't have a vocational training centre, an old peoples' home. We don't have a community hall. We don't have a community rec centre." He said, "Didn't you see my proposal on the vocational training centre?" I said, "Well, I saw the letter where you say the province is considering a proposal to build an industrial arts shop onto the high school." And he said, "Well, I think a creative architect can transform that into pretty much what the Lubicons want." And I said, "Well, it's going to be quite an architectural feat to transform a 200 sq. meter 2-car automotive shop and a wood-working shop into a 2,500 sq. meter community improvement shop and vocational training center where the Lubicon people are proposing to maintain road graders to maintain their roads, maintain 4-wheel drive tractors for their agricultural operations, pre-fabricate elements of their housing program like roof trusses which they can do in the winter and when they get into the building season they can use them." He assured me a creative architect could solve that problem.
That's where things are right now. What we've got is a letter from an Indian Affairs official to the Lubicon lawyer Bob Sachs here saying that the province is considering a proposal to build an industrial arts shop onto the high school, and that with a creative architect he's sure that everything's going to turn out all right.
Menno Wiebe: This Commission has the dubious task of trying to hear with both of our ears and then learning as much as we can about the truth of the impasse. While we have the Lubicon community well represented here by your lawyer, your Chief, your advisor, and or course by the others, I would think that one of the formulations we will want to make would have reference to the regulatory procedures. I think you have told us today that the political framework -- be it provincial or federal -- and its various departments and the courts are not channels that accommodate Lubicon interests in the negotiations. In other words, the regular official pathways of resolving disputes seem not to be working for you. Maybe including the negotiations. Have we heard you correctly on that? I'm assuming that one reason this Commission has come into being is to constitute an alternative mechanism for getting at the impasse. Maybe the question -- are you telling us that the regular means of dispute settlement are not working for you? This is not an attempt to put words in your mouth, but I think we need a statement from you so the Commission will have a basis for verbalizing its findings.
Bernard Ominayak: Menno, I guess what we've done is we've more or less led you through the experiences we've had in trying to deal with both levels of the Canadian government up to this point. We've tried different routes. We tried the legal avenue through the courts and that hasn't worked. We tried the political process which I think is one of the reasons why we're still around today. There's a lot of people who've tried to support us in many, many different endeavours that we've pursued. That's not to say that we're any closer to a settlement than we've been in the past. I don't think that's anywhere near at this point. I don't feel that anybody needs to put words in our mouth. I think we see and hear the attitude and what is being dished out by both levels of government. I guess one of the reasons we're here is to try and present the facts as they are and the way we saw them and lived through the experiences. We also see the hardships at the community level that our people have been forced under by governments and also the people that are interested in our natural resources. I guess hopefully the Commission, after hearing our side of the story, that they have the same opportunity to hear the others and their points of view in regards to the Lubicon issue. And through that process I would hope that, or would welcome any recommendations that this Commission may have towards resolving the long outstanding issue of the Lubicon people and their rights and how it may lead to a fair and just resolution to this situation. At this point, we certainly can't go beyond that to say, this is what we need and so on. But rather we await the findings, and if there are recommendations in any of the different areas that we pointed out, we would be more than pleased to hear them and see how we can utilize whatever recommendations may arise in any of the areas that we've spoken to you about, whether it be how to negotiate or how to use the courts or maybe how do we deal with self-government in our package or education. Please feel free to let us know what you may feel or hope would be possible. It is true that we're under a lot of pressure from both levels of government, and also the many multi-national corporations that we're faced with. But nevertheless, we're here and we'll try and make ourselves available at any point, whether by phone or if there are any more questions by any of you within the Commission. If you need further information or any of the documents that we may have we will try and make them available to you. Also if there's going to be a need that we come back at any point we would certainly try and make ourselves available for that too. Other than that I don't think there's too much I can say at this point. I guess I'll just hope for the best. I'm certainly glad that you do have a lot of good people on your Commission and people who have a lot of experience in many of the areas, especially in northern Alberta. I think that's real plus. And hopefully you'll find it within your hearts to support us after you consider all aspects of this situation. We certainly welcome any ideas or recommendations. I don't have to repeat myself on that. Feel free to call us anytime if there are questions. Either through Fred, Bob or Jim. I guess that's all. I thank you all for inviting us here. Hopefully we'll see you soon.
Jennifer Klimek: On behalf of the Commission, I'd like to ask if anyone has any further questions for Chief Ominayak or any of the other people? On behalf of the Commission I'd very much like to thank you for your day and if you have anything further you'd like to say now or that you think we may have missed? Once again, we'd like to thank you. We very much appreciate your time and your effort in getting down here. We realize it's a very long drive for you. I know for one -- and I'm sure I'm speaking on behalf of the other Commissioners -- we learned a lot in the last two days. It was a real opportunity to hear your side of the equation and to have you explain it to us. We only hope that we have the same opportunity from the federal and provincial governments. As you know, we have not had a response from them as of yet. As far as our timetable, so much is going to depend on that, but we will certainly keep you apprised, as well as the public, as to what our next step will be in the process. I'd just like to thank you for coming today. We'll close for today and once we get our timetable we'll be sure to let you know and to advise you that you're all more than welcome to come and listen to any further proceedings. Our aim is to have it in public so that everyone has an opportunity to hear and listen and evaluate on their own what is going on and what both sides have to say. We'd also like to take this opportunity to thank the Basilica for the use of their facilities. It's been a very fine facility and very useful and this may well be where the further meetings are going to be held. We thank them very much for their donation of the place.
Go to: Transcript of Lubicon Settlement Commission of Review Public Hearing - Day Three