Deputy Minister Dan Goodleaf Visits Europe

Lubicon Lake Indian Nation
Little Buffalo Lake, AB
FAX: 403-629-3939

Mailing address:
3536 - 106 Street
Edmonton, AB T6J 1A4
FAX: 403-437-0719

April 15, 1993

Enclosed for your information is a copy of the cover page and one out of 18 pages of text from a speech delivered by Federal Indian Affairs Minister Dan Goodleaf on March 30th to the Institute for International relations in Brussels. The enclosed page of text pertains to the continuing Lubicon tragedy and is notable for several reasons, as was Mr. Goodleaf's European sojourn itself. (A copy of the full text of the speech is available upon request.)

Mr. Goodleaf travelled across Europe apparently on behalf of the Canadian forest industry, a highly unusual and inappropriate role for a supposedly non-political Canadian civil servant. The primary purpose of his trip seems to have been to try and counter growing international criticism of the Canadian forest industry -- a fair amount of which stems directly from the threat being increasingly posed to aboriginal people and aboriginal rights in Canada by the Canadian forest industry.

Mr. Goodleaf's main message to Europeans, in the words of his March 30th speech, seems to have been:

"Let me be clear. If Canada's forest industry suffers, there will be one group hurt more than any other. It won't be Governments or corporations. It will be aboriginal families, aboriginal business, aboriginal communities."

(While Mr. Goodleaf in his wisdom may know better than aboriginal people do themselves about what threatens their rights and way of life, there is no doubt that aboriginal people -- from the Innu of Labrador to the Haida of the Queen Charlottes -- strongly disagree with him on this point. Aboriginal leaders from one end of the country to the other have repeatedly made clear that they see the Canadian forest industry as one of the major threats to their rights and way of life -- if not the major threat.)

The Lubicons are the only aboriginal society specifically addressed in Mr. Goodleaf's speech -- however fleetingly and deceitfully. Oka and Davis Inlet are mentioned but only in passing. Clearly Mr. Goodleaf's "non-political" speech writer -- who is reportedly also the speech writer for ex-External Affairs Minister and current Constitutional Affairs Minister Joe Clark -- believes that the one Canadian aboriginal struggle of greatest concern to Europeans, or at least the one aboriginal struggle in Canada best known to Europeans, is the struggle of the Lubicon people.

Mr. Goodleaf's claim that "meetings continue between officials" isn't true. There are no meetings, no negotiations and no communications -- at least none of which the Lubicon people are aware -- between either the Feds and the Lubicons, or, if Provincial representatives can be believed, between the Feds and the Province concerning the Lubicons.

Mr. Goodleaf's claim that "the Minister of Indian Affairs and Northern Development and the Chief of that First Nation have agreed to meet again in the future" isn't true either -- except in the broadest possible sense that the Minister and the Chief have generally agreed to possibly meet again at some unspecified time in the future.

Mr. Goodleaf says that "The Federal Government has agreed to binding arbitration on the important issue of financial compensation and will therefore accept the results of that process" -- something which he glowingly described in other European forums as "incredibly courageous". That's too cute by half, even for the "non-political" Mr. Goodleaf and his "non-political" speech writer.

In truth Federal Justice Department lawyer Ivan Whitehall made a proposal to arbitrate financial compensation under a piece of Federal Government legislation called the Commercial Arbitration Act -- a proposal which the Lubicons rejected for several very good reasons.

First the Whitehall proposal provided that financial compensation for loss of the 4,000 square mile traditional Lubicon territory wouldn't even be considered. What would be considered would be only damages suffered by the Lubicons as a result of the Federal Government not creating a 25.4 square mile Lubicon reserve in 1939 under Treaty 8 -- a Treaty which the Lubicons never signed. In other words Mr. Whitehall's proposal would require the Lubicons to cede the primary basis for financial compensation in order to supposedly arbitrate the compensation issue.

Secondly under the Whitehall proposal either side could appeal to the Canadian Courts if no agreement could be achieved on selection of a mutually acceptable arbitrator -- and selection of an arbitrator by the Canadian courts would be final and non-appealable. Those who've followed Lubicon history know how that game's played.

Efforts to select a mutually acceptable arbitrator collapsed in the past when the Federal Government actually withdrew Federal candidates for arbitrator which were acceptable to the Lubicons -- candidates for arbitrator which had in fact originally been put forward by the Federal Government. Failure to reach agreement on a mutually acceptable arbitrator under the Whitehall proposal would result in an arbitrator being selected by a Government appointed judge. And the well documented Lubicon experience before the Canadian courts -- ex-oil company head lawyers turned Provincial Court judges, appeal court judges who are the ex-partners of the head oil company lawyer on the case, Supreme Court judges who retire and are appointed to oil company boards of directors -- has been so horrific that the 18 independent members of the U.N. Human Rights Committee concluded after three years of study and deliberation that the Lubicons couldn't receive effective legal redress within Canada. (It is of course also the demonstrated inability of the Canadian courts to fairly adjudicate aboriginal issues that led to the discussion of a supposedly independent tribunal for deciding the compensation issue in the first place.)

Thirdly any award of financial compensation under the Commercial Arbitration Act could explicitly be appealed to the Canadian Courts and "set aside" if found to be "in conflict" with Canadian law or "public policy" -- obviously only a slightly disguised version of the long-standing Canadian Government position that the Lubicons should go to court if they think they have any compensation coming, only worse, since it would string out the interminable legal process even longer without even pretending to address the obvious inequity of having the Canadian Courts decide the question -- as distinct for example from having the Lubicon Courts decide the issue -- plus it would add the highly general and arbitrary catch-all of Canadian "public policy" as a criteria for "setting aside" any possible award. (Goodleaf's contention that the Federal Government has agreed to "binding arbitration" is true in the sense that the Commercial Arbitration Act does provide that any decision under the Commercial Arbitration Act will be "binding" upon the parties; however, what he fails to mention is that the Commercial Arbitration Act also explicitly provides that any such so-called "binding" decision can also be appealed to the Canadian Courts and "set aside" if it's found to be "in conflict" with Canadian law or "public policy".)

Lastly Mr. Goodleaf says that "The United Nations agreed...(that) ...the Federal Government offers are fair and generous", and also that "the UN Human Rights Committee found the offer made by Canada was reasonable and would meet any obligation Canada has under the International Covenant on Civil and Political Rights". Anyone who's read this UN Human Rights Committee decision knows that this is not what it says. In fact the exact wording of the UN Human Rights Committee decision is as follows:

"Historical inequities, to which the State party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of Article 27 so long as they continue. The State party proposes to rectify the situation by a remedy that the Committee deems appropriate within the meaning of Article 2 of the Covenant".

The first sentence finding Canada in continuing violation of the Covenant until the matter is resolved is clear-cut and as a result Canada will be reported annually to the General Assembly of the UN as a violator of the Covenant until Lubicon land rights are settled. Asked to define what the less clear-cut second sentence meant, Committee staff told reporters at the time that the decision was announced that the Committee intended to indicate that it considered negotiations the appropriate way to reach a settlement, as distinct from litigating a settlement under the Canadian Courts -- which the Committee had earlier concluded was simply untenable.

Speech Notes

For Dan E. Goodleaf

Deputy Minister

Indian Affairs and Northern Development Canada

Into the 21st Century: Changing Relatinoships

Between The State and Indigenous People


March 1993

Delivered to the Brussels Institute for International Relations on March 30, 1993

Page 9

In that context, some of you may have heard about the Lubicon Lake Land Claim, which has received some publicity here, and elsewhere in Europe. I would simply make three points about that issue. First, the Federal Government is committed to a negotiated settlement of that claim. Meetings continue between officials. The Minister of Indian and Northern Affairs and the Chief of that First Nation have agreed to meet again in the future.

Second, the Federal Government has agreed to binding arbitration on the important issue of financial compensation, and will therefore accept the results of that process. Third, the Federal Government offers are just and generous. The United Nations agreed.

In 1984, the UN Human Rights Committee found the offer made by Canada was reasonable and would meet any obligation Canada has under the International Covenant on Civil and Political Rights.