Rebuttal to federal government’s preposterous arguments for refusing to negotiate with the Lubicons
August 24, 2006

http://www.tao.ca/~fol
http://www.lubiconsolidarity.ca/
http://www.lubicon.ca/

Attached for your information are copies of a letter to Canadian Indian Affairs Minister Jim Prentice from a Belgian support group, a copy of Mr. Prentice’s July 28th reply; and a copy of the Belgian group’s reaction to the letter they received from Mr. Prentice. Mr. Prentice’s letter to the Belgian support group is similar to letters currently being sent to Lubicon supporters across Canada and around the world.

Notably the Minister’s letters to Lubicon supporters are little more than the latest variant on the government’s preposterous argument – that refusal to negotiate recognition of the Lubicon right of self-government as part of a settlement of Lubicon land rights is somehow not refusal to negotiate recognition of the Lubicon right of self-government as part of a settlement of Lubicon land rights, and that effectively tabling take-it-or-leave-it offers which you then refuse to negotiate is somehow not refusal to negotiate.

Since this disingenuous government line pre-dates the current government, these letters again raise the question of what the Minister is being told by his bureaucrats and whether he knows the truth. Not knowing the truth does not absolve the Minister from responsibility for signing his name to letters containing demonstrable untruth, however, since it’s his job to straighten these things out, not simply to sign whatever’s put before him.

Prentice has no excuse if he’s being bamboozled by the bureaucrats. Lubicon representatives have been hand-delivering correct information to his personal staff in both Calgary and Ottawa starting last January 24th a week before his anticipated appointment as Minister was announced. A copy of the letter the Lubicons hand-delivered to his personal staff in Calgary and Ottawa the week before his anticipated announcement as Minister is attached below. (Not all of the attachments to that letter are attached because they are too voluminous to email but they are listed at the end of the letter and can be provided upon request.)

The author of the July 28th Prentice letter is playing word games when they say “At no time have the federal negotiators taken the position that they have no mandate to negotiate issues of self-government and compensation”. In fact federal representatives have taken that position repeatedly while repeatedly denying it’s their position. They say they “have no mandate to negotiate self-government as part of a settlement of Lubicon land rights”. They say they’ve “reached the extent of (their) mandate with respect to financial compensation”. They say that they have no mandate to negotiate anything else. Then they deny that they’re making a “take-it-or-leave-it” offer or refusing to negotiate.

Regarding the issue of financial compensation the Prentice letter says:

“In fact, in the fall of 2003, Canada made a compensation offer to the Lubicon that was fair to the Lubicon, to other First Nations in Treaty 8 that have settled similar claims and to all Canadians. Canada’s offer is significantly more generous than the 1889 [he means 1989] offer to the Lubicon, which was found by the United Nations Rights Committee in 1990 to be ‘appropriate to rectify the situation’.”

Prentice is misrepresenting other Treaty 8 settlement agreements. He’s misrepresenting what happened at the Lubicon negotiating table. And he’s both misquoting and misrepresenting the 1990 UN Human Rights Committee decision.

Moreover, taken together with the last paragraph of the Prentice letter, it is very clear that the compensation offer made by Canadian government negotiators in the fall of 2003 was made effectively on a “take-it-or-leave-it” basis which federal negotiators then refused to negotiate.

The last paragraph of Prentice’s July, 28th letter to the Belgian support group says:

“The impasse, which began in November of 2003, was the result of the Lubicons not accepting Canada’s offers on self-government and compensation”.

It then says:

“I believe you will agree that this is quite different from your statement that Canada’s negotiator does not have a mandate”.

How is it different? Making a “take-it-or-leave-it” offer that you unilaterally deem to be “fair” and then refuse to negotiate — thereby creating an “impasse” in negotiations — isn’t negotiating. It’s in fact refusing to negotiate. Moreover one doesn’t have to be analytical or interpretative about this situation. Canadian negotiators have expressly taken the position on a number of occasions that they have “reached the extent of (their) mandate with regard to financial compensation” and “have no mandate to negotiate self-government as part of a settlement of Lubicon land rights”.

There are no “other First Nations in Treaty 8 that have settled similar claims”. There are some First Nations that have settled long-standing treaty land entitlement claims not involving cession of vast tracts of valuable unceded traditional Territory. There are a couple of settlement agreements that government selected and paid lawyers have negotiated on behalf of new government created Indian Bands who either had no traditional territory to cede and/or for whatever reason were prepared to accept whatever the government was prepared to offer. The Lubicons are in fact the only historically recognized First Nation in the Treaty 8 area negotiating aboriginal land rights over a vast, resource-rich unceded traditional Territory.

What the 1990 UN Human Rights Committee decision in fact says is:

“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 as long as they continue. The State party proposes to rectify the situation with a remedy that the Committee deems appropriate under article 2 of the Covenant”. [The Covenant referred to is the International Covenant on Civil and Political Rights. Article 2 of that Covenant basically provides that each party to the Covenant undertakes to respect and ensure the rights of all people living with its territory. “Historical inequities” refers to the fact that the Lubicons were missed when treaty was negotiated with other aboriginal societies in the surrounding area. The “more recent developments” mentioned in the decision are massive resource exploitation activities in the unceded Lubicon Territory.]

UNHRC staff made very clear at the time that the Committee decision did not mean that the Committee found Canada’s 1989 “take-it-or-leave-it” offer to be “appropriate to rectify the situation”. As Mr. Prentice should know, if only if it has been repeatedly pointed out in a variety of contexts, Committee members were talking about Canada’s publicly announced commitment to negotiate a mutually acceptable settlement of Lubicon land rights with the Lubicons, not about Canada’s 1989 “take-it-or-leave-it” offer. They were saying that they deemed negotiation of a mutually acceptable settlement of Lubicon land rights to be an appropriate remedy, not that the Committee found Canada’s 1989 “take-it-or-leave-it” offer to be “appropriate to remedy the situation”. In fact one Committee official was specifically quoted in the Canadian media as saying that the Committee was “telling both sides to continue negotiating in good faith”.

Last October that same UN Human Rights Committee reviewed the situation with Lubicon land negotiations and concluded:

“The Committee is concerned that land claim negotiations between the Government of Canada and the Lubicon Lake Band are currently at an impasse. It is also concerned about information that the land of the Band continues to be compromised by logging and large-scale oil and gas extraction, and regrets that the State party (Canada) has not provided information on this specific issue.

“The State party should make every effort to resume negotiations with the Lubicon Lake Band, with a view to finding a solution which represents the rights of the Band under the Covenant, as already found by the Committee. It should consult with the Band before granting licences for economic exploitation of the disputed land, and ensure that in no case such exploitation jeopardizes the rights recognized under the Covenant”.

This October 2005 conclusion by the UNHRC was followed in May of this year with a second decision by a second UN committee under a second major international human rights covenant. It is well notable that this second decision was rendered after the current Canadian government came to power and Mr. Prentice had been appointed federal Minister of Indian Affairs. He is absolutely aware of this second UN committee decision because he has spoken publicly about it, albeit again inaccurately.

In May of this year the UN Committee on Economic, Social and Cultural Rights reviewed the situation with Lubicon land negotiations and concluded:

“The Committee strongly recommends that the State party [Canada] resume negotiations with the Lubicon Lake Band, with a view to finding a solution to the claims of the Band that ensures the enjoyment of their rights under the [International Covenant on Economic, Social and Cultural Rights]. The Committee also strongly recommends that the State party conduct effective consultation with the Band prior to the grant of licences for economic purposes in the disputed land, and to ensure that such activities do not jeopardize the rights recognized under the Covenant”.

In neither of these recent UN decisions did the United Nations accept the Canadian government claim that the 1989 “take-it-or-leave-it” offer, or the supposedly “significantly more generous” 2003 “take-it-or-leave-it” offer, is “appropriate to rectify the situation”.

The situation with regard to the issue of financial compensation is as follows.

Prior to 1984 the Lubicon position on financial compensation was based on a number of recognized legal categories including loss of use, damages and illicit expropriation of valuable natural resources taken from unceded Lubicon land. The dollar value of this approach to financial compensation was calculated by Lubicon lawyers in 1979 at a billion dollars.

In 1984 the federal Minister of Indian Affairs appointed the Hon. E. Davie Fulton to conduct an inquiry into the Lubicon situation and make recommendations regarding settlement of Lubicon land rights. Mr. Fulton recommended that financial compensation from the federal government be based on the value of lost programs, benefits and services which the Lubicons should have been receiving from the time of the signing of Treaty 8 in 1899 but hadn’t received. The resulting calculation, based on actual government figures, was $165 million in 1984 dollars. The Lubicons accepted the approach to calculating financial compensation owing from the federal government recommended by Mr. Fulton. Canada did not accept the recommendation of its own ministerially appointed Inquiry Officer.

In 1988 Alberta asked for a figure or formula for calculating what they called Alberta’s “exposure” with regard to financial compensation owing the Lubicons from Alberta for illicit exploitation of valuable natural resources taken from unceded Lubicon lands. The Lubicons tabled a formula of 10% of the 20% of the value of natural resources received by Alberta in royalties from resource companies for natural resources illicitly extracted from unceded Lubicon Territory — effectively two cents on the dollar. Then Alberta Premier Getty said publicly that the resulting figure would be “in excess of $100 million” (meaning at that point the province had received something in excess of a billion dollars in royalty payments and the oil companies had extracted natural resources valued at something in excess of 5 billion dollars). Alberta did not accept the Lubicon proposal.

In 1988 there were thus two financial compensation figures on the table for negotiation, $165 million from the federal government for loss of programs, benefits and services using an approach suggested by federal Inquiry Officer E. Davie Fulton, and “in excess of $100 million” from the Alberta government calculated at the rate of 10% of the 20% of the value of natural resources paid to the province by the oil companies in royalties for natural resources illicitly extracted from unceded Lubicon Territory valued in excess of 5 billion dollars. (Currently the value of natural resources illicitly extracted from unceded Lubicon Territory is conservatively estimated at over $13 billion.)

In 1988 the governments of Canada and Alberta brought negotiation of financial compensation to an end by asking for “a bottom line figure” that the Lubicons would accept in financial compensation from both levels of Canadian government. The Lubicons tabled a bottom line figure of $100 million in 1988 dollars from both levels of Canadian government ($151,473,477 in 2005 dollars.) Neither level of Canadian government responded to the bottom line they had requested from the Lubicons.

In 1993, leading up to a provincial election, then Provincial Aboriginal Affairs Minister Mike Cardinal offered the Lubicons $6 million a year for a period of 10 years if the federal government would match it (for a total of $120 million over a period of 10 years from both levels of Canadian government). The Lubicons accepted Mr. Cardinal’s offer. The federal government did not respond to Mr. Cardinal’s proposal.

In 2003 federal negotiators offered the Lubicons $20 million in financial compensation and the province offered the Lubicons an additional $2 million. Federal negotiators insisted on treating the requested Lubicon bottom line of $100 million as the opening Lubicon position and proposed to negotiate some amount between $22 million and $100 million. This $22 million dollar figure is the offer to which Prentice refers in his July 28th letter.

The Lubicons refused to allow federal negotiators to define the requested bottom line figure as the Lubicons starting position and proposed different approaches to achieving the Lubicon goal of generating an adjusted $3-4 million dollars in independent revenue a year for the Lubicon Nation in exchange for ceding rights to valuable natural resources worth billions of dollars. Federal negotiators refused to seriously discuss other approaches for achieving the Lubicon objective of $3-4 million a year in independent revenues, insisted that the Lubicons negotiate some amount between the $20 million and the $100 million Lubicon bottom line, argued facetiously that they could “not negotiate with themselves”, and, when pressed to get serious about negotiating financial compensation, took the position that $20 million was “the extent of (their) mandate” and that they had no mandate to negotiate anything more or different.

If this federal government position appears internally inconsistent and nonsensical it’s because it is. It’s another example of federal negotiators saying both that they have no mandate to negotiate any more or anything different but that they are prepared to negotiate. This is the way Chief federal negotiator Brad Morse tried to avoid the charge that the federal government was making a “take-it-or-leave-it” offer like the one made by the Conservative government in 1989. The Conservatives openly called the 1989 offer a “take-it-or-leave-it” offer and were criticized for such a high-handed and autocratic approach. Mr. Morse denied that the federal government was making a similarly high-handed and autocratic “take-it-or-leave-it” offer while at the same time taking the position that he had no mandate to negotiate anything more or different. (Provincial negotiators took the simpler, more straightforward but no more acceptable position that $2 million dollars was all they were prepared to provide or discuss.)

That’s where discussion of financial compensation ended at the end of 2003 — with what amounted to a “take-it-or-leave-it” offer of $22 million total from both levels of Canadian government and both levels of government refusing to discuss anything more or different.

The situation with regard to self-government is as follows.

Lubicon self-government has been on the table in writing since 1984 and has been on the agenda of every subsequent round of Lubicon settlement negotiations as an essential element of any Lubicon settlement agreement. At the commencement of the last round of Lubicon settlement negotiations in July of 1988, Lubicon self-government proposals were given to Chief Federal Negotiator Brad Morse in writing as part of a package of essential items which had to be resolved for there to be a settlement of Lubicon land rights.

In July of 2003 Mr. Morse claimed that he had not earlier understood that the Lubicons considered self-government an essential element of any settlement of Lubicon land rights — despite the fact that self-government had regularly come up at the negotiating table as an item that had to be settled for there to be a settlement of Lubicon land rights. Between July of 2003 and November of 2003 federal negotiators variously sought to either avoid negotiating self-government as part of a settlement of Lubicon land rights or to negotiate self-government provisions which would not be legally binding on the government of Canada. A letter which Chief Ominayak wrote to then Indian Affairs Minister Nault on October 24, 2003 describing those negotiations in some detail is available at http://www.tao.ca/~fol/Im/050513%20mailing/0310llin.pdf

In November of 2003 all pretense of negotiating self-government collapsed when Mr. Morse advised the Lubicons that he had no mandate to negotiate recognition of Lubicon self-government as part of a settlement of Lubicon land rights. Although spun in his July 28th letter to make it sound like something else happened, Prentice is not really saying anything different.

Prentice says “Canada’s negotiator also has a mandate to negotiate, as part of the land claim settlement, a [non-binding] Framework Agreement on Self-Government with the Lubicon people”. “When the Lubicon rejected Canada’s offer to enter into negotiations on a Framework Agreement”, he says, “Canada offered to put a clause in the land claim settlement that stated that self-government negotiations would begin following the successful ratification of the land claim settlement”.

In point of fact neither of these so-called Canadian government “offers” would provide recognition of the right of the Lubicon people to be self-governing as part of a settlement of Lubicon land rights, and both of them would in fact require the Lubicons to cede valuable traditional Lubicon lands and resources prior to trying to negotiate binding recognition of Lubicon self-government with the government of Canada. A non-binding “Framework Agreement on Self-Government” is no more than agreement on what is to be negotiated post-settlement of Lubicon land rights; similarly an “offer to put a clause in the land claim settlement that stated that self-government negotiations would begin following the successful ratification of the land claim settlement”.

In December of 2003 the Lubicons obtained a copy of secret Canadian Justice Department Guidelines for Federal Self-Government Negotiators instructing federal self-government negotiators how to negotiate agreements that would not be legally binding on the Canadian government, or, in effect, how to negotiate self-government agreements in bad faith. A copy these Justice Department Guidelines has already been posted.

The Lubicons have been asking ever since that Canada appoint a negotiator with a mandate to negotiate all outstanding settlement issues in good faith, including financial compensation and self-government.

In June of 2005 then federal Indian Affairs Minister Scott proposed that the Lubicons either return to the table under what he called “the current mandate”, or wait an indeterminate period of time while the federal government explored “The possibility that [talks between the previous federal government and the Assembly of First Nations] may result in recommendations for changes to the [federal government’s] Inherent Rights Policy that could possibly address the concerns the Lubicon people have expressed”. (The “current mandate” of course limits financial compensation from the federal government to $20 million and doesn’t include negotiation of Lubicon self-government as part of a settlement of Lubicon land rights. Talks between the previous government and the Assembly of First Nations did not result in recommendations for changes to the Inherent Rights Policy. The current government is not pursuing those talks. And the onerous federal Justice Department Guidelines to federal self-government negotiators on how to negotiate self-government in bad faith are part of the federal government’s unchanged and still operative Inherent Rights Policy.)

The Lubicons responded to Minister Scott’s proposal to either return to the negotiating table under the current mandate, or to wait for a possible change in Canadian government policy respecting negotiation of the constitutionally recognized right of aboriginal people to be self- governing, by reiterating the Lubicon request that the federal government meet its constitutional responsibility to the Lubicon people by appointing a negotiator with a mandate to negotiate all outstanding Lubicon settlement issues in good faith. A copy of the letter containing Minister Scott’s proposal is at http://www.tao.ca/~fol/Im/050623scot.pdf and Chief Ominayak’s response is at http://www.tao.ca/~fol/Im/050703llin.pdf

What the Lubicons seek at a minimum with respect to self-government in any settlement of Lubicon land rights is recognition of the right of the Lubicon people to be self-governing and provision for post-settlement negotiation of arrangements whereby the governments of Canada, Alberta and the Lubicons can exercise their respective jurisdictions in a manner that is complimentary, uncontested and effective. Such an arrangement is wholly consistent with the way the federal and provincial levels of government operate in Canada with constitutional recognition of areas of jurisdiction as between the federal and provincial governments and on-going discussions between the different levels of government in Canada regarding how their constitutionally recognized respective jurisdictions can be exercised in a manner that is complimentary, uncontested and effective.

Basically all the Lubicons are asking is that their government be treated like other governments in Canada. With the inherent right of Aboriginal people to be self-governing also recognized in the Canadian constitution, one would think agreement on Lubicon self-government proposals would only be a technical matter of reaching agreement on how to proceed.

Although there may be other problems reaching agreement with Alberta, recognition of the right of the Lubicon people to be self-governing is likely the biggest barrier to achieving a settlement of Lubicon land rights with the government of Canada. One cannot understand the nature of the problem by simply reading Lubicon self-government proposals because on their face they seem straightforward and reasonable, as, for example, ex-federal Justice Minister and respected senior Canadian jurist the Hon. E. Davie Fulton found them to be.

In order to understand Canada’s negative reaction to Lubicon self-government proposals one has to read the secret Justice Department Guidelines for federal self-government negotiators. When one reads the Guidelines one can readily understand the problem; the nature of the truly despicable mentality giving rise to the problem; and the reason why those associated with the Guidelines want to both retain them and to keep them secret and confidential.

The last Lubicon self-government proposal for inclusion in a Lubicon land settlement agreement is as follows. The federal government has been given this proposal in writing and refuses to discuss it.

continued…
Part 2 (pdf)
Part 3 (pdf)