February 8, 2005

The Hon. Andy Scott
Minister of Indian and Northern Affairs
Government of Canada
Ottawa, ON K1A 0H4

Dear Mr. Scott;

Ron Kaplansky shared with me a copy of the attached letter which you sent to Liz White and Mr. Kaplansky on January 19, 2005. The letter you sent to Ms. White and Mr. Kaplansky suggests, as did your earlier October 15, 2004 letter to me (copy attached), that the information you are being provided by your negotiators and officials of your department regarding Lubicon land negotiations is not accurate. Publicly circulating misleading information on Lubicon land negotiations is not only a disservice to the Lubicon people, and to Canadians generally (like Ms. White and Mr. Kaplansky), but to the Martin government whose credibility is at stake.

As I indicated in the letter I wrote you last November 24th (copy attached), which has notably never been answered, we have encountered the problem of misinformation being provided to Ministers of Indian Affairs before. When the problem became apparent to Mr. Nault he established direct communications with us in order to ensure that he was receiving balanced, complete and accurate information on Lubicon land negotiations. Talking directly with Mr. Nault we were able to straighten out misinformation and solve problems preventing progress at the negotiating table. It is for this reason that I proposed similar arrangements when the Martin government came to power, first to Mr. Mitchell and then to you. Mr. Mitchell never responded to that offer to establish direct communications and to-date neither have you.

You indicate in your letter to Ms. White and Mr. Kaplansky that your government "remains firmly committed to a just settlement of the land claim of the Lubicon Lake Indian Nation." Similarly Mr. Martin has publicly indicated that "settlement of the Lubicon land claim has been a priority of the Government of Canada and must be effectively pursued until a mutually acceptable solution is negotiated". Your negotiators, however, have tabled non-negotiable, "take-it-or-leave-it" positions on the key issues of financial compensation and self-government and negotiations have consequently been stalled during the entire tenure of the Martin government. Tabling non-negotiable, "take-it- or-leave-it" positions on key settlement issues is obviously no way to go about negotiating "mutually acceptable solution(s)" or "a just settlement".

As I pointed out in my letter of August 29, 2004 (copy attached), your negotiators effectively pre-empted negotiation of financial compensation by first requesting "a bottom line number" rather than negotiating the much larger numbers arrived at earlier through a mutually agreed approach to calculating financial compensation. Then they proposed to treat the significantly lower bottom line figure they had requested, supposedly to bring negotiation of financial compensation to an end, as a new starting point for negotiations. When the Lubicon people refused to be bamboozled by this transparent, carnival huckster style negotiating tactic federal negotiators simply tabled another still lower number which they told us is the non-negotiable "extent of (their) mandate". (Your attached letter of October 15, 2004, purporting to respond to my letter of August 29th , notably doesn’t deny that this is the position of the government of Canada. It simply indicates that the Lubicon people say this is the position of the federal government and makes note of our as yet unanswered request that you give federal negotiators a mandate which enables federal negotiators to negotiate outstanding issues.)

In both your October 15th letter to me and your January 19th letter to Ms. White and Mr. Kaplansky, you reject charges that federal negotiators have negotiated in bad faith and simply assert that "Canada has always negotiated, and will continue to negotiate, in good faith". You do not respond to information in my August 29th letter, which has been provided in greater detail to people in your office and in the Prime Minister’s office, outlining how federal negotiators pretended for years that they were prepared to engage in self-government negotiations as a part of Lubicon settlement negotiations when in fact they obviously had no intention of doing so, proposed "preambular" clauses on self-government which they falsely claimed they’d drafted in Peace River overnight (and that they might not be able to sell to Ottawa) when in fact the exact language involved had been drafted by Justice Department lawyers years earlier and issued as instructions to federal self-government negotiators on how to negotiate self-government in bad faith, assured us that these "preambular" clauses would have the same force and effect as clauses in the body of the settlement agreement when the secret Justice Department Guidelines to federal self-government negotiators from which these clauses were directly drawn instruct federal self-government negotiators to use this language in the preamble precisely because such clauses in the preamble would not have the same force and effect as clauses in the body of a settlement agreement, and, when we tried to negotiate related clauses in the body of the agreement so that the proposed "preambular" clauses might have some force and effect, simply retrenched and took the position that they had no mandate to negotiate anything other than agreement to talk about self-government post settlement. (I attach for your information a copy of a letter I wrote to Mr. Nault on October 24, 2003 -- before we obtained a copy of the also attached secret Justice Department Guidelines to Self-Government negotiators -- describing the tortuous process we went through with federal negotiators prior to obtaining a copy of the secret Justice Department Guidelines to Self-Government Negotiators which federal negotiators were obviously using as their negotiating playbook.)

Your attached October 15 letter, purporting to respond to my attached letter of August 29th , says that it is your "understanding that the federal (negotiating) team’s undertaking was to draft language which would honour its agreement to enter into self-government negotiations with the Lubicon Lake Indian Nation at a future date", and, "in light of the Lubicon’s insistence that substantive self-government negotiations not be deferred, Canada offered to enter into negotiations (at a separate table) on a self-government Framework Agreement". That may be your "understanding" of the federal negotiating team’s "undertaking" but it’s a highly selective and misleading rendering of what happened at the negotiating table.

Chief Federal Negotiator Brad Morse told Mr. Nault that we did not make clear until August 21, 2003 that recognition of the right of the Lubicon people to be self governing had to be part of any settlement of Lubicon land rights. That’s demonstrably untrue and Professor Morse knew at the time he wrote a briefing note to the Minister making this claim that it was untrue.

As is described in more detail in the attached October 24, 2003 letter to Mr. Nault, we first tabled our position on Lubicon self government in writing with Ministerial emissary E. Davie Fulton in 1984. These same Lubicon self-government proposals were on the table for discussion during settlement negotiations with federal representatives in December of 1988, 1992, 1995 and they were presented to Professor Morse in 1998 prior to commencement of the last round of negotiations as an integral part of a package of Lubicon settlement proposals. While these Lubicon self-government proposals did not come before the table for substantive discussion during the last round of negotiations until July of 2003, they had in fact been in the hands of federal representatives for nearly 20 years; they had been in Professor Morse’s hands for over 5 years and they were referred to frequently during the course of the last round of negotiations as an item that had to be dealt with as part of a settlement of Lubicon land rights.

Subsequent discussions with Professor Morse on the issue of self-government are described in some detail in the attached letters of October 24th and August 29, 2004. At no point was there "agreement to enter into self-government negotiations...at a future date following completion of the substantive land claim settlement". When the Lubicon people could not be conned into agreement to discuss self-government post settlement, or into believing that federal "preambular language" proposals offered more than motherhood statements about supposed Canadian government recognition of the inherent right of aboriginal people to be self-governing, federal officials did propose to "enter into negotiations (at a separate table) on a self-government Framework Agreement". And the Lubicon people did reject that proposal. We rejected that proposal because we understood very well what it meant.

We knew that the federal proposal to "enter into negotiations (at a separate table) on a self-government Framework Agreement" meant negotiating aboriginal self-government under the government’s so-called "Inherent Rights Policy" rather than negotiating recognition of the right of the Lubicon people to be self-governing as part of a settlement of Lubicon land rights. We knew it meant negotiating with federal officials in the context of a normal government program designed to allow for structured "discussion with aboriginal groups who have aspirations for self-government" rather than negotiating recognition of the fact that the Lubicon people have never ceded our right to be self-governing as part of a settlement of our unceded aboriginal land rights. We knew it meant entering into an interminable, multiple year process involving negotiation of a non-binding "framework agreement", followed maybe by negotiation of a non-binding "agreement-in-principle" if agreement could be reached on a non-binding framework agreement, followed perhaps some years later by negotiation of a "final settlement agreement" if agreement could be achieved on a non-binding agreement-in-principle, followed maybe, perhaps -- if the Canadian government’s Inherent Rights Policy hasn’t changed in the meantime -- by negotiation of an "implementation agreement".

Most importantly the Lubicon people understood very clearly that agreement to "enter into negotiations (at a separate table) on a self-government Framework Agreement" would mean ceding rights to our valuable traditional lands and resources without having first achieved even elemental agreement on our basic human right as a historically separate and distinct people to manage our own affairs (and on a post settlement process for negotiating how Lubicon self government powers would be exercised in a way compatible with the exercise of governmental powers by other governments in Canada).

You wrote to Ms. White and Mr. Kaplansky that "settlement of the Lubicon Lake Indian Nation Claim remains a priority for the Government of Canada". "However", you wrote, "there is more involved in reaching a settlement than the desire for one". You wrote "All parties must be prepared to compromise", implying, as did Professor Morse regularly in a more explicit way during negotiations as part of what other federal negotiators privately referred to as "repeating the mantra", that the Lubicons are not willing to compromise. Nothing could be less true or more offensive.

People from outside our area have ravaged our traditional lands --lands which we have never ceded to anybody in any legally or historically recognized way. Billions of dollars in natural resources have been pillaged from our traditional Territory and our people have been forced onto welfare in order to survive. Our highly valued traditional hunting and trapping economy and way of life have been deliberately and systematically torn asunder as part of a cynical legal strategy to undermine and subvert our aboriginal land rights. Our people have suffered untold hardships and many have died unnatural deaths related directly to the systematic and deliberate destruction of our traditional way of life and economy.

That’s the starting point for negotiations -- after much of what the Lubicon people value and rightfully belongs to the Lubicon people has already been taken from us without any consultation or consent whatsoever. What’s left for us to compromise and still be able to survive as a self-sufficient society is consequently admittedly limited.

Lubicon settlement proposals do not seek to restore all that has been lost. We do not seek what most people would consider fair reparations or compensation for what we’ve lost or suffered. We only seek a settlement which would hopefully enable us to rebuild our shattered society and replace our traditional hunting and trapping economy (based on wild plants and animals in our vast traditional Territory) with a hopefully viable mixed economy (based on domestic plants and animals raised on a much smaller reserve area).

Our detailed settlement proposals have been public since 1984 and have been repeatedly vetted and reviewed by a succession of government representatives as well as by independent cost assessors whose joint appointment was originally proposed by federal negotiators. When the jointly agreed and appointed cost assessors concluded that our construction cost estimates were in fact low rather than high, federal officials ignored the conclusions of the jointly agreed and appointed independent cost assessors and simply returned to the position that they have in fact maintained under one guise or another since 1988 that they are basically only prepared to talk about what’s available to aboriginal people in Canada under normal government programs and services, irrespective of need or workability, and irrespective also of the fact of our valuable unceded aboriginal land rights.

In this context it is the Lubicons that have done all the compromising. Lubicon land negotiations since 1988, including the last round of negotiations under Professor Morse, have in fact all essentially consisted of federal officials only being prepared to discuss what’s available to aboriginal people in Canada under normal government programs and services, and the Lubicon people trying very hard to come up with creative ways to meet basic Lubicon requirements for social and economic self-sufficiency within the demonstrably inadequate limits of normal government programs and services. (One federal official asked Lubicon advisor Fred Lennarson what was wrong with the government’s position. Fred Lennarson challenged the government official to name one single aboriginal society in Canada that is socially and economically self-sufficient based solely on normal government programs and services. The official grimly admitted "You know I can’t do that".)

In 1992/93 an independent Commission of prominent Canadians reviewed Lubicon land negotiations and settlement proposals. A copy of the Final Report of that Commission is attached for your information.

The "principle finding" of this independent "Lubicon Settlement Commission of Review" was that Canadian governments "have not acted in good faith". They noted that "Similar findings have been made by the (Human Rights Committee of the) United Nations, (Ministerial emissary) E. Davie Fulton (who appeared before the Commission and gave evidence), the World Council of Churches (who found that ‘the Alberta Provincial Government and dozens of multi-national oil companies have taken actions which could have genocidal consequences’ for the Lubicon people), and individuals from Canada and overseas and witnesses to this Commission".

Contrary to the inference that the Lubicon people are unwilling to compromise Commissioners "found that the Lubicon have acted in good faith in negotiations", "want open and public negotiations", "have responded to invitations from the governments to negotiate" and "have presented a well thought-out plan for a settlement to which they still await an adequate government response".

Commissioners concluded "the Lubicon (settlement) proposal, based on the need for community viability, represents a fairer basis for settlement than the proposals of the federal government based on fear of setting a precedent that varies from existing policy".

You go on to say in your letter to Ms. White and Mr. Kaplansky that "Canada wants a settlement that is fair to all parties, including other First Nations and the Canadian taxpayers". You’ll forgive the Lubicon people for being a little cynical when we hear a representative of Canada talk about being "fair to other parties". What that’s always meant in the past was some new government tactic for undermining and subverting unceded Lubicon land rights in the name of being fair to other parties.

Everybody familiar with the struggle of the Lubicon people knows that the long-outstanding land claim of the Whitefish Lake Band was only settled to try and counter increasingly critical international reaction to treatment of the Lubicon people. Everybody familiar with the struggle of the Lubicon people knows that the Woodland Cree Band was created out of disparate individuals of half a dozen northern Alberta aboriginal societies originally organized by the government of Canada to try and overthrow duly elected Lubicon leadership, and when that failed, how these individuals were transformed by the government of Canada into a whole new pretend aboriginal society in order to try tear Lubicon society apart and to challenge Lubicon jurisdiction over traditional Lubicon Territory. And everybody familiar with the Lubicon struggle also knows that the Loon River Band was recognized by the government of Canada only as part of the continuing effort to tear Lubicon society apart and to challenge Lubicon jurisdiction over unceded Lubicon Territory. (Documentation on all of these things is available upon request for anybody who doesn’t already know about them.)

Something that most people don’t know, since it happened during the last round of negotiations when federal negotiators insisted as a prior condition of the negotiations that developments impacting negotiations not be discussed publicly, is that the federal department of Indian Affairs financed the Whitefish, Woodland and Loon River Bands to clear-cut traditional Lubicon Territory while the rights to Lubicon Territory were actively under negotiation between the Lubicon people and the government of Canada. The Whitefish, Woodland and Loon River Bands were only stopped from trying to proceed with clear-cutting our traditional Territory by the Japanese forestry company Daishowa, who holds provincially granted logging interests in the area and had contracted with the three bands to clear-cut Lubicon lands but who decided instead -- after the Lubicons learned about and protested what was going on -- to honor their agreement with the Lubicon people to stay out of unceded Lubicon Territory until Lubicon land rights are settled.

Endlessly creative departmental officials next proposed to help the Whitefish, Woodland and Loon River Bands finance a sawmill with provincially granted timber interests in the unceded Lubicon Territory (and on which interests the three bands have been variously seeking to act ever since). Regional Director General of the Alberta Region of the federal Department of Indian Affairs Barrie Robb defended financing the Whitefish, Woodland and Loon River Bands to purchase a sawmill with provincially granted timber interests in the unceded Lubicon Territory by saying "We can’t stop a group of First Nations people trying to better themselves". (Detailed information on this continuing problem of government officials using other aboriginal people to challenge Lubicon jurisdiction over traditional Lubicon Territory and undermine Lubicon land rights is available upon request.)

On what’s fair to the Canadian taxpayer, the issue is of course the cost of settlement including financial compensation. What Canada stands to gain from a settlement of Lubicon land rights is legitimization of Canada’s claim to some 4000 sq miles of tradition Lubicon Territory from which an estimated $13 billion in natural resources has been taken basically since construction of an all-weather road into our unceded traditional Territory was completed in 1979. What the Lubicons stand to receive in terms of money for reserve construction costs and partial financial remuneration for what’s been lost is but a tiny fraction of the value of traditional Lubicon Territory and the resources taken from unceded Lubicon Territory since 1979.

Reserve construction including economic development doesn’t include anything that doesn’t exist in other small northern Canadian communities and Indian reserves. The situation with regard to financial compensation is as follows.

The Lubicon position on financial compensation was originally based on a number of conventional legal categories having to do with things like damages and loss of use. In 1979 Lubicon lawyers calculated the amount of compensation owing under these categories at a billion dollars.

In 1984 E. Davie Fulton, representing then federal Indian Affairs Minister David Crombie, proposed to group all of the Lubicon legal claims for financial compensation against the federal government into one category -- compensation for lost programs, benefits and services, or, in other words, financial compensation for things which the Lubicon should have received from the federal government over the years but didn’t receive. Mr. Fulton’s rationale was that the conventional legal categories for compensation proposed by the lawyers were too complicated and difficult to quantify. (The billion dollar figure was undoubtedly a consideration as well.)

The initial Lubicon reaction to Mr. Fulton’s proposal was to reject it because we are not a party to treaty with Canada and consequently didn’t think we were owed benefits under treaty. We did believe, however, and continue to believe, that we are owed substantial compensation for damages to our traditional Territory, for the destruction of our traditional hunting and trapping way of life, and for the billions of dollars in natural resources illegally expropriated from our unceded traditional Territory.

Mr. Fulton argued that it would be easier for the federal government to provide compensation for lost programs, benefits and services. He argued that the Lubicon people are wrong about not being owed anything for loss of programs, benefits and services to which he said we are entitled even through we are not a party to treaty. Mr. Fulton pointed out that the government of Canada appropriates money every year for the Indian program and that Indian people in Canada are entitled to receive programs, benefits and services whether they are party to treaty or not. He pointed out that Indian people in the Maritimes, British Columbia and the Northwest Territories all receive programs, benefits and services even though they are not party to treaty.

The Lubicon people therefore agreed to work with Mr. Fulton on calculating the value of lost programs, benefits and services as a way to try and determine financial compensation from the federal government. We went to the archives of Canada and looked up the amount of money appropriated by the government of Canada for the Indian program going back to the signing of Treaty 8 in 1899 (covering the area surrounding the traditional Lubicon Territory). We looked up the number of Indians noted in the records to be served by this money and calculated a per capita. We factored in Statistics Canada inflation rates and Bank of Canada interest rates and we subtracted the value of the programs, benefits and services we’d received starting basically in the early 1980’s. Using these calculations, by 1985 the Lubicon people had been shorted $165 million in lost programs, benefits and services.

Having reduced claimed financial compensation from a billion to $165 million Mr. Fulton accepted the Lubicon approach to calculating the value of lost programs, benefits and services as a technically reasonable one. However, he said, $165 million was a lot of money. He proposed to run the numbers from the time of first contact between Canada and the Lubicon people in 1939 instead of from the time of signing Treaty 8 in 1899.

The Lubicon people did not see why we should lose 40 years in compensation because the government of Canada did not contact us when it contacted the aboriginal people in the surrounding area. However we were talking back and forth with Mr. Fulton -- negotiating -- when the provincial government refused to talk with him any further and his mandate was prematurely terminated by the Mulroney government.

On October 14, 1988 -- facing Lubicon assertion of jurisdiction over unceded Lubicon Territory -- provincial government representatives asked Lubicon representatives what the Lubicon people would accept by way of financial compensation from the province for the value of resources taken from unceded Lubicon Territory. Lubicon representatives told provincial representatives that they would have to look at provincial records on the value of the resources taken and would then be prepared to negotiate an equitable amount.

Provincial representatives asked Lubicon representatives for a number or a formula so they could assess "provincial exposure". Based on publicly available information that the province receives about 20% of the value of the resource in royalties, and on affidavits filed by the province in a 1982 Lubicon legal action that the value of the resources being extracted from unceded Lubicon Territory was about $500 million a year, the Lubicon people tabled a formula with the province of 10% of the 20% the province receives in royalties, or, in other words, 2 cents on the dollar in compensation for natural resources illegally extracted from unceded Lubicon Territory.

The following week then Alberta Provincial Premier Don Getty made a public statement that the Lubicons had tabled a formula which would amount to over $100 million in what he called "taxpayers’ money". What was at issue, of course, was not taxpayer’s money but return to the Lubicons of a tiny fraction of the value of the resources illicitly extracted from unceded Lubicon Territory. (Calculated on this same very reasonable basis the amount received by the province in royalties and consequently owing to the Lubicons in compensation would have by now more than doubled.)

That was the situation with regard to the issue of financial compensation at the end of 1988. With $265 million on the table for negotiation -- $165 million from the federal government ala the Fulton proposal and over $100 million from the province calculated on the basis of 2 cents on the dollar -- federal and provincial negotiators asked the Lubicons what the Lubicons would be prepared to accept as a minimum bottom line figure from both levels of Canadian government. The Lubicons tabled a minimum bottom line figure of $100 million in 1988 dollars from both levels of Canadian government.

By the time of the 1992 round of negotiations the value of $100 million in 1988 dollars had increased through inflation to $120 million and the proposal being discussed at the table was $60 from each level of Canadian government. The federal government released a press statement which said, in part, "the Band’s demand for $60 million in compensation each from Canada and Alberta is not resolvable via negotiations but may be through arbitration". The statement went on to falsely allege that there was agreement to arbitrate the compensation issue under the Commercial Arbitration Act but it is true that there was serious discussion about the possibility of binding arbitration to settle the issue of financial compensation.

On April 27, 1993, during a community meeting in Little Buffalo Lake, then Provincial Aboriginal Affairs Minister Mike Cardinal indicated that the province was prepared to provide the provincial half of the $120 million "at the rate of $6 million a year for a period of ten years, provided that this same amount, similarly provided, is matched by the federal government". This Cardinal proposal was agreed by the Lubicon people as an acceptable way to resolve the financial compensation issue and was included, along with long-standing Lubicon self-government proposals, in the package of Lubicon settlement proposals provided to then Chief Federal Negotiator Brad Morse in 1998.

Professor Morse’s position on the financial compensation issue was to treat the $100 million in 1988 dollars minimum bottom line figure as the starting point for negotiation. When the Lubicons refused to start negotiation of financial compensation from the earlier requested minimum bottom line figure Professor Morse accused the Lubicon people of refusing to negotiate and to compromise. The Lubicon people understand that providing a requested "bottom line number" is not tantamount to agreement to provide that bottom line figure and that the issue of financial compensation is still before us to be resolved, either through figuring out some other creative way of enabling the Lubicon people to achieve our goal of establishing a capital fund which would generate interest revenues in perpetuity for our people in exchange for resource rights to our resource rich traditional Territory, or perhaps through agreement on some kind of independent binding arbitration. What we won’t accept is the transparent, bullyboy tactic of charging us with refusing to negotiate and compromise when we reject the phony tactic of asking for a bottom line figure and then trying to transform that bottom line figure into a new, lower level starting point for negotiations.

In order to allow us to proceed with productive negotiations the Lubicon people again propose:

1.) That you renounce the attached Justice Department Guidelines in effect instructing federal self-government negotiators on how to negotiate self-government in bad faith.

2.) That federal negotiators be given a mandate to negotiate outstanding settlement issues including self-government and financial compensation.

3.) That federal negotiators be given instructions to negotiate in good faith with the objective of reaching a settlement of unceded Lubicon land rights by the end of the current calendar year (as distinct from just using the pretense of negotiations to buy time while resource exploitation continues and vital Lubicon interests are systematically eroded).

4.) That departmental officials be instructed to stop trying to use other aboriginal societies in the surrounding area to undermine and subvert Lubicon interests at issue in Lubicon land negotiations.

5.) That the Lubicon people be loaned the money to do the work necessary to participate in the negotiations.

6.) That Lubicon land negotiations be open and public so that Canadians can follow the negotiations and judge the issues and the positions of the parties for themselves.

Sincerely,

ORIGINAL SIGNED BY

Bernard Ominayak
Chief, Lubicon Lake Indian Nation