Court Update: Day 22; Thursday, November 27, 1997
Alternative To Negotiations Ignored, Henry Thiessen Takes The Stand!
Reverend Menno Wiebe was cross examined by Peter Jervis, counsel for Daishowa. Rev. Wiebe stated that The Lubicon Settlement Commission of Review was formed to offer an alternative means to the negotiation process that was deadlocked. The Commission found in their investigations that governments had not acted in good faith with the Lubicon and offered recommendations that were listed in Day 21's Court Update. Rev. Wiebe stressed that the public hearings were open and the Commission asked for participation from a wide spectrum of interests, including Daishowa. The Commission based its Report on the submissions it received, said Rev. Wiebe. The Commission concluded that the Lubicon encountered a systemic justice problem that meant they couldn't receive redress.
E. Davie Fulton was called to the witness stand by Karen Wristen, counsel for FoL, to give testimony about his knowledge of the Lubicon's situation. Mr. Fulton is a retired Supreme Court of British Columbia Justice and a Rhodes Scholar who was appointed by then-Indian Affairs Minister David Crombie in the mid-80s, to carry out an inquiry to sort out the issues and the positions of those involved in the Lubicon situation. Mr. Fulton met with the parties involved and said that it became evident that it could be established there were common areas of interest, so his mandate was widened to include making suggestions for possible settlement. The discussion paper that his investigations produced, initally released in late 1985, included the positions of each party followed by a remarks section that included: areas of agreement; areas of discussion; and areas of disagreement. A review of the inital paper by the Lubicon led to a revised version recirculated that corrected the basis of the Lubicon land claim: that the Lubicon claim was based on aboriginal title to their land. not on Treaty 8. The discussion paper looked at:land entitlement; sub surface rights, including oil and gas; wildlife management and environmental protection plans; opportunity and job training for the Lubicon; Compensation for past losses; Compensation for future losses; Compensation for loss of culture; and rights to self government. Mr. Fulton said that once his report was delivered, the Alberta Government was unwilling to participate further in the inquiry because they claimed that he had no authority. If Alberta was not part of the discussion, said Mr. Fulton, Crombie took the position that there was no point in continuing. In regards to the Aboriginal Land claim, Mr. Fulton felt that the parties involved were so far apart that there should be a direct reference to the Supreme Court of Canada to determine if the Lubicons had title or not. The Federal Government didn't act on the recommendations in the Fulton paper and it was never made public. Mr. Fulton said that he had been approached as a possible mediator since that time, but that the federal government had called him "prejudiced." Mr. Fulton said he found that difficult to accept. He wrote to then-Indian Affairs Minister Bill McKnight and told him that he took exception to the word "prejudice." He said "it implies arriving at a conclusion in absence of the facts. But I know the facts. I may be guilty of sympathy for the band, but not prejudice." Mr. Fulton testified that, when asked by the Parliamentary Standing Committee on Native Affairs to rate the severity of the Lubicon situation on a scale of 1 to 10, he replied that he would have to rate it at 10 - in a state of disrepair. He said that as an accumulated result of oil and gas activities which upset and distorted and pretty well terminated the band's hunting and trapping, there was low morale, low income, and that people could not see any way to improve their state. He said he would rate it the same today. That ended the witnesses for the defense.
The plaintiffs, who are entitled to call "reply" evidence in the rules of Canadian courts, recalled Gordon Bunt, general manager of Daishowa Packaging (Winnipeg), to testify about a demonstration in Winnipeg on November 3, 1997. Bunt stated that he spoke with the organizer, Donald Sullivan, before the demonstration but he didn't recall any mention of the Daishowa boycott itself. He said the picket of Daishowa's plant by 20 people was mostly concerned about the Daishowa lawsuit against FOL and its effects on free speech. Karen Wristen, counsel for FoL, objected to Bunt's evidence, questioning the relevance to the case. Ms. Wristen inquired if there was anything that linked FoL with organizing the demonstration. Bunt admitted that he couldn't do this. Daishowa counsel Peter Jervis said that this is evidence that FOL "can have an effective voice in this country" even with an injunction. Citing the massive press coverage of the picket (one article in a Winnipeg student newspaper and nothing whatsoever in the mainstream media) Jervis said "It's clear evidence of the breadth of FOL's networks and it's clear evidence that FOL can get their message across." Justice MacPherson admitted the evidence.
Henry Thiessen was the plaintiff's next witness. Thiessen was a Alberta Department of Agricultural assistant director between 1966 and 1971 and was employed by the Alberta Government's Native Affairs Secretariat from 1983 to 1987 as a senior official. He currently acts a consultant and under this capacity wrote a report attacking Lubicon land rights for Daishowa counsel Davis & Company. Thiessen had written an earlier report in 1995 for Unocal to submit to the Alberta Energy Resources Conservation Board in a successful effort to convince the ERCB to allow Unocal to start up a sour gas processing plant on Lubicon lands. Justice MacPherson questioned Mr. Jervis about the relevance of the witness's testimony to the trial. Justice MacPherson said he was not going to write a judgement on whether the Lubicon land claim is valid or not. Thiessen has had 46 years employment with the Alberta Government, he added, including the top job of the very department battling with the Lubicon and is therefore not independent. He represents the other side of the Lubicon land rights battle. In questioning his "expertise", Mr. Owen Young, Lubicon counsel, also uncovered that Thiessen did not possess degrees in anthropology, ethnology, history, law and was not trained in field gathering of data, all of which he was proposing to give evidence on. His only formal training was as in agricultural science, in which his Thesis was on land for grazing purposes in Saskatchewan. However, Justice MacPherson said he would allow Thiessen to present his "factual" evidence (evidence on his own experience of the Lubicon situation) and then make a ruling on whether to admit Thiessen as an "expert" who could give his opinion evidence on the validity of Lubicon land rights.
On Friday, the trial resumed in courtroom 4-10. 361 University Ave. Toronto at 9:30 a.m.
FoL gratefully acknowleges the Catholic Workers for providing lunch for FoL, and supporters. Everyone raved about the homebaked bread! The Church of the Holy Trinity has continued to provide facilities for lunch and a respite from court; a very special note of gratitude!
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