On October 22, 1988, a couple of days after heavily-armed RCMP forcibly dismantled Lubicon check points on the roads into Lubicon territory, Lubicon Chief Bernard Ominayak and Alberta Provincial Premier Don Getty negotiated an agreement, since called the "Grimshaw Accord".
The Grimshaw Accord provides for the Provincial Government to transfer 79 square miles of land to the Federal Government for purposes of establishing a Lubicon reserve, plus to "sell" the Federal Government another 16 square miles "for use by the Lubicon Band". The 79 square miles includes full surface and sub-surface rights, as do all other Indian reserves in Alberta. The 16 square miles includes only surface rights but our agreement with Premier Getty provides that no development activity can occur on this 16 square mile area without Lubicon consent. Taken together the two pieces of land total 95 square miles of reserve land, or about 128 acres per Lubicon. One hundred and twenty eight acres per person is the amount of reserve land which the Indians who signed Treaty in the surrounding area were allowed to retain.
The reason for the distinction between the 79 and 16 square mile areas is that the Provincial Government was only prepared to admit to an obligation of 79 square miles, but agreed to "sell" the other 16 square miles in order to make the deal. Such arrangements have been made before with other aboriginal peoples in Alberta and elsewhere. However, for such arrangements to serve the intended purpose, the 16 square mile area has also to be formally established as tax-free, inalienable reserve land under Federal Government jurisdiction. Otherwise the 16 square mile area would be subject to expropriation and/or might in other ways be lost to future generations of Lubicon people. The status of the 16 square mile area, Chief Ominayak agreed with Premier Getty, would have to be worked out with the Federal Government.
Another provision of the agreement negotiated by Chief Ominayak and Premier Getty on October 22nd was that the Federal Government "will be responsible for the compensation of all third party interests, surface and sub-surface, within the 79 square mile area...(as well as)...for the compensation of all third party surface interests within the 16 square mile area". Needless to say this is a provision in the agreement which will have to be worked out between the two levels of Canadian Government. There is no known precedent of such compensation being paid by the Federal Government. However the idea of such compensation originally came from Federal Inquiry Officer E. Davie Fulton, who recommended that the Federal Government compensate the Province for the value of any land over and above the 25.4 square miles set aside in 1939, because, Mr. Fulton said, "It's entirely the fault of Canada that the matter was not disposed of (at that time)".
The Grimshaw Accord of October 22nd of course didn't settle Lubicon land rights. Not only were there a number of other remaining issues to be resolved between the Lubicon people and both levels of Canadian Government, the Federal Government is the only level of Government in Canada Constitutionally able to negotiate a settlement of aboriginal land rights. What Grimshaw Accord did do, however, was clearly take the Alberta Government out of the key land and membership debate, thus squarely placing primary responsibility for settlement or lack of settlement on the Federal Government. From this point onward the Federal Government could no longer claim that the Provincial Government was blocking settlement over the land or membership issue.
Below is the text of the Grimshaw Accord without any of its accompanying schedules.
1. Alberta is prepared to transfer to Canada the administration and control of 79 square miles of provincial Crown land including mines and minerals, to enable Canada to establish an Indian Reserve for the use and benefit of the Lubicon Lake Indian Band and its members.
2. Alberta is prepared to sell to Canada at fair market value the fee simple interest, excluding mines and minerals, to a further 16 square miles for use by the Lubicon Band.
3. Canada will be responsible to for the compensation of all third party interests, surface and subsurface, within the 79 square mile area in order that the lands are rendered "unoccupied" prior to transfer by Alberta to Canada.
4. Canada will be responsible for the compensation of all third party surface interests within the 16 square mile area.
5. Any arrangements concerning the surface of the 16 square mile area will be between the Lubicon Band and Canada. Alberta will retain owwnership and control of mines and minerals. No development will occur on these lands without the consent of both Alberta and the Band.
6. The lands referred to in 1 and 2 above will approximate the lands identified in Schedules "1", "2", and "3" attached, the precise boundaries to be subject to further negotiations.
7. Notwithstanding 6, it is understood that, generally, the lands to be transferred will not involve currently producing oil and gas interests.
8. Notwithstanding 6, it is understood that Alberta will retain access to Lubicon Lake.
9. The Band and its members will provide a full and final release to Canada and Alberta, in a manner satisfactory to Canada and Alberta, with respect to the claims of all of the 477 people on the Band's membership list as of March 17, 1988.